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

On 16 December 2022, five political parties entered into a Confidence and Supply Agreement (or ‘CSA’). This was three days before the first meeting of the 15th Session of Parliament on 19 December 2022.

The Opposition has attacked the CSA, calling it ‘unconstitutional, dangerous, and unenforceable’, and as a ‘Prelude to dictatorship’ and an ‘attack on democracy.’

The objections against the CSA were focused on clauses 4(a) and 4(b).

Two clauses are important.

Clause 4(a) is at the heart of the criticism

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’.

The second criticism is aimed at clause 4(b).

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

Another phrase in clause 4(b) states:
Failure, [or] refusal … to do so shall be … a breach of 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

All these actions are required under the CSA to be ‘within the meaning of Article 49A(1) of the Federal Constitution’.

Clause 4(a) requires each party ‘by internal processes’ to ensure its MPs’ support the Unity Government in any vote… ‘in accordance with the Federal Constitution’.

The phrase ‘in accordance with the Federal Constitution’ implies that every party’s effort must be lawful.

Second, the agreement asks the party itself to deal with the question of cessation of membership.

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

‘Illegality’

These contracts are ‘unenforceable’. What does that mean?

The concept of unenforceability

An unenforceable contract is a contract that is a technically a legal contract.

But the courts will not ‘force’ one of the parties to be perform it, even if the other party insists on it.

Some opposition MPs have complained that the Confidence and Supply Agreement was a ‘threat to democracy’, and would lead to a ‘dictatorship’

Whether a person ceases to be a member of a political party depends on what his party’s Regulations say

It is for a party’s rules to determine when, and how, a member’s membership ‘ceases’. A society’s rules are a contract between members.

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

The CSA agreement states that this is to be ‘in accordance with the Federal Constitution’.

There is nothing illegal about this.

If there is a clause in a political party’s constitution that an MP must support the Unity Government failing which his membership shall cease, there is nothing illegal about it. If a member of a society does not like his society’s rules, he can do one of two things: persuade his colleagues to have that clause removed or quit the party.

It could be argued that the Commonwealth Countries’ CSAs do not have a clause to force MPs to resign.

This is true. But no country in the Commonwealth has a constitutional clause like the Malaysian Article 49A.

It is for the individual parties to decide how and when members are to cease being members.

However, most political parties will have some clause in their respective constitutions requiring members to comply with the wishes of the leadership.

This brings us to the question of whether the CSA agreement is ‘unconstitutional’

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

The purpose of an MP is to serve the entire nation – a rule which most MPs forget the moment the elections are over.


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