On 13th August 2021, Tan Sri Dato’ Haji Mahiaddin bin Md Yasin (“TSMY”), the then Prime Minister of Malaysia, surprised the nation when he publicly and openly sought for bipartisan support in relation to the upcoming confidence vote in Parliament.[1]

In the process of doing so, TSMY admitted he no longer commanded the confidence of the majority of the members of the House of Representatives (Dewan Rakyat).[2]

TSMY also recognised that the only two options available to him are are to:

i. resign; or

ii. request for the Yang di-Pertuan Agong to dissolve Parliament.

TSMY is correct that those are his only two options in the event he no longer commands the confidence of the majority of the members of the Dewan Rakyat.

The two options are based on Article 43(4) of the Federal Constitution which is couched in mandatory terms.[3]

In order to avoid either scenario, TSMY offered to introduce certain Bills in Parliament which would bring about certain reforms. In exchange, Members of Parliament from the Federal Opposition who are agreeable to the offer would have to support TSMY during the upcoming confidence vote in Parliament.

TSMY’s public solicitation of bipartisan support was to a certain extent, a Confidence and Supply Agreement.[4]

It was constitutionally inappropriate for TSMY to publicly make such a proposal in light of his admission/recognition that he no longer commanded the confidence of the majority of the members of the Dewan Rakyat.

TSMY’s position is similar to Dato’ Seri Ir. Mohammad Nizar bin Jamaluddin position back in 2009.

Dato’ Seri Ir. Mohammad Nizar bin Jamaluddin was the Chief Minister of Perak but had lost the confidence of the majority of the members of the Perak State Legislative Assembly. He, nevertheless, refused to resign and maintained the status quo.

When the matter went up to the apex court, the Federal Court held following:

“Similarly here, on the literal interpretation of art XVI(6), we are of the view that the word ‘shall’ should be given a mandatory effect. Therefore, it is incumbent upon the appellant in the circumstances of this case to tender the resignation of the executive council. The term executive council by definition includes the MB (see art XVI(2)). We, therefore, agree with the respondent that the refusal on the part of the appellant to resign after having been directed to do so by HRH clearly went against the express provisions of art XVI(6). It cannot be the intention of the framers of the State Constitution that in the circumstances, it is open to the appellant whether to resign or stay on as MB. The word ‘shall’, in our opinion, ought to be given a mandatory effect otherwise it would lead to political uncertainty in the state. The appellant cannot continue to govern after having lost the support of the majority. To allow him to do so would be going against the basic principle of democracy.[5] (Emphasis mine)

Although Nizar Jamaluddin concerned the State Constitution of Perak, the provision in question was inserted into the State Constitution by virtue of Article 71 of the Federal Constitution[6] and is similarly worded to Article 43(4) of the Federal Constitution.

In light of Nizar Jamaluddin, as soon as TSMY admitted/recognised that he no longer commanded the confidence of the majority, TSMY should have either tendered his resignation or requested for the Yang di-Pertuan Agong to dissolve Parliament.

[1] Tan, Vincent. “Malaysian PM Muhyiddin seeks bipartisan support for upcoming confidence motion in parliament.” 13 August 2021. https://www.channelnewsasia.com/asia/malaysia-muhyiddin-confidence-motion-bipartisan-general-election-2111121

[2] “Teks Ucapan YAB Perdana Menteri Bersama Memulihkan Negara.” 13 August 2021. https://www.pmo.gov.my/wp-content/uploads/2021/08/TEKS-UCAPAN-YAB-PM-BERSAMA-MEMULIHKAN-NEGARA.pdf

[3] Wu Kai-Ming, Joshua. “Dato Sri Ismail Sabri & the Interim Prime Minister Role.” 13 July 2021. https://joshuawu.my/dato-sri-ismail-sabri-the-interim-prime-minister-role/

[4] https://www.facebook.com/joshuawu.my/posts/3382567481790670; see also Yeo, Bernie. “Bersih 2.0: Institutional reforms good but confidence vote must happen soon.” 14 August 2021. https://focusmalaysia.my/bersih-2-0-institutional-reforms-good-but-confidence-vote-must-happen-soon/

[5] Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Adul Kadir (Attorney General, intervener) [2010] 2 MLJ 285, at paragraph 55

[6] See Section 2(6) of the Eighth Schedule to the Federal Constitution