April 24, 2009
Pix courtesy of Malaysiakini.
PUTRAJAYA: Datuk Seri Mohammad Nizar Jamaluddin wants a nine-member quorum to hear Datuk Seri Dr Zambry Abdul Kadir's application for the Federal Court to decide on who is the rightful mentri besar of Perak.
Mohammad Nizar's counsel, Leong Cheok Keng, when contacted Friday, said he submitted a letter to Chief Justice Tan Sri Zaki Tun Azmi's secretary on April 22 seeking a larger bench to hear the matter.
Among the grounds given for the application were that the matter was of public interest and that they wanted to revisit the issue of applicability or validity of Article 63 of the Perak State Constitution.
Leong said a five-member bench had previously deliberated on Article 63.
Dr Zambry's application has been fixed for hearing on Tuesday.
He is taking the matter straight to the Federal Court via Article 63 of the Perak State Constitution requesting the highest court in the country to determine and interpret Article 16(2) and 16(6) of the Perak State Constitution. Dr Zambry wants the court to determine three constitutional questions involving the interpretation of the sultan's prerogative under the Perak Constitution to appoint a mentri besar.
In his application, he said that if the questions were decided by the Federal Court in his favour, he wanted the court to declare that his appointment as mentri besar on Feb 6 was in accordance with the Perak State Constitution.
Mohammad Nizar, however, filed an affidavit-in-reply Thursday opposing the referral, saying that the questions suggested by Dr Zambry for the court to decide could not solve the political impasse. He said this was due to material differences in facts as to what was told to the Sultan of Perak by him and as claimed by State Legal Adviser Datuk Ahmad Kamal Md Shahid.
Nizar, in his affidavit, said he had requested the ruler to dissolve the state legislative assembly as there could be a possible deadlock in the house.
This was because both the Barisan Nasional and Pakatan Rakyat had 28 seats each in the assembly.
Three other assemblymen who were with Pakatan Rakyat had become independents but friendly to the BN.
Ahmad Kamal, in an affidavit in support of Zambry, said Nizar had requested the sultan to dissolve the assembly as he (Nizar) had lost the confidence of the majority of the assemblymen.
The state legal adviser was present on three occasions between Feb 2 and Feb 5 when Nizar was in audience with the ruler.
"All material differences in facts could only be decided at the judicial review application (pending in the High Court).
The Federal Court cannot answer legal questions based on assumptions," Nizar said in an affidavit filed at the apex court registry Thursday.
On Monday, Zambry had filed for an interpretation of the sultan's prerogative under the Perak Constitution to appoint a menteri besar. The Federal Court has fixed the matter for hearing on Tuesday. In his application which was attached with his supporting affidavit, Dr Zambry wanted the Federal Court to decide and interpret the provisions under Clauses 16(2) and 16(6) of the Perak State Constitution namely:
whether the Sultan of Perak had the right to refuse consent to the dissolution of the State Assembly by former Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin when Mohammad Nizar no longer had the confidence of the majority of the Assemblymen;
whether upon refusal by the Sultan of Perak to dissolve the Assembly, should Mohammad Nizar and his executive councillors tender their resignations under Clause 16(6) of the State Constitution;
whether the Sultan of Perak had the right to appoint Dr Zambry as the menteri besar following Mohammad Nizar's and the executive councillors' refusal to resign.
In his counter affidavit Thursday, Nizar said among others that the questions suggested by Zambry for the court to decide could not solve the political impasse.
He said the issues, whether the post of Mentri Besar could and/or had been vacated in the situation where the Mentri Besar wished, and had advised for the dissolution of the State Legislative Assembly under several circumstances including the absence of a motion of no confidence being passed and adopted in and by the Assembly against the Mentri Besar could still not be answered.
He said, the questions suggested by Zambry for the court to decide were irrelevant to his judicial review application and it would not resolve the contentious issues in the application. Nizar is also challenging the validity of Article 63 of the Perak State Constitution which was used to refer the matter to the Federal Court.
He said the Federal Court did not have jurisdiction to hear the Article 63 application because the term "Supreme Court" in Article 63 did not refer to the apex court in the Federation of Malay States because the apex court at that time was the Privy Council.
Nizar said he did not dispute the prerogative of the Sultan of Perak which was enshrined in Article 16(2) and/or Article 36(2). He said, the Sultan of Perak's prerogative did not arise at all in his judicial review application.
Nizar has argued that according to the Perak State Constitution, he was the legitimate Mentri Besar because he had advised the Sultan to dissolve the State Legislative Assembly, did not resign and no motion of no confidence had been passed against him in the Assembly.
The High Court will hear that judicial review application on May 5 and 6. - Bernama