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KOTA KINABALU: Warisan shouldn’t have too much hope that Sebatik Assemblyman Hassan A Gani Pg Amir will vacate his seat via a resignation letter he signed with the party ahead of the Sabah elections last year.
Attorney Roger Chin said there are laws in place in the country that allow assembly members to defect without losing their seats.
He recalled the 1992 case of the Kelantan state assembly against Nordin Salleh, which ruled that a deputy or an assemblyman could not be penalized with the loss of his seat if he passed to another political party.
Chin said the court had ruled that it went against Article 10 (1) (c) of the Federal Constitution that guaranteed freedom of association.
Furthermore, the Federal Court had ruled in 1982 in the case of the member of the Sarawak United People’s Party, Ong Kee Hui, against the then chairman of the Sinyium Mutit party, that the agreement to present an undated letter of resignation to the speaker was contrary to the public order and therefore void.
“The chances of success (for Warisan) are not good,” he told FMT.
Warisan Chairman Shafie Apdal said Monday that Hassan made a promise and signed a Warisan loyalty document in front of the party’s lawyers ahead of state elections in September.
Journalists were also shown a video of Hassan pledging his allegiance, where he had promised to surrender his resignation as a Sebatik assemblyman to the governor of Sabah and the state assembly if he changed parties.
Hassan has maintained that the letter was invalid as he had no choice but to swear allegiance to become a candidate.
Warisan Secretary General Loretto Padua Jr yesterday delivered Hassan’s resignation letter to the state president’s office.
Spokesperson Kadzim M Yahya acknowledged receipt of the letter, but said Hassan had also filed a legal statement to revoke and withdraw any letter he signed with Warisan before becoming a candidate for the elections.
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 by the Federal Constitution.
As it stands, he said, Malaysian laws allow assembly members to defect from one political party to another without vacating seats.
“An assemblyman is free to associate or disassociate himself with any person or party. Only Parliament can impose restrictions on freedom of association, especially on political parties, and also for specific reasons provided for in the federal Constitution and for no other reason.
“Therefore, in my opinion, it is irrelevant whether or not Hassan had voluntarily signed the resignation letter. Political parties cannot force an assembly member to promise to resign and leave the state seat vacant (in case of desertion), ”he said.
Yong said that even if the letter is accepted by the speaker, Hassan could take the matter to court and challenge the decision to enforce an “unenforceable” promise.
“A decision to accept an invalid previously signed resignation letter would be unconstitutional. This is precisely why an anti-hopping law is needed, ”he said.
