A COMPANY lawyer can tell us without difficulty the fiduciary duties of a member of the company's board of directors because it is clearly spelt out in the Companies Act and judicially explained at great length in a large body of case law.
The same thing cannot be said of the fiduciary duties of a member of parliament (MP), but that will perhaps soon change because of a case that had been filed at the Kuala Lumpur High Court last week.
As the case is now sub judice, we have to be extra careful to comment. The facts are as follows. The plaintiffs are 10 Gombak voters who had voted for the defendant (Datuk Seri Azmin Ali) as their MP in the 14th General Election (GE14).
The plaintiffs claimed that the defendant had made false representations and deceived them when campaigning, and he had subsequently breached his fiduciary duties to them after they had entrusted him to be their elected representative.
In the run-up to GE14, the defendant campaigned for the Gombak parliamentary seat as well as the Bukit Antarabangsa state seat.
In their statement of claim, the plaintiffs gave examples of the defendant's representation in the GE14 campaign, that his party, Pakatan Harapan (PH), would replace Barisan Nasional (BN) as the federal government because of the latter's wrongdoings, and that he would (together with PH) ensure the wrongdoings were addressed.
The plaintiffs stated that the promised reforms under the PH rule came to nought because the defendant had "orchestrated" the fall of the PH government as result of the Sheraton move on Feb 23 this year.
The plaintiffs stated that the defendant had acted to further his own interests and had breached his duties as a trustee of the voters by acting against his representations (breaking his promises) to the voters, including by "orchestrating the Sheraton move" and working with BN leaders to topple the PH government.
The plaintiffs seek various court orders, including a declaration that the defendant (as an MP for their constituency) owes a fiduciary duty or is a trustee due to his relationship with Gombak voters, and he has breached these duties.
They also seek a court order declaring that the defendant had committed the tort of deceit against them, and had also breached his constitutional oath. They also seek compensation to be paid.
The local media's initial comment on this pending litigation is that the plaintiffs had filed this lawsuit against the defendant over his alleged deceitful role in the Sheraton Move plan, which caused the PH government to collapse in February ("10 Gombak residents file suit against Azmi Ali for deceiving constituents" — Dec 1).
According to Laith K. Nasrawin, professor of public law at the University of Jordan, legislators and ministers are in a fiduciary relationship with the voting public, based upon the trust granted them to act solely in the public's interest, and not in their own best interests.
Legislators are fiduciaries in terms of acting with honesty, integrity and the utmost good faith in the interest of the electors, the beneficiaries, who are vulnerable to the misuse of power. They owe an exclusive loyalty to their constituents to promote matters of concern to them in parliament and assemblies, and not to allow their personal financial interests to conflict with their public duties.
Nasrawin added that the fiduciary duty of elected members is to represent the interests of their constituents in parliament, which is truly at the heart of the mandate of an elected MP. Without constituents to advance their own matters of concern, there would be no system of representative democracy to uphold, and there would be no role for political parties and their candidates to play in the system of parliamentary government.
A similar sentiment is expressed by Lindsay Aagaard. In her paper, Fiduciary Duty and Members of Parliament published in the Canadian Parliament Review (2008), she states that the obligation MPs have to represent the interests of their constituents is truly at the heart of the mandate of an MP.
Without constituents to represent, there would be no role for MPs to play in our system of government, no need for an oath of office, no system of representative democracy to uphold, no need for parties to effect change or safeguard the status quo. The obligations MPs have flow from the power they gain from the citizenry.
We will wait and see how our courts decide on this important constitutional issue on whether your MP is your fiduciary.
The writer, a former federal counsel at the Attorney-General's Chambers, is deputy chairman of the Kuala Lumpur Foundation to Criminalise War