Hafiz Yatim | May 5, 09 5:46pm
Barisan Nasional's Zambry Abdul Kadir's appointment as the Perak menteri besar is unconstitutional, the Kuala Lumpur High Court was told today.
Sulaiman Abdullah, the lead counsel for ousted menteri besar Mohammad Nizar Jamaluddin, said this was because Zambry did not fulfil the requirements to warrant his appointment under the Perak constitution.
"This is prevalent in the questions we are asking the High Court in this judicial review application.
"Mohammad Nizar had advised the state legislative assembly to be dissolved. However, the ruler did not consent to this. Furthermore, there was no motion of no-confidence against him at the assembly and he chose not to resign.
"Hence, the position of Zambry as menteri besar can be said to be unconstitutional to provisions of the Perak Constitution," he said.
Mohammad Nizar, 52, who is the applicant in the case, had earlier testified in court during re-examination by his lawyer Ranjit Singh that he did not agree to resign the menteri besar's post because of the same reasons stated above.
He filed the judicial review on Feb 13 to seek a declaration that he is still the rightful menteri besar and an injunction to bar Zambry who was appointed menteri besar on Feb 6 from discharging his duties.
Sulaiman also submitted that the Perak constitution being the highest law in Perak is also a source of legal authority and the appointment of the menteri besar must be based on it.
"If at all, the menteri besar has ceased to command the confidence of the majority of the assembly, this must be demonstrated through a vote of no confidence at the assembly," he said.
"It cannot be held anywhere else but the assembly," the senior counsel said.
Counsel cites Sarawak case
He said the Perak constitution like the Sarawak constitution in the Stephen Kalong Ningkan's case is very clear on the following points which support Mohammad Nizar's case namely:-
- it does not confer the power to dismiss the menteri besar,
- it does not confer the discretion to appoint two persons to the same office (menteri besar), if the menteri besar ceases to command the confidence of the majority of the assembly, it must be demonstrated through a vote of no confidence at the assembly.
Sulaiman said since the Ningkan's case is accepted, the scenario is the same as in Mohammad Nizar's case and this court should follow and adopt as well as apply the decision.
The senior counsel also told the court that the menteri besar does not hold the office at the Sultan of Perak's pleasure but based on the confidence of the members of the assembly.
The Perak impasse since February has been a bone of contention leading to the state assembly sitting scheduled this Thursday where fireworks is expected between BN and Pakatan Rakyat assemblypersons.
The impasse is the result of three assemblypersons namely Mohd Osman Jailu (Changkat Jering), Jamaluddin Mohd Radzi (Behrang) and Hee Yit Foong (Jelapang) expressing support for BN.
Sulaiman said he adopted the findings of this court when Justice Abdul Aziz Abd Rahim ruled on April 3 in granting leave, that the issue at hand was due to Mohammad Nizar seeing the Perak sultan to apply for the dissolution of the state assembly to settle the present impasse.
However the ruler did not accede to the request, and instead appointed Zambry as the new menteri besar.
Disagrees with AG's argument
The senior counsel said he did not agree with Attorney-General Abdul Gani Patail's submission that the request for the dissolution of the assembly cannot be made when it was quite clear that the present menteri besar was losing the confidence of the assembly.
Sulaiman said: "If that was the case, every time the chief executive or the prime minister asked for a dissolution from the Yang di-Pertuan Agong it would seem that he had no confidence of the house."
"That is not always the case, as it is the menteri besar's prerogative to apply for a snap elections as in this case to prevent the present deadlock," he added.
Sulaiman also cited passages from Sultan Azlan Shah's book 'Constitutional monarchy: Rule of Law and good governance' which among others stated "that in no way can the ruler withhold consent for the dissolution of the house as the role of the ruler is just informal."
Sultan Azlan Shah was a former Lord President in the country.
Meanwhile, Abdul Gani in his submission said Mohammad Nizar is deemed to have been removed from his post as menteri besar by the fact that the sultan did not accede to his request to dissolve the assembly.
Abdul Gani also said the Pakatan Rakyat leader's removal was lawfully made under Article 16(6) of the Perak Constitution as he suffered a sudden loss of confidence of the majority in the assembly.
He said the Sultan performed his duty under the Perak Constitution, and had carefully considered the facts and circumstances following his meeting with the 31 BN assemblypersons at Istana Kinta, including the three who had defected.
"This showed BN had the majority in the state assembly. The Sultan of Perak had clearly performed his function in the most honourable way that I have seen," said Abdul Gani, who appeared as an intervener in this proceedings.
'This is the democratic process'
Abdul Gani also submitted that the Sultan made sure there were no irregularities in his decision when he met and interviewed Mohd Osman, Jamaluddin and Hee to make sure they supported BN.
He also submitted that the word 'shall resign' in Article 16(6) means 'mandatory'. It is not the intention of the legislature that a menteri besar can choose not to resign.
If you lost the majority, then what do you do, do you still hang around? The moment he loses his majority, he must resign. We cannot have a menteri besar who is not having the confidence of the majority," he reasoned.
Abdul Gani said the Sultan never sacked a menteri besar, adding that it was honourable for a menteri besar to resign when he lost the confidence of the majority.
"That's the law and that is the democratic process," he said.
Abdul Gani said there was no constitutional provision requiring a motion of no-confidence to be issued before Mohammad Nizar could be removed from office.
Hearing continues tomorrow with continuation of Sulaiman's submission followed by a reply by Zambry's counsel Cecil Abraham