AUGUST 13 — The escalating conflict between PAS and Bersatu is no longer merely an argument between two political parties that have ceased to trust each other. 

It is rapidly becoming an institutional dispute over who possesses the authority to define Perikatan Nasional (PN), interpret its constitution and determine which component parties are entitled to participate in its decisions.

That distinction matters enormously.

PAS president Abdul Hadi Awang has claimed that Bersatu effectively removed itself from PN by seeking to form another political coalition. 

Hadi went so far as to argue that no formal announcement was necessary because Bersatu’s membership had automatically lapsed.

Yet PN chairman Ahmad Samsuri Mokhtar subsequently contradicted that interpretation. Samsuri stated categorically that, as things stood, Bersatu remained a component party of PN.

This contradiction is far more serious than it appears.

If the president of PAS can declare that Bersatu has effectively ceased to belong to PN while the chairman of PN maintains precisely the opposite position, PN has developed a constitutional problem inside its own political machinery.

And constitutional disputes have an inconvenient habit of becoming legal disputes.

Bersatu therefore possesses something that PAS should not underestimate: lawfare.

Lawfare, in this context, does not mean that Bersatu will necessarily prevail in court or before the Registrar of Societies. 

It means that Bersatu can use every institutional, constitutional and legal avenue available to contest decisions that it believes violate PN’s own rules.

Indeed, Bersatu has already signalled this direction by reportedly turning to the Registrar of Societies following Hadi’s assertion about its membership status.

The dispute can become even more complicated over Melaka.

PN secretary-general Takiyuddin Hassan has said that PN-BN negotiations concerning the Melaka election would exclude Bersatu.  But Bersatu has countered that excluding it from negotiations could itself violate the PN constitution.

This is precisely where PAS may have left Bersatu in the lurch politically while simultaneously handing it the instruments with which to fight back institutionally.

The first battlefield is the PN constitution itself.

Who has the authority to interpret it? Can the president of one component party determine that another component has automatically ceased to be a member? 

Does such a determination require consideration by PN’s governing bodies? Must Bersatu be formally notified? Is there an appeal mechanism? And what rights does a component party retain while its membership remains disputed?

These are no longer questions of political rhetoric. They are questions of organisational procedure.

The second battlefield is the Registrar of Societies.

Once competing factions begin referring disputes to the RoS, internal political disagreements become questions about whether the registered organisation is operating according to its constitution.

That creates uncertainty for everybody.

PAS may believe that its numerical and organisational strength allows it to dominate PN. Analysts have indeed interpreted Hadi’s pressure on Bersatu as reflecting PAS’s growing dominance within the coalition.  

But political dominance and constitutional authority are not necessarily synonymous.

A large component party cannot automatically rewrite the meaning of a coalition constitution merely because it has become the strongest party within that coalition.

The third battlefield could eventually become the courts.

Should Bersatu believe that decisions affecting its membership, participation or electoral rights have been taken improperly, litigation could become an option, subject of course to the exact wording of PN’s constitution and Malaysian law.

This would be politically damaging even before any judgment was delivered.

Imagine PN approaching another state election while its component parties are simultaneously arguing about whether Bersatu legally belongs to PN, whether PAS can negotiate seats without it and whether decisions made by PN institutions are constitutionally valid.

Every candidate selection could become controversial. Every seat negotiation could be questioned. Every coalition announcement could potentially generate another dispute.

BN should therefore pay especially close attention.

If BN develops deeper electoral cooperation with a PAS-dominated PN, it may discover that it is negotiating not with a cohesive coalition but with an organisation whose internal constitutional arrangements are being contested by one of its own founding parties.

That substantially increases political risk.

The contradiction between Hadi and Samsuri demonstrates the underlying problem perfectly. Hadi says Bersatu is effectively outside. Samsuri says Bersatu remains inside.

Both propositions cannot comfortably govern PN simultaneously.

More importantly, Bersatu does not have to defeat PAS electorally to cause PAS enormous difficulties. It merely has to challenge the legitimacy of decisions from which it believes it has been improperly excluded.

Lawfare can slow negotiations. It can generate injunction applications or other proceedings where legally available. It can force documents and constitutional provisions into public scrutiny. 

It can keep disputes before the RoS and potentially the courts. Above all, it can undermine PN’s attempt to project itself as a government-in-waiting.

This is the paradox confronting Hadi-led PAS.

The stronger PAS becomes inside PN, the more carefully it must exercise that strength. Otherwise, dominance begins resembling unilateralism.

Bersatu may have been weakened politically. It may even find itself increasingly marginalised as PAS explores arrangements with BN and other Malay-based parties.

But a wounded political organisation is not necessarily a powerless organisation.

It can fight through institutions.

It can fight through the PN constitution.

It can fight through the Registrar of Societies.

And, where a legally sustainable cause of action exists, it can fight through the courts.

PAS may therefore discover that leaving Bersatu in the lurch does not dispose of the Bersatu problem.

It may merely transform a political quarrel into a constitutional and legal one.

For BN, this should be a warning before entering too deeply into any arrangement with PN. 

A coalition that cannot conclusively establish who belongs to it, who speaks for it and who possesses the authority to interpret its own constitution is hardly demonstrating the institutional coherence required to govern Malaysia.

Hadi-led PAS may believe that Bersatu has been cornered.

But Bersatu still possesses one potentially disruptive weapon: lawfare.

And the more PAS attempts to exclude it without an unambiguously settled constitutional process, the more opportunities Bersatu may have to use it.

* Phar Kim Beng is a professor of Asean Studies and a director at the Institute of International and Asean Studies, International Islamic University Malaysia.

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.