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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