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.
DSIS was recently appointed as the Deputy Prime Minister 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.
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,” 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.
TSMY previously suffered from pancreatic cancer and underwent chemotherapy.
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.
This would not prevent the appointment of DSIS as interim Prime Minister but would undoubtedly affect the legitimacy of his appointment.
 The Star, editor. “Shahrir: Ismail Sabri could be interim PM if Muhyiddin steps down, govt will not be shaky.” 8 July 2021, https://www.thestar.com.my/news/nation/2021/07/08/shahrir-ismail-sabri-could-be-interim-pm-if-muhyiddin-steps-down-govt-will-not-be-shaky.
 FMT Reporters. “Ismail Sabri is deputy PM, Hisham a senior minister.” 7 July 2021, https://www.freemalaysiatoday.com/category/nation/2021/07/07/ismail-sabri-is-deputy-pm/.
 In instances where the Prime Minister is absent or incapacitated, the Deputy Prime Minister will be the Acting Prime Minister [see e.g. Harris, I. C., editor. House of Representatives Practice. Parliament of Australia (5th edition). Chapter 2 House, Government and Opposition, https://www.aph.gov.au/about_parliament/house_of_representatives/powers_practice_and_procedure/~/link.aspx?_id=C44F7066D2E84CA0BA20E918D4406DAC&_z=z.]
 This is a view echoed by Datuk Emeritus Prof. Dr. Shad Saleem Faruqi, Professor of Law at the University of Malaya [see Saleem Faruqi, Shad. “Appointment of a Prime Minister.” 2021, https://www.malaysianbar.org.my/cms/upload_files/document/Appointment%20of%20a%20Prime%20Minister%20_%20Emeritus%20Prof.%20Datuk%20Dr%20Shad%20Saleem%20Faruqi.pdf]
 See e.g. Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener)  2 MLJ 285, at paragraphs 50 to 55
 Bernama. “PM shares his journey in fighting cancer battle.” 5 February 2021, https://www.thestar.com.my/news/nation/2021/02/05/pm-shares-his-journey-in-fighting-cancer-battle
 Anand, Ram. “Malaysia PM Muhyiddin’s parliamentary majority hangs in the balance as Umno MP withdraws backing.” 9 January 2021, https://www.straitstimes.com/asia/se-asia/malaysia-pm-muhyiddins-majority-hangs-in-the-balance-as-umno-mp-withdraws-backing; Tan, Vincent. “UMNO withdraws support for Muhyiddin Yassin’s government, urges the Malaysian PM to step down.” 8 July 2021. https://www.channelnewsasia.com/news/asia/malaysia-umno-withdraws-support-pm-muhyiddin-urges-resign-15172824