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Submission-in-Reply byMr Philip Koh
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA(BIDANGKUASA RAYUAN)
RAYUAN SIVIL NO: 01 – 11 - 2009 (W)
ANTARADATO’ SERI IR. HJ MOHAMMAD NIZAR BIN JAMALUDDIN... PERAYUDANDATO’ DR ZAMBRY BIN ABD KADIR ... RESPONDENDANPEGUAM NEGARA MALAYSIA ... PENCELAH(Dalam Perkara Mahkamah Rayuan, Rayuan Sivil No. W-01-112-2009AntaraDato’ Dr Zambry Bin Abd Kadir ... PerayuDanDato’ Seri Ir. Hj Mohammad Nizar Bin Jamaluddin ... RespondenDanPeguam Negara Malaysia ... Pencelahyang diputuskan olehYang Arif Tuan Hakim Dato’ Md Raus bin Sharif, HMRYang Arif Puan Hakim Datuk Zainun bt Ali, HMRYang Arif Tuan Hakim Dato’ Ahmad bin Haji Maarop, HMRpada 22.5.2009)
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SUBMISSION-IN-REPLY
By Mr Philip Koh, Counsel, on behalf of the Appellant Dato’ SeriMohammad Nizar bin Jamaluddin.1.
My Lords, in the absence of our leader (Tuan Haji Sulaiman) withleave of this Court it falls on me to make a reply.Federal Court: Only one counsel?Philip Koh : Yes, only one and I will be brief and shalldefinitely not exceed 6 pm, probably earlier.
INTERPRETING THE CONSTITUTION
2.
In the Privy Council case from Nigeria,
Adengbero v Akintola
Viscount Radcliffe asked whether there is anything in the schemeof the Constitution that compels a certain way of interpreting thedocument.We say that in the task of Constitutional Interpretation there arethree basic questions:-WHO Interprets?WHAT is being interpreted?HOW is it interpreted?3.
The Learned and Honourable Attorney General and Learned Counselfor Respondent and we are on the same page in so far as the vitalquestion that confronts us is the question of interpreting the PerakState Constitution.4.
My Lords, in answering the question I shall be referring to twomajor documents in our Reply: can My Lords refer to them?: The
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Perak State Constitution and our Core Bundle Ikatan IT (P). DoesYour Lordship have these two documents?The Crux of Appellant’s position is that the Constitution is to beinterpreted by the Courts and NOT by any other institution howeverhigh.
IN OPEN COURT
5.
I respectfully refer to Article LXIII (pg 35 of the Perak Constitution)entitled “Special Jurisdiction of the Federal Court as toInterpretation of the Laws of the Constitution.” I refer also to Article LXIV (pg 36) Advisory Jurisdiction of theFederal Court where HRH may refer “any question as to the effectof any provision of this Constitution which has arisen or appeared toHRH likely to rise and the Federal Court shall pronounce in OpenCourt its opinion on any question so referred to it.” 6.
I emphasise that the hearing is in OPEN COURT so that all reasonsmay be ventilated and decisions are not made which may give riseto speculations and conflicting accounts of what happened.7.
This is important as it shields and insulates HRH from criticism of taking over the interpretive function.8.
It is the Court which interprets and not HRH. It is neither theMenteri Besar nor even the Legislative Assembly that has theinterpretive function over the constitution.I refer again to jurisdiction of HRH to refer issues to the FederalCourt under Article LXIV of the Perak Constitution.
INSULATING FROM CRITICISM
9.
My Lords this will shield HRH from criticism and contestations byeither side of the divide.
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