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Thursday, August 14, 2014

According to the law, Khalid is no longer menteri besar – Tommy Thomas



This afternoon’s press conference when 30 State Assemblymen announced to the world their lack of confidence in Khalid, and support for Dr Wan Azizah as his replacement fundamentally changes the legal position.  Khalid had ceased weeks ago to have any moral or political legitimacy to remain menteri besar.  From this afternoon, Khalid does not have the necessary constitutional legitimacy to remain in office.
Khalid must be reminded of the law of the land as laid down by our apex court, the Federal Court in Nizar v. Zambry.  In that case, in GE12 in 2008, Pakatan won 31 seats out of 59 seats in the Perak Legislative Assembly, with Barisan winning the remaining 28 seats.  Although PAS had the lowest number of Assemblymen, Pakatan asked PAS to nominate a candidate for menteri besar which it did, namely, Nizar Jamaluddin. 
In 2009, three Pakatan members resigned from their parties and switched allegiance to Barisan.  Nizar’s request to the Sultan of Perak that the Assembly be dissolved and fresh elections be held was refused.  Instead, the sultan appointed Barisan’s nominee Zambry Kadir as the new menteri besar.  The Nizar case decided 3 propositions relevant to Khalid:
(ii) Khalid’s refusal to tender his resignation after having lost the confidence of 30 Assemblymen in the 56-member House is deemed under the Constitution has having vacated his office, resulting in a vacancy in the office of the menteri besar; and
(iii) The sultan should under the constitution appoint Dr Wan Azizah as the new menteri besar to fill that vacancy because she enjoys the confidence of these 30 members, to the exclusion of any other aspirant to that office.
Reproduced below are the critical passages from the judgments of the Court of Appeal [1] and Federal Court [2]  in the Nizar case, which even Khalid will be able to understand.
Raus Sharif JCA (as he then was)
[32] … 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.”
[Page 488 at A-C]
[36] … 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.
[Page 489 at C-D]
(my emphasis)
Ahmad Maarop JCA (as he then was)
[404] 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.”
[Page 566 at H]
“… 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.”
[Page 557 at H]
(my emphasis)
Arifin Zakaria CJ
[48] … 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.”
[Page 307 at G-I]
“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.
[Page 310 at E-G and I]
(my emphasis)
In consequence, the legal position is clear.  Regardless of whether Khalid resigns, the law deems that he has vacated the menteri besar’s post.  He can no longer hold himself out in law as the 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 Court of Appeal and Federal Court, the highest courts in the land. – August 14, 2014.
Notes:
[1] Malayan Law Journal, no.5 (2009): 464 .
[2] ______________, no. 2 (2010): 285. 
* Tommy Thomas is an advocate and solicitor.
- TMI

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