Project Stability and Accountability for Malaysia (Projek Sama) warns that the House of Representatives Speaker 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 the Bersatu party constitution – has weakened “anti-hopping” laws and risks enabling the next “Sheraton move”.
It has also brought disrepute to the high office of the Speaker of the House.
The Speaker’s decision to not declare a seat vacancy for Labuan was on the grounds that the MP has an ongoing court case over his Bersatu membership. Such a decision also risks opening up a loophole for any defectors to escape having their seats vacated by suing their parties.
Projek Sama warns Prime Minister 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 allocations to lure the defections 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 a ‘party-based government’.
Projek Sama reminds the DAP, Amanah and Umno that the similar provisions in their respective party constitutions could be likewise disabled by another Speaker in the future.
- Sign up for Aliran's free daily email updates or weekly newsletters or both
- Make a one-off donation to Persatuan Aliran Kesedaran Negara, CIMB a/c 8004240948
- Make a pledge or schedule an auto donation to Aliran every month or every quarter
- Become an Aliran member
Selangor State Legislative Assembly Speaker Lau Weng San will have to decide on the seat of the assembly member for Selat Klang, Abdul Rashid Asari. Lau must resist making the same partisan decision and weakening the anti-hopping laws which his party, the DAP, had fought for since 1978.
Projek Sama holds that the biggest flaw of the anti-hopping laws – Article 49A of the Federal Constitution and corresponding clauses in the state constitutions – now appears to be their twin failures to define the Speaker’s role in informing the Electoral Commission of a seat vacancy as purely administrative and to ensure a judicial review of the application of the anti-hopping laws.
The judiciary now holds the key to prevent future Sheraton move-style political chaos by upholding the spirit and purpose of the anti-hopping laws.
Projek Sama urges all Malaysians wanting political stability and accountability to express their objection to blatant partisan moves that undermined the anti-hopping laws. DAP former chairman Lim Kit Siang, who has championed an anti-hopping law since 1978, must not stay silent.
Projek Sama’s detailed position is as below:
The multi-party compromise – mild anti-hopping lawls, parties’ option to tighten them
Anti-hopping laws have a built-in dilemma in deciding the degree of strictness, akin to a dosage of chemotherapeutic drugs in treating cancers.
If they are too strict that any elected representatives sacked from the party would lose their seats, then the party leadership may use the anti-hopping laws to purge rivals in the party; on the other hand, if the laws are too lenient that all elected representatives sacked from the party get to keep their seats, then anti-hopping laws could be rendered ineffective.
The multi-party compromise reached by the parliamentary special select committee on the anti-hopping laws was that the laws would be kept mild by excluding expulsion, but parties have the options to amend their party constitutions to tighten them 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 of the Prime Minister’s Department, which incidentally used Bersatu as a 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, the DAP and Umno amended their constitutions to cause their elected representatives to “cease to be members” for “acting against decision of party or party whip” (Amanah), for “non-compliance of any written directive by the Central Executive Committee” (DAP) and for “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 1 April 2024. Bersatu’s anti-hopping provision for “non-compliance of any written directive by the Supreme Leadership Council” is strikingly similar to that of the DAP’s “non-compliance of any written directive by the Central Executive Committee”. It is self-delusional for the DAP to claim that its own party constitution would not be affected by the Speaker’s decision on Bersatu.
Speakers’ function in applying the anti-hopping laws
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 special select committee on the anti-hopping laws 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 special select committee report) stated:
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 as 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 House of Representatives and the 12 state legislative assemblies3 may have different interpretations as they are not bound by each other, and even in the same legislature, different speakers may make different interpretations at different time.
The former confusion is already shown between the House of Representative Speaker Johari Abdul and Kelantan State Legislative Assembly Speaker Mohd Amar Nik Abdullah on the federal (Gua Musang) and state (Nenggiri) seats concurrently held by Mohd Azizi Abu Naim.
As seen by the abuse of a speaker’s power in India, if speakers can arbitrarily decide when to apply anti-hopping laws, then these laws would not bring about political stability and accountability to affirm multi-party democracy.
Instead, anti-hopping laws would be convenient tools of partisan manipulation and speakers would be incentivised to act in a highly partisan manner.
The simple remedy for Article 49A(3) is subjecting a Speaker’s decision to judicial review. As court decisions are bound by precedents, this would bring order to the application of anti-hopping laws.
We pray that the courts would not take an overstretched interpretation of articles 63 (on Privileges of Parliament) and 72 (on 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’s Beluran MP Dr Ronald Kiandee dated 9 July, Speaker Johari Abdul informed Bersatu he decided against seat vacancies 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 special select committee report and parliamentary Hansard and that he found that Clause 10.5 of the Bersatu party constitution to be violating the Federal Constitution, the House’s 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 House 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 elected representatives, 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’s party constitution, we hold that the following MPs have ceased to be members of Bersatu and by extension, Perikatan Nasional (PN) after having been elected as PN members, and hence have ceased to be members of the House of Representatives:
- Syed Abu Hussin Hafiz Syed Abdul Fasal (Bukit Gantang),
- Iskandar Dzulkarnain Abdul Khalid (Kuala Kangsar),
- Dr Zulkafperi Hanafi (Tanjong Karang), and
- Suhaili Abdul Rahman (Labuan).
The remaining two MPs from Kelantan:
- Zahari Kechik (the MP for Jeli)
- Mohd Azizi Abu Naim (the MP for Gua Musang)
were not bound by the anti-hopping law despite ceasing to be Bersatu members because they were elected as Pas candidates, not Bersatu or PN members. They should, however, resign and re-contest in by-elections to prove that their change of allegiance is supported by their constituents.
Appendix 2 Amendments to Bersatu Party Constitution as Approved by the Registrar of Societies (ROS) on April 1, 2024
- Mana-mana ahli BERSATU yang merupakan wakil rakyat di Dewan Rakyat atau Dewan Undangan Negeri atau Dewan Negeri ynag melakukan ketidakpatuhan terhadap apa-apa arahan yang dikeluarkan oleh Majlis Pimpinan Tertinggi yang selari dengan Fasal 10.5 adalah disifatkan sebagai terhenti keahliannya dari parti Bersatu secara serta-merta.
- Majlis Pimpinan Tertinggi boleh mengeluarkan apa-apa arahan khusus kepada mana-mana atau semua wakil rakyatnya di Dewan Rakyat atau Dewan Undangan Negeri atau Dewan Negeri. Semua arahan yang dikeluarkan di bawah Fasal ini hendaklah dibuat secara bertulis.
- Merujuk kepada Fasal 10.4, Setiausaha Agung di atas arahan Majlis Pimpinan Tertinggi hendaka mengeluarkan satu Notis kepada ahli berkenaan yang memaklumkan bahawa keahlian baru telah berhenti secara serta-merta dan bahawa nama beliau telah dikeluarkan daripada sistem pendaftaran keahlian Parti Bersatu.
AGENDA RAKYAT - Lima perkara utama
- Tegakkan maruah serta kualiti kehidupan rakyat
- Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
- Raikan kerencaman dan keterangkuman
- Selamatkan demokrasi dan angkatkan keluhuran undang-undang
- Lawan rasuah dan kronisme
