With reference to the 3 questions for the Federal Court on the MB v MB appeal mentioned here, my answers are as below:
1. There is no provision in Article 16(6) for the seat of a Menteri Besar (MB) to become or has been vacated.
But Article 34(1) says:
If a member of the Legislative Assembly becomes disqualified for membership of the Assembly or dies, his seat shall become vacant.
We all know that whenever there is a situation when there is no MB, such as, when the incumbent MB dies (Article 34(1)) or resigns (see Article 16(7) which says “any member of the [Executive] Council may at any time resign his office”; a MB is a member of the EXCO: see Article 16(1) and (2)(a)) or has been disqualified as an assemblyman (see Article 31) or has been removed from office by the Assembly, then the Ruler can appoint another assemblyman as MB (because Article 16(2)(a) says that the Ruler appoints an assemblyman as MB based on his judgment).
2. Whenever one has to determine a loss of confidence of the majority in the legislature, surely it must follow that the Legislative Assembly is the only place to go to for such determination? Anything short of a vote being taken at the legislature would be unacceptable to the voters who put the assemblymen there in the Legislative Assembly.
I ask, can there be any other means other than a vote of confidence in the Assembly which would be acceptable to the voters who put the assemblymen there? Certainly, it cannot be the Sultan who does not have the power to do so in the first place. Can you think of any other acceptable means?
3. I think I have answered this in my answer to the first question. The reality of the situation is that the incumbent MB Nizar has refused to resign and the Sultan has no power to dismiss him or to deem the office of MB vacant.
Clause (7) is clear on the point:
Subject to Clause (6) a member of the [Executive] Council other than the Menteri Besar shall hold office at His Royal Highness’ pleasure.
(the emphasis is mine)
So that, until the issue of confidence on Nizar has been determined in the Legislative Assembly, he is not bound to tender the resignation of the Executive Council. Therefore, until it is known that the MB had ceased to command the majority of the members of the Assembly, there is no obligation for the MB to tender the resignation of the Executive Council.
NH Chan, a much respected former Court of Appeal Judge, is a gavel of justice that has no hesitation in pounding on Federal Court judges with wooden desks for heads. Retired from the Judiciary to become the People’s Judge. Wrote the explosive “Judging The Judges”, now in its 2nd edition as “How To Judge The Judges”. Once famously hinted at a possible “case match” between lawyer and judge by remarking that “something is rotten in the state of Denmark” (see Ayer Molek Rubber Company Berhad & Ors v Insas Berhad & Anor [1995] 3 CLJ 359). We need more people like NH Chan. That is why you should buy PASOC and his book.
Posted on 13 July 2009. You can follow any responses to this entry through the RSS 2.0.
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