“The Sultan has no explicit power to dismiss an MB under the Perak Constitution”, The Sultan’s Constitutional Powers: A Comment

LoyarBurok is privileged to have received this comment piece from Kevin YL Tan on the on-going Perak constitutional crisis.

Kevin YL TanKevin has taught constitutional law for over 20 years. He currently holds Adjunct Professorships at the Faculty of Law, National University of Singapore and the S Rajaratnam School of International Studies, Nanyang Technological University. He is co-author (with Thio Li-ann) of the leading constitutional law textbook “Constitutional Law in Malaysia and Singapore” widely used as standard reading material in universities; “Introduction to Singapore’s Constitution” and numerous articles on constitutional law in Singapore, Malaysia and the region.

Introduction

HRH Sultan Azlan Shah’s (HRH) appointment of Dato’ Dr Zambry bin Abdul Kadir (Zambry) as Perak’s Menteri Besar on 6 February 2009 precipitated a constitutional crisis that culminated in the case now before the courts. The facts of the case are by now, fairly well-known and merit only a brief recount.

Following nation-wide general elections in March 2008, the Pakatan Rakyat (PR) won 31 seats in the 59-member Legislative Assembly (LA) and Dato’ Seri Mohammad Nizar bin Jamaludin (Nizar) was appointed Menteri Besar (MB) of Perak. The Barisan Nasional (BN) held the remaining 28 seats. In February 2009, three PKR members announced their resignations from the LA, leaving each party in control of 28 seats each.

On 4 February, Nizar approached HRH to dissolve the LA to “resolve the deadlock”. The next day, HRH met with 31 members of the LA, satisfied himself that they supported Zambry as MB, and then informed Nizar that his request for dissolution had been rejected. Among the 31 members present at this meeting were the three PKR members who had earlier resigned. They had apparently withdrawn their resignations and transferred their support to Zambry. HRH then informed Nizar that he no longer commanded the confidence of the LA and asked him to tender the resignation of the Executive Council. Nizar did not comply, and the Sultan’s office issued a press statement declaring the office of MB vacant and that Zambry had been appointed the new MB since he commanded the confidence of the majority of LA members.

On 11 May 2009, the Kuala Lumpur High Court ruled that as there had been no vote of confidence on the floor of the LA, Nizar remained the rightful MB of Perak. Zambry appealed against this decision and on 22 May, the Court of Appeal overturned the High Court decision and declared that Zambry had been rightfully appointed as MB. At the time of this article going to press, the Court of Appeal has yet to deliver the grounds for that decision. Even so, Nizar’s lawyers filed an application for leave to appeal against the Court of Appeal decision 19 June 2009. This application is scheduled for hearing on 9-10 July.

Issues Raised by the High Court Decision

As the High Court’s decision is the only one available, this commentary relates to this judgment. The key issues in this case are whether HRH Sultan Azlan Shah:

a. could dismiss the Executive Council when Nizar refused to tender the Council’s resignation after the Sultan refused to his request to dissolve the LA;

b. was constitutionally empowered to appoint Zambry the new MB when Nizar refused to tender the resignation of the Executive Council; and

c. had a discretion to determine if Nizar had lost the confidence of the majority of members of the LA in any other way than by a vote on the floor of the Assembly.

Ambit of Article XVI(6)

The key to answering these questions is Article XVI(6) of the Perak Constitution which provides:

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.

The High Court Judge, Dato’ Abdul Aziz J, adopted the “golden rule of interpretation” requiring a court to give the words of the Constitution a plain and ordinary reading if the words are unambiguous. Finding that Article XVI(6) of the Perak Constitution “contains no ambiguity whatsoever”, Abdul Aziz J held that the Sultan had no power to dismiss Nizar; neither was he allowed to deem the office of MB vacant when Nizar refused to resign. To do so, he added, would be to do “violence to the language” of Article XVI(6).

The learned Judge held that when Nizar requested HRH to dissolve the LA, he had not done so with “any reference to any provision in the Perak’s State Constitution” and in the absence of reference to any specific provision in the Constitution, Nizar was thus requesting HRH to exercise his royal prerogative under Article XXXVI(2) which gave HRH a general power to “prorogue or dissolve the Legislative Assembly.”

The Textual Argument

A textual reading of Article XVI(6) supports the High Court’s interpretation of this key provision. Article XVI comes under the heading “The Executive Council” and the relevant provision is the 6th of its 8 sub-clauses. Though headings, sub-headings and marginal notes do not technically form part of the constitutional text, they help us understand the structure and organisation of the Constitution. On the face of it, Article XVI is clearly intended to deal specifically with matters relating to the Executive Council and not generalities.

A general request for the dissolution of the LA and the Sultan’s discretion thereof is governed by Article XXXVI(2) read with Article XVIII(2)(b). That means that the Sultan has a general power to dissolve the LA and may act in his discretion in withholding a request for dissolution. Such a general request for dissolution does not fall under Article XVI(6) which is to be deployed in a very specific instance. This is immediately discernible when we read it sequentially: A MB who has already ceased to command the confidence of the majority of the members of the Legislative Assembly must tender the resignation of the Executive Council, but only if HRH exercises his discretion to refuse to dissolve the Legislative Assembly upon that MB’s request for dissolution.

Following from this reading, it is clear that the determination as to whether and when the MB has lost the confidence of the majority of the members of the LA – as opposed to whether the MB was likely to command the confidence of the majority of LA members under Article XVI(2) – is a matter for the LA itself. It is not an executive decision.

The Argument from History

Does history support the High Court’s reading of Article XVI(6)? Back in 1956, various representations were made to the Reid Commission on the status and powers of the Sultan and on his power to act. Back then, debates still raged over what necessary constitutional amendments needed to be made to make the Sultans “constitutional rulers” and whether the MB should hold office at the Sultan’s pleasure.

What is quite clear from the resulting deliberations is that the Commission was determined to ensure that (a) the organization of government in the states mirrored that of the Federation; and (b) the Malay Rulers should no longer preside over their state executive councils and involve themselves in executive decision-making save in very limited instances. These concerns led the Commission to set out the meaning of “constitutional ruler” in paragraph 177 of their Report:

… a constitutional Ruler is a Ruler with limited powers, and the essential limitations are that the Ruler should be bound to accept and act on the advice of the Menteri Besar or Executive Council, and that the Menteri Besar or Executive Council should not hold office at the pleasure of the Ruler or be ultimately responsible to him but should be responsible to a parliamentary assembly and should cease to hold office on ceasing to have the confidence of that assembly. (emphasis added)

By the Commission’s reckoning, there was no intention to give the constitutional ruler a power to dismiss the MB or the Executive Council at will. Further support can be gleaned from a memorandum on “The State Constitutions” prepared by Sir Ivor Jennings (CO 889/2 p. 156 dated 31 Aug 1956) – certainly the most important and influential member of the Commission – when he noted:

The Rulers will become constitutional monarchs and executive government must be placed under the control, direct or indirect, of the State Councils. It is assumed that the Ruler … would appoint a Menteri Besar … who would have, or hope to obtain, a majority in the State Council. … It is assumed that the Ruler would have power, on the advice of the Menteri Besar, to dissolve the State Council, but that, like the Queen, he need not accept the advice. The Ruler would not be empowered to dissolve without advice, though, of course, he could always appoint a new Menteri Besar who was likely so to advise because he had no majority.

Historical precedent is consonant with the High Court’s reading of Article XVI(6). The Sultan was entitled to refuse a request to dissolve the LA, be it a general request – for example when early elections are to be called or where the LA is sharply divided over a key policy or the budget – or a specific request under Article XVI(6) after the MB has already lost the confidence of the majority of the LA.

Dismissal of the Executive Council

Both the textual and historical arguments support the High Court’s reading of Article XVI(6). However, this does not resolve the question as to whether the Sultan was empowered to (a) declare the office of the MB and Executive Council vacant; and (b) following from that declaration, proceed to appoint a new MB.

The Perak Constitution is not explicit on this point. What is clear is that the Executive Council is appointed by the Sultan on the advice of the MB. Although Article XVI(7) states that members of the Executive Council hold their office at HRH’s pleasure, Article XVIII makes it patently clear that HRH may not dismiss them at a whim, but only upon the advice of the MB. This reading is borne out by the Reid Commission Report that stated (at paragraph 181):

As the Executive Council is to be collectively responsible to the Legislative Assembly the appointment of its members must lie in the hands of the Mentri Besar and a new Mentri Besar must be free to appoint a new Executive Council in the same way as the Prime Minister appoints his Ministers. This result follows from our recommendation that members of the Executive Council should hold office at the pleasure of the Ruler because in appointing or terminating the appointment of a member of the Executive Council the Ruler must act on the advice of the Mentri Besar.

So, what happens if an MB, who has lost the confidence of the majority of the LA, refuses to resign his position and that of the Executive Council after the Sultan rejects that MB’s request for a dissolution of the LA? This happened in Kelantan in 1977 when its MB, Datuk Mohamed Nasir refused to resign even though he had lost a formal vote of confidence motion in the Kelantan LA, been sacked by his own party, and had his request for dissolution of the LA refused by the Sultan of Kelantan. The impasse led to the declaration of a state of emergency by the Federal Government that lasted three months, after which the LA was dissolved for fresh elections.

Alas, this single precedent is not particularly instructive. No legal solution was possible and ultimately, the situation was resolved politically by the Sultan dissolving the LA and allowing fresh elections to be called. Perhaps, all rulers and governors should, as a matter of course, accede to requests by their respective MBs to dissolve the LA for fresh elections to be called unless the ruler has a premonition that a calamity might befall the state if he so acceded. That way, new mandates are quickly determined and the business of government can proceed once a new leadership is established. Indeed, the Sultan of Perak supported this view of a ruler’s powers when he was Lord President. In his 1982 essay, “The Role of Constitutional Rulers”, he opined:

… under normal circumstances, it is taken for granted that the Yang di-Pertuan Agong would not withhold his consent to a request for dissolution of Parliament. His role under such a situation is purely formal.

This point was picked up by counsel for Nizar and cited with approval by the High Court.

The Sultan has no explicit power to dismiss an MB under the Perak Constitution. Indeed, neither is the Yang di-Pertuan Agong empowered to dismiss a Prime Minister under the Federal Constitution. Originally, the Reid Commission had prepared a draft Article 36(2) which, among other things, gave the Yang di-Pertuan Besar power to remove the Prime Minister from office. However, as the High Court duly noted, the words were changed when the present Article 43(4) was promulgated. This provision is almost word-for-word the same as Article XVI(6) of the Perak Constitution save for the nomenclature used.

Conclusion

We return to the three questions posed at the start of this article. If, as the High Court rightly held, Nizar’s request to dissolve the LA was made under general provisions rather than under Article XVI(6), then HRH had no power either to declare the office of MB vacant nor to dismiss the members of the Executive Council. And since HRH had no power to declare the office of MB vacant, he was correspondingly prevented from exercising his discretion under Article XVI(2) to appoint Zambry as MB and to act on Zambry’s advice to appoint members to the Executive Council.

The third question posed – whether HRH had a discretion to determine if Nizar had lost the confidence of the majority of LA members – does not arise for consideration on the facts of this case. The question as to whether or not a show of confidence or support can be demonstrated in any way other than by a formal vote on the floor of the House is moot since HRH is not being asked to exercise his discretion under Article XVI(2) to determine support or confidence for the purposes of appointing a new MB.

Even if HRH was called upon to exercise his discretion on this matter, I would argue that the only way to determine confidence (or otherwise) in any individual as MB is to have a formal vote on the floor of the LA. This is especially crucial in a political system that is not constrained by anti-hopping laws, and which allows assemblymen and assemblywomen to transfer loyalties at a drop of a hat. A formal vote will require formalities to be met, membership of political parties to be ascertained, and resignations or change of affiliations registered. Most importantly, it will provide for certainty.

One possible way to avoid future confusion over the Sultan’s discretionary powers with respect to requests for a dissolution might be to require the MB to state clearly in his request for dissolution, whether his doing so under the general provisions to which Article XXXVI(2) applies or because he has lost the confidence of the majority of the LA members under Article XVI(6). That way, there can be no issue of how the Sultan is to deploy his discretion. This can be done as a matter of constitutional practice and will not require a constitutional amendment.

In the meantime, the problem remains. Two men claim to be the rightful Menteri Besar of Perak and two groups claim to be members of the Executive Council. As scholars of constitutional law and keen observers of Malaysian politics, we anxiously await the written judgement of the Court of Appeal as eagerly as we await the wisdom of the Federal Court to find a legal solution to an essentially political issue.


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41 Responses to “The Sultan has no explicit power to dismiss an MB under the Perak Constitution”, The Sultan’s Constitutional Powers: A Comment

  1. MyConsti

    MatTop:

    "Since Merdeka our education system had produced a lot of intelligent and bright malay students. Almost all of these bright malay students took up either Engineering, Accountancy, medicine, economics and other field of studies. Only the average and not so bright malay students took up Law."

    Are you implying that our lawyers are as less intelligent than those other professionals?

  2. MyConsti

    "The next day, HRH met with 31 members of the LA, satisfied himself that they supported Zambry as MB, and then informed Nizar that his request for dissolution had been rejected. Among the 31 members present at this meeting were the three PKR members who had earlier resigned."

    The scenario above, I believe was the key towards the whole issue. Thereby overriding this point:

    "The question as to whether or not a show of confidence or support can be demonstrated in any way other than by a formal vote on the floor of the House is moot since HRH is not being asked to exercise his discretion under Article XVI(2) to determine support or confidence for the purposes of appointing a new MB."

    But some may also argue that the meeting was not convened formally. Then we come to the issue of how 'formal' should it have been?

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  4. Pingback: The Perak Crisis: Keep Focused on the Real Issues

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  6. Janetlee

    PLEASE BRING BACK – SEPARATION OF POWERS… Independance of the Judiciary.

    Regards,

    Janetlee

  7. Pingback: Suara Keadilan Online : English Edition » MB vs MB: The written nonsense of the Appeals Crt judgments

  8. Pingback: Gobbledegook and regurgitation galore « Hornbill Unleashed

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  10. MatTop

    I don't agree that the Court is the correct place to settle such dispute in view of the integrity of Malaysian judges. They turn the law upside done to suit Umno. In the sarawak case, the judge was a MatSalleh and his judgement was very sound which was in accord with commonwealth constitutional convention and practices.

    Why malaysian judges, most of whom are just average students during their secondary school days refused to follow the Serawak's decision.

    Since Merdeka our education system had produced a lot of intelligent and bright malay students. Almost all of these bright malay students took up either Engineering, Accountancy, medicine, economics and other field of studies. Only the average and not so bright malay students took up Law. that is why the quality and integrity of the malays judges in the Judiciary now are very poor. Eusoffe Chin the former CJ started work as a court interpreter.

  11. Lawyer Lua

    Do we agree that the Court is the place for us to settle our dispute according to the Law ?

  12. addendum:

    Md Yaacob, the Kelantan MB whom a vote of no-confidence was passed by the Assy was an Umno puppet MB. He refused to resign when the Sultan rejected his request for dissolution and instead UmnoBN declared 'a state of emergency' in Kelantan and got to rule Kelantan by the back door.

    Umno always cause problems lah. In Perak, Kelantan, Sabah and even in Serawak. All court cases on this constitutional issues are the result of Umno's illegal acts.

  13. Lawayer Lua, that is a moot question. First the Assy must pass a vote of no confidence against the MB. Then if Sultan refuses to dissolve Assy, MB shall tender the resignation of his Exco. No honorable MB would refuse to do so unless he comes from Umno. In that case, any interested party then cld get a crt declaration/injuction on this issue of ‘mandatory’ resignation. Sultan shld not get involve in politics or the problems created by politicians.

    In Kelantan back in the 70′s, when the State Assy passed a vote of no confidence against the then MB Mohamad Yakob, he went to see the Sultan who resused to dissolve the Assy.

    This fella Raja Azln who was then a fc Judge commented AND WROTE later that under normal circumstances it is taken for granted that Sultan should not refuse to dissolve Assy, His role is purely formal. I think Raja Azlan is doing the opposite of what he had been preaching. He went to interview the 3 corrupted ‘jumping-over’ Aduns.

    Under the Perak Consti. Raja Azlan should have summoned a special sitting of the Assy and asked them to pass a vote of no confidence against the sitting MB instead of being personally involved in the matter. Now his image and integrity are in tatters. Nobody give a damn what he or his son tries to preach anymore. He created a lot of headaches to constitutional lawyers and academicians.

  14. Lawyer Lua

    According to Article 16(6),if the Ruler refuses to dissolve the Legislative Assembly,the said MB shall tender the resignation of the EXCO.But what if this MB just would not do the “tender”,no matter how he is being forced?Do you want the Ruler to admit defeat and give this MB what he want?

  15. Mak Kecik

    Dear Shamsul,

    It is very easy to post the judgement. What I would like you to do is to pinpoint which provision / argument actually supported the judgement.

    I know for a fact that dissolution of assembly can be done at any time. If you care to check, that was what Tajul Rosli was asking for in the early weeks of PR rule in Perak.

  16. miwai

    shamdul iskandar ,

    i got no suprised at all when u critised kevin's professionalism ,but u hv shown to us clearly that u r born from a short-civilisation race.

  17. Reading the CA judgement as posted and reported by Bernama, I can only say that the judgement is hogwash. It is crystal clear as day follows night that the legal competency of the 2 CA judges in understanding constitutional law is well below that of the High Crt judge. Ain't surprising because VK Lingam was instrumental in their elevation then.

    Firstly, Raus said on the request of dissolution, " Article 36(2) of the Perak State Constitution as requested by the then Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin, the assembly must be in the conclusion of the five-year term when a general election is contemplated". This is plain stupidity on his part. The tenure of the Assy is for 5 yrs. When the Assy has concluded its 5 yr term, there is no need to ask for dissolution. The Assy dissolves automatically. Art. 36(2) was written into the constitution to enable the MB to request the Sultan to dissolve the Assy at any time after the Assy was sworn in and bf its automatic dissolution on reaching its 5 yr period.

    I think these 2 CA judges must have got a D grade for their constitutional law. They think like first yr law students lah. I don't want to comment further Their interpretation of Art. 36(2) is plainly clear to all that they are stupid.

  18. Pingback: “The Sultan has no explicit power to dismiss an MB under the Perak Constitution”, The Sultan’s Constitutional Powers « BlogCkChew – Stand Up, Be Counted;

  19. Ismail Bakri

    When business interest and ulterior motives rule the day,
    Lord President and LOre Justice will succumb. Period.
    The Rakyat will teach the BN-End and the Malaysian Judiciary, PDRM, EC, and the Attorney General a bitter lesson in the next GE. Lets talk so much but prove it at the ballot boxes and that will speak louder. That will be people justice. That will be God’s justice and that will be justice justice.

  20. Ughhh.. just in case you guys (more like Shamsul) don't realize it yet… HRH was former Lord President… I doubt there was ever a position called "Lord Justice" in Malaysian history… :)

  21. k1

    these crooks can do things in perak in daylight, they will do anything to win GE13, we need UN to come innnnnnnn…crazy?

  22. HELLO SHAMSUL PAKAILAH OTAK SIKIT JANGAN ASYIK PAKAI PANTAT FIKIR. MANA YOU PUNYA IQ/EQ.BODOH!!!!!

  23. jack

    Dear shamsul Iskandar,

    Please remember this is bolehland.

    we can change anything at anytime on question can be ask.OK

    Malaysia boleh,apa apa pun boleh,Lingam juga boleh help!!

  24. Shamsul Iskandar

    How much is that doggie in the window? woof,woof!

    Balik kampung lah…don't make a blady fool of yourself here.

    Go and bark in your own backyard, we are all stupid, only you are the smart a#se!

  25. Everyone knows that the Sultan has no power to dismiss his MB. You don't need any prominent jurist or lawyer to tell you that. Even Raja Azaln Sultan knows that. But times have changed. Now he has Gamuda to think of. Gamuda did benefitted after the Perak crisis; at least in terms of its share prices which seems to be in the increase.

    Even the Court of Appeal knows that the Sultan can't remove the MB. Now they are at pains to find the flaws or the incorrectness in the decision of the High Crt ruling. For a matter as important as the affairs of State, we would have thought that the CA judges would have displayed better judicial temperament and attitude than a High Crt judge. The 3 kangoroos should have prepared the reasons why they thought the High Crt judge was wrong before delivering their judgement. Now they can't write the judgement without making a big fool of themselves.

    On the issue of dissolution of the State Assy, when Azlan was on the Bench, he wrote that an Agong or Sultan has no choice but to dissolve Parliament/the Assy on the advice of his PM/MB. That is taken for granted.

    Now because of Gamuda, he thinks otherwise. He does not act on the advice of his MB but on the advice of Najib.

  26. kok

    Shamsul, very obviously, you have a very simple mind!

    I rest my case.

  27. zztop

    Really sick of all the huha about the Perak state issues.

    Just dissolve the Assembly and let the rakyat decide again thru the ballots once and for all. No ifs and buts. Enough is enough. Come on BN/UMNO, have the guts and courage to face the rakyat.

  28. Shamsul Iskandar

    For those of you who still do not understand law,let me give some layman answers to your doubts.We layman knows that if one judge passes a verdict,the accused can appeal against the judgement and we have seen cases where a guilty sentence were later reviewed by the Court of Appeal.To say that the government is treating the court as Kangaroo courts,then why the in the first place that the judge made a ruling in favor of Nizar.It could have been against Nizar in the first place if the government controls the court.To translate this into simple mathematics,1 judge decision favored Nizar while 3 were against him.We've seen the opposition calling the courts unfair when the judgement is not in their favor while full praises are given when decision is in their favor.Yet,the opposition still uses the court for all their legal avenues and in fact there are dozens of pending court cases filed the opposition against the government and not vice versa.Strange isn't it?To end this at a lighter note, if you think that the government is making the court as a kangaroo court, then what species does the member of legal profession;bar council, lawyer etc represents as they are serving the so called 'kangaroo' courts?I let you pick your own guess.

  29. pinsysu

    hello shamsul, do u hv any idea why Court of Appeal is dragging its feet with written judgment??! the Court of Appeal overturned the High Court decision in 5-minutes!! much faster than McDonald delivering beef burger! it's oredi more than 1 month since 22 May 09!!

  30. future

    To Shamsul…. a former Lord Justice has made a blunder and only God knows its intention.

  31. sinleong

    Shamsul, like this no need to have elections anymore la… every 5 years the sultan can appoint a MB and 6 jokers to be exco

  32. Shamsul Iskandar

    For all those idiots who were trying to talk about law,read this and shut-up.You are not qualified to talk about law because you are damn stupid!
    ‘Sultan Was Right Not To Dissolve Perak Assembly’

    PUTRAJAYA, June 26– Sultan Azlan Shah was right in not dissolving the Perak State Legislative Assembly in February because it was barely one year old, Court of Appeal Judge Datuk Md Raus Sharif said.

    In his 49-page judgement dated June 2 releasedFriday, justice Raus said that in order for a dissolution of the assembly to take effect under Article 36(2) of the Perak State Constitution as requested by the then Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin, the assembly must be in the conclusion of the five-year term when a general election is contemplated.

    “It was well-known fact that the general election had been held barely one year ago,” he said, adding that Nizar had applied the wrong provision when requesting for the dissolution of the assembly.

    He said Article 36 of the Perak Constitution was only a general provision empowering the Sultan to prorogue or dissolve the assembly after the conclusion of the five-year term.

    Nizar should have instead requested for dissolution of the assembly under Article 16(6) which states that if the menteri besar loses the confidence of the majority of the members of the assembly, then, unless at his request of the Sultan, dissolves the assembly, he shall tender the resignation of the Executive Council.

    Raus also said that the question of Perak having two menteri besar did not arise because Article 16(6) demands that once the menteri besar was made to know that he had lost the confidence of the majority of the members of the assembly, he should take the honourable way out by tendering his resignation.

    “If the menteri besar refuses or does not tender his resignation and the resignation of the Executive Council, as had happened in this case, the fact remains that the Executive Council is dissolved (which include the menteri besar) on account of the menteri besar losing the confidence of the majority of the members of the legislative assembly,” he said.

    Therefore, it was unnecessary for the Sultan to remove Nizar and the other members of the Executive Council, he said.

    He said Datuk Seri Dr Zambry Abdul Kadir’s appointment as the menteri besar to succeed Nizar was made according to the Perak Constitution and established democratic practice and convention.

    “The Sultan of Perak in exercise of his royal prerogative under Article 16(2) of the Perak State Constitution is at liberty to appoint another menteri besar to replace Nizar,” he said.

    Raus said the Sultan, however, must appoint someone who has the command and the confidence of the majority of the members of the assembly and in this case, there was no doubt that Zambry had the majority support of 31 members out of 59 members of the assembly.

    “The circumstances in the present case clearly shows that on Feb 5, Nizar no longer had the confidence of the majority of members of the assembly. There were signed letters from 31 members pledging support to Barisan Nasional which were presented to the Sultan,” he said.

    He also said Article 16(6) does not express mandatory requirement that there must be a motion of no confidence passed by the assembly against a menteri besar before he ceases to command the confidence of the majority of the members.

    “The fact that a menteri besar ceases to command the confidence of the majority of the members of the assembly can be established by other means. It cannot solely be confined to the vote taken in the assembly,” he said.

    Meanwhile, justice Ahmad Maarop who presided over the case with with Raus and Datuk Zainun Ali said Nizar must tender his resignation once he lost the confidence of the majority of the members of the assembly and when Sultan refused his request to dissolve the assembly.

    “His refusal to tender his resignation and the resignation of the Executive Council was not merely a breach of convention and undemocratic but more importantly, it contravened the clear mandatory constitutional command under Article 16(6) of the Perak Constitution and therefore unconstitutional.

    “Thus, since he had ceased to command the confidence of the majority of the members of the assembly, it is implicit that on his refusal to tender the resignation, the Executive Council is thereby dissolved and the office of the menteri besar vacated.”

    Ahmad said he was also of the view that the Sultan’s power to dismiss the menteri besar was implicit in the event the menteri besar refuses to resign although he has ceased to command the confidence of the majority and the Sultan withholds his request to dissolve the assembly.

    “In my judgment, the situation confronting His Royal Highness in the state of Perak was one such situation, and His Royal Highness had, in that critical situation rightly exercised his constitutional powers provided under the State Constitution, which exercise was without any doubt, solely for the best interest of the people of Perak,” he said.

    Datuk Zainun Ali’s judgement is expected to be released on Monday.

    The three Court of Appeal judges had on May 22 ruled that Zambry was the legitimate menteri besar of Perak, reversing an earlier High Court decision in Nizar’s favour.

    The Federal Court is to hear Nizar’s application for leave to appeal on July 9 and 10.

    Nizar, 52, was appointed Perak menteri besar on March 17 last year after the DAP-Parti Keadilan Rakyat-Pas alliance won 31 seats in the state assembly in 12th general election.

    Less than a year later, they lost three members who declared themselves independent and lent support for Barisan Nasional that then had 28 seats in the assembly after a representative who had jumped ship earlier made an about turn.

    Sultan Azlan Shah then asked Nizar to step down and swore in Zambry after finding that Barisan Nasional had the majority in the state assembly.

    Following this, Nizar initiated the legal action to seek a declaration he is the rightful menteri besar and an injunction to bar Zambry from discharging his duties.

    – BERNAMA

    Posted by sofisofi1020 at 6:30 AM
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  33. Any ordinary folk without a deep knowledge in Constittional laws can see the ruling UMNO-BN goons are using kagaroo judges to twist and turn concluding with biased verdicts favouring the crooks!….including the Royal parasite, (an ex-Chief judge) who was the biggest disappointment to the rakyat!

    Money and corruption is the rule of the day…everything else, is secondary.

  34. christsooi

    Shamsul, you obviously do not read too well. The intro did not say 'a single lawyer practising for 20 years'. It says 'taught constitutional law for over 20 years. He currently holds Adjunct Professorships at the Faculty of Law…'.

  35. kok

    Shamdul Iskandar, I think you're the one who is joking.

    Ha ha ha ha ha

  36. Shamsul Iskandar

    I beg to differ on this issue.HRH, being a former Lord Justice and knows the facts of law.Just because a single lawyer practising for 20 years does not make you a genius.In other words,you are saying that the former Lord Justice is wrong and the entire government legal team is also at wrong! You could either be joking or you need to learn the law further!

  37. nancyyong

    Our judiciary integrity has already gone to the drain. The rakyat has lost trust in them.

    We have a bunch of judges who are basically have no integrity and compassion to the rakyat.

    The only way is to throw these outcasts is to help PKR win the next GE.

  38. Lapsap

    Dear Shamsul

    If the 3 Court of Appeal judges has made a sound decision, where is the grounds of judgment then? In contrast, 1 judge at the High Court delivered his full judgment backed with authority on how he came to the conclusion on decision day. One would have thought that Court of Appeal judges would be better prepared in justifying their decision and deliver the grounds of judgment right there and then no?

  39. SHAMSUL eats NAJIS from his mouth, he eats rice from his asshole and shit from his mouth.SHAMSUL has PIG BRAIN!!!Ha,ha, ha!!!

  40. Nick

    In this Great and Beautiful Nation of ours, we don’t understand nor practice the concept of meritocracy. Instead our learned Judges are H6 and promoted based on loyalty and something which everyone knows but cannot voice out. And these high and mighty Judges in the highest cout of the land mostly don’t and can’t read the english language. They take directions from the highly independent CJ who came from the ruling UMNO party. The legal spin has already been written out but now needs to be proof-read to get rid of inconsistencies but every constitutional experts that they turned to have given them 10/100 marks, so back to the drawing board.

  41. perak

    The Court of Appeal overturned the High Court decision and declared that Zambry had been rightfully appointed as MB BUT until now the Court of Appeal has yet to deliver the grounds for that decision.

    This is a clear indication that the Court of Appeal has difficulty to back up the decision with strong and valid legal grounds.