Zambry races against time

May 13 had been touted as the deadline for the Perak assembly to convene, failing which it would stand dissolved as the assembly's last sitting was in November last year.

The Edge

It's 11 days and counting to May 7 when the embattled Perak state legislative assembly is scheduled to convene. It's a race against time for Perak Menteri Besar Datuk Seri Dr Zambry Abdul Kadir to resolve ongoing legal battles standing in his way to assuming legitimacy of his administration within the assembly.

With the clock ticking louder than ever, Zambry last Monday applied to refer three questions to the Federal Court on Articles 16(2) and 16(6) of the Perak Constitution which relate to the dissolution of the assembly and the appointment of the menteri besar.

Zambry's questions are whether Perak Ruler Sultan Azlan Shah had the right to withhold consent to the assembly's dissolution as requested by then Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin when the latter ceased to command majority support in the assembly and whether Nizar and his exco members should tender their resignations upon the Sultan's refusal to dissolve the assembly.

The Federal Court is scheduled to hear Zambry's application as well as Nizar's objection on Tuesday. Photo by Suhaimi Yusuf

The third question posed sought a ruling on whether the Sultan had the right to appoint Zambry as menteri besar after due inquiry that Nizar had lost majority confidence of the House although a vote of no-confidence had yet to be taken in the assembly.

Zambry, in his application, says he should be declared the validly appointed Perak menteri besar if the Federal Court answers the three questions in the affirmative.

The Federal Court is scheduled to hear Zambry's application as well as Nizar's objection on Tuesday.

If the Federal Court decides to hear Zambry's questions, it would only have up to five working days — after factoring in the May 1 public holiday and the weekend — to provide an answer before Nizar and Zambry meet again at the Perak state assembly. But if it declines, the matter would have to be decided before the Kuala Lumpur High Court.

Nizar's counsel Hanipa Maidin, when contacted, said one of the key objections to Zambry's application was that the questions referred to the apex court did not reflect the actual suit at hand.

"The way they (Zambry's side) framed the questions appear to challenge the (prerogative) powers of the Sultan," Hanipa said, maintaining that Nizar had no intention of challenging the Sultan. Yet others would argue this was a matter that could not possibly be excluded from the process.

Hanipa, a PAS lawyer, also said the High Court should be allowed to continue hearing the matter and by due process, its decision could subsequently be brought to the appellate courts — the Court of Appeal and Federal Court.

Constitutional lawyer Tommy Thomas, at a Bar Council forum on Saturday, questioned the speed at which the Perak-related suits were "leap-frogged" to the Federal Court.

Thomas, who had acted for Sivakumar, said there was a theory that the hurry to dispose of the cases was due to Article 36 of the Perak Constitution which states that the ruler must summon the assembly's sitting every six months.

May 13 had been touted as the deadline for the Perak assembly to convene, failing which it would stand dissolved as the assembly's last sitting was in November last year.

"There is no such doctrine (of automatic dissolution). It must be an overt act of the sovereign signing the proclamation of dissolution. This was a great myth," Thomas said.

Zambry's counsel could not be contacted for their comments.

The Kuala Lumpur High Court has fixed May 5 and 6 to hear substantive matters in the suit brought by Nizar on Feb 13 challenging the validity of Zambry as menteri besar.

Nizar's lead counsel Sulaiman Abdullah has written to Chief Justice Tan Sri Zaki Azmi requesting for a rare nine-member quorum at the Federal Court to hear the matter.

Given that the issues involve complex constitutional interpretations and are of great public importance, the Federal Court may hear the matter as expeditiously as it had in the previous two related cases.

On April 9, the Federal Court ruled that the three representatives who had resigned from their respective parties — Jamaluddin Mohd Radzi (Behrang), Mohd Osman Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) — were still assemblymen as the speaker was not the rightful entity to determine a seat's vacancy.

The same five-member bench, led by Court of Appeal President Tan Sri Alauddin Mohd Sherrif, on April 16 lifted Perak Speaker V Sivakumar's suspension of Zambry and the six executive councillors (exco) after it declared Sivakumar had acted beyond his powers as speaker in ordering the suspensions.

Both Pakatan Rakyat (PR) and Barisan Nasional (BN) are expected to exhaust its legal options before turning to Plans B, C and D outside the courtroom.

In the event that the Federal Court ruled in favour of Zambry, he would have the weight of the authoritative judgment behind him as he walks into the state assembly to claim his seat as Perak's chief executive.

But if Sivakumar and the 27 PR representatives remain adamant that the reach of the judiciary cannot extend into the legislature, questions abound as to what weight the Federal Court's decision would carry in the upcoming sitting and what moves PR would subsequently make.

On the other hand, a Federal Court decision against Zambry would lend the legitimacy Nizar has been seeking since his removal from office.

In any case, it remains to be seen if any decision by the courts would put an end to Perak's political impasse that was sparked off at the end of January by the controversial and highly consequential defections of the three MPs.