Many predict Bersatu will fail to vacate the seats of its seven rogue lawmakers.
This could be true but allow me to share an inconvenient reminder - in tightening the anti-hopping laws (AHLs) through the party constitution, Bersatu is really the student of DAP, Amanah and Umno.
If the student fails, so would the gurus. Are the gurus prepared for their future failure?
Four party constitutions compared
Amanah first started this move during its national convention on Sept 25, 2022, followed by DAP, Umno and eventually Bersatu (on March 2, 2024).
DAP’s amendment was the only one the Registrar of Societies (ROS) approved before the 15th general election, followed by Amanah, Umno and finally Bersatu (on April 1 this year).
In terms of scope, DAP’s anti-hopping provision covers even senators while the other three cover only MPs and assemblypersons.
In terms of offence, Umno’s was very specific and least inhibitive to lawmakers’ autonomy – they only cease to be Umno members (and lose their seats under the AHLs) if they join a coalition Umno is not part of or become an independent member in the house.
Notably, Umno democratically leaves the space for “backbench revolt” – not voting in line with the party whip’s order, a common practice in the UK House of Commons which checks and balances the government or party leadership - as long as such act does not amount to defection.
In contrast, three other parties close the door on backbench revolt. DAP’s wording was most comprehensive but simple, “apa-apa ketidakpatuhan terhadap apa-apa arahan yang dikeluarkan” (any non-compliance of any directive issued) by its central executive committee in written form.
Guess what is the corresponding wording in Bersatu’s provision? “Ketidakpatuhan terhadap apa-apa arahan yang dikeluarkan oleh Majlis Pimpinan Tertinggi” in written form.
“Great minds” think alike? You bet. Bersatu and DAP may be ideologically opposed to each other. However, in curbing informal defection, Bersatu could see DAP’s intelligence and copied its wording and ROS swiftly approved both parties’ amendments in around four to five weeks.
But this also means that the fate of the student’s attempt is tied back to its sifus’ attempt.
If Bersatu’s provision is ineffective in vacating the seats of its rogue lawmakers, so would the provisions of DAP, Amanah and Umno.
Anti-hopping provisions in the party constitutions of DAP, Amanah, Umno and Bersatu
Detractors of Bersatu’s anti-hopping strike offered up to three legal or legal-sounding arguments.
Would these arguments distinguish Bersatu’s anti-provisions from those of the three Madani parties, ie, punishing only Bersatu but not DAP, Amanah and Umno?
Legal argument 1: Expulsion?
The first argument is that the move is “expulsion”, or “constructive dismissal” as Bukit Gantang MP Syed Abu Hussin Hafiz Syed Abdul Fasal tried to frame it in his latest statement on June 13.
For readers confused by the legal jargon in Article 49A, the matter is actually very simple: does an MP leave his/her party voluntarily to be punished by the AHL?
Resignation is voluntary and hence punishable [Article 49A(1)(a)(i)]. Expulsion is involuntarily losing membership and hence not punishable by intention of the AHL [Article 49A(1)(2)(c)].
If the “informal defection” of the Bersatu 7 presents a “loophole” in the AHL, then the AHL also provides a potential remedy - parties can create offences in the party constitution for offenders to “cease to be a member” so that their seats can be vacated [Article 49(1)(a)(ii)].
If Syed Abu Hussin loses his membership for not paying membership due, he cannot claim “constructive dismissal”.
Likewise, the Bersatu constitution authorises its supreme leadership council to issue written directives, when Syed Abu Hussin and his six colleagues failed to comply, they were out.
If Bersatu fails on this, then DAP, Amanah and Umno will all fail.
Legal argument 2: Retroactive application?
A related argument held by some including senior lawyer Mohamed Haniff Khatri Abdulla is that Bersatu’s action is retroactive because the amendment was made after the MPs had pledged their support for Prime Minister Anwar Ibrahim.
However, the Bersatu 7 did not “cease to be members” because they pledged allegiance to the Pakatan Harapan-led federal and Selangor state governments.
They lost their membership on May 31 because they failed to comply within 14 days with the written directive by the supreme leadership council to declare loyalty to the party.
If this can be construed as retroactive, then DAP and Amanah amendments would be invalid too.
Legal argument 3: Parliamentary autonomy?
Another counterargument that has been hinted at is that Bersatu’s action may have infringed the “freedom and rights of Parliament”.
I doubt that this would hold water in the courts.
Not after the federal AHL was passed in July 2022 with a new clause, Article 10(3A) to enable such restrictions on freedom of association.
Not after the Federal Court upheld the constitutionality of Penang’s AHL – enacted in 2012 and stricter than the federal AHL – in August 2022.
Nevertheless, what if - for whatever reason – the speakers believe that the application of the AHL by way of party constitutional provisions infringed the freedom and rights of Parliament and state assembly, and refuse to inform the Election Commission (EC) of the seat vacancies, can the court reverse their decisions?
In the earlier case involving four Sabah Bersatu MPs who are now in GRS, the Kuala Lumpur High Court took the position that the speaker’s decision is non-justiciable, citing Article 63(1) under the heading “Privileges of Parliament”.
In simple language, right or wrong, the speaker’s decision is final.
From India’s experience, if speakers are allowed to make partisan decisions, then AHLs would only weaken and not strengthen multiparty democracy.
The Court of Appeal will hear Bersatu’s appeal on the GRS 4 case on Oct 30. Those who dread by-elections in formerly Bersatu-held seats may hope the High Court’s position be upheld all the way by the Federal Court.
Alternatively, even if the Federal Court eventually rules against the speaker in the Bersatu 7’s case, the decision might come after the by-election deadlines - Dec 18, 2025 for Dewan Rakyat and Sept 18, 2026 for the Selangor legislature.
Would DAP, Umno and Amanah want soft AHLs?
The above two scenarios that make by-elections for five of the rogue Bersatu MPs – the other two from Kelantan would escape the AHL’s punishment because they contested under PAS instead of Perikatan Nasional - are of course possible.
My question is - as gurus of Bersatu, would DAP, Amanah and Umno really want the AHLs to be soft, making them powerless before “informal defection” ala the Bersatu 7?
Yes, having by-elections after the subsidy cut is inconvenient but the Madani government is not losing all seven seats back to PN.
Besides keeping the Kelantan duo’s seats, the government can win back Labuan if there is no multi-cornered fight between BN, GRS and Warisan.
It even has a fighting chance in the two Selangor seats - the parliamentary constituency of Tanjung Karang and the state constituency of Selat Klang.
If Madani is willing to render the AHL ineffective just to keep all seven seats, then DAP, Umno and Amanah do not just lose their anti-hopping moral high ground.
DAP, Umno and Amanah might be the next victims of “informal defection” ala Bersatu 7, with speakers on the other side. Is this the future they really want? - Mkini
WONG CHIN HUAT is a political scientist at Sunway University and a member of Projek Sama. He believes that politics would be much improved if politicians start to recognise that Ms Karma is their loyal follower.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.