May 21, 2009 By LISA GOH and YENG AI CHUN
PUTRAJAYA: The Court of Appeal will deliver its ruling at 3:30pm Friday on Datuk Seri Dr Zambry Abd Kadir’s appeal against the High Court decision declaring Datuk Seri Mohd Mohammad Nizar Jamaluddin the rightful mentri besar of Perak.
The three-man panel - comprising Justices Datuk Ahmad Maarop, Datuk Md Raus Sharif and Zainun Ali - announced this after hearing submissions and rebuttals from both sides earlier Thursday.
Among the issues it will have to consider is whether a mentri besar can be removed from office without a vote of no-confidence in the State Legislative Assembly, and how far the Ruler’s discretionary powers stretch.
Earlier, Nizar’s lawyer Sulaiman Abdullah argued that the question of Nizar resigning as mentri besar of Perak cannot arise because there had not been a vote of no-confidence against his leadership in the Assembly.
“The only way a mentri besar can be removed from office is by such a vote on the floor of the Assembly,” he said.
A key argument on both sides was what transpired between Nizar and the Sultan of Perak, Sultan Azlan Shah, on Feb 4, on which day Nizar had sought -- but was not granted -- the Ruler’s consent to dissolve the Assembly to pave the way for fresh state elections.
Nizar waving to his supporters as he leaves the Court of Appeal after the hearing
Zambry’s lawyers had argued that this was tantamount to a loss of confidence in Nizar’s leadership, and therefore the Sultan had acted correctly in asking Nizar to step down as mentri besar.
“If His Royal Highness has the power to dismiss the mentri besar, it would come under Article 18 (of the State Constitution), but it does not. It does not come under any Article,” said Sulaiman, who began his submission at 2pm.
Article 18 covers the constitutional discretion of the Sultan, including the right to refuse a premature dissolution.
“If what they say is acceptable, then the Prime Minister can be woken up at 2am and be told that the Yang DiPertuan Agong has issued a statement that he has to resign because he has lost the confidence of the majority,” Sulaiman said.
“We are not challenging His Royal Highness’ prerogative, but it’s impossible to jump from there to say he has lost the confidence of the majority and has to resign,” he said, in urging the Appellate Court to no “disturb” the High Court’s ruling.
The Court of Appeal adjourned before it had time to hear Nizar’s application to set aside a stay of execution order granted to Zambry on the High Court’s decision on May 12. The order was handed down by Justice Ramly Ali.
Earlier, Dr Zambry’s lawyer Datuk Cecil Abraham said the High Court had made an “incomplete and inaccurate” ruling on May 11 when it declared Nizar the rightful mentri besar of Perak.
Abraham argued that High Court (Appellate and Special Powers) judge Justice Abdul Aziz Abdul Rahim had not taken into account “contemporaneous evidence.”
He also said that the Stephen Kalong Ningkan’s case, which was adopted by Justice Abdul Aziz, was wrongly decided upon because there had been no request for a dissolution of the state assembly.
Abraham argued that there was no deadlock in the Perak State Legislative Assembly on Feb 4 when Nizar had an audience with Sultan Azlan Shah.
He noted that on Feb 5, the Ruler met Prime Minister Datuk Seri Najib Tun Razak, Barisan Nasional assemblymen and the three independent reps whose resignation from their Pakatan member parties led to the state’s political impasse.
The three independents on that day pledged their loyalty to Barisan, which led the Sultan to determine the coalition had the majority in the 59-seat Assembly.
Abraham also argued that the Sultan can “extraneously, without a vote of no-confidence, ascertain the loss of majority.”
He reiterated the argument he made at the High Court ealier, that under Article 16(6) of the Perak Constitution, once the ruler refused Nizar’s request for dissolution, it was clear that “he shall tender the resignation of the Executive Council.”
“There is no express provision that a motion of no-confidence in the State Legislative Assembly is the only way to remove a mentri besar,” he said, adding that “there were other means, such as the interview by the Sultan.”
“Article 16(6) is clear and unambiguous that Nizar should tender his resignation, it doesn’t say he needs to go before an Assembly vote.”
In its ruling last Monday, the High Court had referred to Article 16(7) of the Perak Constitution, which “says that the mentri besar does not hold office at the pleasure of His Royal Highness.”
In his submission Attorney-General Tan Sri Abdul Gani Patail, acting as intervener in the case, said that under the law, the Perak State Assembly Speaker was only allowed to cast a vote to avoid equality in the House.
Discounting the Speaker, at that juncture, Pakatan had 27 votes and Barisan had 28 votes. “There was no deadlock and without a majority, there can be no dissolution,” he said.
“Why blame His Royal Highness as though he did something wrong? You came for a dissolution, but he had to do his duty according to the constitutional framework,” Abdul Gani submitted.
Justice Md Rauf Shariff said the court would only decide on whether Justice Abdul Aziz had intepreted the Perak Constitution rightly or wrongly.
“If he intepreted it correctly, we will dismiss the appeal. If not, we’ll accept the appeal,” he said.
Nizar and Zambry have been embroiled in a legal battle since February when Zambry was appointed mentri besar, with both claiming office to the state’s chief executive position.
On Feb 13, Nizar filed for a judicial review against Zambry’s appointment, seeking a declaration that he was the rightful Perak mentri besar “at all material times”, and an injunction to bar Zambry from carrying out the duties of the MB.
On May 11, the High Court ruled in favour of Nizar, declaring that his office had not been vacated, rendering Zambry’s appointment as null and void.
Justice Abdul Aziz said the Sultan could remove members of the Perak Executive Council from their office but not the mentri besar.
“Article 16(7) of the Perak Constitution says that the mentri besar does not hold office at the pleasure of His Royal Highness,” the judge said in his 78-page judgment that was made available to the press earlier this week.
Once a mentri besar is appointed, he is only answerable to the state legislative assembly, he said.
“I hold the view that a vote of no-confidence on the floor of the assembly is required to remove the mentri besar,” Justice Abdul Aziz said.
Following an application by Zambry, the Court of Appeal ruled on Tuesday that he remained the Perak mentri besar until his appeal against the High Court ruling was disposed of.