IT is unconstitutional for any party to stop an elected representative from voting against a confidence motion or bill in the Dewan Rakyat, constitutional experts have said.

Lawyer Haniff Kathri Abdulla and academic Prof Wong Chin Huat said a clause to that effect in the unity government agreement was invalid.

They added that any action to bar an MP from voting against a bill can be considered a crime.

Haniff stressed that there was a clear provision in the penal code that stated if any MP is forced to follow matters that are not stipulated in the Federal Constitution, it could lead to criminal investigation.

“I want to advise all party presidents who have signed the agreement, don’t forget, there is a provision in section 124 of the penal code.

“If Dewan Rakyat members are forced to follow matters that have not been included in the Federal Constitution, nor have they been amended in the party’s constitution, then it may expose you, the party leaders, to a criminal investigation,” Haniff said.

He said if found guilty, a person could be jailed for seven years.

“Anyone who influences or prevents a member of the House of Representatives from doing something that he has the power to do, is considered to be committing a crime, punishable by up to seven years in prison,” he added.

On Friday, the Anwar Ibrahim-led unity government inked a memorandum of agreement stating all government MPs support the prime minister and his administration in any confidence motion or bill in the Dewan Rakyat.

According to the agreement which cites article 49A of the Federal Constitution, any MP who votes against Anwar’s leadership or bills must automatically vacate his or her seat.

The party whips in the coalition must at all times ensure their party lawmakers adhere to the conditions stipulated in the agreement, which effectively ensures the motion of confidence on Anwar’s leadership is passed without a glitch today.

The agreement was signed by Pakatan Harapan (PH), Barisan Nasional (BN), Gabungan Parti Sarawak (GPS), Gabungan Rakyat Sabah (GRS) and Warisan.

However, it was disputed by Perikatan Nasional chairman Muhyiddin Yassin, who said lawmakers should be free to air their views without the threat of losing their position.

He added that the agreement would be irrelevant in any case, if Anwar has the numbers to back his administration.

The Pagoh MP and Bersatu president said the caveat of automatic resignation from the House was unconstitutional.

“I have never seen laws like this, and this could be applied if it touches on the anti-party hopping law, but it does not.

“There are some views saying that this agreement is unconstitutional and illegal,” Muhyiddin said.

Incorrect interpretation

Meanwhile, Wong of Sunway University said that the interpretation used by the government in defending the move was incorrect.

He said the agreement has no power to force MPs to vacate their seats if they decide to vote against the confidence motion or any bill.

“To result in the vacancy of the seat, parties have to amend party constitution to make ‘disobedience’ a basis of termination from the party, or equivalent to resignation, or other powerful binding instruments on the sides of the law that can lead to the same effect,” Wong said.

To this, he added, only DAP and Amanah have amended their constitution, while BN has other instrument to act against a “rogue” MP.

“As such, even without the agreement, 78 MPs from DAP (40), Amanah (8) and BN (30) are bound by the decisions of their respective parties.

“Yet, even with this agreement, 66 other MPs – PKR (31), GPS (23), GRS (6), Warisan (3) and Upko (2) – can still reject Anwar in a vote of confidence and not face a by-election.

“So, can this agreement change the result of the vote of confidence on Monday? The answer is clearly no,” Wong further said.

According to Wong, former prime minister Muhyiddin can still persuade any of these MPs who want to challenge the constitutionality of the party’s restrictions on freedom to vote, to reject Anwar today.

“If Anwar fails, then he has already promised to step down, and Muhyiddin Yassin can get a chance to form a new government.

“On the other hand, if Anwar succeeds in proving his majority, can Muhyiddin accept this decision and earnestly lead PN as a credible opposition to win the hearts of the people in 2027?” he asked.

On Saturday, Masjid Tanah MP Mas Ermieyati Samsudin claimed that the agreement was a prelude to dictatorship, adding that it was also illegal, dangerous and unenforceable.

The Bersatu Srikandi vice chief said clause 4 of the agreement stated that all MPs are required to vote or support the prime minister in motions relating to confidence votes, supply bills or procedural motions with effect on the federal government’s stability.

“According to clause 4(b), if any government MP fails to vote as instructed, they will be deemed to have vacated their parliamentary seat based on article 49A of the Federal Constitution,” the former deputy minister in the Prime Minister’s Department (parliament and law) said.

Responding to this, Deputy Prime Minister Fadillah Yusof said allegations that the co-operation agreement to formalise the unity government is unconstitutional and will lead to dictatorship are untrue.

According to Fadillah, the agreement clearly states that all component parties in the government can still negotiate with each other to reach a consensus.

He said opposition parties who thought otherwise can take the matter to court. – December 19, 2022.