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Wednesday, August 6, 2014

Court ruling on Perak MB ouster can be used to remove Khalid, say lawyers

Datuk Seri Mohammad Nizar Jamaluddin was ousted as the Perak menteri besar in 2009, just a year after the 2008 general election. – The Malaysian Insider file pic, August 6, 2014.Datuk Seri Mohammad Nizar Jamaluddin was ousted as the Perak menteri besar in 2009, just a year after the 2008 general election. – The Malaysian Insider file pic, August 6, 2014.The ouster of Datuk Seri Mohammad Nizar Jamaluddin as Perak menteri besar (MB) in 2009 will now come to haunt Barisan Nasional (BN) and supporters of Tan Sri Khalid Ibrahim who want him to remain in office, say constitutional lawyers.
The legal experts said those in favour of Khalid remaining as MB may not agree with the 2010 Federal Court ruling which legitimised the appointment of Datuk Seri Zambry Abdul Kadir who succeeded Nizar.
The lawyers also said Pakatan Rakyat (PR) could rely on that ruling to remove Khalid.
Once this has been determined, the head of government must resign together with his cabinet or exco members.
The ruling also implied that the head of government is deemed to have been dismissed from office if he refused to resign after losing the confidence vote.
This paves the way for the appointment of a new head of government or dissolution of the House.
In the Perak incident, Nizar lost the support of his assemblymen, when three state representatives became BN-friendly independents in February 2009.
The political equation then stood at 28 each for PR and BN.
Nizar had then advised the late Sultan Azlan Shah to dissolve the house but he refused, and instead appointed Zambry as the MB.
"We agree that there is nothing in Article 16 (6) or in any other provisions of the (Perak) State Constitution stipulating that the 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," said current chief justice Tun Arifin Zakaria, who had delivered the unanimous court ruling.
The judges said Sultan Azlan Shah had sufficient evidence to decide that Nizar had lost the support of the legislative assembly without calling for a vote of no-confidence.
Datuk Seri Najib Razak, then the deputy prime minister, had declared in the presence of the three defecting PR assemblymen, that the BN had the majority of 31 compared to PR's 28.
Najib also had an audience with the ruler and presented letters from the 28 BN assemblymen and the three, aligning themselves with the BN.
Universiti Malaya law professor, Gurdial Singh Nijar (pic, right), said based on the ruling in the Perak case, the PR assemblymen in Selangor could attest statutory declarations to the Selangor ruler to show that they had no confidence in Khalid.
PR, which consists of PKR, DAP and PAS, has 44 seats in the state assembly while BN has 12.
"Based on such extraneous factor, the sultan could invite another candidate who in his judgment commands the majority in the house to be appointed MB," he said.
Nijar said in practice, the ruler appointed a head of government based on the recommendation of the party in power.
He said in Selangor, PR has two-thirds majority and a candidate nominated by the loose coalition could replace Khalid provided all criteria as required under the state constitution, like the MB-designate being a Malay-Muslim, were met.
Constitutional lawyer Syahredzan Johan said Khalid must resign together with his executive council, in the event the majority of assemblymen lost confidence in him.
"He could advise the ruler to dissolve the assembly to hold fresh elections, and if refused, a new candidate can be appointed MB," he said.
He said the ruler may be persuaded to appoint a new candidate to lead the Selangor government if Khalid lost the confidence vote with overwhelming majority.
Syahredzan (pic, left) said the ruler may be encouraged to dissolve the house if Khalid failed to secure the confidence vote, even by a slim margin.
"In any event, the ruler has the prerogative whether to dissolve the house after taking the MB's advice," he said.
Lawyer R. Kengadharan said the understanding among PR coalition parties was that the candidate for the Selangor MB post comes from PKR. As such, he said, Khalid should vacate his position based on his party's decision.
"To declare that he will serve his term until the next election, is showing open defiance and contempt to the party leadership," he added.
Kengadharan said the late British prime minister Margaret Thatcher resigned from office when she no longer had the support of her party and fellow MPs.
"Khalid must never be an impediment to progress or else the political movement will disintegrate and external factors will set in, including the opposition taking advantage of the present fiasco," he said.
Khalid has been facing mounting pressure from the PKR leadership to resign over his handling of Selangor affairs.
This included the state’s management of its water resources, Kidex highway and seizure of Malay and Iban Bibles by the Selangor Islamic Religious Department (Jais).
Yesterday, he was issued a show cause letter by PKR for going against the party's decision to replace him with Datuk Seri Dr Wan Azizah Wan Ismail.
Khalid has to reply to the letter by August 8.
While the DAP supports Khalid's removal, PAS president Datuk Seri Abdul Hadi Awang and the party's spiritual leader Datuk Nik Abdul Aziz Nik Mat said Khalid could remain as MB as he did not betray the trust of the people.
- TMI

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