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Wednesday, May 6, 2009

The constitution, not the Sultan, dismissed Nizar, Zambry’s lawyer argues

KUALA LUMPUR, May 6 2009 — Malaysianinsider | By Debra Chong

At which point does the Perak mentri besar (MB) cease to command the majority of the members of the legislative assembly?

This question was at the heart of today’s submissions in the High Court here in a suit brought by Pakatan Rakyat’s (PR) Datuk Seri Mohammad Nizar Jamaluddin against Datuk Seri Zambry Abd Kadir to be declared the rightful Perak MB instead of the Barisan Nasional (BN) man.

Zambry’s chief counsel Datuk Cecil Abraham entered uncharted waters by arguing that Nizar had been sacked not by the Perak sultan, but by the State Constitution.

He contended that Nizar’s resignation was automatic once he had lost the confidence of the majority, which had been decided when 31 state assemblymen out of the total 59 appeared before the Perak sultan at an audience in Istana Kinta on February 5 to back BN.

“Here we have 31 in support of Barisan Nasional, 28 in support of Pakatan. The facts were before His Royal Highness.

“It’s the Constitution that has dismissed him, not the Sultan,” Cecil said.

At this point, High Court judge Datuk Abdul Aziz Abdul Rahim stopped Cecil and asked to confirm: “What you’re saying is the Sultan did not dismiss but the Constitution dismissed the mentri besar?” Cecil agreed.

“The Sultan did not have to take over and say ‘I dismiss’,” he said.

Cecil cited Article 16(6) of the Perak Constitution, which states: “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.”

Pointing out that the word “shall” means “mandatory”, the gray-haired lawyer stressed that Nizar as the then MB should have immediately taken the “honourable way out and tendered his resignation.”

He noted that there is “no necessity” for a motion of no-confidence in Nizar to be tabled in the assembly for it to take effect to prove that Nizar had lost the majority support that enables him to be the MB.

“It can be done by other means,” Cecil said, and added: “Based on this, His Royal Highness was entitled to do what he did to decide for himself where the majority was. There was no need for the ruler, as a last resort, to dismiss the mentri besar if he does not resign.

But Nizar’s lead lawyer Sulaiman Abdullah had stressed earlier in his submissions that there was a pressing need for the assemblymen to officially endorse their support for or against Nizar in the assembly.

“The Constitution of Malaysia and the Constitution of Perak does not recognise political parties. They only recognise members of the assembly.

“In the House, the representatives are not mere political slaves. They are independent-thinking people exercising their own minds. They can change their minds,” said Sulaiman.

Continuing his argument from the day before, Sulaiman stressed there was no option for the ruler or anyone else to automatically remove the MB from office.

He said that even if the MB refuses to hand in his resignation letter, there is no provision for his office as MB to be regarded as automatically vacant so that another person can move in.

Sulaiman then referred to a pre-Merdeka report put together by the Reid Commission in 1957, which proposed a provision for the ruler to sack the chief executive in addition to giving him power to decide his appointment.

He noted that the Reid proposal was never put in the Federal nor State Constitutions.

As such, he repeated, the only way to test whether the MB had ceased to command the confidence of the majority of the legislature was through a vote in the assembly.

“The only decision is one that is made on the floor as a result of a substantive motion,” Sulaiman added.

The Attorney General, who is intervening in the suit between Nizar and Zambry took the arguments in a different direction.

Tan Sri Abdul Gani Patail pointed out that even if the case was a “deadlock” of 28-28 as Nizar claimed it was, it would suggest that Nizar had already “ceased to command the majority of the House”.

“However you look at it, the 28 figure cannot be a majority of the House. The moment you have 28, deadlock or not, it is clear he had lost the majority of the House,” he said.

Abdul Gani highlighted there could not be a majority when the numbers were split equally down the middle.

“Place our position on His Royal Highness’ place, when the mentri besar said: ‘There is a deadlock’, there is no majority. The arithmetic is very simple,” he said.

“Our contention is the moment a chief minister or mentri besar or prime minister loses the majority, and if no dissolution is granted, the position is immediately deemed vacant, meaning the position is ceased.

“So there is no question of dismissal. If the chief minister or mentri besar refuses to resign, it must be immediately ceased. In that position, with the greatest respect, my Chambers’ position is where Article 16(6) applies,” he stressed.

The hearing of submissions will continue tomorrow at 9.30am.

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