The High Court's Appellate and Special Powers division today ruled that the constitutional issue to determine the legitimate Perak menteri besar must be decided by the Federal Court.

This follows a decision by Justice Lau Bee Lan who preferred the matter to be referred directly to the apex court, so that the ongoing political wrangling in Perak can be resolved.

She also asked counsel from both parties to formulate constitutional questions that should be referred to the Federal Court.

nizar jamaluddin dr zambry abdul kadir perak The matter was brought by ousted Menteri Besar Mohd Nizar Jamaluddin, challenging the appointment of Barisan Nasional's Zambry Abd Kadir as menteri besar.

Following the decision, Nizar's lead counsel, Sulaiman Abdullah indicated that his client would appeal against Lau's ruling at the Court of Appeal on Tuesday.

"I have been instructed to file an immediate appeal at the Court of Appeal over the decision this morning.

"In the circumstances, I hold it is not appropriate for me to draft any questions unless estoppel be given against me to appeal (barred from appealing). Our position, the only question as with our application as stated earlier, is whether leave should be given or not," Sulaiman said.

"Following the decision this morning, we find the point had never arisen following the interpretation of the Court of Judicature Act (CJA), which might have repercussions on other cases.

"My position is to apply for an erinford injunction (an order of stay of the proceedings) to the Federal Court until the appeal is heard."

"Our position on your ladyship's ruling that section 84 of the CJA encompasses the state constitution as well is not correct or wrong. That is why we want to go to the Court of Appeal to ask its decision on this point," Sulaiman added.

Application for stay rejected

However, senior federal counsel Kamaluddin Md Said pointed out that the court could grant a stay following an appeal as Justice Lau had earlier ruled that the proceedings be stayed at the High Court and the case be transferred to the apex court.

The judge decided to dismiss Sulaiman's application for stay and ordered the counsel to provide the questions to be referred to the Federal Court.

Kamaluddin submitted a list of questions, and Justice Lau fixed next Tuesday afternoon to determine if the questions could be mentioned in an open court.

This followed arguments between Sulaiman and Kamaluddin on whether the questions could be pronounced in an open court.

perak pac hearing 050309 nizar It is learnt that Nizar's counsel may decide not to file in the questions as requested by the judge as they felt the appeal for their leave application should be heard before the Court of Appeal.

On Tuesday, Sulaiman had objected to the matter being referred to the Federal Court.

Instead he had wanted Justice Lau to hear their leave application for the suit.

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

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

However, Kamaluddin, representing the Attorney General's chambers, had countered that as the matter at hand involved an interpretation of Article 16(6) of the Perak constitution, the proper forum for the application to be heard was the Federal Court.

Judge's rationale

In making her decision earlier today, Justice Lau said that although the senior federal counsel does not have a standing to the case, she had used her discretion to decide that there was a case involving a constitutional matter, as stipulated under Section 84 of the CJA.

Lau agreed there was a constitutional issue in question, especially on the interpretation of Article 16(6) of the Perak constitution.

She said she agreed with the senior federal counsel that the interpretation of section 84 of the CJA does not only refer to the Federal Constitution but also the Perak state constitution.

Justice Lau also agreed that according to Article 63 of the Perak constitution, matters pertaining to the interpretation of articles could be referred to the Federal Court, and the court could allow a stay of the proceedings.

"Hence, for a speedy and economical decision, the court decides to transfer the case directly to the Federal Court.

"The court also orders a stay of all proceedings and that the court will adjourn for a while for counsel to formulate questions to be referred to the apex court," said Justice Lau.

Nizar said he respected the decision although he had initially wanted the leave application to be heard first.

Besides Sulaiman, the other counsel representing Nizar were Edmund Bon, Ranjit Singh, Mohd Hanipa Maidin, Amer Hamzah Arshad, Zulkifli Luqman and Ngeh Hock Chuan.

Kamaluddin was assisted by senior federal counsel Suzana Atan. State Legal adviser Ahmad Kamal Md Shahid was not present in today's proceedings and he was represented by his assistant Zulqarnain Hassan.

Nizar's application

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

sultan azlan zambry abdul kadir nizar jamaluddin perak state govt crisis 030309 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.