Court Observer says:
Having just digested the 78-page judgment of High Court judge Datuk Abdul Aziz Abdul Rahim on who is the rightful MB of Perak, I conclude it is a well-reasoned decision.
The judge holds the view that only a vote of no confidence on the floor of the house (state legislative assembly or Dewan Rakyat) is required to remove the Prime Minister or the Menteri Besar/Chief Minister.
Abdul Aziz’s ruling reaffirms the widely acclaimed constitutional position that the chief executive of a state does not hold office at the pleasure of the ruler. Once appointed to the office, the MB of Perak, in this case, Dato’ Seri Mohammad Nizar Jamaluddin and his executive councillors are responsible to the state assembly. Ideally, if a vote of no confidence was taken against Nizar, then he and the councillors would have to tender their resignations.
The judge in ruling that Nizar was still the rightful MB found support in the celebrated case of Stephen Kalong Ningkan -v- Tun Abang Openg and Tawi Sli  2 MLJ 187. The case stated the principle that the vote of no confidence against the chief executive must be taken in the house, not outside and the appointing authority could not dismiss him.
However, the judge concedes that there is a loophole in the Federal Constitution and the State Constitution if the head of government who lost the confidence vote refuses to tender his resignation. Aziz said:
That lacuna cannot be filled up by reading into the Article a deeming provision. That lacuna must be filled up by amendment to the said Article.
As it stands, such an amendment to the Federal Constitution could not be done as the ruling Barisan Nasional does not have the two-thirds majority in the Dewan Rakyat.
By the way, the Attorney-General Tan Sri Abdul Gani Patail who acted as intervener and Datuk Cecil Abraham who represented Zambry, relied heavily on the case of Datuk (Datu) Amir Kahar Tun bin Datu Haji Mustapha -v- Tun Mohd Said Keruak & Ors  4 CLJ 184. They argued that the office of MB is deemed vacant when Nizar refused to resign.
Aziz flatly disagreed with them and went on to say that a deeming provision is a “legal fiction” as it refers to something which does not exist but to be taken as in existence. In fact, the judge said the Amir Kahar case did not support the A-G’s contention. [In that case, the then Chief Minister Datuk Seri Joseph Pairin Kitingan of the ruling PBS lost the majority to the BN due to defections. Pairin had sought the Governor’s consent to dissolve the house but was denied. He then tendered his resignation. Amir Kahar, a member of Pairin’s Cabinet brought an action that he was still a minister because only the chief minister had resigned. The Court held that when the chief minister resigns, the Cabinet resigns with it; whether or not there was a letter of resignation.]
In the present case, Nizar did not resign and a no confidence vote was not taken against him.
Aziz’s decision, to my mind, is well within the framework of our Constitutions – that the King is above politics and the ruler acts on the advice of his chief executive.
Pausing for a moment, what would happen if judgment was given in favour of Zambry at the High Court? It would be like this:
1. Our constitutional monarchy would seem to be heading towards an “absolute monarchy”, and the Prime Minister, MB or Chief Minister would then be holding their positions at the pleasure of the rulers/governors despite clear words to the contrary in the Constitutions.
2. Imagine – had Datuk Seri Anwar Ibrahim got 30 or more federal legislators crossing over to Pakatan Rakyat and the King agreed in appointing Anwar without a vote in Parliament – Anwar would be Prime Minister!
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