After a marathon six-hour hearing, the Federal Court decided to defer its verdict on who is the rightful Perak menteri besar to a date to be fixed.

NONE Court of Appeal president Alauddin Mohd Sheriff ended the court proceedings at 6pm after a day-long session which involved lawyers from both sides arguing their case before a five-member bench of top judges.

The country's highest court had earlier today dismissed Nizar's application for a full bench of 11 judges or alternatively a panel of more than five judges.

As a result, Alauddin and four others - Chief Judge of Malaya Arifin Zakaria and justices Zulkefli Ahmad Makinuddin, Mohd Ghazali Mohd Yusoff and Abdull Hamid Embong - heard the appeal.

In terms of seniority in the Malaysian judiciary, Alauddin is the number two, Arifin, (3), Zulkefli (7), Mohd Ghazali (9) and Abdull Hamid (12). There are 13 judges in the Federal Court.

NONE Nizar's appeal would ultimately determine the fate of the Perak Pakatan Rakyat state government, which had been driven out of power in February after three of its elected representatives resigned and pledged support for Barisan Nasional.

Much is at stake at this hearing which would not only decide who is the legitimate menteri besar but also set a precedent for future similar political imbroglios.

A team of lawyers led by Sulaiman Abdullah appeared for Nizar. Among those who submitted for Nizar were former Bar Council chairperson S Ambiga, lawyers Philip Koh and Chan Kok Keong.

On the other side, senior lawyer Cecil Abraham appeared for BN Menteri Besar Zambry Abd Kadir, while attorney-general Abdul Gani Patail acted as an intervener.

Sulaiman: Appellate court erred

sulaiman abdullah Sulaiman, in his submission, said the appellate court judges had erred in arriving at the decision that Zambry was the rightful menteri besar as it did not take into consideration the findings made by High Court judge Abdul Aziz Abdul Rahim.

He argued that Abdul Aziz's decision should have been given more weight as he had heard testimonies from both Nizar and the Perak legal advisor on the matter.

The lawyer also submitted that the Perak sultan's prerogative to appoint a new menteri besar should be closely examined as the sultan may have acted beyond the constitution to deem the post vacant when Nizar had refused to resign.

"The ruler can appoint the menteri besar, but he cannot dismiss or sack him as it is against the Perak constitution," said Sulaiman.

This is also in line with the Sarawak case, Stephen Kalong Ningkan vs Tun Abang Haji Openg, which states that the chief minister cannot be removed by the governor.

As such, this can only be done through a vote of no-confidence in the state legislative assembly.

Koh meanwhile submitted that it was wrong for Zambry's counsel and the attorney-general to suggest that Nizar did not want to relinquish his post.

"In a letter written by Nizar on Feb 5, he had stated that he received the support of 28 Pakatan Rakyat assemblypersons and that to end the political deadlock, he has asked for the matter be brought to the assembly or to court," he said.

"Similarly, (Pakatan) speaker V Sivakumar had also written a letter to the ruler on Feb 6 asking permission for an emergency sitting of the assembly to resolve this problem. However, Nizar was unable to bring the matter to the assembly following the appointment of Zambry," Koh said.

Chan also submitted that the ruler, no matter how legally well-versed he was, should not be allowed to interpret the constitution. That, he argued, was not his function as the interpretation powers rest with the courts.

AG: Seat deemed vacant

In response, Abdul Gani argued that the appellate court was correct in its decision to apply the Amir Kahar case of Sabah, following the resignation of then chief minister Pairin Kitingan.

lingam tape panel meeting 031007 abdul gani patail In the Perak case, he said the ruler had taken upon himself to determine who commanded the majority when he interviewed the 31 assemblypersons - including the three defectors - and he was satisfied that BN held the majority.

"A press statement issued by the Perak ruler revealed this, where he was satisfied that BN had the majority, and therefore, Nizar's post - despite his refusal to resign - was deemed vacant," he said.

Hence, Abdul Gani said the Perak sultan acted within the constitution.

Abraham meanwhile told the court that the Perak constitution does not have an express requirement that the determination of non-confidence can only be passed through the assembly floor.

"The ruler can take it upon himself to find out who possessed the majority."

Abraham also pointed out that in Nizar's submission, the lawyers had shied from the facts of the case and focused on the legal aspect only.

He adopted Abdul Gani's submission and reiterated that the appellate court judgment, which ruled in favour of Zambry, should be upheld by the apex court.