KUALA LUMPUR, Dec 12 — There has been great buzz over the weekend surrounding Sabah Chief Minister Datuk Hajiji Noor’s announcement of a mass exodus of lawmakers at both state and federal level from Bersatu, spurring speculations on whether or not another election would be called before the dust has even settled down from the November 19 national polls.
To clear the air on this matter, Malay Mail spoke to law experts familiar with Malaysia’s Constitution, including the newest legislation to prevent party jumping.
No violation of Article 49A
According to Sabah-based constitutional lawyer Datuk Tengku Fuad Tengku Ahmad, there has been no violation of Article 49A of the Federal Constitution, better known as the anti-party hopping law provision.
The reason is because the six Sabah MPs in the spotlight who won in the recently-ended 15th general election had contested directly under the banner of Sabah Gabungan Rakyat Sabah (GRS) and not as candidates of any of the coalition’s components.
GRS consists of Parti Solidariti Tanah Airku (STAR), Sabah Progressive Party(SAPP), Parti Bersatu Sabah (PBS), United Sabah National Organisation (Usno), and before Hajiji’s shockwave announcement, Parti Pribumi Bersatu Malaysia better known as Bersatu.
“GRS here is a party under whose logo the MPs contested and is the political party to which they were elected,” Tengku Fuad told Malay Mail when contacted yesterday.
He explained that the provision refers to a person elected “as a member of a political party” based on the symbol or logo of the party used on the ballot paper.
In this case, the symbol of GRS, which is the outline of Mount Kinabalu and the party letters within.
“Accordingly, Article 49A of the Federal Constitution does not apply. There is no disqualification of the four GRS MPs,” Tengku Fuad said.
Article 49A addresses that a member of a political party who was elected to Parliament shall cease to be a member of the House of Representatives and that member's seat shall become vacant immediately if such a member resigns his or her party membership or ceases to be a member.
Tengku Fuad also said that GRS’ constitution allows individuals to be registered as direct members.
“Actually, it is part of GRS’ raison d’etre. Political parties, non-governmental organisations, charities and individuals can be members of GRS.
“GRS also permits individual membership of more than one party. For example an individual can be a party member of both GRS and PBS,” he said, adding that STAR had been both a member of GRS and the Perikatan Nasional (PN) coalition during GE15.
Hajiji’s position as chief minister
Tengku Fuad said Hajiji’s position as Sabah chief minister is not shaken by the mass exodus of the GRS members from Bersatu.
“This is because the GRS-Barisan Nasional coalition remains intact with 46 assemblymen in addition to the confidence and supply commitment of the seven Pakatan Harapan assemblymen to support Hajiji as chief minister,” he explained.
Malay Mail understands that three assemblymen of Parti Kesejahteraan Demokratik Masyarakat and one independent stand in firm support of the GRS-BN government.
“Based on these numbers, Hajiji clearly has the support of 57 assemblymen — a majority in the 79-member assembly and thus continues to enjoy the confidence of the Assembly in accordance with Article 6(3) of the Sabah Constitution,” said Tengku Fuad.
The federal anti-party hopping law also does not affect the 15 assemblymen as Sabah has yet to enact a state version of it.
Ambiguity
But Sabah Law Society president Roger Chin holds a different view from Tengku Fuad.
He said the operative words in Article 49A are “member of a political party”.
“What these words mean are far from clear. Does a political party mean an individual political party like Umno and PKR or does it also include a registered political coalition party like BN or GRS?
“It has been reported that the GRS’ constitution allows for the coalition to operate as a political party, though currently its membership is based on political parties,” he said in a statement.
“If this is correct, then are the MPs members of GRS or only the party?“ Chin asked.
He added that there is not enough information available to determine this issue one way or another.
“The anti-hopping law is designed to prevent persons who are elected under the ticket of a political party from crossing over to another political party after winning a seat.
“However, what if the persons cross over from one coalition party to another coalition party but still remain in the same coalition?
“Was the law also intended to stop this? It must also be recognised that Malaysia has historically seen coalitions governing rather than a single majority party ruling by itself,” said Chin.
What if the MPs did not resign?
Former de facto law minister Datuk Seri Wan Junaidi Tuanku Jaafar said the six Sabah MPs in question will not lose their seats as long as they remain in Bersatu.
“It doesn’t matter which coalition the MPs belong to. Coalition is not important in the law. The law speaks about the person coming out from one party to become independent or become another member of another party.
“So it doesn’t make any difference whether he or she belongs to the government coalition and stays in the coalition.
“If they didn’t tender their resignation and stay as a member of Bersatu, nevertheless not supporting Bersatu or supporting it but continuing to support anybody else or any other coalition, it doesn’t make any difference — they will not lose their seats,” the former Santubong MP told Malay Mail when contacted yesterday.
Wan Junaidi had headed the parliamentary committee that drafted the anti-party hopping law.
But he also pointed out that in the event the MPs have been forced to leave the party, even on those grounds, they will not lose their seats as well.
“Because we made it very clear that if a person is expelled from the party, he or she will not lose the seat.
“Therefore, support alone does not reflect any person defecting from the party because the law governs only the going out from a party where he or she is registered as member,” he added.
So in the Sabah context, Wan Junaidi said if the MPs do not resign and if Bersatu moves to expel them, they would keep their parliamentary seats and there would not be any need for fresh elections.
“If I were them, I won’t want to resign. Why should I resign? Let them be expelled,” he said.
Wan Junaidi also explained that the mechanism that sets in place the motion for the next move has yet to happen at this point in time.
“Mechanism is only when the Parliament sits on December 19. There may be one MP who writes a letter to the Speaker and says, ‘so and so has already left Bersatu’.
“Now if that happens, the Speaker has 21 days to establish whether the MP has already left the party or not.
The method of establishing is enquiring into Bersatu whether or not they have already left. Second is to check with the Registrar of Societies whether they have deregistered the four MPs as a member of a certain party.
“It must be established within 21 days. After that whatever the result the Speaker finds, the Speaker will write to the Election Commission to say that these people had already left the party and then 60 days from the date of the letter signed by the MP who complained about the four MPs who left to the Speaker, election must be held within the 60 days,” said Wan Junaidi.
He added that it was a Constitutional duty of the Speaker to establish within 21 days.
Why 21 days?
Wan Junaidi said it was a lesson learnt from India where a certain Speaker had placed a complaint letter into a desk drawer and forgot to mention it to anybody.
“So people didn’t know about it, the members were still sitting down there even though there was a letter of complaint.
“So that’s why our Constitution was done in such a way that we gave constitutional responsibilities to the Speaker.
“If the Speaker does not do that, the Speaker ought to be removed for failing to protect the Constitution,” he said.
On December 10, Hajiji announced that the leaders of Sabah Bersatu had unanimously quit the party and would be known as GRS until it forms a new local party.
He did not name the leaders involved.
They were speculated to take over a Sabah-based party. Parti Harapan Rakyat Sabah or Parti Gagasan Rakyat Sabah were among the names that came up.
Four of the six GRS MPs are: Minister in the Prime Minister’s Department (Sabah and Sarawak) Datuk Armizan Mohd Ali (Papar), Tourism Arts and Culture Deputy Minister Khairul Firdaus Akbar Khan (Batu Sapi), Datuk Jonathan Yasin (Ranau), and Datuk Matbali Musah (Sipitang).
The other two GRS MPs are Deputy Chief Minister II Datuk Seri Jeffrey Kitingan (Keningau) and Lo Su Fui (Tawau).
