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.
Tan Sri Azhar bin Azizan Harun, the Speaker of the House of Representatives, has ruled that Dato’ Sri Haji Mohammad Najib bin Tun Haji Abdul Razak (“DSNR“) will remain the Member of Parliament for Pekan until the disposal of the latter’s motion for review in the Federal Court and/or the latter’s petition for a pardon.
Hassan bin Abdul Karim, the Member of Parliament for Pasir Gudang, disagrees with Tan Sri Azhar bin Azizan Harun on, amongst others, the following grounds:
(a) DSNR has been disqualified as a Member of Parliament as soon as the Federal Court handed its decision;
(b) The royal pardon proceeding has not been heard;
(c) The Royal Pardon Board is not a court; and
(d) It is not stated in the Federal Constitution that if a Member of Parliament petitions to the Pardons Board or applies for a review of the Federal Court’s decision that his/her qualification as a Member of Parliament remains.
With all due respect to YB Hassan, all of his contentions do not hold water.
Article 48(1) of the Federal Constitution, which he is relying on, expressly begins with the phrase “Subject to the provisions of this Article.”
This would mean that Article 48(1)(e) of the Federal Constitution, which YB Hassan is relying on to automatically disqualify DSNR as a Member of Parliament, has to be read together with the other provisions in Article 48 of the Federal Constitution.
Article 48(4) of the Federal Constitution has various sub-provisions of relevance.
Article 48(4)(b) and (c) of the Federal Constitution provides:
“Notwithstanding anything contained in the foregoing provisions of this Article, where a member of either House of Parliament becomes disqualified from continuing to be a member thereof pursuant to paragraph (e) of Clause (1) or under a federal law made in pursuance of Clause (2)—
(b) if within the period of fourteen days specified in paragraph (a) an appeal or any other court proceeding is brought in respect of such conviction or sentence, or in respect of being so convicted or proved guilty, as the case may be, the disqualification shall take effect upon the expiry of fourteen days from the date on which such appeal or other court proceeding is disposed of by the court; or
(c) if within the period specified in paragraph (a) or the period after the disposal of the appeal or other court proceeding specified in paragraph (b) there is filed a petition for a pardon, such disqualification shall take effect immediately upon the petition being disposed of.” (Emphasis mine)
As DSNR appealed to the Federal Court, DSNR’s disqualification from being a Member of Parliament would only take effect 14 days after the disposal of his Federal Court appeal.
The Federal Court handed its decision, in relation to DSNR’s appeal, on 23rd August 2022.
However, within the 14 days from the 23rd August 2022:
(a) DSNR filed a petition for a pardon, on 2nd September 2022; and
(b) DSNR filed a motion for review against the Federal Court’s decision, on 6th September 2022.
This would mean that Article 48(4)(b) and (c) of the Federal Constitution has come into play to “stay” (read: pause) DSNR’s disqualification as a Member of Parliament.
DSNR will only be disqualified as a Member of Parliament upon the expiry of fourteen days from the date of the disposal of his motion for review in the Federal Court or immediately upon the disposal of his petition for a pardon (whichever is later).
Granted, DSNR’s petition for a pardon has not been disposed of by the Pardons Board. However, Article 48(4)(c) of the Federal Constitution applies as soon as DNSR’s petition for a pardon has been filed.
Further, it is also granted that the Pardons Board is not a court. However, YB Hassan appears to be conflating between Article 48(4)(b) and (c) of the Federal Constitution.
Article 48(4)(b) of the Federal Constitution would apply to DNSR’s motion for review while Article 48(4)(c) of the Federal Constitution would apply to DNSR’s petition for a pardon.
Editor’s Note: This article also appeared on Malay Mail, The Malaysian Insight, and Malaysia Now
In Datuk Zaid bin Ibrahim’s recent interview on Astro Awani, he mentions a number of times that the Attorney General’s discretion is absolute.
Article 145(3) of the Federal Constitution is of relevance:
“The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial” (Emphasis mine)
The topic of the Attorney General’s discretion was the subject of my conference paper, which was subsequently published in a journal.
The paper traced the courts’ historical position on the reviewability of the exercise of the Attorney General’s discretion.
Up until Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal  4 CLJ 561 [“Chin Chee Kow”], the apex courts of Malaysia consistently held that the Attorney General’s discretion is absolute or unfettered.
In Chin Chee Kow, the Federal Court agreed with the Court of Appeal’s view that:
(a) the Attorney General only had absolute discretion in criminal matters; and
(b) in non-criminal matters, the Attorney General did not have absolute or unfettered discretion.
This began the departure from years of established precedent on the Attorney General’s discretion.
When it came to Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors  5 MLJ 209 (“Sundra Rajoo“), the Federal Court went even further than Chin Chee Kow and held that the Attorney General’s exercise of discretion would be subject to judicial review in appropriate circumstances.
This, in effect, meant that even in criminal matters, the Attorney General no longer has absolute or unfettered discretion.
The current legal position is that the Attorney General has wide discretion.
However, post Chin Chee Kow and Sundra Rajoo, it would no longer be correct to say that the Attorney General has absolute or unfettered discretion.
In reporting on the Control of Tobacco Product and Smoking Bill 2022, more popularly known as the ‘Generational End Game’ bill (“the GEG Bill”), the Edge Markets stated that, “The bill needs two-thirds majority support [in Parliament] to be approved.”
Contrary to the Edge Market’s claims, the GEG Bill does not require two-thirds majority support.
The GEG Bill, being an ordinary Act of Parliament (also known as ‘ordinary law’), only requires a simple majority.
As a general rule, a simple majority of members voting suffices for decisions of each House of Parliament.
Article 62(3) of the Federal Constitution states:
“Subject to Clause (4) and to Articles 89 (1) and 159 (3) and to sections 10 and 11 of the Thirteenth Schedule, each House shall, if not unanimous, take its decision by a simple majority of members voting; and the person presiding shall unless he is a member of the House by virtue only of paragraph (b) of Clause (1A) of Article 57, cast his vote whenever necessary to avoid an equality of votes, but shall not vote in any other case. ” (Emphasis mine)
In Loh Kooi Choon v Government of Malaysia  2 MLJ 187, the Federal Court recognised that ordinary laws only require a simple majority:
“Our Constitution prescribes four different methods for amendment of the different provisions of the Constitution:
(1) Some parts of the Constitution can be amended by a simple majority in both Houses of Parliament such as that required for the passing of any ordinary law. They are enumerated in clause (4) of Article 159. and are specifically excluded from the purview of Article 159 …” (Emphasis mine) 
In other words, it will suffice so long as more than 50% of the Members of Parliament present during a parliamentary sitting vote in favour of the GEG Bill.
A two third majority vote in Parliament is usually necessary for bills which:
(i) intend to amend most parts of the Federal Constitution; 
(ii) relate to a law passed under Article 10(4) of the Federal Constitution; 
(iii) relate to laws on the cessation of Malay reservations. 
For example, Article 159(3) of the Federal Constitution provides the following:
“A Bill for making any amendment to the Constitution (other than an amendment excepted from the provisions of this Clause) and a Bill for making any amendment to a law passed under Clause (4) of Article 10 shall not be passed in either House of Parliament unless it has been supported on Second and Third Readings by the votes of not less than two-thirds of the total number of members of that House.” (Emphasis mine)
The GEG Bill, not being a bill which fits any of the above circumstances, would only require a simple majority to be passed.
In the following Commonwealth jurisdictions, the roles of the Attorney General and Public Prosecutor are fused.
The Attorney General is the principal legal advisor to the Government, as well as “chief criminal law enforcement officer” “responsible for the prosecution of all criminal offences.”
Article 81(2) & (3) of The Constitution of Brunei Darussalam
“(2) The Attorney General shall advise on all legal matters connected with the affairs of Brunei Darussalam referred to him by His Majesty the Sultan and Yang Di-Pertuan or by the Government.
(3) The Attorney General shall have power exercisable at his discretion to institute, conduct or discontinue any proceedings for an offence other than …” (Emphasis mine)
Article 145(2) & (3) of the Federal Constitution
“(2) It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.
(3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.” (Emphasis mine)
Article 35(7) & (8) of the Constitution of the Republic of Singapore
“(7) It shall be the duty of the Attorney-General to advise the Government upon such legal matters and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President or the Cabinet and to discharge the functions conferred on him by or under this Constitution or any other written law.
(8) The Attorney‑General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.” (Emphasis mine)
4. Sri Lanka
Extract from the website of the Attorney General’s Department of Sri Lanka:
Anomaly: Hong Kong
In Hong Kong, the Department of Justice is in charge of criminal prosecution.
Article 63 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China provides that:
“The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.”
The Department of Justice is headed by Secretary of Justice, and the latter is appointed by the Central People’s Government on recommendation and nomination of Chief Executive of Hong Kong Special Administrative Region.
Hong Kong’s Prosecution Code 2013 notes that, “the Secretary for Justice is responsible for applying the criminal law, formulating prosecution policy, and superintending the Director of Public Prosecutions and prosecutors in the Prosecutions Division of the Department.”
In terms of practical day-to-day prosecutions, the Director of Public Prosecutions “initiates and conducts the prosecution of cases on behalf of the Hong Kong Special Administrative Region” and “exercise on behalf of the Secretary for Justice the discretion whether or not to bring criminal proceedings in the HKSAR.”