Bu Chua Sue Ann, The Edge

The precedent set by the Federal Court's decision in the Perak constitutional crisis has created a binding effect on the prime minister and federal government, lawyers said.
The apex court today affirmed Barisan Nasional's (BN) Datuk Seri Dr Zambry Abdul Kadir as the rightful menteri besar of Perak, dismissing the appeal brought by former Perak menteri besar Datuk Seri Mohammad Nizar Jamaluddin in a year-long tussle for the state government.

Zambry's counsel Datuk Mohd Hafarizam Harun and Nizar's counsel Edmund Bon both agreed that the Federal Court's decision applied to the prime minister's position with regards to the Federal Constitution and its provisions on the Yang di-Pertuan Agong's role in appointing and dismissing the country's chief executive.

Applying the Perak precedent, Hafarizam said the prime minister similarly must tender his resignation if an opposition leader claimed to command the majority in the Dewan Rakyat and if the King did not consent to the prime minister's request to dissolve parliament.

"(If that should happen), if the Agong does not consent to the prime minister's request to dissolve parliament, the prime minister must resign or his seat will be deemed vacant.

"If you have to wait for parliament to be in session to determine whether the prime minister has majority confidence, some representatives might have defected and parliament would be hung and there would be no government (until parliament can resume sitting or be called)," said the Umno legal adviser in a telephone interview.

Article 43(4) of the Federal Constitution states: "If the prime minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves parliament, the prime minister shall tender the resignation of the cabinet."

That provision is similar to Article 16(6) of the Perak Constitution, which was referred to for the Federal Court's interpretation in Nizar's suit against Zambry.

Hafarizam and Bon noted that the Federal Court's decision today meant that returning to the legislature was not the only way to ascertain whether a menteri besar still commanded the majority confidence of the state assembly.

The general rule has always been to go back to the state assembly but in the absence of a sitting, the menteri besar or chief minister can still lose confidence, said Hafarizam.

According to Bon, Nizar's lawyers had argued the case with a view to "protect the monarchy" from being asked to make political decisions in determining the leader of the executive.

"Our argument requires the House to decide on the leader (of the executive). Our argument is not a form of rebellion against the rulers but meant to protect the rulers when they are asked to make political decisions," Bon said.

Bon, who chairs the Bar Council's constitutional law committee, also said it would be "dangerous" if a menteri besar or prime minister need not return to the legislature to determine their positions in the event of uncertainty.

"It creates a lot of instability. It will always mean that it boils down to the decision of one person. It's dangerous. It's not something we advocate," Bon said.

Meanwhile, Universiti Teknologi Mara's Emeritus Professor of Law Datuk Dr Shad Saleem Faruqi declined to comment on whether the Perak case has potential impact on the prime minister's office.

"I don't want to fall into the trap of saying the prime minister's position is in danger. He's got a comfortable majority. Any speculation is improper. It is improper to speculate about the downfall of the federal government," Shad said.

The prominent law professor also stressed that "all fine points in constitutional law are arguable".