PETALING JAYA: The Speaker of the Dewan Rakyat and the state assemblies have the power to determine whether the seven rogue Bersatu elected representatives will have to vacate their seats based on their interpretation of the phrase “ceased to be party members”, say constitutional experts.
The phrase is in the notice sent by Bersatu to the Dewan Rakyat Speaker after the six MPs and a Selangor assemblyman ceased to be members after they did not respond to a directive to pledge their loyalty to the party by May 31.
Lawyer and former Dewan Rakyat Speaker Tan Sri Azhar Azizan Harun said the Speaker must declare his decision within 21 days from the date he received the notice from the party.
“He can then use his best practices to verify the contents of the letter before he makes a decision.
“Under the anti-hopping laws, a seat must be declared vacant if the elected representative quits his or her party, was an Independent when elected and then joins a party, or if the elected representative ceases to be a member of the party.
“The exception to the rule is if he or she is sacked by the party. In that case, an elected representative gets to keep his or her seat,” said Azhar, who was the Speaker when the anti-hopping law was passed in Dewan Rakyat in 2021.
In the case of the Bersatu seven, who shifted their allegiance to the unity government, the critical point is that they “ceased to be a member of the party”.
“The Bersatu amendment to its constitution stated clearly that when an elected representative shifts allegiance to the other side, he or she ceases to be a member.
“The rogue representatives’ memberships do not get revoked or terminated. They cease to be members. The simplest analogy for this is when one fails to pay his club membership and thus ceases to be a member,” Azhar said.
He added that under Section 18C of the Societies Act 1966, a political party’s interpretation of its own constitution is final and cannot be challenged in court.
“Under Section 18(C), no court shall have the jurisdiction to entertain or determine any suit, application, question or proceeding on any grounds regarding the validity of such decision.
“If the courts cannot question (it), what more the Speaker?” Azhar questioned.
However, Emeritus Prof Datuk Dr Shad Saleem Faruqi opined that the Societies Act “belongs to an era that has gone by”.
“This is because the latest decisions from the Federal Court have stated that an Act of Parliament cannot close the door on the judicial review power of the basic structure of the Constitution.”
He said the Speaker has the flexibility to determine whether an elected representative ceases to be a member of a political party or is expelled.
“If expelled, he would not lose his seat. Should the elected representative challenge the cessation, it is an issue for the court to decide whether the person ceases to be a member,” Shad Saleem said.
“The term ‘ceases to be a member of a political party’ was nowhere defined in the law and is immensely vague.
“My view is that the issue of whether someone has ceased to be a member is for the party constitution and laws to determine.”
