Was AG right in saying new PM is not required to hold a confidence vote? Lawyers weigh in

Prime Minister Datuk Seri Ismail Sabri Yaakob speaks with the Yang di-Pertuan Agong at Istana Abdulaziz in Kuantan August 26, 2021. — Picture via Facebook
Prime Minister Datuk Seri Ismail Sabri Yaakob speaks with the Yang di-Pertuan Agong at Istana Abdulaziz in Kuantan August 26, 2021. — Picture via Facebook

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KUALA LUMPUR, Sept 6 — Attorney General (AG) Tan Sri Idrus Harun’s view that newly-appointed Prime Minister Datuk Seri Ismail Sabri Yaakob need not seek a vote of confidence in the Dewan Rakyat to prove his majority support has kicked up a storm of opinion.

But was the AG, who is the government’s top legal adviser, correct in his views, as expressed on Saturday? Especially when the Yang di-Pertuan Agong had previously called on the newly-appointed prime minister — who had yet to be selected then — to hold a vote of confidence as soon as possible to confirm he has majority support?

Malay Mail spoke to several lawyers, who appeared to be divided over whether the AG was right to say so.

No further legal steps needed after PM appointed

Lawyer Aliff Benjamin Suhaimi, for example, said the AG’s view “is in line with the law”, as the law does not require extra procedures such as a vote of confidence once a prime minister is appointed.

“Under Article 43 of the Federal Constitution, the YDPA has the discretion to appoint a prime minister who in his judgment is likely to command the confidence of the majority of MPs.

“That appointment has been done and there is no legal requirement for a vote of confidence to be tabled in Parliament subsequent to the said appointment,” he told Malay Mail when contacted yesterday, referring to the Agong by the title’s Malay initials YDPA.

“Once the PM is appointed by the YDPA, the matter ends there. “There is no provision under the law for any additional procedures to be done with once the PM is appointed.”

“Once the PM and Cabinet ministers have been appointed, the YDPA acts upon the advice of the Cabinet.

“Whilst the YDPA may have said that a vote of confidence should be tabled, such direction is not legally binding on the new cabinet, PM or the AG,” he said when asked if the AG’s views were still valid in light of the Agong having urged the new prime minister to table a motion for a vote of confidence as soon as possible.

Malaysia was in need of a new prime minister when Tan Sri Muhyiddin Yassin resigned on August 16, with the Agong also having to once again help determine which political leader would be most likely to command majority support from MPs and could become the next prime minister.

Prior to selecting a new prime minister based on 220 MPs’ individual statutory declarations (SDs), Istana Negara’s August 18 statement showed that the Agong had on August 17 told all political parties’ leaders that the new prime minister should table a motion for a vote of confidence in the Dewan Rakyat as soon as possible to validate that he has the confidence of the majority of MPs.

The Agong on August 20 consented to appointing Ismail Sabri as new prime minister, with the latter sworn in on August 21.

The next Dewan Rakyat meeting is set to be held in about a week’s time on September 13, which would represent an opportunity for the government to express confidence in Ismail Sabri’s administration.

Aliff Benjamin agreed that confidence in the new government can also be shown through votes on the Agong’s opening speech or matters such as the Budget.

“Ideally, a vote of confidence or no confidence will be the way. However, that can be met with a number of parliamentary obstacles,” he said, describing such obstacles as including scenarios where the Dewan Rakyat Speaker does not allow motions to be tabled.

Confidence test can come in many forms

Lawyer New Sin Yew said the AG is “right” as “there is no such requirement” in the Federal Constitution for a vote of confidence to be done by a newly-appointed prime minister.

“AG is right, only the YDPA can appoint the PM under the Federal Constitution. Hence he used kuasa mutlak (absolute power),” he told Malay Mail when contacted, citing Article 43 of the Federal Constitution and referring to the AG’s description of the Agong’s constitutional power to appoint a prime minister as an “absolute power”.

“When the YDPA appointed Ismail Sabri, it means that Ismail Sabri is in the YDPA's judgment likely to command the confidence of the majority of the Dewan Rakyat. So now, it is up to Ismail Sabri to do his job as the PM. He needs to now go and carry the King's speech, pass Bills, pass the Budget etc,” he said.

New said it does not really matter whether there is a motion for a vote of confidence as MPs could show whether they support a government through votes on other matters, but noted that it would be “good democratic practice” to test the Dewan Rakyat’s confidence in Ismail Sabri.

“I think the YDPA's statement is good democratic advice, but as we all know, confidence can be tested in many ways. The most explicit way is through a vote of confidence. But the King's speech is another.

“Whether it is done by way of a vote of confidence, a King's speech, the Budget, is moot. If the Opposition wants to defeat the government at any stage, they can do so if they have enough Members of Parliament supporting them,” he said, referring to other government matters that the MPs can vote against to show a lack of confidence.

“It is up for the Opposition to move a motion of no confidence against the PM in the Dewan Rakyat if they believe that he does not command the confidence of the majority.

“That being said, the King's speech is a good indicator of whether the PM commands the confidence of the majority. If the King's speech is defeated, then the PM should resign by convention,” he said, referring to the Agong’s opening speech at the start of Dewan Rakyat meetings.

A ‘floor test’ to uphold rule of law

Lawyer Nizam Bashir disagreed with the AG, saying: “In my respectful view, the attorney general's view that there is no need for a vote of confidence is not legally sound or correct in law.”

Paraphrasing the Indian Supreme Court’s 1994 judgment in the court case of SR Bommai v. Union of India, Nizam said that a vote of confidence or “floor test” would be obligatory “given: a) the democratic principle underlying the Constitution; and b) the fact that the Dewan Rakyat represents the will of the people and not anyone else.”

“In a situation where the current prime minister resigns and is replaced by a new prime minister, to uphold the rule of law and the ideals of democratic principles as embodied in the Federal Constitution, a ‘floor test’ must be carried out by YAB Ismail Sabri as the first order of business,” he told Malay Mail, citing the ‘rule of law’ as one of the grounds cited by the Indian Supreme Court for a floor test.

“The rule of law is the paramount legal principle to which all of us are subservient to. Even the Federal Constitution,” he added.

Nizam, however, said he could appreciate that the AG may have adopted his view on the basis that “a) he was merely zealously representing his ‘Client’ within the bounds of the law; b) the Federal Constitution does not explicitly require a ‘floor test’; and c) Malaysia is in the midst of a pandemic and stability is, somehow, more important than fidelity to law”.

Nizam said he believed that the Agong’s August 17 call for a vote of confidence is based on advice received by the King on what the law requires, adding: “The fact that the attorney general’s views conflicts with DYMM Tuanku Al-Sultan is consequently highly suggestive that the attorney general may be minded to reconsider his view.”

“As someone once said rather colourfully: ‘When I'm wrong, I change my mind. What do you do?’” Nizam said.

No fear constitutionally for vote of confidence

Lawyer Karen Cheah, who is also co-chair of the Bar Council’s constitutional law committee, said she disagreed with the AG’s views, as they were not in line with the Agong’s Istana Negara’s August 18 statement which “alluded that the expression by MPs through SDs and stability of government should be confirmed at the Parliament”.

“It is on this basis that I am not aligned with the AG’s views,” she told Malay Mail when contacted.

“The assessment taken by the YDPA prior to the appointment of the PM which led to the judgment that the current PM is likely to command the confidence of the majority — should be democratically tested and recorded in Parliament.

“The communications between YDPA with the MPs whether by way of SDs or verbal prior to the appointment of the PM is only one way of dealing with the issue of confidence.

“Constitutionally, all MPs should not fear going through the process of a confidence vote in Parliament,” she said.

“In any event, there are various ways to test the support in the PM. If the motion of confidence is not tabled or is not allowed to be debated at the coming parliamentary sitting on September 13, there are other ways to test this support,” she added.

Yesterday, federal Opposition Pakatan Harapan’s presidential council had also highlighted that there is an existing precedent for a prime minister — who is appointed mid-term by the Yang di-Pertuan Agong to replace a previous prime minister — to table a motion of vote of confidence in Parliament to validate that he has majority support.

*Note: A previous edition of the story contained an error which has since been corrected.

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