THE decision of Parliament Speaker Johari Abdul to allow six Bersatu MPs to keep their seats has turned the spotlight on the anti-party hopping law passed in 2022.

The law became a necessity after the first Pakatan Harapan government was ousted in 2020 with the defection of several MPs.

The law was put in place as a result of a 2021 memorandum of understanding for political ptability between prime minister Ismail Sabri Yaakob and the opposition led by Pakatan Harapan.

The law, aimed at stopping elected lawmakers from switching between political parties, came into effect in 2022, just before the general election.

Under the law, which was enacted through a constitutional amendment, a by-election will be triggered when an elected lawmaker quits or jumps parties. Independents will also lose their seats if they join a party. However, lawmakers sacked from their parties do not need to vacate their seats. The law does not cover party defections from a coalition.

Several political parties amended their constitutions to align with the law.

Bersatu 6 defection

Constitutional experts have pointed out loopholes in the new law. This includes a situation when elected lawmakers do not toe the party line but their party cannot sack them,

This was the case when six Bersatu MPs pledged their support for Prime Minister Anwar Ibrahim. Bersatu had amended its party constitution to include the rule that a member who is an elected representative and who does not comply with the party’s supreme council’s order will have his membership revoked.

As a result, Bersatu said the six MPs ceased being party members when they disobeyed the party orders, and as such, they must vacate their seats.

The six lawmakers are Syed Abu Hussin Hafiz Syed Abdul Fasal (Bukit Gantang), Azizi Abu Naim (Gua Musang), Dr Zulkafperi Hanapi (Tanjong Karang), Zahari Kechik (Jeli), Iskandar Dzulkarnain Abdul Khalid (Kuala Kangsar), and Suhaili Abdul Rahman (Labuan).

The party said pressed Johari to declare the seats vacant.

Speaker’s decision

But Johari decided on July 10 that the six Bersatu MPs did not have to vacate their seats, citing constitutional rights afforded to these elected lawmakers.

He said new regulations in Bersatu’s constitution denied the rights of five MPs which are enshrined under the Federal Constitution, Parliament Standing Orders, and the Houses of Parliament (Privileges and Powers) Act 1952.

Bersatu president and Perikatan Nasional chairman Muhyiddin Yassin slammed the speaker’s decision, saying it clearly went against the written and implied provisions of the Federal Constitution.

He said Johari had acted beyond his jurisdiction in making a twisted interpretation as only the courts had the authority to interpret the constitution.

Muhyiddin said Bersatu will challenge Johari’s decision in court.

Days later, on July 19, Kelantan Assembly Speaker Mohd Amar Nik Abdullah declared the Nenggiri seat vacant after its incumbent Mohd Azizi Abu Naim’s Bersatu membership was revoked.

Azizi, who is also the Gua Musang MP, had declared his support for Anwar and the unity government.

Kelantan is a Perikatan Nasional-run state.

On July 11, Selangor Assembly Speaker Lau Weng San said the Selat Klang seat will not be vacated although the incumbent assemblyman Abdul Rashid Asari of Bersatu had declared support for the Pakatan Harapan state government.

Lau said Rashid’s dismissal from his party was a constructive expulsion, according on the Selangor constitution.

Johari’s decision sparked a debate. Some, including the prime minister, defended the decision, saying it was consistent with the law while others condemned it.

Law expert Emeritus Prof Dr Shad Saleem Faruqi also agreed with the speaker’s decision.

In an interview with Bernama, Shad Saleem said Article 49A of the Federal Constitution – known as the anti-party hopping law –states a dismissal, a sacking, or an expulsion from a party is not the ground for a seat to fall vacant, and the speaker has to see whether what has been done is actually in real effect an expulsion and not cessation.

Shad Saleem said an MP ceases to be a member of the party by his own actions or inactions, such as not paying the prescribed membership fee, failing to attend party meetings, resigning from the party, or joining another party.

In Bersatu’s case, he said the revocation of the membership of its six members is actually an expulsion or a constructive dismissal.

Former speaker Azhar Azizan Harun, who is a lawyer, said the constitutional provision for vacating an MP’s seat was clearly spelt out and left no room for interpretation. He said the clause applied to the six MPs who had defied Bersatu’s constitution in backing the government.

Projek Sama, a group advocating for reforms, said Johari’s decision weakened the anti-party hopping law and risked enabling a repeat of the Sheraton Move.

Projek Sama said one of the biggest flaws of the anti-party hopping law was its failure to define the Dewan Rakyat speaker’s role in informing the Election Commission on seat vacancies.

It said the speaker’s role should be purely administrative and not discretionary.

The group warned that giving the Dewan Rakyat or assembly speakers the discretionary power to decide when to apply the anti-party hopping law meant the law would not bring about political stability.

Challenging the decision

Pasir Gudang lawmaker Hassan Abdul Karim also criticised the speaker’s decision not to vacate the seats.

The PKR MP said Johari’s decision defied the aspirations of Malaysians to stop party-hopping.

Hassan accused the speaker of partisan interests and failure to respect legal fundamentals and supremacy of the Federal Constitution.

Hassan said Bersatu could challenge the speaker’s decision in court but admitted it would be an uphill battle.

He said it would be difficult for Bersatu to succeed in its legal challenge because of Article 63(1) of the Federal Constitution.

This provision stipulates that the validity of any proceedings in either parliament or any committee shall not be questioned in any court.

He said Bersatu could protest in the streets, as suggested by its youth chief Wan Ahmad Fayhsal Wan Ahmad Kamal.

The six seats under dispute are the strongholds of Perikatan Nasional.

Anwar, who was the opposition leader when the anti-party hopping law was passed in 2022, said the government is open to amending the law to plug any loopholes. – July 24, 2024.