6 theSun | WEDNESDAY MARCH 11 2009

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Perak Speaker files application The Nizar-Zambry hearing

for judicial review against EC
KUALA LUMPUR: Perak State Assem-
bly Speaker V. Sivakumar personally
filed an application for a judicial re-
view against the Election Commission
(EC) and three state assemblymen in
the High Court (Appellate and Special
Powers Division) yesterday.
Sivakumar named the commission,
Behrang assemblyman Jamaluddin
Mohd Radzi, Changkat Jering assem-
blyman Mohd Osman Mohd Jailu and
Jelapang assemblyman Hee Yit Foong
as respondents.
He is seeking a certiorari order to
quash the EC’s decision and action
for failing to conduct a by-election
at Behrang, Changkat Jering and
Jelapang.
He is also seeking a mandamus
order to get the EC to conduct by-
elections at all three constituencies.
Sivakumar is also seeking for puni-
Court throws out Uthaya’s appeal on technicality
PUTRAJAYA: Hindraf leader P.
Uthayakumar’s appeal on his second
habeas corpus application to secure
his release from detention under the
Internal Security Act was thrown out
by the Federal Court here yesterday on
technical grounds.
Justices Datuk Nik Hashim Nik Ab.
Rahman, Datuk S. Augustine Paul and
Datuk Hashim Yusoff unanimously dis-
missed his appeal after he failed to fulfil
the requirement under Section 95 of
the Rules of the Federal Court, to file a
petition of appeal within the stipulated
10 days after receiving the record of
appeal from the court.
tive, aggravated and exemplary dam-
ages, costs and other reliefs deemed
fit by the court.
He is also seeking a writ of quo
warranto to be issued against all
three state assemblymen.
[A writ of quo warranto requires
the person to whom it is directed
to show what authority he has for
exercising some right or power he
claims to hold.]
Sivakumar also wants a declara-
tion that their state seats are vacant
due to their (alleged) resignations and
an injunction to prevent them from
acting or executing the duties and re-
sponsibilities as state assemblymen.
Sivakumar, jointly with three exco
members and three voters from the
said constituencies, also filed an-
other application for a judicial review
against the same defendants.
They also rejected his application
for extension of time to file the petition
of appeal.
Uthayakumar, 47, a diabetic, ap-
pealed against the High Court’s deci-
sion disallowing his second habeas
corpus bid for freedom on grounds of
medical negligence.
On Sept 17 last year, High Court
Judge Suraya Othman held that
Uthayakumar’s claim that he was de-
nied proper medication, treatment and
proper diet by the Taiping Hospital and
officials of the Kamunting detention
camp was not true and without merit.
– Bernama
Federal Court to handle
four questions of law
KUALA LUMPUR: The High Court
here has decided to put before the
Federal Court four questions of
law towards seeking a resolution
to the dispute between Datuk Seri
Mohammad Nizar Jamaluddin and
Datuk Dr Zambry Abdul Kadir over
the post of Perak mentri besar.
The questions read out in court
by Justice Lau Bee Lan yesterday
are:
» Whether the withholding of con-
sent to a request for the dissolution
of the State Legislative Assembly
of Perak under Article 16(6) of the
Perak State Constitution read with
Article 18(2)(b) of the Constitution of
Perak by the Sultan is justiciable;
» If the answer is yes, whether the
withholding of consent by the Sultan
is lawful;
» Whether the appointment of the
new mentri besar of Perak under
Article 16(2)(a) read together with
Article 18(2)(a) of the Constitution
of Perak by the Sultan is justiciable;
and
» If the answer to the above ques-
tion is yes, is the new mentri besar
validly appointed?
The questions which Lau decided
to refer to the Federal Court for a
“speedy and economical determina-
tion” to the constitutional dispute
arising from Nizar’s application for
judicial review following his sacking
as Perak mentri besar and Zambry’s
appointment to the post, had been
drawn up by Senior Federal Counsel
Datuk Kamaludin Mat Said from the
Attorney-General’s Chambers.
Nizar’s lead counsel Sulaiman
Abdullah, however, objected strongly
to the questions of law formulated
for referral to the Federal Court.
“I object to the questions as for-
mulated, as they do not arise from
the application for the declarations
and the judicial review,” he said.
“Those questions are irrelevant
to our application, and we submit
that whatever answers the Federal
Court may give will not be the final
determination of the issues that have
arisen,” he added.
Sulaiman had also objected last
Friday (March 6) when Lau asked
the lawyers to prepare proposed
questions of law for the High Court
to consider.
He had told the court that he felt
his participation in preparing such
questions would “prejudice his ap-
peal”.
Only Kamaludin had drafted
questions to present to the court
then, and these were subsequently
adopted by Lau.
Sulaiman had also raised objec-
tions earlier last week when Lau an-
nounced the court’s decision to stay
the proceedings in the High Court
and refer the matter to the Federal
Court under Article 84 of the Courts
of Judicature Act to bring about a
“speedy and economical determina-
tion” to the constitutional dispute.
Lau had decided last Friday that
there are constitutional issues in-
volving the interpretation of Article
16(6) of the Perak Constitution which
required resolution in the Federal
Court after considering submissions
made by Kamaludin and Sulaiman
on March 2.
In the proceedings last Friday,
Lau had agreed with Kamaludin’s
argument that the court must give a
wide meaning to the interpretation
of “constitution” under Section 84 of
the Courts of Judicature Act.
Kamaluddin had argued that Sec-
tion 84 was applicable to this case as
it covered issues arising from both
the Federal Constitution and the
State Constitution.

DAP candidate’s election win

as Bandar Kuching MP upheld
KUCHING: The Federal Court yesterday upheld
the election of state DAP vice-chairman Chong
Chieng Jen as the Bandar Kuching member of
parliament after dismissing with costs an appeal
by voter Kho Whai Phiaw challenging an earlier
election petition ruling.
It held that the election judge, Justice Datuk
Clement Allan Skinner, was right to dismiss Kho’s
election petition on Sept 24 last year to nullify
Chong’s election to the Bandar Kuching seat.
In the March 8 polls last year, Chong garnered
22,901 votes to defeat Barisan Nasional (BN)
candidate Sim Yaw Yen of the Sarawak United
People’s Party with a 9,952-vote majority.
The court also agreed with all the findings
of the election court and that Kho had failed to
prove beyond reasonable doubt that Chong had
committed the five offences – four relating to al-
leged use of undue influence and one relating to
alleged bribery of voters – to procure his victory
in the election.
The appeal was heard before a three-member
panel comprising Federal Court Judge Tan Sri
Alauddin Mohd Sheriff, Chief Judge of Malaya
Datuk Arifin Zakaria and Appeal Court Judge
Datuk Zulkefli Ahmad Makinudin. In his election
petition, Kho sought to nullify the election result
on grounds that Chong had interfered or at-
tempted to interfere with the free exercise of the
electoral rights of the voters, contrary to Section
9(1) of the Election Offences Act.
However, the election court ruled that Kho
had failed to prove beyond reasonable doubt
that Chong had made false statements affecting
the personal conduct or character of Sim as a
candidate.
Kho had also alleged that the pamphlet, “Say
Enough To SUPP, Say ‘No’ to CM”, contained false
imputations or misrepresentations, which were
deliberately intended to mislead the voters in the
Bandar Kuching constituency.
The reliability of some witnesses’ evidence
was also questioned, including that of Merdict
Jukai Empaka, a voter who had admitted that he
“came to court to lie” by saying that he refrained
from voting because he was induced or influ-
enced by what was stated in the Sarawak DAP
manifesto. – Bernama

Anwar’s sodomy trial set for July 1

KUALA LUMPUR: The High
Court here yesterday fixed July
1 to 24 for the sodomy trial of
Opposition Leader Datuk Seri
Anwar Ibrahim.
The hearing will be heard
before Justice Datuk Mohamad
Zabidin Mohd Diah.
Mohamad Zabidin fixed the
date after the case was offi-
cially transferred from the ses-
sions court yesterday despite
objections from Anwar’s lead
counsel, Sulaiman Abdullah.
Sulaiman argued that the
certificate of transfer for the
case should be produced
before sessions court judge
S. M. Komathy Suppiah since
the matter was initially heard
by her.
Solicitor-General II Datuk
Mohamed Yusof Zainal Abiden
told the court that Komathy
was on leave and any lower
court was empowered to hear
the matter.
Sessions Court judge
Rozana Ali Yusoff agreed with
Mohamed Yusof and trans-
ferred the case to the High
Court.
At the High Court, the
charge was read out and the
Parti Keadilan Rakyat (PKR)
adviser again claimed trial.
Anwar, 61, is charged
with voluntarily committing
carnal intercourse against
the order of nature with a
former aide, Mohamad Saiful
Bukhari Azlan, 23, at Unit 11-
5-1, Desa Damansara Condo-
minium, Jalan Setiakasih, Bukit
Damansara, between 3.01pm
and 4.30pm on June 26 last
year.
If convicted, he faces im-
prisonment of up to 20 years
under Section 377B of the
Penal Code.
Sulaiman applied to the
court to direct the prosecu-
tion to supply all the relevant
documents to the defence,
saying that it needed the DNA
reports for expert opinion
overseas.
Justice Zabidin reminded
both sides that he was giving
priority to this case.
“I’m setting two months
for both parties to prepare
for the trial and by that time
the appeal would have to be
heard,” he added. – Bernama