Lawyers divided over use of SDs to appoint prime minister

 

In 2010, in a unanimous ruling, the Federal Court ruled that SDs from elected representatives could be relied upon, instead of taking a vote in the legislature.

PETALING JAYA: The use of statutory declarations (SDs) to convince the Yang di-Pertuan Agong to appoint a new prime minister is legal and constitutional, lawyer Firoz Hussein Ahmad Jamaluddin said.

He said the unanimous 2010 Federal Court ruling had acknowledged that SDs from elected representatives could be relied upon instead of taking a vote of no confidence against the head of government (prime minister, chief minister and menteri besar) in the legislature.

“The Perak case is still good law and precedent unless it is revisited and set aside by another Federal Court bench,” he told FMT.

Firoz Hussein said this in response to former law minister Zaid Ibrahim’s view that the King should not rely on the Perak case where SDs were used to remove a menteri besar and instal a new head of government.

Firoz Hussein Ahmad Jamaluddin.

Zaid, who is also a lawyer, expressed hope that the King will tell MPs to “stay put in Parliament and sort any leadership issue like a gentleman would”.

Firoz Hussein said the Perak case showed that the head of government could be replaced based on SDs and properly establish extrinsic evidence which can be presented to the King.

In February 2009, the Sultan of Perak sacked Mohammad Nizar Jamaluddin as menteri besar and appointed Zambry Abdul Kadir, with the change occurring without having to take a floor vote in the legislative assembly.

Apart from SDs, the sultan interviewed all 59 assemblymen to conclude that Nizar no longer enjoyed the support of the majority to remain as head of the state government.

Firoz Hussein said the Perak precedent was followed in 2018 when the Sabah governor appointed Shafie Apdal as chief minister, two days after having installed Musa Aman as head of government.

“The governor also relied on SDs presented by Shafie to remove Musa,” he said.

Bastian Pius Vendargon.

Meanwhile, senior lawyer Bastian Pius Vendargon said when a vote of confidence was taken it was to only determine whether the prime minister enjoyed the support of the majority in the Dewan Rakyat.

“If he wins the floor vote, he remains in office. The prime minister only reports to the King if he is defeated,” he said.

Vendargon said under Article 43 (4) of the Federal Constitution, the prime minister could request the King to dissolve the Dewan Rakyat and call for a general election.

“Should the King refuse, the prime minister must tender the resignation of the Cabinet,” he said.

He said the monarch then repeated the exercise under Article 43 (2) (a) to appoint a new prime minister.

That provision states that the King appoints as prime minister an MP who, in his judgment, is likely to command the confidence of the majority in the Dewan Rakyat.

“In his judgment means a reasoned conclusion,” he said, adding that a prime minister must always return to the Dewan Rakyat soon to see if his appointment was legitimate like what the third prime minister Hussein Onn did in 1976.

Vendargon said the nation was faced with a constitutional conundrum as Prime Minister Muhyiddin Yassin was appointed based on SDs.

“Thereafter, the veracity of some of the SDs were questioned,” he said, adding that he leaned towards Zaid’s preference that the confidence vote must be taken in the Dewan Rakyat though the Constitution was silent about it. - FMT