Post by a “Court Observer” received by LB.com just now:
IT is judgment day tomorrow for ousted Perak Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin and his successor Datuk Seri Dr Zambry Abdul Kadir.
Last week, lawyers for Nizar and Zambry made submissions on facts and law.
Attorney-General Tan Sri Abdul Gani Patail, who acted as intervener, also assisted the court as the ruling has far reaching implications on the federation and state governments.
On Feb 13, Nizar filed a judicial review application and sought a declaration that he is the rightful MB. He also wants the court to declare that the Feb 6 appointment of Zambry by the Sultan of Perak was unconstitutional.
Nizar’s case rests on the weight that on Feb 4, he had sought an audience with the Sultan to dissolve the Perak State Assembly as there was deadlock between the Barisan Nasonal and Pakatan Rakyat who had 28 seats each in the House. Nizar also wanted the Sultan to give the voters the opportunity to elect a new government to bring about political stability. He is said to have relied on Article 36(2) of the State Constitution to advise the Sultan to dissolve the Assembly.
Meanwhile, Zambry’s case, supported by an affidavit affirmed by State Legal Adviser Datuk Ahmad Kamal Md Shahid, is footed on the notion that the Sultan refused Nizar’s request for dissolution on grounds that he (Nizar) had lost the confidence of the majority assemblymen. Ahmad Kamal claimed Nizar had invoked Article 16(6) of the State Constitution.
The 10-month-old Pakatan Rakyat government is said to have collapsed after three lawmakers (two from PKR and one from DAP) defected to the Barisan Nasional in early February.
In the March 8, 2008 election, BN won 28 seats but the loose coalition of Pakatan Rakyat won 31 seats (DAP 18, PKR 7 and Pas 6).
Sometime in Feb 4 or 5, the BN claimed it had the majority to form the government with the assistance of the three who claimed to be independents but friendly to the coalition.
Nizar’s lead counsel Sulaiman Abdullah argued extensively last week that a Menteri Besar or Chief Minister of a State could not be dismissed from office as the head of government does not hold office at the pleasure of the head of State. He said the Menteri Besar or Chief Minister could be removed only through a vote of no confidence in the State Assembly. He cited the principle outlined in the case of Stephen Kalong Ningkan -v- Tun Abang Haji Openg where the High Court said the test whether a Chief Minister had ceased to command the confidence of the majority was in the House, not outside of it. Sulaiman said in Nizar’s case, the former MB did not go through such process to warrant a resignation. Nizar could first advise the Sultan to dissolve the House after losing a confidence vote. If the Sultan used his discretion not to dissolve the House, only then Nizar has to tender his resignation together with his executive councillors.
Abdul Gani said Nizar had lost the majority, from 31 to 28 and as such no longer commanded the confidence of the majority. He said the Sultan had conducted his own enquiry like interviewing the 31 assemblymen, including the three who crossed over, to come to a conclusion. Abdul Gani conceded that Nizar could not be sacked or dismissed but he is deemed to have resigned once the political numbers were against him. He said the Sultan, a former Lord President, acted in accordance with the Constitution or else he would have abdicated his duty.
Zambry’s counsel Datuk Cecil Abraham went one step ahead and said it was not the Sultan who dismissed Nizar but the constitutional provision provides that Nizar’s position was vacated. The arguments before Justice Datuk Abdul Aziz Abdul Rahim relied mainly on three constitutional cases, including Ningkan, emanting from Sabah and Sarawak.
If Abdul Aziz rules in favour of Nizar, it means he agrees with the principle propounded in the Ningkan case. However, as a judge of coordinate jurisdiction, he is not bound to follow the Ningkan case law if the facts in the Nizar-Zambry matter are distinguishable.
A verdict for Zambry would indicate that the ruling government’s position would always be shaky when the majority between them and the opposition in either a State Assembly or the Dewan Rakyat is close like the case in Perak.