2010/02/09
PUTRAJAYA: The Barisan Nasional (BN) will continue to rule Perak after the Federal Court here today declared Datuk Seri Dr Zambry Abdul Kadir the rightful Menteri Besar.
A five-man bench led by Court of Appeal president Tan Sri Alauddin Mohd Sheriff ruled that Sultan Azlan Shah had exercised his royal prerogative to swear-in Dr Zambry as Menteri besar after ascertaining that Dr Zambry's opponent, Datuk Seri Mohammad Nizar Jamaluddin of Pakatan Rakyat, had lost the confidence of the majority of the assemblymen.
Chief Judge of Malaya Tan Sri Arifin Zakaria, who delivered the unanimous judgment, held that there was nothing in Article 16 (6) of the Perak State Constitution requiring that a vote of no confidence in the menteri besar may only be established through a vote in the Legislative Assembly.
"Evidence of loss of confidence in the menteri besar may be gathered from other extraneous sources provided. Such sources, we think, should include the admission by the menteri besar himself and/or representations made by members of the legislative assembly that the menteri besar no longer enjoys the support of the majority of the members of the assembly," he said.
The Court of Appeal, in this case, had held that there was evidence of such admission by Mohammad Nizar himself, Arifin said, adding that what was beyond dispute was the demonstration of support by the 31 members of the legislative assembly for the BN, hence, giving the BN a clear majority in the assembly.
"All these clearly point to the loss of confidence of the majority of the members of the legislative assembly in the leadership of Mohammad Nizar as the menteri besar," he said. In his 41-page judgment, Arifin said it was, therefore, mandatory of Mohammad Nizar to tender his resignation of the executive council, once they had lost the confidence of the house.
"Nizar cannot continue to govern after having lost the support of the majority," he said, adding that to allow him to do so would be going against the basic principle of democracy.
"However, we would add that this by no means is the end of the matter, as it is always open to Mohammad Nizar to bring a vote of no confidence against Dr Zambry in the legislative assembly or make a representation to Sultan Azlan Shah at any time if he thinks that Dr Zambry does not enjoy the support of the majority of the members of the assembly," Arifin said.
He also said that Mohammad Nizar's refusal to resign after having been directed to do so by the ruler clearly went against the provisions of Article 16 (6) of the State Constitution.
The other three judges were Federal Court judges Datuk Zulkefli Ahmad Makinudin, Datuk Wira Ghazali Mohd Yusoff and Datuk Abdull Hamid Embong.
In construing Article 16 (6), Arifin said: "It cannot be the intention of the framers of the State Constitution that, in the circumstances, it is open to the appellant (Mohammad Nizar) whether to resign or to stay on as menteri besar.
Article 16 (6) states: "If the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly, then, unless at his request, his Royal Highness dissolves the legislative assembly, he shall tender the resignation of the executive council".
Arifin said the word "shall" (in Article 16 (6)) ought to be given a mandatory effect, otherwise, it would lead to political uncertainty in the state. The conflict over who is the rightful menteri besar arose last year after three Pakatan assemblymen quit their parties to become BN-friendly independents, while the fourth jumped back from PKR to Umno, thus leaving the two sides with 28 assemblymen each in the 59-seat assembly.
They were Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Mohd Jailu (Changkat Jering) who resigned from PKR on Jan 30 and declared themselves as BN-friendly independents. DAP assemblyman Hee Yit Foong (Jelapang) followed in their footsteps four days later.
Mohammad Nizar, the Pasir Panjang state asemblyman, was appointed menteri besar after the DAP-PKR-PAS alliance won 31 seats in the 12th general election on March 8, 2008. The Pakatan government in Perak collapsed on Feb 2 last year after Sultan Azlan Shah requested Mohammad Nizar to step down after ascertaining that the BN had commanded the majority in the legislative assembly by interviewing 31 assemblymen.
Sultan Azlan Shah subsequently appointed Dr Zambry, the 47-year-old Pangkor assemblyman, as the new menteri besar to succeed Mohammad Nizar. Mohammad Nizar, 52, commenced legal proceedings on Feb 13 last year, seeking a declaration that he is at all material times the rightful menteri besar of Perak and an injunction to bar Dr Zambry from discharging his duties as the menteri besar.
Mohammad Nizar was reinstated as the menteri besar after he won the case at the High Court last year which had ruled that the BN had failed to take a vote of no-confidence against him in the legislative assembly despite having the majority.
However, it was back to status quo when the Court of Appeal reversed that decision on May 12 and declared Dr Zambry's appointment as Perak menteri besar constitutional.
In today's judgment, Arifin said the appellate court was justified in coming to its finding that Mohammad Nizar's request for a dissolution of the assembly was made under Article 16 (6) on the grounds that he had lost the confidence of the majority of the house and not under Article 32 (2), as claimed by Mohammad Nizar to avoid a possible deadlock in the house.
"This is a clear case where the trial judge failed to judicially appreciate the evidence before him. Such a failure justifies an appellate intervention as was rightly done by the Court of Appeal in this case," said Arifin.
Arifin said that the decision whether or not to dissolve the legislative assembly was at the absolute discretion of the sultan and that the ruler did not act on the advice of the executive council on the dissolution.
Dr Zambry, was not present in court. However, after the verdict, his counsel, Datuk Cecil Abraham, commented that today's judgment was binding on the federal government and other state governments.
Meanwhile, Attorney-General Tan Sri Abdul Gani Patail said it was a very clear judgment and a sound reasoning.
The judgment took about an hour starting at 10.10am to deliver.
Dr Zambry was represented by Abraham and Sunil Abraham while a team of 11 lawyers led by Sulaiman Abdullah represented Mohammad Nizar.
Abdul Gani, deputy public prosecutor Tun Abdul Majid Tun Hamzah and senior federal counsel Datuk Kamaludin Md. Said, Datin Azizah Nawawi, Amarjeet Singh, Suzana Atan and Andi Razali Jaya A.Dadi appeared for the intervener.
Lawyer Cheng Poh Heng held a watching brief for the Malaysian Bar and a team of lawyers led by Datuk Hafarizam Harun appeared as watching brief counsel for the BN. -- BERNAMA
