Shad Saleem Al Faruqi said the amendment to Article 49 of the Federal Constitution, by which the anti-hopping law came into force, was made with the intention of improving party discipline and curtailing the freedom of the MPs to move from one party to another.
“However, its great weakness is that it does not define what amounts to ‘ceasing to be a member of a political party’. Therefore, the party’s internal rules will apply to determine what causes cessation of membership,” he said.
He was commenting on an FMT report in which lawyer Andrew Khoo said the automatic resignation clause in the memorandum of understanding (MoU) among parties in the unity government may be legally suspect and unconstitutional.
Khoo, who is also the co-chair of the Bar’s constitutional law committee, said the clause effectively disallows MPs from these parties voting as they wish. He was doubtful whether the automatic resignation clause could withstand scrutiny in a court of law and whether it was legally enforceable.
He also said the clause deprives MPs of their right to vote based on their conscience.
Commenting on the MoU, Shad Saleem said it is improper for the unity government to declare that a parliamentary seat will become vacant and a by-election necessary if an MP does not adhere to party directions.
He said a political party has no power to make such a declaration as the amendment to Article 49A(3) of the constitution gives that power to the Dewan Rakyat Speaker.
He said what a party or a coalition can do is to frame internal rules about when a person ceases to be a member of the party.
These rules, he said, are open to judicial scrutiny but are likely to be upheld in the light of the explicit provision in Article 49A(1)(a)(ii) that a casual vacancy exists if a MP ceases to be a member of a political party.
In September, Pakatan Harapan component parties Amanah and DAP amended their party constitutions so that elected representatives who do not toe the party line on fundamental issues would automatically lose their membership.
At the time, DAP secretary-general Loke Siew Fook said the amendment was to safeguard the party from a “loophole” in the anti-hopping law which may result in MPs sacked by their party not having to vacate their seats.
Shad Saleem said it is for the party to report the matter of cessation of membership to the Speaker.
“It is then for the Speaker to determine whether the requirements of Article 49A(1) are satisfied and a by-election is triggered. In sum, the MoU is poorly drafted but can be rectified and constitutionalised under Article 49A(1)(a) (ii),” he said.
Former Bar president Salim Bashir said the MoU signed by the parties in the unity government is not legally binding as it is only an “understanding that signifies the commitments of parties” to the unity government.
“It need not contain legally enforceable terms,” he said.
On Friday, the parties that make up the unity government led by Prime Minister Anwar Ibrahim signed the MoU ahead of today’s confidence vote.
Aside from Anwar, who is the PH chairman, the leaders who signed the MoU were Barisan Nasional chairman Ahmad Zahid Hamidi, Gabungan Parti Sarawak chairman Abang Johari Openg, Gabungan Rakyat Sabah chairman Hajiji Noor and Warisan president Shafie Apdal.