SDs and letters of support unreliable, stick to confidence vote in Parliament, say lawyers

KUALA LUMPUR, Aug 14 — A confidence vote in Parliament is the best way to test if the prime minister has the support he needs to lead the government, lawyers said.

Prime Minister Tan Sri Muhyiddin Yassin promised last week that he would table a confidence vote in the Dewan Rakyat next month — it’s been scheduled for September 7 — but Malay Mail asked lawyers to weigh in on the clearest and most reliable conclusion to determine the majority, as a slew of statutory declarations (SDs) and other proclamations from MPs have been circulating wildly on social media, resulting in public confusion.

“A vote in Parliament is the most open and transparent way because the sittings are broadcast live and also would be on official records via the Hansard. 

“As such, there is little likelihood that the result will be challenged. Compare this with a meeting with the Ruler, or through SDs, which happen behind closed doors and may be questioned,” Syahredzan Johan told Malay Mail. 

Fahri Azzat concurred, saying that methods such as a show of hands or a count to the Yang di-Pertuan Agong or a Sultan, should also be avoided.

“They are there simply to provide formal and legal recognition,” he said, referring to the Rulers.

Fahri added that SDs and letters of support are also unreliable methods, stressing that the documents only point towards a fact of the past.

“For example, I affirm an affidavit on August 13 at 4.34pm. There’s nothing to stop me saying I now support someone else at 4.35pm.

“The moment the SD is affirmed, it is about the past and not about the future. It would be different if the SD affirms that he has affirmed that he will vote for person X and has promised to person X that he will continue to vote for him until the deponent dies.

“The same would go for the letters of support. Those are even more worthless because they are not affirmed and have no legal value as a document,” he said.

However, these weaknesses do not mean that SDs or letters of support are not useful, according to constitutional lawyer Datuk Malik Imtiaz Sarwar. 

“Letters of support and SDs become essential when a time sensitive issue comes about, and at those points may be advantageous,” he said.

When asked on what had set the precedent for lawmakers to declare or withdraw their support for a leader outside of the legislative houses, Malik pointed towards three cases.

These were Stephen Kalong Ningkan (1966), Datuk Amir Kahar Tun Mustapha v Tun Mohamed Said Keruak (1994), and most recently the case revolving around what has come to be known as the 2009 Perak constitutional crisis — Mohammad Nizar Jamaluddin v Zambry Abdul Kadir (2010).

In February 2009, the Sultan of Perak had sacked the then mentri besar — Nizar — after coming to the conclusion that the latter had lost majority support following interviews with all 59 assemblymen and receiving letters and statutory declarations (SDs) of who they support.

The High Court had initially ruled that Nizar could only be removed by a motion of no confidence on the floor of the state assembly and he was reinstated as Mentri Besar.

However, this was overturned as a five-member Federal Court bench in 2010 ruled that the sultan was right to sack Nizar and appoint Zambry as the new Mentri Besar.

To change such a precedent, a similar case would need to be taken up to the Federal Court, which would then need to overturn the previous decision.