PETALING JAYA: Umno will fail in its attempt through the courts to recover costs from its elected representatives who switched camp after the May 9 election, says retired judge Gopal Sri Ram.
Sri Ram said existing court rulings on similar cases were stacked against Umno, and cited two Federal Court decisions: Datuk Ong Kee Hui v Sinyium Anak Mutit, and Nordin bin Salleh v Dewan Undangan Negeri Kelantan.
He said any contract between an elected representative and his political party that he would vacate his seat and return election expenses upon defection was illegal and void.
“Even an anti-hopping law is unconstitutional and invalid as held in Nordin’s case,” he told FMT.
Sri Ram said a court would not indirectly enforce a matter which could not be directly enforced.
“So if a political party sues to compel resignation or even to recover election expenses, the member is entitled to succeed on grounds of public policy,” he added.
He said the law could neither directly nor indirectly enforce an arrangement that forbids resignation from a political party.
On Saturday, Umno president Ahmad Zahid Hamidi announced that his party was in the process of taking legal action against its MPs and assemblymen who defected in a bid to recover campaign expenses incurred during the general election.
Zahid said summonses had already been sent to them, and that they were told to vacate their seats to make way for fresh elections.
In 1982, the Federal Court ruled that submitting an undated resignation letter to the speaker was contrary to public policy and therefore void.
Then-Federal Court judge Salleh Abas said: “The system of representative government is based upon freedom of choice.
“The electors must be free to choose a candidate to represent them in the legislature, while the candidate who is successfully returned must in turn be free to act in accordance with his independent judgment.
“Any arrangement depriving him of this independence is frowned upon by the law as violating public policy.”
In another well-known case, Nordin Salleh (Sungai Pinang) and Wan Mohamed Najib Wan Mohamaed (Limbongan) won their state seats under the then-Semangat 46 ticket in the 1990 general election.
However, both defected to Umno in 1991. The Kelantan state assembly amended the state constitution and passed an anti-hopping law that took retrospective effect from Nov 18, 1990.
The speaker declared the seats vacant and both men contested again in by-elections but lost.
The duo then sought legal remedy and the Supreme Court in 1992 held that the amendment to the state constitution was designed to enforce party discipline, not impose restrictions on state assemblymen.
The court said the amendment breached Article 10 of the Federal Constitution which guarantees freedom of association.
Nordin and Wan Mohamed were subsequently reinstated as assemblymen.