KUALA LUMPUR – Any future amendment to Article 49A of the Federal Constitution concerning the provision on anti-party hopping should reflect the spirit of the rakyat’s need for political stability, says senior lawyer Mohamed Haniff Khatri Abdulla.
Haniff emphasised that parliamentarians must ensure any amendment to the act reinforces the philosophy behind Article 49A, which aims to ensure those who defect from their political party and destabilise the government lose their seat.
He acknowledged Prime Minister Datuk Seri Anwar Ibrahim’s remarks, highlighting the law’s loopholes that should have been addressed when the act was passed in 2022.
“However, the philosophy behind Anwar’s belief, on what is the error in the act, is wrong.
“All that the rakyat wanted, post Sheraton Move, was to stop MPs from bringing down a legitimate, mandated government. That is all.
“However, when the act came into force, it did not carry out this intention but instead strengthened the party’s position in Parliament.
“The issue at hand, which the law is supposed to tackle, is not when a person leaves their party, but the effect of the action that could cause the government’s downfall,” he said.
The constitutional amendment, which came into force in 2022, mandates that an MP must relinquish their seat if they resign from their political party and become independent. However, it allows MPs to retain their seats if they are dismissed from their party. The provision also gives the speaker the power to determine seat vacancies.
Haniff added that many legal experts, including himself, had pointed out the loopholes and potential issues during the parliamentary debates on the constitutional amendment.
“However, it seems that such ‘advice’ from the legal fraternity fell on deaf ears, especially with the recent political developments, including Bersatu members pledging support to Anwar as prime minister, leading to their expulsion from their party while retaining their MP seats.
“At the time, many of us commented that the law should not grant the decision-making power on seat vacancies to the speaker. We must remember that the speaker’s position is also political.
“The opposition complains about the speaker’s bias, but they were the ones who endorsed this framework. The legal fraternity has always believed that decisions regarding parliamentary seats should rest with the courts,” he asserted.
Haniff suggested that Article 49(3) of the constitution, which gives the speaker 21 days to decide on seat vacancies, should be subject to judicial review, with strict regulations similar to those governing election petitions.
“There must be a law akin to the election petition, ensuring such cases are not prolonged unnecessarily. For instance, if a matter is brought to court, the high court should decide within three months whether the seat should be vacated. Appeals should be limited to a single round and taken directly to the Federal Court, as regulated in election petitions.
“We must respect the philosophy behind this act, but none of the 222 MPs seem to do so. This is the consequence of an act passed in favour of parliamentarians, not the rakyat,” Haniff said.
He added that any future amendment to the act should ensure the committee overseeing it is independent of parliamentarians, possibly including members from the Bar Council, retired judges, or former MPs.
On Friday, Anwar said that the government is open to discussions on legal amendments to address any loopholes in the existing anti-party hopping law.
This statement followed opposition protests against Dewan Rakyat Speaker Tan Sri Johari Abdul, who maintained the parliamentary seats of six former Bersatu members despite their recent dismissal from the party.
On June 20, Bersatu submitted a notice to Johari under Article 49A(1)(a)(ii) of the constitution, stating that an MP must cease to be a member of parliament and their seat becomes vacant when they are no longer a member of a political party. However, Johari defended his decision by citing studies and referring to Article 49A of the constitution.
The six MPs at the centre of the controversy are Datuk Syed Abu Hussin Hafiz Syed Abdul Fasal (Bukit Gantang), Datuk Suhaili Abdul Rahman (Labuan), Zahari Kechik (Jeli), Mohd Azizi Abu Naim (Gua Musang), Datuk Iskandar Dzulkarnain Abdul Khalid (Kuala Kangsar), and Datuk Dr Zulkafperi Hanapi (Tanjong Karang).
In addition to Anwar, Umno vice-president Datuk Seri Mohamad Hasan said yesterday that the party is also open to discussing amendments to the anti-party hopping law. – July 14, 2024
