Nik Ahmad Kamal Nik Mahmood, head of the Council of Professors’ law cluster, said MPs would not trigger the anti-hopping law if they were to retract support for the prime minister without leaving their parties.
This would be similar to the action of five Bersatu MPs who declared support for Anwar Ibrahim without exiting the party, allowing them to keep their seats.
“There are only two situations where the seats will not be vacated. First, if the MP is dismissed from his party, and secondly, if the hopping involves the whole party joining another bloc,” Nik Kamal told FMT.
Kedah menteri besar Sanusi Nor had said there was nothing wrong with the opposition taking advantage of a loophole in the anti-hopping law to get government MPs to back Perikatan Nasional.
He argued that if the five Bersatu MPs could back Anwar, government backbenchers should be able to retract their support for the prime minister.
However, last Friday, Zahid said any decision to switch support for the prime minister must be made en bloc by the party for it to be valid.
Political analyst Oh Ei Sun said the anti-hopping law gave the Dewan Rakyat Speaker the authority to decide which MPs would get to take advantage of the loophole in the law.
Oh, of the Singapore Institute of International Affairs, said that in principle, any MP currently backing Anwar could retract support for him without quitting their party, to avoid triggering the anti-hopping law.
“But the law actually puts the power of deciding whether the concerned MPs’ seats have been vacated in the hands of the Speaker.
“So the Anwar-appointed Speaker could actually determine that those who switch support to Anwar could still keep their seats, but that those who retract support from Anwar would lose their seats.”
Article 49A of the Federal Constitution, commonly known as the anti-hopping law, states that an MP’s seat will be vacated when a sudden vacancy “is established by the Speaker”, under certain conditions.
The conditions are if an MP resigns from their party, ceases to be a member of their party, or joins another political party. If their party dissolves, is deregistered or sacks them, they do not have to vacate their seats.
Nik Kamal said the Speaker could only decide based on information provided by the parties. For example, if an MP resigned from their party, the latter would inform the Speaker of the resignation and that the seat was thereby vacated.
But the Speaker could decide that the seat had not been vacated, he said, citing the case involving four Sabah MPs formerly of Bersatu.
Naturally, he said, the Speaker’s decision could be questioned and brought to court, as was being done over the decision regarding the four Sabah MPs.
“It is because it is the Speaker’s decision alone that decides the issue, so there could also be a question of whether the Speaker has made a right decision or not.
“I think what is needed now is actually the interpretation– what does an en bloc movement or en bloc transfer constitute?
“Does it mean everyone in the party, or is a certain percentage of MPs switching support accepted as an en bloc movement? That has not been resolved because the current provisions do not provide details on this.”