UPDATED
By Debra Chong
KUALA LUMPUR, Nov 5 — The Federal Court today heard all submissions in toppled Perak Mentri Besar Datuk Seri Nizar Jamaludin’s appeal to be reinstated but reserved judgment to a later date.
Court of Appeal president Tan Sri Alauddin Mohd Sheriff led the five-member Bench with Chief Judge of Malaya Tan Sri Arifin Zakaria, Justices Datuk Zulkefli Ahmad Makinuddin, Datuk Mohd Ghazali Mohd Yusoff, and Datuk Abdull Hamid Embong.
Attorney-General (AG) Tan Sri Abdul Gani Patail, who acted as an intervener to help interpret the Perak and Federal constitutions, also made his submission.
Nizar is represented by a team led by senior counsel Sulaiman Abdullah, while another senior lawyer Datuk Cecil Abraham is representing Perak Mentri Besar Datuk Seri Zambry Abd Kadir from Barisan Nasional (BN).
Earlier, the five-man panel of Federal Court judges dismissed Nizar’s application for an 11-man Bench to hear his appeal.
Alauddin ordered the lawyers to present their submissions immediately after making the ruling.
He warned them that the judges intended the arguments to be wrapped up today, even if they had to sit till 6pm. The courts normally operate from 9am to 5pm, and very rarely extend their sessions.
True to his words, the Bench kept a tight schedule and took very short breaks, which resulted in Sulaiman — who is still recovering from a bout of illness earlier this year — needing to retire halfway through submissions.
His colleagues, Phillip Koh and Chan Kok Keong who were also named as co-counsels for Nizar, took over.
It has been half a year since Perak constitutional crisis was last heard in the courts and the lawyers for all parties reappraised the judges on the history of the case at great length and detail.
The top court was told how Pakatan Rakyat’s (PR) Nizar — who failed to persuade the Perak sultan to dissolve the state assembly and was subsequently replaced by Zambry — had taken the matter to the Kuala Lumpur High Court where a trial was held to find out the facts of the case, and where he was later declared to be the lawful mentri besar (MB).
Zambry had challenged the High Court’s decision at the Court of Appeal and won that round.
At the Federal Court today, the lawyers repeated the same arguments and cited the same authorities as before, save for two new points raised by Nizar’s counsels.
Nizar’s lawyer, Chan, highlighted that the ruler, as a constitutional monarch, was duty-bound under the Perak Constitution to take advice only from the MB and no other, except when the legislative assembly when it is in session — which was not the case, at that time.
Chan suggested that for the sultan to act on advice from any other person, such as the then deputy prime minister, Datuk Seri Najib Razak, was unconstitutional.
His co-counsel, Koh drew attention to Cecil’s argument denying there was a deadlock in the Perak assembly in February, which was the climax of the crisis.
Cecil claimed that BN held the upper hand even without the support from the three assemblymen who had quit PR and pledged loyalty to the federal coalition because the DAP assemblyman for Tronoh, V. Sivakumar, was not allowed to cast his vote as the speaker.
But Koh argued that Article 36A of the Perak Constitution stated that Sivakumar could step down as speaker and another — who is not an elected representative, such as the current speaker Datuk R. Ganesan — take his place, allowing him to exercise his right to vote as an assemblyman.
Nizar’s lawyer stressed that speaker had already accepted the quit letters from the three assemblymen from Behrang, Changkat Jering and Jelapang, which bars their votes from being counted in the legislative assembly.
In wrapping up the submissions, Koh strongly urged the judges to look deeply at the construction of the laws and not just the face of the facts as pushed by the AG and Zambry’s counsel.
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