Monday, February 2, 2009

YBs signing undated letter of resignation?

The question of YBs signing undated letters of resignation had been argued in the Federal Court in the case of Datuk Ong Kee Hui v. Sinyium Anak Mutit (1983) 1 MLJ 36
In the light of the above stated Federal Court decision, the signing of the undated letter of resignation is null and void ad initio.

Nevertheless, the issues as laid down in the case consist of:-

1. The claim for damages and refund of the remuneration of the Member of Parliament.

2. The vacating of his seat in Parliament.

We are only concern about the vacating of the seat in Parliament or the State Assembly (as in the Perak case) i.e. upon the submission of the dated letter of resignation to the Speakers.

The Federal Court had observed that “The system of representative government is based upon freedom of choice. The electors must be free to choose a candidate to represent them in the legislature, whilst the candidate who is successfully returned must in turn be free to act in accordance with his independent judgment. Any arrangement depriving him of this independence is frowned upon by the law as violating public policy” (pg 39 of the Judgment)

Looking at the case from a different perspective, the seat in Parliament was declared vacant by the Speaker upon the submission of the letter and that the decision by the Speaker was not the subject matter of the case before the Federal Court.

Thus, in the event that the undated letter is inserted with a date just before the handing over to the Speaker, the Speaker need not look at the circumstances behind the preparation of the letter and will have to accept it without question. As such, the intention of getting the YB to resign will be achieved.
The YB will then have to prove to the Speaker and the Court that he or she had signed a blank letter of resignation or an undated letter. The burden of proving that he or she had signed it under duress or likewise will be on the YB.

The question now is whether the undated letter can be given a date now and can the party exercise it's right to submit the letter wantonly?

If the same subject matter be brought to court again in the light of the Perak case, will the court decide likewise or will the court give a new meaning to "public policy"? Is it against public policy and public interest to change political party? Did the YB win the election because he represent a certain political party or did he win the election individually? What about if a "Bebas YB" abandoned his "bebas party" and decide to join a political party? Will his seat be vacated too?
Let us wait and see...

5 comments:

  1. Hello DSN

    Why dun they just date it?
    Bukannya susah, tulis saja-lah date..

    ReplyDelete
  2. Hahaha Jed,
    The letter was not dated because it was signed immediately after winning the election...

    ReplyDelete
  3. I am linking your blog to support my arguments.. I'm too lazy to find MLJ or law books to look up cases, thanks

    marahku.blogspot.com

    ReplyDelete
  4. Tuan DSN,

    Ana minta izin buat pautan blog Tuan ke Blog Ana. Terima Kasih.

    ReplyDelete
  5. Dato' Sam,YBs signing undated letter of resignation not valid lah.Just like issue undated or not sign cheque.

    ReplyDelete

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