|The Kuala Lumpur High Court judge who declared Mohammad Nizar Jamaluddin as the rightful Perak menteri besar (MB) last week had apparently snubbed Attorney-General Abdul (AG) Gani Patail’s submissions in arriving at his decision.
Justice Abdul Aziz Abd Rahim did not take into consideration the three points raised by Abdul Gani (right), who was acting as intervener to assist the court in interpreting the Perak constitution.
Much of the AG’s submissions had leaned towards Barisan Nasional’s Zambry Abd Kadir, who had sought a fast-track decision to resolve the political impasse.
In the 78-page judgment, a copy which was made available to Malaysiakini, the judge responded to the points that Abdul Gani had raised.
The first concerns the point of the phrase that the menteri besar shall tender “his resignation”. The AG had suggested that failure to resign when the MB does not hold the majority in the state assembly is against democratic principles – and that under established convention the person has to resign.
However, Justice Abdul Aziz did not accept this, saying: “I do not find anything in Article 16, clause 7 of the Perak constitution that warrants it to be read subject to clause 6 of the same Article in the manner suggested by the AG as to the dismissal of the menteri besar.
“There is no ambiguity in the language in clause 7. The clause simply provides that, except for the menteri besar, other members of the exco hold office at the pleasure of His Royal Highness (the sultan of Perak). This means the exco members except the menteri besar can be removed by the sultan acting on advice of the menteri besar.”
Abdul Gani’s second point, which had been adopted by lawyer Cecil Abraham (left) acting for Zambry, was that Nizar’s refusal to resign meant that the office was deemed to be vacant and that the MB was deemed to have resigned.
He further submit that the words “shall tender his resignation” according to Article 16(6) are very strong words and they are mandatory.
Again the judge rejected the submission, noting that it was clear the Perak constitution is not to be construed in a narrow sense.
“It must be construed liberally…In my view, no matter how mandatory is the word ‘shall’ in Article 16(6) it cannot be read to mean that the office of menteri besar becomes or is deemed to be vacant if the chief executive refuses to resign.
“It is obvious there is a lacuna (gap) in the said Article. But that lacuna cannot be filled up by reading into the Article a deeming provision. The lacuna must be filled up by amendment to the said Article.”
Issue of dissolution
The third submission, also adopted by Zambry’s counsel, was on the issue of dissolution of the state legislative assembly. The AG argued that this is possible in two situations – when the life term of five years ends and when the menteri besar ceases to command confidence.
“I do not agree with this submission. It is true the request may be made only under two provisions of the Perak constitution that is Article 16(6) and Article 36(1) and (2). But the circumstances under which the request can be made is unlimited,” said the judge.
“It is up to the menteri besar to choose his time to make the request. However, once a request is made under whichever of the two provisions, it is entirely up to the sultan’s discretion to grant or otherwise to dissolve the legislative assembly.
The judge quoted Sultan Azlan Shah (right), a former Lord President, in his book ‘Constitution of monarchy, rule of law and good governance on the role of the Yang diPertuan Agong’.
Justice Abdul Aziz said that “under normal circumstances, it is taken for granted that the Yang diPertuan Agong would not withhold his consent to a request for dissolution of Parliament. His role under such a situation is purely normal”.
However, the stark fact remains that a vote of no-confidence was never issued against Nizar in the legislative assembly and he had not appeared before the sultan to request dissolution because he had lost command of the majority.
“So how could one say the applicant (Nizar) had ceased to command the confidence of the majority?
“In this case, His Royal Highness through his enquiries has judged that the respondent (Zambry) has the support of the majority. But that finding does not necessarily mean His Royal Highness can form an opinion (that) the applicant (Nizar) ceases to command the confidence of the majority.
“I would say the personal judgment or opinion of his Royal Highness is irrelevant to the construction of Article 16(6). It is the legislative assembly that determines whether it has confidence in the menteri besar as the head of the executive council.”
‘Sultan can’t ask for resignation’
In his ruling on May 11, Justice Abdul Aziz had said Sultan Azlan Shah was not entitled to ask for Nizar’s resignation because the menteri besar does not hold office at the pleasure of the state ruler.
Abdul Aziz said that once a menteri besar is appointed, he and his executive council are answerable to the state legislative assembly and to no one else, as stated in clauses 2, 5, 6 and 7 of Article 16 of the Perak constitution.
“Once a mentri besar is appointed, the mentri besar governs the state through the exco and advises the sultan on the affairs of the state provided under Article 18(1) of the Perak constitution.”
Based on the provisions in Article 16, it is for the legislative assembly to determine whether Nizar commands confidence as menteri besar.
“It is my opinion that the dismissal of the mentri besar by His Royal Highness or by anyone else is never contemplated under Article 16(6) of the Perak constitution,” he said.
He said Article 16(7) of the Perak constitution provides that, except for the MB, other exco members hold office at the sultan’s pleasure and can be removed from office by the sultan acting on the MB’s advice.
Justice Abdul Aziz noted that Sultan Azlan Shah had interviewed the three state assemblypersons who became Independents who said they had pledged support for BN voluntarily without any coercion from any party.
“But how could the respondent (Zambry) assume office? There cannot be two menteris besar in one state at the same time. The main issue in the present application revolves around the interpretation of the Perak constitution and the alleged usurpation of the office of menteri besar by the respondent.”
The judge went on to question why Zambry had not requested the sultan to summon the Perak assembly for a special sitting so that a motion of a vote of no-confidence could be tabled and passed against the applicant.
“That would be more in accord with the democratic principles and practices. For the above reasons and circumstances, I am of the view that the office of menteri besar of Perak has not become vacant or vacated,” he said.
He then declared Nizar as the rightful menteri besar, after ruling that he (Nizar) did not vacate the office since he had not lost the confidence of the majority of the assembly.
However, the Court of Appeal has allowed a stay of the order and a notice of appeal has been filed by Zambry. This will be heard on Thursday together with Nizar’s application to set aside the stay order.