LETTER | The speaker's conundrum

LETTER | Unsurprisingly, there has been significant backlash not only from Perikatan Nasional MPs but also from the Coalition for Clean and Fair Elections (Bersih) following the decision of the Dewan Rakyat speaker that six expelled members of Bersatu get to keep their parliamentary seats.

The perceived controversial ruling of the Dewan Rakyat speaker stems from an amendment to the Federal Constitution, which came into force on Oct 5, 2022, right before the 15th general election.

The most significant amendment is by the inclusion of a new Article 49A, which provides, among others, that a member of the House of Representatives shall cease to be a member of that House and his seat shall become vacant if:

(a) having been elected to the House of Representatives as a member of a political party, he resigns as or ceases to be, a member of that political party; or

(b) having been elected to the House of Representatives otherwise than as a member of a political party (i.e. an independent candidate), joins a political party as a member.

The exceptions are if the political party to whom the member belongs is dissolved or deregistered; if the member concerned resigns upon his election as a speaker; and if he is expelled as a member of his political party.

Similar amendments were also made to State Constitutions via Section 7A of the Eighth Schedule, ensuring the applicability of the anti-hopping law at the State level.

Major shortcomings

Although a step in the right direction, the constitutional amendments have two major shortcomings.

First, a member who is expelled from his political party is not required to vacate his seat in Parliament.

This allows a member to conduct himself in a manner that is so disruptive or prejudicial to the interests of his political party (for example, declaring support for another party) that the party is left with no other alternative but to expel the recalcitrant member, thus avoiding the triggering of the anti-party hopping provisions.

Second, the anti-party hopping provisions do not apply to members when their political party joins a coalition or leaves a coalition to join another. In this regard, it would be remembered that in the GE14, it was the changing of coalitions that led to the fall of the federal government.

At the GE15 held on Nov 19, 2022, the coalition known as the unity government formed the federal government, which is still in place to date. The opposition coalition, known as Perikatan Nasional, consists of Bersatu and PAS.

Then, a total of six members of Bersatu publicly declared their support and allegiance to the ruling government.

This led Bersatu to amend its party constitution so that party members would automatically cease to be members if they violated the party’s decisions, and its elected representatives must subsequently vacate their seats.

The Registrar of Societies allowed these amendments, but it is not clear whether these amendments had a retrospective effect. By right, such amendments should not have retrospective effect as they would serve to punish acts which were not punishable at the time of commission.

Nevertheless, pursuant to the amendments to Bersatu’s constitution, the six MPs ceased to be members of the party.

The question then became whether the six MPs’ seats are now vacated, in accordance with Article 49A of the Federal Constitution. The crux of the issue pertains to the phrases “cease to be members” and “expelled as a member of his political party”.

The former results in vacancy; the latter does not. There may be different interpretations taken, as seen in Kelantan.

Words and phrases

Strictly from a constitutional law perspective, since the Federal Constitution uses different words and phrases to cover different outcomes, there must then be a difference between “cease to be members” and “expelled”. It cannot mean one and the same thing.

When reading Article 49A(1) as a whole, which provides for an MP resigning, ceasing to be a member, or joining a political party after being elected as an independent, “cease to be members” appears to ascribe to it a certain amount of culpability on the part of the MP.

In other words, he ceases to be a member of a political party by his own actions or inactions, such as not paying the prescribed membership fees.

“Expelled”, on the other hand, connotes that it was the political party’s decision (and not the member’s) to oust the member from its party, for whatever reason. Seen in this light, it is clear that Bersatu’s action in revoking the membership of the six Bersatu members amounts to an “expulsion”.

In this regard, it does not matter if Bersatu uses the words “ceases to be a member” in its amended constitution, so as to appear to comply with the constitutional requirements. What is important is the actual conduct of the parties concerned.

In the case of the six MPs, they merely pledged allegiance to the ruling government. They never abandoned Bersatu. It is Bersatu who chose to revoke their membership.

This, it is submitted, amounts to an “expulsion” of a member, which falls under the exception to the anti-hopping laws provided in the 2022 constitutional amendment.

This episode reveals the loophole in the 2022 constitutional amendments that may be exploited by MPs. It is nevertheless up to the speaker to decide whether there is a vacancy. This is an unenviable task, sure to attract criticism whichever way he decides.

However, Article 49A as worded, appears to support the Dewan Rakyat speaker’s interpretation and decision.

The author is a senior lecturer at the Faculty of Law, Universiti Malaya.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.