SHOULD Dewan Rakyat Speaker Johari Abdul declare vacancies for the seats held by six Bersatu lawmakers who the party said have lost their party memberships for insubordination?

Kelantan state Legislative Assembly (SLA) Speaker Mohd Amar Nik Abdullah is said to have set a precedent with the decision to vacate the state seat of Nenggiri held by a state lawmaker who was also stripped of party membership.

Article 49A(1)(a)(ii) of the Federal Constitution says that a Member of Parliament (MP)’s seat “shall become vacant immediately on a date a casual vacancy is established by the Speaker” if he (the MP) ceases to be a member of the political party.

The casual vacancy, however, is subject to the Speaker receiving a written notice from any MP on the occurrence of a casual vacancy among the MPs. The Speaker then “shall establish that there is such a casual vacancy”.

To establish is to ascertain the relevant facts. The facts to be ascertained, arguably, should follow the following questions:

What was the insubordination?

When was the insubordination?

When was the law on insubordination made?

Since late last year, Bersatu realised that it had a problem: Six of its MPs did not quit as members – which would have caused them to cease to be MPs under Article 49A(1)(i) – but gave their support to rival party PKR’s president Anwar Ibrahim in his current role as prime minister.

The six MPs did not fit in any of the then existing boxes in Bersatu’s party constitution which would end their membership and lead to fresh elections for their parliamentary seats.

There was a “loophole”, so to speak. The six MPs continue to keep their parliamentary seats and Bersatu party membership despite backing Anwar as PM, as they did not quit the party or join other parties.

Bersatu wanted them to lose their parliamentary seats, but expelling them would not result in fresh elections under Article 49A(2)(c) of the Federal Constitution.

So Bersatu held an extraordinary general meeting (EGM) on March 2, where all the party delegates present unanimously voted to change the party’s constitution in order to plug the loophole.

Bersatu decided to add three sub-clauses (Articles 10.4, 10.5, 10.6), including the new clause that any Bersatu members –  who are MPs in the Dewan Rakyat or are state legislative members and who do not comply with the Bersatu supreme council’s written orders to them – are considered to have their party membership ceased immediately.

The sub-clauses become the party’s governing law after the “insubordination”. (The first of the six MPs made the declaration of support to Anwar as PM on October 12, 2023, while the sixth MP declared this on January 24, 2024)

Generally amendments to the law do not have retrospective effect.

Insubordination that ceases the six MPs’ party membership must therefore be insubordination to Bersatu supreme council’s written orders to them under the newly inserted Article 10.5 of the party constitution.

The Dewan Rakyat Speaker will have to establish that, which he is constitutionally mandated to do without reference to the Kelantan SLA Speaker’s decision. – June 20, 2024.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.