Court of Appeal to decide tomorrow on Nizar’s position
Written by Chua Sue-Ann, The Edge
The Court of Appeal will rule tomorrow on whether the Kuala Lumpur High Court's decision on May 11 declaring Pakatan Rakyat's (PR) Datuk Seri Mohammad Nizar Jamaluddin as the rightful Perak Menteri Besar was correct or otherwise.
A three-member bench led by Judge Datuk Md Raus Sharif today heard Barisan Nasional (BN) Perak Menteri Besar Datuk Seri Dr Zambry Abdul Kadir's appeal of the High Court's decision.
On May 11, High Court Judge Datuk Abdul Aziz Abdul Rahim, at the Special Appeallate and Powers division, ruled Nizar was the rightful menteri besar was at material times, as Nizar had not resigned nor was removed by a vote of no confidence taken in the state legislative assembly.
Following the High Court’s decision, Nizar and his executive council (exco) had reported in for work on May 12, only to vacate the office hours later after Court of Appeal Judge Datuk Ramly Ali allowed Zambry’s request for a stay of execution.
Zambry’s lead counsel Datuk Cecil Abraham submitted that Justice Abdul Aziz, in his deliberations, "failed to appreciate the documentary evidence" to determine what transpired between Nizar and Sultan Azlan Shah on Feb 4.
It had been disputed – in the affidavits of Nizar and Perak state legal adviser Datuk Ahmad Kamal Mohd Shahid – if Nizar's request for dissolution was made on the basis that he had lost confidence and were requested pursuant to Article 16(6).
"(Justice Abdul Aziz) when faced with conflict of evidence should have referred to contemporaneous documents," Abraham said.
Judge Datuk Mohamad Raus Sharif, leading a three-member panel, then told counsels that the court would focus on whether the High Court judge had interpreted the constitution correctly.
Attorney-General (AG) Tan Sri Abdul Gani Patail, as intervener in the matter, submitted that there was no "deadlock" in the assembly as cited by Nizar in his affidavits and when Nizar requested the assembly's dissolution because PR did not have the majority of the house.
The AG said with PR and BN both having 28 representatives each in the 59-seat assembly, Nizar in citing a "deadlock" was a "self-admission" that he did not command the majority confidence.
Abdul Gani said if there was a motion tabled, PR Speaker V. Sivakumar could only cast his vote to avoid an equality of votes in the house, therefore PR did not constitute the assembly's majority.
Meanwhile, Nizar's lead counsel Sulaiman Abdullah argued that there were no express provisions in the Federal Constitution and the Perak Constitution empowering a Ruler to dismiss the menteri besar or head of administration.
Sulaiman, in reply to Abraham and Abdul Gani's submissions, said the matter had not arrived at whether the menteri besar must resign when his request for the assembly's dissolution had been denied.
"We haven't got past the first stage (which is) to determine whether the menteri besar had lost confidence," Sulaiman said during submissions in a packed courtroom.
Sulaiman, leading a 10-member team, said Nizar did not seek a dissolution under Article 16(6) on grounds that he had lost the majority confidence of the assembly but was seeking the dissolution to resolve the "deadlock".
"Whether a menteri besar has ceased to command confidence of the majority is not a decision of the people of Perak or the ruler's decision. It is the sole decision of the elected (representatives)," Sulaiman said.
The hearing of Nizar's application to set aside the Court of Appeal's earlier stay order of the High Court's declaration that he was the rightful Perak menteri besar is pending the outcome of the proceedings of Zambry's appeal today.
On the outset of today's proceedings, Sulaiman had requested the court to hear Zambry's appeal first and to only hear Nizar's application of the stay order should the Court of Appeal be unable to provide a decision immediately.
Initially fixed for Monday, May 18, Nizar’s application of the stay order had been postponed to today, sparking dissatisfaction among certain quarters, who noted that Zambry’s application for the stay of execution was heard after two hours of filing here on Tuesday, May 12.
With three judges sitting today – Datuk Zainun Ali, Datuk Ahmad Maarop and Datuk Md Raus Sharif – Nizar’s request for a five-member panel to hear the matter was not granted.
