Lawyer Roger Chin said there are established laws in the country to allow assemblymen to defect without losing their seats.
He recalled the 1992 case of the Kelantan state assembly versus Nordin Salleh, which ruled that an MP or assemblyman could not be penalised by forfeiting his seat if he crossed over to another political party.
Chin said the court had ruled that it went against Article 10 (1) (c) of the Federal Constitution which guaranteed freedom of association.
“Further, the Federal Court had ruled in 1982 in the case of Sarawak United People’s Party member Ong Kee Hui versus then party president Sinyium Mutit that the arrangement of submitting an undated resignation letter to the speaker was contrary to public policy and therefore void.
“The chances of succeeding (for Warisan) are not good,” he told FMT.
Warisan president Shafie Apdal said on Monday that Hassan made a pledge and signed a document of allegiance to Warisan in front of the party’s lawyers before the state election in September.
A video of Hassan swearing his allegiance was also shown to reporters where he had promised to hand in his resignation as Sebatik assemblyman to the Sabah governor and the state assembly if he switched parties.
Hassan has maintained that the letter was invalid as he had no choice but to swear his allegiance to become a candidate.
Warisan secretary-general Loretto Padua Jr handed over Hassan’s resignation letter to the state speaker’s office yesterday.
Speaker Kadzim M Yahya acknowledged receipt of the letter but said Hassan had also submitted a statutory declaration to revoke and withdraw any letter he signed with Warisan before becoming a candidate for the election.
Kadzim said he would need to discuss the legal implications with the Sabah attorney-general today before making a decision.
Another lawyer, Yong Yit Jee, said the letter was invalid and unenforceable because it violated the freedom of association guaranteed under the Federal Constitution.
As it stands, he said, Malaysian laws allow assemblymen to defect from one political party to another without vacating the seats.
“An assemblyman is free to associate or dissociate himself with anyone or party. Only Parliament may impose any restrictions on the freedom of association, especially on political parties, and that too on specified grounds provided for under the Federal Constitution, and on no other grounds.
“Thus, it is my view it is irrelevant whether or not Hassan had voluntarily pre-signed the letter of resignation. Political parties cannot bind an assemblyman to a promise of resigning and vacating the state seat (in case of a defection),” he said.
Yong said even if the letter is accepted by the speaker, Hassan could bring the matter to court and challenge the decision to enforce an “unenforceable” promise.
“The decision to accept an invalid pre-signed letter of resignation would be unconstitutional. This is precisely why an anti-hopping law is needed,” he said.