Thursday, November 5, 2009

Latest on the Nizar/Zambry court case

Regretably, the final number of judges sitting on the bench to hear the Nizar/Zambry case this morning is five and not eleven as requested by Nizar, and furthermore, Justice Gopal Sri Ram is not one of the five either. The latest as reported by Malaysiakini ....

The future of the Perak Pakatan Rakyat state government and that of ousted Menteri Besar Mohd Nizar Jamaluddin hinges on his crucial appeal, which is being heard at the Federal Court today.
nizar and zambry court 130509
Much is at stake at this hearing, which will determine not only who is the legitimate menteri besar but also set a precedent for future similar political imbroglio.

The apex court is also expected to interpret the rulers' powers in dissolving the legislative assembly and the appointment of its chief executive.

Five of the country's top judges have been picked to hear the case despite that Nizar has sought a full 11-member bench given the importance of the case.

Court of Appeal president Alauddin Mohd Sheriff is leading the five-member bench. Others are Chief Judge Malaya Arifin Zakaria and justices Zulkefli Ahmad Makinuddin, Mohd Ghazali Mohd Yusoff and Abdull Hamid Embong.

Attorney-general Abdul Gani Patail, who acted as an intervener to help interpret the Perak and the federal constitutions, was also present in court.
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 will be 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.

To hear Nizar's application first

First on the agenda is Nizar's application for his appeal to be heard before a full bench of judges given the importance and constitutional implications in the case.

Nizar had on Oct 28 filed an application for the matter to be heard before either an
11-member bench or an enlarged quorum of more than five Federal Court judges.The basis for this application, as the former Perak MB states 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.
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 Pakatan leader, who is PAS Perak secretary, 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 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.

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