'Clause 4 shines the light for voters to judge. How can this be wrong?' - William Leong, Selayang MP
RECENTLY, the Malaysian Bar raised concerns over Clause 4 of the Memorandum of Understanding among the five political parties – Pakatan Harapan, Barisan Nasional, Gabungan Parti Sarawak, Gabungan Rakyat Sabah, and Parti Warisan – which spelt out a deeming provision that could result in the resignation or expulsion of Members of Parliament should they not vote in favour of motions relating to matters directly affecting the confidence of the chosen government of the day.
Secondly: Loyalty to party is the base for shared beliefs. A divided party is looked at with suspicion by the voters. Thus, MPs generally accept the party whip’s directions because of shared beliefs in the political cause.
Fifthly: Constitutional convention provides for an MP who crosses the floor to join another party to resign his seat and re-submit himself quickly to his voters under new colours. This was the practice until the insertion of Article 48 of the Federal Constitution that provided for a disqualification period of five years upon the resignation of an MP from his seat. This Article has been repealed by the recent amendments. Re-election is the route of a sincere conscientious objector.
Where the MP resigns from his party but fails to resign his seat, acting in concert with the opposition to vote his erstwhile party out of government, this is an open defection. This is within Article 49A. The Bar is concerned Clause 4 will encourage a possible abuse by party bosses inserting resignation or expulsion clauses in party constitutions that circumvent due process. The Bar advocates the anti-hopping laws postpone automatic expulsions to give the affected MPs sufficient legal redress through the courts to determine the legality of such calls by the political parties.Firstly: The Bar’s proposal is impractical.
Secondly: The Indian Supreme Court in Kihoto Hollohan v Zhachillu 1992 SCR 686 and Mian Bashir Ahmad v State of Jammu & Kashmir AIR 1982 Jammu & Kashmir 26 upheld a similarly worded anti-hopping provision as the Cesser Clause to be constitutional. The Bar’s concern arises from the fear that Clause 4 stifles the MP’s right of dissent, unfettered freedom of conscience and to act independently of his party. This concept has its genesis from Edmund Burke’s famous speech in 1774 to the Electors of Bristol:
Firstly: The courts in all jurisdictions recognise that the political party is indispensable to modern democracy. In Parkash Singh Badal v Union of India paragraph 22 the Court said: “It is now accepted on all hands that for effective functioning of the Parliament and governance of the country, political parties are not only a reality but indispensable.”
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