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Monday, August 11, 2014

MB’s sacking from PKR and constitutional law implications

The Selangor state assembly. The state ruler is obliged to act on the advice of the exco to summon the state assembly to meet. – The Malaysian Insider file pic, August 11, 2014.The Selangor state assembly. The state ruler is obliged to act on the advice of the exco to summon the state assembly to meet. – The Malaysian Insider file pic, August 11, 2014.The sacking of Selangor Menteri Besar Tan Sri Abdul Khalid Ibrahim from membership of his own political party has brought to the forefront several constitutional issues.
First, the MB was appointed from the party, or in this case a coalition of parties (PR), on the basis that he commanded the confidence of the majority of the coalition. If this "command of the confidence" is clear, then, by convention, the Selangor Sultan is obliged to appoint such a person as the MB.
By the same token, if the extant MB ceases to command the confidence of his coalition party, then he can no longer continue to remain as MB. He must resign, failing which he may be removed by the sultan in the exercise of powers under exceptional circumstances.
Third, it follows that the person who is nominated by this remaining coalition party will then command the confidence of the party and be appointed as the MB.
Fourth, can a meeting of the state legislative assembly be convened to deal with the issue of the confidence of the MB? Who can summon such a meeting?
The power to summon a meeting of the state assembly is vested in the sultan. He must act on the advice, usually of the MB as the natural spokesman of the state executive council (exco).
However, the Constitution explicitly states that the sultan must act in accordance with the advice of the exco, not the MB alone.
So it is open to the state exco to meet and to arrive at a majority decision to request the sultan to convene a meeting of the state assembly.
The sultan is then obliged to act on the advice of the exco, and summon the state assembly to meet.
This will be especially so if the state exco's request/advice is grounded upon the reason that it has become impossible for them to carry out the functions of the state government because of their problems with the MB.
The state exco, like the Cabinet at the federal level, is constitutionally "the supreme decision-making body in a government" and the "ultimate arbiter of government policy". It is constitutionally positioned to reassert these powers.
* Gurdial Singh Nijar is Professor at Law Faculty, University of Malaya. TMI

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