but will it be acceptable to His Royal Highness?
Showing ‘loss of confidence’ of the MB & legal consequences
By Prof Gurdial Singh Nijar
A press conference by the leader of the Pakatan Rakyat (PR) claims that a majority of the members of the State Legislative Assembly (30 out of 56) have declared that they no longer have confidence in the existing MB, Tan Sri Khalid. They have expressed their support for the PR.
If this is indeed the position, what happens now?
This question has been answered by our highest Federal court in the Perak Assembly case (Nizar v Zambry). The Court established the following.
First, there is no need to have a vote of no-confidence in the State Assembly itself. This loss of confidence can be established by other extraneous sources - “provided they are properly established”. This includes representations made by members of the Assembly that the MB no longer enjoys the support of the majority.
If such representations give the other party (in this case the PR political alliance) a clear majority in the Assembly, then, said the Court, this “clearly pointed to the loss of confidence of the majority of members of the legislative assembly in the leadership of the … CM”.
It was then incumbent upon the MB to tender the resignation of the Executive Council which includes the MB.
If the MB refuses to do so, the ExCo members are ‘deemed to have vacated their respective offices’.
The upshot of this decision is that PR can now present to His Highness the Sultan the representations by the majority of the members of the legislative assembly as to the loss of confidence of the MB to the Sultan.
The Sultan has no discretion in the matter but to act according to the judgment of the Federal Court; and direct the MB to tender the resignation of the ExCo. Any refusal would go against the express mandatory provision of the State Constitution: Article 53(6) which is identical to the provision in the Perak State Constitution.
Otherwise, said the Federal Court, “it would lead to political uncertainty in the state. The appellant (MB) 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”.
The Sultan will then appoint as the MB the person nominated by the majority.
A final note: in the Nizar v Zambry case the Federal Court referred to the “political alliance called Pakatan Rakyat (PR)” – which contradicts assertions made to the contrary that such an alliance has no existence.
14 August 2014
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Showing ‘loss of confidence’ of the MB & legal consequences
By Prof Gurdial Singh Nijar
A press conference by the leader of the Pakatan Rakyat (PR) claims that a majority of the members of the State Legislative Assembly (30 out of 56) have declared that they no longer have confidence in the existing MB, Tan Sri Khalid. They have expressed their support for the PR.
If this is indeed the position, what happens now?
This question has been answered by our highest Federal court in the Perak Assembly case (Nizar v Zambry). The Court established the following.
First, there is no need to have a vote of no-confidence in the State Assembly itself. This loss of confidence can be established by other extraneous sources - “provided they are properly established”. This includes representations made by members of the Assembly that the MB no longer enjoys the support of the majority.
If such representations give the other party (in this case the PR political alliance) a clear majority in the Assembly, then, said the Court, this “clearly pointed to the loss of confidence of the majority of members of the legislative assembly in the leadership of the … CM”.
It was then incumbent upon the MB to tender the resignation of the Executive Council which includes the MB.
If the MB refuses to do so, the ExCo members are ‘deemed to have vacated their respective offices’.
The upshot of this decision is that PR can now present to His Highness the Sultan the representations by the majority of the members of the legislative assembly as to the loss of confidence of the MB to the Sultan.
The Sultan has no discretion in the matter but to act according to the judgment of the Federal Court; and direct the MB to tender the resignation of the ExCo. Any refusal would go against the express mandatory provision of the State Constitution: Article 53(6) which is identical to the provision in the Perak State Constitution.
Otherwise, said the Federal Court, “it would lead to political uncertainty in the state. The appellant (MB) 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”.
The Sultan will then appoint as the MB the person nominated by the majority.
A final note: in the Nizar v Zambry case the Federal Court referred to the “political alliance called Pakatan Rakyat (PR)” – which contradicts assertions made to the contrary that such an alliance has no existence.
14 August 2014
A legal precedent is only a precedent and that is it. It has no local standing on another case although nothing prevents the defence from referring to that precedent which may or may not be relevant to the case in question.
ReplyDeleteAnon, I am not a lawyer and I don't you are. My basic understanding of case law is that any future cases need to refer to relevant past verdicts and in the Perak MB case, the verdict was by our highest court, the Federal Court. If both state constitutions are similar, then it is relevant to refer to that decision where applicable, unless and until there is a change in law.
ReplyDeleteThe law operates in the context of the environment in which the incident took place. Yes you are right to say that if the laws of the two states is the same then the precedent can apply. But, unfortunately, the environment is different. It is in this context that I say that the precedent in the Perak case may not apply here.
ReplyDeleteIn any case I do not think that this case to go to the courts. If it cannot be resolved on the basis of the provisions in the constitution then it must be decided by a snap elections. Thank you.