Is the Anwar Government’s 2022 Confidence and Supply Agreement invalid in law?

Three days before the first meeting of the 15th Session of Parliament, five political parties entered into a Confidence and Supply Agreement (or ‘CSA’). This was on 19 December 2022.

The Opposition attacked the Agreement, calling it ‘unconstitutional, dangerous,

and unenforceable’,1 on 17 December 2022, the former Deputy Minister of Law, Mas Ermieyati Samsudin stated that the MOU was ‘illegal, unconstitutional, dangerous, and unenforceable’ a ‘prelude to dictatorship’ and an ‘attack on democracy.’2Daily express, 17 December 2022. Similar statements were made by Muhyiddin Yassin, and by Takiyuddin Hassan. At the first Parliamentary meeting on 19 December 2022, Takiyuddin Hassan, speaking amidst a completely undisciplined Dewan Rakyat, stated that it contravened s.24 of the Contracts Act 1950 in that it would be ‘against public policy’.

The Opposition’s argument was this: a government MP who refuses to obey his party’s leadership in achieving the CSA’s aim, will ‘cease’ being a member of his party.

He would thereby lose his MP seat: and that this was ‘dictatorial’ and ‘illegal’.

Before we start:

Has any Government MPs complained about the MoU?

No. 

So why are these Opposition MPs, the Masters of the Sheraton Move, complaining? 

Ask yourself, ‘Why’?

Clauses 4(a) and 4(b) are the targets of the attack.

Clause 4(a):

The fourth line in clause 4(a) states:

‘[Each] party and the parties shall manage internally within their own parties to ensure parliamentary support to maintain the Unity Government.’

Clause 4(b):

It states:

‘[Each] [political] party must ensure that [its] MP votes in accordance with clause 4(a) above.

The third phrase in clause 4(b) states:

‘Failure, [or] refusal to do so shall be a breach of the individual responsibility of the MP to the Party, [and is to be] considered as resignation and/or termination from being [an MP] and that his seat is vacated within the meaning of Article 49A(1) of the Federal Constitution.’

Clause 4(a) requires each party’s MPs to support the Unity Government in any vote‚ ‘in accordance with the Federal Constitution’.

The phrase ‘in accordance with the Constitution’ implies that the efforts of every component party must be lawful.

Second, the agreement asks the party itself to deal with the question of when a person’s membership ceases.

Paragraph 4(d) of the CSA emphasises this:

“The party shall have the sole prerogative to ensure each [of its] MPs votes on confidence and supply motions of the Unity Government…”

What do the words ‘unconstitutional, enforceability, and illegality’ mean?

Illegality 3The concept of ‘illegality’ is not defined in the Malaysian Contracts Act of 1950

Courts have struck down contracts as ‘illegal’ where:-4 See sec. 24 of the Contracts Act

[1]. the consideration is forbidden by law; 

[2]. would defeat any law;

[3]. it is fraudulent;

[4]. if it causes injury to a person; or

[5]. if the purpose is immoral or against public policy.

Such contracts are said to be ‘not lawful’ and therefore ‘unenforceable’.

What does that mean?

Unenforceability

An unenforceable contract is one which the courts will not ‘force’ one of the parties to perform.

Take for example, duress.

Suppose A owns a land. B wishes to buy it. A refuses to sell it.

B, threatens A in these words: ‘Sell your land, or I will kill your child.’

A signs the agreement. Afterwards A refuses to sell it. B sues him.

No court will ‘force’ A to sell the land to B: this is the essence of unenforceability.

Similarly, fraud, mistake etc, can result in unenforceability.

Is the CSA agreement, ‘unconstitutional’?

No.

An unconstitutionality occurs when a law breaches the protective blanket of the Constitution.

A contract cannot be ‘unconstitutional’: it can only be, at worst, unenforceable.

Does the MoU lead to a ‘dictatorship’?

The complaint is this: if a government MP disobeys his party leadership, he would automatically lose his membership of that party.

And so, also his MP seat. When can a person lose membership of a party? That depends on a party’s rules.

A party’s Rules and Regulations are paramount to the issue of membership

The Societies Act 1966 does not deal with the concept of admission, cessation or expulsion of membership.5s.7(3)(e) sets out what minimum threshold should a society’s regulations must cross. This threshold is in First Schedule, para 1(e) deals with qualifications for membership. There is nothing there about disqualification, cessation, or expulsion.

So a party’s regulations are crucial.

A Party’s regulations are a contract between members.6A society’s rules are a contract between members: Denning LJ in Lee v. Showmen’s Guild of Great Britain [1952] 1 All ER 1175  Members must obey them.7Unless the rules breach natural justice: see Amalgamated Society of Carpenters, Cabinet Makers & Joiners v. Brathwaite General Union of Operative Carpenters & Joinery, [HL] [1922] 2 AC 440  If a member of a party does not like his society’s rules, he can either persuade his colleagues to remove the offending rule, or quit.8 Tharmalingam v. Sambanthan (1961) 27 MLJ 63, at p.64

So it is entirely for a party’s rules to determine how and when a member’s membership ‘ceases’.

The courts have refused to sit in judgement over the decision of a society.9 Dawkins v. Antrobus [1881] 27 Ch D 615, 631

This is why clause 4(a) and (b) of the MoU require coalition parties to ‘internally manage’ their own constitutions to ensure their MPs support the Unity Government.

If a political party’s regulations say that an MP who does not support the Unity Government will lose his membership, there is nothing ‘illegal’ about it.

Can a party’s Rules force a disobedient MP to resign?

Most political parties will have some clause in their respective constitutions requiring members to comply with the wishes of its leadership.10Dawkins v Antrobus [1879] 615, at p. 621

For example, UMNO’s constitution has such provisions.11UMNO’s Constitution in clauses 6.1.4, 20.4 20.9,  20.10, 20.11 read together

If there is no such clause, there is nothing to stop a political party from inserting clauses similar to clause 4(a) and (b) into its rules – so long as the amendment complies with the party’s rules.12Dawkins v. Antrobus [1881] 27 Ch D 615

All these are matters within the constitutional boundaries of the party.

There is nothing ‘illegal’ or ‘dictatorial’ about clauses imitating clauses 4(a) or 4(b).

Does this CSA agreement – or MOU – ‘forces’ MPs to act against their conscience?

The Opposition argument is that the MoU ‘forces’ MPs to act against their conscience as if some of them had one to start with.

The answer is in the MOU at clause 2, entitled ‘Objective’.

Clause (a) starts with the proposition that:

(1). the parties shall ‘be loyal to the King’.

(2). preserve, protect and defend the Federal Constitution.

At Clause 2(b), the parties declare their commitment to achieving the goals of the Unity Government.

This has 18 such ‘objectives’.

I will recite some:

Strengthening parliamentary democracy;

Upholding the supremacy of the rule of law;

Recognising the dignity and role of women as pillars and driving forces of society;

Guaranteeing fair wages to workmen;

Upholding the dignity of women; and

Upholding a fair sharing of power between East and West Malaysian states under the MA 63 agreement.

Is there anything objectionable about these objectives?

If an MP will not uphold these aims, then why should he remain as an MP?

Every MP’s duty is to serve the entire nation – a rule that most MPs forget the moment the elections are over.

In conclusion

The agreement is neither unenforceable nor an instrument of dictatorship.

I expect the unity government, to uphold all those objectives that the Unity Government has set out in its agreement.

That remains to be seen.

You May Also Like

Should the Senate be a back door into the Cabinet?

Have the four Sabah MPs lost their seats?

Should the Anwar Government implement Corruption Amnesty?

Does the Speaker remain in office after the dissolution of Parliament?