NIZAR VS ZAMBRY: THE JUDGE'S FINDINGS

For those Malaysians out there especially the UMNOputera who still hold the belief that Zambry is the rightful MB of Perak, please study the arguments and the findings the High court below as reported and compiled by sun2surf's staff.

*Nizar rightful Perak MB: Court

*The judge's findings

Nizar rightful Perak MB: Court

In yet another twist to the Perak political crisis, the High Court today declared Datuk Seri Mohammad Nizar Jamaluddin the rightful Mentri Besar of Perak.

The decision comes just four days after the tumultous one-day Perak Assembly sitting on Thursday which saw the Pakatan Rakyat Speaker V. Sivakumar being forcibly removed from the House, to be replaced by Datuk R. Ganesan, as the Barisan Nasional took control of the assembly.

Barisan Nasional, led by Datuk Dr Zambry Abd Kadir, toppled the 10-month-old Pakatan government in Perak in February after three PR assemblymen left their parties to become BN-friendly independents.

On Feb 13, Nizar, 52, filed an application to the court for a declaration that he is at all material times the rightful Mentri Besar of Perak.

In allowing five prayers sought by Nizar in his application for judicial review yesterday, Judge Datuk Abdul Aziz Abdul Rahim said once the Mentri Besar is appointed, he is only answerable to the State Legislative Assembly, and could only be removed by a vote of no confidence.

"Any measure of loss of confidence should be taken on the floor of the State Legislative Assembly by vote of no confidence. Only in this way can a Mentri Besar resign," he said.

He said Nizar never had a vote of no confidence taken against him in the Assembly and he did not request for a dissolution because of loss of confidence by the majority.

"Why did the Barisan Nasional not request Nizar to be summoned to the State Legislative Assembly to have a special sitting for a motion of no confidence to be passed? This would be in accordance with the democratic process," said Abdul Aziz.

Abdul Aziz said a Mentri 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 Mentri Besar by the Sultan was never contemplated by Article 16(6) of the Perak Constitution, he added.

As such, he said he was of the view that the office of the Menteri Besar of Perak had not become vacant or was vacated.

The five prayers sought for declarations were;

> that Nizar is the rightful Mentri Besar

> there was no dissolution of the Perak Assembly, no motion of no-confidence was passed against him in the Assembly and that he did not resign

> a writ of quo warranto is issued against Zambry ordering him to show cause and this information is made under what policy /power/ and authority he allegedly holds office as Mentri Besar, and allegedly acts or exercises or implements responsibility/ functions/ duties of Perak Mentri Besar

> a declaration order that Zambry has no right to act/occupy the office of Mentri Besar and he was not Perak Mentri Besar at any material time

> an injunction order to prevent Zambry and his agents or servants from acting and exercising and implementing the responsibility and functions or duties of Mentri Besar.

(Nizar had asked for punitive, aggravated and exemplery damages, an inquiry into the damages and costs but withdrew them last week)

After the decision, Zambry's lawyer Datuk Cecil Abraham asked for an application for a stay.

However, Abdul Aziz said he was reluctant to grant it as he had to consider legal points for a stay application on declaratory orders.

Nizar's lawyer, Sulaiman Abdullah, said he had been given instruction that Nizar intended to go back to Perak to seek a dissolution of the assembly and that would solve the problem immediately.

Attorney-General Tan Sri Abdul Gani Patail also asked the judge to decide immediately as it would be easier for the parties.

However, the judge said he was refusing an oral application for a stay and asked Cecil to put in a formal application (written) along with the authorities (cases).

"I am refusing the oral judgement," said Abdul Aziz.

S. Tamarai Chelvi and Husna Yusop/sun2surf

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The judge's findings

Judge Abdul Aziz's findings:

» He disagreed with the submission of Attorney-General Tan Sri Abdul Gani Patail, as intervenor, that there were only two circumstances under which a mentri besar could request for the dissolution of the legislative assembly.

"The A-G submitted that a mentri besar can only request for dissolution when the life term of the assembly comes to an 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 mentri besar to choose his time (to request for dissolution)."

» He also disagreed with the A-G and Dr Zambry Abd Kadir's earlier submission that Nizar was deemed to have resigned from the office of mentri besar although he (Nizar) refused to do so.

"The A-G and the respondent argued that the word 'shall resign' in Article 16(6) meant that it is mandatory that the menteri besar must resign.

"What if the mentri besar refuses to resign? However mandatory it is, the provision cannot be interpreted to mean that the mentri 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 Adviser 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.

» He preferred Nizar's version of what transpired during the audience with the Sultan of Perak at Istana Kinta on Feb 4, that he asked for a dissolution under Article 36 (2) for general purpose than Ahmad Kamal's evidence that the request was made under Article 16(6) due to loss of confidence.

He said Kamal had testified he had no personal interest and nothing to benefit from the case but he would take Kamal's evidence with a "pinch of salt".

He said Kamal testified under cross-examination that he did not make any effort to contact Nizar to correct the Proclamation of Dissolution that Nizar took with him when asking for dissolution from the Sultan of Perak.

(In the Proclamation of Dissolution draft, Nizar asked for dissolution under Article 36(2) for dissolution under general provision. Kamal said Nizar was asking for a dissolution under Article 16 (6) stating loss of confidence).

Abdul Aziz said Kamal read the Proclamation and he should have "realised the mistake" but made no correction.

"I would have thought he would contact Nizar to correct or suggest correction before presenting to the Sultan."

Abdul Aziz said Kamal testified he did not take the course of action, saying that the Sultan had not decided yet.

He said Kamal is state legal adviser and his duty is to advise on all legal matters referred to him, including advising Nizar on the draft of Proclamation.

sun2surf