Is DAP heading for a constitutional crisis?

According to DAP's constitution, election of CEC members must be done at a national congress while there is no clear clause providing for the election of CEC members in a special congress. This appears to be the confusion surrounding the Sunday, 29th September 2013, re-election and whether it will end up invalid just like the 15th December 2012 election is a matter that is yet to be decided.

THE CORRIDORS OF POWER

Raja Petra Kamarudin

(The Star, 1 Oct 2013) - The Registrar of Societies (ROS) says DAP is barking up the wrong tree as the party’s dispute was with its members, and not with the agency. An ROS spokesman said it was DAP members who were dissatisfied with the leadership, as they believed that the party constitution had been breached.

“We are merely acting on complaints lodged by DAP members. We received not one but many complaints,” he said, stressing that the dispute did not involve ROS. He said this when asked to comment on DAP chairman Karpal Singh’s threat to take ROS to court for allegedly oppressing the party.

The ROS spokesman said the agency too could take action against the party on various grounds. “But we want to help resolve this matter. If laws are interpreted according to perception, there would be no end to it,” he said. He also called on DAP leaders to respect and observe their own party constitution. “They can’t act as if they are not bound by rules,” he said.

On July 30, ROS directed DAP to hold fresh polls following allegations of discrepancies in the polls held in December last year. ROS’ subsequent advice to hold fresh polls in a national congress and provide 10-week notice to branches fell on deaf ears.

DAP held fresh polls in a special congress on Sunday after giving delegates three weeks’ notice. The ROS spokesman said they would wait for DAP’s report on its special congress and fresh CEC polls before deciding on the next course of action.

The spokesman also rebutted claims by DAP secretary-general Lim Guan Eng and special congress chairman Anthony Loke that ROS had refused to meet up with them to discuss the dispute. “No government office shuts its doors on the rakyat. If they want to come and discuss they are most welcome to do so,” he said.

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There appears to be some confusion as to what has been going on over the last nine months or so since mid-December 2012. The impression given is that this is a tussle between the Registrar of Societies (ROS) and the Democratic Action Party (DAP). According to a DAP insider who I spoke to, the tussle is actually between the anti-Lim and pro-Lim factions with the ROS being used as the catalyst to force the hands of the party.

This is the story I got from a DAP insider, more or less in his own words.

On 5th December 2012, that is ten days before DAP’s party elections on 15th December 2012, letters were sent out to inform some of the members about the AGM. The bone of contention here is that the letters should have been sent out ten weeks and not ten days before the meeting and that not everyone eligible to attend the party election received their letters.

The reason this was done, say the disgruntled members who had lodged complaints with the ROS, is because after the 985 branch elections a few months before that, Lim Guan Eng’s feedback was that more than half the delegates would not be voting for him. Hence he wanted an ‘ambush’ AGM so that he could exclude those hostile towards him.

Based on the 985 branches, 2,576 delegates would be eligible to attend and vote at the AGM. However, it is expected that 1,300 of the delegates would not be voting for him. Hence Lim Guan Eng would possibly get votes from only 1,276 delegates.

Hence invitation letters were sent to only 1,276 delegates and those who did not receive any letters, or were not in possession of these letters, were not allowed to attend the meeting. It was further alleged that 547 delegates were ‘imported’ although they were not eligible to vote. These 547 delegates were considered ‘friendly parties’ and added to the 1,276 would bring the figure up to 1,823.

Without the presence of these 547 ‘imported’ delegates, Lim Guan Eng would be able to obtain only 1,200 or so votes, which would place him between number five to number seven and not number two on the list of winners. Further to that, they felt that the ‘Five Tigers’ (Teng Chang Khim, Chow Kon Yeow, Boo Cheng Hau, Nga Kor Ming and Ngeh Koo Ham) would have performed better had there been no manipulation of the delegates list.

The disgruntled members alleged that there was further manipulation of the votes of the 547 ‘imported’ delegates who only marked six candidates (Lim Kit Siang, Lim Guan Eng, Karpal Singh, Chong Chieng Jin, Anthony Loke and Vincent Wu) while the rest of the names were left blank -- to be filled in by Pooi Weng Keong under the control of Anthony Loke, Vincent Wu and Jeff Ooi.

This was to ensure that those who got voted into the CEC were also friendly parties aligned to Lim Guan Eng. This will have a bearing on the candidates in the general election to be held in a few months from then, as it is customary for the winners in the party elections to be given a seat in the general elections.

Further to that, all candidates in the general election need the approval of the CEC and to ensure that your people are selected to contest the general election you need control of the CEC.

There was a lot of pressure from PAS/PKR that the elections gave the impression that DAP is a Chinese party because only one Indian and no Malay won a seat in the CEC.

Because they needed a Malay face in the CEC, say the disgruntled members, they manipulated the results to allow Zairil Abdullah (a.k.a. Zairil Khir Johari) to win by changing his votes from 305 to 893 thus changing his position from number 39 to number 20 -- to switch places with Vincent Wu, whose votes were changed from 1,202 to 659 -- and then blame this change on a computer glitch.

ROS says it took action based on complaints by the disgruntled members. First, many members who were eligible to attend and vote in the AGM were denied their right to do so. Secondly, many delegates compared notes and discovered that candidates who were not popular and did not receive much support ended up getting top score. People like Zairil is on example who could not have received such high votes, which he did not at first but did only after the figure was changed later.

The ROS interviewed many of these disgruntled members and it was proven that many who were eligible to attend the meeting were disallowed from doing so. Out of 40 delegates that the ROS interviewed, 32 confirmed that they did not receive letters for the meeting while the eight that did were not allowed to enter the hall because they could not produce a separate invitation letter. You need both a notice of meeting and an invitation letter to be allowed into the hall.

The ROS then sent DAP a letter dated 17th April 2013 informing the party that its AGM is invalid based on the events above. Furthermore, the validity of the office bearers is in doubt because Vincent Wu participated in the first meeting that confirmed the appointment of these office bearers. ROS asked DAP to address these two issues.

The following day, Lim Kit Siang and Lim Guan Eng publicised the ROS letter and alleged that the ROS intended to deregister DAP and disallow the candidates to use the party symbol in the general election, which the ROS denied. Hence DAP would have to contest the 13th General Election under another party symbol.

The impression given was that the ROS wanted to deregister DAP and not allow it to contest the election using its party symbol. That was why the DAP candidates turned up on Nomination Day with two Surat Watikah. DAP, however, was allowed to contest the general election using its own party symbol.

The disgruntled members further alleged that some of the candidates who had won in the previous general election but who were not in Lim Guan Eng’s camp were dropped as candidates in the 13th General Election as part of the cleaning out process. Many accepted this although they were very bitter about it but some like G. Asoghan and Jenice Lee contested as independent candidates and were subsequently sacked and took their cases to court.

Their argument is that, since the CEC in invalid, hence the CEC decision to sack them is also invalid. Furthermore, the Surat Watikah signed by Lim Guan Eng for the DAP candidates would be equally invalid.

DAP, thus far, did not act to rectify its invalid party election. Hence, on 30th July 2013, the ROS sent DAP a letter asking the party to hold a re-election on the two grounds mentioned above. In fact, this is what the disgruntled members have been asking for since February 2013.

On 15th August 2013, the CEC met and decided to comply with the ROS demand to hold a re-election but this was opposed by Lim Kit Siang and Lim Guan Eng.

On 17th August 2013, Karpal Singh announced that DAP will comply with the ROS demand and will hold a national congress within ten weeks and said that the original 15th December 2012 delegates’ list will be used and that all delegates would be allowed to attend, even those who have since been sacked.

On 22nd August 2013, Lim Guan Eng contradicted Karpal and announced that the re-election would be held on 29th September 2013 instead, which means there will be no ten weeks notice given as required by Clause 8(6) of the party constitution.

The argument given to justify this action is that the re-election is a special congress and not a national congress that requires only seven days notice and not ten weeks. In other words, the special congress is an EGM and not an AGM like the national congress.

According to DAP's constitution, election of CEC members must be done at a national congress while there is no clear clause providing for the election of CEC members in a special congress. This appears to be the confusion surrounding the Sunday, 29th September 2013, re-election and whether it will end up invalid just like the 15th December 2012 election is a matter that is yet to be decided.

The ball is now at the feet of the ROS and if the recent EGM is considered invalid then we may see DAP heading for a constitutional crisis and the party may end up like what happened to Umno back in the late 1980s.