Quo Warranto as option to oust Khalid – Amer Hamzah Arshad

The recent declarations by two PAS assemblymen that they no longer supported Tan Sri Abdul Khalid Ibrahim (“TSKI”) and would support the candidate as proposed by PKR and DAP, has cast doubts whether TSKI still commands the confidence of the Selangor assembly (“assembly”).

There have been calls for a motion of no-confidence to be tabled and debated in the assembly in order to conclusively ascertain whether TSKI still commands the confidence of the assembly, which he so claims. However, this has yet to materialise.

From a legal standpoint, if any of the members of the assembly can produce evidence (e.g. by way of statutory declarations) that TSKI no longer commands the confidence of the assembly, a legal action can be instituted against TSKI by way of a writ of Quo Warranto.

A writ of Quo Warranto is an appropriate and adequate judicial remedy to determine the right or title to a public office, and it can be used to oust any individual who has unlawfully usurped or intruded into such office or is unlawfully holding on to the same.

Since TSKI’s detractors now claim that they have the numbers to show that Khalid no longer commands the confidence of the assembly, the latter’s conduct of holding on to the office is in actual fact, usurping the office from the person who actually enjoys the confidence of the assembly.

The term “usurper” is used in the context that he has no legal authority to claim to be the MB, yet he claims to do so.

In a Quo Warranto proceeding, the usurper is asked “by what authority” has he to hold such an office. If the answer is not satisfactory to the court, then the usurper will be ousted by an order of Quo Warranto.

In the case of Badan Peguam Malaysia v Kerajaan Malaysia [2009] 1 CLJ 833, the Federal Court said that, “today either Quo Warranto or declaratory relief are available to challenge the appointments made under the Constitution or other written law”.

A similar challenge by way of a writ of Quo Warranto was made in the Perak menteri besar crisis.

An important aspect of the writ of Quo Warranto, is that the challenge is directed at the appointee to the office, and not the appointing authority.

In other words, in our present context, if such an application is filed, the challenge is only directed at TSKI’s claim to the office of MB and not the power of the Sultan of Selangor.

In the case of B.R. Kapur v State of Tamil Nadu and Another AIR 2001 SC 3435, the Indian Supreme Court held that in an application for a writ of Quo Warranto, an applicant may question the authority or power of the appointee to hold the public office in question.

Although the decision of the appointing authority is not liable to be impugned in court, and the exercise of his/her discretion is non-justiciable, this immunity does not extend to protect the appointee.

Where the appointee is unable to justify, in legal or constitutional terms, his/her authority or power to hold office, the appointee may be removed by the court through a writ of Quo Warranto.

In short, apart from tabling a motion of no-confidence in the assembly, an application for a writ of Quo Warranto can also be instituted against TSKI to determine if TSKI ought to vacate the office or otherwise.

* Amer Hamzah Arshad is an advocate and solicitor. TMI