Friday, April 24, 2009
KUALA LUMPUR, April 23 — The High Court here today allowed Attorney-General (AG) Tan Sri Abdul Gani Patail to intervene in Datuk Seri Mohammad Nizar Jamaluddin’s suit challenging the legitimacy of Datuk Dr Zambry Abdul Kadir’s appointment as Perak mentri besar.
Justice Datuk Abdul Aziz Abd Rahim, in his oral decision, said the AG, as the guardian of the public interest, should be allowed to intervene as the issue was of public importance and public interest.
He also said that the issue involved interpretation of Article 16 of the Perak Constitution which is similar to Article 43 of the Federal Constitution.
“Of course the court can invite the AG as a friend of court, but after considering the main issue here, it is my view to allow the AG to intervene and to help the court, more so when the issue here is a novel one.
One mentri besar is appointed and the other one has not resigned,” said Abdul Aziz who is the third judge to hear the application after the Federal Court sent it back to the High Court.
The first judge was Judicial Commissioner Mohamad Ariff Md Yusof who recused himself while the second judge, Lau Bee Lan, had referred the matter to the Federal Court for determination of constitutional isssues.
Earlier, senior federal counsel Datuk Kamaluddin Md Said submitted that the AG should be allowed to intervene as the application for judicial review required the interpretation of the Perak Constitution which would also affect other state constitutions with similar provisions.
Sulaiman Abdullah, counsel for Mohammad Nizar, objected on the ground that the AG had failed to show any necessity for him to intervene in the proceeding.
“This is a Perak matter. The actual situation here is that the applicant (Mohammad Nizar) and the respondent (Zambry) are both claiming to be the mentri besar. There is no direct involvement of the federal government in this issue.
The judge also fixed May 4 to hear the application by Mohammad Nizar to cross-examine Perak legal advisor Datuk Kamal Md Shahid on the statement which he claimed was inconsistent with Mohammad Nizar’s statement in the affidavit filed in the suit.
OBJECTION TO ZAMBRY APPLICATION
Late yesterday, Nizar filed an objection to Zambry’s application for the Federal Court to declare him the legitimate mentri besar.
Nizar made the objection through an affidavit in reply filed at the court’s registry here through legal firm Messrs Leong & Tan.
In the affidavit, 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.
Zambry filed the application to refer three legal questions regarding the interpretation of Article 16(2) and 16(6) according to Article 63 of the Perak State Constitution.
In his notice of motion, Zambry said that if the Federal Court decided in his favour regarding the three questions, the court should declare that on Feb 6, 2009, he had been properly appointed as Perak Mentri Besar.
The Federal Court has fixed Tuesday to hear the notice of motion application.
Nizar filed the judicial review application at the High Court to challenge Zambry’s appointment as the legitimate mentri besar.
Nizar 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 the judicial review application on May 5 and 6.– Bernama-telokbakong blog