KUALA LUMPUR, Dec 18 — Questions abound regarding the status of the Sabah lawmakers who announced their exit from Sabah Bersatu and what this means for the nascent anti-party hopping law.

The most immediate would be whether elected lawmakers wanting to switch parties post-general election could use Article 49A(2)(c) of the Federal Constitution to their advantage.

Sabah-based constitutional lawyer Tengku Datuk Fuad Tengku Ahmad said, based on his observations, Article 49A(2)(c) renders the anti-party hopping law "legally impotent”.

In the context of the four Gabungan Rakyat Sabah (GRS) MPs, Tengku Fuad said Article 49A(2)(c) has ended up protecting the act of party hopping.

Under Article 49A(2)(c) of the Federal Constitution, an MP will not lose his seat if expulsion is the only reason that he ceases to be a party member.

Looking at the bigger picture, Tengku Fuad said this could happen in the future to other political parties or coalitions due to the nature of Article 49A(2)(c).

"Both Bersatu and Umno constitutions provide for immediate expulsion from the party if a member joins another party.

"Theoretically, if an Umno member joins Bersatu, then his membership is immediately terminated. Expulsion would be the only reason that member ceases being a member of Umno.

"Therefore, if an Umno MP hops to Bersatu, then under the Umno party constitution, he is immediately expelled... If this is so, then under Article 49A(2)(c) the MP will not lose his seat and it seems that the immediate expulsion clauses in the Umno and Bersatu constitutions would protect an MP if he were to ‘hop’ out of either Umno or Bersatu,” Tengku Ahmad told Malay Mail when contacted.

On December 10, Sabah Chief Minister Datuk Seri Hajiji Noor’s announcement of a mass exodus of lawmakers at both the state and federal level from Sabah Bersatu spurred speculation that another election would be called before the dust has even settled on the November 19 national polls.

The MPs were rumoured to be taking over a Sabah-based party, with Parti Harapan Rakyat Sabah and Parti Gagasan Rakyat Sabah among the names floated.

Four of the six GRS MPs are: Minister in the Prime Minister’s Department (Sabah and Sarawak) Datuk Armizan Mohd Ali (Papar), Tourism Arts and Culture Deputy Minister Khairul Firdaus Akbar Khan (Batu Sapi), Datuk Jonathan Yasin (Ranau), and Datuk Matbali Musah (Sipitang).

The other two GRS MPs are Deputy Chief Minister II Datuk Seri Jeffrey Kitingan (Keningau) and Lo Su Fui (Tawau).

Tengku Fuad went on to say that in the case of the GRS MPs, for Article 49A to apply — which would see them losing their parliamentary seats — the four would have to no longer be GRS members.

"For the purposes of Article 49A, ‘political party’ means the party of which the candidate is a member, under whose symbol the candidate contests and to which the candidate is elected.

"All six candidates were, prior to GE15 (15th general election), direct members of GRS and it was by virtue of said direct membership that the four were later elected.

"The four elected GRS MPs contested under the GRS logo as direct members and not because they were members of Bersatu.

"Therefore, for the anti-hop provisions in Article 49A to apply, the four MPs would have to cease to be GRS members, the same being the political party under which they contested in the election and to which they were elected. Bersatu membership, if any, is irrelevant,” he said.

Grey areas

National Council of Professors’ Governance, Law and Public Management Cluster chief professor Nik Ahmad Kamal Nik Mahmood, in offering his opinion, said there are some grey areas in relation to Article 49A.

"Article 49A has made it an exception for those who leave their party for another on the basis that they belong to a coalition and that coalition includes members of another coalition.

"So when all members of the coalition leave the party, for example, if GRS is considered a coalition, and they join Bersatu or Perikatan Nasional (PN), if GRS left PN they would not be caught in that Act and would be considered an exception.

"So that is one instance. Another is where the party leaves or the members leave the party because they were expelled,” he said when contacted.

Nik Ahmad Kamal added that these two scenarios will not lead to seats falling vacant.

However, he explained, for now, the fate of the four MPs’ seats rests with procedural matters.

"Article 49A states how an MP may lose their seat — but there is a procedure that needs to be followed.

"Among others, at the end of the day, it is the Speaker who must decide whether the seat is vacant.

"Only then can this issue go to court, for example, as people may challenge the decision of the Speaker. Only then will we know how Article 49A must be interpreted,” he said.

When Parliament sits on December 19, the matter of the four MPs might be raised through an official letter from a fellow MP to the Speaker.

If that happens, the Speaker has 21 days to establish whether the MPs have left the party or not.

First, this would involve asking Bersatu to clarify the MPs’ status with the party.

The next step would be checking with the Registrar of Societies whether it has deregistered the four MPs as members of Bersatu.

Nik Ahmad Kamal also pointed out that the clause which exempts MPs from losing their seat due to expulsion from their party is a loophole in the anti-party hopping law.

He explained that under the provision, people who are unhappy with the party could stir up disputes and decide to leave, not because they want to, but because the party sees them as troublemakers.

"Even though the party doesn’t want to expel them, they cannot bear them being part of the party anymore. At the end of the day, one could always leave a party due to expulsion yet retain the seat won in the election.

"This is the kind of loophole that the present law could not foresee would affect the party in the future,” he said.

He, however, offered his assurance that the anti-party hopping law remains a necessity.

"I don’t see the law in its present form as a weakness because we can always change the law.

"I see there is a need for such a law; otherwise, after GE15, you would have seen a lot of jumping,” he added.

Watered down

Meanwhile, former de facto law minister Datuk Seri Wan Junaidi Tuanku Jaafar has said that the original draft of the anti-party hopping law that was prepared, refined, and discussed at length between September 2021 and April 2022 covers the situation now.

"But it was opposed strongly by some members of the Cabinet. This resulted in the Attorney General’s Chambers (AGC) drafting the amendment of Article 10 of the Federal Constitution to enable the enactment of the parliamentary Act for anti-party hopping.

"However, the select committee appointed by the Dewan Rakyat on April 11, 2022 rejected the concept of amending Article 10 and enacted an Act of Parliament for the anti-party hopping law on the grounds that it lacked permanency and could be easily amended.

"Thus, the select committee adopted the original draft but watered it down by deleting the expulsion. We realised this would happen,” Wan Junaidi, who at the time headed the team responsible for drafting the law, said when contacted by Malay Mail.

He added that the original draft of the law was adopted in September 2021 based on the committee’s study of the laws in the United Kingdom, India, and Singapore.

"Then, my office, the Legal Division of the Prime Minister’s Department, and the AGC came up with the draft.

"Unfortunately, due to strong opposition from within the Cabinet, I had to be pragmatic about adjusting my position or I would not have been able to produce a much-needed law against the defection of people’s representatives that has haunted our country since 2018,” he said.