Methods of Ascertaining Who Commands The Confidence of the Majority
Constitutionally, the Yang di-Pertuan Agong (“YDPA”) has the discretion in the appointment of the Prime Minister.[1]
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).[2]
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.[3]
This method would also require Parliament to be sitting ordinarily, or for a special Parliamentary sitting to be held,[4] 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) [2010] 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.[5]
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,[6] and appointed Dato’ Seri Dr Zambry bin Abdul Kadir as the Chief Minister of Perak.[7]
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.[8]
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.”[9] (emphasis mine)
Face to Face Interview
In Nizar Jamaluddin, this method was used by the Sultan of Perak post-letter of support.[10]
The YDPA employed this method back in 2020 after Tun Dr. Mahathir bin Mohamed had tendered his resignation as Prime Minister.[11]
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.[12]
Statutory Declaration
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.[13]
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.[14]
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.[15]
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