Tuesday May 12, 2009

Nizar is the valid MB

By M. MAGESWARI and LISA GOH

KL High Court declares Nizar as Perak MB
Nizar declared the rightful Perak MB

KUALA LUMPUR: The High Court has declared that Datuk Seri Mohammad Nizar Jamaluddin is the valid Perak Mentri Besar, ruling that his office has not been vacated.

High Court (Appellate and Special Powers) judge Justice Abdul Aziz Abdul Rahim granted a declaratory relief to Nizar that he is still and was Mentri Besar at all material times.

Datuk Seri Mohammad Nizar Jamaluddin waving to supporters as he leaves the courthouse after the High Court declaration in Kuala Lumpur yesterday. Nizar is to seek an audience with the Perak Ruler to seek the dissolution of the State Assembly. -KAMARUL ARIFFIN and ZABIDI TUSIN / The Star

The court, which issued a declaratory relief that Datuk Seri Dr Zambry Abd Kadir had no right to occupy the office of Perak Mentri Besar, also ordered him to show cause and give information under what policy, power or authority he allegedly held office and exercised the responsibilities, functions and duties as Mentri Besar.

There was clapping and cheering in the packed courtroom when the ruling was handed down.

Justice Abdul Aziz, who read out his written judgment for more than an hour, said that Nizar, once appointed Mentri Besar, was only answerable to the State Legislative Assembly.

“Based on democratic practice, the vote of no-confidence should be taken on the floor of the assembly and only that way, he (Nizar) could be forced to resign. (Otherwise,) how could Nizar lose confidence on the purpose of Article 16 (6) of the Perak Constitution?,” Justice Abdul Aziz pointed out.

Article 16 ( 6) states that if the Mentri 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.

In his suit filed on Feb 13, Nizar, a PAS member, challenged the legitimacy of Dr Zambry and the new state government.

The judge said Nizar only sought to get the declaratory relief to look into the relevant provisions of the Perak Constitution, particularly Article 16 (6) on grounds that there could not be two Mentris Besar, adding that the issue of justiciability over the Sultan’s power in the appointment of the Mentri Besar did not arise.

“If the respondent’s (Dr Zambry) claim is truly undeniable over the support of the three independent assemblymen, why didn’t the Barisan Nasional request for the assembly to have a special sitting to table a motion of no-confidence against the applicant (Nizar)? That would be on line with the democratic principle,” he said, adding: “I am of the view that the office of the Mentri Besar has not been vacated.”

Justice Abdul Aziz held that Nizar had advised the Sultan of Perak to dissolve the State Legislative Assembly, adding there was, however, no dissolution of the assembly, no motion of no confidence taken and adopted against the Mentri Besar and no resignation by Nizar.

The court also granted an injunction to prevent Dr Zambry or his agents from acting or implementing the responsibilities, functions and duties of Perak Mentri Besar.

On Perak Legal Adviser Datuk Ahmad Kamal Md Shahid’s claim that he was a neutral party in the proceedings, the judge said that Ahmad Kamal “had not applied his independent mind”, adding that to an extent, his evidence was “coloured” as he admitted to taking instructions from Dr Zambry’s lawyer when he was cross-examined on his affidavit.

“He is a very senior legal officer but he chose to use the word instructed instead of request or volunteered,” he said.

Datuk Cecil Abraham, who acted for Dr Zambry who was sworn in on Feb 6, applied orally for a stay against the judgment but this was rejected.

Abraham was told to file a written application incorporating relevant cases’ laws.

Lead counsel for Nizar, Sulaiman Abdullah said his client would seek an audience with the Sultan soon to seek a dissolution of the state assembly.

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