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"... Since the High Court had declared that Nizar is the rightful Menteri Besar of Perak, there is NO procedure that empowers the court to stay or invalidate that declaration pending the hearing of an appeal.
Court of Appeal Judge RAMLY ALI erred in law in granting the stay order.
In granting the stay order, the judge had conferred upon Zambry the FALSE impression that the latter is the Menteri Besar, when in law the High Court had already declared to him to be otherwise.
It is akin to granting Zambry with the “emperor's invisible new clothes”, which has caused him to act under the misguided belief that he has the authority of the Menteri Besar, when in actual fact, he is parading himself in Perak ’stark naked’.
(The) curious issue is the exceptional instance of the granting of the stay order by a single Court of Appeal Judge, Ramly Ali, who was promoted barely a month prior to his order.
His decision has been widely criticized in the legal fraternity as being surreal if not downright perverse for this simple reason:
It is an established principle of law that DECLARATORY orders CANNOT be stayed.The nature of the orders made by the High Court in the present case is DECLATORY in nature. It must be understood that “declaratory orders” are different from orders which are “executory” in nature.
“Declaratory orders”, as the name suggests, merely declare:
(i) the true interpretation of the law or document; andThe effect of that is that declaratory orders does not create or confer rights. Such an order merely pronounces on the actual legal position and/or factual scenario in question.
(ii) the legal position or rights between the parties.
For example, you may seek a DECLARATION that there was X is your son.
- If you are successful in your application, then the court will declare that X is your son. How do you stay an order like that?
- For argument’s sake, let’s say we do.
Does that mean X is not your son if the opposing party grants a stay of the order and throughout the duration of the order?
And that is why courts do not grant a stay order on a declaratory order.
Furthermore, another distinctive feature of a DECLARATORY order is that once they are pronounced by the Court, the legal rights or legal positions vis-a-vis the parties are settled.
No further legal steps or proceedings need to follow.
‘Executory orders’ on the other hand declare the right of the parties and then proceed to order the defendant to act in a particular way, e.g. to pay damages or money owed and such orders can be enforced by execution proceedings if disobeyed.
The Perak Case
In the present case, the orders made clearly did NOT create or confer any rights upon Nizar to be the Menteri Besar as Nizar has ALWAYS BEEN the Menteri Besar.
Instead, the order merely indicates the position as it has always been i.e. that Nizar IS Menteri Besar of Perak at ALL material times.
The High Court order did NOT confer something which did not exist in the first place.
In view of the unique nature of declaratory orders as described above, where an appeal is lodged against a declaratory order, there can be no stay of proceedings, legally or sensibly.
Now even assuming for the briefest moment you can imagine, that the Court of Appeal Judge was correct in granting the stay order.
The Judge (Ramly Ali) should ask himself:
- Whether the stay order would achieve any legal and tangible purpose or is it an exercise in futility?
- Does the stay order confer power upon Zambry for him to perpetuate his misguided notion that he is the Menteri Besar of Perak?
- Can the Court of Appeal grant a stay over a constitutional matter?
The granting of a stay order over a constitutional matter is an exercise in futility.
Even Fiji, a country which is far less developed than Malaysia, applied the principle correctly as can be seen in the case of Registration Officer for the Suva City Fijian Urban Constituency v. James Michael Ah Koy (unreported) Fiji Court of Appeal Civil Appeal No. 23 of 1992, where the Fiji Court of Appeal held:-
“Whilst the pending appeal undoubtedly involves a question of great public importance of a constitutional nature, the fact is that unless and until the Supreme Court overturns the Court of Appeal decision, that decision must stand and it binds the parties to the proceedings.In the present case, since the High Court had declared that Nizar is the rightful Menteri Besar of Perak, there is NO procedure that empowers the court to stay or invalidate that declaration pending the hearing of an appeal.
Orderly functioning of democracy depends on the relevant authorities taking cognisance of and giving effect to Court Orders be they executive or declaratory in nature.
Unless a case is made out to the contrary (and the onus is on the Applicant to show that exceptional grounds exist) the successful party must be allowed to enjoy the fruits of his success."
Therefore, the single Judge of the Court of Appeal (RAMLY ALI) erred in law in granting the stay order. Additionally, in granting the stay order, the judge had conferred upon Zambry the FALSE impression that the latter is the Menteri Besar, when in law the High Court had already declared to him to be otherwise.
It is akin to granting Zambry with the “emperor's invisible new clothes” which has caused him to act under the misguided belief that he has the authority of the Menteri Besar, when in actual fact, he is parading himself in Perak ’stark naked’.