Tuesday, February 3, 2009

Reps can rescind quit letters, say lawyers

New Straits Times
by David Yeow and Azura Abbas

KUALA LUMPUR: Perak Parti Keadilan Rakyat assemblymen Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Mohd Jailu (Changkat Jering) can rescind their undated resignation letters, say legal experts.

Lawyer Datuk Baljit Singh Sidhu said the two assemblyman could retain their posts despite allegations that they had vacated their seats.

"All they have to do is inform the Election Commission that they have not resigned as members of the Perak state assembly.

"The resignation letters could be retracted on the grounds that the two have had a change of heart," said Baljit, who is Federal Territory legal bureau chairman.

"There is no law to stop them from revoking whatever they signed before.

"If the two can sign it freely, they can also freely revoke their intention."

He said that despite claims by Perak Speaker V. Sivakumar that he had handed the two resignation letters to the state EC, the move could be reversed by having both assemblymen file an application with the commission to quash the resignation letters.

"At the same time, they can also inform the EC of their intention to change party, if need be."

Senior lawyer Roger Tan said the letters could also be revoked if the two politicians could prove that they had been coerced into signing them.

"I think one of the politicians has stated that he was forced to sign his resignation letter. That statement itself has raised the legality of the letter."

He added that any agreement entered into under duress would be struck out as null and void by the courts.

He added that party-hopping was not unlawful in Malaysia and no document could restrict an individual from doing something lawful.

"Article 10(1)(c) of the Federal Constitution expressly states that all citizens have the right to form associations, that is, to join, not to join or leave any association.

"This means that if the resignation letters were signed to impede politicians from crossing over, then the agreement itself is unconstitutional and cannot be enforced."

According to Tan, in 1992, the then Supreme Court (now Federal Court) had the opportunity to decide in the case of Dewan Undangan Negeri Kelantan v Nordin Salleh 1992 whether an amendment to the Kelantan constitution which prohibits party-hopping was inconsistent with Article 10(1)(c).

Article XXXIA of Part I of the Kelantan constitution pro- vides that if any member of the legislative assembly who is a member of a political party resigns or is expelled from, or for any reason ceases to be a member of such political party, he shall cease to be a member of the legislative assembly and his seat shall become vacant.

The Supreme Court declared that such a law was invalid because the restriction imposed by the Kelantan constitution could not be a restriction imposed under clauses 2(c) and (3) of Article 10 as it was a law passed by a state legislature and not the Federal Parliament.

Tan, who was formerly the Malaysian Bar Council's conveyancing practice committee chairman, said the Perak episode was another reason why Malaysia needed laws against party-hopping.

"If only we had an anti-hopping legislation now, there would not be so much politicking and uncertainty going on with members of political parties sardonically enticing each other to join them.

"If we can have Article 48(6) of the constitution which disqualifies a person who has resigned from the Dewan Rakyat from running again in a general election for five years from the date of his resignation, then I see no reason why we should not have a law requiring any MP who defects to another political party to resign so that a fresh election can be held."

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