Sultan cannot sack MB, court told

By Debra Chong, The Malaysian Insider

The Perak Constitution has no provision that allows for the ruler or anyone else to sack the mentri besar from his official position, the High Court was told today.

While the Sultan of Perak had the power to appoint the MB as a constitutional monarch, he had no power to later force the MB out of his lawfully-appointed office, argued the lead lawyer for Datuk Seri Mohammad Nizar Jamaluddin, who is suing Datuk Seri Zambry Abdul Kadir for usurping his rightful appointment as the MB of Perak.

In putting forward his submission before judge Datuk Abdul Aziz Abdul Rahim this afternoon, Nizar’s chief counsel Sulaiman Abdullah said if the Sultan had the power to also order the sacking of the MB, it would be stated clearly in the Perak Constitution.

He also pointed out that unlike the case with the executive council members, Nizar does not hold the office of MB “at the pleasure of the Sultan of Perak”.

The only way to remove the person occupying the MB’s seat is through a vote of no-confidence, which must be taken inside the State Legislative Assembly, Sulaiman added.

He was challenging Attorney General Tan Sri Abdul Gani Patail’s view that Nizar had already been removed from office as MB when he lost the confidence of the majority of the members of the assembly.

In his submission earlier, Abdul Gani argued that there is no law in the Perak Constitution that states a vote of no-confidence must be tabled and endorsed inside the assembly for it to take effect.

“In the factual matrix of this case, there is no constitutional requirement that a motion of no-confidence must be obtained in the state legislative assembly before the applicant can be said to have lost the command of confidence of the majority members of the state legislative assembly under Article 16(6),” he said, referring to the Perak Constitution.

Abdul Gani pointed out the sultan had also taken great pains to personally interview the 31 state assemblymen who had pledged support to Barisan Nasional.

“The Sultan made sure of his facts first. He interviewed the ADUN, including the three ADUN from Behrang, Changkat Jering and Jelapang and another ADUN from Bota. He was sure there were 31 assemblymen in support of Barisan Nasional. It is his judgment as to whom had the confidence of the majority inside the House,” he said.

“His Royal Highness even went to interview and check on whether there was any coercion. That’s the most honorable thing I’ve ever seen,” he added.

“If no majority, how can he ask for dissolution? It must come under Article 16(6). It cannot be otherwise,” he went on.

“Are we going to wait until the mentri besar resigns?” Abdul Gani questioned.

At this point, Justice Abdul Aziz cut in and quizzed Abdul Gani: “Is there any provision that allows the ruler to exercise his right to remove the mentri besar?”

The attorney-general admitted there was none.

But he explained that although Sultan Azlan Shah never “sacked” Nizar, “the law itself deemed he had ceased” to command the majority confidence.

And because of that, the Perak sultan could use his discretionary powers and appoint Zambry to replace Nizar as the lawful MB after the position was vacated, even though the latter had refused to hand in his resignation letter.

Sulaiman also challenged this view. He argued that unless the Perak Constitution stated clearly what to do, no one could assume the law had provided for such a thing to take place.

“As Nizar has not resigned, and under the Perak Constitution, cannot be dismissed, the office of the mentri besar was never vacant. It follows that Zambry cannot claim the office of the mentri besar,” said Sulaiman.

“The appointment of Zambry, on the authority of Ningkan, was unconstitutional, Sulaiman said, citing the 1968 court case of Stephen Kalong Ningkan, a Sarawak chief minister who like Nizar, challenged his dismissal even though he was not voted out by members of the state assembly.

“As such, the appropriate relief this honourable court should grant is an order in terms of Nizar’s judicial review application,” he added.

Justice Abdul Aziz adjourned the court at this point, fixing 11am tomorrow to continue hearing the rest of Sulaiman’s submissions as well as from Datuk Cecil Abraham, Zambry’s lead lawyer.