KUALA LUMPUR, 18 May 2009: Sultan of Perak Sultan Azlan Shah cannot dismiss Datuk Seri Mohammad Nizar Jamaluddin from his office because the latter (menteri besar) does not hold office at the pleasure of the ruler.
This is the ruling of High Court Judge Datuk Abdul Aziz Abdul Rahim when he declared Mohammad Nizar as the legitimate Menteri Besar of Perak on 11 May.
In his 78-page judgment released to the media today, Abdul Aziz said once a menteri besar was appointed, he and his executive council were answerable to the state legislative assembly and to no one else.
He said this was so under clauses (2), (5), (6) and (7) of Article 16 of the Perak state constitution.
“Once a menteri besar is appointed, the menteri besar governs the state through the Executive Council and advises the Sultan on the affairs of the state provided under Article 18 (1) of the Perak State Constitution.
Justice Abdul Aziz said the Sultan would then act upon the advice except in matters where the Perak state constitution provides that his Royal Highness may act in his own absolute discretion.
He said based on the provisions in Article 16, the said Article requires that the legislative assembly be the one to determine whether it has confidence in the menteri besar as the head of the executive council through a vote of no confidence against the menteri besar.
“It is my opinion that the dismissal of the menteri besar by His Royal Highness or by anyone else is never contemplated under Article 16 (6) of the Perak state constitution,” he said.
He said clause 7 of Article 16 of the Perak state constitution provided that except for the menteri besar, other members of the executive council held office at the Sultan’s pleasure and they (the executive members) may be removed from office by the Sultan acting on the menteri besar’s advice.
Abdul Aziz said the Sultan of Perak had met and interviewed the three state assemblypersons who turned independent and another assemblyman who earlier quit Barisan Nasional (BN) but rejoined and they had informed the ruler that they had pledged their support for BN voluntarily without any coercion from any party.
Abdul Aziz, however, said although through the Sultan’s enquiries, His Royal Highness had judged that Datuk Seri Dr Zambry Abdul Kadir had the support of the majority of the members of the state legislative assembly, it did not mean that His Royal Highness could form an opinion that Mohammad Nizar had ceased to command the confidence of the majority of the assembly.
He said the Sultan’s personal opinion or judgment was irrelevant to the construction of Article 16 (6) which provided 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 assembly, he shall tender the resignation of the executive council”.
Abdul Aziz heard the judicial review proceedings initiated by Mohammad Nizar, 52, seeking for a writ of “quo warranto” to be issued against Zambry to show cause on what basis or authority that he (Zambry) was the rightful menteri besar.
He then declared Mohammad Nizar as the rightful menteri besar after ruling that he (Nizar) had not vacated the office of menteri besar since he had not lost the confidence of the majority of the state legislative assembly.
Mohammad Nizar, was appointed menteri besar on 17 March last year after the DAP-PKR-PAS alliance won 31 seats in the 12th general election.
Both sides, however, have 28 seats each in the 59-seat assembly after three assemblypersons from the alliance quit their parties to become independents and the fourth jumped back from PKR to Umno.
Sultan Azlan Shah then asked Mohammad Nizar to step down as menteri besar and swore in Zambry after declaring that Barisan Nasional had the majority in the state legislative assembly.
The Court of Appeal, on 12 May, granted a stay order to Zambry and has fixed this Thursday (21 May) for hearing together with Mohammad Nizar’s application to set aside the stay order.
In his written judgment, Justice Abdul Aziz also said he had no doubt that the Sultan has absolute discretion with regard to the appointment of menteri besar and the withholding of consent to a request for the dissolution of the state legislative assembly.
“I never had any doubt that the exercise of royal prerogative to appoint a menteri besar pursuant to Article 16 (2) of the Perak state constitution is solely based on personal judgment of His Royal Highness.
“And that His Royal Highness may resort to any means in order to satisfy himself and accordingly to form his judgment as to whom who is likely to command the confidence of the majority of the state legislative assembly that he can be appointed as the menteri besar to lead the executive council,” he said.
Abdul Aziz however said the same thing cannot be done with regard to Article 16 (6) in deciding whether the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly. — Bernama