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PUTRAJAYA: Datuk Seri Dr Zambry Abdul Kadir is the valid Perak mentri besar, the Federal Court ruled unanimously.
In a landmark ruling Tuesday, the apex court said that the question of confidence in the mentri besar may be determined by means other than a vote of no-confidence in the state legislative assembly as stipulated under Article 16(6) of the Perak Constitution.
The Bench also ruled that if the mentri besar refuses to tender the resignation of the executive council (exco) under Article 16(6), the mentri besar and exco members are deemed to have vacated their respective offices.
Chief Judge of Malaya Justice Arifin Zakaria, who read out the decision which took an hour, said the Bench found that the Court of Appeal was justified in reversing the High Court decision which had earlier declared Datuk Seri Mohammad Nizar Jamaluddin as the rightful Perak mentri besar.
“We agree that 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 the present case,” he said.
In elaborating, Justice Arifin said the Sultan of Perak does not act on advice of the exco in the matter of dissolving the state legislative assembly and that it was his absoulte discretion to do so.
“There is nothing in Article 16(6) or in any other provisions of the State Constitution stipulating that loss of confidence in the mentri besar may only be established through a vote in the legislative assembly.
“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 representations made by members of the legislative assembly that the mentri besar no longer enjoys the support of the majority of the members of the assembly,” he said.
In the present case, he said, the Court of Appeal held that there was such an admission by Mohammad Nizar and what is beyond dispute is the demonstration of support by the 31 members of the legislative assembly for the Barisan Nasional.
In explaining the grounds, Justice Arifin said Mohammad Nizar had made a request to the Sultan of Perak to dissolve the state legislative assembly under Article 16 (6) of the Perak Constitution and not under Article 36(2) of the Constitution.
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.
Article 16(6) states that if the mentri besar ceases to command the confidence of the majority of the legislative assembly, then, unless at his request the Ruler dissolves the legislative assembly, he shall tender the resignation of the exco.
In elaborating, Justice Arifin said it was incumbent for Mohammad Nizar to tender the resignation of the exco.
“The term executive council by definition includes the mentri besar. We, therefore, agree with the respondent (Dr Zambry) that the refusal on the part of the appellant (Mohammad Nizar) to resign after having been directed to do so by His Royal Highness 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 politicial uncertainty in the state,” he said.
Justice Arifin said Mohammad Nizar cannot continue to govern after having lost the support of the majority and that the Ruler was entitled to appoint a new mentri besar until Article 16 (6) of the Perak Constitution.
“To allow him (Mohammad Nizar to govern) would be going against the basic principles of democracy.
“However, we would add that this by no means is the end of the matter, as it is always open to the appellant (Mohammad 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 does not enjoy the support of the majority of the members of the legislative assembly,” he said.
In dismissing the appeal by Mohammad Nizar in front of a packed courtroom, Justice Arifin said the Bench would not make any orders as to costs.
In the five-man panel were Court of Appeal president Justice Alauddin Mohd Sheriff and Federal Court judges Justices Zulkefli Ahmad Makinudin, Mohd Ghazali Mohd Yusoff and Abdull Hamid Embong.
Rejoicing over the victory, lead counsel for Dr Zambry, Datuk Cecil Abraham, said this decision binds other state governments and the Federal Government as well.
Datuk Mohd Hafarizam Harun, who held a watching brief for the Barisan, said: “This is a landmark ruling by the highest court of the land and will definitely be used as a precedent for Commonwealth countries.
“We have developed our constitutional law in Malaysia to the extent that the case of Stephen Kalong Ningkan vs Tun Abang Haji Openg and Tawi Sli in Sarawak (in which the trial judge ruled that the Governor may dismiss ministers but may not dismiss the chief minister under any circumstances) -- is no longer good law,” he said.
Attorney-General Tan Sri Abdul Gani Patail, who acted as intervener, said the ruling showed that the Sultan of Perak, as head of the state, was right in appointing Dr Zambry as Perak mentri besar.
“It is a very clear judgment and very sound reasoning. There is no doubt about it. What has been done was that the Court of Appeal’s decision that Dr Zambry is the rightful mentri besar was reaffirmed. There is no issue of something unclear (over his status),” he said.
To a question if the ruling showed that Perak is under absolute monarchy, Abdul Gani said it was not a right statement and the people had to read the Perak Constitution to know that “everybody, including the judiciary, has a place” in the system.
On May 11 last year, High Court (Appellate and Special Powers) judge Justice Abdul Aziz Abdul Rahim granted a declaratory relief to Mohammad Nizar that he was the rightful mentri besar at all material times and ruled that his office had not been vacated.
The trial judge held that a vote of no-confidence on the floor of the assembly is required to remove the mentri besar.
However, following an appeal by Dr Zambry, the Court of Appeal’s three-man panel on May 22 last year unanimously declared him the rightful mentri besar.
The Court of Appeal held that Mohammad Nizar had ceased to command the confidence of the majority of the Perak state assembly.
In his suit filed on Feb 13, Mohammad Nizar, a PAS member, challenged the legitimacy of Dr Zambry and the new state government.
The apex court had on last July 9 allowed Mohammad Nizar to appeal against the Court of Appeal’s decision declaring his successor as the valid mentri besar.
On Nov 5, last year, Nizar failed in his bid to have a full panel of 11 judges to hear his appeal in the apex court.
Aftermath A calm Mohammad Nizar told reporters that the decision was “not unexpected” and that he and his team would need to study the written judgement before deciding what to do next.
The conflict over who was the rightful Mentri Besar arose last year after three Pakatan assemblymen quit their parties to become independent state assemblymen, leaving Pakatan and Barisan with 28 assemblymen each in the 59-seat Perak legislative assembly.
The Sultan of Perak then named Dr Zambry the mentri besar of Perak.
Dr Zambry, who was not in court, later told reporters that the court's decision would allow the Barisan to continue working for the people.
Later Tuesday Prime Minister Datuk Seri Najib Tun Razak said that it was time to work for the development of the state.
"Any unhappiness with Barisan running the state can be raised at the next elections,” he said.
Meanwhile, Dr Zambry's lawyers came out of the court room waving happily to the crowd.
Supporters of both sides erupted into shouting slogans with Dr Zambry supporters chanting "Hidup BN" while Nizar's supporters shouted "tipu, Zambry penakut, MB haram.:"
Earlier, supporters of both Dr Zambry and Nizar had gathered outside the court as early as 7am with some of them shouting ‘bubar DUN’ and ‘hidup rakyat’.
FRU personnel had a tough time managing the crowd. In the end, Dr Zambry’s supporters were kept to the left while Nizar’s supporters moved to the right of the area leading to the court room.
Chronology of events in the Perak political crisis (Bernama)
March 17 2008: Mohammad Nizar, the state assemblyman for Pasir Panjang, is sworn is as mentri besar of Perak.
Feb 1 2009: Perak State Assembly Speaker V. Sivakumar announces he has received the resignation letters of Behrang assemblyman Jamaluddin Mat Radzi and Changkat Jering assemblyman Mohd Osman Jailu. Both assemblymen deny they have resigned.
Feb 3 2009: The Election Commission decides that the Behrang and Changkat Jering seats are not vacated and as such, by-elections are not required for the constituencies.
Feb 4 2009: Then Deputy Prime Minister Datuk Seri Najib Tun Razak announces that the Perak Barisan Nasional has a simple majority to set up the state government after two PKR assemblymen and one DAP assemblyman quit their parties to become independent assemblyman friendly to the Barisan. Perak Barisan and Pakatan Rakyat both have 28 seats each in the state assembly while three assemblymen are independents.
Feb 5 2009: A media statement issued by the office of the Sultan of Perak states that the sultan will not dissolve the state assembly and has asked Mohammad Nizar and the state executive council to resign or their positions will be deemed to have become vacant.
Feb 6 2009: Dr Zambry is appointed the 11th mentri besar of Perak, replacing Mohammad Nizar. Barisan officially takes over the administration of the Perak government.
Feb 13 2009: Mohammad Nizar initiates legal action, seeking a court declaration that he is still the rightful mentri besar and an injunction prohibiting Dr Zambry from discharging his duties as the mentri besar.
March 6 2009: High Court Judge Lau Bee Lan refers to the Federal Court for determination of constitutional issues in the summons filed by Mohammad Nizar challenging the validity of the appointment of Dr Zambry as the mentri besar of Perak.
March 23 2009: The Federal Court decides that the Mohammad Nizar vs Dr Zambry case be sent back to the High Court.
April 3 2009: Mohammad Nizar is given the “green light” by the Kuala Lumpur High Court to challenge the validity of the appointment of Dr Zambry as the Perak mentri besar following a ruling by Justice Abdul Aziz Abdul Rahim that the application filed by Mohammad Nizar in February was not frivolous or vexatious and that there was a prima facie case to be argued in court.
May 11 2009: The High Court declares Mohammad Nizar the rightful mentri besar of Perak after finding that he had never vacated his post as he had not lost the confidence of the majority of the state assemblymen.
May 12 2009: Dr Zambry remains mentri besar until the Court of Appeal hears his appeal against the High Court decision declaring Mohammad Nizar as the right mentri besar following Court of Appeal Judge Datuk Ramly Ali’s decision allowing Dr Zambry’s application to stay the execution of the High Court ruling.
May 22 2009: The decision of the High Court is dismissed by the Court of Appeal which declares Dr Zambry the rightful mentri besar in accordance with the Constitution.
June 19 2009: Mohammad Nizar files a leave application to the Federal Court to challenge the Court of Appeal decision.
Nov 5 2009: A five-man bench of the Federal Court adjourns its decision to Feb 9, 2010 after hearing submissions.
Feb 9 2010: The five-member panel of the Federal Court rules that Dr Zambry is the rightful Perak mentri besar.
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