MEDIA STATEMENT BY DATO’ NGEH KOO HAM AT DAP PERAK HEADQUARTERS IN IPOH, ON 13 MAY 2009:
A stay order pending appeal does not affect the content of a Judgment
– Wrong for Dato’ Seri Zambry Bin Abdul Kadir to claim that he is now the rightful MB of Perak. He is in contempt of court.
– Suspension of State Secretary and State Legal Adviser from duties still valid
I feel ashamed for Dato’ Seri Zambry Bin Abdul Kadir who now claimed that he is the rightful Menteri Besar of Perak after the one Judge bench of the Court of Appeal granted him a stay pending his appeal with regard to the judgment of the High Court Judge, Justice Abdul Aziz Bin Abdul Rahim who has declared Dato’ Seri Ir. Nizar Bin Jamalludin as continuing to be the rightful Menteri Besar of Perak from the day he was first appointed. The High Court Judge had ordered that Dato’ Seri Zambry Bin Abdul Kadir must not continue to present himself as Menteri Besar of Perak or act as one. Therefore, it is in contempt of court for Dato’ Seri Zambry Bin Abdul Kadir to claim that he is now still the rightful Menteri Besar of Perak.
It is without a doubt that until this High Court Judgment is reversed by the Court of Appeal Dato’ Seri Zambry Bin Abdul Kadir remains an illegally appointed Menteri Besar as has been declared by the learned High Court Judge.
The following simple illustration will help bring home the point.
A sues B for a debt of RM5,000-00 and B disputes the debt. After hearing, the court declares that B owed A RM5,000-00 and ordered B to pay the said sum to A. B then obtains a stay of the judgment pending appeal. Until the appeal is heard and the lower court judgment reversed, it remains that B owed A RM5,000-00 and has to pay this amount to A.
The stay order merely gave A an opportunity to get the opinion of a higher court with regard to the issue before the judgment of the lower court can be enforced.
Therefore, until the hearing of the appeal, Dato’ Seri Zambry Bin Abdul Kadir remains an illegally appointed Menteri Besar as has been declared by the High Court. He should not and cannot exercise the powers and the privileges of a Menteri Besar including going back to occupy the office of the Menteri Besar.
As Dato’ Seri Zambry Bin Abdul Kadir is still the illegally appointed Menteri Besar, he has no power to reinstate the State Secretary and State Legal Adviser who were suspended by the Pakatan Rakyat State Government through its Exco meeting on the night of 11th May 2009 (before the stay order was granted to Dato’ Seri Zambry Bin Abdul Kadir).
With regard to the opinion expressed by the Chief Secretary to the Government, Tan Sri Mohd Sidek Hassan that action cannot be taken by the State Government against the State Secretary and the State Legal Adviser, I would like to state that such an opinion is legally flawed. The State Secretary and the State Legal Adviser are Federal Officers appointed by the Public Service Commission and the Judicial and Legal Service Commission respectively. However, when they are seconded to and employed by the State Government, the State Government has the authority over them as their employer. Therefore, when they acted against the interest of the State Government or failed to cooperate with the State Government or commit acts of insubordination, they can be suspended from their duties pending formal complaints being lodged against them with the Public Service Commission and the Judicial and Legal Service Commission respectively and be dealth with under the Public Officers (Conduct and Discipline) Regulations 1993. Any other interpretation will mean that Federal Officers can lord over the State Governments with impunity. Therefore the Perak State Pakatan Rakyat Government has acted within what is permitted in law.
Dated this 13th day of May 2009.
|Nizar’s stay application fixed for Monday|
|Hafiz Yatim | May 13, 09 2:58pm Malaysiakini.com|
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The Court of Appeal has fixed Monday, May 18, to hear Mohammad Nizar Jamaluddin’s application to set aside the stay order given by the appellate court yesterday.
This comes after Nizar filed a notice of motion, along with a certificate of urgency and his affidavit in support of the application which was filed at the Court of Appeal registry at 2.20pm today.
Unlike Zambry’s application yesterday which was given the special treatment with the Attorney-General Abdul Gani Patail’s presence and counsel Cecil Abraham along with Umno lawyers Mohd Hafarizam Harun and Firoz Hussein Ahmad Jamaluddin, managing to have the application heard immediately, the rival menteri besar’s application to get an early hearing date was only known close to 5pm
Nizar’s application was filed by the law firm of Leong and Tan, from Perak.
Among others, the Pakatan leader is seeking to set aside the Court of Appeal’s stay order which Zambry had obtained yesterday following Monday’s Kuala Lumpur High Court ruling that Nizar is the rightful menteri besar.
Alternatively, Nizar is seeking the Court of Appeal to impose varied conditions on the stay order which Justice Ramly Ali did not allowed yesterday.
He is also seeking costs and other relief deemed necessary by the Court of Appeal.
Yesterday, Ramly, the solitary Court of Appeal judge to hear Zambry’s application allowed an order for a stay of the declaratory orders which Mohammad Nizar has obtained.
Ramly also did not allow counsel Sulaiman Abdullah, for Nizar, to apply to the appellate court to impose conditions on the stay order.
Nizar: KL High Court says I am MB
(1) He (Nizar) is the rightful menteri besar of Perak at all material times;
(2) There was no dissolution of the Perak legislative assembly;
(3) There was no motion of no-confidence made against him at the Perak legislative assembly; and
(4) He did not resign the post as menteri besar.
Nizar noted that after the judgment delivered by Justice Abdul Aziz Abd Rahim, the judge did not grant an oral application by Zambry’s lawyers and he immediately assume the post as menteri besar.
The Pakatan leader also stated the grounds for his application to set aside the stay order namely there were no merits for the application, as there was no motion of no-confidence tabled against him at the assembly, and that the menteri besar cannot be expelled based on Article 16(6) of the Perak constitution.
He also stated that there is a possibilty that Ramly had wrongly read or may have erred in reading the High Court judgment, as the case before the Court of Appeal was made hurriedly.
Declaratory order cannot be stayed
Nizar also stated that the declaratory order cannot be stayed in its application, and the appellate court had given a wrong order in allowing for a stay. Following this, he said this application is made to correct the situation.
He also claimed that special circumstances were in his favour as Zambry could be considered as an usurper menteri besar following the Kuala Lumpur High Court judgment and the move by the appellate court had violated his rights and the High Court’s decision.
It had also hindered the administration of the Perak state based on the state constitution, and that the rakyat and its civil servants are confused as to who is the rightful menteri besar following the appellate court’s decision.
He also claimed the decision yesterday, had resulted in an unstable political situation in Perak.
Nizar said his application would not prejudice Zambry’s stay application as it is an “office of trust” and that his application to seek a dissolution would have to be decided by the sultan.
Futhermore, the Pakatan leader claimed the High Court had decided that Zambry at all material times was not the rightful menteri besar.