The Kuala Lumpur High Court (Appellate and Special Powers division) will decide on Friday whether to refer to the Federal Court the suit filed by ousted Perak Menteri Besar Mohd Nizar Jamaluddin against his successor.

In the suit Nizar is challenging the legitimacy of Zambry Abdul Kadir's appointment as menteri besar.

While Nizar's lawyers led by Sulaiman Abdullah today applied for leave for the suit to proceed, senior federal counsel Kamaluddin Md Said, representing the Attorney-General's Chambers, applied the case to go directly to the apex court for the issue to be resolved.

nizar jamaluddin dr zambry abdul kadir perak Justice Lau Bee Lan - who replaced judicial commissioner Mohamad Ariff Md Yusof who had decided to recuse himself - heard the case, which was only fixed for mention today.

However when Sulaiman submitted for his application for leave, Kamaluddin informed the judge that he would be objecting the leave application and it was better for the matter to be heard before the highest court in the country as it involved a constitutional question in a bid to resolve a political stalemate in Perak.

Proceedings started at 10.25am before an open court and lasted until 12.50pm, with both Sulaiman and Kamaluddin submitting.

Perak legal advisor Ahmad Kamal Md Shahid, was present to represent Zambry.

However, he was not allowed to address the court throughout the proceedings as a result of an objection raised by Sulaiman that Nizar was suing Zambry in his personal capacity and not in his official capacity.

"The state legal advisor has no locus standi (standing) in the proceeding," Sulaiman said.

Leave application must proceed

Sulaiman, in applying for leave said the application had to be heard and resolved first and it can be done today before justice Lau.

He further said his client was not willing to refer the matter to the Federal Court before the issue of leave was solved and disposed.

"Leave should be obtained first and then we would decide whether to go to the Federal court or not," the senior counsel said.

sulaiman abdullah Sulaiman further submitted as this was an ex-parte application for leave, hence he was the only party at the court proceedings.

"There is no issue of going to the Federal Court at this stage," he said, adding that the correct forum for the court to decide on the issue of application was at the High Court and not before the Federal Court.

In referring to Section 84 of the Court of Judicature Act, Sulaiman said the word constitution referred in the section refers only to the federal constitution and not the Perak or other state's constitution.

He submitted there was no question that arose now as to the effect of the Perak constitution at the leave stage that required the interpretation of the Federal Court.

The only issue at this stage was whether the application is frivolous or not, he added.

"I argue that the application is not frivolous due to the nature of public interests, and hence the leave application should be allowed.

"The question exists where the applicant is the legal MB and the respondent (Zambry) is an imposter," he said.

Lau then asked Kamaluddin to submit on the constitutional issue of the Perak constitution and the legal implications.

Kamaluddin: refer to Federal court

Kamaluddin then submitted that the core issue in the application involved the interpretation of Article 16(6) of the Perak constitution and that Article 63 of the state constitution whereby it stated "in a question arises as to the effect of any article in the laws of the constitution", the Federal Court may determine that question and either dispose of the case or remit it to the other court to be disposed.

In the suit, Nizar, among others, is seeking a declaration that he is the rightful Perak menteri besar.

He is also seeking an interpretation of Article 16(6) of the Perak constitution on whether the menteri besar's post can be vacated when:

- The menteri besar had advised the ruler on dissolution of the state legislative assembly;

- There was no dissolution of the assembly;

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

- The menteri besar did not resign.

In his application, Nizar said Zambry should cite the authority that allowed him to legitimately become the menteri besar.

Nizar is also seeking a declaration that Zambry has no right to be menteri besar at any material time plus an injunction to prevent him or his agents from continuing his task and role as the menteri besar.

Kamaluddin said the issue at hand was that since it was a constitutional conflict, it should then be referred directly to the Federal Court.

"It has come to the fact that the applicant's appointment as menteri besar was not at the pleasure of the Sultan, and there was no provision in the Perak constitution to command applicant to resign or if the applicant failed to do so, the post of MB will be vacated," he said.

Kamaluddin said the issue whether the applicant had ceased to command the confidence of the majority of the members of the state legislative assembly did not arise at all as it was never deliberated in the state legislative assembly.

"The factual matrix and issue is the interpretation of Article 16(6). I do not see any reason why they themselves cannot refer the matter to the federal court based on Article 64.

"Furthermore, section 84 of the CJA is not limited in meaning to the federal constitution as it covers the state constitution based on the Interpretation Act. If we limit the scope only to the federal constitution it would end up in absurdity as the other constitutions of the respective states in Malaysia also have a constitutional provision which empowers the federal court to interpret," he said.

Sulaiman objects

Kamaluddin said by bringing the matter directly to the Federal Court it would help save time and costs.

Sulaiman however, objected to the suggestion as Nizar initiated the suit and it would be up to him to decide on the course of action.

"Who is the representative of the AG to tell and dictate? At the present time, we are only interested in obtaining leave for the application," he said, and upon obtaining it the applicant would decide on the next course of action.

He reiterated that section 84 of the CJA was limited in meaning to federal constitution as stated in the Act and there was no need to refer it under the Interpretation Act.

Furthermore, he said the AG was not a party to the suit and there was no basis for the AG to make the application for the matter to be directly heard before the Federal Court.