KUALA LUMPUR, June 23 — Several lawyers today weighed in on Pakatan Harapan (PH) leaders' proposal to ink a six-month power transition agreement with Tun Dr Mahathir Mohamad, with all three agreeing that such a move is not valid under the Federal Constitution.
However, the lawyers noted that such an agreement would still hold some moral and political clout for the pact in choosing its prime minister candidate.
Constitutional lawyer Lim Wei Jiet said that the prime minister can, in fact, still do as he or she sees fit, even after inking such proposed contract.
“I don't think it's legally binding. Under the Constitution, the discretion to resign as a PM lies with the PM himself/herself. Similarly, it is also the Yang di-Pertuan Agong's prerogative to call for a PM to resign, if he no longer enjoys the support of Parliament.
“Agreements such as this may be deemed as contrary to public policy and void. Arguably, such an agreement cannot be enforced by a court.
“Having said that, such an agreement may have great moral or political force. So we shouldn't dismiss this so easily,” Lim told Malay Mail.
Fellow lawyer and constitution expert Fahri Azzat also shared Lim's sentiments and said that even if the agreement can be forced to fit within the Contracts Act 1950, the courts should not do so.
“Let me answer it this way: I do not think such an agreement is legally binding — because it is a political agreement about succession. I briefly considered whether such an agreement would fall within the framework of the Contracts Act 1950.
“Although I think that statute can be shoehorned to fit such a political agreement, I don't think the courts should do so as it can prove to be very problematic because the act never had such agreements within its contemplation,” he said when contacted.
Senior lawyer Nizam Bashir also concurred, saying that the contract would serve to only “act in a certain way” that is fundamental to all contracts, which is to act and uphold the promises made.
“So while constitutionally speaking, it may not have an appropriate basis, but practically I don't think parties to the understanding are free to act without regard to the understanding.
“Keep in mind that politicians ultimately must answer in the court of public opinion. So they would be very wary of breaching such an understanding,” he added, echoing Lim's sentiment on moral and political clout elements of the proposed agreement.
Earlier today, DAP and Parti Amanah Negara urged allies in the so-called “PH Plus” group to reach a compromise today, saying they were duty-bound to regain control of the government from Perikatan Nasional.
In a joint press statement, Amanah president Mohamad Sabu and DAP secretary-general Lim Guan Eng sought to reconcile PKR president Datuk Seri Anwar Ibrahim’s camp with Dr Mahathir's supporters in his Parti Pribumi Bersatu Malaysia faction and Datuk Seri Shafie Apdal’s Parti Warisan Sabah.
The alliance has been divided into two sides, with PKR still adamant on Anwar as the sole choice to be prime minister even as others have agreed on Dr Mahathir.
Lim and Mohamad then proposed to have the six-month transition agreement in writing, to avoid similar issues which led to the downfall of PH, just after 22 months in power.
Mohamad and Lim added that both their two parties have worked hard over the past three months to find “common ground” between all five parties but without success.
Prior to the fall of the PH administration, PH had agreed that the transition of power from Dr Mahathir towards Anwar should be left in the hands of the former prime minister, who has vowed that it would have been after the Apec Summit in November this year.
