RoS' approval not the ultimate solution to Bersatu's crisis

Mohd Faizul Haika Mat Khazi
Mohd Faizul Haika Mat Khazi
04 Apr 2024 03:42pm
Bersatu president Tan Sri Muhyiddin Yassin along with the party's top leadership showing the document of the amendment to the party's constitution.
Bersatu president Tan Sri Muhyiddin Yassin along with the party's top leadership showing the document of the amendment to the party's constitution.

The decision of the Registrar of Societies (RoS) to approve the proposed amendment to the Parti Pribumi Bersatu Malaysia (Bersatu) Constitution on Tuesday is not an absolute solution to enable the party to win the demands for the vacancy of six parliamentary seats and one state assembly seat currently held by its seven representatives.

Instead, Bersatu's journey to push for by-elections to be held in the Parliament of Bukit Gantang, Labuan, Gua Musang, Jeli, Tanjong Karang and Kuala Kangsar as well as the Selat Klang State Assembly, due to its incumbents now turning their backs to support Prime Minister Datuk Seri Anwar Ibrahim, was still long and winding.

Universiti Teknologi Malaysia (UTM) constitutional expert Associate Professor Dr Muhammad Fathi Yusof said RoS' approval of Bersatu's constitutional amendment did not mean that the seven parliamentary seats held by the seven representatives who have shifted their support to Anwar can be declared "vacant" automatically.

He said Bersatu still needed to go through various complex and time-consuming processes, including negotiations with the Dewan Rakyat Speaker and filing claims for the vacancy of the representatives' seats in court.

"Although Bersatu claims that RoS' approval enables the seven representatives to automatically vacate their seats, the actual power to do so lies with the Speaker and the Selangor Yang di-Pertua.

"In fact, the initial process that Bersatu needs to present after this is that they should give the seven representatives a chance to restate their respective stance on whether they want to remain in support of the Prime Minister and the Unity Government or consult again with Perikatan Nasional (PN)," he told Sinar.

Fathi also said the six MPs and one Selangor Bersatu assemblyman did not need to rush to vacate their respective seats even though the RoS has approved the party's constitutional amendment.

"It is up to the Bersatu representatives whether they want to vacate their respective seats as soon as possible or wait for the Speaker and Selangor Yang di-Pertua to confirm it.

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"Even after this amendment is approved, Bersatu can submit a motion of vacancy to the Speaker and the Yang di-Pertua, stating that their seven representatives have lost their eligibility for violating the party's constitution, thereby allowing the Election Commission (EC) to hold by-elections.

"If the Speaker and Yang di-Pertua reject it, Bersatu must then file a judicial review to enable the court to decide conclusively whether the parliamentary and state assembly seats of their seven representatives who declared support for the unity government are indeed vacant or otherwise," he added.

Bersatu approved a constitutional amendment proposal on March 2 that would immediately strip its MPs of their membership if they declared support for any party contrary to the party's direction or stance.

The decision was made at the party's Special General Assembly after six of its MPs declared support for Anwar, who is also the Tambun MP.

The six MPs who declared support for Anwar were Datuk Syed Abu Hussin Hafiz Syed Abdul Fasal (Bukit Gantang), Mohd Azizi Abu Naim (Gua Musang), Datuk Dr Zulkafperi Hanapi (Tanjong Karang), Zahari Kechik (Jeli), Datuk Iskandar Dzulkarnain Abdul Khalid (Kuala Kangsar) and Datuk Dr Suhaili Abdul Rahman (Labuan).

On March 7, Selat Klang assemblyman Datuk Abdul Rashid Asari announced his shift in support to Selangor Menteri Besar Datuk Seri Amirudin Shari.

Facing difficulties

Meanwhile, lawyer Mohamed Haniff Khatri Abdulla agreed that Bersatu's efforts to regain the seven parliamentary seats betrayed by its representatives remained challenging.

He said the new Bersatu constitutional amendments approved by RoS on April 1 would not affect the definitions set under the Federal Constitution regarding party-hopping.

"So it's not easy for Bersatu to claim that the seats are automatically vacant after RoS approved the constitutional amendment of the party.

"In addition, Bersatu still has to refer the issue of seat vacancies to the Dewan Rakyat Speaker and Selangor Yang di-Pertua because only these individuals can decide on the matter," he said.

Haniff expressed confidence that Bersatu would probably need to take the issue of reclaiming the seven parliamentary and state assembly seats to the High Court, Court of Appeal and Federal Court.

"When this case continues to the court, it will not only take two or three weeks, but perhaps more than two to three years.

"Even if the court's decision is likely to favour Bersatu, with the parliamentary term likely not to exceed two years at that time, there is a provision in the Federal Constitution stating that the EC no longer needs to hold by-elections if the vacancy occurs after the administration term exceeds three years.

"The Dewan Rakyat Speaker also has the right to decide that there is no need to hold by-elections if any election results do not affect the majority support for the current government," he said.


Meanwhile, Universiti Teknologi Malaysia Razak Perdana Centre lecturer Associate Professor Dr Mazlan Ali said there was a previous case where the court decided that only the Speaker has the authority to determine whether there was an unexpected vacancy in parliamentary seats following the actions of its representatives in shifting support to the government.

He said this meant that in the principle of the separation of powers, the courts could not interfere in issues involving the powers of the Dewan Rakyat Speaker or the Selangor Yang di-Pertua.