Dato' Seri Ir Hj. Mohammad Nizar Bin Jamaluddin v. Dato' Dr. Zambry Bin Abd. Kadir
Encyclopedia
Dato' Seri Ir Hj. Mohammad Nizar Bin Jamaluddin v. Dato' Dr. Zambry Bin Abd. Kadir was a case decided in the High Court
of Kuala Lumpur
, Malaysia. The case was brought by Menteri Besar
of Perak
state, Mohammad Nizar Jamaluddin
, against Zambry Abdul Kadir
, who acted as Menteri Besar after three members of the state legislative assembly defected from Nizar's Pakatan Rakyat
and threw their support behind Zambry's Barisan Nasional
coalition. The subsequent confusion and controversy regarding the state government resulted in the 2009 Perak constitutional crisis
. In his judgment handed down on 11 May 2009, Justice Abdul Aziz Abdul Rahim ruled that Nizar was and had always been the rightful Menteri Besar, and ordered Zambry to immediately cease acting as Menteri Besar. The Court of Appeal granted a stay of execution of the High Court's order the following day, further confusing the situation.
On May 22, 2009, the appellate court allowed an appeal by Barisan Nasional's Zambry Abd Kadir to reverse the Kuala Lumpur High Court decision that declared Mohammad Nizar Jamaluddin as the rightful menteri besar of Perak. On February 9, 2010, five-member panel of Federal Court ruled unanimously Zambry Abdul Kadir is the valid Menteri Besar of Perak. The federal court bench found that Court of Appeal was justified in reversing the High Court decision which had earlier declared Mohammad Nizar Jamaluddin as the rightful Perak menteri besar.
. Nizar asked Sultan Azlan Shah of Perak to dissolve the state assembly and call for new elections to resolve the political impasse. However, the Sultan rejected Nizar's request, ordered him to resign as Menteri Besar, and swore in Zambry as the new Menteri Besar. Nizar then filed suit against Zambry in the Kuala Lumpur High Court.
Mohamad Ariff Md Yusof. However, on 25 February 2009, he recused himself, and was replaced by Justice Lau Bee Lan. On 6 March 2009, Lau submitted four questions of law to be resolved by the Federal Court
. However, the Federal Court held that it did not have jurisdiction over a question of law regarding the Perak state constitution. Lau was then replaced by Justice Abdul Aziz Abdul Rahim on 1 April 2009.
, former Chief Minister of Sarawak, the leader of a state government can only be toppled by a vote of no confidence in the state assembly. Aziz first dealt with the submissions of Attorney-General Tan Sri Abdul Gani Patail
, an intervenor in the case; the Attorney-General had submitted that a state assembly can only be dissolved when the Menteri Besar loses the confidence of the legislature or at the expiration of the legislature's term, and that under Article 16(6) of the state constitution, Nizar had automatically resigned his position as Menteri Besar. Aziz rejected both submissions, finding that Article 36 provided for "unlimited circumstances for the menteri besar to request for dissolution from the Sultan," and that although Article 16(6) suggests the Menteri Besar should resign, it cannot automatically compel him to do so.
Perak State Legal Adviser Datuk Ahmad Kamal Md Shahid had submitted an affidavit supporting Zambry in the proceedings. However, Aziz found it unreliable, ruling that "It was [Kamal's] own admission that he was instructed by [Zambry's] counsel to affirm the affidavit. The word instructed is a very strong word. ... To me, he is not a neutral or impartial witness; his testimony was coloured by the instruction that he received." Kamal had claimed that Nizar requested the dissolution of the state assembly under Article 16(6), which would mean Nizar had already lost the confidence of the state assembly. However, Nizar insisted his request was under Article 36(2), which allows the Menteri Besar to request dissolution for any reason.
Aziz told the court that:
Based on this, Aziz ruled that Nizar "is, and was, at all material times the chief minister of Perak." Aziz's judgment granted the five declarations sought by Nizar:
Nizar had originally also sought punitive, aggravated and exemplary damages from Zambry, but withdrew the request a week before the judgment. Zambry's lawyer, Cecil Abraham, asked Aziz for a stay of the order after the judgment was handed down, but Aziz refused the request, asking Abraham to put it to him in writing.
locked down the state secretariat. Later in the evening, Nizar's executive council met and agreed to suspend the state secretary and legal adviser for their conduct during the crisis, and announced they would "send a letter to the Sultan to seek an audience to ask for the dissolution of the assembly so the people can exercise their right to choose their government." Nizar also insisted that as a result of the judgment in Nizar v. Zambry, the 7 May 2009 sitting of the state assembly was unconstitutional and void because it had been called by Zambry, who was not in a position to act as Menteri Besar.
on the High Court ruling. Lawyers and the press expressed surprise at Ramly's hearing the appeal alone, as there were three panels, each comprising three judges on the Court of Appeal, hearing cases the same day. Some also criticised the granting of a permanent, as opposed to temporary, stay. Former Court of Appeal judge N.H. Chan was particularly critical of Ramly's refusal to release his grounds of judgment, stating that the stay, along with the Federal Court's handling of the constitutional crisis, had "brought discredit to the judiciary."
Because of the stay, it was then unclear who is the Menteri Besar. Zambry has refused to address the question, while Nizar's camp asserts that the stay does not overrule the High Court judgment, and as such Nizar remains Menteri Besar. The Malaysian Bar Council's interpretation of the stay is that Zambry now acts as a caretaker Menteri Besar. The Court of Appeal overturned the High Court decision and declared Zambry the rightful Menteri Besar.
The Case went further up to the Federal Court with Nizar appealing the verdict of the Court of Appeal. Ultimately, Nizar lost the legal proceedings when, in February 2010, the Federal Court ruled Zambry to be the lawful Menteri Besar.
High Courts of Malaysia
The High Courts in Malaysia are the third-highest courts in the hierarchy of courts, after the Federal Court and the Court of Appeal. Article 121 of the Constitution of Malaysia provides that there shall be two High Courts of coordinate jurisdiction—the High Court in Malaya and the High Court...
of Kuala Lumpur
Kuala Lumpur
Kuala Lumpur is the capital and the second largest city in Malaysia by population. The city proper, making up an area of , has a population of 1.4 million as of 2010. Greater Kuala Lumpur, also known as the Klang Valley, is an urban agglomeration of 7.2 million...
, Malaysia. The case was brought by Menteri Besar
Menteri Besar
The Menteri Besar is the chief executive of the state government for states in Malaysia with hereditary rulers. For states without a monarch, the title Chief Minister is used...
of Perak
Perak
Perak , one of the 13 states of Malaysia, is the second largest state in the Peninsular Malaysia bordering Kedah and Yala Province of Thailand to the north, Penang to the northwest, Kelantan and Pahang to the east, Selangor the Strait of Malacca to the south and west.Perak means silver in Malay...
state, Mohammad Nizar Jamaluddin
Mohammad Nizar Jamaluddin
Datuk Seri Ir. Haji Mohammad Nizar Jamaluddin is the former Menteri Besar of the Malaysian state of Perak, a post equivalent to a Chief Minister and Member of Malaysian Parliament for Bukit Gantang. Nizar is the secretary of the Perak's Branch Pan-Malaysian Islamic Party . Nizar was appointed as...
, against Zambry Abdul Kadir
Zambry Abdul Kadir
Dato' Seri Dr. Zambry Abdul Kadir is the current Menteri Besar of Perak and a Malaysian politician from the United Malays National Organisation , the leading party in the ruling Barisan Nasional coalition.-Education:-Perak Constitutional Crisis:...
, who acted as Menteri Besar after three members of the state legislative assembly defected from Nizar's Pakatan Rakyat
Pakatan Rakyat
Pakatan Rakyat or PR is an informal Malaysian political coalition. It currently controls four state governments while in opposition to the ruling Barisan Nasional at the federal level....
and threw their support behind Zambry's Barisan Nasional
Barisan Nasional
Barisan Nasional is a major political coalition in Malaysia, formed in 1973 as the successor to the Alliance . Along with its predecessor, it has been Malaysia's federal ruling political force since independence...
coalition. The subsequent confusion and controversy regarding the state government resulted in the 2009 Perak constitutional crisis
2009 Perak constitutional crisis
The 2009 Perak constitutional crisis was a political dispute in Malaysia regarding the legitimacy of the Perak state government formed in February 2009. It began when three Pakatan Rakyat state legislators defected, causing a collapse of the state government...
. In his judgment handed down on 11 May 2009, Justice Abdul Aziz Abdul Rahim ruled that Nizar was and had always been the rightful Menteri Besar, and ordered Zambry to immediately cease acting as Menteri Besar. The Court of Appeal granted a stay of execution of the High Court's order the following day, further confusing the situation.
On May 22, 2009, the appellate court allowed an appeal by Barisan Nasional's Zambry Abd Kadir to reverse the Kuala Lumpur High Court decision that declared Mohammad Nizar Jamaluddin as the rightful menteri besar of Perak. On February 9, 2010, five-member panel of Federal Court ruled unanimously Zambry Abdul Kadir is the valid Menteri Besar of Perak. The federal court bench found that Court of Appeal was justified in reversing the High Court decision which had earlier declared Mohammad Nizar Jamaluddin as the rightful Perak menteri besar.
Background
Three members of the Perak state assembly who had previously supported the Pakatan Rakyat state government announced they were becoming political independents in February 2009, and that they would support the Barisan Nasional on matters of confidence and supplyConfidence and supply
In a parliamentary democracy confidence and supply are required for a government to hold power. A confidence and supply agreement is an agreement that a minor party or independent member of parliament will support the government in motions of confidence and appropriation votes by voting in favour...
. Nizar asked Sultan Azlan Shah of Perak to dissolve the state assembly and call for new elections to resolve the political impasse. However, the Sultan rejected Nizar's request, ordered him to resign as Menteri Besar, and swore in Zambry as the new Menteri Besar. Nizar then filed suit against Zambry in the Kuala Lumpur High Court.
Case history
The first judge to hear the case was Judicial CommissionerJudicial Commissioner
A Judicial Commissioner in Singapore is appointed to the Supreme Court by the President of Singapore on the advice of the Prime Minister, and has the powers of a Judge. A person may be appointed a Judicial Commissioner if he/she has been a "qualified person" within the meaning of section 2 of the...
Mohamad Ariff Md Yusof. However, on 25 February 2009, he recused himself, and was replaced by Justice Lau Bee Lan. On 6 March 2009, Lau submitted four questions of law to be resolved by the Federal Court
Federal Court of Malaysia
The Federal Court of Malaysia is the highest court and the final appellate court in Malaysia. It is housed in the Palace of Justice in Putrajaya...
. However, the Federal Court held that it did not have jurisdiction over a question of law regarding the Perak state constitution. Lau was then replaced by Justice Abdul Aziz Abdul Rahim on 1 April 2009.
Judgment
Aziz's judgment held that in line with the case of Stephen Kalong NingkanStephen Kalong Ningkan
Tan Sri Datuk Amar Stephen Kalong Ningkan was the first Chief Minister of Sarawak . As the executive of a newly-independent state which helped to form Malaysia, Kalong faced many challenges from within the state and from Sarawak's neighbour, Indonesia.- Personal life :Kalong was born on 20 August...
, former Chief Minister of Sarawak, the leader of a state government can only be toppled by a vote of no confidence in the state assembly. Aziz first dealt with the submissions of Attorney-General Tan Sri Abdul Gani Patail
Abdul Gani Patail
Tan Sri Abdul Gani bin Patail is a Malaysian prosecutor. He is the current Attorney General of Malaysia.Abdul Gani was the lead prosecutor in former Deputy Prime Minister Anwar Ibrahim's sodomy trial of 1998.-Background:...
, an intervenor in the case; the Attorney-General had submitted that a state assembly can only be dissolved when the Menteri Besar loses the confidence of the legislature or at the expiration of the legislature's term, and that under Article 16(6) of the state constitution, Nizar had automatically resigned his position as Menteri Besar. Aziz rejected both submissions, finding that Article 36 provided for "unlimited circumstances for the menteri besar to request for dissolution from the Sultan," and that although Article 16(6) suggests the Menteri Besar should resign, it cannot automatically compel him to do so.
Perak State Legal Adviser Datuk Ahmad Kamal Md Shahid had submitted an affidavit supporting Zambry in the proceedings. However, Aziz found it unreliable, ruling that "It was [Kamal's] own admission that he was instructed by [Zambry's] counsel to affirm the affidavit. The word instructed is a very strong word. ... To me, he is not a neutral or impartial witness; his testimony was coloured by the instruction that he received." Kamal had claimed that Nizar requested the dissolution of the state assembly under Article 16(6), which would mean Nizar had already lost the confidence of the state assembly. However, Nizar insisted his request was under Article 36(2), which allows the Menteri Besar to request dissolution for any reason.
Aziz told the court that:
Based on this, Aziz ruled that Nizar "is, and was, at all material times the chief minister of Perak." Aziz's judgment granted the five declarations sought by Nizar:
- That Nizar was the rightful Menteri Besar;
- That there had been no dissolution of the Perak Assembly, no motion of no-confidence, and that Nizar had not resigned;
- A writ of quo warrantoQuo warrantoQuo warranto is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold.-History:...
against Zambry ordering him to show cause for the authority under which he acted as Menteri Besar; - That Zambry had no right to act as or occupy the office of Menteri Besar, and was not the Menteri Besar at any material time;
- An injunction preventing Zambry from acting as Menteri Besar.
Nizar had originally also sought punitive, aggravated and exemplary damages from Zambry, but withdrew the request a week before the judgment. Zambry's lawyer, Cecil Abraham, asked Aziz for a stay of the order after the judgment was handed down, but Aziz refused the request, asking Abraham to put it to him in writing.
Reactions
Nizar called the decision "a victory for the people of Malaysia. It also shows the judiciary can be depended on," and stated his government would return to work the following day. Zambry said he and his colleagues would immediately vacate the state secretariat. At 4 in the afternoon of 11 May 2009, the day the judgment was handed down, the Federal Reserve UnitFederal Reserve Unit
The Federal Reserve Unit , or better known by the abbreviation as FRU was established as a riot control forces and a special response team as well as a paramilitary that can be deployed regardless of time to engage on any emergency or public unrest that happens in Malaysia.-Role:The main role of...
locked down the state secretariat. Later in the evening, Nizar's executive council met and agreed to suspend the state secretary and legal adviser for their conduct during the crisis, and announced they would "send a letter to the Sultan to seek an audience to ask for the dissolution of the assembly so the people can exercise their right to choose their government." Nizar also insisted that as a result of the judgment in Nizar v. Zambry, the 7 May 2009 sitting of the state assembly was unconstitutional and void because it had been called by Zambry, who was not in a position to act as Menteri Besar.
Appeal
On May 12, 2009, Zambry filed an appeal at the Court of Appeal. Sitting alone, judge Ramly Ali granted him a stay of executionStay of execution
A stay of execution is a court order to temporarily suspend the execution of a court judgment or other court order. The word "execution" does not necessarily mean the death penalty; it refers to the imposition of whatever judgment is being stayed....
on the High Court ruling. Lawyers and the press expressed surprise at Ramly's hearing the appeal alone, as there were three panels, each comprising three judges on the Court of Appeal, hearing cases the same day. Some also criticised the granting of a permanent, as opposed to temporary, stay. Former Court of Appeal judge N.H. Chan was particularly critical of Ramly's refusal to release his grounds of judgment, stating that the stay, along with the Federal Court's handling of the constitutional crisis, had "brought discredit to the judiciary."
Because of the stay, it was then unclear who is the Menteri Besar. Zambry has refused to address the question, while Nizar's camp asserts that the stay does not overrule the High Court judgment, and as such Nizar remains Menteri Besar. The Malaysian Bar Council's interpretation of the stay is that Zambry now acts as a caretaker Menteri Besar. The Court of Appeal overturned the High Court decision and declared Zambry the rightful Menteri Besar.
The Case went further up to the Federal Court with Nizar appealing the verdict of the Court of Appeal. Ultimately, Nizar lost the legal proceedings when, in February 2010, the Federal Court ruled Zambry to be the lawful Menteri Besar.