Today the Court of Appeal at the Palace of Justice, Putrajaya is hearing the appeal against the landmark judgment of Justice Datuk Abdul Aziz Abdul Rahim in the Nizar vs Zambry case delivered last Monday, 11th May 2009 declaring Nizar as the lawful Perak Mentri Besar.

Nizar is not getting a five-member Court of Appeal panel. The three judges hearing Nizar’s application to discharge Zambry’s “stay order” obtained by a single-judge Court of Appeal within 24 hours of the historic judgment and Zambry’s appeal against the Kuala Lumpur High Court judgment are justices Md Raus Sharif, Zainun Ali and Ahmad Maarop.

As I said in my tweet two hours ago:

“Parties agree that appeal proper b heard 1st and if at the end of hear’g ct cant give decision then discharge of stay will have 2 b heard.”

While we wait for the outcome from the Court of Appeal, the landmark Abdul Aziz judgment which illuminates the complicated terrain thrown up by the Perak constitutional crisis is worth reading (here).

The following Star report sums up the judgment:

Why MB can’t be sacked – Nizar does not hold office at the pleasure of the Ruler, says judge
By M. MAGESWARI and LISA GOH

KUALA LUMPUR: The mentri besar cannot be dismissed by the Sultan because he does not hold office at the pleasure of the Ruler, the High Court here ruled.

High Court (Appellate and Special Powers) judge Justice Abdul Aziz Abdul Rahim said the Sultan could remove members of the Perak Executive Council from their office but not the mentri besar.

He said this in his 78-page judgment, in which he declared Datuk Seri Mohammad Nizar Jamaluddin as the valid Perak Mentri Besar as his office “has not become vacant”.

The oral judgment was handed down on May 11.

“Article 16(7) of the Perak Constitution says that the mentri besar does not hold office at the pleasure of His Royal Highness,” the judge said in the judgment made available to the press yesterday.

Once a mentri besar is appointed, he is only answerable to the state legislative assembly, he said.

“I hold the view that a vote of no-confidence on the floor of the assembly is required to remove the mentri besar,” Justice Abdul Aziz said.

Nizar filed a judicial review on Feb 13 to challenge the legitimacy of Datuk Seri Dr Zambry Abd Kadir as mentri besar and his state government.

Justice Abdul Aziz said he adopted the reasoning in the case of Stephen Kalong Ningkan v. Tun Abang Haji Openg and Tawi Sli in Sarawak, in which the judge ruled that “the Governor may dismiss ministers but may not dismiss the chief minister in any circumstances”.

He noted that under the framework of a constitutional monarchy, the ruler was expected to discharge his constitutional role and functions in accordance with the provisions of the Constitution.

The Sultan was satisfied as to who commanded the majority in the state legislative assembly when he concluded that Nizar had ceased to command the confidence of the majority, Justice Abdul Aziz said.

“But the stark fact is that there never was any vote of no-confidence taken against Nizar nor had he had gone to the Sultan to request for a dissolution because he had lost the command of the majority. So, how could one say Nizar had ceased to command the confidence of the majority?” he asked.

The High Court also ruled that it was fine for the Sultan to determine who had majority in the assembly to appoint a mentri besar.

However, the Sultan’s opinion that Dr Zambry was likely to command the confidence of the majority in the assembly was not applicable in deciding that Nizar had lost the majority.

“I would say that the personal opinion or judgment of His Royal Highness is irrelevant,” he noted.