Have the four Sabah MPs lost their seats?

The facts emerging from Sabah get murkier by the hour.
If their resignation has been accepted, then they will lose their seats.
Yet, unless the Speaker follows the procedure in Article 49A, one cannot ‘automatically knock out’ the four Sabah MPs. Truth will out.

[1]. The four unfortunate MPs at the heart of this raging debate are:-

Datuk Armizan Mohd Ali (Papar),

Khairul Firdaus Akbar Khan (Batu Sapi),

Datuk Matbali Musah (Sipitang), and

Datuk Jonathan Yasin (Ranau).

[2]. What is a political party?

There has been some dispute on what a ‘political party’ is.

One lawyer has, reportedly, stated that there is ‘no definition of what is a political party’.

In fact, the opposite is true.

[3]. The right questions asked in the right order will lead us to the right answer: here they are

Q-1:​How does the anti-hopping law work?

Q-2:​When they stood for elections, which party were these 4 MPs members of?

Q-3:​What happens if their resignations fell before – or after – elections?

Q-4:​At the time they stood for elections, were they members of (a) Bersatu or, (b) of GRS, or (c) both?

Q-5:​What happens if these MPs were members of two different parties at the same time?

[4]. Q-1:​How does the new anti-hopping law work?

In October 2022, Article 49A of the Federal Constitution changed the Law of Frogs.

Under Article 49A(clause 1), the MP’s seat ‘shall’ become vacant if four things happen:

First, the MP must have been elected while being ‘a member of a political party.’

Then, if – after elections – one of three things happens, he loses his MP seat.

One, the MP (or ADUN) resigns from his current political party.

Or, two, he ‘ceases’ to be ‘a member’ of political party A.

Or, three, if he had contested as an independent candidate, after his election, he joins another political party.

[5].​By the way, identical principles apply to members of any State Legislative Assembly (or ADUNs).

[6].​Q-2:​When they stood for elections, which party were these 4 MPs members of?

The answer is unclear.

The Sabah news portals say different things about this.

Some reports say they belonged to Bersatu; some claim they stood under the GRS flag.

Others report they belonged to both parties.

So, the facts are murky – and we shall have to discuss all possibilities.

[7].  Q-3:​What happens if these MPs resigned before – or after – the elections?

If the four resigned from Bersatu before elections, their respective seats are safe.

If they resigned from Bersatu after elections, the question is not whether they stood under the GRS flag, but what the law says about an MP who is a member of two parties at the same time?

Art. 49A(1)(a) states that an MP “[Shall] cease to be a member of the Dewan Rakyat if —having been elected to the [Dewan Rakyat] as a member of a political party … he resigns as a member …or … ceases to be a member of the political party”.

So the phrase ‘as a member of the political party’ must refer to that party he either ‘resigned from’ or ‘ceased to be a member of’.

Suppose an MP was a member of Party A.

After being elected as an MP, he resigns from Party A.

Then he loses his seat.

Again, if he ceases to be a member of Party A, the MP, again, loses his seat.

[8]. Two important questions arise from this discussion:

Q-1: What is the meaning of the phrase ‘ceased to be a member of’?

Q-2:​What if an MP was a member of two political parties A and B, but resigned from Party A, but ‘ceases to be a member of’ Party B?

That is troubling, is it not?

The phrase ‘ceases to be a member of’ is a question of status.

Whether an MP will ‘cease being a member’ depends on what his party’s constitution says.

Take for example MIC.

Clause 15 of the MIC Constitution states that a member’s membership ‘ceases’ on several conditions: that is to say if the member:

(a) resigns;

(b) dies;

(c) is expelled;

(d) does not pay his subscriptions;

(e) challenges the MIC’s Central Working Committee

in court; or

(f) is a member of another political party.

[9]. You will be interested to know that the Bersatu Constitution prohibits concurrent memberships in two political parties.

This is in clause 10.2.3.

According to Bersatu’s constitution, the punishment for this is – oddly – both:-

(a) ‘expulsion’ and,

(b) ‘cessation of membership’!

Clause 10.2 of that constitution says ‘multiple memberships’ has a legal consequence:

This is how the words in Bahasa Malaysia versions states it: “… Keahlian seseorang ahli terhenti … serta merta!”.

This brings us to the next question:

[10].​At the time these four MPs stood for elections, were they members of (a) Bersatu or, (b) of GRS,  or both?

[11]. Can an MP be a member of two political parties?

If you are a member of Bersatu, can you also be a member of GRS?

[12]. There are two answers to this:

Does the GRS Constitution prohibit ‘double membership’?

If the answer to that is ‘Yes’, then the next question is:

‘How does the GRS Constitution punish concurrent membership in two parties?’

If the answer is a member’s ‘expulsion’, then the MP’s seat is safe.

This is because Art. 49A(2)(c) allows it.

If the answer is ‘cessation of membership’, then the MP is in trouble!

His seat is gone!

This is because under Art. 49A(cl. 1)(para a)(ii) a ‘cessation’ kills the MP’s seat!

For example, under Bersatu’s Constitution, concurrent membership in two political parties is punished by both ‘expulsion’ and ‘a cessation of membership’.

This creates ambiguity.

Expulsion does not affect an MP’s seat.

Cessation creates a vacancy.

The courts need to resolve this ambiguity.

In my respectful view, the MP will still lose his seat, because cessation and expulsion occur together.

And ‘cessation’ offends the anti-hopping law.

[13]. This brings us to a third troubling question: what if GRS’s Constitution has the same prohibition?

What will be the fate of the four MPs?

If the GRS Constitution has the same prohibition, then unless the GRS Constitution allows the MP to elect to continue as a GRS member, the MPs would have, lost their memberships in both Bersatu and GRS.

Odd –  isn’t it?

[14]. What if the GRS constitution says the same thing as Bersatu: that double membership results in ‘cessation’ of membership?

Then the MPs may be in trouble on both sides!

If the GRS constitution punishes concurrent memberships by a cessation of membership, then the MPs seats will still be in jeopardy.

[15]. Would that make the MPs independent candidates, but after elections?

It might. Again, the seats will fall vacant.

[16]. The inevitable last solution: re-election

Elections need to be conducted within the next 60 days, depending on how quickly the MPs’ notice is sent to the Speaker.

Intriguingly, a new Parliamentary Speaker has not, so far, been appointed.

[17]. Since the Speaker has not been appointed, does that mean the seat remains intact?

Unless the Art. 49A procedure is followed, one cannot ‘automatically’ knock out the four MPs in Sabah. So, there may still be some room for negotiating a legal solution.

What if the Speaker refuses to act? Or refuses to send a notification to the Election Commission?

Here we step into deep waters. The phrases ‘the Speaker shall establish there is such a casual vacancy’ and the phrase ‘the Speaker shall… notify the Election Commission accordingly’ – in Article 49A- suggest that the Speaker has no choice.

So, the Speaker must act without delay.

The next two weeks should be interesting.

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