KUALA LUMPUR, Dec 19 — Clause 4 in the unity government’s memorandum of understanding (MoU) poses a legal problem, as it seems to go against the intention of the anti-party hopping provision in the Federal Constitution, the Malaysian Bar said.

Its president Karen Cheah Yee Lynn highlighted the Bar’s “great concern” over Clause 4 of the MoU or memorandum of agreement (MoA), which could result in MPs losing their seats if they choose not to vote in favour of parliamentary motions that may affect the unity government's legitimacy.

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Among other things, Clause 4 requires all political parties who had signed it to vote to support the prime minister in votes of confidence and other matters that would affect the unity government's legitimacy, and to also ensure their MPs vote in favour of such matters.

The same clause also states that failure, refusal or negligence by such political parties’ MPs to vote in support of the unity government would be considered as the MP's breach of individual responsibility to the party, and would be deemed as such an MP having resigned or ceasing to be an MP within the framework of Article 49A(1) of the Federal Constitution. This will then trigger a by-election.

But the Malaysian Bar said this clause in the unity government's MoU goes beyond what the anti-hopping law in Article 49A was intended to cover.

“Through an in-depth reading and analysis of Clause 4 of the MoA, this clause appears to be directly averse to the intention and wordings of Article 49A of the Federal Constitution,” Cheah said in the statement issued late last night.

Under Article 49A(1) of the Federal Constitution, an MP will no longer be an MP and his seat will become vacant, if he resigns from or ceases to be a member of the political party which he belonged to when he was voted in as MP.

In other words, this will result in a by-election.

Article 49A is a new amendment to the Federal Constitution to overcome the problem of political instability and collapse in governments when MPs jump to different parties. It received royal assent on August 31 and was gazetted as law on September 6.

The Malaysian Bar suggested that Clause 4 appears to be based on internal party processes if any MP does not vote in favour of parliamentary motions that affect the unity government's legitimacy.

It suggested this means there would be an internal enquiry and due process before a notice of the MP's seat becoming vacant can be issued to the Dewan Rakyat Speaker — which would then trigger a by-election.

The Malaysian Bar said the mention of the resignation or even possible expulsion of such MPs is “where the problem lies”.

Cheah pointed out that the Malaysian Bar had previously raised the concern — before the Federal Constitution was amended to introduce Article 49A as an anti-hopping law — of the possible abuses that could arise.

“What if political parties engineer a way to put in place a resignation process or expulsion process within their own constitution that would circumnavigate due process?” she asked when illustrating such possible abuses of the law.

As political parties could potentially change their own party constitution to bypass the proper process that should be undertaken before causing non-compliant MPs to lose their seats, Cheah said anti-party hopping laws should enable MPs to be able to go to court to seek for court decisions on whether their parties were justified in treating the MPs as having resigned or no longer being a party member.

“Shouldn’t the AHL include provisos to include that such resignations and expulsions should not be automatic but be postponed and subject to the MPs having sufficient legal redress through the court of law to adjudicate on the justifiability of such calls made by the political parties?” she said, referring to the anti-hopping law.

Cheah suggested that political parties who had signed the MoU would be considered to have agreed that Clause 4 would apply to them and their MPs, unless they voice their disagreement with said clause.

“As a matter of good governance, the Malaysian Bar expects that the MoA was signed by the political parties in which MPs from these parties would have been consulted and agreed to the phrasing of Clause 4 of the MoA. Until they disagree, we accept that the component of political parties and MPs within them would have accepted to be bound by MoU including Clause 4,” she said.

The Malaysian Bar's full statement can be read here.

Today is exactly one month after the 15th general election and MPs are expected to vote on whether they have confidence in Pakatan Harapan chairman and PKR president Datuk Seri Anwar Ibrahim to be prime minister. - malaymail