MB vs Speaker: Federal Court to decide tomorrow

MB vs Speaker: Federal Court to decide tomorrow
Hafiz Yatim | Apr 13, 09 1:32pm
The Federal Court will decide tomorrow if it has the authority to hear an application seeking to lift the suspension of Perak Menteri Besar Zambry Abd Kadir and his exco members from the state assembly.

The suspension was made by Perak speaker V Sivakumar after Barisan Nasional had formed the state government in February without the assembly being dissolved.

The new MB was slapped with an 18-month suspension while his cabinet members have been suspended for one year.

The country's highest court will make a ruling after considering an objection submitted by Sivakumar's (photo) counsel Sulaiman Abdullah against the applicants' "backdoor" application to the court to lift the suspension.

Sulaiman said Zambry and the six applicants should have made their application by way of a judicial review in this matter and not via an originating summons to seek several declarations.

"The applicants should have made their application by judicial review under Rule 53 of the Rules of High Court 1980, to seek a certiorari (a writ to show or prove) or mandamus (preventing public authority).

"The filing of the originating summons ‘short circuits' the necessity for leave in judicial review proceedings. The originating summons being the premise of the application before this court is an abuse of the court process," he said.

"The application before this court is therefore, likewise tainted and must stand dismissed," he said.

A declaration is fine

The senior lawyer also submitted that this was the wrong procedure being brought by the applicants as the law safeguards the speaker from any action.

However, Firoz Hussein Ahmad Jamaluddin (photo) appearing for the applicants submitted that the Federal Court could hear the matter as they were seeking the declarations under the Specific Relief Act.

"We recognise the doctrine of separation of powers, between the court and Parliament. However, this is not connected as we are seeking declarations to lift the suspension of the applicants," he said.

Firoz submitted that the application via certiorari was not applicable and not available and hence, they were seeking to overturn the speaker's decision by seeking a declaration.

He said the speaker was not a public authority as defined under Article 160 of the Federal Constitution and hence, an action like this could be brought.

Firoz said Order 53 of the Rules of High Court was not applicable because there was no review of any decision involved.

"There is no question of judicial review whatsoever. The declaration being sought here is that the decision of the speaker to suspend the applicants is unconstitutional and ultra vires," he said.

He also submitted that the declarations sought here concerned personal rights of the applicants as the aggrieved parties.

Reliefs sought by Zambry, excos

The panel of five judges led by Court of Appeal president Justice Alauddin Md Sheriff reserved judgment to tomorrow.

The other judges on the bench were Chief Judge of Malaya Ariffin Zakaria and Federal Court judges Nik Hashim Nik Ab Rahman, S Augustine Paul and Zulkefli Ahmad Makinuddin.

Should the court decide to dismiss the preliminary objection, the same panel is expected to hear the merits of the case.

If that happens, Sulaiman (photo) is then expected to make submissions on the issue of non-justiciability, i.e. the action by the speaker cannot be taken to court.

Zambry and his state exco members - namely Zainol Fadzi Paharuddin, Ramly Zahari, Hamidah Osman, Saarani Mohamad, Mohd Zahir Abdul Khalid and Dr Mah Hang Soon are seeking several reliefs.

Among them are:


a declaration that the decision by Sivakumar in suspending Zambry for 18 months is unconstitutional under the Perak constitution and should be declared null and void.


a declaration that the decision in suspending Zambry is ultra vires and is accordingly null and void,


a declaration that the suspension of the exco members is against the Perak constitution and should be declared null and void.

Preliminary objection dismissed

Earlier, the apex court unanimously rejected another objection raised by Sulaiman to remit the case back to the Ipoh High Court.

Sulaiman argued that there was another matter pending at the High Court on the case which has not been decided.

"The matter concerns the striking out application which has been heard but yet to be decided. If the court decides to hear the matter today, it would have great implications. As such, the Federal Court should send back the case to the Ipoh High Court."

However, Firoz submitted that the Federal Court could hear the matter as it required an interpretation under Article 63 of the Perak constitution.

In dismissing the appeal, Alauddin ruled that the decision was unanimous and the court would hear on the merits.

The decision would have great implications as it is highly unlikely for the courts to entertain hearing an application when the matter is pending before another court.

Attorney General Abdul Gani Patail was also present and has applied to intervene in the proceedings. Also present was Perak legal advisor Ahmad Kamal Mohd Shahid.