A legal view of the MOU between the government of Malaysia and Pakatan Harapan — Philip TN Koh

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SEPTEMBER 17 — On the September 13, 2021, a Memorandum of Understanding (MOU) was signed between the federal government and Pakatan Harapan.

The parties and signatories

The government of Malaysia was represented by Datuk Seri Ismail Sabri Yaakob and Pakatan Harapan was represented by Datuk Seri Anwar Ibrahim, Lim Guan Eng and Mohamad Sabu.

What is an MOU in law?

Whether or not an MOU is a legally enforceable agreement is subject to rules of construction of its clauses and terms and conditions.

Article 8 states the MOU is subject to and should be construed in accordance with the laws of Malaysia.

Malaysian law follows that of common law in approach to an MOU.

We also have the Malaysian Contracts Act 1950 (Act 136) and the Government Contracts Act, 1949 (Act 120).

Prime Minister Datuk Seri Ismail Sabri Yaakob (centre) attending the signing ceremony of the Memorandum of Understanding on Transformation and Political Stability Between the Federal Government and Pakatan Harapan at Parliament House, September 13, 2021.
Prime Minister Datuk Seri Ismail Sabri Yaakob (centre) attending the signing ceremony of the Memorandum of Understanding on Transformation and Political Stability Between the Federal Government and Pakatan Harapan at Parliament House, September 13, 2021.

Applying recognised rules of construction, it would appear that there is a binding agreement made between the government of Malaysia and the Opposition parties led by the coalition called Pakatan Harapan (consisting of Parti Keadilan (PKR), Parti Tindakan Demokratik (DAP), Parti Amanah Negara (Amanah) and Pertubuhan Kinabalu Progressif Bersatu (UPKO).

Remedies: What are the remedies available and which body has jurisdiction over this MOU?

The MOU is in the form of a legally binding agreement and can therefore in principle be subject to the High Court of Malaya and the Appellate Courts.

It is, however, difficult to see how and in what way the terms and conditions are justiciable.

If a party does not comply with its terms, the sanctions would appear to be the collapse of the MOU and that the harmony that is envisaged to the political landscape post the MOU will not be realised.

It cannot be seen how any court would enforce the obligations. The Government Proceedings Act 1956 (Act 359) constrains any injunctive relief and under the equitable remedy of specific performance, no court will grant such an order when it involves the monitoring and supervision of courts.

The principle of legislative privilege and non-interference of decisions of and proceedings of the Houses of Parliament would further militate against any legal remedies if a party breaches the MOU.

Duration of the MOU

From September 13, 2021 through to dissolution of the 14th Session of Parliament (Art.2.1).

Obligations undertaken by the government of Malaysia

The government agrees that she will NOT move to seek dissolution of Parliament before July 31, 2022. It further agrees to embark on a Transformation Program that will be proposed and mutually agreed upon by the parties (Clause 3.1 and 3.2).

Obligations agreed to by Pakatan Harapan

That in reciprocal consideration to the proposal and implementation of the Transformation Program and subject always to the implementation of the Transformation Program, PH at such material time:

  • Will give support to and will refrain and abstain (as the case may be) to vote for the Budget 2022 and supply and finance Bills upon such Bills being tabled, discussed and agreed to mutually;
  • Will support or abstain in any process that involves a government motion or Bill which if such support or refraining to support a motion is construable to be a vote of no confidence on the government.

The fundamental term of an MOU

It is the fundamental term that any failure to implement the Transformation Program will constitute a breach of the MOU (Clause 4.1) and may have the consequence of the termination of the MOU.

Good faith and communication

The parties agree to co-operate and to communicate fully over the Transformation Program as stated under the MOU and its Appendix.

The position of PH as Opposition & Accountability

It is provided that nothing in the MOU impairs the role of PH as Opposition to review, investigate, study and to hold the government of the day to be responsible on issues relating to citizens to be accountable to Parliament.

The Appendix

The Appendix is to be read integrally with the MOU and have six Clauses relating to:

  • Covid-19 measures
  • Transformation of Administration: Anti-hopping laws, 18 years voting eligibility to be expedited by the Election Commission; term limit to person holding office of prime mInister
  • Parliamentary reforms
  • Independence of judiciary
  • Malaysia Agreement 1963

A Steering Committee constituted by a total of 10 members: five (5) from the government and five from the Opposition. This Steering Committee will meet once every two weeks.

* Philip TN Koh is an Advocate & Solicitor, High Court of Malaya and Professor (Adjunct), University of Malaya.

* This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail.

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