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 11^th 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 13^th day of May 2009.

DATO’ NGEH KOO HAM

Coordinator of the Pakatan Rakyat legal

team cum the Senior Exco of the Pakatan

Rakyat Perak State Government

民主行动党霹雳州主席兼民联律师团协调人拿督倪可汉于2009年5月13日假怡保霹雳州总部发表声明：

上诉庭只是暂缓执行吉隆坡高庭昨日宣布尼查是合法大臣的裁决，并没有影响有关判决的内容

-拿督斯里赞比里自称是霹雳州合法大臣是错误的，他已经犯上藐视法庭的行为。

-州秘书及州法律顾问的职务终止令至今依然有效。

我为拿督斯里赞比里自称是霹雳州合法大臣感到羞耻，上诉庭仅仅只是批准他的申请，暂缓执行吉隆坡高庭法官阿都阿兹宣布尼查从被委任至今依旧是合法大臣的裁决。高等法庭已经指示拿督斯里赞比里不能继续以霹雳州务大臣自居。因此，拿督斯里赞比里依然自称是合法的霹雳州务大臣，已经犯上藐视法庭的行为。

高等法庭对于拿督斯里赞比里是不合法被委任的州务大臣的裁决是毋庸置疑的。

以下的例子可以协助说明事情的关键：

A起诉B欠债5000令吉而B反驳不认有关债务。经过聆审，法庭宣告B欠A 5000令吉并且指示B将有关数额欠款付还予A。随即B取得上诉暂缓执行有关判决。在上诉还没有获得审讯、以及较低级法院的判决没有被推翻的情况下，B依然欠A 5000令吉及必须付还有关数额予A。

“暂缓令”只是给予A在低级的法院判决可以获得执行之前，一个在较高级法院内获得重新检讨的机会。

有鉴于此，直至上诉聆审前，即使拿督斯里赞比里自诩为大臣，然而高庭的判决依然判他是不合法的大臣，因此他不能及不可以行使州务大臣的权力及特权，包括占有州务大臣的办公室。

同时，拿督斯里赞比里作为一名不合法的州务大臣，他也没有权力为州秘书及州法律顾问复职，因他们已被民联州政府在2009年5月11日晚上召开的行政会议上终止职务。（而这是在拿督斯里赞比里申请暂缓执行高庭判决之前所决定。）

针对政府首席秘书丹斯里莫哈末西迪哈山指出州政府不能对州秘书及州法律顾问采取任何行动的说法，我要指出，这个说法在法律上是无效的。

州秘书及州法律顾问是联邦政府公务员，由公共服务委员会与司法及法律服务委员会所委任。不过，当他们被州政府所支持及聘请，州政府就有权作为他们的雇主。因此，当他们的行为违反州政府的意愿、无法与州政府合作或犯下反抗的行为，通过正式向公共服务委员会、司法及法律委员会以及在1993年公务员（行为与纪律）守则下作出投诉，他们就可以被终止职务。霹雳州民联政府执行法律所赋予的权力，任何的解释说明将显示联邦公务员可以超越州政府的领导而免除被惩罚。