by Joshua Wu Kai-Ming | Aug 31, 2021 | Law, Politics
Constitutionally, the Yang di-Pertuan Agong (“YDPA”) has the discretion in the appointment of the Prime Minister.[1]
The YDPA is required to appoint the person in his judgment is likely to command the confidence of the majority of the members of the House of Representatives (Dewan Rakyat).[2]
Interestingly, the Federal Constitution does not prescribe the method of ascertaining who commands the confidence of the majority.
Over the years, however, we have developed precedents for various methods.
Vote of Confidence
A vote of confidence motion in Parliament would arguably be the clearest method of finding out if a particular individual commands the confidence of the majority.
Notwithstanding that, if the motion were introduced by way of a Private Member’s Bill, the motion would likely not see the light of day unless it receives the Government’s backing as the Government business has precedence over Private Members business.[3]
This method would also require Parliament to be sitting ordinarily, or for a special Parliamentary sitting to be held,[4] in order for the vote of confidence motion to be debated and voted on.
Letter of Support
In Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener) [2010] 2 MLJ 285 (“Nizar Jamaluddin”), 31 out of 59 members of the Perak State Legislative Assembly issued a letter stating that they would support whoever is named by YAB Dato’ Seri Mohd Najib bin Tun Abdul Razak as the candidate for the new Chief Minister of Perak.[5]
The Sultan of Perak subsequently directed Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin to tender his resignation and the resignation of the State Executive Council,[6] and appointed Dato’ Seri Dr Zambry bin Abdul Kadir as the Chief Minister of Perak.[7]
Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin later filed a judicial review application to seek, inter alia, a declaration that he was the legitimate Chief Minister.[8]
When the matter came before the Federal Court, a 5 member panel recognised the legitimacy of extraneous sources:
“We agree with the view stated above as there is nothing in art XVI(6) or in any other provisions of the State Constitution stipulating that the loss of confidence in the MB may only be established through a vote in the LA. As such, evidence of loss of confidence in the MB may be gathered from other extraneous sources provided, as stated in Akintola, they are properly established.”[9] (emphasis mine)
Face to Face Interview
In Nizar Jamaluddin, this method was used by the Sultan of Perak post-letter of support.[10]
The YDPA employed this method back in 2020 after Tun Dr. Mahathir bin Mohamed had tendered his resignation as Prime Minister.[11]
The YDPA interviewed all 222 Members of Parliament to ascertain who commanded the confidence of the majority.
This, on its own, however, is a time consuming process. When it was utilised by the YDPA in 2020, it took 2 days.[12]
Statutory Declaration
In light of the Federal Court’s decision in Nizar Jamaluddin, statutory declarations would likely suffice as an extraneous source of establishing who commands the confidence of the majority of the members of the Dewan Rakyat.
During the recent political crisis, the YDPA resolved the matter by requiring all 220 Members of Parliament to submit a statutory declaration to nominate a name to be appointed as the Prime Minister.[13]
The statutory declarations submitted revealed that Datuk Seri Ismail Sabri bin Yaakob (“DSIS”), the former Deputy Prime Minister, commanded the confidence of 114 Members of Parliament.[14]
After a face to face interview with the 114 Members of Parliament, the YDPA was satisfied and DSIS was accordingly appointed the 9th Prime Minister of Malaysia.[15]
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by Joshua Wu Kai-Ming | Jul 13, 2021 | Law, Politics
Tan Sri Shahrir bin Abdul Samad, a former Minister of Domestic Trade and Consumer Affairs, has opined that Dato’ Sri Ismail Sabri bin Yaakob (“DSIS”) could be the interim Prime Minister if Tan Sri Dato’ Haji Mahiaddin bin Md Yasin (“TSMY”) resigns as Prime Minister.[1]
DSIS was recently appointed as the Deputy Prime Minister[2] and it would be reasonable to assume that DSIS would step in as interim Prime Minister in the event of a vacancy of the Prime Minister position.
First of all, it is important to note that the position of Deputy Prime Minister is not provided for in the Federal Constitution.
Rather, it has come about as a result of pragmatism[3] and over the years has become somewhat of a constitutional convention.[4]
This article will discuss the viability of Tan Sri Shahrir’s proposal based on 2 possible reasons which could be given in the event TSMY resigns.
Loss of Confidence
If TSMY ceases to command the confidence of the majority of the members of the lower House of Parliament, he has two options – namely to resign (and tender the resignation of the Cabinet) or to request for the dissolution of Parliament.
Article 43(4) of the Federal Constitution provides the following:
“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.” (emphasis mine)
Article 43(4) of the Federal Constitution uses a mandatory word, i.e. “shall,”[5] rather than a discretionary word such as “may” thereby leaving no room for an individual to remain as Prime Minister if he/she no longer commands the confidence of the majority of the members of the Dewan Rakyat.
Option 1: Request for Dissolution of Parliament
Although TSMY has the option of requesting for the dissolution of Parliament, on this issue, the Yang di-Pertuan Agong (“YDPA”) has absolute discretion and does not have to follow the advice of the Cabinet.
Article 40(2) of the Federal Constitution provides that:
“The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:
…
(b) the withholding of consent to a request for the dissolution of Parliament …”
If TSMY requests for a dissolution of Parliament and the YDPA withholds his consent for the same, TSMY has to tender the resignation of the entire Cabinet.
Option 2: Resign
If TSMY immediately opts to resign as a result of loss of confidence of the majority of the members of the lower House of Parliament (Dewan Rakyat), he also has to tender the resignation of the entire Cabinet.
If that happens, DSIS will no longer be the Deputy Minister and the next in line.
There would be little basis, save in the interest of preserving stability pending either the appointment of an individual as the Prime Minister or the holding of general elections, to appoint DSIS as interim Prime Minister.
Ill-health
TSMY previously suffered from pancreatic cancer and underwent chemotherapy.[6]
If TSMY resigns due to ill-health, for example, DSIS could be appointed as interim Prime Minister.
This appointment would be temporary until the YDPA is satisfied that an individual commands the confidence of the majority of the members of the Dewan Rakyat and can be appointed as the Prime Minister.
However, at the present moment, there are questions surrounding the numbers of Members of Parliament supporting TSMY.[7]
This would not prevent the appointment of DSIS as interim Prime Minister but would undoubtedly affect the legitimacy of his appointment.
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by Joshua Wu Kai-Ming | Jun 22, 2021 | Law, Politics
Constitutionally, unless sooner dissolved, state legislative assemblies will be dissolved five years from its first sitting.[1]
Since the Sarawak State Legislative Assembly had its first sitting on 7th June 2016,[2] the state legislative assembly should have been dissolved (at the latest) by June 2021 and state elections be called within 60 days from the date of the dissolution.[3]
As a result of the nationwide Proclamation of Emergency issued on 11th January 2021[4] and the Emergency (Essential Powers) Ordinance 2021, the “provisions relating to an election for the election to a State Legislative Assembly …, Constitution of any State and any State Law [has] effect.”[5]
This means that the constitutional necessity for the Sarawak state elections to be held is temporarily suspended[6] until either the Emergency is no longer in force or the Yang di-Pertuan Agong sets a state election date after consultation with the Yang di-Pertua Negeri of Sarawak.[7]
At the present moment, the Emergency is scheduled to cease after 1st August 2021[8] and the Malay Rulers have stated that “there is no necessity to place the country under a state of emergency after Aug 1, 2021.”[9]
Tan Sri Datuk Amar Dr. James Jemut Masing, the Deputy Chief Minister of Sarawak, has voiced his concerns that the Sarawak state elections have to be conducted once the Emergency comes to an end.[10]
At this juncture, such concerns are perfectly valid as the Sabah state elections had catastrophic effects on COVID-19 cases in the state.
As admitted by Tan Sri Dato Seri Haji Mahiaddin Bin Haji Md Yassin, the current Prime Minister of Malaysia,[11] and supported by researches which have been conducted,[12] the Sabah state elections resulted in a third wave of COVID-19 infections in the country.
One option to further defer the Sarawak state elections would be by way of a statewide Proclamation of Emergency.
If what happened in Sabah were projected/predicted to happen to Sarawak as a result of the Sarawak state elections, this would be a “grave emergency … whereby the security, or the economic life, or public order in … [Sarawak] is threatened.”[13]
Precedents for a statewide Proclamation of Emergency exist. In the past, statewide Emergencies were declared in Sarawak[14] and in Kelantan[15] due to political instability.
Prior to the nationwide Emergency, the Yang di-Pertuan Agong also issued a Proclamation of Emergency over the parliamentary constituency of Batu Sapi resulting in a postponement of a by-election due to a casual vacancy.[16]
As of 21st June 2021, only 29.89% of the population of Sarawak has been vaccinated.[17]
A further Emergency in Sarawak would enable the health authorities to continue their vaccination efforts and potentially achieve herd immunity (or full vaccination)[18] before the Sarawak state elections are held.
The Election Commission would also be able to use the time to refine its standard operating procedures for elections conducted in the midst of the pandemic.
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by Joshua Wu Kai-Ming | Oct 25, 2020 | Law, Politics
Speculation is rife that a proclamation of emergency may be on its way.[1]
Pursuant to Article 150(1) of the Federal Constitution, “If the Yang di-Pertuan Agong [“YDPA”] is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.”[2] (emphasis mine)
In the past, amongst others, the YDPA issued a Proclamation of Emergency:
i. in 1966, in the state of Sarawak, due to political instability;[3]
ii. in 1969, nationwide, due to the 13 May 1969 racial riots;[4] and
iii. in 1977, in the state of Kelantan, due to political instability.[5]
Interestingly, all three Proclamations of Emergency were only repealed in 2011.[6]
Presently, the following are undisputed:
a. The current government holds a very slim majority in Parliament;[7]
b. There is ongoing political instability;[8] and
c. The Supply Bill 2021 has to be tabled in Parliament soon.[9]
If Tan Sri Muhyiddin bin Yassin (“TSMY”) does not table the Supply Bill 2021, there will likely be a government shutdown.[10]
If TSMY tables the Supply Bill 2021 but fails to get it passed in Parliament, he will have to resign and either a new Prime Minister will be sworn in[11] or Parliament will be dissolved[12] and there will be a general election held within sixty days from the date of the dissolution.[13]
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by Joshua Wu Kai-Ming | Aug 16, 2020 | Politics
The Malaysian United Indigenous Party (“PPBM“), under the leadership of Tan Sri Muhyiddin bin Haji Muhammad Yassin, has agreed to be a part of the Muafakat Nasional (“MN“) coalition.[1]
Tan Sri Annuar Musa, the Secretary General of the Barisan Nasional (“BN“) coalition and the Minister of Federal Territories, has stated that MN has agreed in principle regarding PPBM’s wish to join the coalition.[2]
At its inception, MN only consisted of the United Malays National Organisation (“UMNO“) and the Malaysian Islamic Party (“PAS“).[3]
A necessary formality?
PPBM’s joining of MN appears to be mere formality as PPBM, UMNO, PAS, and a host of parties from Sabah and Sarawak informally formed the Perikatan Nasional (“PN”) federal government.
The PN federal government, however, even with the inclusion of UMNO and PAS, only have a precarious 2-3 seats majority in the House of Representatives.[4]
When UMNO announced that it would not become part of PN should the informal coalition be registered,[5] it then became necessary for PPBM to formally align itself with UMNO and PAS in order to remain a part of the federal government .
PPBM is the weakest of the three.
It cannot be disputed that PAS & UMNO have strong grassroots support.[6] The same, however, cannot be said about PPBM.[7]
PPBM, being a relatively new national party, experienced exponential growth in its first few years largely due to Tun Dr Mahathir bin Mohamad (“Tun M”).
Tun M, a seasoned politician and a former Prime Minister, commands great respect and support amongst the masses.
When Tun M left PPBM, an exodus soon ensued.[8] Since his departure from PPBM, Tun M has announced the setting up of the Party of Homeland’s Fighters (“PEJUANG“).[9]
Various PPBM branches have since been dissolved due to lack of members.[10]
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by Joshua Wu Kai-Ming | Jun 16, 2020 | Politics
There are rumours circulating that there may be snap polls as early as this year[1] to resolve the political crisis plaguing the country.
The Election Commission (“EC”) chairman, Datuk Azhar bin Azizan @ Harun, has stated that the EC is prepared for such an eventuality.[2]
There are a few reasons why it would be more strategic for the Perikatan Nasional (“PN”) government and/or its coalition partners to call for snap polls this year rather than at a later date.
Reason 1: The likely unfavourable youth vote
Although Parliament has passed a constitutional amendment lowering the voting age to 18,[3] the EC appears to only be able to implement this sometime in June/July 2021.[4]
It cannot be denied that the constitutional amendment required bipartisan effort. Nevertheless, it is largely seen to be a Pakatan Harapan (“PH”) initiative especially since it is a fulfilment of Promise 17 of PH’s 14th General Election (“GE14”) manifesto.[5]
Further, with regard to GE14, the youth vote (namely those aged 40 years old and below) has been largely credited as one of the reasons PH succeeded.[6]
PH, at least at the time of GE14, was largely popular with younger voters. If this is still the case, it would be better for PN to conduct snap polls this year rather than wait for new youth votes (namely of those aged 18 to 20) to be thrown into the mix.
Reason 2: The influx of unpredictable new votes
In March 2017, the then Election Commission chairman stated that there were a total of 4.1 million unregistered voters.[7]
Once the automatic voter registration system comes into force, which is estimated to be sometime in mid-2021,[8] these unregistered voters will become registered and will be entitled to vote in any subsequent snap polls.
Since the 4 million individuals are currently unregistered, there are no data sets with regard to their voting patterns/behaviours. These unpredictable new votes may or may not work against PN.
In order to err on the safe side, it would be more strategic for snap polls to be held this year.
Reason 3: The fresh success in containing COVID-19
Shortly after Tan Sri Muhyiddin bin Haji Muhammad Yassin took over the helm, his leadership faced a major test in the form of the COVID-19 pandemic. He has done a sufficiently good job thus far and Malaysia has been hailed as one of the top five countries in the world to have successfully contained COVID-19.[9]
COVID-19 will be fresh on the minds of the voters and it may be strategic to capitalise on this as a talking point in favour of the PN government.
Strategy aside, snap polls would place power back in the hands of the electorate. The issue of the legitimacy of the PN government can be resolved determinatively at the ballot box.
Editor’s Note: This article also appeared on Malaysiakini, and The Malaysian Insight
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