Thursday, September 11, 2014

'Not following lists against spirit of Nizar vs Zambry'

3:38PM Sep 10, 2014
Malaysiakini
Universiti Malaya law professor Gurdial S Nijar said if the Selangor sultan decides not to choose from the lists given by the Pakatan Rakyat parties, it could be considered against the spirit of the Federal Court decision between Mohamad Nizar Jamaluddin vs Zambry Abdul Kadir.

He said the sole criteria is that the MB selected must command the confidence of the majority in the state legislative assembly, aside from the fact that the person should also be a Malay and a Muslim and not a citizen by naturalisation.

Gurdial (left) said in the Nizar vs Zambry case, the apex court acknowledged that the sultan has the prerogative power to select the MB.

“The sultan in the exercise of his royal prerogative under Article 16 (2) (a) of the Perak state constitution, is at liberty to appoint another MB to replace Nizar. This article is the same as appears in the Selangor constitution,” he emphasised.

“The Federal Court went on to approve this position that His Royal Highness must appoint someone who has the command and the confidence of the majority of the members of the legislative assembly. The apex court establishes this as the criteria for the selection of the MB,” he said.

The Selangor constitution, Gurdial said, under Article 55 (2) (a) gives the discretion to the sultan to appoint the MB but in Article 53 (2) (a) provides the criteria for the selection of the MB.

“He ‘shall’ (meaning must) select a person who in his judgment is likely to command the confidence of the majority of the members of the legislative assembly. Hence, the criteria is spelt out clearly,” the professor said.

Gurdial explained that this is made clearer still when the Federal Court in that case goes on further to say that it is always open to bring a vote of no confidence against the chosen MB in the legislative assembly or make a representation to the sultan at any time if it is thought that the selected MB does not enjoy the support of the majority of the legislature.

Hence, he said the only criterion is command of the confidence of the majority of the members of the legislature which is established thus far in the constitution of our legal jurisprudence as established by our highest court.

Gurdial’s position slightly departs from the views of the two lawyers interviewed yesterday who said the sultan can select someone who is not from the lists, as long the person commands the support of the majority.

The ruler’s private secretary Mohamad Munir Bani in the letter dated Monday to the press indicated that the ruler might even choose a Pakatan state representative who is not on the lists of potential candidates submitted to the palace.

‘Wan Azizah has support of 30 assemblypersons’

Constitutional expert Abdul Aziz Bari has also asked yesterdaywhy was there a different practise in the selection of the new Selangor MB compared to past practises involving Umno/BN chief executives.

It was previously reported that Kajang assemblyperson and PKR president, Dr Wan Azizah Wan Ismail (left), has obtained support from 30 of the 56 assemblyperson for her to replace incumbent Abdul Khalid Ibrahim. Copies of the assemblypersons’ statutory declarations were also sent to the palace.

As reported, Wan Azizah’s sole name was sent by the PKR and DAP to the palace for consideration, while PAS, the third Pakatan partner, sent three names.

Gurdial further said the position of the person commanding the majority support is also the position under convention.

“This is what has been said by an acknowledged authority on conventions in the choice of a prime minister in similar situations in the United Kingdom,” he said, adding that the party leader who has the majority support in the House has an indisputable claim to be appointed.

Gurdial further states the views aired by lawyers Sallehuddin Saidin and Param Cumaraswamy yesterday, in his view, are unsupported by legal authority.
~ Malaysiakini

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