Law experts say anti-hopping law still needs fine tuning after kerfuffle over Bersatu MPs backing PM Anwar

KUALA LUMPUR, Nov 9 — The recent fuss over four Opposition MPs openly supporting the leadership of Prime Minister Datuk Seri Anwar Ibrahim shows the anti-party hopping law has gaps, some legal experts say.

Some have said that despite the Bersatu MPs voicing their support for a party leader from the opposite side, there is not much the party can do.

According to legal expert Datuk M. Reza Hassan, Article 49A(2) of the Federal Constitution states that a member of Parliament shall not cease to be one if his political party is dissolved, his resignation from his political party is due to his appointment as Speaker or his expulsion from that political party.

“In this instance, the two Opposition MPs who had recently given their support to PMX... this does not fall within the ambit of Article 49A(2). As such, they are still MPs.”

It is obvious then that there is a lacuna (or gap) in this anti-party hopping provision.

“It is therefore observed that the spirit of this law (which is to prevent MPs switching allegiance mid-term) is infringed,” Reza told Malay Mail.

His view is that, at best, the federal Opposition coalition Perikatan Nasional (PN) can only publicly admonish the MPs.

When asked if a statutory declaration can work in this situation, Reza said incidents in the past have proven that it does not help.

“Not really. We’ve had a plethora of statutory declarations previously, signed by both parties of the political divide. And this does not help at all.

“But I’m quite keen to see how the courts will interpret Article 49A(1)(a)(ii). It seems that an MP will lose his seat if he ‘ceases to be a member of the political party’. So, if an MP is sacked, he would then lose his seat. This is in contradiction with Article 49A(2)(c),” he said.

Article 49A(1)(a)(ii) states that subject to the provisions of this Article, a member of the House of Representatives shall cease to be a member of that House and his seat shall become vacant immediately on a date a casual vacancy is established by the Speaker if he was elected to the House of Representatives as a member of a political party and he ceases to be a member of the party.

While ordinary citizens have the right to choose who they want to support, this does not necessarily apply to MPs.

“When it comes to MPs, Article 49A was enacted to prevent uncertainty. If the MP was elected on the basis that he is a member of that party, then he should remain so during his tenure. If he is unwilling to toe the party line, then he must resign.

“The seat would then be declared vacant. After all, the rakyat voted the MP to represent their collective voices based on the party’s manifesto,” he said, adding that at the end of the day, it seems that with these uncertainties, the rakyat is always at the losing end.

National Council of Professors’ Governance, Law and Public Management Cluster chief professor Nik Ahmad Kamal Nik Mahmood said this may be one of the weaknesses of the new law.

“When presenting the law, the former Minister of Law admitted that the new law is not fault-free. There are loopholes, and one of them is when an MP acts against the wishes of his party, and the party is divided on whether to bring him before the party’s disciplinary committee.

“If the MP is dismissed, he does not lose his seat. Instead, the party loses an MP,” Nik Ahmad explained.

He suggested that if PN has a clause in its constitution that provides, among others, that an MP automatically loses his membership by resignation if he expresses support for another party or has acted to the detriment of his party, the MP will automatically lose membership via resignation, and therefore will also lose his seat.

“To make such a clause effective, all MPs should provide a pre-signed letter of resignation. Nonetheless, whether such a clause is consistent with the new law on party hopping remains a question.”

Another possibility is to require all party MPs to sign an agreement of loyalty to the party and resign upon acts or statements made contrary to the interest of their political party, he added.

Nusantara Academy for Strategic Research senior fellow Azmi Hassan said what transpired was not really the result of a loophole because when they established the anti-party hopping law, the lawmakers knew that this can and could happen. — Picture by Saw Siow Feng

Nusantara Academy for Strategic Research senior fellow Azmi Hassan, on the other hand, said what transpired was not really the result of a loophole because when they established the anti-party hopping law, the lawmakers knew that this can and could happen.

In this case, he said Bersatu cannot do much as they cannot fire or force the the MPs to quit.

If Bersatu as a party disowned the particular two MPs, they would not lose their seats because the anti-party hopping law is silent on this.

“In Singapore for example it’s very strict or I would say, very clear. When a party member gets sacked or dismissed by the party for whatever reason, automatically the member of Parliament loses his seat, but not in our case. “

Subang MP Wong Chen from PKR said whether or not a “hopping” event has taken place and therefore needs to have a new by-election will largely depend on the party’s constitution of the MP involved.

Subang MP Wong Chen from PKR said whether or not a ‘hopping’ event has taken place and therefore needs to have a new by-election will largely depend on the party’s constitution of the MP involved. — Picture by Yusof Mat Isa

“If an MP is sacked by the party, there is no need to have a by-election, but if an MP seriously breached the party’s constitution and as a result is automatically terminated, then a by-election will take place.”

“(However) in the current situation regarding the two Bersatu MPs, we are not sure what are the next steps of the party,” Wong said.

Wong spoke to Malay Mail before two more Bersatu lawmakers, Gua Musang MP Mohd Azizi Abu Naim and Jeli MP Zahari Kechik, declared their support for Anwar.

Mohd Azizi did so on Tuesday and Zahari, last night.

Kuala Kangsar MP Datuk Iskandar Dzulkarnain Abdul Khalid was the first to throw his backing for Anwar on October 12, followed by Labuan MP Datuk Suhaili Abd Rahman on October 30.

All four said they did so to ensure that federal funds would continue to flow for the welfare of their constituents.

Bersatu secretary-general Datuk Seri Hamzah Zainudin has since said Suhaili is suspended as a party member for six years and Iskandar Dzulkarnain for four years, for insubordination.

Hamzah added that the party will take control of the Kuala Kangsar and Labuan divisions.

No disciplinary action have been announced against Mohd Azizi and Zahari at the time of writing.

Bersatu’s Gua Musang MP Mohd Azizi Abu Naim declared his support for Anwar on Tuesday. — Picture via Facebook/Mohd Azizi Abu Naim