Constitutionally, the Yang di-Pertuan Agong (“YDPA”) has the discretion in the appointment of the Prime Minister.
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).
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.
This method would also require Parliament to be sitting ordinarily, or for a special Parliamentary sitting to be held, 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)  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.
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, and appointed Dato’ Seri Dr Zambry bin Abdul Kadir as the Chief Minister of Perak.
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.
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.” (emphasis mine)
Face to Face Interview
In Nizar Jamaluddin, this method was used by the Sultan of Perak post-letter of support.
The YDPA employed this method back in 2020 after Tun Dr. Mahathir bin Mohamed had tendered his resignation as Prime Minister.
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.
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.
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.
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.
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.
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).
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.
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.
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.” (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 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.
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.
Rather, it has come about as a result of pragmatism and over the years has become somewhat of a constitutional convention.
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.
I could not help but chuckle when I read the article about our Prime Minister telling the youths to steer clear of extremist teachings in his speech at the launch of the National Youth Day
celebration. It is very rich coming from the very guy who advocated the 1Malaysia concept and vowed to embark on national reconciliation after the 13th General Elections yet was as silent as a mouse when citizens of the country were called trespassers
His silence during Malaysia’s trying times is tantamount to implied consent to what has been said by extremist groups. Any right minded person who truly believes what he says would have made a stand. Our PM claims to be a moderate, but what he’s doing doesn’t seem to substantiate it?
It was also ironic that only a few days after this speech, members from the UMNO Youth Wing wrecked havoc by storming in the Penang state assembly building. The first analogy that comes to mind is about the mother crab teaching its son to walk straight.
Of course it is arguable that it was a provoked reaction, and it is not practical for a leader to be responsible for the actions of his members. Words were the provocation yet physical violence was the reaction. It would be an understatement to say it was a bit disproportionate
If the party members were on a frolic of their own, the leader should reprimand them. Publicly condemn their actions and suspend them for bringing shame to the party. It is the least one can do to mitigate the damage caused
Although our PM encouraged youths to stay away from extremist teachings, the contrary seems to be happening. Such unacceptable behaviour must be eradicated from our society or we may lose everything we have built up over the years!
However, it is a consolation that the police are taking action against the troublemakers. One can only hope that the police will do so without fear or favour
I couldn’t disagree more with our former Prime Minister (PM), Tun Dr Mahathir Mohamad when he suggested that the weak government has led to a spike in racial and religious extremism. I quote, “Datuk Seri Najib Razak’s administration’s weak mandate in the 2013 general elections has caused a spike in racial and religious extremism.”
I for one fail to see the connection. Is it possible that because Barisan Nasional narrowly won the 13th General Elections, that the laws of the land are not able to be enforced? Thus resulting in a spike in racial and religious extremism as it is not nipped in the bud
The laws of our land are applicable till the day they are revoked, regardless of who is in power or how they got into power. Is it possible that our current PM refuses to prosecute troublemakers out of acrimony to those who rejected him and his party in the last elections?
Dr M goes on to say, “Najib has his hands tied and cannot take action against those who abuse liberalism for fear of being labelled as an illiberal by his critics.” There’s nothing illiberal about acting against malfeasance, especially one which we have laws for! I am flabbergasted at the fact we have profuse laws restricting the freedom of speech, especially when it comes to inciting racial and/or religious hate, yet it is being underutilized or misused in certain cases.
In fact, the majority of Malaysians are supportive of action being taken against those who are misusing their freedom of speech. A wise man by the name of Dante Alighieri once said, “A mighty flame followeth a tiny spark.” Deal not with the root cause, and you may just have a forest fire on your hands
The Government needs to take proactive steps to ameliorate the problem. Either that or further risk ‘losing your mandate’ in the next general election. It’s your move
* This article can also be read at The Malaysian Insider