ARTICLE 59(1) of the federal constitution expressly states that every member of either House of Parliament shall, before taking his seat, take and subscribe before the person presiding in the House an oath in the form set out in the Sixth Schedule.

It is humbly submitted that the insertion of the oath on the part of an MP in the main body of the constitution shows the immense importance of the said oath.

An MP in Malaysia is sworn in, in accordance with Item 2 of the Sixth Schedule to the constitution, which states the following: “2. Oath as Member of Parliament and of Allegiance.

“I, ..., having been elected (or appointed) as a member of the House of Representatives (or the Senate) do solemnly swear (or affirm) that I will faithfully discharge my duties as such to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its constitution.”

The key words are “will preserve, protect and defend its constitution”

Part VIII of the constitution is titled “Elections”, and it starts with Article 113 and ends with Article 120.

Article 133(1) states: “There shall be an Election Commission, to be constituted in accordance with Article 114, which, subject to the provisions of federal law, shall conduct elections to the House of Representatives and the Legislative Assemblies of the States, and prepare and revise electoral rolls for such elections.”

The key words are “shall conduct elections to the House of Representatives”.

In other words, the constitution provides procedures on how elections to the Dewan Rakyat are carried out. Flowing from Article 113 are federal laws such as the Elections Act 1958 (Revised 1970) and Election Offences Act 1954, which govern election campaigns, among others. It is axiomatic that campaigns form an integral part of elections. So, this part of the constitution must be preserved, protected and defended by an MP.

Article 119(1) states, among others, that every citizen (subject to qualifying factors) is entitled to vote in their constituency in any election to the House of Representatives or State Legislative Assembly.

In other words, the constitution provides citizens the right to vote in elections to the Dewan Rakyat. This part of the constitution, too, must be preserved, protected and defended by an MP.

Read together, the entire Part VIII of the constitution (Articles 113 to 120) must be preserved, protected and defended by an MP.

It is humbly submitted that the moment a proposed/future MP subjects him/herself to Part VIII of the constitution, in the very same process that a citizen subjects him/herself through Part VIII of the constitution, it gives rise to a legally binding obligation on the part of the proposed/future MP to honour his or her representations to that citizen. The consideration in return for honouring the said representations is necessarily and obviously the vote. Hence, a sealed deal. So, in essence, the proposed/future MP makes thousands and thousands of legally binding obligations to the thousands and thousands of citizens who cast their votes in his or her favour, and subsequently to his or her success.

It is on this premise that the now-elected MP makes their way to the Dewan Rakyat to take their oath in accordance with Item 2 of the Sixth Schedule.

With the exception of death or resignation, should that MP thereafter deliberately fail to honour their binding obligation to the citizens for any other reason, it is humbly submitted that the MP has deliberately failed to preserve, protect and defend the constitution, in particular, Part VIII.

This deliberate failure to preserve, protect and defend the constitution would result in a deliberate fundamental breach of that MP’s oath, which expressly says they must preserve, protect and defend the constitution.

This deliberate fundamental breach of the oath must, by necessary implication, require that the MP vacate their seat.

This “vacate” approach does not, it is humbly submitted, collide with the “disqualification” criteria set out by the constitution in Article 48.

Nordin Salleh’s case distinguishable

The Supreme Court in Dewan Undangan Negeri Kelantan v Nordin Bin Salleh (1992) 1 MLJ 697, Gunn Chit Tuan SCJ, held: “Applying that test, I am of the view that the right claimed by the respondents in this case, i.e. the right to leave one political party and to join another, is an integral part of the fundamental right of association, or at least partakes of the same basic nature and character as the freedom of association so that the exercise of that right to leave one political party and join another is, in reality and substance, nothing but an instance of the exercise of the fundamental right of association guaranteed under Article 10(1)(c) of the constitution.”

In the very same case, Abdul Hamid Omar LP held: “The next point which we would direct our minds to is whether the right to stand as a candidate and to contest in an election is a statutory right regulated by the relevant statute – in this case, the Kelantan constitution – and the exercise of which right depends upon compliance with the conditions laid down therein. Clearly, the answer to this question is in the affirmative. In other words, no one has the fundamental right to be elected an MP.”

Therefore, for MPs, the right to stand in an election would be regulated by the federal constitution, in particular, Part VIII.

However, Abdul Hamid Omar LP went on: “Be that as it may, the position is clear in that upon his election to the legislature, the right to freedom of speech and expression in the legislature is guaranteed by Article 72(2) of the constitution and the right to continue as a member for the whole duration of the term of the legislature is likewise guaranteed by the constitution with this qualification, namely, that a member of the legislature may be disqualified upon the grounds specified in S6(1) of Pt I of the Eighth Schedule to the constitution, the provisions of which are inserted in every state constitution in our country.”

It is humbly submitted that the right to stand as a candidate and the right to remain as an elected legislature are two different matters regulated by different provisions and considerations.

In the Indian case of Mian Bashir Ahmad & Ors v The State AIR 1982 Jammu & Kashmir 26, acting chief justice Mufti Baha-Ud-Din said in Paragraph 29: “That takes me to the second contention of the learned counsel that the impugned section violates the fundamental right of the petitioner guaranteed under Article 19(1)(c), which is the right to form association or unions. His argument is that the impugned section abridges the petitioner’s right to withdraw his membership of the political party to which he belongs and, so viewed, it restricts his freedom of dissociation, which is an integral part of the freedom of association guaranteed under Article 19(1) (c). To me, it appears that the argument is not well-conceived. The impugned section does not prevent the petitioner from withdrawing his membership of a political party, but it only lays down that he shall not continue as a legislator if he withdraws his membership of the political party to which he is attached. Thus, what the impugned section really does is that it takes away the right to continue as a member of the legislature. Viewed in this light, the impugned section cannot be invalidated. For, there is no fundamental right in any person to continue as a member of the legislature. The right to stand as a candidate in an election and the right to continue as a member after such election is a statutory right that can be validly and reasonably taken away by a statute. (A) Jamuna Prasad Mukhariya v Lachhi Ram, AIR 1954 SC 686; (B) Sakhawant Ali v State of Orissa, AIR 1955 SC 166; (C) Ebrahim Sulaiman Sait v M.C. Mohammed, AIR 1980 SC 354 at p. 357.”

Therefore, based on the above, an elected MP cannot say that they have a fundamental right to continue as MP.

For this reason, there is a necessity to revisit this part of Nordin’s case. This is because the Supreme Court in that case had distinguished the case of Mian Bashir, and relied on the minority view as opposed to the majority view, which comprised the view by the acting chief justice elaborated above.

This is where the relevance of the oath comes into play.

It is humbly submitted that the right to continue as part of the legislature for the whole duration can only exist so long as the oath is not breached for the whole duration.

It is only axiomatic that when there is a fundamental breach of the oath, that right to continue as a member of the legislature comes to an end.

The crux of the issue is not so much the ability or inability to change political parties, but the requirement to “vacate” the seat when one does change political parties or alliances upon which they were voted in.

There is a difference between a law that states “you must vacate if you hop parties” and a deliberate breach of the oath, which indicates you no longer intend to protect, preserve and defend the constitution (Part VIII), thereby, as a result to vacate.

The former, going by Nordin’s case, seems to be unconstitutional. There is no such law at the federal level in any event.

Developing from that, it is humbly submitted that the crucial determining element or factor is the oath to defend what was represented. What was represented must necessarily include the political party, and even the political alliance, to which a vote was given.

The thrust of this argument reveals that there is no necessity for an “anti-hopping law” in the first place. The question of violation of freedom of association guaranteed by Article 10 does not arise. The basis of whether an MP should or should not remain for the whole duration depends on the continuation of the intention to carry out the oath and defend what was represented.

No room for argument that right to speak as legislator is violated

In the Indian Supreme Court case of K. Anandan Nambiar & Another v Chief Secretary, Government Of Madras & Ors (AIR 1966) SC 657, Gajendragadkar C.J. said in page 664: “We are, therefore, satisfied that on a close examination of the articles on which Mr Setalvad has relied, the whole basis of his argument breaks down, because the rights which he calls constitutional rights are rights accruing to MPs after they are elected, but they are not constitutional rights in the strict sense, and quite clearly, they are not fundamental rights at all. It may be that sometimes in discussing the significance or importance of the right of freedom of speech guaranteed by Article 105 (1) and (2), it may have been described as a fundamental right, but the totality of rights on which Mr Setalvad relies cannot claim the status of fundamental rights at all, and the freedom of speech on which so much reliance is placed is a part of the privileges falling under Article 105, and a plea that a breach has been committed of any of these privileges cannot, of course, be raised in view of the decision of the committee of privileges of the House of Commons to which we have just referred. Besides, the freedom of speech to which Article 105 (1) and (2) refers would be available to an MP when he attends the sessions of Parliament. If the order of detention validly prevents him from attending a session, no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded.”

Therefore, if there is a test in the courts that an elected MP has fundamentally breached his oath, and it is sought that the seat in question is to be vacated, no argument suggesting that the MP’s freedom of speech as a legislator is taken away can hold water, simply because freedom of speech in Parliament is based on the rules of parliamentary privilege, and not on one guaranteed under the constitution.

It is humbly submitted that the courts can determine and answer the question: if a particular MP has deliberately, fundamentally breached their oath, and if this is found to be in the affirmative, make the necessary orders to vacate the seat. Any citizen aggrieved by this breach should be able to bring forth this question to the courts, and the issue of locus standi would not arise. – March 6, 2020.

* Puthan Perumal reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.