KUALA LUMPUR - As authorised by Article 49A of the Federal Constitution, Dewan Rakyat Speaker Tan Sri Johari Abdul has decided correctly in declaring that six former Bersatu Members of Parliament (MPs) need not vacate their seats, said law expert Emeritus Prof Datuk Dr Shad Saleem Faruqi.
The Holder of the Tunku Abdul Rahman Chair, Universiti Malaya, said the Speaker cannot be acting arbitrarily as he possessed a controlled discretion and is not a rubber stamp of the party that informed him of the purported vacancies.
"Article 49A of the Federal Constitution says a dismissal, a sacking or an expulsion from a party is not the ground for a seat to fall vacant, and the Speaker has to see whether what has been done is actually in real effect an expulsion and not cessation.
"My personal view is influenced by my colleagues, especially my colleague at Universiti Malaya, Dr Sheila Ramalingam, where she wrote in the papers that ceasing to be a member appears to ascribe to the cessation, a certain amount of culpability on the part of the MP," he said in an interview on Bernama TV’s Bernama World programme today.
Shad Saleem said that in other words, an MP ceases to be a member of the party by his own actions or inactions, such as not paying the prescribed membership fee, failing to attend party meetings, resigning from the party or joining another party.
"So when it comes to expulsion from the party, that is the decision of the party. The party will give a notice and it will do an investigation. It will oust the member from its party due to some misconduct.
"Seen in this light, it appears that Bersatu's action in revoking the membership of the six Bersatu members is actually an expulsion, a constructive dismissal, not simply a case of ceasing to be a member," said Shad Saleem.
When asked about the potential implications of the Speaker's decision on party loyalty and stability of political parties in the country, Shad Saleem said he does not believe that politics or political parties are in any way radically endangered or affected by the decision.
"Personally, I do not support party hopping as it is a politically immoral practice because the action seeks to negate electoral results. At the same time, I don't see that this Bersatu Six situation will be a threat to the existence or functioning of political parties in Malaysia. Please do not forget that for 64 years, we had no anti-hopping law as it only came in 2022," he said.
When asked whether there is a precedent to support or contradict the action of the Speaker, Shad Saleem said there are no good precedents as the anti-hopping law is relatively new.
"The law is immensely open and how things will work out in the future may depend on a number of unpredictable factors. For example, the Prime Minister has said he is prepared to listen to proposals to re-amend the amendments. In other words, to provide some guidance as to what amounts to cessation of membership and what amounts to expulsion.
"So if the law is amended to make it clearer or if there is a judicial decision to explain ... then of course, we'll have to follow the law," he said.
On June 20, Bersatu submitted a notice to Johari, requesting that the six seats be declared vacant because the representatives have ceased to be members of Bersatu. The six MPs had earlier declared support for the Prime Minister.
The notice was submitted based on the provisions of Article 49A(1)(a)(ii) of the Federal Constitution, which states that a member of the House of Representatives shall cease to be a member of the House, and his seat shall become vacant when he ceases to be a member of a political party.
On July 11, Johari reiterated that the decision regarding the status of the six former Bersatu MPs remains, as the seats are not deemed vacant, causing opposition MPs to walk out of the Dewan Rakyat in protest.
The six MPs are Datuk Syed Abu Hussin Hafiz Syed Abdul Fasal (Bukit Gantang), Datuk Dr Suhaili Abdul Rahman (Labuan), Zahari Kechik (Jeli), Mohd Azizi Abu Naim (Gua Musang), Datuk Iskandar Dzulkarnain Abdul Khalid (Kuala Kangsar) and Datuk Dr Zulkafperi Hanapi (Tanjong Karang). - BERNAMA
The Holder of the Tunku Abdul Rahman Chair, Universiti Malaya, said the Speaker cannot be acting arbitrarily as he possessed a controlled discretion and is not a rubber stamp of the party that informed him of the purported vacancies.
"Article 49A of the Federal Constitution says a dismissal, a sacking or an expulsion from a party is not the ground for a seat to fall vacant, and the Speaker has to see whether what has been done is actually in real effect an expulsion and not cessation.
"My personal view is influenced by my colleagues, especially my colleague at Universiti Malaya, Dr Sheila Ramalingam, where she wrote in the papers that ceasing to be a member appears to ascribe to the cessation, a certain amount of culpability on the part of the MP," he said in an interview on Bernama TV’s Bernama World programme today.
Shad Saleem said that in other words, an MP ceases to be a member of the party by his own actions or inactions, such as not paying the prescribed membership fee, failing to attend party meetings, resigning from the party or joining another party.
"So when it comes to expulsion from the party, that is the decision of the party. The party will give a notice and it will do an investigation. It will oust the member from its party due to some misconduct.
"Seen in this light, it appears that Bersatu's action in revoking the membership of the six Bersatu members is actually an expulsion, a constructive dismissal, not simply a case of ceasing to be a member," said Shad Saleem.
When asked about the potential implications of the Speaker's decision on party loyalty and stability of political parties in the country, Shad Saleem said he does not believe that politics or political parties are in any way radically endangered or affected by the decision.
"Personally, I do not support party hopping as it is a politically immoral practice because the action seeks to negate electoral results. At the same time, I don't see that this Bersatu Six situation will be a threat to the existence or functioning of political parties in Malaysia. Please do not forget that for 64 years, we had no anti-hopping law as it only came in 2022," he said.
When asked whether there is a precedent to support or contradict the action of the Speaker, Shad Saleem said there are no good precedents as the anti-hopping law is relatively new.
"The law is immensely open and how things will work out in the future may depend on a number of unpredictable factors. For example, the Prime Minister has said he is prepared to listen to proposals to re-amend the amendments. In other words, to provide some guidance as to what amounts to cessation of membership and what amounts to expulsion.
"So if the law is amended to make it clearer or if there is a judicial decision to explain ... then of course, we'll have to follow the law," he said.
On June 20, Bersatu submitted a notice to Johari, requesting that the six seats be declared vacant because the representatives have ceased to be members of Bersatu. The six MPs had earlier declared support for the Prime Minister.
The notice was submitted based on the provisions of Article 49A(1)(a)(ii) of the Federal Constitution, which states that a member of the House of Representatives shall cease to be a member of the House, and his seat shall become vacant when he ceases to be a member of a political party.
On July 11, Johari reiterated that the decision regarding the status of the six former Bersatu MPs remains, as the seats are not deemed vacant, causing opposition MPs to walk out of the Dewan Rakyat in protest.
The six MPs are Datuk Syed Abu Hussin Hafiz Syed Abdul Fasal (Bukit Gantang), Datuk Dr Suhaili Abdul Rahman (Labuan), Zahari Kechik (Jeli), Mohd Azizi Abu Naim (Gua Musang), Datuk Iskandar Dzulkarnain Abdul Khalid (Kuala Kangsar) and Datuk Dr Zulkafperi Hanapi (Tanjong Karang). - BERNAMA