22 February, 2009

Now, Umno seeks QC help to break Perak deadlock

An Umno lawyer is understood to have been instructed by the Barisan Nasional (BN) party to seek advice from a Queen’s Counsel in London in an effort to break the constitutional impasse in Perak.

The lawyer is said to have left for London yesterday to meet with an unnamed QC even as the question over the legitimacy of the current MB Datuk Zambry Abdul Kadir is already before the courts here.

British lawyers are occasionally instructed in courts here but only when the expertise is not available locally.

It is not clear if Umno will want to have a QC represent them in court in the lawsuit filed by Datuk Seri Nizar Jamaluddin, who maintains he remains the Perak mentri besar.

Earlier this month, Sultan Azlan Shah denied a request from Nizar, who was still recognised as the Pakatan Rakyat MB then, to dissolve the Perak state legislature after a series of defections from PR parties to the BN.

While constitutionally the ruler is given the discretion to reject such a request, it is widely accepted convention that such requests to dissolve governments are rarely, if ever, rejected because Malaysia has a constitutional monarchy.

The Perak state constitution, which is subject to provisions in the federal constitution, does not give the ruler any power to dismiss an MB.

While some lawyers here have argued that the Interpretation Act, which states that the power to appoint implies a power to dismiss, gives the ruler the power to dismiss Nizar, it has also been noted that that provision does not apply to constitutional matters.

Furthermore, it has been noted that while the Sultan is given a discretion in the appointment of an MB by the state constitution, the MB does not hold office at the pleasure of the ruler. Only state executive councillors hold office at the pleasure of the ruler.

The fact that the MB does not hold office at the pleasure of the ruler is provided for in the state constitution, and will likely be cited as a legal point by Nizar’s lawyers, who will also contend that the only way for him to be dismissed is through a vote of no-confidence in the state legislature.

An MB, under the constitution, can only be removed from his position if he resigns or if a vote of no confidence is carried in the state legislature.

Nizar’s refusal to resign, despite being asked to do so by the Sultan, is at the heart of the constitutional conundrum.

(Source)

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