Nizar will win the appeal unless...

NOV 12 — “Show us any provision in the Perak Constitution empowering the Sultan of Perak to sack Nizar”. That was fundamentally the gist of the submission made by Datuk Seri Nizar Jamaluddin’s legal team in the recently concluded appeal at the Federal Court.

Datuk Zambry Kadir’s lawyers as well as the Attorney-General, in asking the apex court to affirm the decision of the Court of Appeal, submitted that Zambry is the lawful mentri besar (MB) as he was appointed by the Sultan under Article 16 (2) of the Perak Constitution.

Not so soon, replied Nizar’s lawyers. Before Zambry may claim that he is the lawful MB he has to discharge the burden of proving that the office of the MB rightfully held by Nizar was indeed vacant. Alternatively, Zambry has to prove that Nizar was validly or constitutionally sacked by the Sultan.

As rightly pointed out by Harley CJ (Borneo) in Stephen Kalong Ningkan vs Tun Abang Haji Openg and Tawi Sli (1966) 2 MLJ 187, there are two situations where the Governor (or the Sultan as the case may be) may exercise his absolute discretion namely (a) on the issue of the appointment of MB or (b) withholding consent to dissolve the State Assembly.

Nevertheless, as Harley rightly cautioned “As regards to (a), nobody could be so foolish to suggest that a Governor could appoint a second Chief Minister while there was still one in office...”

What is plain and obvious in this case is that until the appeal was heard on Nov 5, 2009 Zambry has not been able to prove that the office of MB held by Nizar was vacant. Nor has he been able to prove that Nizar was legally or constitutionally removed by the Sultan.

Zambry’s lawyers, and of course the A-G, submitted further that since Nizar had, by a letter dated Feb 5, 2009, asked the Sultan to dissolve the State Assembly under Article 16 (6) of the Perak Constitution and since the Sultan had withheld his consent to dissolve the Assembly, Nizar and his exco members have no other options but to resign en bloc.

They further submitted that in his letter to the Sultan, Nizar had stated therein that there was a deadlock in that the numbers of the state assemblymen of BN and PR were equal, namely 28 each, as the seats of the three defected assemblymen were duly declared vacant by the Speaker. By conceding that the numbers were equal, they argued, Nizar would definitely be defeated if a vote of no-confidence was to be carried out. This is because the Speaker (Sivakumar) could not cast his vote under the Perak Constitution. Thus, they argued, Nizar would lose by one vote.

In reply, Nizar’s team submitted that before Article 16 (6) would apply, there must be cogent proof that Nizar had indeed lost the vote of no-confidence of his peers in the State Assembly. It was not disputed in this case that hitherto, Nizar has not lost any vote of no-confidence simply because no such a vote has been carried out at any time. Thus the condition precedent of Article 16 (6) was not met by Zambry.

Nizar’s team also relied on historical precedent. Historically speaking, as far as the issue of MB’s removal is concerned, the constitutional convention endorsed the practice of casting votes of no-confidence which was to be held in the State Assembly. Apart from Stephen Kalong Ningkan, the downfall of the PAS government in Terengganu in 1961 was also another case in point.

In 1959, PAS captured Terengganu and in turn formed a coalition government with the help of Parti Negara. One Daud Samad was duly appointed as the MB. However, the lifespan of such a government was too short. On Oct 26, 1961 the Information Chief of Umno declared that three assemblymen each from PAS and Parti Negara had defected to Perikatan’s team.

On Oct 30, 1961 a vote of no-confidence was duly passed by the Terengganu State Assembly evidencing the demise of Daud Samad as the MB of Terengganu. The attempt by Daud Samad thereafter to ask the Sultan for the dissolution of State Assembly was rejected by the latter. The Sultan instead appointed Ibrahim Fikri from Perikatan as a new MB.

The aforementioned historical precedent demonstrates that the Sultan only made a decision refusing to dissolve the State Assembly after a vote of no-confidence was duly passed by the State Assembly. If this precedent was duly observed, would we have to see what we have seen in Perak?

With regard to Zambry’s arguments that Nizar would lose a vote of no-confidence on the basis that Sivakumar could not vote, this was a reply by Nizar’s team: “Yes, constitutionally speaking Sivakumar, being the Speaker, could not vote. However, what shall bar him from stepping down as the speaker when voting really takes place? What shall bar him from becoming an ordinary member of (the) State Assembly and in turn exercising his right to vote if Umno is confident enough of bringing a motion of non confidence against Nizar?”

If Umno is too foolish, it may appoint another state assemblyman from its side to replace Sivakumar and if this really happens a vote of no-confidence against Nizar will remain wishful thinking.

When Nizar refused to resign, his team submitted, was the Sultan given the power to sack him? Zambry’s teams said yes, the Sultan has such a power. Nizar’s team replied “show us any provision in the Perak Constitution giving the Sultan of such an express power.” Zambry’s team submitted the Sultan was deemed to have such a power. Nizar’s team retorted “show us the said deeming provision enshrined in the Perak Constitution”. Of course, no such deeming provision exists.

Nizar’s team then submitted that there must a deeming provision in the Perak Constitution stating in no uncertain terms that when the MB refuses to resign, his office is deemed to be vacant by the operation of law.

Nizar’s team quoted a very clear example of such a deeming provision in the Perak Constitution. Article 19 (1) in Part 2 of the Perak Constitution is such a classic example. The said Article expressly provides that the Sultan is deemed to have vacated his Throne if he fails to attend the Senate meeting for a very long period without sufficient or reasonable grounds. You notice no such deeming provision exists as far as the removal of MB is concerned.

To add further, Nizar’s team submitted that Article 16 (7) of the Perak Constitution expressly provides that, unlike the State exco members who hold their positions at the pleasure of the Sultan, the MB’s office is not at the pleasure of the Sultan. Thus, any suggestion by Zambry’s lawyers that Nizar could be removed by the Sultan was, at best, fanciful and at worst, smacks of power hunger on Zambry’s part.

Being in Nizar’s teams, I believe that the Court of Appeal has erred in law when it dismissed Nizar’s appeal but the question remains, is our Federal Court willing to upset and overturn such a decision by the Court of Appeal? May the Federal court be reminded that cuiusvis hominis est errare, nullius nisi insipientis in errore perseverare (anyone can err, but only the fool persists in his fault)

Nizar deserves to win the appeal unless of course… (please fill in the blanks).