Intriguing impasse over MB’s post, says law expert

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KUALA LUMPUR: The Sultan of Selangor’s request for each component party of Pakatan Rakyat to submit more than two names for his consideration for the post of menteri besar appears to have created an impasse, says a law professor.

Professor Gurdial Singh Nijar from Universiti Malaya’s Law Faculty, said this is because two of the three Pakatan parties had insisted on nominating a single candidate who had the majority support of the 56-member assembly.

But he said the sultan’s request could be deemed a decree which must be obeyed — with unknown even intriguing consequences for non-compliance.

“The parties seem to be perfectly within their rights to rely upon past practice [if proved] and more significantly, crystal clear judicial pronouncement by the highest court of the land justifying the nomination of a candidate who has majority support of the legislative assembly,” said Gurdial.

Citing the identical provisions in the Perak constitution, the Chief Justice of the Federal Court in the Perak MB crisis case (Nizar v Zambry), ruled as follows:

“Once an MB loses the confidence of the majority he and his executive committee are dissolved without even the need for the sultan to remove them.

“Then the sultan, in the exercise of royal prerogative under the Perak Constitution, is at liberty to appoint another MB to replace the existing MB.

“But His Royal Highness must appoint someone who has the command and the confidence of the majority of the members of the legislative assembly.

“If there is no doubt that the person nominated has the support of the majority, then he is appointed.”

Gurdial said if the sultan exercised his discretion and picked a candidate who did not have the confidence of the majority of assemblymen, it would be against what appeared to be a definitive judicial pronouncement by the nation’s highest court.

The problem now, he said, is whether the political parties could extricate themselves from the dilemma the sultan’s royal decree had created by relying upon the Federal Court’s interpretation of the constitutional provisions on the exercise of discretion.

Gurdial said if the MB chosen did not command the confidence of the majority, they could at the next sitting pass a vote of no-confidence, thus needlessly embroiling the ruler in a constitutional complication.

“In this context, providing additional names knowing full well that the additional nominees cannot ultimately command majority support may also place the sultan in a difficult position.”

The Ruler’s private secretary Datuk Mohamad Munir Bani said on Wednesday the palace had given the three Pakatan component parties a week to submit at least two names. — The Malaysian Insider

This article first appeared in The Edge Financial Daily, on August 29, 2014.