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Tuesday, May 12, 2009

Rare but one appeal judge can decide

MAY 12 | Malaysianinsider

– Get the conspiracy theory out of the way – fast.

It is not unprecedented for a single-judge Court of Appeal to hear an application for a stay of execution. It has happened before in Malaysia when time was of the essence and there was a shortage of appeal court judges on duty.

But it very rare for a single-judge Court of Appeal to grant a permanent stay of execution, say veteran lawyers.

What normally happens is that if a lone appeal court judge finds some merit in an argument by the appellants, he will grant an interim stay of execution, leaving the question of a permanent stay to a three-judge Court of Appeal.

This issue of a single-judge Court of Appeal arose today after newly-minted Court of Appeal judge Datuk Ramly Ali granted Datuk Zambry Abdul Kadir a stay of execution against a High Court declaration that Datuk Nizar Jamaluddin was the rightful Mentri Besar of Perak.

Justice Ramly said he satisfied that there were special circumstances to grant the stay as Zambry's appeal against the declaration would be rendered nugatory if the stay was not granted.

"This is a very unique case as it does not only involve Dr Zambry and Mohammad Nizar but also the entire Perak state," he said.

Ramly said that based on previous court practice, the court had jurisdiction to grant the stay order since a notice of appeal had been filed.

What surprised lawyers was the decision to appoint a single-judge Court of Appeal to hear the application for a stay of execution instead of putting the case before the three three-judge appeal panels which were presiding over cases at the Palace of Justice today.

They also noted that Ramly should have only granted an interim stay and not a permanent one.

Given the gravity of the case and political ramifications, several lawyers noted that the court registrar should have ensured that Zambry’s stay application was heard by a three-judge panel, and not one of the most junior appeal court judges.

Veteran Opposition politician Lim Kit Siang said that “the stay given by a single judge of the Court of Appeal “stayed” Nizar from taking back his lawful and legitimate office as Perak Mentri, but it did not overturn the

High Court decision and could not be taken to mean that Zambry can continue to be illegal and illegitimate Perak MB.

“The lawyers I spoke to in the past few hours are shocked at the Court of Appeal single-judge 'stay' decision.’’

His emphasis on the the phrase “single-judge Court of Appeal” is deliberate, denoting a disbelief that one of the most controversial cases to pass through the court system this year did not go before a full panel of appeal judges.

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