20 March, 2009

MB vs MB - a tale of two MB

The Court of Appeal has unanimously decided in favour of referring some constitutional issues that arose in the suit by Datuk Seri Mohammad Nizar Jamaluddin to challenge the appointment of Datuk Dr Zambry Abdul Kadir as Perak Menteri Besar to the Federal Court.

"We are of the view that the learned trial judge was right in interpreting Section 84 of the Courts of Judicature Act 1964.

"We are of the view that the questions framed will answer the relief sought by the appellant in the judicial review application," said Justice Datuk Md Raus Sharif who sat with Datuk Abdull Hamid Embong and Datuk Ahmad Maarop here today.

“We agree the word ‘constitution’ under Section 84 is not confined to the Federal Constitution but includes the state constitutions,” Md Raus announced in open court this afternoon, referring to the section of the law under the Courts of Judicature Act (CJA).

“As such, the High Court was not wrong to refer the question to the Federal Court.

“The appeal is therefore dismissed,” he said.

Nizar’s lawyers, led by Sulaiman Abdullah, had earlier argued that Lau had misinterpreted the law under Section 84 of the CJA to mean she had the discretion to refer the constitutional conundrum to the apex court.

Sulaiman contended that Section 84 provides for the judge’s discretionary power to do so only if the dispute related specifically to the Federal Constitution and not to state constitutions.

But Attorney-General Tan Sri Abdul Gani Patail countered that the definition of the word “constitution” must include a more “liberal and proper meaning” to include state constitutions.

The Court of Appeal granted leave to Nizar’s judicial review, which had been neglected earlier at the High Court level.

With that order, Datuk Zambry Abdul Kadir, the de facto Perak menteri besar, is now a party to the proceedings.

Zambry’s new lead lawyer, Firoz Hussein Ahmad Jamaluddin, who was present in court today, told reporters he had no problems with the four referral questions framed earlier by Lau.

The four questions to be answered by the Federal Court are:

1. “Whether the withholding of consent to a request for the dissolution of the State Legislative Assembly of Perak under Article XVI (6) read together with Article XVII (2) (b) of the Constitution of Perak by His Royal Highness the Sultan of Perak is justiciable?

2. “If the answer to the first question is in the affirmative, the following question is whether the withholding of consent by His Royal Highness the Sultan of Perak is lawful.

3. “Whether the appointment of the new menteri besar under Article XVI (2) (a) read together with Article XVII (2) (a) of the Constitution of Perak by His Royal Highness the Sultan of Perak is justiciable?

4. “If the answer to the above question is in the affirmative, the following question is whether the new menteri besar is validly appointed?”

Firoz noted the questions will resolve the main issues at the heart of the Perak constitutional crisis, which is related to the “justiciability” of the Sultan of Perak, that is whether the court can question the Ruler’s decision to appoint a new menteri besar.

But Nizar’s lawyers argued otherwise.

“We are not challenging the Sultan of Perak in any way. Nobody is challenging the Sultan’s decision,” one of Nizar’s lawyers, Leong Cheok Keng, told reporters outside the courtroom.

“We are just saying Nizar has not resigned, no vote of no confidence has been taken against him, how can there be a new menteri besar?” Leong said, pointing to the demands in Nizar’s original suit.

In part 1(b) of the suit filed on Feb 18, Nizar asked the High Court to decide if the menteri besar’s post can be considered vacant, based on Article 16(6) of the Perak State Constitution, when:

(i) The menteri besar had advised the Ruler on the dissolution of the State Legislative Assembly;

(ii) There was no dissolution of the Assembly;

(iii) There was no motion of no-confidence taken or passed against the menteri besar in the Assembly;

(iv) The menteri besar did not resign.

Meanwhile, more Perak assemblymen will be called in to give their statements to the Malaysian Anti-Corruption Commission (MACC) over the state assembly’s Rights and Privileges Committee decision on Feb 18 to bar its Mentri Besar Datuk Dr Zambry Abd Kadir and his six exco members from the assembly.

According to MACC chief commissioner Datuk Seri Ahmad Said Hamdan, statements by the state assemblymen were expected to provide a more complete account of the issue.

“As far as we are concerned, there are elements (for abuse of power)."

“When I talk about this, people will get angry, but for us, there are such factors. So, MACC conducts a probe,” he added.

On calls by the opposition for the commission to investigate Umno vice president Datuk Seri Mohd Ali Rustam who was barred to contest in the coming party polls, Ahmad Said said MACC would not be involved as the offence was infringement of party ethics.

He, however, added that anyone was welcomed to lodge a report but one must know that violations of party ethics and disciplinary problems were not criminal in nature.

“As such, we do not probe into the case but we will move in if it involves corruption,” he said.

Meanwhile, state director Datuk Shukri Abdullah said he had yet to get reports pertaining to several Umno members in Pahang who were among those penalised by the party’s disciplinary board recently.

He reminded anyone who wished to make a report to do so by giving the right facts and solid evidence and not merely based on ‘empty talks’ or rumours because it would not help in getting a conclusive investigation.

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