SHAH ALAM - There is no issue with Dewan Rakyat Speaker Tan Sri Johari Abdul using his discretionary powers to decide to retain the seats of the six Bersatu MPs who previously defected to support the unity government.
Lawyer Mohamed Haniff Khatri Abdulla said Johari was not bound by the decisions made by Kelantan state assembly Speaker Datuk Mohd Amar Nik Abdullah and the Kuala Lumpur High Court, which ruled that the Nenggiri state by-election should proceed.
He added that the same principle was likely to apply to the position of the Selangor state assembly Speaker Lau Weng San in determining whether the Selat Klang state seat held by former Bersatu Selangor Leadership Council chief Datuk Abdul Rashid Asari should be vacated or not.
Furthermore, the decisions of the Kelantan state legislative assembly Speaker and the High Court could not be used as interpretations of Article 49A of the Federal Constitution, thus not binding the Speaker to take similar action.
"Another point is that many do not realise that the positions of the Parliament and state legislative assembly Speakers are political appointments. Any decision made by any Speaker is influenced by their political standing.
"So, in the context of the recent decision made by Johari, I believe it is still based on correct legal interpretation.
"However, Bersatu may have the opportunity to challenge the Parliament Speaker's decision in the Federal Court.
"This could happen if they file a judicial review application and the Federal Court later provides a different interpretation to resolve the confusion and conflict between the decisions of the Parliament Speaker and the state legislative assembly Speaker regarding the vacancy of the seats of the seven Bersatu representatives who defected," he told Sinar.
Article 49(A) states that a person shall not at the same time be a member of both House of Parliament, nor be elected to the House of Representatives for more than one constituency.
First, either (a), having been elected to the Dewan Rakyat as a member of a political party, resigns as, or ceases to be, a member of that political party; or (b), having been elected to the Dewan Rakyat otherwise than as a member of a political party (i.e. an independent candidate), joins a political party as a member.
Previously, the Nenggiri state seat held by Mohd Azizi Abu Naim who is also Gua Musang MP was immediately vacated.
This was after Amar declared the seat vacant, following the High Court's decision dismissing Azizi's interim injunction application.
Bersatu and Perikatan Nasional (PN) subsequently demanded that Johari make a similar decision regarding the six Bersatu MPs who defected to support Prime Minister Datuk Seri Anwar Ibrahim.
Meanwhile, Constitutional Law expert Associate Professor Dr Muhammad Fathi Yusof said the conflicting decisions made by the Parliament Speaker and the Kelantan state legislative assembly Speaker actually required clearer legal interpretation than the existing provisions.
He added that in such situations, only the Federal Court has the power to determine the legal interpretation regarding the status of the six Bersatu representatives.
"Looking at the implications of the Parliament Speaker's decision, I believe it will raise many complex questions.
"For example, does the Parliament Speaker's decision give room for any MPs to declare their change in support without referring to their party's constitutional provisions?
"If there are Umno MPs who switch support to opposition parties and no longer follow their party leader's directives in the future, will they also be given the privilege to retain their parliamentary seats just like the six Bersatu members who supported the government did?
"This is a complex issue that will trigger a crisis of trust in the Parliamentary Democracy system if it was left unresolved," he said.
Following Johari's decision, Fathi said he believed that Bersatu will take the matter to the Federal Court.
"Bersatu may only have the opportunity to demand the vacancy of the six parliamentary seats if the Federal Court's interpretation affects the status of the six representatives involved, like in the Kelantan DUN vs Datuk Nordin Salleh case on April 3, 1992.
"In that case, the Federal Court overturned the decision of the Kelantan state legislative assembly Speaker to strip Nordin of his position as the Sungai Pinang assemblyman after ruling that the Kelantan state government's enactment prohibiting party-hopping was unconstitutional," he said.