The government-PH MoU – a legal view

 

From Philip Koh

On Monday, a memorandum of understanding (MoU) was signed between the federal government and Pakatan Harapan (PH).

The government of Malaysia was represented by Prime Minister Ismail Sabri Yaakob while PH was represented by Anwar Ibrahim, Lim Guan Eng and Mohamad Sabu.

It is said to be for “political stability” but what does it really mean?

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 to be construed in accordance with the laws of Malaysia.

Malaysian law follows that of common law in approach to MoU. We also have the Malaysian Contracts Act 1950 (Act 136) and the Government Contracts Act, 1949 (Act 120).

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 PH coalition (consisting of PKR, DAP, Amanah and 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 injunction 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 and proceedings of the Houses of Parliament would further militate against any legal remedies if a party breaches the MoU.

Duration of the MoU

It is from Sept 13 this year until the dissolution of the 14th session of Parliament (Art.2.1).

Obligations undertaken by the government

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

Obligations agreed to by PH

That, in reciprocal consideration to the proposal and implementation of the transformation programme and subject always to the implementation of the transformation programme 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 in the government.

The fundamental term of MoU

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

The position of PH as opposition & accountability

It is provided that nothing in the MoU impairs the role of PH as the opposition to review, investigate, study and to hold the government of the day responsible for issues relating to citizens which are accountable to Parliament.

The Appendix

The Appendix is to be read integrally with the MoU and has six Clauses relating to:

• Covid-19 measures
• Transformation of administration: Anti-hopping laws; Voting at the age of 18 years 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 is to be constituted with a total of 10 members – five from the government and five from the opposition. This steering committee will meet once every two weeks. - FMT

Philip Koh is a lawyer and an adjunct professor at Universiti Malaya.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.