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Wednesday, April 29, 2009

> MB vs MB case back to High Court

The Federal Court today sent back the 'MB versus MB' case to the Kuala Lumpur High Court for the second time, after dismissing Perak Menteri Besar Zambry Abd Kadir's application for a fastrack hearing to consider constitutional issues.

The apex court allowed the preliminary objection raised by ousted menteri besar Mohd Nizar Jamaluddin's counsel Sulaiman Abdullah.

In his ruling, Justice Alauddin Mohd Sheriff said this was an unanimous decision by the five- member panel.

"We upheld the preliminary objection. We agree that disputed facts exist between the affidavits (filed by Mohd Nizar and the state legal advisor Ahmad Kamal Md Shahid on their meeting with Sultan Azlan Shah). Hence, we will remit back the case to the High Court for the case to be heard.

"No order is made as to costs," he said.

When asked further by Sulaiman, Alauddin said the court decided this matter based on the preliminary objection and not the merits to Zambry's application.

The other judges were Chief Judge of Malaya Arifin Zakaria and Federal Court judges Zulkefli Ahmad Makinuddin, Mohd Ghazali Mohd Yusof and James Foong.

The facts being disputed was whether Mohd Nizar had told the Sultan of Perak that he no longer commanded the confidence of the state legislative assembly and asked for its dissolution based on Article 16 (6) of the Perak constitution as stated in Ahmad Kamal's affidavit.

Mohd Nizar denied such matters in his conversation with the ruler. He stated in his affidavit that his meeting with the ruler was to seek a dissolution following the political deadlock i.e. 28 Pakatan Rakyat assemblypersons and 28 BN assemblypersons, following the alleged resignation of the three assemblypersons.

The Kuala Lumpur case has been fixed for hearing on May 4, to hear an application by Mohd Nizar to cross-examine Ahmad Kamal.

On March 23, the apex court had for the first time set aside the Court of Appeal's decision and returned the constitutional questions to determine the legitimacy of the Perak menteri besar back to the Kuala Lumpur High Court.

Zambry's application

Zambry had on April 21, submitted a notice of motion to the Federal Court, where he sought a quick resolution of the political impasse in Perak, by taking the matter directly to the apex court for it to declare him the rightful menteri besar.

Naming Mohd Nizar as respondent, Zambry posed several constitutional questions for the interpretation of the apex court based on Article 63 of the Perak Constitution to interpret:

(a) Whether Sultan Azlan Shah had the right not to accede to Mohd Nizar's request for the dissolution of the Perak assembly, when he (Mohd Nizar) ceased to command the confidence of the majority of the assembly;

(b) When the sultan declined to accede to Mohd Nizar's request, whether it was tantamount to the resignations of Mohd Nizar and his state exco members; and

(c) Whether when Mohd Nizar refused to tender his resignation, the sultan had the right to appoint Zambry pursuant to Article 16(2) of the Perak constitution after the sultan was satisfied that he (Zambry) commanded the confidence of the assembly.

Earlier in the day, the court also disallowed Mohd Nizar's application for a nine-member panel to resolve the issues brought by Zambry. This comes after a five-member panel chaired by Alauddin appeared before the court.

On the preliminary objection, Sulaiman said the apex court should have decided on the principles of res judicata (matter already judged) following the March 23 decision to remit the case to the Kuala Lumpur High Court.

Sulaiman's objection

The senior counsel submitted that although the application made by the Attorney-General's Chambers was based on Section 84 of the Courts of Judicature Act, Article 63 of the Perak constitution was also referred.

"Furthermore there is also questions on the disputed facts between Mohd Nizar's affidavit and that by Ahmad Kamal. This matter has yet to be heard and the apex court cannot entertain Zambry's application," he said.

Senior lawyer Cecil Abraham for Zambry argued that on March 23, questions were solely on Section 84 of the CJA.

Furthermore, Abraham said the apex court could hear the application as it would not involve the Kuala Lumpur High Court matter, and would be based on the Sultan of Perak's decree (letter of appointment) to Zambry.

Meanwhile, Attorney-General Abdul Gani Patail who was present at today's proceedings commented that the chambers respected the decision.

"We have successfully applied to be an intervener and would assist the court," he said - Malaysiakini.