In the case of Dato Seri Ir Haji Mohammad Nizar Jamaludin v.

Dato Seri Zambry Abdul Kadir,where the fact of the case was upon the General Election held on 8 March 2008,whereby the political alliance called Pakatan Rakyat won 31 out of the 59 seats in the State Legislative Assembly of Perak with the remaining seats going to Barisan Nasional.On 17 March 2008,the appellant (nizar) was appointed as the Menteri Besar of Perak by His Royal Highness the Sultan of Perak.However,on 5 February 2009 ,three members of Legislative Assembly declared and informed His Royal Highness that they no longer supported Pakatan Rakyat,and instead pledged their support to Barisan Nasional.On the same day,the appellant had an audience with His Royal Highness where he was informed that his request for dissolution of the Legisative Assembly was rejected by His Royal Highness.Then,under the state law of Perak ,His Royal Highness directed Nizar to tender his resignation as the Chief Minister of Perak since he was no longer commanded the confidence of majority of the members of Legislative Assembly.However,he did not comply with that direction.But then,on 6 February 2009,His Royal Highness appointed Datuk Zambry as the new Chief Minister of Perak and Nizar ,dissatisfied with that decision he filed an application to declare that he was still the MB of Perak. It siad that the appointment of Zambry as the new Chief Minister of Perak is valid and constitutional. Nizar is not removed by the ruler because the removal is due to the loss of condence when Nizar ceased to command the confidence of majority. First of all,when the request made by Nizar to dissolve the Legislative Assembly is rejected by His Royal Highness,we must understand that in all cases,the decision whether or not to dissolve the Legislative Assembly is at the absolute discretion of His Royal Highness . The Sultan of Perak does not act on advice of the exco in the matter of dissolving the state legislative assembly and that it was his absolute discretion to do so and it is clearly stated in Perak Constitution as so. The issue arose in term of how the vote of no confidence being determined.Was it being determined in the State Legislative assembly or could it be determine by referring to extrinsic material which means the determination of the vote of confidence can be held outside the State Legislative Assembly.A motion of noconfidence could be established through a vote of no-confidence at the state legislative assembly or could arise from extraneous circumstances that may imply that the elected representatives no longer had the confidence in the menteri besar. The statement by the Sultan as well as the defectors from Pakatan, who later declared their support for BN, were indication enough of a no-confidence vote against Nizar. The question on how the vote of confidence is determine is through the case of Adegbenro v. Akintola , judgement made by Privy Council,stated that the vote of no confidence can be accessed outside the parliament whereby in this case the vote of no confidence is gained by the letter sent by 66 chair members to Nigerias governor because the did not give confidence.In view of the Privy Councils decision,whether a head of state can consider lack of confidence expressed outside the legislature.This decision is followed in the case of Datuk Amir Kahar Tun Mustapha v. Tun Mohamed Said Keruak.Contacting the case of Dato Nizar with these,the Sultan of Perak in rationale rejecting his request for dissolution of

Legislative Assembly by saying that this is just a one year old election and why is Nizar hastily wanted to dissolve the parliament since this is an issue of he ceased to command the majority of confidence.Thus,it approved Akintolas case. Aziz's judgment held that in line with the case of Stephen Kalong Ningkan, former Chief Minister of Sarawak, the leader of a state government can only be toppled by a vote of no confidence in the state assembly.Aziz first dealt with the submissions of Attorney-General Tan Sri Abdul Gani Patail, an intervenor in the case, the Attorney-General had submitted that a state assembly can only be dissolved when the Menteri Besar loses the confidence of the legislature or at the expiration of the legislature's term, and that under Article 16(6) of the state constitution, Nizar had automatically resigned his position as Menteri Besar. Aziz rejected both submissions, finding that Article 36 provided for "unlimited circumstances for the menteri besar to request for dissolution from the Sultan," and that although Article 16(6) suggests the Menteri Besar should resign, it cannot automatically compel him to do so. Perak State Legal Adviser Datuk Ahmad Kamal Md Shahid had submitted an affidavit supporting Zambry in the proceedings. However, Aziz found it unreliable, ruling that "It was Kamal's own admission that he was instructed by Zambry's counsel to affirm the affidavit. The word instructed is a very strong word. ... To me, he is not a neutral or impartial witness, his testimony was coloured by the instruction that he received." Kamal had claimed that Nizar requested the dissolution of the state assembly under Article 16(6), which would mean Nizar had already lost the confidence of the state assembly. However, Nizar insisted his request was under Article 36(2), which allows the Menteri Besar to request dissolution for any reason. Aziz told the court that: Once a Menteri Besar is appointed, he is answerable only to the assembly. Hence, the sultan cannot order for his resignation but this must be done through a vote of no confidence at the state legislative assembly. However, based on democratic practise, the only measure to oust Mohammad Nizar was through a vote of no confidence against him. As I have stated earlier any vote of no confidence should be on the floor of the state legislative assembly. Only under these circumstances can the menteri besar be forced to resign.

Based on this, Aziz ruled that Nizar is, and was, at all material times the chief minister of Perak.Aziz's judgment granted the declarations sought by Nizar: 1. That Nizar was the rightful Menteri Besar; 2. That there had been no dissolution of the Perak Assembly, no motion of noconfidence, and that Nizar had not resigned;

3. A writ of quo warranto against Zambry ordering him to show cause for the authority under which he acted as Menteri Besar 4. That Zambry had no right to act as or occupy the office of Menteri Besar, and was not the Menteri Besar at any material time; 5. An injunction preventing Zambry from acting as Menteri Besar.

However,the respondent and learned Attorney General on the other hand submitted that Stephen Kalong Ningkans case should not be followed as the decision was based on the peculiar facts as found by the judge majorly because of there was no request for dissolution of the assembly ever being made by Ningkan.In Nizars case, there is nothing in Article 16(6) or in any other provisions of the State Constitution stipulating that loss of confidence in the Menteri Besar may only be established through a vote in the legislative assembly. As such, evidence of loss of confidence in the Menteri Besar may be gathered from other extraneous sources provided.And such sources, should include the admission by the Menteri Besar himself or representations made by members of the legislative assembly that the mentri besar no longer enjoys the support of the majority of the members of the assembly. In the present case, the Court of Appeal held that there was such an admission by Mohammad Nizar and what is beyond dispute is the demonstration of support by the 31 members of the legislative assembly for the Barisan Nasional.This was further confirmed in the meeting between the 31 members of the Legislative Assembly and His royal Highness whereby they jointly expressed their support for Barisan Nasional. In explaining the grounds, Justice Arifin said Mohammad Nizar had made a request to the Sultan of Perak to dissolve the state legislative assembly under Article 16 (6) of the Perak Constitution and not under Article 36(2) of the Constitution.Article 36(2) is a general provision for which a request for dissolution can be made when the five-year term of the assembly is drawing to an end.Article 16(6) states that if the Menteri Besar ceases to command the confidence of the majority of the legislative assembly, then, unless at his request the Ruler dissolves the legislative assembly, he shall tender the resignation of the exco. By the time the findings stated that Nizar had failed to command vote of confidence His Royal Highness,The Sultan of Perak asked Dato Nizar to tender his resignation but Dato Nizar refused.In this manner,when the court claimed that he had lost his confidence,his post was deemed to be vacant automatically.And basically,the dismissal of Dato Nizar as the Chief Minister of Perak is not come from the Sultan of Perak but by operation of law.The Sultan only exercising his power to appoint new chief minister.Thus,the removal of Nizar is valid. Plus,in the matter of If you lost the majority, then what do you do, do you still hang around? The moment he loses his majority, he must resign. We cannot have a MB who is not having the condence of the majority.

 ^ "New judge to hear Nizar vs Zambry case". The Star. 2009-04-02. http://thestar.com.my/news/story.asp?file=/2009/4/2/courts/3609315&sec=courts. Retrieved 2009-05-11.
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^ "Court rules Nizar is Perak MB; BN to appeal (Update 10)". The Star. 2009-05-11. http://thestar.com.my/news/story.asp?file=/2009/5/11/nation/20090511154813&sec=nation. Retrieved 2009-05-11.. ^ a b c Yatim, Hafiz (2009-05-11). "Court rules Nizar is legitimate MB". Malaysiakini. http://www.malaysiakini.com/news/103996. Retrieved 2009-05-11. ^ a b Chelvi, S. Tamarai; Husna Yusop (2009-05-11). "Nizar rightful Perak MB: Court". The Sun. http://www.thesundaily.com/article.cfm?id=33289. Retrieved 2009-05-12.