PETALING JAYA: A retired Federal Court judge believes Umno is likely to fail in its attempt to recover costs from elected representatives who have crossed over to PPBM, given existing court rulings on similar cases.
Speaking to FMT, Gopal Sri Ram 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 is illegal and void.
For the same reason, he said, a claim based on breach of trust might also fail.
“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.
“If a political party sues to compel resignation or even to recover election expenses, the member could 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.
Umno is filing lawsuits to seek damages from former leaders Mustapa Mohamed, Hamzah Zainudin and Ikmal Hisham Abdul Aziz for alleged breach of contract in leaving the party last year.
The suits were filed at the Kota Bahru and Kuala Lumpur High Courts on Tuesday.
The former dominant party in the Barisan Nasional coalition wants the three current PPBM members to pay a total of RM600,000 in damages.
“Umno approved their membership applications and thus there exists a contractual relationship between the defendants (the three MPs) with us,” the party said.
Umno also said it had given RM200,000 each to Mustapa, Hamzah and Ikmal to spend on the general election.
Umno claimed that voters under the Jeli, Larut and Tanah Merah constituencies had lost confidence in the party.
“We have also lost the parliamentary seats,” the party added.
Umno is seeking general and aggravated damages from Mustapa, Hamzah and Ikmal as well as a court declaration that they breached their contracts with the party.
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 on 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.
Sri Ram said it was unlikely that the apex court would depart from established precedents.