Lawyer Mohamed Haniff Khatri Abdulla says that Bersatu's actions, including issuing an ultimatum to defectors, will have no effect on their parliamentary seats because the party's amended constitution cannot be applied retroactively. – Azim Rahman/Scoop file pic, May 19, 2024
Bersatu defectors won’t need to vacate their seats, says Haniff Khatri
Lawyer says party's amended constitution, anti-hopping law do not affect their parliamentary status
Farah Solhi
19 May, 2024, 10:12 PM MYT
Bersatu defectors won’t need to vacate their seats, says Haniff Khatri
Lawyer says party's amended constitution, anti-hopping law do not affect their parliamentary status
Farah Solhi
19 May, 2024, 10:12 PM MYT
KUALA LUMPUR – With the clock ticking for six Bersatu defectors to respond to the party’s ultimatum to retract their support for the prime minister, the legal community is abuzz with opinions on whether these MPs will have to vacate their seats.
Bersatu secretary-general Datuk Seri Hamzah Zainuddin has issued a notice to the defectors, requiring them to declare their loyalty to the party within 14 days. However, lawyer Mohamed Haniff Khatri Abdulla asserts that any action taken by Bersatu will not affect the defectors’ parliamentary seats.
Haniff explained that the party cannot retroactively apply its amended constitution to force the defectors to vacate their seats, as these amendments were made after the MPs had pledged their support for Datuk Seri Anwar Ibrahim.
“Even if the party’s supreme leadership council says they can affect the amended constitution, specifically Article 10, it must be for future acts and conduct instead of now.
“But it must be emphasised that the provision does not exist when the members were elected as people’s representatives during the 15th general election and also when they pledge support to Anwar. So, you cannot backdate this,” he told Scoop today.
Despite the presence of the anti-hopping law, Haniff stated that it does not affect the defectors’ parliamentary status.
“The (anti-hopping) law does not fit in this equation. It dictates that if a representative, who has been elected by the public, leaves their party to join another party or go independent and vice versa, then it will be considered as party hopping and their seats will be vacated.
“But the same law also states that if the representative’s party membership is stripped, it is not considered party hopping.
“So, if the Act of Parliament cannot supersede the constitution, what more a party’s constitution? It cannot be.”
However, the senior lawyer said the decision on the casual vacancy lies with Dewan Rakyat Speaker Tan Sri Johari Abdul.
“If they (Bersatu) said that they have sent the letter (to the defectors), which Hamzah said will expire on May 31, then they should make sure to send the notice to vacate the seats to the Dewan Rakyat speaker on June 1.
“Once the speaker decides, if it is in favour of the party, which I think is unlikely, then the members can file an action in court to maintain their seats.
“However, if the speaker decides otherwise, then it will be Bersatu’s case to take the matter to court and file a judicial review of the speaker’s decision.”
Haniff also referenced a similar case involving four former Bersatu members who switched their support to Gabungan Rakyat Sabah. In November last year, the high court ruled that the Dewan Rakyat speaker’s decision not to declare their seats vacant was non-justiciable.
The high court judge, Datuk Amarjeet Singh, in his verdict found that Johari’s decision falls within Article 63 of the Federal Constitution and that the suit is bound by cases in the Federal Court, which said that it has no jurisdiction to question the decision by the speaker.
“This is a judgement, which can always be challenged. But as of now, the decision stands.
“So, the party can do what they want, but then again, it is up to the speaker and the court, if they went down that road, to decide what is right and wrong,” Haniff said.
Contrary to Haniff, prominent lawyer Nizam Bashir believes that the seven defectors will have to vacate their seats if they do not adhere to the party’s instructions.
“Bersatu can amend its constitution, which is apparent from the fact that the RoS approved the said amendment.
“Of course, there may be an issue as to whether the amendment is consistent with the anti-hopping provisions in the Federal Constitution.
“(But) what makes this issue all the more ‘interesting’ from a legal standpoint is the construction of the party’s constitution, which must be a political matter and no other, as stated under Section 18C of the Societies Act 1966.
“In other words, any dispute in this regard will likely reach a very quick conclusion and one in favour of the party itself,” he said.
“Any party will most likely decide on a majority basis, which is likely a party leadership direction,” he added.
On May 17, Hamzah confirmed that a notice with specific directives had been sent to the defectors, demanding their loyalty within 14 days.
However, two defectors, Labuan MP Datuk Suhaili Abdul Rahman and Bukit Gantang MP Syed Abu Hussin Hafiz Syed Abdul Fasal, have publicly declared their intention not to respond to the notice.
Suhaili also shared the aforementioned letter of instruction with Scoop, which includes requirements that they express their undivided loyalty to the party and retract their support for the prime minister.
Apart from Suhaili and Syed Hussin, the other members who pledge their support for the unity government are Zahari Kechik (Jeli), Mohd Azizi Abu Naim (Gua Musang), Datuk Iskandar Dzulkarnain Abdul Khalid (Kuala Kangsar) and Datuk Dr Zulkafperi Hanafi (Tg Karang).
Meanwhile, the Selat Kelang assemblyman has also expressed his support for Selangor Menteri Besar Datuk Seri Amirudin Shari’s leadership. – May 19, 2024
Bersatu secretary-general Datuk Seri Hamzah Zainuddin has issued a notice to the defectors, requiring them to declare their loyalty to the party within 14 days. However, lawyer Mohamed Haniff Khatri Abdulla asserts that any action taken by Bersatu will not affect the defectors’ parliamentary seats.
Haniff explained that the party cannot retroactively apply its amended constitution to force the defectors to vacate their seats, as these amendments were made after the MPs had pledged their support for Datuk Seri Anwar Ibrahim.
“Even if the party’s supreme leadership council says they can affect the amended constitution, specifically Article 10, it must be for future acts and conduct instead of now.
“But it must be emphasised that the provision does not exist when the members were elected as people’s representatives during the 15th general election and also when they pledge support to Anwar. So, you cannot backdate this,” he told Scoop today.
Despite the presence of the anti-hopping law, Haniff stated that it does not affect the defectors’ parliamentary status.
“The (anti-hopping) law does not fit in this equation. It dictates that if a representative, who has been elected by the public, leaves their party to join another party or go independent and vice versa, then it will be considered as party hopping and their seats will be vacated.
“But the same law also states that if the representative’s party membership is stripped, it is not considered party hopping.
“So, if the Act of Parliament cannot supersede the constitution, what more a party’s constitution? It cannot be.”
However, the senior lawyer said the decision on the casual vacancy lies with Dewan Rakyat Speaker Tan Sri Johari Abdul.
“If they (Bersatu) said that they have sent the letter (to the defectors), which Hamzah said will expire on May 31, then they should make sure to send the notice to vacate the seats to the Dewan Rakyat speaker on June 1.
“Once the speaker decides, if it is in favour of the party, which I think is unlikely, then the members can file an action in court to maintain their seats.
“However, if the speaker decides otherwise, then it will be Bersatu’s case to take the matter to court and file a judicial review of the speaker’s decision.”
Haniff also referenced a similar case involving four former Bersatu members who switched their support to Gabungan Rakyat Sabah. In November last year, the high court ruled that the Dewan Rakyat speaker’s decision not to declare their seats vacant was non-justiciable.
The high court judge, Datuk Amarjeet Singh, in his verdict found that Johari’s decision falls within Article 63 of the Federal Constitution and that the suit is bound by cases in the Federal Court, which said that it has no jurisdiction to question the decision by the speaker.
“This is a judgement, which can always be challenged. But as of now, the decision stands.
“So, the party can do what they want, but then again, it is up to the speaker and the court, if they went down that road, to decide what is right and wrong,” Haniff said.
Contrary to Haniff, prominent lawyer Nizam Bashir believes that the seven defectors will have to vacate their seats if they do not adhere to the party’s instructions.
“Bersatu can amend its constitution, which is apparent from the fact that the RoS approved the said amendment.
“Of course, there may be an issue as to whether the amendment is consistent with the anti-hopping provisions in the Federal Constitution.
“(But) what makes this issue all the more ‘interesting’ from a legal standpoint is the construction of the party’s constitution, which must be a political matter and no other, as stated under Section 18C of the Societies Act 1966.
“In other words, any dispute in this regard will likely reach a very quick conclusion and one in favour of the party itself,” he said.
“Any party will most likely decide on a majority basis, which is likely a party leadership direction,” he added.
On May 17, Hamzah confirmed that a notice with specific directives had been sent to the defectors, demanding their loyalty within 14 days.
However, two defectors, Labuan MP Datuk Suhaili Abdul Rahman and Bukit Gantang MP Syed Abu Hussin Hafiz Syed Abdul Fasal, have publicly declared their intention not to respond to the notice.
Suhaili also shared the aforementioned letter of instruction with Scoop, which includes requirements that they express their undivided loyalty to the party and retract their support for the prime minister.
Apart from Suhaili and Syed Hussin, the other members who pledge their support for the unity government are Zahari Kechik (Jeli), Mohd Azizi Abu Naim (Gua Musang), Datuk Iskandar Dzulkarnain Abdul Khalid (Kuala Kangsar) and Datuk Dr Zulkafperi Hanafi (Tg Karang).
Meanwhile, the Selat Kelang assemblyman has also expressed his support for Selangor Menteri Besar Datuk Seri Amirudin Shari’s leadership. – May 19, 2024
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