KUALA LUMPUR, Dec 28 — A clause in the government coalition’s memorandum of understanding (MoU) stipulating support for the prime minister and government is still democratic and does not diminish the rule of law, Selayang MP William Leong Jee Keen said today.

Responding to the concern by Malaysian Bar, Leong who was among those who drafted the agreement said critics of the provision called Clause 4 may be unfamiliar with the partisan system and the role of party whips in the Malaysian Parliamentary system.

"The Bar’s concern arises from the fear that Clause 4 stifles the MP’s right of dissent, unfettered freedom of conscience and to act independently of his party.

"The requirement for an MP to vote according to his party whip’s directions, far from being undemocratic practice, is in fact, an essential mechanism to ensure the proper functioning of Government and parliamentary democracy,” Leong said in a statement.

"The elected representative’s freedoms are subject to party discipline, instructions from party whips, codes of conduct and party constitutions,” he added.

Malaysian Bar had highlighted the clause in the MoU signed by members of the coalition government, saying it poses a legal problem as it seems to go against the intention of the new anti-party hopping provision in the Federal Constitution.

Among other things, Clause 4 requires all political parties who had signed it to vote to support the prime minister in votes of confidence and other matters that would affect the unity government's legitimacy, and to also ensure their MPs vote in favour of such matters.

The same clause also states that failure, refusal or negligence by such political parties’ MPs to vote in support of the unity government would be considered as the MP's breach of individual responsibility to the party, and would be deemed as such an MP having resigned or ceasing to be an MP within the framework of Article 49A(1) of the Federal Constitution. This will then trigger a by-election.

Thus, Leong added that an MP in exercising their right to vote according to their conscience has to balance it with the need to ensure the Parliament can carry out its functions and business efficiently and effectively.

He also said Clause 4 would also allow voters to separate the weed from the chaff as it upholds the purpose and design of the anti-hopping laws, returning to voters the power to judge those who crossed the floor.

"The honest dissenter and conscientious objector resign and re-contest his seat under his new party, only the politically corrupt will argue that he crossed the floor in the meanderings of a troubled conscience and found salvation by his ministerial or GLC appointment once he reached the other side.

"No one buys such rhetoric and the Malaysian Bar should not do so,” he said.

Separately, Leong also sought to address possible abuse concerns raised by the Bar such as party heads inserting resignation or expulsion clauses in party constitutions that circumvent due process.

Leong said such concerns were instead a product of an "overly active imagination” that belonged to the "realm of conjectures” .

"The Bar’s proposal is impractical. The country cannot be suspended in limbo under a caretaker government or emergency rule until legal challenges are exhausted.

"There is no rational reason for the Unity Government to abuse the resignation or cessation processes to engineer the Unity Government’s own collapse. The party boss gains no advantage.

"The anti-hopping laws’ solution to a defection is for the voters to decide in the ensuing by-election. Therefore, neither the party boss nor the defector gains when a defection occurs,” he added.

Leong also called the Bar's concern that Clause 4 sacrifices democratic practices and the rule of law on the altar of political stability as unwarranted.

Citing the Indian Supreme Court cases of Mian Bashir Ahmad vs The State AIR 1982 Jammu & Kashmir 26; and Kihoto Hollohan v Zhachillu 1992 SCR (1) 686, Leong said it was then uphelded that an appropriate clause in the political party’s constitution or code of conduct to enforce discipline in dealing with the evil of political defection is constitutional.

"An MP is bound by his party constitution and is liable to be disciplined according to its terms,” he said.

Leong also stressed that Clause 4 does not overreach Article 49A as claimed by the Malaysian Bar, since the Clause only applies in motion of confidences, supply Bills and procedural motions having effect on the legitimacy of the government.

Article 49A is a new amendment to the Federal Constitution to overcome the problem of political instability and collapse in governments when MPs jump to different parties. It received royal assent on August 31 and was gazetted as law on September 6.