Date: 11 July 2024
Project Stability and Accountability for Malaysia (Projek SAMA) warns that the Dewan Rakyat Speaker Tan Sri Johari Abdul’s decision to reject the vacancy of five Bersatu MPs (except Labuan) – on the grounds such as ensuring long-term political stability and the unconstitutionality of anti-hopping provisions in Bersatu party constitution – has weakened the Anti-Hopping Laws (AHLs) and risks enabling the next Sheraton Move. It has also brought disrepute to the high office of the Speaker of the Dewan Rakyat.
The Speaker’s decision to not declare seat vacancy for Labuan was on the ground that the MP has an ongoing court case over his Bersatu membership. Such a decision also risks to open up a loophole for any defectors to escape having their seats vacated by suing their parties.
Projek SAMA warns Prime Minister Datuk Seri Anwar Ibrahim that the Opposition may return the favour by luring some government MPs to switch their allegiance to weaken or topple the government. His shortsighted attempt to use constituency allocation to lure the defection of opposition MPs and to now avoid by-elections after the Sungai Bakap by-election defeat is a betrayal of the post-Sheraton norm of ‘party-based government’.
Projek SAMA reminds DAP, Amanah and UMNO that the similar provisions in their respective party constitutions could be likewise disabled by another Speaker in future. Selangor Legislative Speaker Lau Weng San will have to decide on Selat Klang assemblyperson Datuk Abdul Rashid Asari’s seat. Lau must resist making the same partisan decision and weaken the AHLs which his party DAP had fought for since 1978.
Projek SAMA holds that the biggest flaw of the AHLs – Article 49A of the Federal Constitution and corresponding clauses in the State Constitution – now appears to be the twin failures in defining the Speaker’s role in informing the Election Commission (EC) of seat vacancy as purely administrative and in ensuring judicial review on the application of the AHLs. The Judiciary now holds the key to prevent future Sheraton Move-style political chaos by upholding the spirit and purpose of the AHLs.
Projek SAMA urges all Malaysians wanting political stability and accountability to express their objection to blatant partisan moves that undermined the AHLs. DAP former chairman Lim Kit Siang who has championed for an AHL since 1978 must not stay silent.
Projek SAMA’s detailed position is as below:
- The multiparty compromise – Mild AHLs, parties’ option to tighten them
AHLs have a built-in dilemma in deciding the degree of strictness, akin to dosage of chemotherapeutic drugs in treating cancers – if it is too strict that any elected representatives sacked from the party would lose their seats, then party leadership may use the AHLs to purge rivals in the party; on the other hand, if it is too lenient that all elected representatives sacked from the party get to keep their seats, then AHLs could be rendered ineffective.
The multiparty compromise reached by the Parliamentary Special Select Committee (PSSC) on the AHLs was that the AHLs would be kept mild by excluding expulsion, but parties have the options to amend their party constitution to tighten it by listing violations that can cause an elected representative to ‘cease to be a member’ and hence to lose seats under Article 49A(1)(a)(ii), which reads
“….a member of the House of Representatives shall cease to be a member of that House and his seat shall become vacant … if (a) having been elected to the House of Representative as a member of a political party —(i) he resigns as a member of the political party; or (ii) he ceases to be a member of the political party;…”,
This intention was made clear in a slide produced by the Legal Affairs Division (BHEUU) of the Prime Minister’s Department, which incidentally used Bersatu as the hypothetical example:
“Jika tindakan tidak mengikut keputusan Parti menyebabkan beberapa ahli BERSATU terhenti keanggotaan parti (berdasarkan Perlembagaan Parti tersebut) maka ahli-ahli tersebut dianggapkan telah bertukar parti dan perlu mengosongkan kerusi mereka.”
Against this background, Amanah, DAP and UMNO amended their constitution to cause their lawmakers to ‘cease to be members’ for ‘acting against decision of party or party whip’ (Amanah), ‘non-compliance of any written directive by the Central Executive Committee’ (DAP) and ‘joining a coalition not joined by UMNO or opting to be an independent elected representative’ (UMNO). [Appendix 1]
Bersatu followed these three parties’ footsteps and had its amendments [Appendix 2] approved by the Registrar of Societies (ROS) on April 1, 2024. Bersatu’s anti-hopping provision ‘non-compliance of any written directive by the Supreme Leadership Council’ is strikingly similar to that of DAP ‘non-compliance of any written directive by the Central Executive Committee’. It is self-delusional for DAP to claim that its own party constitution would not be affected by the Speaker’s decision on Bersatu.
- Speakers’ function in applying the AHLs
Article 49A(3) which reads,
“Whenever the Speaker receives a written notice from any member of the House of Representatives on the occurrence of a casual vacancy among the members of the House of Representatives under this Article, the Speaker shall establish that there is such a casual vacancy and notify the Election Commission accordingly within twenty one days from the date he received the written notice.”
should be interpreted that the Speaker’s function to ‘establish’ is purely administrative to confirm factual details and not discretionary. A submission by political scientists Wong Chin Huat and Wo Chang Xi to the PSSC on the AHLs pointed out the danger of leaving any room for the Speaker’s discretion. Regrettably not adopted, their proposal (in page 149, Written Submission of the PSSC report) was
“The Speaker shall notify the Election Commission on the occurrence of a vacancy under Clause (1) within three working days from the date he receives a written notice from a member of the House of Representatives or the leader of his party with evidence that the member has resigned from or ceased to be a member of the party.”
Since the existing Article 49A(3) has caused the Speakers to see themselves holding interpretive power, such decisions by Speakers must be subject to judicial review. The opposite would result in dire consequences – on the same matter, relying on the Speakers of the Dewan Rakyat and the 12 State Legislative Assemblies may have different interpretations as they are not bound by each other, and even the same legislature, different speakers may make different interpretations at different time. The former confusion is already shown between the Dewan Rakyat Speaker Tan Sri Johari Abdul and Kelantan State Legislative Assembly Speaker Datuk Mohd Amar Nik Abdullah on the federal (Gua Musang) and state (Nenggiri) seats concurrently held by Mohd Azizi Abu Naim.
As evidenced by the abuse of Speakers’ power in India, if Speakers can arbitrarily decide when to apply the AHLs, then AHLs would not bring about political stability and accountability to affirm multiparty democracy. Instead, AHLs would be convenient tools of partisan manipulation and Speakers incentivised to act in highly partisan manners.
The simple remedy for Article 49A(3) is subjecting Speakers’ decision to judicial review. As courts’ decisions are bound by precedents, this would bring order to the application of the AHLs. We pray that the Courts would not take an overstretched interpretation of Article 63 Privileges of Parliament and Article 72 Privileges of Legislative Assembly to abdicate their roles in upholding the Federal Constitution and affirming parliamentary democracy.
- Speaker Johari’s grounds examined
In his letter to Bersatu MP for Beluran Datuk Seri Dr Ronald Kiandee dated July 9, 2024, Speaker Tan Sri Johari Abdul has informed Bersatu that he decided against seat vacancy for all the five MPs from Kelantan, Perak and Selangor on the grounds that Article 49A was created to ensure political stability in the long term based on the PSSC report and parliamentary Hansards, and that he has found that Clause 10.5 of Bersatu Party Constitution to be violating the Federal Constitution, the Dewan Rakyat Standing Orders and the Houses of Parliament (Privileges and Powers) Act 1952.
The learned Speaker’s position is premised on two assumptions. First, the expressed purposes in formulating constitutional and legal provisions override the specific wordings of the constitution and law. Second, the Dewan Rakyat speaker has the authority to determine the constitutionality and viability of a political party’s constitution, which is in the domain of the ROS as per the Societies Act 1966.
Both assumptions are manifestly flawed and need to be invalidated by the Judiciary to avoid dangerous precedents. Specifically, we would like to set the record straight that Article 49A was enacted to ensure long-term political stability by penalising party-hopping of lawmakers, not by enabling one-way traffic party-hopping in favour of the government.
- Status of the Six Ex-Bersatu MPs
Based on Article 49A(1)(a)(ii) of the Federal Constitution and Clauses 10.2.6, 10.4 and 10.5 of Bersatu Party Constitution, we hold that the following MPs have ceased to be members of Bersatu and by-extension, Perikatan Nasional (PN) after having elected as PN members, and hence ceased to be members of Dewan Rakyat:
- Datuk Syed Abu Hussin Hafiz Syed Abdul Fasal (Bukit Gantang),
- Datuk Iskandar Dzulkarnain Abdul Khalid (Kuala Kangsar),
- Datuk Dr Zulkafperi Hanafi (Tanjong Karang), and
- Datuk Suhaili Abdul Rahman (Labuan).
The remaining two MPs from Kelantan:
- Zahari Kechik (MP of Jeli)
- Mohd Azizi Abu Naim (MP of Gua Musang)
were not bound by the AHL despite ceasing to be Bersatu members because they were elected as PAS candidates, not Bersatu or PN members. They should however resign and recontest in by-election to prove that their change of allegiance is supported by the constituents.
