Updated 8.56pm, 5 May 2009
KUALA LUMPUR, 5 May 2009: A lawyer for Datuk Seri Mohammad Nizar Jamaluddin argued in the High Court here today that Datuk Dr Zambry Abdul Kadir’s appointment as Perak Menteri Besar on 6 Feb was unconstitutional.
Sulaiman Abdullah contended that Zambry could not claim the office because Nizar had not resigned and that the office of Perak Menteri Besar was never vacant.
“The appointment of a person to the office of Menteri Besar may only be valid if the said office is vacant.
“If the office is not vacant, there cannot be another legal appointment to the office as there cannot be two persons holding one office of the Menteri Besar,” he said in his two-hour submission.
Nizar, 52, was appointed Perak Menteri Besar on 17 March last year and on 13 Feb 2009, he filed a judicial review application at the High Court (Appellate and Special Power) to seek declaration that he is and at all material times the Menteri Besar of Perak.
In his affidavit to support the application, Nizar affirmed that:
* He had advised and sought the dissolution of the Perak state legislative assembly to avoid a possible deadlock in the administration of the affairs of the state in view of the resignation of three members;
* There was no dissolution of the assembly;
* There was no motion of no confidence tabled against him in the assembly; and
* He had not resigned from the office of the Menteri Besar.
Sulaiman also argued that the Menteri Besar could not be dismissed by the Sultan of Perak. “The Menteri Besar may only be dismissed after a vote of no confidence is passed against him by the members of the legislative assembly,” he said.
This was because, he said, the Menteri Besar does not hold office at His Royal Highness’s pleasure but holds office subject to the confidence of the members of the assembly to whom he (Menteri Besar) is responsible.
“The role of His Royal Highness under Article 16(6) is solely of deciding whether or not to dissolve the legislative assembly if the Menteri Besar loses the vote of no confidence,” he said.
Sulaiman, who disagreed with the earlier submission by intervener Attorney-General Tan Sri Abdul Gani Patail, said the dissolution of the legislative assembly was not confined to the circumstances where the menteri besar had lost his majority confidence.
“When Menteri Besar meets the Sultan to request for his consent to dissolve the assembly, it is not an admission that he has lost the majority confidence.
Dissolution can be requested at any time, for any reason, and not restricted to the loss of the majority confidence,” he said.
He also urged the court to follow and apply the decision the Sarawak High Court in 1966 in Stephen Kalong Ningkan vs Tun Abang Haji Openg and Tawi Sli to the present case.
In that case it was held that the Governor could not dismiss the Chief Minister and could not appoint a second Chief Minister while there was still one in the office, and that the only way for the Chief Minister to be dismissed was by way of a vote of no confidence in the Council Negri.
He added that like the Sarawak Constitution, the Perak constitution was very clear that it does not confer the power to dismiss the Menteri Besar and the discretion to appoint two persons to the office of Menteri Besar.
“The provisions of Article 7(1) of the Sarawak constitution is similar to Article 16(6) of the Perak constitution and the decision of the case is still good law,” said Sulaiman.
The submission before Justice Datuk Abdul Aziz Abd Rahim continues tomorrow. — Bernama