court rules nizar is MB but does it change anything?

May 11th, 2009 by poobalan | View blog reactions Leave a reply »
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the anticipated moment arrived today afternoon. I have to admit that I thought the court will declare Zambry is the MB of Perak. Those people I talked to, also had the same view. So, it was a big surprise when Pakatan’s Nizar was declared as valid MB. The court also denied application for a stay pending an appeal by Zambry.

While it may sound nice to hear that justice kind of prevailed, I really wonder if the ruling makes any difference. Let’s see the ruling by Justice Abdul Aziz Abd Rahim:

– a new Mentri Besar could not be appointed as the office had not been vacated. A mentri besar can only be dismissed by a vote of no confidence, one in which Aziz noted that the Perak Legislative did not carry out.

Court said the fatal Barisan Nasional mistake was despite the majority of 31 against 28, the coalition failed to take a no-confidence vote against Nizar in the state assembly.

The Judge said once appointed as chief executive of the state, the Menteri Besar is only answerable to the state assembly.

The judge also said the job of the Ruler or head of state was only to appoint a Menteri Besar and if he refuses to resign, he cannot be sacked or his position vacated.

Justice Aziz said Nizar had gone to meet the sultan on Feb 4 to seek a dissolution of the house to go back to the people.

“It is not true that Nizar had asked the ruler to dissolve the House on grounds that he had lost confidence of the majority,” he said.

The ruling (from the Star):

The High Court declared that Datuk Seri Mohammad Nizar Jamaluddin is the valid Perak Mentri Besar, ruling that his Office has not been vacated.

High Court (Appellate and Special Powers) judge Justice Abdul Aziz Abdul Rahim granted a declaratory relief to Nizar that he is still and was Mentri Besar at all material times.

The court, which issued a declaratory relief that Datuk Dr Zambry Abd Kadir had no rights to occupy the office of Perak Mentri Besar, also ordered him to show cause and give information under what policy, power or authority he allegedly held office and exercised the responsibilities, functions and duties as Mentri Besar.

There was clapping and cheering in the packed courtroom when the ruling was handed down.

Justice Abdul Aziz. who read out his written judgment for over an hour, said that Nizar, once appointed Mentri Besar, was only answerable to the State Legislative Assembly.

“Based on democratic practice, the vote of no-confidence should be taken on the floor of the assembly and only that way, he (Nizar) could be forced to resign.

“(Otherwise,) how could Nizar lose confidence on the purpose of Article 16 (6) of the Perak Constitution?,” Justice Abdul Aziz pointed out.

Article 16 ( 6) states that if the Mentri 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.

In his suit filed on Feb 13, Nizar, a PAS member, challenged the legitimacy of Dr Zambry and the new state government.

The judge said Nizar only sought to get the declaratory relief to look into the relevant provisions of the Perak Constitution, particularly Article 16 (6) on grounds that there could not be two Mentri Besars, adding that the issue of justiciability over the Sultan’s power in the appointment of the Mentri Besar did not arise.

“If the respondent’s (Dr Zambry) claim is truly undeniable over the support of the three independent assemblymen, why didn’t the Barisan Nasional request for the assembly to have a special sitting to table a motion of no-confidence against the applicant (Nizar)?

That would be in line with the democratic principle,” he said, adding: “I am of the view that the office of the Mentri Besar has not been vacated.”

Justice Abdul Aziz held that Nizar had advised the Sultan of Perak to dissolve the State Legislative Assembly, adding there was, however, no dissolution of the assembly, no motion of no confidence taken and adopted against the Mentri Besar and no resignation by Nizar.

The court also granted an injunction to prevent Dr Zambry or his agents from acting or implementing the responsibilities, functions and duties of Perak Mentri Besar.

On Perak Legal Adviser Datuk Ahmad Kamal Md Shahid’s claim that he was a neutral party in the proceedings, the judge said that Ahmad Kamal “had not applied his independent mind”, adding that to an extent, his evidence was “coloured” as he admitted to taking instructions from Dr Zambry’s lawyer when he was cross-examined on his affidavit.

“He is a very senior legal officer but he chose to use the word instructed instead of request or volunteered,” he said.

Ruling excerpts from Malaysiakini:

Justice Abdul Aziz Abd Rahim then proclaimed Mohammad Nizar Jamaluddin as the rightful Perak menteri besar.

< ![endif]–> “He is, and was, at all material times the chief minister of Perak,” Abdul Aziz told the court.

His decision rubberstamped ousted Pakatan Rakyat MB Mohammad Nizar’s argument that he is the legitimate menteri besar.

Zambry’s lawyer Cecil Abraham’s application for a stay of proceedings pending an appeal was also rejected by the court.

Justice Abdul Aziz delivered his judgment at 2.34pm in a courtroom filled with Pakatan Rakyat leaders. He read his judgment for more than one hour and 10 minutes and granted all the prayers that Mohammad Nizar had sought.

Abdul Aziz in reading his judgment laid out the facts of the case, where he highlighted the cause and results of the political impasse as a result of the defection of the three state assemblypersons – namely Mohd Osman Jailu (Changkat Jering), Jamaluddin Mohd Radzi (Behrang) and Hee Yit Foong (Jelapang).

< ![endif]–> The judge said if the Sultan of Perak had wanted to order Mohammad Nizar’s resignation, he should have called the assembly to table a motion of no-confidence against PAS leader.

He said that

< ![endif]–>a new menteri besar could not be appointed as the office had not been vacated.

He also noted that state legal advisor Ahmad Kamal Md Shahid’s affidavit contradicted Mohammad Nizar’s version of events and decided to consider the latter’s version.

“The court cannot accept the state legal advisor’s testimony as he seemed to be a partisan witness,” he said.

What are the sultan’s powers?

The judge noted that the Sultan of Perak can use his absolute discretion in the appointment of the menteri besar and also grant a dissolution to the assembly.

“However, once the menteri besar is in office he is not under the pleasure of the sultan but under the Perak legislative assembly,” he said.

“Hence, the sultan cannot order for his resignation but this must be done through a vote of no confidence at the state legislative assembly.”

“However, based on democratic practise, the only measure to oust Mohammad Nizar was through a vote of no confidence against him.

“As I have state earlier any vote of no confidence should be on the floor of the state legislative assembly,” he said.

“Only under these circumstances can the menteri besar be forced to resign,” he said.

The decision is now set to bring about more uncertainty in the state.

The court also ordered Zambry and gang to vacate office as soon as possible. So, one wonders why there are truckloads of FRU at the state government building.

Nizar still sticks to his word that he want to have an audience with the Sultan to ask for dissolution of the assembly and call for fresh elections. He also suspended the state legal officer. When would the guy who turned of the mike will be suspended? 🙂 I wonder if the same fate awaits the rest of the top officials in Perak – state secretary, assembly secretary, financial officer etc.

From what I understand, the next step would be for either dissolve the assembly or call for vote of no-confidence against the MB. To save face, the Sultan would surely call for vote of no-confidence rather than dissolution because it would admit failure on his part. Herein lies the problem. The BN plus its friendly ADUNs outnumber the Pakatan assemblymen. The resignation of the three independent assemblymen was declared null and void by court. So, for all intent and purposes, the vote of no-confidence will kick Nizar out of his position.

Next problem will be the status of the speaker. The manner in which BN’s Ganesan was elected leaves a sour taste in the eyes of the public. The microphone was switched off and this opportunity was taken by Assemblywoman Hee who is the Deputy Speaker to take over precedings. For some, Sivakumar is still speaker, for others its Ganesan.

There is also the issue of suspension of Zambry plus 6 ADUNs by speaker Sivakumar. That was also held as invalid. So, its still leaves BN in the driving seat. Just matter of time before they vote against Nizar.

Only way out if the Sultan asks for dissolution of assembly. Again, I think it will not be so.


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