MoU to support Anwar's govt clouded by questions of legality, constitutionality

The memorandum of understanding (MoU) signed yesterday by party chiefs to ensure that Prime Minister Anwar Ibrahim remains in power has been described as illegal and unconstitutional, with a lawyer warning that they could be subject to criminal investigation for compelling MPs to vote in a certain direction in the Dewan Rakyat.

Haniff Khatri Abdulla said a clause in the MoU on the sacking of MPs who vote against the government was not only in conflict with the recent constitutional amendment on party hopping, but also out of line with the constitutions of the various political parties involved in the agreement.

He said even after Article 49A of the constitution barring MPs from switching parties, none of the political parties had amended their constitutions to specify the dos and don'ts of members that could affect their status as elected representatives.

"Whether the parties like it or not, it is their responsibility to include this in their constitutions or rules if they so wish, but this was not done at that time by any party," Haniff told an online programme last night, adding that the recent anti-hopping provision in the constitution clearly stated that an MP sacked from his party would not lose his seat.

"There is no provision in the constitution of the respective parties that says if a member who is an MP does so and so, or does not do so and so, they will be dismissed from the party."

The recently added Article 49A of the constitution states, among others, that an MP will remain as a member of the Dewan Rakyat if he is expelled from his party.  

As such, Haniff said that despite signing the MoU, an MP would not lose his seat even if he votes across the floor due to the constitutional provision.

He also warned that affected MPs could bring the matter to court over this conflict with the constitution. 

Yesterday, Anwar led leaders from Pakatan Harapan (PH), Barisan Nasional (BN), Gabungan Parti Sarawak, Gabungan Rakyat Sabah and Warisan in signing an MoU designed to ensure that his coalition government remains in power, with a controversial clause that any MP from the signatory parties who does not support government motions will be deemed as disqualified, and their seat declared vacant for a by-election.

The MoU, ahead of a confidence vote on Anwar next week, also states that the onus is on the parties to take action on MPs who vote outside of party lines.

Party leaders said the MoU would ensure the stability and unity of the coalition government over the next five years, following a hung parliament from the November polls which saw Anwar's PH forced to form a fragile coalition with rival parties.

Haniff said stability from a hung parliament should come from the maturity and conscience of elected representatives.

"It cannot be forced, influenced or made into a threat of losing their seats as long as it is not stated in the constitution," he added.

Masjid Tanah MP Mas Ermieyati Samsudin meanwhile warned that the pact would bring the country towards dictatorship.

Mas, a former deputy minister in charge of law, said the constitution gave absolute freedom to MPs to vote according to their conscience.

She cited a Supreme Court decision in 1983 which declared any agreement barring MPs from voting across the floor as illegal.

"The threat and intimidation created by this MoU agreement against MPs from government parties is a prelude to dictatorship," she said.

Mas said MPs from Perikatan Nasional were also in support of a stable government but not "by infringing the constitution and laws".

"This agreement is illegal, unconstitutional, dangerous and unenforceable," she said.

She also reminded Anwar of a parliamentary select committee report on the anti-hopping law released in July, which stated that an MP who does not vote according to party lines will not lose his seat under Article 49A. 

"This is at Paragraph 21.4 of the select committee report. Surely Anwar and the party leaders are not ignorant of this bipartisan select committee report. 

"Clearly, they deceitfully chose to ignore it in a desperate attempt to frighten and intimidate their own MPs into toeing the line, despite the damage it does to parliamentary democracy."

Criminal action

Haniff meanwhile warned that party leaders may have opened themselves to criminal investigation, citing a provision in the Penal Code against compelling an MP in how he votes in the Dewan Rakyat.

Section 124 of the Penal Code criminalises the act of "inducing or compelling or attempting to induce or compel a member of Parliament or of any legislative assembly or of any state executive council to exercise or refrain from exercising in any manner the lawful powers".

Haniff said the criminal element would be up to the courts to decide.

"If there is a complaint made by the relevant MP under Section 124 (Penal Code), then the police should open an investigation paper.

"If MPs cannot be forced to follow something that is not found in the Federal Constitution or the party constitution, it could expose party leaders to criminal investigation."

Mas said the MoU marked a "new form of despotism" never before seen in Malaysian parliamentary history. 

"The forcing of MPs to vote as ordered by party leaders is similar to the system in North Korea or the People’s Republic of China. It has no place in our democratic system. 

"This MoU orchestrated by Anwar Ibrahim and PH-BN will go down in historical infamy as an attempt to subvert parliamentary democracy and the basic structure of our constitution," she added.

Haniff said there was no need for such an MoU, adding that he believed Anwar could still secure the support needed without it.

"A hung parliament should lead to the maturity of MPs and the political leadership.

"If we want to make a clause like that, it is akin to the government threatening its supporters. This is unhealthy."