By Julia Chan | Malay Mail
Lawyers have downplayed the effectiveness of a pre-signed letter by Sebatik assemblyman Hassan Gani Amir, which states that he would have vacated his seat after he left Parti Warisan Sabah.
The lawyers said the letter will likely not be enforceable by court due to freedom of association laws in Malaysia, and that the State Assembly can choose to disregard the letter.
“As we know, any contract which prevents switching parties is unenforceable. Any promise he made to resign cannot be enforced against him because it violates Article 10, which provides for freedom of association — it is an unenforceable promise,” said lawyer New Sin Yew.
Article 10(1)(c) of the Federal Constitution guarantees freedom of association.
Sabah-based lawyer Roger Chin also said that Hassan, even if he had voluntarily signed the letter at the time, cannot be held to the promise as there are laws in the country to allow state assemblymen to defect without losing their seats.
“The 1992 case of the Kelantan State Legislative Assembly v. Nordin Salleh showed that a Member of Parliament or state assemblyman could not be penalised by forfeiting his seat if he crossed over to another political party,” said Roger, who is also Sabah Law Society president.
“Further, the Federal Court had ruled in 1982 in the case of Sarawak United People’s Party member Datuk Ong Kee Hui vs the then party president Sinyium anak Mutit that the arrangement of submitting an undated resignation letter to the Speaker was contrary to public policy and therefore void.
“So political parties cannot bind them to such promises,” he added.
Both lawyers said that it is still common practice for political parties to get their elected or potential elected representatives to sign such letters or contracts.
“The Speaker has to decide — did the representative want to resign on the date his resignation letter was sent to the speaker? Especially if the letter was not sent by the representative. If he did not, then it cannot be said that he resigned.
“So what do we make of the resignation letter which he signed and gave to the party when he became a candidate? It’s nothing more than an unenforceable contract,” said New.
Roger said that the Speaker can still choose to accept the letter, but then the case would end up in court if the assemblyman chooses to do so.
Another Sabah-based lawyer, Chin Teck Ming, agreed that the State Assembly Speaker can choose whether to accept the letter of resignation or not, and if not, the party then later can bring the matter to court and the court can decide on its validity.
“But whatever it is, him saying he was forced to sign it does not hold up in argument. According to the law, he is an adult of the age of consent, and is aware of what he signed.
“He is not under duress. Nobody put a gun or knife to him or threatened violence. It should be seen as his intention to be loyal to the party,” said Chin.
On February 25, first-time assemblyman Hassan told national news agency Bernama that he was leaving his party, Parti Warisan Sabah, to support the Gabungan Rakyat Sabah state government.
The party yesterday released a video clip of him taken before the state elections last September, pledging to remain in Warisan throughout his term if he was elected, and agreeing to sign a resignation letter which could be used against him should he leave the party or be sacked, among other reasons.
Warisan president Datuk Seri Shafie Apdal said that the letter would soon be forwarded to the State Assembly, governor and Election Commission and said that it should be considered valid as Hassan had signed it on his own freewill.
The pre-signed letter announcing his effective resignation, along with a lawyer’s consent letter, was sent to the State Assembly Speaker’s office at 12.15pm today.
Hassan posted on his Facebook wall that he was “forced” to make the pledge or else he would not be named as candidate.