Final judgment after High Court judge Abdul Aziz Abdul Rahim declared Nizar the rightful menteri besar.: Nizar wants 11-member Federal Court bench

Will there be a full bench when Perak MB vs MB case is heard on Thursday?

Ousted Perak Menteri Besar Mohd Nizar Jamaluddin has applied for a full quorum of 11 Federal Court judges when his appeal is heard on Nov 5.

A decision by the Federal Court – the country’s highest court – could help end the political imbroglio in Perak since BN replaced the Pakatan Rakyat government after the defection of three state assemblypersons eight months ago.

Whatever the Federal Court decision, it would be a landmark case where the top judges will determine who the rightful state chief executive in the Silver state should be.

Given the importance and weight of the case, Nizar had on Thursday filed an application for a maximum bench of judges to hear the matter.

Alternatively, Nizar is seeking the apex court to form an enlarged quorum of more than five Federal Court judges.

There are presently 13 Federal Court judges in the country, including Chief Justice Zaki Azmi, Court of Appeal president Alauddin Mohd Sheriff, Chief Judge of Malaya Arifin Zakaria and Chief Judge of Sabah and Sarawak Richard Malanjum.

The others are justices S Augustine Paul, Hashim Yusoff, Zulkefli Ahmad Makinuddin, Gopal Sri Ram, Ghazali Mohd Yusoff, James Foong, newly-elevated Md Raus Sharif, Abdul Hamid Embong and Heliliah Mohd Yusof.

Naturally, Md Raus will be excluded from hearing the appeal as he had led the three-member Court of Appeal panel in overturning the High Court’s decision which declared Nizar as the legitimate menteri besar.

Yesterday, Nizar after launching a Pakatan Rakyat conference said if the court rules in his favour, he shall seek consent from the Sultan of Perak to dissolve the state assembly and call for fresh elections.

“I believe it is the Perakians who will ultimately decide the political future of Pakatan Rakyat in the state,” Nizar had said.

Basis for Nizar’s application

Nizar in his supporting affidavit to the application said there are constitutional issues involving the interpretation of the Perak constitution which would have a direct impact in the interpretation of the provisions in the Federal Constitution.

He also said that the apex court decision would affect all Malaysians and would become a precedent to similar cases in the near future.

“The issues and constitutional problem in Perak have not been resolved and a full quorum of Federal Court judges is important as it involves public interests and the jurisprudence history of the court in Malaysia.

“Furthermore, the legal issues which is raised following the Court of Appeal decision involves the rejection of strong constitutional cases involving the powers of the menteri besar or the chief ministers of Sabah and Sarawak,” said Nizar in his affidavit.

He lamented that while he had on Sept 4 apply for a full quorum in getting leave for his appeal to the Federal Court, his application was rejected and only five members heard his leave application, which was granted.

Judges must be fair, impartial and just

Nizar argued that the picking of judges to be part of a panel in a hearing is a “quasi judicial” action, which has to be disposed of with fairness, impartiality and justice, and backed with strong credible judgment.

He said he believes a full quorum of 11 judges is needed and there is no credible reasons why his application should be rejected.

According to the ousted MB, the apex court had in 2005 in the criminal appeal of Public Prosecutor vs Tan Tatt Eek had decided to have a seven-member panel to decide on the issue “whether presumption of possession may be used to invoke the presumption of trafficking”.

Nizar added if the Federal Court could then decide a seven-member panel on the issue of the interpretation of the Dangerous Drugs Act involving personal liberty of an accused, then his application for a full bench must be seen of greater importance as the appeal would decide on the public, state and national interests.

Since the matter was filed in March, the Nizar case had seen the ousted MB winning in the High Court but the decision was later quashed at the Court of Appeal level.

On May 11, High Court judge Abdul Aziz Abdul Rahim declared Nizar, who is PAS Perak secretary, as the rightful menteri besar.

However on appeal at the Court of Appeal, rival Zambry Abdul Kadir from BN was granted stay within less than 24 hours by justice Ramly Ali, who had been elevated in April.

This was followed with the appellate court decision on May 22, which overturned the High Court decision and acknowledged Zambry as the legitimate MB.

Nizar had also faced problems in filing for a stay at the Federal Court following the appellate court’s decision. The written judgments were only made available on June 27, a month after the oral decision of the three-member bench.

Hafiz Yatim/Mkini