The Departure of Bersatu’s Sabah MPs: To Vacate or Not To Vacate?

by | Dec 13, 2022 | Law, Politics

Recently, Parti Pribumi Bersatu Malaysia (Bersatu)’s then Sabah chief, Datuk Seri Panglima Haji Hajiji bin Noor, announced that the leaders of Bersatu Sabah unanimously decided to leave the party.[1]

This departure includes the departure of the following elected representatives from Bersatu’s Sabah chapter:[2]

(i) Datuk Armizan Mohd Ali (Papar)

(ii) Khairul Firdaus Akbar Khan (Batu Sapi)

(iii) Datuk Matbali Musah (Sipitang)

(iv) Datuk Jonathan Yasin (Ranau)

(collectively referred to as the “Bersatu Sabah MPs”).

The question at hand is whether the Bersatu Sabah MPs are required to vacate their seats under the anti-hopping provision in the Federal Constitution.[3]

Article 49A(1) of the Federal Constitution, which came into operation on 5th October 2022,[4] provides the following:

“(1) Subject to the provisions of this Article, a member of the House of Representatives shall cease to be a member of that House and his seat shall become vacant immediately on a date a casual vacancy is established by the Speaker under Clause (3) if—

(a) having been elected to the House of Representatives as a member of a political party—

(i) he resigns as a member of the political party; or

(ii) he ceases to be a member of the political party.”[5] (Emphasis mine)

Some are of the view that by leaving Bersatu, the Bersatu Sabah MPs need to vacate their seats.[6]

Meanwhile, others are of the view that the Bersatu MPs need not vacate their seats despite leaving Bersatu.[7]

The definition of “political party” for the purposes of the Federal Constitution “includes a coalition of such societies which has been registered under any federal laws.”[8]

Gabungan Rakyat Sabah (“GRS”) is an official coalition which has been registered with the Registrar of Societies since March 2022.[9]

This would mean that GRS is a “political party” for the purposes of the Federal Constitution, including for the purposes of Article 49A.

It is undisputed that the Bersatu Sabah MPs were elected to the House of Representatives as members of GRS.[10]

As such, the issue to be decided then is whether the Bersatu Sabah MPs have:

(i) resigned as a member of GRS; or

(ii) ceased to be a member of GRS.

Based on the information available at the time of writing, the former appears to be unlikely.

As for the latter, if by leaving Bersatu, the Bersatu Sabah MPs cease to be members of GRS, the Bersatu Sabah MPs would have to vacate their seats pursuant to Article 49A(1)(a)(ii) of the Federal Constitution.

This would occur where, for example, GRS’ constitution does not allow the Bersatu Sabah MPs to remain as members of the coalition in light of their departure from a component party of the coalition.

However, the Bersatu Sabah MPs need not vacate their seats if they can remain as members of GRS despite leaving Bersatu.

This would occur where, for example, the Bersatu Sabah MPs have direct/individual membership of GRS[11] or because GRS’ constitution allows them to remain as members of the coalition notwithstanding their departure from a component party of the coalition.

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Anti-Defection Provisions in Selected Countries

by | Dec 15, 2021 | Law

1. Bangladesh

Article 70 of the Constitution of the People’s Republic of Bangladesh:[1]

“A person elected as a member of Parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat if he –

(a) resigns from that party ; or

(b) votes in Parliament against that party ;

but shall not thereby be disqualified for subsequent election as a member of Parliament.”

2. Belize

Article 59(2)(e) of the Belize Constitution Act:[2]

“A member of the House of Representatives shall also vacate his seat in the House

…

(e) if, having been a candidate of a political party and elected to the House of Representatives as a candidate of that political party, he resigns from that political party or crosses the floor.”

3. Fiji

Article 63(1) of the Constitution of the Republic of Fiji:[3]

“The seat of a member of Parliament becomes vacant if the member—

            …

(g) resigns from the political party for which he or she was a candidate at the time he or she was elected to Parliament;

(h) votes or abstains from voting in Parliament contrary to any direction issued by the political party for which he or she was a candidate at the time he or she was elected to Parliament, without obtaining the prior permission of the political party; or

(i) is expelled from the political party for which he or she was a candidate at the time he or she was elected to Parliament and—

(i) the expulsion was in accordance with the rules of the political party relating to party discipline; and

(ii) the expulsion did not relate to any action taken by the member in his or her capacity as a member of a committee of Parliament.”

4. India

Item 2 in the Tenth Schedule to the Constitution of India:[4]

“… a member of a House belonging to any political party shall be disqualified for being a member of the House—

(a) if he has voluntarily given up his membership of such political party; or

(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.”

5. Malawi

 Article 65(1) of Malawi’s Constitution:[5]

 “The Speaker shall declare vacant the seat of any member of the National Assembly who was, at the time of his or her election, a member of one political party represented in the National Assembly, other than by that member alone but who has voluntarily ceased to be a member of that party or has joined another political party represented in the National Assembly, or association or organization whose objectives or activities are political in nature.”

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