PUTRAJAYA: As widely anticipated, the Federal Court today upheld the decision made by the Court of Appeal that Barisan Nasional’s (BN) Datuk Seri Dr Zambry Abdul Kadir is the rightful menteri besar of Perak, thus delivering a crushing blow to Pakatan Rakyat’s hopes of re-taking the state.

Unsurprisingly, the five-man panel hewed closely to the lower court’s verdict of May 22 last year, in which it ruled  Zambry  was the rightful menteri besar instead of PR’s Datuk Seri Mohammad Nizar Jamaluddin.

In the unanimous judgment read out by Chief Judge of Malaya Tan Sri Arifin Zakaria earlier today, the Federal Court gave the following
rulings:

1.   that Mohammad Nizar had submitted his request for a dissolution of the Perak assembly under Article 16 (6) of the state’s constitution and not Article 36 (2);

2.   that the question of confidence in the MB may be determined by means other than a vote of no-confidence in the legislative assembly
(LA);

3.   that if Mohammad Nizar refused to tender his resignation under Article 16 (6), the MB and his Executive Council (Exco) are deemed to have vacated their offices.

Explaining the grounds in his 41-page written judgment, Arifin said he concurred with the Court of Appeal, which reversed the High Court
judge’s decision on the premise that his finding was perverse, being contrary to the documentary and other evidence before the court.

“The Court of Appeal held that there was ample evidence [both oral and documentary] indicating that Mohammad Nizar had in fact requested for a dissolution of the LA on the grounds that he had lost the confidence of the majority of the members of the LA.

“The Court of Appeal, in three separate judgments, had considered this issue at some length before coming to their finding. After careful
examination of the evidence before us we are of the view the Court of Appeal was justified in coming to the said finding,” wrote Arifin.

On the test of confidence in a MB, Arifin said that they agreed with High Court judge Datuk Md Raus Sharif who found that there is nothing
in the Perak State Constitution which can be construed as requiring that the test of confidence or the lack of it must be by way of vote
taken in the LA.

“Of course, actual voting in the LA is ideal but interpreting Article 16 (6) to require this would lead to absurdity as the MB who may have lost support will not be too eager to summon it,” said Md Raus last year.

Arifin said the Federal Court agreed with this.

Using the Privy Council verdict from the Adegbenro v Akintola (1963) case, Arifin said loss of confidence can be established from other means.

“Such sources, we think, should include the admission by the MB himself that he no longer enjoys the support of the majority of the
LA.

“In the present case, the Court of Appeal held that the evidence of such admission by Mohammad Nizar is the demonstration of support by the 31 members of the LA for BN. All this clearly points to the loss of confidence of the majority of the members of the LA in Mohammad Nizar’s leadership,” said Ariffin.

On the final point, Arifin said the Federal Court had chosen to give “a mandatory effect” to the word “shall” in Article 16 (6).

“Therefore, it is incumbent upon Mohammad Nizar in the circumstances of this case to tender he and his Exco’s resignations. We agree with Zambry that the refusal on the part of Nizar to resign after having been directed to do so by His Royal Highness [Sultan Azlan Shah] clearly went against the express provisions of Article 16 (6).

“It cannot be the intention of the framers of the State Constitution that in the circumstances, it is open to the appellant whether to resign or to stay on as mentri besar," he added.

“The word ‘shall’ ought to be given a mandatory effect, otherwise, it would lead to political uncertainty in the state. Mohammad Nizar cannot continue to govern after having lost the support of the majority. To allow him to do so would be going against the basic principle of democracy.

"However, we would add that this, by no means, is the end of the matter, as it is always open to Mohammad Nizar to bring a vote of no-confidence against Zambry in the LA or make a representation to HRH at any time if he thinks Zambry does not enjoy the support of the majority of the members of the LA,” said Arifin in his closing notes.

The rest of the panel comprised Court of Appeal President Tan Sri Alauddin Mohd Sheriff and Federal Court judges Datuk Zulkefli Ahmad Makinudin, Datuk Wira Ghazali Mohd Yusoff and Datuk Abdull Hamid Embong.