Datuk Seri Mohammad Nizar Jamaluddin was declared the rightful Perak Menteri Besar by the High Court here Monday.
With the decision, the question of who is the rightful Menteri Besar — Nizar or Datuk Seri Dr Zambry Abdul Kadir — which has plunged the state into political turmoil for more than 100 days, was finally answered.
High Court (Appellate and Special Powers Division) judge Datuk Abdul Aziz Abd Rahim ruled that Nizar did not vacate the office of Menteri Besar as he had not lost the majority confidence of the state legislative assembly.
In this case, said Abdul Aziz, there was no vote of no confidence issued against Nizar.
“How can one say that the applicant (Nizar) had lost his majority confidence under Article 16(6) of the Perak Constitution?”
“Based on the democratic practice, the issue of the loss of majority confidence should only be taken by a vote of no confidence against the applicant (Nizar), only by this manner can a Menteri Besar be removed,” Abdul Aziz, said in his written judgment which was delivered at 2.30pm.
On Feb 13, Nizar, 52, filed an application to the court for a declaration that he is at all material times the rightful Menteri Besar of Perak.
Nizar, who was appointed Menteri Besar on March 17 last year after the opposition alliance won 31 seats at the 12th general elections, also sought a declaration that Zambry has no right to hold the office of Menteri Besar.
Abdul Aziz, in his judgment, said that a Menteri Besar could not be dismissed by the Sultan of Perak for the reason that he did not hold the office at the sultan’s pleasure.
The dismissal of the Menteri Besar by the Sultan of Perak was never contemplated by Article 16(6) of the Perak Constitution, he added.
Abdul Aziz said that although the Sultan of Perak had the prerogative power in a Menteri Besar’s appointment, a Menteri Besar, once appointed, was only answerable to the members elected in the state legislative assembly, and no one else.
In his judgment, Abdul Aziz, who is the third High Court judge hearing the case, disagreed with the submission of Attorney-General Abdul Gani Patail, as intervenor, that there were only two circumstances under which a Menteri Besar could request for the dissolution of the legislative assembly.
“The AG submitted that a Menteri Besar can only request for dissolution when the life term of the assembly comes to and end, that is under Article 36(2) and the other one is when he ceases to have command of the majority.
“I do not agree with this. Under Article 36 of the Perak Constitution, there are unlimited circumstances for the Menteri Besar to request for dissolution from the sultan, and it is up to the Menteri Besar to choose his time (to request for dissolution),” said Abdul Aziz.
The judge also disagreed with the AG and Dr Zambry’s earlier submission that Nizar was deemed to have resigned from the office of Menteri Besar although he (Nizar) refused to do so.
“The AG and the respondent argued that the word ‘shall resign’ in Article 16(6) is mandatory that the Menteri Besar must resign.
“What if the Menteri Besar refuses to resign? However mandatory it is, the provision cannot be interpreted to mean that the Menteri Besar is deemed to resign,” said Abdul Aziz who suggested that the article be amended to rectify the lacuna in Article 16(6) of the Perak Constitution.
On the issue of the affidavit by Perak State Legal Advisor Datuk Ahmad Kamal Md Shahid, Abdul Aziz ruled that he was not a neutral and impartial witness.
“It was his own admission that he was instructed by the respondent’s counsel to affirm the affidavit. The word instructed is a very strong word.
“To me he is not a neutral or impartial witness, his testimony was coloured by the instruction that he received,” said Abdul Aziz who preferred Nizar’s version of what transpired during the audience with the Sultan of Perak at Istana Kinta on Feb 4.