2-1 Perak Chronicles
November 5, 2009 2 Comments
Nizar asked for 11 Judges to sit in but the final decision will rests on the shoulders of 5 of Malaysias Top Judges. Will we be able to come to a conclusive agreement with a verdict.Sure it will be 2-1 but to who Nizar or Zambry..?? The full article from Malaysiakini portal is copied in full for everyone to make their own respective opinions.
The Federal Court today dismissed ousted Menteri Besar Mohd Nizar Jamaluddin’s application for an enlarged panel of 11 judges to hear his crucial appeal.
Court of Appeal president Justice Alauddin Mohd Sheriff – who is leading a five-member bench – said this was an unanimous decision and made no order as to costs.
The decision has raised questions as the apex court had previously allowed a panel of seven judges to hear two drug cases.
Former Bar Council chairperson Ambiga Sreenevasan, who is representing Nizar, had earlier submitted that an 11-member bench was necessary as this is a case of huge public interests and implications.
“It affects all the states and would also affect the Federal Constitution. The whole world is watching, academics and the man in the street, as this is a unique case,” she said.
However, attorney-general Abdul Gani Patail, who is acting as an intervener to help interpret the Perak and federal constitutions, said the application should not come by way of motion.
“It should come by way of judicial review,” he added.
In her submission, Ambiga also quoted passages from ‘May Day for Justice’, a book written by former Lord President Mohd Salleh Abas regarding the Umno crisis of 1987.
“It seemed to me that one of the way to eliminate suspicion particularly in view of the hearing of political overtones surrounding the case was to review the case (Umno) before a full bench.
“This is to allow every variety if judicial opinion available to come to bear on the matters.”
Salleh also said it is also obvious by including all the judges, it could eliminate any suggestion of bias on his part.
“No one can say I picked the judges or pick the bench,” the former Lord President said on having a full bench to hear the Umno matter in 1988.
However, before the idea could be implemented, Mahathir replaced him.
Much is at stake
Nizar’s appeal would determine the future of the Perak Pakatan Rakyat state government, which had been driven out of power in February after three of its elected representatives resigned from their parties and pledged support for Barisan Nasional.
Much is at stake at this hearing which would decide not only who is the legitimate menteri besar but also set a precedent for future similar political imbroglios.
Five of the country’s top judges have been picked to hear the case despite Nizar having sought a full 11-member bench given the importance of the case.
The basis for his 11-bench application, as the former Perak MB stated in his affidavit, is that it involves constitutional issues regarding the interpretation of the Perak constitution which would have a direct impact in the interpretation of the provisions in the federal constitution.
Nizar also said that the apex court’s decision would affect all Malaysians and would become a precedent to similar cases in the near future.
“The issues and constitutional problem in Perak have not been resolved and a full quorum of Federal Court judges is important as it involves public interests and the jurisprudence history of the court in Malaysia.
“Furthermore, the legal issues which is raised following the Court of Appeal decision involves the rejection of strong constitutional cases involving the powers of the menteri besar or the chief ministers of Sabah and Sarawak,” Nizar had said in his affidavit filed on Oct 28.
Others on the five-member bench are Chief Judge of Malaya Arifin Zakaria and justices Zulkefli Ahmad Makinuddin, Mohd Ghazali Mohd Yusoff and Abdull Hamid Embong.
Nizar is represented by a team of lawyers led by senior counsel Sulaiman Abdullah, while another senior lawyer Cecil Abraham is representing Perak Menteri Besar Zambry Abdul Kadir.
Journalists and members of the public were at the Palace of Justice in Putrajaya as early as 7am, where the hearing is held.
Security was tight as police and security personnel require those planning to go into the courtroom to obtain special passes.
Three key questions
Three constitutional questions have been posed for the country’s highest court to decide:
1. A proper interpretation of Article 16(6) of the Perak constitution under which a menteri besar can advise the sultan to dissolve the assembly. What if there is no motion of no-confidence against the MB and that he refuses to resign?
2. Can the sultan determine if a menteri besar commands the confidence of the majority of the House without a vote in the assembly?
Article 16(6) of the state constitution also relates to a motion of no-confidence being made at the state legislative assembly and an interpretation is being sought on this.
3. Whether the state constitution allows the sultan to sack a menteri besar or can the position be deemed vacant if he chooses not to resign.
Nizar wins one, Zambry wins one
The MB vs MB case, which began in March, saw Nizar winning in the High Court on May 11 when justice Abdul Aziz Abdul Rahim declared the PAS leader the rightful menteri besar.
Subsequently, Zambry was granted stay within 24 hours by recently promoted justice Ramly Ali on appeal at the Court of Appeal.
This was followed with the appellate court decision by a three-member bench on May 22 to overturn the High Court decision and acknowledged Zambry as the legitimate menteri besar.
Nizar had encountered problems filing his application for a stay at the Federal Court after the three judges delayed submitting their written judgments.
Two of the written judgments were only made available on June 27, a month after their oral decision, while the third was made available in early July.