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Tuesday, April 14, 2009

Zambry vs Speaker: Federal Court to hear case

Apr 14, 2009  |  Malaysiakini

The Federal Court this morning ruled that BN's Perak Menteri Besar Zambry Abd Kadir and his six exco members had used the right procedure in court to challenge their suspension from the state assembly.

Court of Appeal president Justice Alauddin Md Sheriff, who is heading a five-member panel, said that it could hear the matter by way of application and not through a judicial review.

bukit gantang by election zambry abdul kadir ceramah 010409 06
Zambry and the six exco members are seeing the Federal Court to overturn the suspension meted upon them by Perak speaker V Sivakumar after Barisan Nasional had formed the state government in February without the assembly being dissolved.

The new MB was slapped with an 18-month suspension while his cabinet members have been suspended for one year.

The court's unanimous ruling this morning was to reject an application by Sivakumar's lawyer Sulaiman Abdullah yesterday against the applicants' "backdoor" application to the court to lift the suspension.

Sulaiman had submitted yesterday that Zambry and the six applicants should have made their application by way of a judicial review in this matter and not via an originating summons to seek several declarations.

"The applicants should have made their application by judicial review under Rule 53 of the Rules of High Court 1980, to seek a certiorari (a writ to show or prove) or mandamus (preventing public authority).

"The filing of the originating summons ‘short circuits' the necessity for leave in judicial review proceedings. The originating summons being the premise of the application before this court is an abuse of the court process," he had said.

"The application before this court is therefore, likewise tainted and must stand dismissed," he said.

The senior lawyer had said that this was the wrong procedure being brought by the applicants as the law safeguards the speaker from any action.

No question of judicial review

However, Firoz Hussein Ahmad Jamaluddin who appeared for the applicants submitted that the Federal Court could hear the matter as they were seeking the declarations under the Specific Relief Act.

"We recognise the doctrine of separation of powers, between the court and Parliament. However, this is not connected as we are seeking declarations to lift the suspension of the applicants," he said.

perak state govt crisis 030309 firoz hussienFiroz (photo) submitted that the application via certiorari was not applicable and not available and hence, they were seeking to overturn the speaker's decision by seeking a declaration.

He had said the speaker was not a public authority as defined under Article 160 of the Federal Constitution and hence, an action like this could be brought.

Firoz added Order 53 of the Rules of High Court was not applicable because there was no review of any decision involved.

"There is no question of judicial review whatsoever. The declaration being sought here is that the decision of the speaker to suspend the applicants is unconstitutional and ultra vires," he submitted yesterday.

He also submitted that the declarations sought here concerned personal rights of the applicants as the aggrieved parties.

The other judges in the sitting are Chief Judge of Malaya Ariffin Zakaria and Federal Court judges Nik Hashim Nik Ab Rahman, S Augustine Paul and Zulkefli Ahmad Makinuddin.

The court has now moved on to hear submissions on the merits of the case.

Sulaiman is expected to make submissions on the issue of non-justiciability, i.e. the action by the speaker cannot be taken to court.

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