MB vs MB: Judgment on the appeal by Dato Zambry today at 3.30 pm

By Hafiz Yatim

Barisan Nasional's Zambry is appealing against a High Court decision which ruled last week that his rival Mohammad Nizar Jamaluddin was the legitimate menteri besar. The appellate court had spend the whole day today hearing submissions from both parties as well as from the Attorney General. Before a packed court room, which saw some of the Pakatan leaders like Perak DAP chief Ngeh Koo Ham and Perak BN exco member Hamidah Osman sitting on the floor while many more like DAP's A Sivanesan and Nga Kor Ming standing, the case captured the interests of many people including court staff. Throughout the almost eight-hour proceedings today, some of the court staff were seen to be peering from the side door of the court room to listen attentively to the proceedings while trying to catch a glimpse of Nizar. Nizar arrived in court at about 9.20am with his wife Fatimah Taat and a hosts of supporters. Justice Md Raus Shariff who was leading a three-member panel decided to reserve judgment on the proceedings at the end of the day. By then the court has heard submissions by Cecil Abraham for Zambry, Sulaiman Abdullah for Nizar and Attorney General, Abdul Gani Patail who was present as an intervener, advising on constitutional matters. The other two judges on the bench were justices Zainun Ali and Ahmad Maarop. The day started with a set back for Nizar who had wanted a five-member panel to hear the case. However, it was learnt that the application which was addressed to the Court of Appeal registrar, did not reach the President of the Court of Appeal Alauddin Md Sheriff on time. Nevertheless, the matter proceeded with the three judges, with lawyers for both parties not objecting. High Court judge had erred Cecil started the day by submitting that KL High Court judge Abdul Aziz Abd Rahim had not given proper weight to the documentary evidence produced before him on the legality of Zambry's appointment when he made his decision on May 11. The documentary evidence, he said, based on the Sultan of Perak's press statement had showed that the ruler had ordered Nizar to resign after he found that the Pakatan leader may have lost command of the assembly. "The constitutional provision under Article 16 (6) of the Perak constitution commands that Nizar resigned following the sultan's instruction after the ruler did not accede to the request for the dissolution of the assembly," said the lawyer (photo). "There is no express provision that a motion of no-confidence in the state legislative assembly is the only way to remove a mentri besar," he said, adding that "there were other means, such as the interview by the sultan on the assemblypersons to determine who commands the majority. Describing the high court's decision as "incomplete and inaccurate", Cecil said justice Abdul Aziz had not taken into account "contemporaneous evidence". While Cecil was submitting, justice Md Raus interrupted him to ask him what would happen if Nizar refused to resign. Justice Raus: What happens if respondent (Nizar) refuse to resign? Cecil: The constitution has dismissed him, that's my answer. Cecil said that the situation was also not a deadlock as claimed by Nizar as BN had the support of three independents. "They have informed the sultan that they have not resigned from their seats and would support BN. "The sultan then interviewed all 28 BN reps, the three independents and (the then state Umno chief) Najib Abdul Razak on Feb 5 to ascertain if BN had the majority. "Only then did the sultan inform Nizar that his request for dissolution was rejected and asked him to step down," said Cecil. He said that the sultan then appointed Zambry as the new menteri besar based on Article 16(2) of the Perak constitution. He further argued the Perak constitution had no provisions to state that Nizar's loss of majority must be confirmed through a vote of no-confidence only. AG: Nizar admitted losing majority Attorney General Abdul Gani said Nizar, in his affidavit, had indirectly admitted that he has lost the majority in the state assembly by admitting that there was a deadlock in the assembly with both Pakatan and BN having 28 seats each. However Abdul Gani said that since speaker V Sivakumar was also part of Pakatan's 28 elected representatives, his position as a speaker would have disallowed him to vote in the vote of no-confidence if it was called. "Hence the situation is actually BN 28 and Pakatan 27 excluding the speaker. The speaker can only vote if there was equal number of votes in the house," he said. Abdul Gani further argued that there were no provisions under the Perak constitution for a menteri besar to be voted out through a vote of no-confidence to show that he had lost the majority in the house. "If you have lost the confidence (in the house), you must resign. You cannot let the system go to disarray as we had seen in the legislative assembly," he said. The AG also adopted Cecil's argument that the High Court judge's adoption of a previously decided case law - the Stephen Kalong Ningkan case - was wrong. Sultan has no such power Nizar's lawyer Sulaiman meanwhile thrashed the submissions made earlier in the day, calling them "absurd". He said that there was no provision in the state constitution that gave express power for the sultan to sack a menteri besar. "Even if what Zambry says is correct (about the majority in the house), there is no constitutional provision for the menteri besar to be dismissed or sacked," he argued. He added that the sultan can dismiss the state exco but not the MB. "That has to be done at the assembly where a vote of no-confidence should have been made. That is the proper way to go back to the floor of the assembly," he said. He added that the only way to resolve the problem was by calling for a motion of no-confidence in the assembly. "If he (Nizar) loses confidence of the floor, the honourable thing to do is to resign. It cannot be seen as to be vacated." He also said that speaker Sivakumar had also written to the sultan on Feb 6 to ask for a special seating and to seek the postponement of Zambry's appointment. "But the ruler did not accede to it and appointed Zambry instead," he said. The lawyer also added that they were not challenging the sultan's power not to dissolve the assembly. "But he cannot take the large step forward to determine Nizar has lost his majority and order him to resign," he said. Malaysiakini