Will Rogers once said,

‘A politician’s promise isn’t worth the paper it isn’t written on.’¹ Rogers was an American humorist and entertainer

What is the problem?

Suppose, in an election, a voter has a choice of voting three candidates from parties A, B, or C: namely Mr. A, Mr. B, and Mr. C.

Suppose the voter rejects Mr. C.

He now has to choose between two candidates: the one from either party A or B.

Party A believes in certain fundamental values, e.g., a liberal society, equality, and a meritocratic society.

Suppose Party B promises racial supremacy, a quota system for different races, and has previous leaders who are known kleptocrats.

Now, suppose the voter knows nothing about Mr. A.

But he knows all about Party A’s philosophy. And he approves of both the philosophies and therefore, Party A.

He listens to Mr. A’s election speeches.

He hears him promise that if elected, Mr. A would bring about social and political changes, corresponding to principles the voter believes in.

True it is that Mr. A did not promise the voter that he would not switch sides.

But, from Mr. A’s behaviour, the voter gets the impression that Mr. A will not abandon Party A, or its principles.

The voter makes his choice.

He places his entire trust in Mr. A.

He decides to vote Mr. A.

When the voter chooses to vote for Mr. A, he desires a nation free of corruption: a nation run on the basis of fairness and equality.

Therefore, premised on those legitimate expectations, the voter votes for Mr. A

Mr. A is elected.

After the elections, a majority of the MPs come from Party A.

They form a government.

Mr. A holds in his hands the entire belief – and trust – of his voters

Mr. A holds, in the hollow of hands, all his voters’ hopes:

Their aspirations, their beliefs: and their desire to perpetuate a safe and fair nation for themselves, for their children, and grandchildren.

The Defection

Soon, several MPs defect from Party A.

They form a coalition with Parties B and C.

Mr. A is enticed away by promises of a Cabinet post or some other ‘sweeteners’ as Mahathir said recently.²https://www.channelnewsasia.com/news/asia/malaysia-anwar-mahathir-pakatan-harapan-umno-pas-12462606 and falls into an alliance with candidates from Party B and Party C.

The voter believes that Mr. A has dashed his hopes.

The voter wants to sue his MP.

Can he do it?

The answer seems to be a Yes.

Why?

Are there previously decided cases on this? We wade into a doctrinal swamp

No.

No court in Malaysia has answered this question.

There is little legal authority on the subject in the west.

So, in discussing this issue, we ‘wade into a doctrinal swamp’.³‘Promissory Fraud without breach’, Ian Ayres [Townsend Professor, Yale Law School] and Gregory Klass [Asst. Attorney General, of the New York Attorney General] Wisconsin Law Review, 2004: p. 523

Are there Malaysian examples?

No, not on this specific question.

However, on another question – one related to party-hopping, the main case often bandied about is the Supreme Court ruling in Nordin bin Salleh.⁴Dewan Undangan Negeri Kelantan v. Nordin bin Salleh [1992] 2 MLJ 697

Some lawyers claim that the Nordin case ‘allows Party-hopping’ – that is not quite right

In fact, that is not what the case is all about.

The story is this:

The Kelantan State Legislative Assembly passed a law: when a member of the State Legislative Assembly resigned from his party, he lost his Assembly seat.

Two men resigned from PAS. The State Assembly ruled that their seats had been ‘vacated’.

The men sued the Assembly.

They won.

The Supreme Court ruled that the Constitution gave everyone the fundamental right of ‘association’:[Article 10(1)(c)].⁵Article 10 reads: ‘Freedom of speech, assembly and association: ‘(1)(c): all citizens have the right to form associations.’

What the Supreme Court said was, a state legislative assembly cannot pass a law stopping party-switching. A State could not pass laws preventing or limiting a fundamental right.

The Court did not go any further than that.

What the Court in Nordin’s case did not say is important

The Court did not make two points.

It did not rule that: –

(1) Parliament cannot create a law stopping party-switching; or,

(2) a voter cannot sue his MP.

The  Constitution allows Parliament to make anti-hopping laws – but so far Parliament has not – why do you think?

The Constitution says that ‘Parliament … may by law impose – (c) on the right [that all ‘citizens have the right to form associations’]… such restrictions as it deems necessary or expedient (and here come the important phrases) ‘in the interest of the security of the Federation,’… ‘public order’, or ‘morality’. [Article 10(2)(c)].⁶Article 10(2)(c) reads:  ‘Parliament may by law impose— … (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.’

So, the Constitution recognises that switching sides is ‘immoral’

The question is – why should the Parliament stop it?

All these years the states could not pass laws to stop it. And the result was? We saw how politicians defected from their parties and formed a new government, contrary to the wishes of the voters in GE14.

Why is switching sides bad?

The question here is can a voter sue his MP for Switching sides.

This is neatly explained in an Indian case.⁷Mian Bashir Ahmad & Ors v. The State AIR 1982 Jammu & Kashmir 26

After the Indian independence, there was a rash of political defections.

The Supreme Court judges used strong words to castigate the politicians.

The judges complained that the effect of these defections was so bad that it,

‘[Had] threatened the functioning of parliamentary democracy’.

And the judges were quick to note that these political defections,

‘Were not because of genuine promptings of conscience.’

This happened, the judges said,

‘Because of personal aggrandisement and rank opportunism.’

The Indian Supreme Court lamented that this had become,

‘A pernicious form of political corruption.’

The judges felt that this corruption,

‘Had threatened the function of parliamentary democracy as contemplated by the Constitution’.⁸Cited in Nordin bin Salleh Ibid, supra, at page 710

“Do all of these words evoke a sense of moral outrage in you?

When analysing the Nordin appeal,  the Lord President, Abdul Hamid Omar recalled these words. He brushed them aside, saying naively, these,

‘[Indian] … events have no parallel here.’

There were more than enough precedents, even then, in 1992, to demonstrate that the very same dangers were – and are – plaguing the Malaysian democratic system.

The Lord President’s pious belief is contradicted by the 1966 Stephen Kalong case,⁹Stephen Kalong  Ningkan v. Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187 the 1986 Pairin Kitingan case,¹⁰Tun Datu Hj Mustapha bin Datu Harun v. Tun Datu Hj Mohamed Adnan Robert, Yang di-Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan (No.2) [1986] 2 MLJ 420 (No.2) the 1995 the Amir Kahar case, ¹¹Amir Kahar bin Tun Haji Mustapha v. Tun Mohd Said bin Keruak, Yang di-Pertua Sabah & Ors [1995]1 MLJ 169] the 2009 Nizar case,¹²YAB Dato’ Dr Zambry bin Abdul Kadir & YB Sivakumar a/l Varatharaju Naidu (AG Malaysia Intervenor) [2009] 4 MLJ 24 the 2019 Musa Aman case,¹³Tan Sri Musa bin Haji Aman v. Tun Datuk Seri Panglima Haji Juhar Haji Mahiruddin & Anor and another appeal [2019] MLJU 1682, at p. 6 of 23 and finally, The Night of the Long Knives at Sheraton Hotel, KL, on the fourth week of February 2020 – which led to the current government.

What do courts do with the promises of private citizens?

When – in a non-social or commercial setting – one private citizen makes a promise to another,  and the other breaches that promise, the wrongdoer is liable in law.

She must compensate the victim.

“If everyone is equal under the law, why are politicians not being treated like ordinary people?

Why hasn’t political misconduct ever been punished by courts?

Why is it that courts allow a politician to treat his promises with a cavalier disrespect for the truth – a luxury not allowed to ordinary citizens?

Questions that trouble the man on the street

Do legal tools exist to punish and deter such behaviour?

Is there a proper role for the courts in policing this kind of conduct?¹⁴Sencer, Ibid, p. 430

These questions trouble the electorate. Who will answer them?

Let us look at some answers.

UK Supreme Court answered, ‘Yes’

In 2019, the UK’s Prime Minister Boris Johnson suspended¹⁵prorogued Parliament.

One Gina Miller sued him, complaining that he could not do that.¹⁶ R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland ([2019] UKSC 41)

The UK Supreme Court agreed with her.

The UK government’s lawyers argued that the court should not step into matters involving politics.

The Supreme Court replied that while it could not consider political questions,¹⁷Ibid, Paragraph 31¹⁷ it pointed out that in UK’s political history, legal disputes over the conduct of politicians can be – and have been – scrutinised by the court.

Lady Hale said,

‘Almost all important decisions made by the executive have a political hue to them… For centuries… the courts have exercised supervisory jurisdiction over the decisions of the Executive.’ ¹⁸Read ‘government’

Just because Boris Johnson, as PM, was accountable to Parliament, that did not mean that the courts had lost their role.

If a complaint of a politician’s unlawful conduct is brought before the court, it will answer that question, said the court.¹⁹See paragraph 33 of the judgement, where the Supreme Court adopted Lord Diplock’s pronouncement in R v. Inland Revenue Commissioners, Ex P National Federation of Self-employed and Small Businesses Ltd [1982] AC 617, 644: ‘[Officers] of central government departments] … are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is only judge.

This case concerned the Government and the Prime Minister.

If both these senior democratic institutions, the government, and the PM, could be dragged to court, why should MPs – who switch parties outside of Parliament – be immune from court action?

What is so special about them?

Legal scholars suggest several legal tools to sue MPs

Obviously this is not a place to discuss legal technicalities, but we can discuss a broad range of ideas over what a voter can do.²⁰See Ian Ayres and Gregory Klass, ‘Promissory Fraud without Breach’, WS.L.Rev.507 (2004) 507); and Stephen D. Sencer, ‘Read My Lips: Examining the Legal Implications of Knowingly False Campaign Promises’, [90 Mich. L. Rev. 428 (1991)]

The politician is  the voter’s trustee (or Agent); the Voter is a beneficiary [or Principal]

What is an MP’s relationship with constituents who voted him in?

Legal scholars described it in three different ways.

The  first is the ‘Delegate’ or ‘Mandate’ theory. 

Under this theory, ‘proper representation occurs only when an MP obeys his constituents’.²¹ Sencer, Ibid at p. 435, citing Hannah F. Pitkin, ‘The Concept of Representation, in ‘Representation 1, 17 – 18’ (Hannah F.  Picking ED, 1969)

Under the ‘Trustee Theory’ an MP is a voter’s representative who ‘has an obligation to look after his constituents but not to consult or obey them.’²² Sencer, Ibid at p. 436, p.4, citing Pitkin, footnote 44, at p. 146

The third class is the ‘Compromise Theory’. 

Under this theory, an MP must act in the interest of his constituents, ‘in a manner responsive to them’.²³Ibid, p. 436

Whatever may be the case, legal scholars demonstrate that an MP does owe a duty to his voter. The nature of that duty is one which a trustee owes to a beneficiary.

Allegory comparing MPs to company directors, and voters to shareholders

A private limited company has shareholders and directors.

Legal scholars compare shareholders to voters, and the company directors to an MP – a director is, ultimately, the agent of the shareholder.²⁴Sencer, Ibid, p. 435, citing Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behaviour, Agency Costs and Ownership Structure, 3 J. FIN. EcoN. 305, 308-09 (1976) (footnotes omitted). See also Eugene F. Fama & Michael C. Jensen, Agency Problems and Residual Claims, 26 J.L. & EcoN. 327 (1983)

An historic example shows how court utilise these theories

The principle that the law must intervene, and protect an innocent beneficiary, is seen in the development of the US securities markets.

Before 1930, public listed shares were traded without any federal regulation.  It was all arm’s length.

The markets were allowed to police themselves.

In early 1930s, Congress realised that this ‘self-correcting mechanism’ did not protect innocent purchasers of shares.

Congress²⁵Akin to our Dewan Rakyat moved to pass protective laws.

The laws required a company’s board to disclose information truthfully.²⁶The Securities Act of 1933, 48 st. 74: see Sencer, Ibid,  pp. 442, 443

Before the US Securities Exchange Act 1934 had been passed, US courts rarely intervened in ‘proxy disputes’.

The doctrine of caveat emptor controlled shareholder voting. ²⁷It simply means, ‘Let the Buyer beware’. It is a principle that expects to buyer to check out what he or she is buying is has its proper value

“In the old days, in electoral contests, this is exactly how the courts used to treat voters and their MPs.

After Congress passed the Act, the US Securities and Exchange Commission (SEC) regulated the securities industry.

It passed regulations.

Suppose there is, in a company, a battle for corporate control by different groups of shareholders.

Naturally, a party in control of the company could reach out to its shareholders directly – and so influence them to oppose any honourable challengers.

They spoke many lies.

But there was no way they could be legally stopped.

SEC passed a new rule.²⁸Rule 14a-9

Shareholders, who were outside the corporate management structure, were enabled to challenge information put out by a company’s directors.

It created a fair environment for shareholders to question the board of directors.

Many similarities between a shareholder and a voter

Thus the battles for corporate control of public listed companies share many similarities with contests between the voter and his representatives.²⁹See Sencer, p. 444²⁹

Shareholders and voters face common problems

This is because both the shareholder and the voter pass the power of making decisions to their elected representatives.

Because the free market did not protect the shareholder, the courts stepped-in, and protected the corporate process.

This is a parallel – a legal precedent – in the way the courts should protect a voter who had trusted his representative, the MP,  to work for his – and his community’s – benefit. ³⁰ Ibid 

So a voter should be able to successfully sue his MP for breaching an implied term :

First, that the MP would not sell him out by switching parties;

Second, the MP would not benefit himself.

Different tools may be available to bring MPs to justice

Several tools – all untried – are, in theory, available to a voter. We examine some. But this is not an exhaustive list. ³¹ We have put away Legitimate Expectation and Deceit for a while.

[1]  Breach of Trust

This is an old chestnut: when an MP exploits his position as trustee – and yet backflips from Party A to Party B –  he breaches the trust placed on him.

So the MP  breaches his duty as trustee.

This is because the voters wished their MP to run the government under the principles of party A, or if he was in opposition, to continue on the same basis.

When an MP changes his position, clearly there appears to be a breach of trust.

By accepting a post, he profits for himself at the expense of his voter.

In the end, the MP’s beneficiaries, his constituency, one of whom is the voter, suffer prejudice.

In theory, a suit in breach of trust is possible, on grounds of the ‘role of the representative’ that legal scholars have advanced.³²Ibid, Sencer, p. 434 et. seq.

 [2]  Promissory Fraud

Promissory fraud punishes people who make insincere promises.³³Ibid., Ayres & Klass at p. 508

A series of cases suggest that the concept of ‘promissory fraud’ could be used to sue MPs.

A commercial example will illustrate this.

Suppose A owns a piece of land.

B says to him,

‘In one year, I will either buy your land for RM1,000,000.00, or pay you RM50,000.00 if I do not’.

A has an offer from C for RM900,000.00. A refuses to sell to C.

B, eventually, says to A,

‘I did not intend to either buy your land, or pay you RM50,000.00.’

A discovers that B in fact has been building a supermarket next to his land, and did not want him to sell the land to C, a competitor.³⁴Ibid, Ayres & Klass, p. 511

A could have sold the land to C, which B prevented.

A can sue B for his loss.

The same concept applies to voters and MPs.

[3]  Promissory Estoppel and Gratuitous promises in negotiations

American jurists have taken this common law concept a step further.

An MP says, or represents by his behaviour, the following intent:

‘If you vote for me, I will stand by the principles of Party A’.

The voter believes these representations.

He votes in Mr. A.

Mr. A is elected as an MP.

The voter could, in theory, sue an MP for going back on what he said, even though no contract has been formed.³⁵See Ayres & Klass: Ibid, at p. 514 and 515. The authors cite an offshoot of a principle in the US case of Hoffman v. Red Owl Stores, Inc 26 Wis. 2d 683, 133 N.W. 2d 267 (1965)

What orders could a voter ask from the court?

Step-1: The Court usually compels a person to do what he promised to – the courts call this a ‘specific performance’ order.³⁶Attorney General v Blake (Jonathan Cape Ltd Third Party) [2001] 1 AC 268 at 285 and Haji Osman Bin Abu Bakar v Saiyed Noor Bin Saiyed Mohamed (1952) 18 M.L.J. 37 at 40

This ‘SP Order’ is usually given in addition to, or in substitution for, an award in damages.

The voter must attempt to drain the swamp

But there are some remedies which are mired in legal difficulties.

And they require wading through the doctrinal swamp, again.

But they must be tried.

It does not matter whether the court will give, or refuse, the order.

An attempt must be made.

Step-2: What stops a voter asking a court for an order forcing the ‘deserting MP’ to ‘withdraw his support’ – in form and in substance –  from his current coalition with Party B.

Nothing.

Step-3: What is to stop a voter asking a court order to compel the ‘deserting MP’ to ‘return’ to be re-aligned with Party A’s political ideologies? 

Again, nothing.

Step-4: What stops the voter from asking the court compelling the ‘deserting MP’ to withdraw his support from the current government leadership?

Nothing.

Monetary Compensation

Step-5: As for monetary compensation, the court will usually order damages for the voter if these are foreseeable.³⁷ If the loss is not too remote, the court will, on principle, grant damages: see sec. 74 of the Malaysian Contracts Act 1950, which is a re-codification of the common law test in Hadley v. Baxendale (1854) 9 Exch. 341.

But the voter must prove the damage one suffers.³⁸Bovis Lend Lease Ltd (formerly Bovis Construction Ltd) v Saillard Fuller & Partners and another 77 ConLR  134 at 192  and Datuk Mohd Ali bin Hj AbdulMajid & Anor (both practising as Messrs Mohd Ali & Co) v Public Bank Bhd [2014] 4 MLJ 465, at 476

Step-6: Where the voter cannot prove a specific amount of loss, the court may award a quantum of damages which – though not easy to assess – the court thinks is reasonable.³⁹Although loss must be proven, the fact that the specific quantum is uncertain will not itself bar recovery: London Borough Council of Merton v Stanley Hugh Leach Ltd (1986) 32 BLR 51 [UK] and Macvilla Sdn Bhd v Mervyn Peter Guan Yin Hui & Anor — [2019] MLJU 693, paragraph [41][Court of Appeal, Malaysia]

Or it may award only a small sum of money: called ‘nominal damages’.⁴⁰ Marzetti v. Williams [1830] 1 B & Ad 415 [UK], followed by Edgar Joseph Jr, J in Popular Industries Ltd. v The Eastern Garment Manufacturing Co. Sdn. Bhd. [1990] 2 CLJ (rep) 635 [Malaysia]. See also  Bovis

By his vote, a voter has given a ‘legal value’ to the MP’s position

Had a party member switched sides without being elected as an MP, a voter cannot complain.

When voters elect an MP, the MP holds, in the cup of his hands, all the hopes invested in him by the voters.

That has a legal value.

The MP’s position is therefore tied to the desires of his constituents’ mandate.

So when an MP defects, he betrays the trust of the majority of his constituency.

He breaks the real connection between him and his voters.

And he benefits; his voters do not.

This question is no longer about an MP’s personal freedom of association.

His duty – as trustee – to his voters and to his constituency – overrides all his personal interests.

Who will ‘burn the fuel’?

There are at least three legal devices available to a voter, in theory [as we saw earlier], to sue an MP – one who has switched sides.

Unless someone is bold enough to try them out, nothing will be gained:

‘We must embrace pain and burn it as fuel for our journey.’⁴¹Kenji Miyazawa

“To the daring is the pinnacle.

 

 

[The author expresses his gratitude to Ms. KN Geetha, Mr. JD Prabhkirat Singh, Mr. GS Saran and Miss KP Kasturi for their assistance.]