KOTA KINABALU: A legal bid by Parti Warisan to force incumbent Hassan Amir Gani to vacate the Sebatik state seat was struck out by the High Court, which declared that the undated signed resignation letters were unlawful.
Kota Kinabalu High Court judge Justice Wong Siong Tung in passing the judgment on Thursday (June 23) said that an elected representative should be able act on his own independent judgment and should not be legally constrained by the party or the electorate.
He said the combination of undated signed resignation letters and pledge of loyalty to Warisan prior to the 2020 state elections equalled an unlawful scheme.
'An elected member of legislature should be free to act according to the best of his or her ability and his independent judgment should not be legally constrained by obligations to either his party or to the electorate or subject to be dictated by anybody.
"Any arrangement that fetters or deprives such freedom of elected members of the legislature will be contrary to public policy and is unlawful," Justice Wong said.
"Any cause of action based on such an arrangement to deprive such freedom cannot be sustained in law.
"The appropriate penalty of the elected member of legislature for broken political promises is for the voters or electors to consider voting differently at the next opportunity," he added.
Justice Wong also ordered Warisan, represented by its secretary-general Datuk Loretto Padua in the suit, to pay RM5,000 in cost to Hassan, the defendant.
Warisan had filed a suit to declare the Sebatik seat vacant as Hassan had won it on a Warisan ticket in the Sept 26, 2020 snap state elections.
Hassan defected to the ruling Gabungan Rakyat Sabah (GRS) state government on Feb 25, 2021.
In Warisan's pleadings, Padua sought to enforce an alleged “pledge of loyalty” and “pre-signed undated letter of resignation” both of which were allegedly undertaken and signed by Hassan.
According to Warisan's suit, Hassan was under a special obligation or equitable duty to vacate his seat in the event that he broke the alleged pledge of loyalty.
Hassan, who was defended by Tengku Datuk Fuad Ahmad, had argued earlier that the use of such "alleged" undated signed letters had gone against parliamentary democracy and the Federal Constitution.
In his pleadings, Fuad said that Warisan - through so-called pledges of loyalty and alleged undated and pre-signed resignation letters - engaged in an unlawful scheme, with the aim "to control, curtail and fetter an assemblyman's constitutional right under Article 10 of the Federal Constitution to associate with, or disassociate from, any political party".
"When it became clear to my client that Warisan could neither meet the needs nor bring development to his constituents, he lawfully and correctly, exercised his constitutional rights and disassociated himself from Warisan.
"The right of an assemblyman to put the best interests of his or her constituents first, is fundamental to Malaysia's system of parliamentary democracy.
"The needs of a political party must never come before the interests of the people," Fuad said in his pleadings.
Warisan was represented by Goldam Hamid and Syful Sufyian Bin Sidin and the party is expected to appeal the verdict.
Hassan was the first Warisan assemblymen to defect and was followed by five others after they won 23 of the 73 state seats in the state assembly during the 2020 snap state polls.
The party has initiated similar legal actions against the other assemblymen who had defected to align themselves with GRS parties over the last 12 months.
