What is the difference? Asked to vacate the seat vs Sacked, AG an idiot

Lawyer for Datuk Seri Mohammad Nizar Jamaluddin argued in the High Court here today that Datuk Dr Zambry Abdul Kadir's appointment as Perak Mentri Besar on Feb 6 was unconstitutional.

Sulaiman Abdullah contended that Zambry could not claim the office because Nizar had not resigned and that the office of Perak Mentri Besar was never vacant.

"The appointment of a person to the office of Mentri 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 Mentri Besar," he said in his two-hour submission.

Nizar, 52, was appointed Perak Menteri Besar on March 17 last year and on Feb
13, 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 Mentri 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 Mentri Besar.

Sulaiman also argued that the Mentri Besar could not be dismissed by the Sultan of Perak.

"The Mentri 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 Mentri 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 (Mentri 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 Mentri 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 Mentri Besar had lost his majority confidence.

"When Mentri 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 Mentri Besar and the discretion to appoint two persons to the office of Mentri 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.

Earlier, Attorney-General Tan Sri Abdul Gani Patail submitted that the Sultan had never sacked Datuk Seri Mohammad Nizar Jamaluddin as Perak mentri besar as his removal from office was lawfully made under Article 16(6) of the Perak Constitution due to loss of confidence of the majority in the State Assembly.

He said the Sultan performed his duty under the Perak Constitution, and had carefully considered the facts and circumstances before declaring on Feb 5, that Barisan Nasional (BN) had the majority in the state assembly.

"The Sultan of Perak had clearly performed his function in the most honourable way that I have seen," said Abdul Gani, who appeared as the intervener in the judicial review proceeding filed by Mohammad Nizar on Feb 13, this year.

"His Royal Highness, in making sure that there was no irregularities in his decision, had met and interviewed the three assemblymen, Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) to make sure that Barisan Nasional has their support.

Abdul Gani said there was no constitutional provision requiring a motion of no-confidence to be issued before Mohammad Nizar could be removed from office.

"The Sultan of Perak had personally ascertained the facts, by calling the 31 assemblymen, before arriving at his judgement that the applicant (Mohammad Nizar) had lost confidence of the majority," he said.

Earlier, Mohammad Nizar who continued with his testimony in the cross- examination proceeding, told the court that he was only aware of the withdrawal of the three assemblymen's resignation letters after an audience with the Sultan at 5pm on Feb 4.

"I only knew about it after I left the palace when my officer informed me over the telephone at 6pm that a news bulletin said that Datuk Seri Najib Tun Razak (now prime minister) claimed the trio hopped to Barisan Nasional and that BN has the majority," he said.

The submission before Justice Datuk Abdul Aziz Abd Rahim continues tomorrow.

The Sun
06/05/09