“I have been advised by my lawyer that a declaratory relief cannot be stayed” said Datuk Seri Nizar Jamaluddin yesterday. As a result ‘MB Nizar’ is applying to set aside the stay order. A friend recently asked: “Apa itu ’stay’? ‘Stay at home’ I tahulah!”
Legally speaking when a stay is allowed, it simply means that the effect or operation of a judgment, order or decision of the court is suspended ie back to status quo. The expression ‘a stay of execution or proceeding’ refers to both the process of reaching a decision, including the decision itself, in so far the authority in question is susceptible to judicial review. An appeal does not operate as a stay of execution under the decision appealed from unless the High Court or Court of Appeal so orders. The fact that an appeal is going to be instituted does not operate as a ground for granting a stay.
Since the MB v MB case is of public interest and importance, there is nothing wrong for the court to hear its proceeding in such urgency and by a single Court of Appeal judge (YA Raus Sharif): sec.44 of the Courts of Judicature Act 1964, rule 13. Nothing bars a court, in appropriate circumstances, from exercising its inherent powers of granting a stay. With respect, I consider that there was ample materials and grounds for the Court of Appeal judge to have exercised his discretion by allowing the stay and his decision to do so was in no way contrary to earlier ruling of the High Court’s declaration. Thus whether a successful appeal to the MB would be rendered nugatory or academic by a refusal to stay execution, is a relevant consideration. (take note that I am not supporting the ‘musical chair’ in the legal battles of Perak but merely to express the legal standing of the situation).
What about a declaration or declaratory relief? Apa itu exactly? A few weeks back, a DAP lawyer claimed that a declaration by the court is not binding and of no force where parties cannot coerced to abide it – perhaps a definition I believe my learned friend quoted it from the dictionary to impress the media or in partisanship.
Legal purity would demand that a declaration as defined above was outside legal power are invalid or merely an opinion, but this does not lead to the conclusion that the decisions are for that reason not binding. The court make declaration on the rights of a party without provisions as to their enforcement. It has been noted that the remedy is available to ensure that an administrative board or other authority set up by Parliament makes its determination in accordance with the law. It should only be granted in respect of justiciable concerns. Previously there were decisions such as in Lim Kit Siang, Othman Saat and Nordin Salleh cases, involving declaration orders and was binding on the parties to the suit (as in sec 41 of the Specific Relief Act 1950).
As to the current situation, a unity government or a fresh election should be decided constructively considering Pakatan still maintain the support and sentiment in their favour since last election. To surrender? Well depending on the perspectives and it will be unwise to dance according to Pakatan’s tune. The crisis is an advantage for them to hold as a trump card for future election not only in Perak but nationwide. Perhaps a headline of “BN with the majority in the assembly gives in for the sake of the State” would creates an interesting history.
andyyong
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