Nizar appeals, seeks 11-member bench - Malaysiakini

With three days to spare, ousted Perak menteri besar Mohammad Nizar Jamaluddin today filed his application for leave to appeal at the Federal Court registry - without the two written grounds of judgment from the three-person panel Court of Appeal that removed him as Perak menteri besar.

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Hearing has been fixed at the apex court for two days beginning July 9.

Nizar (centre in photo), who had earlier this week taken his oath as Bukit Gantang MP, has also applied for the maximum number of Federal Court judges - a full 11-member bench - to hear the constitutional matter.

There are currently 12 federal court judges.

According to Nizar, his application could very well determine the powers of the Yang Di Pertuan Agong should the question of removing a prime minister ever arise.

This is part of the constitutional questions or issues posed to the Federal Court.

"What if one day, the Yang Di Pertuan Agong tells Najib (Abdul Razak) 'You do not command the majority and hence, I sack you. Does His Royal Highness have the prerogative to do that?" he asked.

"The federal constitution and the Perak constitution are similar and the interpretation of this question posed to the court is vital in determining the future of democracy in this country and where the country is heading.

"Whatever is being decided would also have an impact at the federal level," said Nizar at a press conference after the filing.

This, he said, was one of the matters that the court has to decide on as the country has adopted a constitutional monarchy and a representative democratic system.

"If this is not respected, what then is the use of elections?," he asked.

The Bukit Gantang MP was accompanied by his lawyer Leong Cheok Keng (right) and supporters at about 3.05pm. They immediately mobbed by a swarm of photographers.

Judgements not written

The appellate court had on May 22 overturned the Kuala Lumpur High Court's decision which ruled that Nizar was the rightful menteri besar of Perak.

It is learnt that one of the three judges who delivered the unanimous decision, Justice Mohd Raus Sharif, has already written his grounds for the appellate court's decision in allowing Zambry's appeal.

However, another judge, Justice Zainun Ali, has yet to finish preparing hers and checks done today confirmed this.

The third judge, Justice Ahmad Ma'arop, is also said to be preparing the written grounds of his judgment.

When a decision is unanimous, it normal that only one written judgment is required but in this matter, all three judges are submitting their written grounds.

In filing his application, Nizar has posed three questions to be decided by the apex court should he be successful in obtaining leave to file his appeal.

He is also seeking for a stay of the appellate court's decision which allowed his rival Zambry to be the menteri besar.

In civil cases - unlike criminal cases - a leave of application has to be heard first before an appeal proper can be filed. There is no automatic right of appeal to be heard at the apex court level.

Question of law

The three constitutional questions which he would liked to be answered and clarified are:

1. A proper interpretation of Article 16(6) of the Perak constitution under which a menteri besar can advise the sultan to dissolve the assembly.

But what if there is no dissolution of the assembly, no motion of non-confidence against the MBand what if the MB did not resign?

2. Can the sultan determine if a menteri besar commands the confidence of the majority of the House?

Article 16(6) of the state constitution also relates to a motion of no-confidence being made at the state legislative assembly and an interpretation is being sought on this.

3. Whether the state constitution allows the sacking of a menteri besar or can the position be deemed vacant if he chooses not to resign.

In Nizar's supporting affidavit, he states that an interpretation of Article 16(6) would affect Article 43(4) of the federal constitution regarding the position of the prime minister of Malaysia.

Rationale for 11 judges

Nizar explained that his reason in asking for a full bench is because the people are "craving" for justice.

"The people want to see that justice is served as this affects not only Perak but also the whole nation," he said.

"That is why we want the judges in the highest court of the land to consider these constitutional questions," said Nizar.

He pleaded with the apex court judges to disregard their "political affiliations, economic gains, ethnicity and political pressure" when hearing the case.

"What they should consider is providing justice to the people of Perak and the nation," he said.

Leong said the issue provides a once in a lifetime opportunity for the judges to hear the case because such constitutional issues do not come everyday.

"If I am a judge, I would certainly want to hear this case," he said.

Nizar also blasted the Court of Appeal judges for not providing their written judgments given that they had earlier promised to have them done within a week.

Working 'around the clock'

"Now it is almost 30 days and we have yet to see their written judgments.

"My lawyers have been working round the clock in trying to understand the rationale of the five-minute oral judgment given in order to formulate the questions to the Federal Court," he said.

"Similarly, Justice Ramly Ali who granted a stay a day after the High Court judge ruled in my favour as the rightful menteri besar, has yet to provide his written grounds," he said.

Nizar said if High Court judge Abdul Aziz Abdul Rahim managed to write his 78-page judgment within four days, "...how come these judges cannnot provide the written grounds of their judgments?"