COMMENT | RM10m judgment against Zuraida - is it sustainable?

COMMENT | The High Court had ordered ex-PKR vice-president Zuraida Kamaruddin to pay RM10 million to the ruling party for defecting after clinching the Ampang seat for the third time in the 14th general election.

I firmly believe that many people - especially the PKR members and the voters in Ampang - are jubilant over the said verdict.

As far as Zuraida's voters are concerned, it is believed that they feel vindicated by such an unprecedented ruling. The judgment from the court may come as a bombshell to them!

What is the factual matrix of the case? In a nutshell, the facts were that Zuraida's party at the time, PKR, had sued her for breach of contract or a bond.

It demanded her to pay the party a liquidated sum amounting to RM10 million for defecting, having won the seat under PKR's banner.

During the trial, PKR secretary-general and Home Minister Saifuddin Nasution Ismail testified that Zuraida won the Ampang seat contesting under the party banner rather than on the strength of her character.

Zuraida, on the other hand, testified that she did not know the details of the RM10 million bond.

Unfortunately, I am not privy to the court papers of the case. Hence I am not sure whether Zuraida had raised a defence of non-est factum, which is usually invoked as one of the defences in a contract case.

Essentially, when a party to a contract relies on the defence of non-est factum, they claim that a contract is invalid because they are mistaken about its meaning or nature at the time the contract was signed.

To our utter astonishment, Zuraida had the audacity to claim that she was allegedly forced to sign the bond before contesting.

It seemed that she was also relying on the defence of duress in order to escape her liability.

The central issue in the case had to do with this point - whether the said bond was legally valid and enforceable against Zuraida.

In allowing the plaintiff’s (PKR) claim, the learned High Court judge held that the bond signed by Zuraida was a valid and binding contract.

Under such circumstances, the court did not accept all the defences she raised. In other words, in the eyes of the court, her defences were weak and fragile.

Deterrent

The court was also of the view that the RM10 million was not disproportionate but a reasonable sum serving as a deterrence to party members - like Zuraida - acting against the party’s interests.

The court believed that any less sum would not serve as a deterrence.

Finally, the court also awarded a cost of RM50,000 in favour of the plaintiff.

The media reported that Zuraida’s counsel would appeal the verdict.

Zuraida, along with 11 other MPs led by former PKR deputy president Azmin Ali, left PKR in February 2020 to support Bersatu, Umno-BN and GPS in forming Perikatan Nasional.

The move was part of the Sheraton Move that led to the downfall of the then-Pakatan Harapan administration.

Without any doubt, the judgment against Zuraida was splendid, at least in the eyes of any adherent of any political party.

A bond entered into between an election candidate - like Zuraida - and her political party to restrain such a candidate from defecting from the party is a laudable move.

Politically speaking, such a bond may be harmless. Unfortunately, there is a catch. The bond may be legally problematic.

Constitutional amendments

The apparent ramifications of that type of bond would be it might have offended the constitutional right to freedom of association enshrined under Article 10 (1)(c) of the Federal Constitution.

Yes, the apex law has been duly amended to outlaw political hopping. I was directly involved in drafting such an amended law as one of the committee members who was tasked with amending the law.

Like it or not, Zuraida's case happened before our Federal Constitution was duly amended.

The then Supreme Court, in Nordin Salleh's case - following a minority opinion of the Indian authority, had decided that the freedom of association enshrined in Article 10 was inclusive of the right of freedom to exit or defect from such an association.

Anyway, let us wait and see how the Court of Appeal will decide when this matter reaches the appellate forum.

MOHAMED HANIPA MAIDIN is former deputy minister in the Prime Minister’s Department (Parliament and Law).

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.