An intriguing question has arisen in the run-up to the 14th general election (GE14), with nomination fixed this Saturday, April 28, 2018 and polling on Wednesday, May 9.
Could the GE on May 9 be subsequently declared by the courts as illegal, null and void as a result of the Umno/BN government’s flouting of the rule of law on Umno as (technically) it is an illegal political party from April 20 onwards?
The 16 Umno members who had taken legal action to challengethe validity of Umno as a political party for postponing the party election have been sacked summarily from Umno, and they have announced filing contempt proceedings to challenge their sacking.
The action filed by the 16 is on the basis that the Umno supreme council had breached article 10.16 of the party’s constitution in delaying its party elections until next year.
I have discussed with senior lawyers on the matter, and they are quite unanimous in the view that the law is very clear that Umno is today an illegal political party.
As a result, the caretaker prime minister, Najib Abdul Razak, is an illegal Umno president as well as illegal chairperson of the BN coalition. Will Umno’s illegality also extend to BN’s legal status?
Under the circumstances, the question that must be asked is whether the legality of the 14th general election would be affected if Umno and BN are subsequently declared by the courts as illegal political entities as at after April 20, 2018, yet both are allowed to take part in the 14th general election.
Be that as it may, these mind-boggling political developments have presented MCA with an unprecedented opportunity.
Instead of being political crybabies going around with the imaginary complaint that DAP wants to “besiege and eliminate” MCA – which is the reason for MCA holding the ridiculous “Johor team all-out attack, anti-encirclement mega rally” in Yong Peng on Friday – MCA leaders should now stand up for its own dignity.
MCA leaders should know that because of its own wrongdoings, Umno has become an illegal political party, although it is argued that the illegality of Umno does not extend to making the BN an illegal political coalition.
Even so, the BN coalition with 13 component parties has become a coalition with 12 component parties, as a result of the (technical) illegal status of Umno.
One consequence of Umno’s illegality must be the disqualification of Najib as BN chairperson, for the political party which he heads, Umno, is an illegal political party.
Would MCA dare to requisition an emergency meeting of the BN supreme council for the MCA president to be appointed BN chairperson, now that Umno has become an illegal party and Najib should be disqualified?
Or will the MCA leaders prefer the role akin to the three monkeys who have eyes that see not, ears that hear not and mouths that speak not?
LIM KIT SIANG is DAP parliamentary leader and incumbent Gelang Patah MP – https://blog.limkitsiang.com/
MEANWHILE, according to Malaysiakini:
Umno has upper hand in ex-members’ legal dispute, thanks to Dr M
Umno has the upper hand with regard to the judicial review application by its ex-members, thanks to its former president Dr Mahathir Mohamad.
This is due to the amendments to the Societies Act 1966 during Mahathir’s tenure.
Speaking to Oriental Daily, Umno lawyer Hafarizam Harun noted that Section 18(C) of the Act stipulated that party decisions cannot be challenged in court.
He said Umno’s decision to postpone its polls is final and conclusive, and the courts have no jurisdiction to interfere in decisions made by political parties.
“Ironically, this was the amendment brought by then prime minister Mahathir to limit the power of the judiciary’s interference following Umno’s internal fight,” he added.
Following the Umno crisis, which saw the party being de-registered, and Mahathir registering Umno Baru, the Societies Act was amended in January 1990.
Among the amendments was an ouster clause ousting access to courts to challenge, appeal against review or quash any decision of a political party on the interpretation of its constitution or regulations or any matter relating to the affairs of the same party.
Due to this, Hafarizam said only the Registrar of Societies (ROS), and not the courts, has jurisdiction to decide on Umno’s legal status.
Furthermore, he said the 16 applicants also do not have the local standi to mount a challenge following their expulsion from Umno.
“Clause 20.7 of the party constitution stipulates that any member who goes to court over party matters would automatically lose membership,” he added.
Hafarizam said the ROS had approved the postponement of Umno’s election until April 19, 2019.
“If I remember correctly, ROS notified us about the approval back in October or November 2017,” he added.
He clarified that ROS approved the postponement under additional powers granted to them under Section 3A of the Societies Act, instead of Section 13A(4) of the same Act.
Section 3 of the Act concerns the additional powers bestowed on the registrar to effectively discharge his or her duties.
Section 13A(4) of the Act spelt out the circumstances under which the registrar can approve the extension.
“Section 13A(4) of the Act is for us to follow the instruction given by the registrar, but we applied for the extension ourself, so the registrar approved it citing Section 3A,” said Hafarizam.
On April 20, the 16, who were then still Umno members, filed a judicial review to quash the ROS’ decision to allow Umno a time extension in order to hold its party polls.
They also sought the deregistration of Umno under Section 14(2) and 14(5) of the Societies Act for both provisional and permanent dissolution.
The ROS and Umno organising secretary Abdul Rauf Yusoh were named as respondents.
This followed their argument that the last day for Umno branches to hold their elections was on Feb 28 and the last day for the supreme council and 191 divisions to function was on April 19, this year.
– https://blog.limkitsiang.com / MKINI
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