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Wednesday February 10, 2010
By M.MAGESWARI, MAZWIN NIK ANIS and YUEN MEIKENG
Dr Zambry is valid Perak MB
PUTRAJAYA: Datuk Seri Dr Zambry Abdul Kadir is the rightful Perak Mentri Besar, the Federal Court ruled in a unanimous decision.
The five-man Bench found yesterday that the Court of Appeal was justified in reversing the High Court’s May 11 judgement which declared Datuk Seri Mohammad Nizar Jamaluddin as Mentri Besar.
The apex court, in a landmark decision, ruled that the question of confidence in the Mentri Besar can be determined by a means other than a vote of no-confidence in the state assembly.
The court also ruled that if the Mentri Besar refused to tender the state executive council’s resignation after he had lost the confidence of the assembly, he and the exco were deemed to have vacated their offices.
The five judges were Court of Appeal president Justice Alauddin Mohd Sheriff, Chief Judge of Malaya Justice Arifin Zakaria, Federal Court judges Justices Zulkefli Ahmad Makinudin, Mohd Ghazali Mohd Yusoff and Abdull Hamid Embong.
Justice Arifin, who read out the decision for about an hour, said the Sultan of Perak, in the matter of dissolution of the state assembly, did not act on advice of the exco. It was within his absolute discretion to do so, he said.
“As such, evidence of loss of confidence in the Mentri Besar may be gathered from other extraneous sources provided.
“Such sources, we think, should include the admission by the Mentri Besar himself and/or representatives made by members of the legislative assembly that the Mentri Besar no longer enjoys the support of the majority of the members of the legislative assembly,” he said.
He said the Court of Appeal had held in this case that there was such an admission by Nizar when he sought dissolution of the state assembly.
Furthermore, what was beyond dispute was the demonstration of support by the 31 members of the assembly for Barisan Nasional.
Justice Arifin held that Nizar had made a request to the Sultan of Perak to dissolve the assembly under Article 16(6) of the Perak Constitution, and not under Article 36(2).
Article 16(6) states that if the Mentri Besar ceases to command the confidence of the majority of the legislative assembly members then, unless at his request the Ruler dissolves the legislative assembly, he shall tender the resignation of the exco.
Article 36(2) is a general provision for which a request for dissolution can be made when the five-year term of the assembly is drawing to an end.
He said when the Sultan of Perak refused to dissolve the assembly and directed Nizar to resign, it became incumbent for him to tender the resignation of the exco, which included the Mentri Besar.
“We, therefore, agree with the respondent (Dr Zambry) that the refusal on the part of the appellant (Nizar) to resign after having been directed to do by the Sultan of Perak clearly went against the express provisions of Article 16(6).
“It cannot be the intention of the framers of the State Constitution that in the circumstances, it is open to the appellant whether to resign or to stay on as Mentri Besar.
“The word ‘shall’, in our opinion, ought to be given a mandatory effect, otherwise, it would lead to political uncertainty in the state,” he said.
Nevertheless, Justice Arifin said it was not the end of the road for Nizar.
“It is always open to the appellant (Nizar) to bring a vote of no-confidence against the respondent in the legislative assembly or make a representation to the Sultan of Perak at any time if he thinks that the respondent (Dr Zambry) does not enjoy the support of the majority of the members of the LA,” he said.
The conflict over who is the rightful Mentri Besar started last year after three Pakatan Rakyat assemblymen quit their parties to become Barisan-friendly independents, causing the then state government to collapse.
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