Third Appeals Court judge: Sultan acted correctly
Published: Jul 7, 2009 8:23 PM | Updated: Jul 7, 2009 8:36 PM
Sultan Azlan Shah was right in exercising his prerogative powers to contain the Perak political tension and maintain the dignity of the state, Court of Appeal judge Datuk Zainun Ali said.
Sultan Azlan Shah was right in exercising his prerogative powers to contain the Perak political tension and maintain the dignity of the state, Court of Appeal judge Datuk Zainun Ali said.
Justice Zainun said one of the most critical executive powers of the ruler was his constitutional duty to maintain peace and order for the public good, and therefore his consciousness of the significance of the exercise of his prerogative powers could not be understated.
"The situation in Perak at the relevant time could be viewed as being bereft of normalcy, not unless one views as normal, the political tension, intense political pressure, suspense and shifting political loyalties and betrayals, as being routine and all in a day's work.
"The maturity and wisdom of the ruler is incumbent. The exercise of this prerogative power is all the more critical if the normal government machinery breaks down," Zainun said in her 115-page judgment which made available today.
On May 22, the three Court of Appeal judges consisting of Datuk Raus Sharif, Zainun and Datuk Ahmad Maarop ruled that Datuk Seri Dr Zambry Abdul Kadir was the legitimate menteri besar of Perak, reversing an earlier High Court decision in Datuk Seri Mohammad Nizar Jamaluddin's favour.
Dissatisfied with the Appeal Court's ruling, Nizar filed an application for leave to appeal , which is scheduled to be heard at the Federal Court this Thursday.
Justice Zainun, in her judgment said Sultan Azlan Shah was right in holding an enquiry to confirm certain facts and to assess the political position correctly before deciding whether or not to grant or withhold a request for the State Legislative Assembly's dissolution.
"In this regard it might have been imprudent for His Royal Highness to make a decision without regard to the facts.
Seek clarification of facts
"For instance, if His Royal Highness were to find that the contents of the three letters from the three Adun (state assseemblymen) were insufficent in ascertain Nizar's loss of majority, he can, in his exercise of his prerogative and discretion, seek clarification of the facts contained in the letters from the three Adun," reasoned Zainun.
Thus, she said, the finding of the High Court judge that Sultan Azlan Shah was not entitled to interview the various members of the legislative assembly on Feb 5 to ascertain who commanded the majority in the house was plainly wrong.
Zainun also dealt with the issue of whether Nizar had made the request for the dissolution of the state legislative assembly under Article 16(6) or Article 36(2) of the Perak Constitution.
"It is my view that Nizar's denial that his request for dissolution was made under Article 16(2) stands on flimsy ground," she said, adding that as at Feb 4, Nizar was completely apprised of the political imbalance when Pakatan had only 28 seats.
"Thus, whether or not the three Adun support the Barisan Nasional, the fact remains that Nizar no longer enjoy majority position when Pakatan lost the three seats in the legislative assembly.
"In short, Nizar was unable to credibly dispute that he had not lost the support or confidence of the majority of the legislative assembly at the time he requested for dissolution," she said.
The facts showed that the two Party Keadilan Rakyat (PKR) assemblymen, Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Mohd Jailu (Changkat Jering), resigned from their posts on Jan 30, followed by DAP assemblyman Hee Yit Foong (Jelapang), four days later.
Following that, Nizar had an audience with Sultan Azlan Shah on Feb 4 to request the dissolution of the state assembly due to the deadlock in the House with Pakatan Rakyat and Barisan Nasional having 28 seats each, but he denied that he had lost the majority confidence of the assembly.
On the issue of whether there must be a motion of no confidence passed against Nizar in the legislative assembly, Zainun, said that there were alternative means and extraneous ways of expressing lack of support.
"Is a motion taken on the floor of the assembly to determine loss of the confidence of the majority members a convention in this country? And therefore binding?"
'Why motion not taken?'
"It is baffling that if Nizar had indeed put such great store by the convention that the determination of loss of confidence could only be accepted through a motion taken on the floor of the assembly, why was this course of action not taken?" Zainun said.
"If Nizar truly felt that he stood an even chance, he could have requested His Royal Highness for a convening of the legislative assembly, which was then not sitting, instead of requesting for dissolution."
Zainun added that in fact, as at Feb 2, Nizar still had a majority of one, since the assemblywoman from Jelapang had still not resigned.
On the question of whether Sultan Azlan Shah was wrong in appointing Datuk Seri Dr Zambry Abdul Kadir as the new menteri besar, Zainun said: "The exercise of His Royal Highness' prerogative had legally forfeited Nizar's right to remain the menteri besar.
"In that regard, Nizar's position as menteri besar was no longer tenable.
The media announcement made by the palace on Feb 6 was nothing but a mere declaration of the legal position. I need not say, of course, that Zambry's appointment in the circumstances was properly within His Royal Highness' prerogative power pursuant to the Perak Constitution," she said.
On Feb 13, Nizar, 52, filed an application to the court for a declaration that he is at all material times the menteri besar of Perak.
Nizar, who was appointed menteri besar on March 17 last year after the Parti Pakatan Rakyat-led alliance won 31 seats in the 12th general election, also sought a declaration that Dr Zambry has no right to hold the office of menteri besar and an injunction to bar him from discharging his duties. - Bernama
Justice Zainun said one of the most critical executive powers of the ruler was his constitutional duty to maintain peace and order for the public good, and therefore his consciousness of the significance of the exercise of his prerogative powers could not be understated.
"The situation in Perak at the relevant time could be viewed as being bereft of normalcy, not unless one views as normal, the political tension, intense political pressure, suspense and shifting political loyalties and betrayals, as being routine and all in a day's work.
"The maturity and wisdom of the ruler is incumbent. The exercise of this prerogative power is all the more critical if the normal government machinery breaks down," Zainun said in her 115-page judgment which made available today.On May 22, the three Court of Appeal judges consisting of Datuk Raus Sharif, Zainun and Datuk Ahmad Maarop ruled that Datuk Seri Dr Zambry Abdul Kadir was the legitimate menteri besar of Perak, reversing an earlier High Court decision in Datuk Seri Mohammad Nizar Jamaluddin's favour.
Dissatisfied with the Appeal Court's ruling, Nizar filed an application for leave to appeal , which is scheduled to be heard at the Federal Court this Thursday.
Justice Zainun, in her judgment said Sultan Azlan Shah was right in holding an enquiry to confirm certain facts and to assess the political position correctly before deciding whether or not to grant or withhold a request for the State Legislative Assembly's dissolution.
"In this regard it might have been imprudent for His Royal Highness to make a decision without regard to the facts.
Seek clarification of facts
"For instance, if His Royal Highness were to find that the contents of the three letters from the three Adun (state assseemblymen) were insufficent in ascertain Nizar's loss of majority, he can, in his exercise of his prerogative and discretion, seek clarification of the facts contained in the letters from the three Adun," reasoned Zainun.
Thus, she said, the finding of the High Court judge that Sultan Azlan Shah was not entitled to interview the various members of the legislative assembly on Feb 5 to ascertain who commanded the majority in the house was plainly wrong.
Zainun also dealt with the issue of whether Nizar had made the request for the dissolution of the state legislative assembly under Article 16(6) or Article 36(2) of the Perak Constitution.
"It is my view that Nizar's denial that his request for dissolution was made under Article 16(2) stands on flimsy ground," she said, adding that as at Feb 4, Nizar was completely apprised of the political imbalance when Pakatan had only 28 seats.
"Thus, whether or not the three Adun support the Barisan Nasional, the fact remains that Nizar no longer enjoy majority position when Pakatan lost the three seats in the legislative assembly."In short, Nizar was unable to credibly dispute that he had not lost the support or confidence of the majority of the legislative assembly at the time he requested for dissolution," she said.
The facts showed that the two Party Keadilan Rakyat (PKR) assemblymen, Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Mohd Jailu (Changkat Jering), resigned from their posts on Jan 30, followed by DAP assemblyman Hee Yit Foong (Jelapang), four days later.
Following that, Nizar had an audience with Sultan Azlan Shah on Feb 4 to request the dissolution of the state assembly due to the deadlock in the House with Pakatan Rakyat and Barisan Nasional having 28 seats each, but he denied that he had lost the majority confidence of the assembly.
On the issue of whether there must be a motion of no confidence passed against Nizar in the legislative assembly, Zainun, said that there were alternative means and extraneous ways of expressing lack of support.
"Is a motion taken on the floor of the assembly to determine loss of the confidence of the majority members a convention in this country? And therefore binding?"
'Why motion not taken?'
"It is baffling that if Nizar had indeed put such great store by the convention that the determination of loss of confidence could only be accepted through a motion taken on the floor of the assembly, why was this course of action not taken?" Zainun said.
"If Nizar truly felt that he stood an even chance, he could have requested His Royal Highness for a convening of the legislative assembly, which was then not sitting, instead of requesting for dissolution."
Zainun added that in fact, as at Feb 2, Nizar still had a majority of one, since the assemblywoman from Jelapang had still not resigned.
On the question of whether Sultan Azlan Shah was wrong in appointing Datuk Seri Dr Zambry Abdul Kadir as the new menteri besar, Zainun said: "The exercise of His Royal Highness' prerogative had legally forfeited Nizar's right to remain the menteri besar."In that regard, Nizar's position as menteri besar was no longer tenable.
The media announcement made by the palace on Feb 6 was nothing but a mere declaration of the legal position. I need not say, of course, that Zambry's appointment in the circumstances was properly within His Royal Highness' prerogative power pursuant to the Perak Constitution," she said.
On Feb 13, Nizar, 52, filed an application to the court for a declaration that he is at all material times the menteri besar of Perak.
Nizar, who was appointed menteri besar on March 17 last year after the Parti Pakatan Rakyat-led alliance won 31 seats in the 12th general election, also sought a declaration that Dr Zambry has no right to hold the office of menteri besar and an injunction to bar him from discharging his duties. - Bernama
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