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Dato’ Seri Ir Hj Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir

(Attorney General, Interverner) [2010] 2 MLJ 285

FACTS:

On 8 March 2008, a political alliance known as “Pakatan Rakyat” (‘PR’) won 31 seats out of 59 seats in

the State Legislative Assembly (‘LA’). The remaining seats belonged to “Barisan Nasional” (‘BN’). The

appellant was appointed as Mentri Besar of Perak (‘MB’) by His Royal Highness Sultan of Perak

(‘HRH’) on 17 March 2008.

On 4 February 2009, HRH received three separate letters from three members of the LA of Behrang,

Changkat Jering and Jelapang expressed their support for BN and they had lost confidence in the

appellant (BN friendly supporters). On the same day, appellant had an audience with HRH to request for

dissolution of the LA. HRH informed appellant that HRH would have to consider the appellant's request.

On 5 February 2009, appellant wrote to HRH to inform the latest development in the state and once again

requested HRH to dissolve the LA. On the same day, the then Deputy Prime Minister (‘DPM’), Dato’

Seri Mohd Najib bin Tun Razak, in his capacity as the chairman of the Perak BN, had an audience with

HRH and presented HRH with a letter of support from the 28 members of the LA who are aligned to the

BN plus 3 BN friendly supporters. The letter stated that they will support whoever that will be named by

DPM as the candidate for the new MB.

Then, DPM brought in 31 members of the LA to meet HRH. HRH spoke to Jelapang, Behrang, Changkat

Jering and Bota assemblyman and stated that they pledged their support to BN voluntarily without any

coercion from any other party. Once again, appellant had an audience with HRH.

HRH’s office issued a statement that HRH had rejected the request by the appellant to dissolve the LA

under Article 16(6) of Constitution of Perak and as a consequence the appellant was required to tender his

resignation together with his executive councillor members. Since the appellant failed to do so, therefore,

the offices of MB together with the executive councilor members were deemed to have been vacant. And

respondent has been appointed as the new MB replacing the appellant.

ISSUES:

1. Whether HRH had acted within his authority to appoint the respondent as MB replacing the

appellant? And whether the request for dissolution was made under Art 16(6) or Art 36(2)?

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2. Whether Art 16(6) by its terms requires that the test of confidence in the MB could only be done

on the floor of the LA and not otherwise?

3. Whether the MB who has been asked to resign by HRH under Art 16(6) may be dismissed from

the office or his office is deemed vacated if he refuses to sign?

LAW:

Art 16(6) states that if the Menteri Besar ceases to command the confidence of the majority of the

members of the LA, then, unless at his request His Royal Highness dissolves the LA, he shall tender

resignation of the Executive Council.

Art 36(2) is a general provision for dissolution of LA has to be in relation to the conclusion of five years

term of the LA when general election is contemplated.

HELD:

1. By virtue of Art 16(6), when a MB ceases to command confidence of the majority in LA, he may

request for the dissolution of LA. The request must be informed to HRH, but if HRH rejected his

request, then he shall tender resignation of the executive councillor. After HRH satisfied that

appellant has no longer ceased to command the confidence, therefore HRH has acted in his

authority to appoint respondent as new MB.

Finding made by Court of Appeal held that there was ample evidence indicating that the appellant

had in fact requested for the dissolution of the LA on the ground that he had lost confidence in the

LA, therefore appellant contention that dissolution under Art 36(2) was unjustified.

2. Abdul Kadir Sulaiman J, by virtue of Datuk (Datu) Amir Kahar bin Tun Datu Haji Mustapha v

Tun Mohd Said bin Keruak Yang Di-Pertua Negeri Sabah & Ors, held that the evidence that a

Chief Minister ceases to command the confidence of the majority members of the assembly for

the purpose of Art 7(1) of the Sabah Constitution, may be found from other extraneous sources

than to be confined to the votes taken in the LA provided that, they are properly established.

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In this case, the letter of support from the 28 members of the LA who are aligned to the BN plus 3

BN friendly supporters is considered as extraneous source. Therefore there is no requirement in

State Constitution which requires a vote of no confidence to be tabled in the LA under Art 16(6).

3. Raus Sharif JCA in Dato’ Seri Dr Zambry bin Abdul Kadir v Dato’ Seri Ir Hj Nizar bin

Jamaluddin (Attorney General of Malaysia, Interverner) stated that once MB is made to know

that he has lost the confidence in LA, he should take the honourable way out by tendering his

resignation and the resignation of the executive council.

In Amir Kahar’s case the word ‘shall’ was construed to have mandatory effect. Therefore if the

MB refuses to tender the resignation of the executive council under Art 16(6) the MB and the

executive council members are deemed to have vacated their respective offices.

The appeal is accordingly dismissed.