©The Malaysian Insider (Used by permission)
The office of the Selangor menteri besar is now is deemed vacant after Tan Sri Abdul Khalid Ibrahim had refused to resign, despite losing the majority support of the state assembly, a constitutional lawyer said.
Constitutional lawyer Tommy Thomas said based on the principles established in the Court of Appeal and Federal Court ruling of the Nizar vs Zambry case, the Selangor sultan should appoint Kajang assemblywoman Datuk Seri Dr Wan Azizah Wan Ismail as the new menteri besar.
This, he said, is because she enjoyed the confidence of 30 assemblypersons in the 56–member house.
"The legal position is clear. Regardless of whether Khalid resigns, the law deems that he has vacated the menteri besar’s post.
"Evidence of loss of confidence is also not limited to motions carried on the floor of the assembly. Instead, such evidence may be gathered from other extraneous sources," he added, of the 2010 court ruling.
In that case, PR won 31 seats out of 59 seats in the Perak legislative assembly, with Barisan Nasional winning 28 seats after the 12th general election in 2008.
Although PAS had the lowest number of assemblymen, Pakatan Rakyat (PR) asked PAS to nominate Datuk Seri Mohammad Nizar Jamaluddin as menteri besar, who the late Perak sultan, Sultan Azlan Shah, approved of.
In 2009, three PR members resigned from their parties and switched allegiance to Barisan. The sultan also refused Nizar’s request that the assembly be dissolved and fresh elections be held.
The sultan appointed Barisan’s nominee Datuk Seri Dr Zambry Abdul Kadir as the new menteri besar.
Thomas also cited critical passages from the judgments of the Court of Appeal and Federal Court in the Nizar case.
Tan Sri Raus Sharif, then court of appeal judge, said:
“The fact that a Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly can be established by other means. It cannot be solely confined to the vote taken in the Legislative Assembly.
… Of course, actual voting in the Legislative Assembly is ideal but interpreting art XVI (6) to require the loss of confidence to be established only by voting in the Legislative Assembly would lead to absurdity as the Menteri Besar who may have lost support will not be too eager to summon it.”
Tan Sri Ahmad Maarop, then court of appeal judge, said:
“The provision is clear. If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, he cannot remain in office.
“… the refusal of the Menteri Besar to tender such resignation is unconstitutional and it is implicit that on such refusal the Executive Council and the office of the Menteri Besar is thereby vacated.”
Chief justice Tun Arifin Zakaria, in his federal court judgment, said:
“ … As such, evidence of loss of confidence in the MB may be gathered from other extraneous sources provided … they are properly established. Such sources, we think, should include the admission by the MB himself and/or representations made by members of the LA that the MB no longer enjoys the support of the majority of the members of the LA.
“The appellant cannot continue to govern after having lost the support of the majority. To allow him to do so would be going against the basic principle of democracy.
“… as for the third question our answer is that if the MB refuses to tender the resignation of the executive council under art XVI(6) the MB and the executive council members are deemed to have vacated their respective offices.”
Thomas said, in law, the embattled Khalid could no longer hold out as menteri besar.
"When he assumed office, he would have taken an oath to preserve, defend and protect the Constitution, which would include a duty to comply with a clear and unambiguous decision of the Federal Court."
Today, 30 assemblypersons announced at a press conference their lack of confidence in Khalid. Their support for Dr Wan Azizah as his replacement fundamentally changed the legal position.
"From this afternoon, Khalid does not have the necessary constitutional legitimacy to remain in office."
He said Khalid must be reminded of the law as laid down by the Federal Court.
The Selangor assembly has 56 members – DAP (15), PAS (15), PKR (13) Barisan Nasional (12) – and Khalid as an independent representative.
Two PAS assemblymen also today showed their support for Dr Wan Azizah as Khalid’s replacement, while the positions of 13 others were unknown. – August 14, 2014.