Nizar's case referred to Federal Court

The High Court here has referred to the Federal Court a bid by former Perak Mentri Besar Datuk Seri Mohammad Nizar Jamaluddin to challenge the legitimacy of his successor’s appointment.
Justice Lau Bee Lan ruled Friday that there were matters for interpretation of Article 16(6) of the Perak Constitution.
Article 16(6) states that if the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.
Elaborating further, Justice Lau said she agreed with Senior Federal Counsel Datuk Kamaluddin Md Said that Section 84 of the Courts of Judicature Act also covered the state constitution.
She also said that there was no option available for the Attorney-General’s Chambers to file an application to refer the matter to the apex court under Article 63 of the Perak Constitution since it was not a party in the leave proceedings.
Justice Lau immediately stayed the leave proceedings for judicial review.
In his suit filed on Feb 13, Nizar, who is a PAS member, challenged the legitimacy of his successor Datuk Dr Zambry Abd Kadir and the new state government.
On Feb 25, Judicial Commissioner Mohamad Ariff Md Yusof had recused himself from hearing the suit because prior to his appointment as judicial commissioner, he had represented PAS, PKR and even the Barisan Nasional.
Justice Lau adjourned the proceedings briefly for lead counsel Sulaiman Abdullah and Kamaluddin, the Attorney-General’s Chambers representative, to assist her to formulate questions of law for the referral.
When the proceedings resumed, Sulaiman said he had received instructions to file an immediate appeal to the Court of Appeal against the court ruling.
Therefore, Sulaiman said he felt that was not appropriate for him to draft such questions.
“In the circumstances, I ask your ladyship to stay the referral to the Federal court. The decision today is a very novel one,” he said.
Sulaiman contended that the point had never arisen before and this involved the question of the CJA, which might have repercussions for many other cases as well.
Kamaluddin, however, argued that it was not within the law for the High Court to allow for a stay of referral.
Justice Lau then dismissed Nizar’s application for the stay of referral order.
Later, the judge set next Tuesday for the pronouncement of question of laws to be referred to the apex court in the form of a special case after Sulaiman argued that justice had to be heard to be done by way of open court.
Lawyer M. Reza Hassan, who held a watching brief for Barisan Nasional, said the hearing of the matter before the plurality of judges would be highly beneficial as “we have never encountered such a complex set of circumstances, in general. No doubt, the decision of the apex court will ensure finality and certainty in respect of these constitutional issues.”