Tuesday, March 24, 2009

Perak Constitutional Issues Must Be Decided By High Court

PUTRAJAYA, March 23 (Bernama) -- The Federal Court here today ruledthat issues involving the interpretation of Article 16 (6) of thePerak Constitution must be heard and decided at the High Court and canonly be brought to the Federal Court by way of appeal.

The five-member bench presided by Court of Appeal President Tan SriAlauddin Mohd Sheriff made the decision after allowing a preliminary objection by Datuk Seri Mohammad Nizar Jamaluddin's lead counsel, Sulaiman Abdullah, that the Federal Court was not seised of jurisdiction to hear the four questions to be referred to it for determination.

The other four judges were Chief Judge of Malaya Datuk Arifin Zakaria,Federal Court judges Datuk S. Augustine Paul and Datuk Zulkefli Ahmad Makinuddin and Court of Appeal judge Datuk James Foong. Alauddin then set aside all the orders made by the Court of Appeal onMarch 20 including that which ruled that the four questions must be heard and decided by the Federal Court and remitted the case to the High Court, before the same judge, Lau Bee Lan.

The court was to have heard today the four questions in Mohammad Nizar's suit challenging the legitimacy of Datuk Zambry Abdul Kadir's appointment as Perak menteri besar. Both Mohammad Nizar and Zambry were present.

Alauddin rejected Sulaiman's application to appoint a different high court judge to hear the case.The court also ordered that a related suit filed by three state elected representatives against Perak Assembly Speaker V. Sivakumar be similarly returned to the Ipoh High Court for decision.

Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) and Hee Yit Fong (Jelapang) are suing Sivakumar for falsely declaring their seats vacant to pave the way for by-elections afterthey went independent.

The court was to have heard Sivakumar's case after Mohammad Nizar's case today.On March 10, Lau pronounced four constitutional questions to be determined by the Federal Court. The questions were formulated by senior federal counsel Datuk Kamaluddin Md Said for the Attorney-General's Chambers as requested by the judge.

Mohammad Nizar, 52, who is also Perak PAS deputy commissioner, had filed for a judicial review seeking to declare that he is the righful menteri besar of Perak and an injunction to bar Dr Zambry from discharging his duties as the menteri besar.

When met after the decision, he said he was thankful and that the decision was a beginning on the road to justice in the country's judicial system. Asked whether he expected to win today, he said: "I thought it was only50-50".

On his request for an audience with the Sultan of Perak to present three motions, including one calling for the dissolution of the assembly, which were approved by the state assembly at its sitting under a tree in Ipoh recently, he said the relevant documents were submitted to the sultan 10 days ago. However, he had yet to receive a response.

At the outset of proceedings, Alauddin rejected Sulaiman's application to have the case heard before a nine-member bench, saying that afive-member bench was sufficient. He also allowed the prosecution's application for Attorney-General Tan Sri Abdul Gani Patail to be an intervernor in the hearing on the preliminary objection.

Sulaiman, in his submission, said that under Section 84 of the Courts of Judicature Act (CJA), the Federal Court was seised of jurisdictionto hear the four questions because the section was only applicable to questions of law regarding the Federal Constitution and not the state constitution and there was no law which gave Lau the power to move the issue to the higher court.

"The court is not at liberty to stretch or pervert the laws on the constitution to suit its purpose. In fact, my client (Mohammad Nizar) did not wish his case to be referred to the Federal Court," he said, adding that despite the urgency of the issue, no shortcut was allowed but the rule of law must be followed.

Abdul Gani submitted that Article 63 of the laws of the Constitutionof Perak and Section 84 of the CJA were consistent with each other and both provisions were formulated by the legislature to allow reference of constitutional questions to the Federal Court. He said all the constitutional questions referred to the Federal Court were relevant to the issue raised by Mohammad Nizar for a judicial review. -- BERNAMA

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