Zambry wins in MB vs MB case

By Deborah Loh
thenutgraph.com

PUTRAJAYA, 22 May 2009: Datuk Seri Dr Zambry Abdul Kadir is the lawful menteri besar (MB) of Perak after the Court of Appeal ruled today that the sultan of Perak was right in finding that Datuk Seri Mohammad Nizar Jamaluddin had lost the confidence of the majority of state assemblypersons.

The appellate court set aside the High Court decision on 11 May that Nizar was the rightful MB.

The three-person bench unanimously ruled that Perak Ruler Sultan Azlan Shah was right to have appointed Zambry as the new MB on 6 Feb, after determining that Nizar had ceased to command the majority's confidence in the assembly.

Justices Datuk Md Raus Shariff, Datuk Zainun Ali and Datuk Ahmad Maarop ruled that the sultan was entitled to ascertain where the confidence of the majority of assemblypersons lay by means other than a vote of no-confidence in the assembly.

"There is no mandatory or express requirement that provides that there must a motion of no confidence to be tabled in the state legislative assembly," said Md Raus, who read out the judgement.

Zambry wins in this round of the legal battle to be the rightful Perak MB

The judgement was read out in about 10 minutes. In deciding to allow Zambry's appeal, the judges held that:

• the granting or withholding of consent to a request for dissolution of the legislative assembly was a royal prerogative;
• the facts of the cased showed that Nizar's request for dissolution fell under Article 16(6) and not Article 36(2) of the Perak Constitution;
• that under Article 16(6), Nizar had to tender his resignation together with that of his executive councillors after the sultan withheld consent to his request for dissolution;
• that there was no mandatory or express provision in the state constitution for a motion of no confidence to be tabled in the legislative assembly against Nizar, who had ceased to command the confidence of the majority;
• the fact that Nizar had lost the majority's confidence could be obtained or established by alternative means, and that the sultan was right in making enquiries on whether he had lost the majority before rejecting his request for a dissolution of the legislative assembly;
• that because Nizar had ceased to command the majority's confidence, the sultan was right under Article 16(2) in appointing Zambry as MB after being satisfied that Zambry commanded the confidence of the majority; and,
• that the High Court judge had erred and failed to appreciate all the evidence before him in making a decision.

As such, Nizar's application to set aside the stay order granted to Zambry has been struck out. Zambry had obtained a stay of execution on the High Court's earlier decision that Nizar was the rightful MB.

Nizar to appeal

Nizar's lawyer Sulaiman Abdullah said they would be appealing in the Federal Court. Firstly though, Nizar would have to obtain leave from the Federal Court in order to file the appeal, as cases moving from the Court of Appeal to the Federal Court do not get an automatic right of appeal.

Sulaiman also asked Md Raus to issue the written judgement urgently to expedite their application for leave to file the appeal. Md Raus said he would try or else have the judgement ready in about a week.

"I appreciate that the learned judges could reach a decision in such a short time. We have extraordinary judges in Malaysia with extraordinary abilities," Sulaiman told reporters later, when asked if he was surprised with the overnight decision given that Zambry's appeal was only heard yesterday.

In arguing Nizar's case, Sulaiman had told the court that no law existed to remove a menteri besar or prime minister. He also argued that the only way to determine if an MB had the confidence of the majority in the assembly was by a vote of no-confidence in the House.

Zambry's lawyers have argued that Nizar had to resign under Article 16(6) upon losing the confidence of the majority of the assemblypersons, and upon the sultan's rejection of his request for a dissolution. They argued that the sultan could use other means to determine where the majority's confidence lay.

"Absolute monarchy" now

Neither Nizar nor Zambry was in court today.

Pantai Remis assemblyperson Nga Kor Ming, who was present on behalf of Nizar, said the judgement today showed that Malaysia was now an "absolute monarchy".

"The Agong can now sack the prime minister at his pleasure without a motion of no-confidence in Parliament. Though we are disappointed that we have lost the legal battle, we know we have won the hearts of many. The Perak constitutional crisis was never meant to be solved in the courts," Nga said.

A huge crowd showed up at the appeals court

Zambry's counsel, Umno lawyer Datuk Hafarizam Harun said the judgement put Malaysia's law "in line" with other Commonwealth countries.

"We hope there are no more requests to dissolve the state legislative assembly as that is now academic," he said.

Outside the courtroom were about 100 supporters who cheered Sulaiman and the rest of Nizar's legal team as they left.

Earlier, many journalists were unhappy when police prevented them from entering the courtroom. Police said they had to limit the number of reporters in the courtroom on the orders of the Court Registrar's Office.

After much protest, and with the pleading of lawyers and reporters already inside the courtroom, the court registrar allowed a few more reporters with a limit of one reporter for each news organisation.