Friday, March 26, 2010

Legal remedy possible against party hoppers says NH Chan

For their willful betrayal of trust, is there a cause of action against the turncoat MPs and assemblypersons who jumped ship? The answer is yes.

Consider using the principle of estoppel in determining a cause of action for affected voters and the political parties on whose ticket the turncoats were elected as their representatives in Parliament and in the Perak Legislative Assembly, to sue these traitors.

NONEThe other day someone gave me a copy of Harakah of March 8-11 2010. In the English section I came across this piece written by P Ramakrishnan, Aliran president:

"12 February 2010 ... marked the first PKR resignation - the MP for Bayan Baru - and [that] sparked the dishonourable exit of two more traitors of the voters who supported the Pakatan Rakyat by electing these renegades. On 1 March 2010 the MP for Nibong Tebal, Tan Tee Beng (left), and two days later on 3 March, the MP for Bagan Serai, Mohsin Fadzli Samsuri, announced their resignations respectively.

"All of them suddenly seemed to have grievances with their party and its policies. ... These views do not reflect the views of their voters nor are they supported by those who voted for the PR at the last general election. Their selfish conduct has condemned them to doomsday for subverting parliamentary democracy. They will find no peace of mind after this terrible, willful betrayal of trust.

"These riff-raff have deserted the voters who elected them and betrayed the party that fielded them. Their individual action has betrayed thousands of voters in their constituencies and completely discarded their sentiments. Aren't they accountable to their constituents?

NONE"Zahrain (right) has disappointed 27,618 voters; Tee Beng has frustrated 20,210 voters and Mohsin has let down 18,943 voters. In all, they have betrayed a total of 66,771 constituents whose support had put them in Parliament and helped them to earn thousands of ringgits monthly.

"These are the same unprincipled and vile characters like the ones in Perak who jumped ship, perverted the democratic process and frustrated the popular will of the Perakians.

"The man who accompanied each of these traitors when their resignations were announced was the former Secretary-General of PKR, Datuk Salehuddin Hashim. ... he is seen as the hand engineering the betrayal of the voters and the party ...."

The cause of action

In Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 (FC), Gopal Sri Ram JCA (as he was then) said, p 344:

"The time has come for this court to recognise that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless."

And at p 345, he said:NONE
"The width of the doctrine has been summed up by Lord Denning (left) in the Amalgamated Investment case ([1982] 1 QB 84 at 122; [1981] 3 All ER 577 at 584; [1981] 3 WLR 565 at 575) as follows:

"The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption - either of fact or of law - whether due to misrepresentation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands." (The emphasis is supplied by me).
That was how the modern principle of estoppel as stated by Lord Denning in the Amalgamated Investment case became part of Malaysian common law.
As a result, the affected voters and the political parties on whose ticket the turncoats were elected as their representatives in Parliament and in the Perak Legislative Assembly now have a cause of action to sue them.

It has to be a specially indorsed writ with a statement of claim. It should be a claim for a declaration for such remedy as the equity of the case demands.

There could even be a claim for an injunction to restrain the turncoats from falsely holding out that they represent those who had voted for them as an independent MPs or assemblypersons.
Unjust enrichment
Since their claim as independent members of Parliament or assemblypersons were false because they were, in actual fact, elected by those who voted for PR at the last general Federal and State elections, there could now be a claim against them for damages and for unjust enrichment.

In other words, as trustees they are not entitled to any secret profit or financial benefit they might have received; they must hand over their ill-gotten gains - say if they have been rewarded for crossing over - to the actual beneficiary, namely, the political party on whose ticket they got elected.

It is also useful to claim for an account and a tracing order - in case they have converted the reward money into other assets or into different bank accounts, even overseas accounts. If they have bought land or chattels in another person's name with the ill-gotten money there is a resulting trust of the assets to the actual beneficiary which is the political party on whose ticket they got elected.

These are my random thoughts. I am sure the legal experts who act for the claimant/plaintiff could formulate the statement of claim better than I can.

For further reading on estoppels, see Lord Denning The Discipline of Law, p 218 - 'Combining the estoppels' which culminates at p 223 with these words:

"In stating the principle, and its extensions, the lawyers use the archaic word 'estoppel'. I would prefer to put it in language which the ordinary man understands:

"It is a principle of justice and of equity. It comes to this: When a man, by his words or conduct, has led another to believe that he may safely act on the faith of them - and the other does act on them - he will not be allowed to go back on what he has said or done when it would be unjust or inequitable for him to do so."

Or better still you can read from the beginning of its development starting from The High Trees case, at p 197 et seq.

written by NH CHAN, who was admitted to the Bar in 1961 and was a lawyer for almost two decades before becoming a High Court judge. He was then elevated to the Court of Appeal before retiring in 2000. He is the author of two books, Judging the Judges (2007) and How to Judge the Judges. (2009).

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