After they failed to obey Bersatu’s instruction on May 17 to pledge loyalty to the party within 14 days, a power provided by Clause 10.4 of its party constitution, all seven ceased to be members of Bersatu after May 31. This is the automatic consequence of their act, like what happens in most parties if one fails to pay membership due.
The membership relinquishment of the Bersatu 7 should not be misrepresented as expulsion or sacking, which has different constitutional consequences.
In fact, the effectiveness of this method used by Bersatu was illustrated by an infographic prepared by the Legal Affairs Division (BHEUU) of the Prime Minister’s Department in 2022. Interestingly, Slide 7B, Situation 3 prophetically used Bersatu as the hypothetical party in the illustration.
Neither should it be implausibly interpreted as an act to cause a “retrospective” application of the AHL. The amendment to the Bersatu party constitution that inserted Clause 10.4 was approved by the Registrar of Societies on April 1 way before Bersatu’s instruction on May 17.
Bersatu should immediately inform the Dewan Rakyat speaker Johari Abdul of the membership relinquishment for these four MPs:
a. Syed Abu Hussin Hafiz Syed Abdul Fasal (Bukit Gantang)
b. Iskandar Dzulkarnain Abdul Khalid (Kuala Kangsar)
c. Suhaili Abdul Rahman (Labuan)
d. Zulkafperi Hanafi (Tanjong Karang)Bersatu does not need to and should not wait until Dewan Rakyat sits on June 24 to do this. The notification should be done professionally and not be made a political show. Delay in notifying the Dewan Rakyat speaker is obstructing the due process and the Election Commission’s (EC) preparation for the necessary by-elections.
Likewise, Bersatu should immediately inform Selangor state legislative speaker Lau Weng San of the membership relinquishment for Selat Klang assemblyperson Abdul Rashid Asari.
As the four MPs and Selangor assemblyperson were “elected as members of Perikatan Nasional” by way of their Bersatu membership, the relinquishment of the latter causes their legislative seats to be vacated by the force of Article 49A(1)(a) of the Federal Constitution and the corresponding provisions in the Selangor state constitution.
The membership relinquishment for Mohd Azizi Abu Naim (Gua Musang MP and Nenggiri assemblyperson) and Zahari Kechik (Jeli MP) however does not cause their seats to be vacated because they were “elected as candidates of PAS” and not “as members of PN”.
Nevertheless, the duo should voluntarily resign to trigger by-elections so that voters can decide whether they support their change of affiliation.
With the repeal of Article 48(6) of the Federal Constitution and the corresponding provision in the Kelantan state constitution which previously prohibited lawmakers from recontesting within five years of their resignation, the duo have the chance to get a fresh mandate under their new allegiance.
Nothing in the actual wording of Article 49A, the explanatory notes of the bill, the Parliamentary Special Select Committee (PSSC) report, or the parliamentary debate on the bill as recorded in the parliamentary Hansard, can cause the vacancy of the seat of a lawmaker for leaving or ceasing to be a member of his/her party after having elected as a candidate of another party. The same is true for the state-level AHLs
As the Dewan Rakyat and Selangor state legislative assembly speakers, Johari Abdul and Lau should duly inform the EC of the five-seat vacancies within 21 days from the notice by Bersatu. Any deliberate delay or defiance of the constitutional provision will cause disrepute to their high offices and their integrity.
On any dispute of speakers’ decisions, the judiciary must not abdicate its function and refuse to adjudicate on the implausible ground of “separation of powers”.
If speakers can arbitrarily make their judgments on such highly political matters, as proven in the Indian legislatures, the AHL would be applied very partisanly to be a weapon against rather than a shield of democracy.
Dewan Rakyat speaker Johari Abdul AHLs are a key component of post-2018 institutional reforms. If the provisions in the Bersatu party constitution are ineffective in causing seat vacancy in virtual crossover, similar provisions in DAP, Amanah and UMNO party constitutions would face the same fate.
Treacherous acts to selectively disable the AHL do not just invite a return of political instability during 2018-2021, they would also greatly damage citizens’ confidence in and respect for political parties, lawmakers, and multiparty democracy.
The PSSC on Human Rights, Election and Institutional Reform headed by William Leong should proactively study Article 49A to close gaps like the one caused by parties nominating non-members as candidates, as in the case of Gua Musang, Jeli and Nenggiri. Until such a gap is closed, parties should avoid such practices in order not to produce lawmakers who are free from the AHL.
Fundamentally, what Malaysia needs is not an AHL to simply eliminate the symptom of party-hopping, which is hard to strike the right balance between curbing rogue parliamentarians and stopping party leaders from turning legislatures into their rubber stamps.
The true solution is building strong programmatic parties that are not relying on patronage and can thus be resilient over party-hopping. Cross-party negotiation is therefore urgently required to expedite reforms like laws for equal Constituency Development Fund (CDF), separation of powers of the public prosecution from the Attorney-General Chambers (AGC), and functional confidence mechanisms.
The Coalition for Clean and Fair Elections (Bersih)
Bait al-Amanah
Engage
Persatuan Pengundi Muda (Undi18)
Project Stability and Accountability for Malaysia (Projek Sama)
Institute for Political Reform and Democracy (Reform)
The Institute for Democracy and Economic Affairs (Ideas)
Lim Chee Han
Maha Balakrishnan
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