KANGAR: The legal challenge mounted by three Perlis assemblymen over the status of their seats is shaping up to be another stress test for Malaysia’s anti-party hopping law, exposing significant grey areas surrounding expulsion and the speaker’s discretion in declaring a seat vacant.
Constitutional expert Professor Emeritus Datuk Dr Shad Saleem Faruqi said that while the dispute centres on whether the speaker of the Perlis State Legislative Assembly was right to declare the seats vacant following the expulsion of the assemblymen from Pas, namely Mohd Ridzuan Hashim (Guar Sanji), Fakhrul Anwar Ismail (Bintong) and Saad Seman (Chuping). He added the controversy runs deeper, revealing structural weaknesses in the legislation that have yet to be fully tested by the courts.
“The three Pas assemblymen were penalised by their party for signing statutory declarations withdrawing support for the then menteri besar. A provision in the Pas constitution was invoked to terminate their membership,” Shad Saleem said.
“Pas subsequently wrote to the speaker of the Assembly to say that the termination of their membership attracted Article 50A(1)(a)(ii) of the Perlis Constitution.
“The Article stipulates that an assemblyman shall cease to be a member of the Assembly if he ceases to be a member of his political party or coalition. His seat shall become vacant on the date on which the speaker determines that a ‘casual vacancy’ has been established under Clause (3).
“The question is whether this amounts to defection. Is it party hopping leading to a casual vacancy, or is it a forced resignation? In my view, this is not party hopping because the assemblymen say they continue to support the party. It is the former menteri besar whom they did not support,” he told Twentytwo13.
Shad Saleem said the central issue is whether the expulsion of an elected representative by his party can be equated with “ceasing to be a member” of that party under Article 50A of the Perlis Constitution.
“Under the anti-party hopping law, at both federal and state levels, expulsion from a party is not, by itself, a ground for the loss of an Assembly seat,” he said, noting that the law was designed to penalise voluntary defections, not disciplinary action imposed by political parties.
“To rebut the above contention, the three assemblymen could invoke Article 50A(2)(c), which provides that a member of the Assembly shall not cease to be a member of the Assembly solely by reason of expulsion from his political party,” he said.
Shad Saleem said the assemblymen could also argue that a party constitution is not law, citing Article 54 of the Federal Constitution, and that the speaker must adhere to the anti-party hopping law rather than the Pas constitution.
“If the law of the land characterises this as expulsion, termination or forced resignation, then the law of the land must prevail. A party’s constitution cannot override the law,” he said.
He added that the Perlis crisis underscored the urgency of addressing ambiguities in the legislation enacted in 2022, particularly in defining the distinction between expulsion and defection.
Failing to do so, he said, would leave room for conflicting interpretations by political actors and institutional office-holders, undermining the very mischief the 2022 constitutional amendments were designed to prevent.
“The Perlis crisis reinforces the need to remove defects in the anti-party hopping law. First, the distinction between expulsion from a party and ‘ceasing to be its member’ must be clarified, with illustrations.
“Is termination or forced resignation the same as expulsion? Is ceasing to be a member the result of a member’s own actions, such as resigning from the party, joining another party, failure to pay subscriptions, criminal conviction or bankruptcy?” he said.
Shad Saleem’s views echo those of Associate Professor Datuk Dr Shamrahayu Ab Aziz, who said the move by the three Perlis assemblymen to seek judicial review of the speaker’s decision has reignited calls to review the anti-party hopping law.
Commenting further, Shad Saleem, who is also a principal research fellow at Universiti Malaya, said the Perlis political crisis has also brought renewed scrutiny to the scope of the speaker’s discretion in determining whether a casual vacancy has arisen.
While Article 50A confers authority on the speaker to establish such vacancies, he said that discretion cannot be absolute and must be exercised within constitutional limits.
“The speaker’s role will remain important, but it will probably no longer be constitutionally unbounded. On the issue of unfettered, unreviewable discretion, I am reminded of the elegant statement by the late Lord President Raja Azlan Shah in Sri Lempah Enterprises (1979) that ‘every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene’,” he said.
He also cited the recent High Court decision in the former prime minister Datuk Seri Najib Razak’s addendum case, which held that even the Yang di-Pertuan Agong, in exercising the power of pardon under Article 42 of the Federal Constitution, must act in accordance with constitutional prescriptions.
Shad Saleem said that while courts are generally reluctant to interfere in matters of parliamentary proceedings or privileges, judicial review becomes a constitutional duty when jurisdictional or other constitutional issues arise.
He cited the 2015 case involving Damansara MP Gobind Singh Deo, where the court upheld the lawmaker’s suspension for contempt of the Dewan Rakyat but ruled that his parliamentary allowance could not be withheld, as it was provided for by law.
