Explainer: Why the 6 Bersatu MPs who support Anwar as PM don’t need to vacate their seats despite Anti-Hopping law
Almost one year after a series of controversial ‘defections’ involving Bersatu Members of Parliament (MP) took place in the Dewan Rakyat, the status of the so-called ‘Bersatu Six’ has finally been clarified by Speaker Tan Sri Johari Abdul.
This is after the 6 MPs, Datuk Suhaili Abdul Rahman (Labuan), Datuk Syed Abu Hussin Hafiz Syed Abdul Fasal (Bukit Gantang), Zahari Kechik (Jeli), Mohd Azizi Abu Naim (Gua Musang), Datuk Iskandar Dzulkarnain Abdul Khalid (Kuala Kangsar), Datuk Dr Zulkafperi Hanapi (Tanjong Karang) had announced their support for Prime Minister Datuk Seri Anwar Ibrahim while claiming to still be loyal to Bersatu, seemingly taking advantage of a ‘loophole’ in the Anti-Hopping Law.
On 10 July, Johari announced that the 6 MPs need not vacate their seats despite Bersatu already amending the party’s constitution to adapt to the Anti-Hopping Law. Specifically, the Dewan Rakyat Speaker confirmed that 5 of the 6 MPs didn’t need to vacate their seats and didn’t make a decision about Labuan MP Dr Suhaili because the matter had been brought to court and he didn’t want to disrupt the interests of those involved in the case.
So, why were these Bersatu MPs seemingly unaffected by the Anti-Hopping Law? Well, join us as we delve into the relevant laws on the matter below.
The Dewan Rakyat Speaker decides on the vacancy of seats as per Article 49A of the Federal Constitution
The Anti-Hopping Law as established under Article 49A(3) of the Federal Constitution prescribed that should the Dewan Rakyat Speaker receive a written notice from any member of the House of Representatives on the occurrence of a casual vacancy among the members of the House of Representatives, the Speaker shall establish that there is such a casual vacancy and notify the Election Commission accordingly within 21 days from the date he received the written notice.
Accordingly, Johari received a written notice of vacancy regarding the 6 Bersatu MP seats on 20 June as they have ceased to be a member of the party. This is in line with Article 49A(1)(a)(ii) of the Federal Constitution which prescribed that MPs who ceased to be a member of the political party after being elected to the Dewan Rakyat as a member of the political party shall cease to be an MP and their seat shall become vacant immediately on a date of casual vacancy being established by the Speaker.
It is worth noting that the 6 Bersatu MPs only ‘ceased’ to be Bersatu members after the party had amended its party constitution to include 3 sub-clauses. Most notably, Articles 10.4 and 10.5 of the new Bersatu party constitution prescribed that any Bersatu members who are Dewan Rakyat members or state legislative assembly members who do not comply with any orders issued by the party’s supreme council are considered to have their membership from Bersatu ceased immediately.
Johari found the amended Bersatu party constitution goes against the Federal Constitution
Ultimately, these new sub-clauses proved to be decisive in the Speaker’s decision not to vacate the 6 Bersatu MP seats as Johari found that they deny the rights of the MPs which are enshrined under the Federal Constitution, Parliament Standing Order and the House of Parliament (Privileges and Powers) Act 1952.
Johari in a letter dated 9 July to Bersatu Chief Whip Datuk Seri Ronald Kiandee further elaborated that the 3 laws ensure privileges, freedom of speech, debates and voting of MPs.
Therefore, the amended Bersatu party constitution goes against the Federal Constitution and accordingly, the 6 Bersatu MPs do not need to vacate their seats as Bersatu declaring them ceasing to be a member of the party is invalid and they also didn’t resign from the party; 2 of the elements required for the Anti-Hopping Law to come into force.
Besides that, the 6 MPs also wouldn’t lose their seats should their parties expel them as per Article 49A(2)(c), which some, such as Communications Minister Fahmi Fadzil had argued the Bersatu party constitution did with their recent amendment. In other words, Bersatu was argued to have fired the MPs rather than making them cease to be members; hence they are arguably exempt from the Anti-Hopping law.
Penang High Court’s decision on 4 Bersatu ADUNs who were removed from their seats by the Penang DUN Speaker
A similar case to the 6 MPs was the 4 Bersatu Penang State Legislative Assembly Members (ADUNs) who were removed from their seats as per the Anti-Hopping law enshrined in Article 14A of the Penang State Constitution.
Previously in December 2022, the Federal Court had ruled that the Anti-Hopping law in the Penang State Constitution is consistent with the Federal Constitution and rejected the 4 Bersatu ADUNs, Zulkifli Ibrahim (Sungai Acheh), Dr Afif Bahardin (Seberang Jaya), Khaliq Mehtab Mohd Ishaq (Bertam) and Zolkifly Lazim (Telok Bahang) bid to challenge the law.
However, in 2023, the Penang High Court ruled that 2 of the former ADUNs, namely Khaliq and Zolkifly, did not lose their seats in the Penang DUN because Penang’s Anti-Hopping law didn’t apply to them.
For context, Article 14A of the Penang State Constitution prescribes that an ADUN shall vacate their seat if, having been elected as a candidate of a political party, they resign or are expelled from the party, or if having been elected otherwise than as a candidate of a political party, they join a political party.
In Khaliq and Zolkifly’s case, the Penang High Court found that while they had contested using the PKR logo, they were not PKR members, but instead Bersatu members. Moreover, given that they never left Bersatu, Article 14A of the Penang Constitution didn’t apply to them.
Hence, the High Court ruled that they remained ADUNs between May 2018 and June 2023 when the DUN was dissolved for the Penang State Election. Accordingly, they were entitled to all financial payments due to them until dissolution.
Similarly, when applied to the 6 Bersatu MPs who support Anwar as PM, it can be argued that they too didn’t invoke the Anti-Hopping law as they never left Bersatu. Hence, like the 2 Bersatu Penang ADUNs, they do not need to vacate their seats as they didn’t invoke any elements of the Anti-Hopping law as prescribed by Article 49A of the Federal Constitution.
Moving forward, it’d be interesting to see whether Bersatu will challenge the Speaker’s decision in court and what the court’s interpretation of the laws would be. Regardless, given such apparent ‘loopholes’ in the current iteration of the Anti-Hopping Law, it is now up to the lawmakers themselves to exert political will to improve the provisions; something we’re sure that either side of the political aisle can agree with.
For more insights into the Malaysian legal system such as this, do make sure to follow us on Facebook and Instagram or visit our official website. You can also read our articles on the popular Malaysian news aggregator app Newswav here.
