Revisiting the case of Nizar v Zambry

 

This week, PKR president Anwar Ibrahim dropped a bombshell. In a press conference, he informed the country that he is seeking an audience with the Yang di-Pertuan Agong Sultan Abdullah Sultan Ahmad Shah to present the support that he has to be appointed the new prime minister.

According to Anwar, the government of Prime Minister Muhyiddin Yassin has fallen after the majority of MPs no longer supported the Pagoh MP.

One of the earliest legal opinions put forth in this latest development in Malaysian politics was by academic, Professor Shamrahayu Ab Aziz. She was reported to have said that only the prime minister has the right to meet with the Agong on whether he still has majority support.

She also argued that even with statutory declarations, the same cannot be presented to the Agong and that Anwar needed to bring a motion of no confidence in the Dewan Rakyat in order to prove that Muhyiddin no longer commands the majority support.

With respect, this view is not in line with the precedent in the case of former Perak menteri besar Mohammad Nizar Jamaluddin vs Umno's Zambry Abdul Kadir which was decided by the Federal Court in 2010.

Zambry Abdul Kadir

The case relates to the political conflict which occurred in 2009 in Perak. At the time, the Pakatan Rakyat state government there fell to BN when three Pakatan Rakyat lawmakers shifted their support from Nizar to BN’s Zambry.

One of the issues to be decided in the case was whether the loss of support to a menteri besar must be shown in the state legislative assembly, or whether it can be decided by other means such as the state ruler (at that time, the late Sultan Azlan Muhibbuddin Shah) outside of the state assembly.

Sultan Azlan had at the time met with the three defecting lawmakers and determined that Nizar lost majority support, despite not losing a no-confidence motion in the state assembly.

Mohammad Nizar Jamaluddin

The Federal Court decided that there was no provision in the state constitution that provides for the loss of support can only be determined in the legislative chamber. Evidence of loss of support can be garnered from sources outside of the state assembly if correctly proven.

In order words, the loss of support of a menteri besar need not be proven only through the state assembly and may be ascertained by way of face-to-face meetings or statutory declarations.

Although this case is in relation to the Perak state constitution, the relevant provisions are similar to the constitution in other states, as well as the Federal Constitution itself. As such, the precedent in Perak is binding to other states as well as at the federal level.

That is why similar instances occurred when state governments in Kedah and Malacca fell in the aftermath of the now infamous 'Sheraton Move'. The rulers of those states determined that the menteri besar or chief minister lost majority support without a state assembly sitting in the respective states. It is curious to note that at that time, no academic put forth any view to say that Perikatan Nasional must first prove that the incumbents lost majority support in the state assembly.

Similarly, if indeed Muhyiddin no longer commands majority support of MPs, it can similarly be determined by the Agong without the need for a Dewan Rakyat sitting to test his support.

Some may not agree with the decision of the Federal Court in Nizar v Zambry. Undoubtedly, the best and most transparent way to determine whether the PM continues to enjoy majority support should be by way of a Parliamentary sitting.

But despite what we may feel, the fact of the matter is that there is a precedent in Nizar v Zambry on this issue, and unless in a subsequent decision this precedent is overruled, then it remains valid and binding.

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SYAHREDZAN JOHAN is a civil liberties lawyer and political secretary to Iskandar Puteri MP Lim Kit Siang. - Mkini

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.