“And say, truth has come, falsehood shall, verily falsehood by nature is bound to perish” Chapter 17 Verse 81
On 13.2.2009, I filed a legal suit against Dato’ Dr. Zambry Bin Abd. Kadir (Zambry) in Judicial Review Application No. R3(1)-25-25-2009 (the Suit). Among others, I wished to clarify my position as the Menteri Besar of Perak and to declare that Zambry had unlawfully usurped the office of the Menteri Besar of Perak.
In particular, the main orders sought were:
a. A declaration that I am and at all material times the Menteri Besar of Perak.
b. A declaration regarding the interpretation of Article XVI(6) of the Laws of the Constitution of Perak that in the circumstances where –
i) the Menteri Besar of Perak desired, and advised that the Perak Legislative Assembly be dissolved;
ii) the Perak Legislative Assembly has not been dissolved;
iii) no motion of no confidence against the Menteri Besar of Perak in the Perak Legislative Assembly has been tabled and adopted; and
iv) no resignation from the office of the Menteri Besar of Perak has occurred;
whether the office of the Menteri Besar of Perak may be and/or had been vacated.
c. A writ of quo warranto be issued to Zambry to show cause and to give information how and under what authority Zambry purports to hold the office of the Menteri Besar of Perak and purports to act and/or carry out the responsibilities, functions and duties of the Menteri Besar of Perak.
d. A declaration that the Zambry has no right and/or does not hold the office of the Menteri Besar of Perak and is not the Menteri Besar of Perak at any material time.
e. An injunction to stop Zambry and/or his agents and/or his servants from acting and/or carrying out the responsibilities, functions and duties of the Menteri Besar of Perak.
I have called this media conference to explain the developments in the Courts thus far, and I hope you will bear with me as the points I am about to make are important. They are as follows:
1. This is not a suit against the Duli Yang Maha Mulia Paduka Seri Sultan Perak. This is a suit against Zambry. It is trite that the appointment of the Menteri Besar of Perak must be done in accordance with the Laws of the Constitution of Perak. Where there is a dispute in the nature of two appointments to a public office, both the appointees are lawfully entitled to seek the Court’s assistance to clarify the correct legal position. The appointing authority need not be involved in the dispute.
2. Let me explain. Quo warranto is a legal remedy to determine the right or title to a public office and to oust one who has unlawfully usurped or intruded the office, and holds on to the same. The usurper is asked to explain, by constitutional justification, whether he/she is lawfully entitled to the said office. If the answer is not satisfactory in law, the Court will oust the usurper by an order in quo warranto.
3. The remedies sought in the Suit are not unusual. The law reports of India are replete with cases of quo warranto challenging the positions of, among others, Judges, Prime Minister and Chief Justice. In Malaysia, there has been a successful challenge to the position of Industrial Court Chairperson in the case of All Malayan Estates Staff Union v Rajasegaran & Ors [2006] 6 MLJ 97, and the Courts have repeatedly affirmed this remedy in Lim Cho Hock v Government of the State of Perak, Menteri Besar, State of Perak and President, Municipality of Ipoh [1980] 2 MLJ 148 and most recently in Badan Peguam Malaysia v Kerajaan Malaysia [2009] 1 CLJ 833. Quo warranto is the appropriate legal route to clarify the constitutional impasse relating to the office of the Menteri Besar of Perak.
4. I filed the Suit after a comprehensive discussion with my legal team, and advice from them. The law is on my side. I say this because there are certain facts which are not in dispute, and because previous case law supports my position on the issue.
5. These are the undisputed facts:
5.1 I had advised and sought the dissolution of the Perak Legislative Assembly;
5.2 the Perak Legislative Assembly has not been dissolved;
5.3 no motion of no confidence against me in the Perak Legislative Assembly has been tabled and adopted;
5.4 I have not resigned from the office of the Menteri Besar of Perak; and
5.5 the Menteri Besar of Perak cannot be sacked or dismissed under the Laws of the Constitution of Perak.
To me, this means that I am still the Menteri Besar of Perak. If the office of the Menteri Besar of Perak is still occupied by me, Zambry cannot claim to be the rightful Menteri Besar of Perak because Perak cannot have two persons in one office of the Menteri Besar.
6. The legal and constitutional question therefore is simple:
(in the factual circumstances mentioned above,) whether the office of the Menteri Besar of Perak may be and/or had been vacated
If the answer to the question is in the negative (i.e. no), Zambry must be ousted from the office. If however, the question is in the affirmative (i.e. yes), then I am to be ousted from the office.
7. This is evident from the decision of Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187 (where the facts are similar to the case here) which states at page 194 of the report:
There are two occasions when the Governor has a discretion, that is, when he can act without, or even contrary to, the advice of the Supreme Council. Those occasions are in the performance of the following functions —
(a) the appointment of a Chief Minister;
(b) the withholding of consent to a request for the dissolution of the Council Negri. (Article 10 (2)).
As regards (a), nobody could be so foolish as to suggest that a Governor could appoint a second Chief Minister while there was still one in office.
(my emphasis underlined)
8. Thus, I filed the Suit with confidence that the law is on my side. However, recent events in relation to the Suit in the Courts have given me much cause for concern. These are my reasons:
8.1 At the High Court, and before the Suit was heard on its merits, the representative of the Attorney General (AG) urged the Court, on its own motion, to refer questions of law purportedly relating to the Suit to the Federal Court under section 84 of the Courts of Judicature Act 1964 for a speedy determination of the matter.
8.2 My legal team objected to this as section 84 does not empower the Court, on its own motion, to refer questions of law pertaining to the State Constitutions, in particular the Laws of the Constitution of Perak. Section 84 only permits questions of law pertaining to the Federal Constitution to be referred. As the Suit revolves around the interpretation of provisions of the Laws of the Constitution of Perak, section 84 cannot and does not apply.
8.3 Nevertheless, the High Court agreed with the AG and by an unusual reading of section 84 referred four questions purportedly relating to the Suit to the Federal Court.
8.4 The AG presented the four questions to the Court which were adopted in toto by the Court. My legal team objected to the questions, and said that the questions were irrelevant to the Suit and whatever answers the Federal Court may give will not be finally determinative of the issues in the Suit.
8.5 I appealed to the Court of Appeal. On 20.3.2009, the Court of Appeal dismissed the appeal, and re-affirmed the four questions. Once again, my legal team objected, and stated that the questions are irrelevant. Even if questions are to be referred to the Federal Court under section 84, the only question is the question stated in the court papers of the Suit (i.e. in b. above).
8.6 These are the questions which are now before the Federal Court on 23.3.2009:
i. sama ada perkara Duli Yang Maha Mulia Sultan Perak tidak memperkenankan permintaan bagi pembubaran Dewan Negeri Perak di bawah perkara XVI (6) dibaca bersama dengan perkara XVIII (2) (b) Undang-Undang Tubuh Kerajaan Perak boleh diadili (“justiciable”)?;
ii. sekiranya jawapan kepada persoalan pertama adalah ya, persoalan seterusnya ialah sama ada perkara Duli Yang Maha Mulia Sultan Perak tidak memberikan perkenan itu sah di sisi undang-undang;
iii. sama ada pelantikan Menteri Besar Perak yang baru di bawah perkara XVI (2) (a) dibaca bersama dengan perkara XVIII (2) (a) Undang-Undang Tubuh Kerajaan Perak oleh Duli Yang Maha Mulia Sultan Perak boleh diadili (“justiciable”)?;
iv. sekiranya jawapan kepada persoalan di atas adalah ya, persoalan seterusnya ialah sama ada Menteri Besar yang baru itu dilantik secara sah di sisi undang-undang.
8.7 It is extremely interesting to note that while the Suit does not seek to impugn Duli Yang Maha Mulia or question Duli Yang Maha Mulia’s wisdom or discretion, the AG and the Courts have framed questions which relate to the actions of Duli Yang Maha Mulia. Duli Yang Maha Mulia has unfortunately been brought into the fray by the AG and the Courts. This situation is most disheartening to me.
8.8 Secondly, and as my legal team has pointed out in Court, I am concerned that the four questions are irrelevant to the Suit:
· Questions i. and ii. above relate to Duli Yang Maha Mulia’s decision to withhold consent for the dissolution of the Perak Legislative Assembly. In the Suit, I do not question this. I accept that it is Duli Yang Maha Mulia’s prerogative. I have stated this as a fact which I accept in the Suit (reproduced in b.ii) above) - i.e. that the Perak Legislative Assembly has not been dissolved.
Why is this question therefore framed for an answer to the Federal Court?
· Questions iii. and iv. above relate to Duli Yang Maha Mulia’s decision to appoint a new Menteri Besar under Article XVI(2)(a) read with Article XVIII(2)(a) of the Laws of the Constitution of Perak. Articles XVI(1) and (2)(a) reads as follows:
(1) Duli Yang Maha Mulia hendaklah melantik satu Majlis Mesyuarat Kerajaan.
(2) Apa pun Majlis Mesyuarat Kerajaan itu hendaklah dilantik seperti berikut iaitu:-
(a) Duli Yang Maha Mulia hendaklah mula-mula sekali melantik sebagai Menteri Besar pada mengetuakan Majlis Mesyuarat Kerajaan itu seorang ahli Dewan Negeri yang pada timbangannya boleh mendapat kepercayaan sebahagian besar daripada ahli-ahli Dewan Negeri itu, dan
(b) Hendaklah Baginda dengan nasihat Menteri Besar melantik tidak lebih daripada sepuluh orang atau tidak kurang daripada empat orang ahli-ahli lain dari antara ahli-ahli Dewan Negeri itu.
(my emphasis underlined)
In the Suit, I do not question this. I accept that it is the Duli Yang Maha Mulia’s prerogative to appoint the Menteri Besar after the State elections, and therefore on 17.3.2008, I was so appointed. But Zambry was appointed while I am still in office and not immediately after the elections. As such, it is clear as crystal that Article XVI(2)(a) read with Article XVIII(2)(a) are entirely inapplicable to our factual scenario. The said provisions only relate to the situation at the commencement of a new State Legislative Assembly where there is as yet no Menteri Besar and no Majlis Mesyuarat Kerajaan in existence.
Why is this question therefore framed for an answer to the Federal Court?
8.9 To reiterate, the Suit does not seek to question or impugn Duli Yang Maha Mulia’s prerogative or wisdom in withholding consent for the dissolution of the Perak Legislative Assembly, nor does the Suit seek to question or impugn Duli Yang Maha Mulia’s prerogative or wisdom in the appointment of the new Menteri Besar upon the resumption of legislative business after the Perak State elections. But the questions referred to the Federal Court - on the motion of the High Court, accepted by the Court of Appeal, and proposed by the AG - do. Why is this so?
8.10 To compound the problem, the question my legal team has framed in the Suit (reproduced at b. above) has been ignored. Why are the AG and the Courts unwilling or reluctant to decide on the question which has been framed in the Suit? Is it because Zambry will have no answer to it?
8.11 Thirdly, I find it quite unusual that the Courts have moved with great haste in referring the matter to the Federal Court, and without even hearing the merits of the Suit. I am all for an expedient resolution to the Suit, but it must surely be done in accordance with law. While the law under section 84 has been misapplied and misinterpreted (because section 84 so clearly does not permit the High Court and the Court of Appeal to refer questions of State Constitutions to the Federal Court), the referral process has in effect taken only ten days:
· 3.3.2009
High Court heard submissions on the reference point
· 10.3.2009
High Court refers the four questions to the Federal Court
· 12.3.2009
Federal Court informs parties about the hearing date of the reference to be held on 20.3.2009 (on 17.3.2009, the Federal Court informs parties that the hearing is adjourned to 23.3.2009)
This appears to be the first time this has happened in Malaysian judicial history.
9. In gist:
9.1 the four questions referred to the Federal Court do not mirror the real facts, issues and questions of law which are to be tried and which arises from the Suit;
9.2 the said questions are also irrelevant, and deviates from the real matters of the Suit;
9.3 the questions referred, even if answered by the Federal Court, will not definitively or finally decide the actual matters in the Suit and the dispute between me and Zambry as to the office of Menteri Besar of Perak; and
9.4 the reference made by the High Court will not assist in deciding the Suit justly and fairly.
10. I started by saying that the law is on my side. This is clearly laid down in the Laws of the Constitution of Perak and in the authority of Stephen Kalong Ningkan. I still maintain that the law is on my side.
11. However, and after witnessing the turn of events which has been most extraordinary and surprising, to say the least, it does not appear that the interpreters of the law or Zambry wish to answer the real constitutional question which forms the crux of the Perak MB impasse. Why is this so? And why am I being pulled through the Court process with the greatest of vigour on questions of law which are extraneous and unrelated to the Suit? Why is there an implicit, if not explicit, avoidance of the real question as framed in the Suit (i.e. reproduced in b. above)? Is it because there is only one answer to it?
The redress I seek in the suit will not be addressed if the Federal Court proceeds to hear and decide on the four questions and not the questions raised in the suit. I pray to God that good conscience and the oath of judicial office will be sufficient to guide and lead our beloved country away from the imminent step of the sacrifice and destruction of the Laws of the Constitution of Perak at the altar of illegitimate power, greed and convenience.
“And incline not toward those who do wrong, lest the Fire should touch you and you have no protectors other than Allah, now you would then be helped” Chapter Hud 11 Verse 113.
Dated this 22nd day of March 2009
Dato’ Seri Ir. Hj Mohammad Nizar Bin Jamaluddin
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