©The Nut Graph (Used by permission)
by Tommy Thomas
I WOULD like to elaborate on the comments I made during the course of my telephone conversations with The Nut Graph senior journalist Deborah Loh which was posted in Hard for PKR duo to contest resignations on 2 Feb 2009.
Two separate matters call for discussion: first, the legal effect of an undated resignation letter signed by a politician and given to his [or her] party leader, and secondly, party hopping.
Signed undated resignation letters
Absent vitiating factors that the law recognises like forgery, fraud, undue influence, duress and illegality, an adult (not a minor or someone suffering from mental incapacity) is deemed to be responsible for handing over to a third party any signed document.
Thus, if Mr A hands a signed blank cheque to Mr B who then uses it to withdraw more monies than Mr A had in mind, Mr A cannot complain because he "armed" Mr B to make use of the signed cheque in any way he wished. Hence the expression "carte blanche" or giving a blank cheque, that is, giving full discretionary powers to another. Similarly, the giving of a credit card to another to use.
Likewise, in many other areas of law, signed undated documents are valid. They are regularly used in company and corporate documents. In conveyancing, it is common for people who sign private caveat forms to also sign withdrawal of caveat forms at the same time. Documents signed in "escrow" play a significant role in business transactions. As a matter of principle, the law should apply with equal force to politicians.
My attention has been drawn to the decision of the Federal Court in Ong Kee Hui v. Sinyium Anak Mutit [1983] 1 MLJ 36. In my opinion, that decision was very much influenced by the fact that the politicians who signed undated resignation letters and gave them to the Sarawak United People's Party (SUPP) also agreed to donate their parliamentary remuneration to that party.
In consequence, inadequate consideration was given by the Federal Court to the issue that is relevant for present purposes, namely, the validity of resignation letters per se, without any complications of financial benefits.
Having regard to the matters discussed in the paragraphs above (which were not mentioned by the Federal Court in the Ong Kee Hui case), and the fact that it is universal practice for politicians of all shades in most countries to operate on such basis, I am not convinced that this decision cannot be distinguished in present circumstances.
Anti–hopping
I refer to Dewan Undangan Negeri Kelantan v. Nordin Salleh [1992] 1 MLJ 697. In this case, the Supreme Court held that Article XXX1A of Part I of the Constitution of the State of Kelantan was unconstitutional. The court ruled that the state constitution's provision that a state assemblyperson who ceased to be a member of his or her political party also ceased to be a state assemblyperson was inconsistent with Article 10(1)(c) of the Federal Constitution. The said article guarantees freedom of association.
The Nordin Salleh case is therefore authority for the proposition that members of Parliament and state legislative assemblies cannot be penalised by forfeiting their seats if they cross over from political party A to party B. It follows that a by–election is not required in law if such a crossover takes place.
I hope this note clarifies both these issues. I was not misquoted yesterday. Merely that to do justice to the two separate but, to some extent, related matters, a more exhaustive piece is necessary: its length is regretted.
Tommy Thomas
Kuala Lumpur
3 Feb 2009
Absent vitiating factors that the law recognises like forgery, fraud, undue influence, duress and illegality, an adult (not a minor or someone suffering from mental incapacity) is deemed to be responsible for handing over to a third party any signed document.
Thus, if Mr A hands a signed blank cheque to Mr B who then uses it to withdraw more monies than Mr A had in mind, Mr A cannot complain because he "armed" Mr B to make use of the signed cheque in any way he wished. Hence the expression "carte blanche" or giving a blank cheque, that is, giving full discretionary powers to another. Similarly, the giving of a credit card to another to use.
Likewise, in many other areas of law, signed undated documents are valid. They are regularly used in company and corporate documents. In conveyancing, it is common for people who sign private caveat forms to also sign withdrawal of caveat forms at the same time. Documents signed in "escrow" play a significant role in business transactions. As a matter of principle, the law should apply with equal force to politicians.
My attention has been drawn to the decision of the Federal Court in Ong Kee Hui v. Sinyium Anak Mutit [1983] 1 MLJ 36. In my opinion, that decision was very much influenced by the fact that the politicians who signed undated resignation letters and gave them to the Sarawak United People's Party (SUPP) also agreed to donate their parliamentary remuneration to that party.
In consequence, inadequate consideration was given by the Federal Court to the issue that is relevant for present purposes, namely, the validity of resignation letters per se, without any complications of financial benefits.
Having regard to the matters discussed in the paragraphs above (which were not mentioned by the Federal Court in the Ong Kee Hui case), and the fact that it is universal practice for politicians of all shades in most countries to operate on such basis, I am not convinced that this decision cannot be distinguished in present circumstances.
Anti–hopping
I refer to Dewan Undangan Negeri Kelantan v. Nordin Salleh [1992] 1 MLJ 697. In this case, the Supreme Court held that Article XXX1A of Part I of the Constitution of the State of Kelantan was unconstitutional. The court ruled that the state constitution's provision that a state assemblyperson who ceased to be a member of his or her political party also ceased to be a state assemblyperson was inconsistent with Article 10(1)(c) of the Federal Constitution. The said article guarantees freedom of association.
The Nordin Salleh case is therefore authority for the proposition that members of Parliament and state legislative assemblies cannot be penalised by forfeiting their seats if they cross over from political party A to party B. It follows that a by–election is not required in law if such a crossover takes place.
I hope this note clarifies both these issues. I was not misquoted yesterday. Merely that to do justice to the two separate but, to some extent, related matters, a more exhaustive piece is necessary: its length is regretted.
Tommy Thomas
Kuala Lumpur
3 Feb 2009