Pakatan Harapan Plus’s auto-resign clause in MoU unconstitutional, says lawyer

(FMT) – An automatic resignation clause in the memorandum of understanding (MoU) between parties in the unity government may be legally suspect and unconstitutional, a lawyer said.

On Friday, the coalitions that made up the unity government led by Prime Minister Anwar Ibrahim signed the MoU ahead of tomorrow’s confidence vote.

Lawyer Andrew Khoo said the automatic resignation clause in the MoU effectively disallows an MP from these parties to vote as they wish.

He added that he was doubtful if the auto-resign clause would even stand in a court of law or even be enforced.

“It’s highly questionable if you can be deemed to have resigned as an MP by virtue of disobeying an instruction to vote in a particular way. That is, unless the offending MP’s party has amended its constitution to include such a clause,” he told FMT.

“With this clause in the MoU, it is now a violation of the right of MPs to disagree with their parties. And we all know from experience that MPs will disagree with the party leadership on matters of principle.

“But you’re now being penalised for expressing your right to disagree. It is extreme. It raises serious questions about the kind of democracy that we are practising in Malaysia.”

Khoo, who is also the Bar’s constitutional law committee co-chair, said not voting along party lines was a question of disobedience and an issue that was dealt with internally within parties.

He said the same concern goes to political parties with auto-resign clauses in their constitution, which could be challenged in court.

Khoo added that the courts would very likely not condone any political parties having such clauses as it ran afoul of fundamental rights.

Last September, Pakatan Harapan component parties, Amanah and DAP amended their party constitutions so that elected representatives who do not toe the party line on fundamental issues would automatically lose their membership.

At the time, DAP secretary-general Loke Siew Fook said the amendment was to safeguard the party from a “loophole” in the anti-hopping law in which MPs sacked by their party do not have to vacate their seats.

For the unity government to be more effective, Khoo said a confidence and supply agreement (CSA) was needed.

He added that it was also a fairer way to get willing MPs to back the prime minister and support bills tabled by the government, without the auto-resign clause.

Meanwhile, the Bersih steering committee said it was “alarmed” by the MoU’s imposition that all MPs must vote in favour of all government motions aside from the confidence vote and budget bills.

“Going on ‘all motions’, and not just confidence and supply matters threatens to remove all autonomy of parliamentarians when it comes to voting. With a two-thirds majority government, that would also be a blank cheque for constitutional amendments.

“Bersih urges any party intending to amend their party constitution to confine parliamentarians’ voting freedom to limit it to only confidence and supply matters,” it said in a statement.

Aside from Anwar, as Pakatan Harapan (PH) chairman, the other leaders who signed the MoU are Barisan Nasional (BN) chairman Ahmad Zahid Hamidi, Gabungan Parti Sarawak (GPS) chairman Abang Johari Openg, Gabungan Rakyat Sabah (GRS) chairman Hajiji Noor, and Warisan president Shafie Apdal.