Thursday, July 9, 2009

MB vs MB: Nizar granted leave to appeal - Star

Jul 9, 2009 By M. MAGESWARI

PUTRAJAYA: The Federal Court has granted Datuk Seri Mohammad Nizar Jamaluddin leave to appeal the Court of Appeal’s May 22 ruling that Datuk Dr Zambry Abdul Kadir was the rightful mentri besar of Perak.

However, the court rejected Nizar’s application for a stay of execution on the appellate court’s decision, which means Zambry will continue to act as the chief executive of the state.

Court of Appeal president Justice Alauddin Mohd Sheriff, who headed a three-man panel, granted the application to appeal after no objections were raised.

Justice Alauddin and the other two judges, Chief Judge of Malaya Justice Arifin Zakaria and Federal Court judge Justice Zulkefli Ahmad Makinuddin, however, unanimously refused to grant a stay order against the lower court’s ruling on May 22.

For the leave application, the apex court allowed the formulation of three questions:

·whether the Perak Mentri Besar’s post may be and/or has been vacated under Article 16(6) of the Perak Constitution;

·whether the determination of the issue of confidence in the Perak Mentri Besar has to be made by members of the legislative assembly in its meeting via vote of no-confidence or by other means;

·and if the Mentri Besar refuses to tender the resignation of the executive council, could he be dismissed from office, his post be deemed vacant, or his post vacated under the Perak Constitution.

The court, however, did not set a date to hear the leave application.

On May 11, High Court (Appellate and Special Powers) judge Justice Abdul Aziz Abdul Rahim granted a declaratory relief to Nizar that he still is and was the Mentri Besar (MB) at all material times. However, following an appeal by Datuk Dr Zambry Abdul Kadir, the Court of Appeal’s three-man panel on May 22 unanimously declared the latter as the rightful Perak MB.

In his suit filed on Feb 13, Nizar challenged the legitimacy of Dr Zambry and the new state government.

At the outset of the proceedings yesterday, Nizar’s counsel Datuk S. Ambiga informed the Bench that her client’s lead counsel Sulaiman Abdullah was unable to be present due to his health reasons.

Ambiga said the parties had resolved three questions for the leave application.

Attorney-General Tan Sri Abdul Gani Patail, who acted as intervener, and Datuk Cecil Abraham who represented Dr Zambry as lead counsel, confirmed to the panel that they had no objections for leave.

Ambiga then applied for a stay against the Court of Appeal decision.

In elaborating the grounds for the stay application, Ambiga said essentially many of Nizar’s policies had been reversed that was detrimental to the welfare of the people of Perak.

Among the actions which Ambiga submitted that Nizar claimed did not have any benefit for the people of Perak included the failure to implement welfare programmes for senior citizens and poor as per allocated budget, the delay in the implementation of Ipoh Sentral transport project, the approval of 14,000ha of land to private companies, the auction of 15 Camry cars used as officials cars by Nizar and former exco team, the cancellation of the service of 817 village heads and 342 councillors.

“That is our case for stay, so that no steps are taken to reverse any of those policies,” she said.

Cecil opposed to the stay saying that the court had no jurisdicton to interfere in the executive power of MB and his executive council.

“Whether the policy is right or not, it is up to the politicians,” he said adding that there was no special circumstance and it was highly improper to grant a stay of execution.

Cecil said he was prepared to expedite the hearing of the leave.

“If the stay is granted, the High Court order will be reinstated and the applicant (Nizar) will become the Mentri Besar. This is what the court should not do,” he urged.

Abdul Gani, who opposed the stay, noted that Dr Zambry was acting as MB to maintain his status quo and the state of affairs while Nizar failed to show special reasons to warrant for the stay.

In reply, Ambiga said the court must give an interim order to prevent prejudice against Nizar.

Speaking to reporters later, Nizar said he was not satisfied with the implementation of certain policies and applied for stay to ensure the status quo and welfare of the people of Perak.

“If an agreement is signed with a company, it will be difficult to reverse it,” he added.

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