The Malaysian Bar reads with great concern Clause 4 of the Memorandum of Understanding (“MoU”) between the five political parties — Pakatan Harapan, Barisan Nasional, Gabungan Parti Sarawak, Gabungan Rakyat Sabah, and Parti Warisan — which spelt out a deeming provision that could result in the resignation or expulsion of Members of Parliament (“MPs”) should they not vote in favour of motions relating to matters directly affecting the confidence of the chosen government of the day.
Clause 4 of the MoU appears to be overextending the intention and wordings of Article 49A of the Federal Constitution (“FC”). Article 49A of the FC provides that:
(1) Subject to the provisions of this Article, a member of the House of Representatives shall cease to be a member of that House and his seat shall become vacant immediately on a date a casual vacancy is established by the Speaker under Clause (3) if—
(a) having been elected to the House of Representatives as a member of a political party—
(i) he resigns as a member of the political party; or
(ii) he ceases to be a member of the political party; or
(b) having been elected to the House of Representatives otherwise than as a member of a political party, he joins a political party as a member.
(2) A member of the House of Representatives shall not cease to be a member of that House pursuant to this Article only by reason of—
(a) the dissolution or cancellation of the registration of his political party;
(b) his resignation from the membership of his political party upon election as a Speaker; or
(c) the expulsion of his membership of his political party.
(3) Whenever the Speaker receives 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 under this Article, the Speaker shall establish that there is such a casual vacancy and notify the Election Commission accordingly within twenty one days from the date he received the written notice.
Clause 4 of the MoU is clearly premised upon the respective constitutions of each political party being a signatory of the MoU while providing for an eventuality that would result in a resignation (which is a voluntary action) or an expulsion (which is an involuntary action) should an individual MP within its party not vote for a motion connected to the confidence of the government of the day, all in the interest of achieving the intentions in the MoU.
This requires express provisions within the constitutions of each political party to enable the deeming provision to be triggered and for it only to take effect after the due process of an internal disciplinary action has been taken. Only then can any notification to the Speaker of Parliament be made.
The current Anti-Hopping Law (“AHL”) was designed to meet straightforward challenges known to Malaysians at the time but did not address complex issues such as that presented in the MoU. Hence, there is a likely overreach because one is reading more into the wording of Article 49A of the FC than what was originally intended and envisaged by Parliament. The extensive over-explanation within Clause 4 of the MoU appears to reflect this overreaching effect.
One of the concerns put forward by the Malaysian Bar to the Prime Minister’s Department (Parliament and Law) prior to the introduction of the AHL through amendments to the Federal Constitution was the possible abuse that could arise on purported resignations and expulsions. What if political parties put in place a resignation or expulsion process within their own constitutions that would circumvent due democratic process? It was advocated by the Malaysian Bar that the AHL should include provisos to not permit automatic expulsions, but that these be postponed to give MPs sufficient legal redress through the Courts to determine the legality of such calls being made by political parties. This is because the democratic process must always be preserved.
The MoU appears to be a hybrid between a Confidence and Supply Agreement (“CSA”) and a Coalition Agreement (“CA”). A CSA is where a minority government is formed and other political parties enter into the CSA with the governing party to administer the country, assuring their support for purposes of motions of confidence in the government of the day and on related motions. It is never premised upon compulsion or intimidation against MPs from exercising their right to vote for the benefit of their constituents. As the current MoU is made up of political parties whose support is not concretised in the form of a registered coalition party, the MoU therefore falls short of a full-blown formal CA to see through a five-year plan of common policies. It also does not have the effect of a constitutional implementation of the intentions expressed in Clause 4 of the MoU within the spirit of the recent AHL amendments to the FC.
Whilst Malaysia is still facing growing pangs towards a mature democracy, it must be remembered that values such as loyalty, goodwill, and political stability can be achieved without compromising compliance with and respect for the rule of law.
The Malaysian Bar is aware of the political nuances that various news articles have raised concerning this issue. Yet, in the sea of articles from politicians and political parties expressing their views on the validity of Clause 4 of the MoU, none of the individual MPs belonging to any of the signatory parties to the MoU has come forward to say the reverse. As a matter of good governance, the Malaysian Bar expects the MoU to have been signed by members of the political parties after proper consultation and agreement by individual MPs on the phrasing of Clause 4 of the MoU, to give it the moral credibility it deserves for the Parliamentary sitting that happened on Monday and Tuesday (19 and 20 December).
The Malaysian Bar desires political stability for the benefit of our nation, but never at the expense of compromising the adherence to the rule of law.
Karen Cheah Yee Lynn
19 December 2022