(Nizar pic courtesy of theSun)
By Deborah Loh and Shanon Shah
thenutgraph.com
Nizar hugs his wife Datin Seri Fatimah Taat after the court decision today
KUALA LUMPUR, 11 May 2009: The Kuala Lumpur High Court today ruled that Datuk Seri Mohammad Nizar Jamaluddin is the rightful menteri besar of Perak, providing some relief to more than three months of uncertainty as to who should head the state government.
High Court (Appellate and Special Powers Division) judge Datuk Abdul Aziz Abd Rahim, said the menteri besar can only be dismissed by a no-confidence motion in the state legislative assembly.
"The stark fact is, there never was any vote of no-confidence taken in the legislative assembly.
"So how could one say that the applicant (Nizar) had ceased to command the majority confidence? Evidence as to the loss of confidence was taken from various sources and not a vote in the assembly," said Abdul Aziz.
Abdul Aziz, in his decision on the judicial review application filed by Nizar, also ruled that there was no vacancy in the menteri besar post.
"I am of the view that the office of the menteri besar of Perak has never become vacant or been vacated.
"Only in this manner (a vote of no-confidence) can the menteri besar be forced to resign."
Nizar was ousted after Barisan Nasional (BN)'s Datuk Seri Dr Zambry Abdul Kadir was sworn in as Perak menteri besar on 6 Feb following the BN takeover of the state government. The takeover was percipitated by the defection of three Pakatan Rakyat (PR) assemblypersons who opted to become BN-friendly independents, leading to PR losing its majority in the state assembly.
Nizar, who had sought an audience with the sultan of Perak on 5 May to request the dissolution of the state assembly but was turned down and instead ordered to step down as MB, filed suit against Zambry.
On 13 Feb, Nizar, 52, filed an application to the court for a declaration that he is at all material times the menteri besar of Perak. He also sought a declaration that Zambry has no right to hold the office of menteri besar.
MB "cannot be dismissed by sultan"
In his judgment, Abdul Aziz said the democratic thing for BN to have done after it secured the majority in the state assembly was to have requested the Perak Ruler to summon a special sitting for the assembly to pass a no-confidence vote on Nizar.
"Why didn't the BN [do this]? This would have been in accordance with the democratic process," Abdul Aziz said.
The judge said Article 16(7) of the state constitution state that the menteri besar did not hold office at the pleasure of the sultan, and only executive councillors did. As such, the MB could not be dismissed from office by the sultan.
He said the court was not disputing the sultan's prerogative to appoint an MB and to withhold consent to a dissolution request.
However, Abdul Aziz said once the MB was appointed, he was answerable to the legislative assembly "and no one else".
He said that Article 16(6) "was plain and clear" that it did not provide for the dismissal of the MB. This provision had been used by Zambry's counsel to argue that Nizar had lost the majority confidence when he sought the sultan's consent for dissolution.
Article 16(6) of the Perak Constitution states that: "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."
Abdul Gani Patail
(Source: agc.gov.my) Attorney-General Tan Sri Abdul Gani Patail, who was an intervener in the case for Zambry, had argued during the hearing that Nizar should have automatically resigned after the sultan had personally met the three independents to ascertain that BN had the majority numbers in the House.
Abdul Aziz said he agreed with Nizar's contention that he sought dissolution based on Article 36(2) of the state constitution, and not because he lost the majority confidence. Article 36(2) gives the sultan the power to summon the assembly, dissolve or prorogue it.
The judge also disagreed with Abdul Gani that the sultan was limited to dissolving the assembly under two circumstances — when the House reaches the end of its five-year term, and when the menteri besar loses the majority confidence.
"It is up to the menteri besar to choose his time to make the request (for dissolution). Once the request is made, it is up to His Royal Highness," Abdul Aziz said.
The judge also questioned the impartiality of state legal adviser Ahmad Kamal, who had submitted an affidavit to back Zambry's application.
Under cross-examination, Ahmad Kamal has said he was "instructed" by Zambry's counsel to submit the affidavit, which Abdul Aziz took as a sign that the state legal adviser was not completely neutral.
Abdul Aziz said a precedent had already been set by the Sarawak High Court in 1966 in Stephen Kalong Ningkan vs Tun Abang Haji Openg and Tawi Sli, whereby the Governor could not dismiss the chief minister and could not appoint a second CM while there was still one in office. The court had ruled that the only way for a CM to be dismissed was by way of a vote in the Council Negri.
Sulaiman AbdullahAfter the decision was announced, Zambry's lead counsel Datuk Cecil Abraham immediately applied for a stay of execution of the High Court's decision in order to file an appeal. However, Abdul Aziz rejected the verbal application for a stay, and asked Cecil to file a formal application. Zambry himself was not present in court today.
Zambry's lawyers want a stay to the court's declaration today in order to file for an appeal of the High Court decision.
Nizar's lead counsel Sulaiman Abdullah said the stay should not be granted as the Perak constitutional crisis needed to be resolved urgently. "Allowing a stay would only let it fester."
Meanwhile in PUTRAJAYA, Prime Minister Datuk Seri Najib Razak said the BN will appeal against the Kuala Lumpur High Court's decision, probably by tomorrow.
"We feel we have a strong case," he told Bernama after meeting Pemudah, the Special Task Force to Facilitate Business, at his office, here.
Asked what happens in Perak between now and pending the appeal, Najib said: "We must have a date [to appeal], probably tomorrow."
He called on the people in that state to remain calm and not get too excited with the latest development.
"Victory for the people"
As Abdul Aziz left the courtroom, a jubilant Nizar told reporters that he would immediately return to Ipoh to seek an audience with Perak Ruler Sultan Azlan Shah for a dissolution of the state assembly. However, it is believed that Sultan Azlan Shah is currently overseas, and that Nizar will probably seek an audience with the Regent Raja Nazrin Shah tomorrow morning in Kuala Kangsar.
"This is consonant with justice. This is the rule of law. It's a victory for the people of Malaysia who love democracy."
Nizar described Abdul Aziz as "a brave and courageous judge".
He also released a prepared press statement asking Zambry and the six executive councillors to vacate their posts with immediate effect in compliance with the court order.
Nizar also said that state legal adviser, Datuk Ahmad Kamal Md Shahid, is suspended with immediate effect. He also plans to call an exco meeting as soon as possible.
Additionally, Nizar's statement also said that all previous decisions made by Zambry and his exco were now subject to review (by the Pakatan Rakyat state government), although not to be invalidated until further notice.
However, the 7 May sitting in which the BN assemblypersons and independents had voted out speaker V Sivakumar and installed Datuk R Ganesan as new speaker, is not subject to review as it is considered illegal, Nizar said.
Decision hailed by PR
Numerous political party leaders also voiced their support for the High Court's decision.
In a media statement, Opposition Leader and PKR adviser Datuk Seri Anwar Ibrahim hailed the decision, saying it is "a victory for the rakyat and also the country's democratic system."
He said the decision "proved that the Federal Constitution is the highest law in the country," and that it is important for all government institutions to respect this.
"This includes the doctrine of separation of powers which clearly separates executive, judiciary and legislative powers," he said.
Anwar further said, "In line with this, it is important to recognise the 3 March 2009 assembly sitting under the tree and all resolutions passed on that day."
Anwar also called for fresh elections in Perak.
Lim (Pic by Roman888) In PENANG, Chief Minister Lim Guan Eng said the decision as "momentous" and "a victory for the people of Perak, democracy and justice".
He said in a statement that DAP reiterated its call for "an immediate dissolution of the Perak state assembly" and "fresh elections to allow the rakyat the right to choose their own government".
DAP Socialist Youth national chairperson and MP for Rasah, Loke Siew Fook, said in a statement, "This judgment proves that Pakatan Rakyat's efforts to uphold the rule of law and the democratic institution in this crisis have been vindicated."
He too added that a dissolution of the assembly and fresh elections were the "best way out of this crisis".
Parti Keadilan Rakyat (PKR) Member of Parliament for Kulim-Bandar Baru Zulkifli Noordin said in his statement, "I hope this time the sultan will respect the provisions and spirit of the laws and accept this advice by calling for an immediate dissolution of the Perak state assembly."
Meanwhile, Gerakan national youth deputy chairperson Oh Tong Keong urged Perak BN to respect the court's decision.
"The best course of action is for Nizar and Zambry to advise the Sultan of Perak to dissolve the state assembly and pave the way for new elections so the people of Perak have the final say on who should lead them," Oh said.
Oh also said that Perak BN should not call for a stay of execution as it would "create the impression that the BN is hungry for power".
In another statement, however, Malaysian Bar Council chairperson Ragunath Kesavan said in response to the High Court's decision: "The answer ultimately does not lie in the courts."
"No doubt Zambry will now appeal this decision to the Court of Appeal, and further legal arguments will be advanced," he said.
"Whichever side loses at the Court of Appeal will then appeal to the Federal Court — the issue will go on and on," he continued.
To avoid such legal wrangling, Ragunath said, "Both sides of the political divide must now realise that power has to be returned to where it rightly belongs — in the hands of the people, the electorate of the state of Perak."
See also: Raja Nazrin Shah can decide on dissolution
Court cases related to the 2009 Perak constitutional crisis
| Plaintiff vs | Matter | Status / Court / Decision | Ruled in PR's favour | |
| 1 | Nizar vs Zambry | To determine rightful Perak MB. | High Court decision on 11 May 2009: Datuk Seri Mohammad Nizar Jamaluddin is the rightful menteri besar of Perak. |
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| 2 | Jamaluddin Mohd Radzi, Mohd Osman Jailu and Hee Yit Foong (3 Aduns) vs Speaker V Sivakumar | A declaration that the plaintiffs have not resigned as elected representatives. | Federal Court decision on 10 April 2009: Plaintiffs have not resigned, remain as Aduns. |
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| 3 | Zambry and 6 Others (excos) vs Sivakumar and state assembly | Among others, a declaration that the speaker's suspension of MB Zambry and six exco are invalid. Injunction to prevent speaker from holding unlawful meetings. | Federal Court decision on 16 April: Speaker's decision to suspend Zambry and six others was null and void. No ruling on other applications. Ipoh High Court decision on 3 March: Injunction granted in the afternoon preventing speaker from holding unlawful meetings. Injunction was not retrospective and did not cover the 3 March sitting under the tree in the morning.
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| 4 | Sivakumar vs state legal adviser | An order that the state legal adviser had no instructions to represent the speaker. | Court of Appeal decision on 13 March 2009: Speaker is allowed to choose and appoint his own lawyers. |
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| 5 | Sivakumar vs Election Commission, Jamaluddin Mohd Radzi, Mohd Osman Jailu and Hee Yit Foong | To rule whether the EC has the right to declare vacancy status of state seats. | Federal Court decision on 9 April 2009: Yes, EC has the right to determine if a state seat is vacant, not the speaker. |
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| 6 | Chen Fook Chye, Tai Sing Ng and Sivanesan (excos), and Ahmad Sabry, Abdul Latif and Foo Hon Wai (voters) vs EC and three independent Aduns | Judicial review of EC’s decision not to hold fresh elections for three vacant seats. | Kuala Lumpur High Court hearing on 28 May | |
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