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Published: Thursday November 5, 2009 MYT 11:01:00 AM
Updated: Thursday November 5, 2009 MYT 8:26:34 PM

Federal Court dismisses Nizar's appeal for 11-man panel (Update 2)

By M. MAGESWARI


mages@thestar.com.my

PUTRAJAYA: Former Perak mentri besar Datuk Seri Mohammad Nizar Jamaluddin failed in his bid at the Federal Court to have a full panel of 11 judges hear his appeal against the declaration of his successor as the valid mentri besar.

In dismissing the application by Nizar, a five-man panel chaired by Court of Appeal president Justice Alauddin Mohd Sheriff said it was an unanimous decision.

“We have considered the submissions (by Nizar’s lawyer Datuk S. Ambiga and other parties),” he told a packed courtroom on Thursday.

However, Justice Alauddin did not make any order as to costs upon a request by Ambiga.

The other panel members were Chief Judge of Malaya Justice Arifin Zakaria and Federal Court judges Justices Zulkefli Ahmad Makinudin, Mohd Ghazali Mohd Yusoff and Abdull Hamid Embong.

When asked about the ruling, Nizar said he was sad that his application was dismissed.

He said there were other judges who were well versed in constitutional issues who were not given a chance to hear the matter, which he said was of great importance and which involved public interest.

The apex court, however, reserved judgment over the appeal after hearing submissions for more than six hours by all parties on Thursday.

Earlier, Ambiga applied for a full panel of 11 judges to hear the appeal or alternatively by a larger number of judges under Section 74 of the Courts of the Judicature Act 1964.

“Every proceeding in the Federal Court shall be heard and disposed of by three judges or such greater uneven number of judges as the Chief Justice may in any particular case,” she said.

She said it would bring a question of reasonableness and public interest as this was a unique case.

In stating her grounds, Ambiga said it was due to the important constitutional issues, including the interpretation of the Perak Constitution, would have direct impact on the interpretation of the provisions of the Federal Constitution and cases related to the powers of the mentri besar.

Ambiga said the ruling by the Federal Court would have an effect on the people and the country and would set a precedent for similar cases in future.

She said the legal problems in Perak have not been settled and a full panel would be important in terms of public interest and jurisprudence history for the courts in the country.

She said a panel consisting of seven judges had heard two drug cases in Malaysia while a five-man panel had heard a murder case.

“This case is more far more compelling ... and would have a tremendous impact inside and outside the country and will have far reaching consequences for all states in Malaysia,” she said.

Attorney-General Tan Sri Abdul Gani Patail, who acted as intervener, said it was purely within the power of Chief Justice to determine a panel of judges and that it is an administrative decision.

Gani also said the application which was filed by way of motion is inappropriate and it should by done by way of judicial review.

Lead counsel Datuk Cecil Abraham, who represented Dr Zambry, said it was up to Chief Justice to decide the panel and he had no objections over the composition of judges.

Nizar filed the application for a larger panel on Oct 28.

The apex court had on July 9 granted leave to Nizar to appeal against the Court of Appeal’s decision declaring his successor the valid mentri besar.

On May 11, High Court (Appellate and Special Powers) judge Justice Abdul Aziz Abdul Rahim granted a declaratory relief to Nizar that he still is and was the mentri besar at all material times.

However, following an appeal by Datuk Dr Zambry Abdul Kadir, the Court of Appeal’s three-man panel on May 22 unanimously declared the latter as the rightful Perak mentri besar.

In his suit filed on Feb 13, Nizar challenged the legitimacy of Dr Zambry and the new state government.

In the appeal hearing, Nizar’s lead counsel Sulaiman Abdullah argued that the decision by the Court of Appeal was erroneous in the application of the correct approach to the relevant provisions of the Perak Constitution and in the inference it took from the events and documentary evidence.

Gani, however, argued that Nizar had sought an audience with the Sultan of Perak to request a dissolution of the State Legislative Assembly under Article 16(6) of the Perak Constitution when he ceased to command the confidence of the majority of the members of the assembly.

Gani said when Nizar’s request for dissolution was refused by the Sultan, the appellant should have tendered the resignation of the Executive Council.

“Failure to do so means that they are deemed to have resigned and their offices are vacated automatically.

“Since the office of the Perak mentri besar fell vacant, the respondent was lawfully appointed as the new mentri besar of Perak by the Sultan pursuant to Article 16(2) of the Perak Constitution. The decision of the Sultan is not-justiciable,” he added.

In asking the apex court not to interfere in the finding of facts by the Court of Appeal, Cecil submitted that when the Sultan of Perak has the discretion to appoint the mentri besar, the Ruler must also have the power to dismiss him.

Among others, Cecil said that Nizar made a request for a dissolution of the assembly because he had lost the confidence of the majority and not because of a political deadlock.

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