I intended to write a post on this but a fellow member of the Bar, Art Harun, has written a far better piece and posted it up on his blog. So, instead of reinventing the wheel, allow me to direct my esteemed readers to:
For those who were tuning out as the Perak debacle became more and more convoluted, Nizar succeeded in his suit at the High Court and a number of declaratory reliefs were granted by the learned High Court Judge. On hearing this, Zambry’s solicitors made an oral application for stay and this was refused by the High Court judge.
Zambry’s solicitors then went to the Court of Appeal and obtained a stay against the declaratory orders made by the High Court judge. The question is – can anyone obtain a stay of a declaratory order? In his posts, Art Harun considered that very question and rightly expressed the view that one can’t obtain a stay of a declaratory order.
While we are on this topic, I thought it sensible to point out another particularly comprehensive analysis given by Justice RS French [incidentally the Chief Justice of the High Court of Australia (the apex Court in Australia)], regarding the nature of declaratory reliefs, albeit within the Australian context, but which nevertheless remains quite applicable.
Of particular import is His Lordship’s reference to a decision made in Arnhem Land Aboriginal Land Trust v Northern Territory of Australia  FCAFC 31, given on 16 March 2007 where the Full Court of the Federal Court refused to grant a CONSENT ORDER staying a declaratory judgment as “… the basic logic [is] that there is nothing about a declaratory order that can be stayed.”
All I can say is that from where I stand, it looks like we are in for some stormy weather come 18th. May, 2009 – the date fixed for the hearing of Nizar’s stay application at the Court of Appeal.
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