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Monday, March 23, 2009

Federal Court returns Perak case to High Court

Sent back…the Perak Mentris Besar case has been ordered back to the Kuala Lumpur High Court by the nation's highest court of appeal. Seen here, outside the Federal Court are the two litigants, Datuk Seri Nizar, left, and Datuk Zambry

PUTRAJAYA, March 23 — malaysianinsider

The Federal Court here today ordered to send the Perak menteris besar case back to the Kuala Lumpur High Court.

It also ordered that a suit filed by three former Pakatan Rakyat state assemblymen against Speaker V Sivakumar sent back to the Ipoh High Court.

The Federal Court’s decision today means a quick resolution will be unlikely for the Perak constitutional crisis. The cases are likely to meander its way through the different courts because any decision is likely to be appealed by the losing party.

The five-man panel of judges ruled the apex court could not resolve the constitutional question referred it by the high court as the judge Lau Bee Lan of the Appellate and Special Powers division failed to follow the proper procedure.

Lau had on March 10, framed four constitutional questions it wanted the Federal Court to answer to resolve the Perak crisis.

But Datuk Seri Mohammad Nizar Jamaluddin, who insists he is still the lawful MB as he has not quit his post or been voted out or made redundant in the dissolution of the state assembly, objected to the referral and to the questions asked.

“The High Court does not have the power to transfer to the Federal Court under Section 84 of the Courts of Judicature Act 1964 because the meaning of ‘constitution’ is restricted to the Constitution of Malaysia,” announced Court of Appeal president Tan Sri Alauddin Sheriff, who headed the panel.

Nizar’s lead lawyer, Sulaiman Abdullah, who had from the start objected to the high court’s decision to move the case to the apex court repeated his arguments before the Federal Court.

Sulaiman contended Lau had been wrong to do so as the case was a state constitutional issue, not a federal constitutional issue and there were no laws that gave her the power to move the issue to the higher court on her own.

“The court is not at liberty to stretch or pervert the laws on the constitution to suit its purpose,” he said, pointing out that despite the urgency of the issue, no shortcut was allowed; the rule of law must be followed every step of the way.

The other members of the bench, comprising Chief Judge of Malaya Datuk Arifin Zakaria, Datuk Zulkefli Ahmad Makinuddin, James Foong and Datuk Seri Augustine Paul, agreed with him.

The Federal Court overturned the Court of Appeal’s decisions last Friday, including granting leave to menteri besar Datuk Zambry Abdul Kadir which allows him the right to be a party to the court proceedings.

But it rejected a request from Datuk Seri Mohammad Nizar Jamaluddin’s lead lawyer, Sulaiman Abdullah who asked the Federal Court to appoint a different high court judge from Lau to hear the case.

The Federal Court also ordered the related suit filed by the three elected state representatives against the Perak Assembly Speaker V Sivakumar to be similarly returned to the Ipoh High Court to be decided.

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 after they went independent.

None of the three were present.

Nizar, who was in court today for the hearing with several Pakatan Rakyat leaders, was relieved.
“This is another seed for the democratic victory for the rakyat,” he told reporters later, smiling widely.

He admitted that while he had worn a confident look on his face earlier, he was fearful the judges may rule against him and had been praying silently “all the way” while his lawyers argued his case.

Zambry too appeared in court today, for the first time. Unlike Nizar, he came alone and left early.
Speaking to reporters later on his behalf, Zambry’s lawyers Firoz Hussein Ahmad Jamaluddin and Hafarizam Harun said they accepted the court’s decision and maintained “nobody won, nobody lost” in today’s ruling.

They admitted they were “disappointed”.

“We preferred to deal with it at the Federal Court and resolve the issues on the constitution as quickly as possible,” said Firoz, the chief counsel for Zambry.

Asked to comment on the four questions referred to the Federal Court, Firoz pointed out it was drafted by the Attorney General’s Chambers and the “unilateral decision of the judge to refer the questions.”

But he said they had no problems with the questions as “it addresses the heart of the issue”.

“They forget it was His Royal Highness that appointed Zambry,” Firoz noted, referring to the stout objections from Nizar’s lawyers who steadfastly insists they are not challenging the Sultan of Perak’s authority but are suing Zambry for usurping the powers of the menteri besar.

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