The Malaysian Bar takes the view that in light of the ongoing political impasse in our country, the honourable thing for the Prime Minister Mahiaddin Yasin to do is to act in accordance with the Federal Constitution.
In his public address on national television on 13 August 2021,1 the prime minister admitted that several members of Parliament from the governing coalition had withdrawn their support for him, casting doubt on whether he still commanded the support of the majority of the Dewan Rakyat (House of Representatives).
He went on to say that, under such circumstances, he had two options according to the Federal Constitution – namely to seek the consent of the Yang di-Pertuan Agong to dissolve Parliament and call for a general election or to resign. It is thus clear he himself acknowledges his position is no longer tenable.
He, however, went on to say that, this situation notwithstanding, no other member of Parliament has shown that he or she commands the support of the majority of the members of the Dewan Rakyat. As such, if he were to resign, there would be no one to replace him. And if he resigned, he would also have to tender the resignation of the entire cabinet, which would leave the country without a functioning government at this crucial time of fighting the Covid pandemic.
He expressed concern for the future of the nation. In order to avoid this vacuum of governance and political leadership, he announced a detailed list of constitutional and parliamentary reforms, as well as pre-legislative procedural and practical changes which he was prepared to offer in exchange for support from MPs from the Opposition in the upcoming vote of confidence.
With all due respect to the prime minister, the questions raised by him reveal a misunderstanding of his position under the Federal Constitution. The provision of Article 43(4) is clear:
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.
The words are clear and the meaning and intent are beyond doubt: If the prime minister no longer has the support of the majority, unless at his request the Agong dissolves Parliament, the prime minister must resign. The Federal Constitution also does not provide that the prime minister shall only tender the resignation of the Cabinet if there is another MP that has emerged who can demonstrate that he or she commands the confidence of the majority of the members of the Dewan Rakyat.
The question of who else might be called upon to try to form a government and whether he or she has the requisite parliamentary support and confidence is one that is accorded, under Article 43(2) of the Federal Constitution, to the Agong. It is therefore not the place of the prime minister to usurp that consideration to himself, or to pre-empt the decision and discretion of the Agong.
Neither is it the place of the prime minister to make that question the condition for his future actions. The prime minister has repeatedly stated he wants to comply with the Federal Constitution and take the honourable route. In his announcement, he stated he believes that “we will heal this nation together and bring back its glory”.
The Malaysian Bar is of the view that the best way that the prime minister can begin the process of healing this nation and bringing back its glory is to honour and respect the words, spirit, meaning and intent of the Federal Constitution and to abide strictly by its provisions.
When the prime minister does not command the support of the majority of the Dewan Rakyat, the honourable and gracious route that the prime minister should take is to step down because that is the right thing to do.
We further call upon all parliamentarians to carry out their duties in accordance with the Federal Constitution to ensure a functioning government for the wellbeing of our beloved nation.
AG Kalidas is president of the Malaysian Bar
This piece is reproduced from here and has been edited for style only.