Nizar vs Zambry: ‘Wrong party named’

By M. MAGESWARI (The Star)

KUALA LUMPUR: Former Perak Mentri Besar Datuk Seri Mohammad Nizar Jamaluddin should be refused leave for a judicial review as he had named the “wrong party” in his application, a High Court heard.

Attorney-General’s Chambers representative Senior Federal Counsel Datuk Kamaluddin Md Said submitted that Nizar’s successor Datuk Dr Zambry Abdul Kadir had been appointed by the Sultan of Perak, and the state Ruler is a public authority under Article 160 of the Federal Constitution.

SFC Kamaluddin argued that Nizar had named Dr Zambry in his personal capacity as the respondent in the application.

“Dr Zambry is not a public authority within the ambit of Order 53 Rule 2(4) of the Rules of the High Court 1980. This renders this application irregular, null and void,” he argued Thursday.

Besides that, Nizar had not complied with the prerequisite of showing that he was adversely affected by a decision of a public authority, Kamaluddin said.

“A perusal of the Nizar cause papers would reveal that there is no mention of Dr Zambry having made any decision that adversely affects him (Nizar),” he said.

SFC Kamaluddin said the leave application was therefore frivolous, vexatious, defective and constituted an abuse of the court process.

In submitting further, he said the decision to appoint Dr Zambry was made in an official capacity and the Ruler cannot be sued or challenged in a civil court.

“The subject matter of the application, namely to challenge the royal prerogative powers of the Sultan of Perak, is non-justiciable and is not susceptible to a judicial review by this court,” he argued.

He argued that Nizar could have seen Dr Zambry’s letter of appointment issued by the Sultan to find out on what authority he was discharging his duties.

In his suit filed on Feb 13, Nizar is challenging the legitimacy of his successor and the new state government.

He sought to get a declaration that he is the rightful mentri besar of Perak, as well as an injunction to bar Dr Zambry from discharging his duties as mentri besar.

Nizar’s lead counsel Sulaiman Abdullah said that the appointing authority need not be involved in the dispute.

Sulaiman contended that it was a dispute in the nature of two appointments to a public office and both appointees were lawfully entitled to seek the court’s assistance to clarify the correct the legal position.

“In a quo warranto proceeding, it is the appointee who bears the burden of satisfying the court as to his eligibility to hold the public office in question, and to show that there has been no unlawful usurpation of said office,” he said.

Besides that, he contended that “the mere fact that His Royal Highness has immunity does not mean that he can act beyond the constitutional monarch.”

He said the main issues in the application revolve around the interpretation of the Perak Constitution and the usurpation of the office of the mentri besar by the respondent.

Among others, he argued the legal position in the application is therefore that the Perak Legislative Assembly has not been dissolved, no motion of no confidence against the mentri besar has been tabled and adopted in the Assembly, and no resignation from the office of the mentri besar has occurred.

He argued that Nizar has an arguable case and that the application was not frivolous and that leave should be granted for his client.

High Court judge Justice Abdul Aziz Abd Rahim will deliver his decision over the leave application Friday.