Notes of decision in Zambry v Nizar Case (CoA) - The Malaysian Insider

By Edmund Bon

MAY 23 — These are the notes taken of the Court of Appeal’s Decision in the MB v MB matter delivered orally on 22.5.2009 by Raus Sharif JCA on behalf of the His Lordship, Zainun Ali JCA and Ahmad Maarop JCA.

Any mistakes herein are mine.

Firstly, we would like to thank counsel in assisting us to arrive at our decision. The decision is unanimous and these are our views:

1. The granting or withholding of consent to dissolve the State Assembly is a royal prerogative to be exercised by His Royal Highness (HRH).

2. From the facts of this case, the request made by the Respondent (Nizar) to dissolve the State Assembly was made under Article 16(6) of the Perak Constitution, and not under Article 36(2).

3. Under Article 16(6) of the Perak Constitution, upon the exercise of HRH’s royal prerogative to withhold consent for dissolution, the Respondent shall tender his resignation.

4. There is no mandatory, express requirement that provides for a motion of no-confidence to be passed in the State Assembly against the Respondent before he ceases to command the confidence of the majority.

5. The fact that the Respondent has ceased to command the confidence of the majority may be ascertained through extraneous means. We approve the case of Amir Kahar. The case of Stephen Kalong Ningkan, adopted by the learned Judge (High Court), is distinguishable on its facts.

6. HRH was right to make enquiries to satisfy himself whether the Respondent had ceased to command the confidence of the majority before deciding on the Respondent’s request for dissolution.

7. On the facts of the case, it is clear that the Respondent had ceased to command the confidence of the majority thus HRH, in accordance with Article 16(6), was right to appoint the Appellant (Zambry) as Mentri Besar of Perak after being satisfied that the Appellant commanded the confidence of the majority.

8. The learned Judge (High Court) erred in law when interpreting the Perak Constitution. He failed to properly appreciate the evidence rendering his decision clearly wrong.

9. The appeal is allowed. The orders of the High Court are set aside.

… [Exchange between counsel for Nizar and Zambry with the Bench on the issue of costs.]

No order as to cost.

… [Exchange between counsel for Nizar and Zambry with the Bench on ancillary matters:

Haji Sulaiman: My Lords and My Lady, I have been instructed to appeal the decision. Due to the urgency of the matter, I pray that Your Lordships and Ladyship supply us with the grounds of judgment as soon as possible.

Raus Sharif JCA: I have tried to prepare the full grounds last night but could not do so. Will supply in a week's time. What about the application to set aside the stay?

Haji Sulaiman: We leave it to the Court to decide.

Raus Sharif JCA: Isn't it academic already?

Haji Sulaiman: We are of the view that the Court of Appeal was wrong to grant the stay. To say that we concede is not entirely correct but it has served no purpose anymore. We therefore leave it to Your Lordships and Ladyship to decide. Alternatively, for a Court to to fix a hearing date.

Cecil Abraham: We seek that the application be dismissed.

Raus Sharif JCA: Enclosure 9(a) is dismissed.

Haji Sulaiman: My Lord, it should be struck out as it has not been heard on the merits.

Raus Sharif JCA: Yes. Application struck out.] — loyarburok.com