Dato’ Seri Ismail Sabri bin Yaakob (“DSIS“), the Prime Minister of Malaysia, was recently reported as saying that he will announce the date for the dissolution of Parliament soon.
DSIS was also reported as saying that the dissolution date will be decided together with UMNO President, Dato’ Seri Dr Ahmad Zahid bin Hamidi.
UMNO recently reiterated its position that it wants the 15th General Election to be held in 2022.
Some quarters have opposed having the 15th General Election in November and December this year due to anticipated floods.
The anticipated floods could result in, amongst others, hardships for the people and logistical challenges for the Election Commission.
As a general rule, constitutionally, the Yang di-Pertuan Agong (“YDPA“) has to act on the advice of the Cabinet or the Minister acting under the general authority of the Cabinet (usually the Prime Minister).
The main exceptions are with regard to:
(a) the appointment of a Prime Minister;
(b) the withholding of consent to a request for the dissolution of Parliament;
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,
(d) any other case mentioned in this Constitution.
As mentioned above, specifically in relation to a request for the dissolution of Parliament, the YDPA has the discretion to grant or to withhold his consent to such a request.
This is a matter in which “the YDPA is given absolutely the legal right to exercise his own discretion.”
However, this request for the dissolution of Parliament could arguably be limited to cases whereby the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat.
Article 43(4) of the Federal Constitution uses language very similar to that of Article 40(2)(b) of the Federal Constitution:
“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)
It could be then be argued that where the Prime Minister still commands the confidence of the majority of the members of the House of Representatives and the Prime Minister or the Cabinet advises the YDPA to dissolve Parliament, this is a matter in which the YDPA has to act on the advice given (“Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition”).
Some have referred to the Federal Court’s pronouncement in Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener)  2 MLJ 285 (“Nizar”) to argue against the Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition.
However, Nizar’s case was a case where there had been a loss of confidence of the majority.
In a case where there has been a loss of confidence of the majority, at the Parliamentary level, Article 43(4) of the Federal Constitution will very clearly come into play and the Prime Minister cannot advice the YDPA to dissolve Parliament.
The Prime Minister in such a situation can either:
(a) request for the dissolution of Parliament; or
(b) tender the resignation of the Cabinet.
If the Prime Minister in such a situation opts to request for the dissolution of Parliament, as mentioned above, the YDPA would have the discretion to withhold his consent to the request.
In Dato’ Dr Abd Isa bin Ismail v Dato’ Abu Hasan bin Sarif & Anor  2 MLJ 449 (“Abd Isa”), granted that it is not a decision on the dissolution of the State Legislative Assembly, the Federal Court was of the view that the Sultan’s powers to prorogue and dissolve the State Legislative Assembly was exercised by the Sultan on the advice of the Executive Council.
Abd Isa would arguably be more on point as there was no loss of confidence of the majority on the facts of the case.
The Federal Court’s passing remarks in Abd Isa would support the Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition.
Notwithstanding Abd Isa, the Report of the Federation of Malaya Constitutional Commission 1957 (“Reid Commission Report”) is problematic for the Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition.
Paragraph 69 of the Reid Commission Report states the following:
“We recommend that the duration of each Parliament should be five years subject to power of dissolution at any time within the life of the Parliament, and that the Constitutional responsibility for dissolving Parliament should rest with the Yang di-Pertuan Besar. Experience has shown that there are substantial objections to the Prime Minister or Government of the day having unrestricted power to insist on a dissolution of Parliament. A Prime Minister may ask for a dissolution in various circumstances and it is not possible to define the circumstances in which his request ought to be granted. Normally the Yang di-Pertuan Besar would accept the advice of his Prime Minister but he should not be bound to do so in all cases. He ought in a critical case to be free to decide what is in the best interests of the country. We recommend that if the Prime Minister ceases to command the confidence of the House of Representatives he must either vacate his office or ask for a dissolution. If the Prime Minister asks for a dissolution and the Yang di-Pertuan Besar refuses his request, then the Prime Minister must vacate his office.” (Emphasis mine)
It would appear that the Commissioners of the Reid Commission Report were in favour of the YDPA having discretion in the dissolution of Parliament in general (not only limited to cases where the Prime Minister no longer commands the confidence of the majority).
If that is the case, then the Reid Commission report could be in conflict with the obiter dicta in Abd Isa.
At the present moment, DSIS still commands the confidence of the majority of the members of the House of Representatives.
If DSIS or the Cabinet advises the YDPA to dissolve Parliament soon, it remains unclear whether this is a matter in which the YDPA has:
(a) to act on the advice given; or
(b) has the discretion to disregard the advice.
 Bernama. “PM to announce dissolution of parliament soon”. The Sun Daily, 17th September 2022, https://www.thesundaily.my/local/pm-to-announce-dissolution-of-parliament-soon-BN9834377. Accessed 1st October 2022.
 Noorshahrizam, Shahrin Aizat. “Ahmad Maslan: Umno wants GE15 this year, Ismail Sabri will meet Agong with proposed date”. Malay Mail, 30th September 2022, https://www.malaymail.com/news/malaysia/2022/09/30/ahmad-maslan-umno-wants-ge15-this-year-ismail-sabri-will-meet-agong-with-proposed-date/31018. Accessed 1st October 2022.
 Bernama. “Year-end not the right time for GE15, say experts”. Malaysia Now, 30th September 2022, https://www.malaysianow.com/news/2022/09/30/year-end-not-the-right-time-for-ge15-say-experts. Accessed 1st October 2022.
 Article 40(1) of the Federal Constitution
 Article 40(2) of the Federal Constitution
 Article 40(2)(b) of the Federal Constitution
 Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor  MLJU 231 (FC), at paragraph 91
 Harding, Andrew. “Dissolution of Parliament: A Discretion to Refuse?”. Edge Markets, 3rd October 2022, https://www.theedgemarkets.com/article/dissolution-parliament-discretion-refuse?type=malaysia. Accessed 3rd October 2022; see also Facebook. Sin Yew, New. 2nd October 2022. https://m.facebook.com/story.php?story_fbid=pfbid0EVqsJKR1RE8cdaV6rZEFSvN2nvHQhAjGFayS6kMtV5XUzxfa8mqPXEwGDjJcWSCml&id=512047870. Accessed 2nd October 2022.
 E.g. Editor. “Pembubaran parlimen kuasa budi bicara yang di-Pertuan Agong”. Bebas News, 2nd October 2022, https://bebasnews.my/2022/10/02/pembubaran-parlimen-kuasa-budi-bicara-yang-di-pertuan-agong/. Accessed 3rd October 2022.
 Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener)  2 MLJ 285 (FC), at paragraph 1
 Inferred from Zulkifli CJ (Malaya)’s remarks in Dato’ Dr Abd Isa bin Ismail v Dato’ Abu Hasan bin Sarif & Anor  2 MLJ 449 (FC), at paragraphs 20 to 21; see also Zainun Ali FCJ’s dissenting judgment in Dato’ Dr Abd Isa bin Ismail v Dato’ Abu Hasan bin Sarif & Anor  2 MLJ 449 (FC), at paragraphs 64 to 65
 “Report of the Federation of Malaya Constitutional Commission 1957”. Catholic Lawyers Malaysia, http://www.catholiclawyersmalaysia.org/sites/default/files/Reid%20Commission%20Report%201957.pdf. Accessed 3rd October 2022.