Mohammad Nizar Jamaluddin could not continue to govern Perak when he had lost majority support in the state assembly, said the Federal Court in handing down its ruling on the MB vs MB tussle.

azlanChief Judge of Malaya Justice Arifin Zakaria, reading out the 41-page judgment this morning, said that to allow Nizar to do so would be against the principle of democracy.

However, Arifin said this is by no means the end of the matter.

"It is always open for the appellant (Nizar) to bring a vote of no confidence against the respondent (Zambry Abdul Kadir) or make a representation to the sultan at any time if he thinksf the respondent does not enjoy the support of the majority of members of the legislature," he said.

The court’s five-member bench, led by President of the Court of Appeal Justice Alauddin Mohd Sheriff, declared BN’s Zambry Abd Kadir the lawful menteri besar in their decision this morning.

The other three Federal Court judges were Justices Zulkefli Ahmad Makinuddin, Mohd Ghazali Mohd Yusoff and Abdull Hamid Embong of the Federal Court.

There was pin-drop silence from the gallery as Arifin delivered the verdict, which was adopted unanimously, even though the judgment appear to be leaning against Nizar.

Arifin said Nizar's refusal to resign, despite being ordered to do so by the Sultan, was clearly violating Article 16 (6) of the Perak Constitution.

"The word shall in our opinion ought to be given a mandatory effect (not to dissolve the state assembly as meaning to resign), otherwise it would lead to political uncertainty in the state".

Three questions

The three constitutional questions posed for the country's highest court to decide in this case are:

1. A proper interpretation of Article 16(6) of the Perak constitution whether the post of menteri besar can be vacated if there is no motion of no-confidence against the MB and that he refuses to resign?

2. Can the Sultan determine if a menteri besar commands the confidence of the majority of the state legislative asssembly without a vote? Article 16(6) of the state constitution also relates to a motion of no-confidence being made at the state legislative assembly and an interpretation is being sought on this.

3. Whether the state constitution allows the Sultan to sack a menteri besar or can the position be deemed vacant if he chooses not to resign.

To the first question, Arifin said the Federal Court ruled in the affirmative that the question of confidence in the menteri besar can be determined by means other than a no-confidence vote in the assembly.

He ruled that the Court of Appeal's decision to overturn the High Court's initial verdict was justified.

"There is nothing in Article 16 (6) or in any other provisions of the Perak Constitution stipulating the loss of confidence in the menteri besar may be gathered from the assembly only," he said.

Nigerian precedent

Citing a Nigerian legal precedent - the Akintola matter - Arifin said there can be other sources than the state legislative assembly to determine who commands the majority in the House.

"What is beyond dispute is the demonstration of support by 31 members of the legislative assembly to Barisan Nasional. Hence, giving BN a clear majority in the legislative assembly clearly points a loss of confidence...in the appellant as menteri besar," Arifin said.

On the second question, Arifin said the question of confidence in the menteri besar may be tested by other means other than a vote of no confidence in the legislative assembly.

"There is no requirement in the state constitution which requires a vote of no confidence to be tabled in the legislative assembly based on Article 16 (6)," he said.

Arifin said on the third question, if the menteri besar refuse to tender his resignation and that of the executive council, the post would be deemed vacated.

He said that Nizar's refusal to resign despite being directed to do so went against the Perak Constitution.