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High court declares Nizar rightful MB (Updated 8.32pm)

Corrected at 10.45pm, 14 May 2009
Corrected
at 12.30pm
,
12 May 2009

Updated 8.32pm, 11 May 2009


Nizar hugs his wife Datin Seri Fatimah Taat after the court decision today

KUALA LUMPUR, 11 May 2009: The Kuala Lumpur High Court today ruled that Datuk Seri Mohammad Nizar Jamaluddin is the rightful menteri besar of Perak, providing some relief to more than three months of uncertainty as to who should head the state government.

High Court (Appellate and Special Powers Division) judge Datuk Abdul Aziz Abd Rahim, said the menteri besar can only be dismissed by a no-confidence motion in the state legislative assembly.

“The stark fact is, there never was any vote of no-confidence taken in the legislative assembly.

“So how could one say that the applicant (Nizar) had ceased to command the majority confidence? Evidence as to the loss of confidence was taken from various sources and not a vote in the assembly,” said Abdul Aziz.

Abdul Aziz, in his decision on the judicial review application filed by Nizar, also ruled that there was no vacancy in the menteri besar post.

“I am of the view that the office of the menteri besar of Perak has never become vacant or been vacated.

“Only in this manner (a vote of no-confidence) can the menteri besar be forced to resign.”

Nizar was ousted after Barisan Nasional (BN)’s Datuk Seri Dr Zambry Abdul Kadir was sworn in as Perak menteri besar on 6 Feb following the BN takeover of the state government. The takeover was percipitated by the defection of three Pakatan Rakyat (PR) assemblypersons who opted to become BN-friendly independents, leading to PR losing its majority in the state assembly.

(Corrected) Nizar, who had sought an audience with the sultan of Perak on 5 Feb to request the dissolution of the state assembly but was turned down and instead ordered to step down as MB, filed suit against Zambry.

On 13 Feb, Nizar, 52, filed an application to the court for a declaration that he is at all material times the menteri besar of Perak. He also sought a declaration that Zambry has no right to hold the office of menteri besar.

MB “cannot be dismissed by sultan”

In his judgment, Abdul Aziz said the democratic thing for BN to have done after it secured the majority in the state assembly was to have requested the Perak ruler to summon a special sitting for the assembly to pass a no-confidence vote on Nizar.

“Why didn’t the BN [do this]? This would have been in accordance with the democratic process,” Abdul Aziz said.

The judge said Article 16(7) of the state constitution stated that the menteri besar did not hold office at the pleasure of the sultan, and only executive councillors did. As such, the MB could not be dismissed from office by the sultan.

He said the court was not disputing the sultan’s prerogative to appoint an MB and to withhold consent to a dissolution request.

However, Abdul Aziz said once the MB was appointed, he was answerable to the legislative assembly “and no one else”.

He said that Article 16(6) “was plain and clear” that it did not provide for the dismissal of the MB. This provision had been used by Zambry’s counsel to argue that Nizar had lost the majority confidence when he sought the sultan’s consent for dissolution.

Article 16(6) of the Perak Constitution states that: “If the menteri 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.”


Abdul Gani Patail
(Source: agc.gov.my)
Attorney-General Tan Sri Abdul Gani Patail, who was an intervener in the case for Zambry, had argued during the hearing that Nizar should have automatically resigned after the sultan had personally met the three independents to ascertain that the BN had the majority numbers in the House.

Abdul Aziz said he agreed with Nizar’s contention that he sought dissolution based on Article 36(2) of the state constitution, and not because he lost the majority confidence. Article 36(2) gives the sultan the power to summon the assembly, dissolve or prorogue it.

The judge also disagreed with Abdul Gani that the sultan was limited to dissolving the assembly under two circumstances — when the House reaches the end of its five-year term, and when the menteri besar loses the majority confidence.

“It is up to the menteri besar to choose his time to make the request (for dissolution). Once the request is made, it is up to His Royal Highness,” Abdul Aziz said.

The judge also questioned the impartiality of state legal adviser Datuk Ahmad Kamal Md Shahid, who had submitted an affidavit to back Zambry’s application.

Under cross-examination, Ahmad Kamal has said he was “instructed” by Zambry’s counsel to submit the affidavit, which Abdul Aziz took as a sign that the state legal adviser was not completely neutral.

Abdul Aziz said a precedent had already been set by the Sarawak High Court in 1966 in Stephen Kalong Ningkan vs Tun Abang Haji Openg and Tawi Sli, whereby the governor could not dismiss the chief minister and could not appoint a second CM while there was still one in office. The court had ruled that the only way for a CM to be dismissed was by way of a vote in the Council Negri.


Sulaiman Abdullah
After the decision was announced, Zambry’s lead counsel Datuk Cecil Abraham immediately applied for a stay of execution of the High Court’s decision in order to file an appeal. However, Abdul Aziz rejected the verbal application for a stay, and asked Cecil to file a formal application.

Zambry’s lawyers want a stay to the court’s declaration today in order to file for an appeal of the High Court decision.

Nizar’s lead counsel Sulaiman Abdullah said the stay should not be granted as the Perak constitutional crisis needed to be resolved urgently. “Allowing a stay would only let it fester.”

BN to appeal decision

Meanwhile in PUTRAJAYA, Prime Minister Datuk Seri Najib Razak said the BN will appeal against the Kuala Lumpur High Court’s decision, probably by tomorrow.

“We feel we have a strong case,” he told Bernama after meeting Pemudah, the Special Task Force to Facilitate Business, at his office, here.

Asked what would happen in Perak between now and pending the appeal, Najib said: “We must have a date [to appeal], probably tomorrow.”

He called on the people in that state to remain calm and not get too excited with the latest development.

Zambry, who was not in the courtroom when the decision was announced, said in a press statement that he accepted the decision of the High Court.

“I accept the court decision with an open mind. My colleagues and I will take the next course of action according to the law,” he said in a brief statement released through his press secretary Mohd Nizam Isa.

Zambry also called on all BN supporters and the people of Perak to remain calm in view of the latest development.

“We will pack up our things and vacate the office as soon as possible,” said Mohd Nizam.

“Victory for the people”

As Abdul Aziz left the courtroom, a jubilant Nizar told reporters that he would immediately return to Ipoh to seek an audience with Perak Ruler Sultan Azlan Shah for a dissolution of the state assembly. However, it is believed that Sultan Azlan is currently overseas, and that Nizar will probably seek an audience with the Regent Raja Nazrin Shah tomorrow morning in Kuala Kangsar.

“This is consonant with justice. This is the rule of law. It’s a victory for the people of Malaysia who love democracy.” Nizar described Abdul Aziz as “a brave and courageous judge”.

He also released a prepared press statement asking Zambry and the six executive councillors to vacate their posts with immediate effect in compliance with the court order.

Nizar also said that state legal adviser, Ahmad Kamal, is suspended with immediate effect. He also plans to call an exco meeting as soon as possible.

Additionally, Nizar’s statement also said that all previous decisions made by Zambry and his exco were now subject to review (by the Pakatan Rakyat state government), although not to be invalidated until further notice.

However, the 7 May sitting in which the BN assemblypersons and independents had voted out speaker V Sivakumar and installed Datuk R Ganesan as new speaker, is not subject to review as it is considered illegal, Nizar said.

Decision hailed by PR

Numerous political party leaders also voiced their support for the High Court’s decision.

In a media statement, Opposition Leader and Parti Keadilan Rakyat (PKR) adviser Datuk Seri Anwar Ibrahim hailed the decision, saying it is “a victory for the rakyat and also the country’s democratic system.”

He said the decision “proved that the Federal Constitution is the highest law in the country,” and that it is important for all government institutions to respect this.

“This includes the doctrine of separation of powers which clearly separates executive, judiciary and legislative powers,” he said.

Anwar further said, “In line with this, it is important to recognise the 3 March 2009 assembly sitting under the tree and all resolutions passed on that day.”

Anwar also called for fresh elections in Perak.


Lim (Pic by Roman888)
In PENANG, Chief Minister Lim Guan Eng said the decision was “momentous” and “a victory for the people of Perak, democracy and justice”.

He said in a statement that DAP reiterated its call for “an immediate dissolution of the Perak state assembly” and “fresh elections to allow the rakyat the right to choose their own government”.

DAP Socialist Youth national chairperson and Member of Parliament (MP) for Rasah, Loke Siew Fook, said in a statement, “This judgment proves that Pakatan Rakyat’s efforts to uphold the rule of law and the democratic institution in this crisis have been vindicated.”

He too added that a dissolution of the assembly and fresh elections were the “best way out of this crisis”.

PKR MP for Kulim-Bandar Baru Zulkifli Noordin said in his statement, “I hope this time the sultan will respect the provisions and spirit of the laws and accept this advice by calling for an immediate dissolution of the Perak state assembly.”

Meanwhile, Gerakan national youth deputy chairperson Oh Tong Keong urged Perak BN to respect the court’s decision.

“The best course of action is for Nizar and Zambry to advise the sultan of Perak to dissolve the state assembly and pave the way for new elections so the people of Perak have the final say on who should lead them,” Oh said.

Oh also said that Perak BN should not call for a stay of execution as it would “create the impression that the BN is hungry for power”.

In another statement, however, Malaysian Bar Council chairperson Ragunath Kesavan said in response to the High Court’s decision: “The answer ultimately does not lie in the courts.”

“No doubt Zambry will now appeal this decision to the Court of Appeal, and further legal arguments will be advanced,” he said.

“Whichever side loses at the Court of Appeal will then appeal to the Federal Court — the issue will go on and on,” he continued.

To avoid such legal wrangling, Ragunath said, “Both sides of the political divide must now realise that power has to be returned to where it rightly belongs — in the hands of the people, the electorate of the state of Perak.”

See: Court cases related to the 2009 Perak constitutional crisis (Corrected)
          Raja Nazrin Shah can decide on dissolution

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48 Responses to “High court declares Nizar rightful MB (Updated 8.32pm)”

  1. kip says:

    So this is the truce that our beloved PM is talking about? So much for working together. This strategy will gain back some support for them. Wonder what is coming next? Throw the new speaker OUT?

  2. Reza says:

    Wow, I must admit I didn’t see this coming. There’s hope for our judiciary after all.

  3. M.K. says:

    Justice has prevailed when most of us had very little hope. Somehow, God has heard our prayers! God bless Malaysia..

  4. Nicholas.C says:

    Very Good. First order of business – firing the state secretary and his men.

  5. lizzie says:

    So an MB can only be removed by a vote of no confidence in the assembly. Ganesan’s appointment as speaker is quite timely, it seems. So still no end to the Perak issue, as we would now have to hassle over the speaker appointment.

    I hope the sultan is taking note of the development.

  6. Raguel says:

    So justice prevails after all. What cunning trick will the usurper use further?

  7. terri says:

    Najib’s administration finally listening to the people? If it is, I say give them a chance, support and encourage them to right the wrongs.

  8. KIMIE says:

    Excellent verdict.

    At least the court shows justice. Keep it up.

  9. Sam says:

    Nothing to be happy about. The Federal Court will overturn this decision. Come on.

  10. Sumana From Sri Lanka says:

    PR govt should fire the state secretary and his men. Throw the BN MB and new speaker OUT right away.

  11. CONCERNED PERAKIAN says:

    Unbelieveable! For a long time I thought that political cases must be decided in favour of BN. I salute the brave judge for his courage to act without fear or favour. God bless Perak. For Datuk Seri Nizar, please sit in your seat first before further decisions are made. Don’t be hasty and be fooled again by the BN tricks and the every ready (?) police force!

  12. Erice says:

    Nizar, please leave the Jalan Duta Court NOW and report for work immediately. Perakians are wondering what you have been doing this whole time (forget the Z-clown interlude).

    1BLACK Malaysia. Democracy first. Elections now.

  13. Ahmed Zainal says:

    Great! Justice is done finally! Now let us, the Perak people to do our part and tell them who we want as our govt. A lesson to teach BN that we are not puppets.

  14. Andrew Khoo says:

    I am given to understand that Nizar is seeking an audience with HRH the Sultan of Perak to dissolve the Perak State Assembly. Instead of trying to appeal the decision at the Court of Appeal (and the loser there will no doubt then appeal to the Federal Court), let all sides agree that the best solution is to return to the electorate of Perak and to let them decide. And let this be a lesson that we all learn, regardless of position, social status and supposed legal knowledge, about our constitution.

  15. sam says:

    This news is one day in advance. Is it just a hope or what?

  16. lakian says:

    This is what i have expected. Najib must compromise finally. This is what the Sultan of Perak wants also. Next will be the dissolution of the house and fresh elections be held. Zambry will be crying and retire from politics.

  17. Malaysian says:

    God bless you, Datuk Abdul Aziz Abd Rahim, for restoring our faith in the Malaysian judiciary!

  18. sam says:

    True or not? tomorow maybe zambry is rightful MB.

    Oooh how about my auction for the car?

  19. hamzah says:

    Let the rakyat decide!

    To ketuanan rakyat!

  20. Ben says:

    Congratulations! Cheers!

  21. Paul Ong says:

    Nizar might win this round, but what if the Sultan refuses to dissolve the assembly and later they can have a vote of no confidence against Nizar, remember BN now forms the majority with the inclusion of the three BN-friendly kataks, unless of course the three kataks are considered expelled due to charges for corruption etc.

  22. christine ooi says:

    Hurray! Congrats! I’ll support you!

  23. Sam says:

    This decision simply means whatever happened after Feb 5 is invalid and of no effect. So, there is no MB Zambry or ex-co or BN Speaker or sale of the Camries. All of them must vacate their position and Nizar will walk back into his office and return to his official residence.

    But Nizar should not suspend the legal adviser or anyone yet. This can be exploited by the media as arrogance. Of course even the Speaker’s secretary, sergeant at arms and the state secretary must be sacked, not suspended. But do it after the elections when Pakatan wins all 59 seats.

  24. Didi says:

    Don’t be happy too fast. Is this really an independent court decision or just some kind of candy for the sake of some parties? I can give you candy or slap your face up to my mood and desire?

    Think twice.

  25. nick chan says:

    Hail Malaysia’s judiciary!

  26. fauzi says:

    Zambry can get the hell out of there.

  27. davidng says:

    I am wondering at all these – is it a plot again?

    To gain people’s trust and support to our beloved PM.

    Don’t be excited yet, let’s see what happens next.

  28. chris says:

    Oh Tong Kong – way to go. Marvelous, your righteousness.

  29. goldenscreen says:

    The next course of action is to bring Hee Yit Foong to court for her illegal usurpation of the Speaker’s position. The fact that Hee cites Article 36(A) without understanding its contents shows how worthless she has become.

    Pray tell, how did Hee Yit Foong have the power to convene a mini dewan and assume the position of speaker when Sivakumar was still the Speaker of the House? Sivakumar was not ordered by any court of law to relinquish his position and by the very fact that Sivakumar at the time was still physically occupying the Speaker’s chair. So on what constitutional basis did Hee Yit Foong claim her power to usurp the Speaker and pass motions in the state assembly?

    The entire proceedings of the state assembly starting from Hee Yit Foong’s illegal act has rendered subsequent events in the state assembly as null and void.

    Article 36(a):
    “During the absence of the speaker from a sitting of the legislative assembly, such members as may be determined by the rules of procedure (standing orders) of the assembly, shall act as speaker”

    Hee Yit Foong, when you took power illegally the Speaker was physically present not “absent” as Article 36(a) states. It is you Hee Yit Foong that has gone against the Perak State Constitution and for your earlier betrayal of Jelapang voters. We hereby demand that you resign with immediate effect as the Adun of Jelapang.

    I highly suggest Pakatan Rakyat immediately launch legal proceedings against Hee Yit Foong to stop BN from convening an illegal vote of no confidence. Haste is required, time is running short!

  30. goldenscreen says:

    I think people should not be too quick to think that the judge in question is on the people’s side. For all we know the judge may have been following orders from opposing camps, or they could be doing wayang kulit to make us think he is free and fair and then later use the same judge to send Anwar to jail.

    Then at that time Umno will paint us as hypocrites for only saying the judge is fair when his decisions are for us and unfair when against us.

    One swallow does not make a summer. I will reserve judgment on the judiciary until I see a clear pattern of neutrality and not base it on a one-off case.

  31. Ewon B says:

    Congrats to Nizar.

    Rakyat First!

  32. Deepak Gill says:

    Haha! Oi Zambry! Time to stop auctioning the cars that don’t belong to you!

  33. Terence says:

    I have seen this coming when I heard about PM’s call for truce from the radio while driving to work. One word for the BN govt – predictable!

  34. k c low says:

    During the whole episode of the Perak affair, the person I respect most is the Speaker Mr Sivakumar. He is a man of principle. Good show. Cheers.

  35. k c low says:

    Welcome back Nizar. You are the legitimate Menteri Besar of Perak all the while. Cheers.

  36. Phoon says:

    - Praise the Lord, that not all the apples are rotten in the judiciary.

  37. tebing tinggi says:

    Justice has prevailed, decision had been made and the court had passed out a judgment – will it be adhered to? Look at the Federal Court decision on 16 April 2009 on the suspension of Zambry and six others – it was not respected by Sivakumar.

  38. Kamal says:

    Wow … I am sure not many saw that coming. Good on you judge. I suppose, now all can “follow” the advice of a senior BN member when he said all should abide by the law; I am sure he couldn’t have predicted this several days ago. And the only Perak MB should of course set things straight back in Perak, now that he is back in the hot seat. And if I may add, this is exactly why government servants should not be partisan in executing their duties. No agency or department stands above the law. This at least reminds us that we still are a democracy and not a feudal society. And, in the long run this is in everyone’s interests.

  39. stk says:

    Don’t be so sure PR. BN will do all sorts of nonsense to avoid dissolution of the state assembly.

  40. Andrew says:

    “We feel we have a strong case,” said Najib. Yeah, he would say this, no? He is probably thinking of Augustine Paul to help his case out.

  41. CH says:

    Congratulations. Indeed, justice is the light illuminating all of us. Esp to Perakians.

    “Government of the people, by the people, for the people, shall not perish from the Earth.” Abraham Lincoln.

  42. CONCERNED PERAKIAN says:

    Advice to PR assemblypersons: please take care of you and your family’s safety.

  43. Ritchie says:

    What happened to Najib’s statement on working together with Pakatan? It does not take long for the rakyat to witness the lust and aggression of Barisan Naisonal to wrest power in Perak. The court has given its verdict, now instead of prolonging it to further court appeals, dissolve the state assembly and call for a fresh election.

  44. choovs says:

    This is a good judgment — to the Pakatan Rakyat — but one should not celebrate prematurely.

    There will be appeals, and counter-appeals, and what is important is the final verdict.

    Tuesday, we should know if the palace will grant Datuk Nizar’s fresh bid for dissolution of the state assembly. Only by calling for new state elections will the political stalemate be resolved.

    We need to end this crisis fast, so Perak can return to “normal”.

  45. Pei Ling says:

    Silver lining in Perak constitutional crisis.

    Hoop hoop hurray Justice Abdul Aziz!

  46. elaine says:

    Though I want to join in the celebration, my past traumatic experience tells me to wait first. It cannot be so easy. BN will not let go so easily, tomorrow things will be different. Still need to pray hard and be humble till the day Perak is truly free from the tyranny of the evil ones.

  47. mythlord says:

    I respect the decision of this court. But seeing the comments above, it seems to me that the only way for a court to be seen as independent is for it to side with PR. What if it had sided with BN? Would it then be called independent, or a stooge?

    If the court had sided with BN and accused of being controlled and stripped of its independence, then couldn’t the same accusation be leveled against PR if it had decided for it?

  48. Ariff says:

    Stop dreaming and live with reality. However, everyone has an obligation to exercise these rights peacefully, with respect for the law and for the rights of others.


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