Nizar seeks to block route to Federal Court

Written by Chua Sue-Ann, The Edge

Datuk Seri Mohammad Nizar Jamaluddin today filed an application to challenge a Perak state constitution provision to refer matters to the Federal Court ahead of Tuesday's proceedings to hear Perak Menteri Besar Datuk Seri Dr Zambry Abdul Kadir’s application to refer three questions to the Federal Court.

Nizar’s application, under Article 4(3) and Article 4(4) of the Federal Constitution, seeks a court declaration that the 1997 amendments to Article 63 of the Perak constitution was null and void on grounds that the Perak state legislative assembly did not have the power to pass the amendments.

Perak’s Article 63 states that constitutional questions can, on application of either party to the proceedings, be referred to the Federal Court for a ruling.

The Article 63 amendments challenged by the former Perak menteri besar relates to the changing of the words "Supreme Court" to "Federal Court" in line with judicial restructuring performed in 1994.

According to Nizar, "Supreme Court" in 1957 did not refer to the apex court because the then apex court was the Privy Council and that "Supreme Court" referred to the current High Court and/or the Court of Appeal.

Effective June 24, 1994, the Supreme Court was renamed Federal Court and the subordinate Court of Appeal was established. Prior to 1985, the Supreme Court was the highest court of the land but its decisions could be appealed to the Privy Council in London.

Nizar, in his application filed here by Messrs Leong and Tan, said the arising legal issue was whether the 1997 amendment to the Perak Constitution can confer jurisdiction to the Federal Court as the amendment was on a state law rather than a federal law.

"Only parliament can confer jurisdiction to the Federal Court, not the state legislative assembly. The Federal Court does not have the jurisdiction to hear an application under Article 63 because it is seised of jurisdiction," Nizar said.

Nizar, who is Pasir Panjang assemblyman and Bukit Gantang member of parliament, also said Article 63 of the Perak constitution originally conferred powers to the Council of the State, rather than the courts, to interpret constitutional provisions.

Apart from Zambry, Nizar’s application on Monday also named the Malaysian and Perak governments as respondents, as per the requirements under Article 4(4) of the Federal Constitution.

Nizar also requested that his application be heard prior to Zambry’s application to refer three questions on interpretations of Article 16(2) and Article 16(6) of the Perak constitution relating to the state assembly’s dissolution and the appointment of the menteri besar.

The Federal Court on Tuesday will hear Zambry's application and Nizar’s objections as well as submissions by the Attorney-General's Chambers.

Zambry's questions are whether Perak Ruler Sultan Azlan Shah had the right to withhold consent to the assembly's dissolution as requested by Nizar when the latter ceased to command the assembly’s majority support and whether Nizar and his excecutive council members should tender their resignations upon the Sultan's refusal to dissolve the assembly.

Zambry’s third question, filed here on April 20, sought a ruling on whether the Sultan had the right to appoint Zambry as menteri besar after due inquiry that Nizar had lost majority confidence of the assembly although a vote of no-confidence had yet to be taken.

Should the Federal Court answer Zambry’s questions in the affirmative, it should then declare Zambry the validly appointed Perak menteri besar, Zambry’s application stated.

Nizar’s lead counsel Sulaiman Abdullah, who also acted on behalf of Speaker V Sivakumar, had previously raised similar arguments on Article 63 of the Perak constitution during the suit brought by the three Perak independent assemblymen against Sivakumar.

The Federal Court then ruled that Article 63 of the Perak Constitution provides the apex court jurisdiction to hear state constitution matters, with the court later deciding that the three independents — Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) were still the valid representatives of their constituencies.