Nizar vs Zambry: Fireworks at Jalan Duta court

There were fireworks at the High Court's special powers and appellate division when ousted Perak menteri besar Mohammad Nizar Jamaluddin's suit against Barisan Nasional Dr Zambry Abdul Kadir came up for mention today, five days after it was filed.

Four issues were raised during the proceedings:

• There was an exchange of words between Nizar's lead counsel Sulaiman Abdullah and Perak legal adviser Ahmad Kamal Md Shahid, who is representing Zambry.

• Sulaiman objected to the presence of Ahmad Kamal as Nizar is suing Zambry in his personal capacity and the Perak government is not involved in the matter; hence, the Perak legal adviser should not be involved.

• Judicial commissioner Mohamad Ariff Md Yusof sought to recuse himself from hearing the trial. Mohammad Ariff said he had represented PAS, PKR and even BN in several of its cases including election petition cases. Mohammad Ariff, who was a senior partner in a legal firm Cheang & Ariff, was appointed judicial commissioner on Sept 15 last year.

• On instructions from Zambry, Ahmad Kamal applied for the case be transferred to the Ipoh High Court. Zambry also supported Ariff's recusal.

Nizar arrived at about 10.45am in court, accompanied by his team of lawyers. In his application filed on Friday, he is seeking a declaration that he is still the Perak menteri besar. He has named Zambry as the sole respondent.

Proceedings began at 11.30am, with Sulaiman introducing his team of eight lawyers who include Ngeh Hock Chuan, Ranjit Singh, Edmund Bon, Hanifa Maidin, Amer Hamzah Arshad, Leong Cheok Keng and Zulkarnain Lukman.

In addition to Ahmad Kamal, senior federal counsel See Mee Chun was present from the Attorney-General's Chambers. Lawyer Mohd Hafarizam Harun held a watching brief for Barisan Nasional.

Objection to Ahmad Kamal

Lead counsel Sulaiman objected to Ahmad Kamal's presence in representing Zambry as this concerns a suit to determine the proper state government.

"Ahmad Kamal also may have played a role in sealing the office in preventing Nizar from continuing his functions at the menteri besar.

“For this, I think it is highly improper for Ahmad Kamal to be present. Nizar is suing Zambry in his personal capacity and the entire Perak government machinery is not a party to the suit. Hence, Ahmad Kamal should be disqualified from representing Zambry as he should remain neutral," he said.

Ahmad Kamal said he was surprised by the objection.

"I have the right to appear to represent the respondent (Zambry) in the case. It is premature to allege conflict of interest.

"Furthermore, I have yet to receive the affidavit of support to the application. After perusing the affidavit, I will make my stand," he said.

Question of recusal

Ariff then explained why he had called up the case for mention.

"I have called for this matter to essentially explain my position and background so nothing can be said about the court not being impartial to both parties.

"I've represented PAS as its legal adviser in election petition and legal matters. I have also advised PKR on a few matters. To make it complete, I have also acted for BN in an election petition in Sarawak. I want to make sure there is impartiality of the court and justice is seen to be done," he said.

The judge noted that bloggers are very active and he did not want to be seen as presiding over the case, thus drawing criticism.

"I feel I ought to recuse myself as it is important that justice be dealt with and to show the impartiality of the court," he said.

"I am worried about public perception not so much about the legalities of the case, and also on the matter affecting public interest."

Ahmad Kamal said Zambry had instructed him to seek the judge's recusal.

Sulaiman said he does not object to Ariff hearing the case, as the judicial commissioner has no pecuniary interest in the matter.

"We have the confidence that your lordship will act according to the law as the matter at hand involves an interpretation of law."

"Your lordship’s mere involvement is in the capacity of an advocate and solicitor. You may have no option but to act on behalf of the political parties."

Ariff then replied he does not belong to any political party.

Transfer of case

Ahmad Kamal said he had received instructions that the case should be heard at the Ipoh High Court as this involves the Perak government and the people of Perak.

Ariff advised that the application be referred to the Federal Court as it involves the federal constitution, the Perak constitution and Section 84 of the Courts and Judicature Act.

He said this would expedite a decision since the case is likely end up in the Federal Court.

See, who is representing the AG's Chambers, said she would have to seek further instructions.

Sulaiman objected to the application because the Zambry had taken his oath of office before an Ipoh High Court judge.

"The matter should therefoer be heard in neutral territory and outside Ipoh. This matter concerns judicial review.

"The setting up of the special powers and appellate court, which is part of the High Court of Malaya, is to specifically deal with such issues."

Sulaiman also pointed out that Nizar is suing Zambry in his personal capacity and "hence, I cannot see why the Perak legal adviser is here".

"We are also worried over the possibility of missing files should the case be heard in Ipoh as we feel the case should be heard quickly," he said.

On the issue of putting the matter directly before the Federal Court, Sulaiman said he was considering the option as he had thought of the matter when Nizar filed the application.

Ariff said he would fix Monday afternoon for mention. He said all parties are to file written applications on each of the issues raised today.

'Prevented from doing his job'

Nizar, when met after the proceedings, said he feels confident and his decision to file the application in Kuala Lumpur is the right one.

"This is the proper platform for the case to be heard as this court specially caters for such issues. I hope there is urgency in hearing the case," he said.

Nizar, in his application for judicial review, is seeking an interpretation of the Perak constitution on whether the MB's post can be vacated when:

(a) The menteri besar had advised the ruler on dissolution of the state legislative assembly;

(b) There was no dissolution of the assembly;

(c) There was no motion of confidence against the menteri besar in the state legislative assembly; and

(d) The menteri besar did not resign.

In his application, Nizar said Zambry should cite the authority that allows him to legitimately become the BN-designated menteri besar.

Nizar is also seeking:

• a declaration that Zambry has no right to be the menteri besar at any material time;

• an injunction to prevent Zambry or his agents from continuing his task and roles as the menteri besar; and

• punitive, aggravated and exemplary damages, together with costs.

Hearing to resume on Feb 23

The ousted MB submitted an affidavit of support in his application where he claimed that he is the rightful menteri besar following his appointment to the post on March 17, 2008.

Nizar claimed he had applied to dissolve the assembly and call for snap elections to resolve the deadlock in the administration of Perak. However, his request was not entertained.

In that situation, he claimed that he is still the legitimate menteri besar.

However, Nizar said he has been prevented from doing his job and was even ushered out of the menteri besar's office when reporting for duty.

He further said Zambry's actions were illegal and unconstitutional in wresting the post from him and taking the responsibility, function and role as the leader of the state executive.

Zambry, he added, does not have the basis, power or authority to hold the post under the Perak constitution.

Mohamad Arif Md Yusof has set Feb 23 for both sides to argue whether he should disqualify himself from the trial.

The court will also be considering whether the case should be referred to the Federal Court over question of law on the interpretation of Article 16(6) of the Perak Constitution.

Article 16 (6) states that if "the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then unless at his request His Royal Highness dissolve the legislative assembly he shall tender the resignation of executive council".