Can UMNO sue Rembia ADUN RM100 million for ‘hopping’ to PAS? Here’s everything you need to know
Despite the Anti-Hopping law already enforced in Malaysia for almost 2 years now, it seems that political stability, the intention behind said law, is yet to be achieved in our country. Previously, we shared how the 6 Bersatu Members of Parliament (MPs) who supported Datuk Seri Anwar Ibrahim are ‘exempt’ from the law simply due to them not technically hopping to another political and that Bersatu’s amended party constitution which made them ‘ceased to be a Bersatu member’ was deemed by Dewan Rakyat Speaker Tan Sri Johari Abdul as denying the rights of the MPs which are enshrined under the Federal Constitution, Parliament Standing Order and the House of Parliament (Privileges and Powers) Act 1952.
In lieu of that, a seemingly blatant offence under the Anti-Hopping law took place at the Melaka State Legislative Assembly (DUN) after the assemblyperson for Rembia Datuk Muhammad Jailani Khamis openly left UMNO and joined PAS. Again, the Rembia ADUN won’t have to vacate his seat as per the Anti-Hopping law due to a reason that we’ll explain later in this article.
That’s the least of his problems though, as due to him jumping ship to another party, UMNO has threatened to bring Jailani to court and sue him for a whopping RM100 million. So, can UMNO really bring the Rembia ADUN to court and claim damages of RM100 million for defecting from the party? Well, join us as we delve into the relevant laws and precedence below.
Why ADUN Rembia isn’t affected by the Anti-Hopping law despite defecting to PAS
Given that Jailani is an assemblyperson in the Melaka DUN, the Anti-Hopping law won’t affect him as the said law is only applicable to MPs and as an ADUN in Melaka, he is only bound by the Melaka State Constitution.
While all State Constitutions must be consistent with the Federal Constitution as the highest law of the land, as of the Rembia ADUN’s defection from UMNO, the Melaka DUN has yet to amend the State Constitution to include the Anti-Hopping law or introduce any enactments or ordinance pertaining on the matter.
Hence, Jailani should be exempt from having to vacate his seat at the Melaka DUN for hopping to another party.
Can UMNO sue the Rembia ADUN RM100 million for defecting?
As reported by Malay Mail, UMNO Secretary-General Datuk Seri Asyraf Wajdi Dusuki revealed that prior to the 15th General Election, Jailani had signed a contract and statutory declaration with UMNO that would punish him if he quits the party.
In the contract, which Asyraf showed to reporters, UMNO and Barisan Nasional (BN) stipulated that those who signed the contract would have a bond of RM100 million should they jump parties.
Do note that this contract and statutory declaration by UMNO is not something new, as it has been practised by the party since the time of the 3rd Prime Minister Tun Hussein Onn. Most notably, Hussein revealed the existence of such a practice in Parliament in March 1978 when then Opposition Leader Tan Sri Lim Kit Siang tabled a Private Member’s Bill for an Anti-Hopping law.
However, no UMNO or BN member was ever taken to court for breaching this contract, so can it really be enforced?
Well, the simple answer is yes, thanks to a precedent that was set by the Kuala Lumpur High Court when PKR successfully claimed damages of RM10 million against former Ampang MP Datuk Zuraida Kamaruddin for breaching a similar bond with the party after GE14.
In the judgement of the civil suit by PKR against Zuraida, Justice Akhtar Tahir said that the bond signed by the former Ampang MP on 25 April 2018 was a valid and binding contract. The learned judge also stressed that the RM10 million sum was not disproportionate as the former Ampang MP had acknowledged in court that the PKR had spent an amount exceeding RM10 million on her candidacy during the 14th General Election (GE14).
Justice Akhtar Tahir further asserted that the sum was reasonable to deter party members from acting against the party’s interests. The court also noted that based on the bond, the defendant had promised to pay RM10 million on the occurrence of 3 events, one of which was if she was terminated from the party.
Potential defence Jailani can take against UMNO’s imminent lawsuit
Should UMNO take the Rembia ADUN to court, Jailani may raise several avenues of contention against the civil suit, 1 of which is whether the bond went against Article 10 of the Federal Constitution which prescribes freedom of association.
Moreover, he may also argue that since Melaka has yet to adopt the Anti-Hopping law, the bond that he signed shouldn’t apply to him as a Melaka assemblyperson.
Besides that, the Rembia ADUN may question the validity and enforceability of the bond on whether it falls under 1 of the exceptions under Section 24 of the Contracts Act which details the considerations and objects that are lawful and what are not.
In the same vein, Jailani may also argue that the bond was signed under coercion. As per the Contracts Act 1950, “coercion” has two definitions, one under Section 15 and another under Section 73 of the Act, as noted by the court. Section 15 of the Contracts Act 1950 prescribes coercion as the act of committing or threatening to commit any act forbidden by the Penal Code or the unlawful detaining or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.
Meanwhile, coercion’s definition under Section 73 of the Act is used in its general and ordinary sense as an English word. Through this definition, the word ‘coercion’ is not constrained by what Section 15 prescribes and can be defined in every way possible, as long as it is in line with the meaning of the word.
So, why does the Contracts Act 1950 prescribe 2 definitions for coercion? Well, according to the judgement in Chin Nam Bee Development Sdn Bhd v Tai Kim Choo & Ors [1988] 2 MLJ 117, the reasons are:
Contracts Act 1950 is divided into 10 parts, with Part III (which Section 15 is a part of) dealing with “Contracts, Voidable Contracts and Void Agreements”. In order to raise coercion under Section 15, the elements of consent must be available or not available to a party
Meanwhile, Section 73 is under Part VI of the Act which deals with matters “of certain relations resembling those created by contract” such as agreements which resemble a contract
Section 2 of the Act never stated that the meaning of the word “coercion” must be uniform. Furthermore, as both provisions deal with different scenarios, a uniform definition would make it difficult to apply in court
Given that Rembia ADUN’s bond with UMNO is considered a contract, then “coercion” as prescribed by Section 15 of the Contracts Act 1950 is applicable. In that regard, the judgement in Pao On v Lau Yiu Long [1980] A.C. 614 defined the factors in determining coercion:
“In determining whether there was coercion in contract of will such that there was no true consent, it is material to inquire whether, at the time he was allegedly coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or he did not have an alternative course open to him such as adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it.”
Accordingly, should Jailani plan to raise this defence in a civil suit by UMNO, he must prove that the bond signed with the party was made under coercion according to the above factors.
Of course, these are all mere speculations and theoretical as UMNO has yet to initiate any civil suit as of the time of writing. Should there be 1, we’re sure that all eyes would be focused on how it would eventually pan out.
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