June 27, 2009
PUTRAJAYA: Sultan Azlan Shah was right in not dissolving the Perak State Legislative Assembly in February because it was barely one year old, Court of Appeal Judge Datuk Md Raus Sharif said.
In his 49-page judgement dated June 2 released Friday, Justice Raus said that in order for a dissolution of the assembly to take effect under Article 36(2) of the Perak State Constitution as requested by the then Mentri Besar Datuk Seri Mohammad Nizar Jamaluddin, the assembly must be in the conclusion of the five-year term when a general election was contemplated.
"It was well-known fact that the general election had been held barely one year ago," he said, adding that Nizar had applied the wrong provision when requesting for the dissolution of the assembly.
He said Article 36 of the Perak Constitution was only a general provision empowering the Sultan to prorogue or dissolve the assembly after the conclusion of the five-year term.
Nizar should have instead requested for dissolution of the assembly under Article 16(6) which states that if the mentri besar loses the confidence of the majority of the members of the assembly, then, unless at his request of the Sultan, dissolves the assembly, he shall tender the resignation of the Executive Council.
Raus also said that the question of Perak having two mentri besar did not arise because Article 16(6) demands that once the mentri besar was made to know that he had lost the confidence of the majority of the members of the assembly, he should take the honourable way out by tendering his resignation.
"If the mentri besar refuses or does not tender his resignation and the resignation of the Executive Council, as had happened in this case, the fact remains that the Executive Council is dissolved (which includes the mentri besar) on account of the mentri besar losing the confidence of the majority of the members of the legislative assembly," he said.
Therefore, it was unnecessary for the Sultan to remove Nizar and the other members of the Executive Council, he said.
He said Datuk Seri Dr Zambry Abdul Kadir's appointment as the mentri besar to succeed Nizar was made according to the Perak Constitution and established democratic practice and convention.
"The Sultan of Perak in exercise of his royal prerogative under Article 16(2) of the Perak State Constitution is at liberty to appoint another mentri besar to replace Nizar," he said.
Raus said the Sultan, however, must appoint someone who has the command and the confidence of the majority of the members of the assembly and in this case, there was no doubt that Zambry had the majority support of 31 members out of 59 members of the assembly.
"The circumstances in the present case clearly shows that on Feb 5, Nizar no longer had the confidence of the majority of members of the assembly. There were signed letters from 31 members pledging support to Barisan Nasional which were presented to the Sultan," he said.
He also said Article 16(6) did not express mandatory requirement that there must be a motion of no confidence passed by the assembly against a mentri besar before he ceases to command the confidence of the majority of the members.
"The fact that a mentri besar ceases to command the confidence of the majority of the members of the assembly can be established by other means. It cannot solely be confined to the vote taken in the assembly," he said.
Meanwhile, Justice Ahmad Maarop who presided over the case with with Raus and Datuk Zainun Ali said Nizar must tender his resignation once he lost the confidence of the majority of the members of the assembly and when Sultan refused his request to dissolve the assembly.
"His refusal to tender his resignation and the resignation of the Executive Council was not merely a breach of convention and undemocratic but more importantly, it contravened the clear mandatory constitutional command under Article 16(6) of the Perak Constitution and, therefore, unconstitutional.
"Thus, since he had ceased to command the confidence of the majority of the members of the assembly, it is implicit that on his refusal to tender the resignation, the Executive Council is thereby dissolved and the office of the menteri besar vacated."
Ahmad said he was also of the view that the Sultan's power to dismiss the mentri besar was implicit in the event the mentri besar refused to resign although he has ceased to command the confidence of the majority and the Sultan withholds his request to dissolve the assembly.
"In my judgment, the situation confronting His Royal Highness in the state of Perak was one such situation, and His Royal Highness had, in that critical situation rightly exercised his constitutional powers provided under the State Constitution, which exercise was without any doubt, solely for the best interest of the people of Perak," he said.
Datuk Zainun Ali's judgement is expected to be released on Monday.
The three Court of Appeal judges had on May 22 ruled that Zambry was the legitimate mentri besar of Perak, reversing an earlier High Court decision in Nizar's favour.
The Federal Court is to hear Nizar's application for leave to appeal on July 9 and 10.
Nizar, 52, was appointed Perak mentri besar on March 17 last year after the DAP-Parti Keadilan Rakyat-Pas alliance won 31 seats in the state assembly in 12th general election.
Less than a year later, they lost three members who declared themselves independent and lent support to Barisan Nasional that then had 28 seats in the assembly after a representative who had jumped ship earlier made an about turn.
Sultan Azlan Shah then asked Nizar to step down and swore in Zambry after finding that Barisan Nasional had the majority in the state assembly.
Following this, Nizar initiated the legal action to seek a declaration he is the rightful menteri besar and an injunction to bar Zambry from discharging his duties. - Bernama