Wednesday, May 13, 2009

Nizar is MB, and that is so until Court of Appeal overules the High Court...An attempt to explain the confusion..

There is some confusion about what is happening in the courts concerning the question of who is the legitimate Menteri Besar of Perak - Is it Pakatan Rakyat's Nizar or is it Zambry of BN? Mainstream media headlines and reports have confused many.

FACT:- The High Court of Kuala Lumpur has decided that Pakatan Rakyat's Nizar is the legitimate Menteri Besar of Perak - and that is where it stands. Unless, the Court of Appeal, as and when it hears Zambry's appeal overturns this decision - Mohammad Nizar Jamaluddin is the legitimate Menteri Besar of Perak.

But what happened yesterday at the Court of Appeal? Well, Zambry had filed an appeal - which is yet to be heard and decided. In the meantime, Zambry filed a stay application, to get an order that will stay the effect of the High Court's decision - and the one-man panel of the Court of Appeal granted that stay order...and this stay order is until the Court of Appeal hears and decides on Zambry's appeal.

The Court of Appeal, when it hears that appeal can either dismiss the appeal (which means the High Court Judgment stands), or it may allow the appeal (which means that the High Court judgment is overturned).

When that single Court of Appeal judge granted the stay application - possibly one of the reasons was to preserve the 'status quo'. But, was not the status quo then, that the Menteri Besar was Mohammad Nizar Jamaluddin for he and his Exco had already taken over the governing of Perak....mmm

Remember, that Zambry did also apply for a stay at the High Court, and the judge rejected his application. If the High Court judge had granted the stay - then preservation of status quo may have meant that Zambry and his Exco continue to govern for the time being.

The status quo after Nizar and Exco have already taken over is to keep them there...

The day had started early for the Pakatan Rakyat government. Nizar, accompanied by his wife Fatimah Taad and eight state cabinet members, arrived at the state secretariat in Ipoh at 7.30am to report for work. mohammad nizar jamaluddin returns to work as menteri besar after court decisionThey were greeted by a large contingent of riot police. Five Federal Reserve Unit trucks, one water cannon and at least about 50 uniformed policemen were seen milling around the compound. The police had taken up positions at the building since yesterday evening, soon after the Kuala Lumpur High Court ruled that Nizar was the rightful MB. When Nizar’s entourage arrived, they were not allowed immediate entry. A police officer said that only Nizar and his exco members would be admitted into the building. nizar return to suk 110509 09Although vehicles driven by civil servant were allowed easy entry, the gate was opened enough to allow Nizar and his exco members to slip into the compound.. ...Fifteen minutes after he clocked in, Nizar left for Kuala Kangsar to attend an investiture ceremony at the palace by Perak regent Raja Nazrin Shah. ...Meanwhile, Pakatan excos swung into action in the first few hours after resuming control of the state government. pakatan exco adun pc in perak state assembly building 120509 02Senior exco Ngeh Koo Ham announced that councillors would be sworn in by tomorrow so that the 14 local councils can function properly. "Also 817 village chiefs have been issued letters to carry out their duties. The Land Office has also been instructed to issue freehold (land) titles," he told a press conference at 11.15am at the state secretariat building. Ngeh said the Ipoh central bus project would proceed as planned while parking fees would be reduced to 30 sen with immediate effect. The DAP state chief also announced that the 2009 Sukan Perak had been cancelled, while allocations would be channeled towards sports at the district levels. "We'll redeem the three months wasted during the Perak crisis," he said. - Malaysiakini, 12/5/2009, They held the reins of power for 7 hours
So when the Court of Appeal granted the stay, the status quo was PR Menteri Besar and government in Perak.

Let us consider further this to what really is the status quo..

After GE2008, it has been the PR Menteri Besar and Exco - until several months ago when Zambry suddenly (and, I say wrongly) became the MB. My arguement is that he could not become the MB until the then existing MB had resigned...Anyway, that is the issue in the courts... - and such the status quo should be what was before all this 'mess' and controversy...

The whole mess and controversy started when 2 PKR and 1 DAP (and 1 UMNO to PKR) 'jumped' becoming pro-BN independents (and 1 back to UMNO)..

The whole controversy...'mess' started when BN was too impatient, not waiting for the Perak State Assembly to sit and a vote of no-confidence be taken with regard to the PR Menteri Besar... A little patience - and the following the proper procedure and we would not be here today ...

Who caused the mess - well many opinions - many reasons ....

But the question is what should be status quo that must be preserved while the courts make a decision of who is the legitimate MB and government - and I say, it should be the status quo when Nizar was MB and the PR ruled.

NOW, what is happening in court is an application of Nizar to strike out the 1-judge Court of Appeal stay order that re-elevated the usurper as Menteri Besar - and this application will be heard on Monday (18/5/2009)

The Court of Appeal has fixed Monday, May 18, to hear Mohammad Nizar Jamaluddin's application to set aside the stay order given by the appellate court yesterday.

nizar jamaluddin win court case at duta court house 110509 03This comes after Nizar filed a notice of motion, along with a certificate of urgency and his affidavit in support of the application which was filed at the Court of Appeal registry at 2.20pm today.

Unlike Zambry's application yesterday which was given the special treatment with the Attorney-General Abdul Gani Patail's presence and counsel Cecil Abraham along with Umno lawyers Mohd Hafarizam Harun and Firoz Hussein Ahmad Jamaluddin, managing to have the application heard immediately, the rival menteri besar's application to get an early hearing date was only known close to 5pm

Nizar's application was filed by the law firm of Leong and Tan, from Perak.

Among others, the Pakatan leader is seeking to set aside the Court of Appeal's stay order which Zambry had obtained yesterday following Monday's Kuala Lumpur High Court ruling that Nizar is the rightful menteri besar.

Alternatively, Nizar is seeking the Court of Appeal to impose varied conditions on the stay order which Justice Ramly Ali did not allowed yesterday.

He is also seeking costs and other relief deemed necessary by the Court of Appeal.

Yesterday, Ramly, the solitary Court of Appeal judge to hear Zambry's application allowed an order for a stay of the declaratory orders which Mohammad Nizar has obtained.

Ramly also did not allow counsel Sulaiman Abdullah, for Nizar, to apply to the appellate court to impose conditions on the stay order.

Nizar: KL High Court says I am MB

In Nizar's affidavit in support of the application, he said after four days of hearing, the Kuala Lumpur High Court in its judgment allowed the following declarations namely:

(1) He (Nizar) is the rightful menteri besar of Perak at all material times;

(2) There was no dissolution of the Perak legislative assembly;

(3) There was no motion of no-confidence made against him at the Perak legislative assembly; and

(4) He did not resign the post as menteri besar.

nizar return to suk 110509 01Nizar noted that after the judgment delivered by Justice Abdul Aziz Abd Rahim, the judge did not grant an oral application by Zambry's lawyers and he immediately assume the post as menteri besar.

The Pakatan leader also stated the grounds for his application to set aside the stay order namely there were no merits for the application, as there was no motion of no-confidence tabled against him at the assembly, and that the menteri besar cannot be expelled based on Article 16(6) of the Perak constitution.

He also stated that there is a possibilty that Ramly had wrongly read or may have erred in reading the High Court judgment, as the case before the Court of Appeal was made hurriedly.
- Malaysiakini, 13/5/2009, Nizar's stay application fixed for Monday
Remember that our Malaysian Judiciary is today headed by a man who had very close links to UMNO, who was unconventionally appointed directly as Federal Court Judge, and less than a year later he was head of the Judiciary. [Early September 2007 - Lawyer to Federal Court Judge, December 2007 - Appointed the President of the Court of Appeal (No.2 in the Malaysian Judiciary), October 2008 - Appointed Head of the Malaysian Judiciary] - see earlier postsFight Corruption in Courts - Get rid of corrupt Judges and court staff...and Zaki Azmi ,

Judges in Malaysia are too lowly paid, and when they retire, their pension is pathetic - and that may have got a lot of judges thinking about their future after retirement. Maybe, being 'good' may get them some Directorship or Consultancy or Commissionership...But to go against the UMNO or the BN may not be wise. The hope is always that there are still judges brave enough to act indepently without fear or favour in upholding the cause of justice...

That is the reason why I am now rather sceptical about getting justice from the Malaysian courts especially when on the otherside sits UMNO/BN or some politically connected person/company...or some powerful person/entity.

We shall see....we shall see...

Maybe Nizar will be successful ...maybe not - but, again I say that the best and correct solution for Perak is to go back to the people. Have elections in Perak - and move on...

No comments: