AHMAD IBRAHIM KULIYYAH OF LAW,

INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA,

CONSTITUTIONAL LAW I (LAWS 2330)
SEMESTER 1, 2023/2024

TOPIC : LEGISLATURE'S SEAT VACANCIES

SECTION: 2

WRITTEN ASSIGNMENT
LECTURER: DR. IBRAHIM B. ISMAIL

NAME MATRIC NUMBER

1. NIK AININ SOFIYA BT NIK MOHAMAD HASRI 2217712

2. NURUL HANA BT MOHD FAKHRULRAZI 2217530

3. SITI AMIRAH MUMTAZAH BT AWANG 2212934

4. SITI NAZWA BT ABD LATIF 2210574

TABLE OF CONTENT

Bil. Content Pages

1. Scenario 3

2. Introduction 4-5

3. First Issue: 5-6

Whether Mr Jonah will lose his seat in parliament if
he hopped into party y.

4. Second Issue : 6-9

Whether Mr.Adam will be disqualified from being a
member of parliament if he was charged under
corruption for offering a position to Mr Jonah.

5. Third Issue: 9 - 10
Whether by expulsion Mr Tan from his political
party due to his misconduct, will cause risk to the
seat in parliament.

6. Conclusion 10

7. References 11

2
 SCENARIO

Mr Jonah, who is a member of Warisan party, has a great influence and good personality
that catches the eyes of the community in Indrasakti. Upon that achievement, it attracted the
attention of another party, named as Hasrat, thus, he was offered the position as Deputy President
of that party by Mr Adam for the sake of getting majority votes for the upcoming election. In a
way, he managed to increase a higher salary in his current party. Nevertheless, Mr Adam secretly
offers him a huge amount of money if he makes a first entrance to Hasrat, amounting to
RM30,000. Thus, as the manifestation period is less than a month, there is no other way for Mr
Adam to obtain that big amount of money unless by way of bribery.

Meanwhile, Mr Tan who is a member of Warisan party, incites the other politicians of
Warisan to support Hasrat party as he initially disagrees with certain decisions made by his party.
Unfortunately, two fifths of the incited members spreaded this propaganda to Warisan’s
leadership council, consequently, they held a party supreme council meeting and it was decided
that such action was against the discipline party, hence, leading to Mr Tan’s expulsion from that
party.

Therefore, if Mr Jonah hopping into another party, will his seat in parliament be lost. For
Mr Adam , whether he will be disqualified from being a member of parliament if he was charged
under corruption for offering a position to Mr Jonah. Hence, since Mr Tan got expelled from his
party , whether it risks his seat in parliament. Advise them.

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 INTRODUCTION

The legislative authority of the Federation shall be vested in a Parliament, consisting of the Yang
di-Pertuan Agong and two Houses of Parliament, which are known as House of Senate (Dewan
Negara) and House of Representatives (Dewan Rakyat).1 The life of the Parliament is five years,
and prior to the expiry of the five years, it is within the discretion of the Yang di-Pertuan Agong
to dissolve the Parliament on the advice of the Prime Minister.2 His Majesty the Yang di-Pertuan
Agong is the supreme head of Malaysia and being elected by the Conference of Rulers for a term
of five years, but at any time may resign his office by writing under his hand addressed to the
Conference of Rulers or be removed from office by the Conference of Rulers, and shall cease to
hold office on ceasing to be a Ruler.3

Furthermore, members of the Dewan Negara are called as Senators and appointed by the
Yang di-Pertuan Agong must be from among citizens, aged 30 and above, who in his opinion has
an achievement in some industries. In addition, the term of office of a senator is not affected by
the dissolution of Parliament, but in any event may not be more than three years.4 Meanwhile, as
for the Dewan Rakyat, it is fully elective and has 222 elected members.5 Membership to the
Dewan Rakyat is limited to citizens aged 21 years old and above and who are not members of the
Senate.6

However, the House may declare a seat vacant for some reasons i.e. disqualification of
membership, the resignation of members, and the absence of members. There are some grounds
that make the membership of Parliament disqualified. Member of either House of Parliament will
be disqualified if (a)he is found or declared as unsound of mind; (b)undischarged bankrupt; (c)he
holds an office of profit, (d)having been nominated for election to either House of Parliament or
to the Legislative Assembly of a State, or having acted as election agent to a person so
nominated, he has failed to lodge any return of election expenses required by law within the time
and in the manner so required; (e)he has been convicted of an offence by a court of law in the

1
Article 44 of Federal Constitution
2
Ibid, art 45
3
Ibid, art 32(3)
4
Ibid, art 47
5
Ibid, art 46
6
Ibid, arts 47 and 49

4
Federation (or, before Malaysia Day, in the territories comprised in the State of Sabah or
Sarawak or in Singapore) and sentenced to imprisonment for a term of not less than one year or
to a fine of not less than two thousand ringgit and has not received a free pardon; (f)he has
voluntarily acquired citizenship of, or exercised rights of citizenship in, any country outside the
Federation or has made a declaration of allegiance to any country outside the Federation.7

First Issue: Whether Mr Jonah will lose his seat in parliament if he hopped into Hasrat party.

Rules : Referring to Article 49A(1) of Federal Constitution where ‘Subject to the provisions of
this Article, a member of the House of the Representatives shall cease to be a member of the
House and his seat shall become vacant immediately on a date a casual vacancy is established by
the Speaker under Clause (3) if (b) having been elected to the house of Representatives otherwise
than as a member of a political party, he joins a political party as a member’.8 Therefore, any
politician who has been elected as a one of the representatives either for his party or independent
in the House of Representative shall not at will hop onto another party, or otherwise, his seat will
automatically be vacant as to that violation. Moreover, illustrating the aim of the Anti-Hopping
Law in which it was enacted to stop politicians from switching parties and committing mischief
towards his party, in a way towards the people. If such an act was not prevented, it will open
more room for other politicians to do the same and such acts as if they transfer power from one
group of politicians to another, undermining the electorate's mandate.9 Hence, such a hopping
party act shall lead one to lose his seat in Parliament.

Moreover, in Zulkifli bin Ibrahim v Dewan Undangan Negeri Pulau Pinang & Anor
[2023] MLJU 440, it is the appeal case where Zulkifli, along with former Seberang Jaya
assemblyman Dr Afif Bahardin, former Bertam assemblyman Khaliq Mehtab Ishaq and former
Telok Bahang assemblyman Zolkifly Md Lazim have filed appeals against the Penang High
Court’s dismissal of their suits early this year where they are trying to challenge the
constitutionality of Article 14A of the Penang State Constitution, and to stop their seats from
being declared vacant, pursuant to Article 14A. However, the High Court Judicial Commissioner

7
Ibid, art 48
8
Ibid, art 49A(1)
9
Anti-Hopping Law

5
Azizan Md Arshad held that he was bound by the Federal Court decision declaring that Article
14A of the State Constitution is valid. Therefore, Article 14A of the Penang State Constitution
states that a state assemblyman must vacate his seat if he resigns, is stripped of his membership,
ceases to be a politician or is chosen as a candidate by another political party.10

Application : By applying above legislation into the scenario, Mr Jonah as an influential

representative in Warisan party will lose his seat in Parliament as soon as he leaves his previous
political party in order to join Hasrat party that has been offered by Mr Adam. Aside from he has
been obscured by a position to be a Deputy President of Hasrat party and higher income, his
action in joining that party is like betraying his previous party by bringing his votes along with
him to a new party and in the meantime, neglecting his followers that believe in him in the
position that he holds in Warisan party. Thus, by switching into another party has triggered anti
hopping laws, therefore, such laws shall be implied onto him as to deter a further hopping party
on the part of other politicians out there.

Conclusion : In conclusion, Mr Jonah will lose his seat in parliament if he hopped into Hasrat
party as it has violated the laws as a member of Parliament.

Second Issue : Whether Mr.Adam will be disqualified from being a member of parliament if he
was charged under corruption ?

Rules : According to Article 48(1)(e) of Federal Constitution, (1) subject to the provisions of
this article, a person is disqualified for being a member of either House of Parliament if (e)he
has been convicted of an offense by a court of law in the Federation or, before Malaysia Day, in
the territories comprised in the State of Sabah or Sarawak or in Singapore and sentenced to
imprisonment for a term of not less than one year or to a fine of not less than two thousand
ringgit and has not received a free pardon.11 It outlines the circumstances under which a seat in
the House of Representatives is considered vacant. In addition , this article should be read with
Article 50(1) of the Federal Constitution ,which stated (1) If a member of either House of
Parliament becomes disqualified for membership of that House his seat shall become vacant.12 In
10
Zulkifli bin Ibrahim v Dewan Undangan Negeri Pulau Pinang & Anor [2023] MLJU 440
11
Article 48(1)(e) of Federal Constitution
12
Ibid, art 50(1)

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short, a member of Parliament loses their eligibility to serve in Parliament and their seat becomes
vacant if they are found guilty of a crime and given a term of imprisonment or fine above.

According to Article 48(4)(a) Of Federal Constitution, notwithstanding anything contained in

the foregoing provisions of this Article, where a member of either House of Parliament becomes
disqualified from continuing to be a member thereof pursuant to paragraph (e) of Clause (1) or
under a federal law made in pursuance of Clause (2) - (a) the disqualification shall take effect
upon the expiry of fourteen days from the date on which he was— (i) convicted and sentenced as
specified in the aforesaid paragraph (e); or (ii) convicted of an offence or proved guilty of an act
under a federal law made in pursuance of Clause (2).13 A Member of Parliament will lose his or
her eligibility to serve as an MP 14 days "from the date" of their conviction and sentencing under
Article 48(1)(e). Put another way, this means that the Member of Parliament will lose their
Member of Parliament status 14 days after being found guilty, imprisoned for a minimum of one
year, fine a minimum of RM2,000, and if they have not received a free pardon. Inter alia, Article
48(4)(b) of Federal Constitution also states that, “(4) Notwithstanding anything contained in the
foregoing provisions of this Article, where a member of either House of Parliament becomes
disqualified from continuing to be a member thereof pursuant to paragraph (e) of Clause (1) or
under a federal law made in pursuance of Clause (2), (b) if within the period of fourteen days
specified in paragraph (a) an appeal or any other court proceeding is brought in respect of such
conviction or sentence, or in respect of being so convicted or proved guilty, as the case may be,
the disqualification shall take effect upon the expiry of fourteen days from the date on which
such appeal or other court proceeding is disposed of by the court.”14 The disqualification of the
Member of Parliament will be postponed and will occur 14 days after the court renders a
decision on any "appeal or any other court proceeding" pertaining to the conviction or
punishment that is filed within this 14-day period.According to Article 48(4)(c) of Federal
Constitution, stated “ if within the period specified in paragraph (a) or the period after the
disposal of the appeal or other court proceeding specified in paragraph (b) there is filed a petition
for a pardon, such disqualification shall take effect immediately upon the petition being disposed
of.15 The member of Parliament will be immediately disqualified when the pardon petition is

13
Ibid, art 48(4)(a)
14
Ibid, art 48(4)(b)
15
Ibid, art 48(4)(c)

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determined if it was filed within 14 days of the conviction or sentence, or within 14 days of the
court's decision on the appeal or court procedure.

It also can be referred to the case of Datuk Seri Najib Razak who was Malaysia’s first
former prime minister to be imprisoned, but remains the member of parliament for the Pahang
constituency of Pekan. He is serving a 12-year prison sentence and has also been fined RM210
million over the embezzlement of RM42 million from government-owned firm SRC
International Sdn Bhd after he failed in his final appeal at the Federal Court on August 23.
According to Speaker of the House of Representatives, Tan Sri Azhar Azizan Harun, Article
48 (4) of the Federal Constitution, allows Najib, a convicted criminal, to sit in parliament.This is
because Najib, according to some lawyers, has filed a petition for a royal pardon.So long as the
King has not decided the fate of His petition, Najib, it is said, can thus continue as an Member of
Parliament.16 Thus, in India, under Section 8(3) of the Representation of the People Act 1951,”
A person convicted of any offence and sentenced to imprisonment for not less than two years
other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from
the date of such conviction and shall continue to be disqualified for a further period of six years
since his release.”17 If a member of Parliament is convicted of an offence and sentenced to
imprisonment for two years or more, he is disqualified from being, or becoming an Member of
Parliament , for six years from his release from prison.18

Application : By applying all the provisions of Federal Constitution and cases stated , it can be
seen the act of Mr.Adam secretly offering Mr.Jonah a huge amount of money to make him join
the Hasrat party that amounts to RM30,000 by way of bribery is an unlawful act that lead to an
offences. If Mr Adam convicted of such offences by the court when he is a member of
Parliament, and is found guilty and sentenced to imprisonment for a term of not less than one
year or to a fine of not less than two thousand ringgit and has not received a free pardon, their
eligibility to serve in the Dewan Rakyat is not revoked until the appeal against their conviction
and sentence is resolved. In precise terms, not until the 14-day period following that appeal has
passed.

16
Ganesan, G. K. 2022. “Has Ex-PM Najib Lost His Parliamentary Seat?” GK Legal. September 11, 2022.
17
Section 8(3) of the Representation of the People Act 1951
18
Ganesan, G. K. 2022. “Has Ex-PM Najib Lost His Parliamentary Seat?” GK Legal. September 11, 2022. ‌

8
Conclusion :Mr. Adam would be disqualified within 14 days if he received a prison term of not
less than a year or fine of not less than two thousand ringgit unless certain steps are taken, such
as filing for pardon.

Third Issue: Whether by expulsion Mr Tan from his political party due to his misconduct, will
cause risk to the seat in parliament.

Rules: In order to answer the legal issue, it was referred to the Malaysian Federal Constitution
under Article 49A (2) where it stated that a member of the House of Representatives shall not
cease to be a member of that House pursuant to this Article only by reason of (a) the dissolution
or cancellation of the registration of his political party; (b) his resignation from the membership
of his political party upon election as a Speaker; or (c) the expulsion of his membership of his
political party19. The most accurate to this issue is para (c) that relates to the expulsion of the
membership from his political party. Before that, expulsion refers to force out (something),
especially from the body. Basically, it happens in political parties when the members do
something that is against the discipline rule of the party and the punishment out of a range of
punishments is expulsion. Even though the party then kicks him out, he can still continue to be a
Member of Parliament. The expulsion would not give effect to the seat in parliament.

It was also referred to the example case that was happened in Malaysian politic on 21
November 2022 where it was reported that The United Malays National Organisation (UMNO)
has expelled former health minister Khairy Jamaluddin, due to wrongdoings during the 15th
General Election (GE15), as he breached the discipline of the party. Among the wrongdoings that
are against the discipline rule are becoming independent candidates, candidates for parties other
than Barisan Nasional (BN) and being involved in helping opponent parties during general
election.

Application : By applying the provision under the federal constitution into the scenario, where it
was stated that Mr Tan basically did not agree with a certain decision that was made by the
leader of Warisan party so because of it, he took an action to incite the other politicians of the
Warisan party to support Hasrat party. Without realizing it, his action was against the discipline
19
Federal Constitution 49A (2)

9
rule under Warisan party. Due to that, he was expelled from Warisan party but he still has a seat
in parliament as mentioned under 49A (2) of Federal Constitution as it would not affect his
position in parliament.

Conclusion : All in all, the expulsion of Mr Tan from his political party due to the breach of
discipline rule of the party, will not cause risk and give effect to the seat in parliament. He would
still be a member of parliament (MP).

CONCLUSION
Overall, seats vacant in the legislature might be because of some grounds that have been
discussed above. One of them is party-hopping, which is the shorthand for change of elected
representatives’ party affiliation, which may take various forms including resignation from party,
expulsion from party, independent lawmakers joining parties, and in Malaysia, parties leaving or
being expelled from coalition. Balancing readability and precision, we would use
‘party-hopping’ in general discussion and ‘party affiliation change’ in legal context.
Furthermore, corruption also can lead to seats vacant in the legislature. By only proving the
testimonies of giving money to the receivers directly or by agents. Lastly, the factor that brings to
the expulsion of one party is going against the rules set by the party. The legislature members
should bind by its regulations once being a member of a party.

However, the system of the legislature is still lacking integrity as seen in years around there
were so many politicians involved in the disqualifications that made them be vacated from their
legislature’s seats, especially by way of corruption.
“O you who believe! Be ever God-fearing! And be with those who are ever truthful."
[Quran, 9:119].

Even Allah (SWT) likes those people who chose to communicate with the truth. A truthful
individual is honoured not just in the sight of Allah (SWT), but also in the community's eyes.
Truthfulness and transparency are essential characteristics of an excellent personality and even a
good Muslim. Islam commands us to follow the pathway of justice, which is guided by the
absolute truth and nothing else than the truth.

10
 REFERENCES

Anti-Hopping Law

The Malaysian Federal Constitution

Ganesan, G. K. 2022. “Has Ex-PM Najib Lost His Parliamentary Seat?” GK Legal.
September 11, 2022.
https://www.gkg.legal/has-ex-pm-najib-lost-his-parliamentary-seat/.

Official Portal of The Parliament of Malaysia -. (n.d.).

https://www.parlimen.gov.my/glosari1.html?&lang=en

‌“Section 8(3) in the Representation of the People Act, 1951.” n.d. Indiankanoon.org..
https://indiankanoon.org/doc/1858044/.

Prof Wong Chin Huat and Wo Chang Xi, (2022), ADVANCING DEMOCRATIC
REPRESENTATION, STABILITY AND ACCOUNTABILITY: Regulating Change of Party
Affiliation in Malaysia. https://rb.gy/ewl0dr

Zulkifli bin Ibrahim v Dewan Undangan Negeri Pulau Pinang & Anor [2023] MLJU 440

11