As the party supreme council election was not carried out by 19 April 2018, the entire supreme council is an illegal body and Umno is no longer a legal entity, asserts P Ramakrishnan.
One lawyer claims that Umno is a legal party; another lawyer questions its legality.
Tengku Adnan Tengku Mansor, a lawyer and secretary general of Umno, cannot be expected to say anything otherwise; whereas Rais Yatim, a lawyer and former cabinet minister, argues that under the law Umno’s legality is questionable.
Instead of chipping in with rational and sensible views to state his point, a third lawyer who is the caretaker Culture and Tourism Minister, Nazri Abdul Aziz, with his usual brand of sarcasm and asinine logic tells Rais, “Since when did Rais become the director general (of Registrar of Societies)? I think that after this, he can apply for the position on a contract basis. He can do the job if he thinks it is not being done right.”
In other words, Nazri is telling Rais to accept the ruling of the RoS as authoritative, final and beyond question. He thinks Rais has no right to dispute the decision of the RoS.
What utter rubbish this is. Alas, Nazri has said this without regard to the general rule that while discretionary powers are necessary, they are always subject to review. (Yes, the same Nazri who unfairly, unjustly and crudely lambasted Robert Kuok recently and was soundly trounced by thinking and caring Malaysians.)
Nazri seems not to realise that any decision can be questioned and challenged. It does not mean that when an official holding an authoritative position in government service makes a decision, that decision is final and beyond challenge. It is possible that a law can be misunderstood and misinterpreted resulting in a wrong decision. In that case, such a decision is open to dispute.
Clause 9.3 of Umno’s constitution stipulates that the supreme council is required to hold its polls within three years of the last election.
Umno last held party election on 19 October 2013, and so the next party election was due by 19 October 2016.
Under Clause 10 of Umno’s constitution, the supreme council can postpone the election of the supreme council for 18 months from the time that election was due.
In exercising this right, the supreme council took a decision to postpone the election by 18 months from 19 October 2016 to 19 April 2018. Accordingly, this decision would have been forwarded to the RoS for approval. Such an approval would have been given, sanctioning the supreme council election to be held by 19 April 2018.
Clause 10.16 permits this postponement only once. It does not say that, subsequently, another postponement can be carried out under this clause. It is crystal clear that no other provision sanctions a further postponement. Any further extension beyond this date (19 April 2018) is unconstitutional and in conflict with the law.
“The RoS (director general) must show that she has the power to override the Umno constitution under Clause 10,” Rais said.
The implication of the postponement to hold the next supreme council election by 19 April 2018 is that all Umno branch and divisional elections must be conducted at least two months before the scheduled supreme council election by 19 April 2018, meaning branch and divisional elections had to be completed by 28 February 2018. It is obvious that up till the time of writing, no such branch and divisional elections had been carried out, rendering the existence of these branches and divisions illegal under the law.
And since the supreme council election was not carried out by 19 April 2018, the entire supreme council is an illegal body that cannot function under the law. Under the circumstances, Umno is not a legal entity and therefore cannot contest in the coming general election. This is what the law says – irrespective of what the RoS may say or claim. She is not the final authority.
Just like the RoS decision to temporarily suspend Bersatu that prevented Pakatan Harapan (PH) from using the common logo of the coalition in the coming general election, Umno’s present predicament also does not permit the Barisan Nasional (BN) coalition to use their common logo, the dacing.
Rais has recommended that Umno should go to court to establish its legality. That would be a sound approach. But this issue of legality or otherwise must be adjudicated by a panel of senior judges that should include respected retired judges as well.
In any event, the chief justice of Malaysia Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin must not sit on this panel. Their controversial appointments beyond the compulsory retirement age are contentious and deemed illegal by many legal minds in the country and their involvement may be a case of conflict of interest.
After all, they were recommended for their questionable appointments by the prime minister, who is also Umno president, and the legality of their appointments is now hotly debated. Given this background, both of them should not sit on the panel that is going to decide on the legality of Umno.
Umno must function within the framework of the Umno constitution. Umno cannot claim rights that are not provided for in its constitution. The RoS’ role is to ensure that Umno does not deviate from the provisions of its own constitution. And the RoS does not have the power to extend Umno’s authority beyond what is stated in it.
The RoS has no special powers to override the Umno constitution. Her duty is to enforce the constitution and ensure that Umno functions within its lawful framework. It is as simple as that!