Umno is illegal – bar it from general election!

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Photograph: theSun Daily

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.

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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.

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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.

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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!

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jagit
jagit
22 Apr 2018 9.18pm

ROS director general its very important that you realise that you spit out your decision to declare PPBM provisionally illegal because it fail to hold branch,division and national level elections and now UMNO is also facing the same situation and you bravely gave approval for extention even though you know very clearly that you cannot that.
Now by do this you are licking the spit you spitted out at PPBM.
Come to relisation of what you are doing as everyone in the country is watching you action.
Also don’t forget that you are a Muslim,remember the teaching of you religion.

PRADEEP Balakrishnan
PRADEEP Balakrishnan
22 Apr 2018 8.37pm

If UMNO is allowed to contest, it only means one thing…… the laws in this country are not working. All the more……the reason to replace BN.

Lee
Lee
22 Apr 2018 12.23pm

ROS must ensure that Associations abide by their Associations’ constitutions and not that ROS has the Rights over Association’s Constitutions and override Association constitutions.

Joe Fernandez
22 Apr 2018 12.21am

BN can drop Umno to allow it to contest GE14.

Ban Cheng Tan
Ban Cheng Tan
21 Apr 2018 5.28pm

In any country that subscribes to the rule of law, the same set of facts will attract the same set of results. So, if Dr Mahathir’s new party is declared provisionally illegal, how about the Umno in the present situation?

In PPBM’s case, it failed to hold branch, divisional and national party elections within the lawfully prescribed period. Umno also failed to hold branch, divisional and national party elections after it has been given the once-only 18-month extension.

So, can Umno continue to operate within the realm of legality after such a breach or is it now an illegal political party?

Khoo Soo Hay
Khoo Soo Hay
22 Apr 2018 9.21am
Reply to  Ban Cheng Tan

It is also so clear cut. The ROS cannot go back on its own rules. UMNO candidates may have to use the MCA logo in the G.E. come May 9th. But then this will mean UMNO malays become Chinese? Perhaps they have to use the junior BN party, Gerakan’s logo? Then again who remembers the MCA and Gerakan logo anymore, they are all under the daching. What a circus of a dilemma! For UMNO it is all karma.

If UMNO is declared illegal, can its funds be transferred to our national coffers? Perhaps part of the 1MDB money can come back to the nation?

Ha Ha.

Ban Cheng Tan
Ban Cheng Tan
24 Apr 2018 1.52am
Reply to  Khoo Soo Hay

(1) Khoo Soo Hay, an Umno lawyer cited Section 3A – Powers of Registrar

3A. In addition to the powers, duties and functions conferred on
the Registrar by this Act and any regulations made thereunder, the
Registrar shall have and may exercise all such powers, discharge
all such duties and perform all such functions as may be necessary
for the purpose of giving effect to and carrying out the provisions
of this Act.

I have read, and re-read this Section and still cannot see if this is applicable. Even if applied, this section does not confer any “specific” power on the Registrar to allow a SECOND extension to Umno to hold its supreme council, et al elections to April 19, 2019 unless a broad interpretation is allowed.

Ban Cheng Tan
Ban Cheng Tan
24 Apr 2018 1.56am
Reply to  Khoo Soo Hay

(2) Indeed, Soo Hay, applying s.3A will do violence to the language.

On the ouster or privative clause forbidding judicial oversight, we must look at the intention of Parliament. It sure cannot be its intention to allow the common law principle of reasonableness to be undermined in any way.

Looks like Umno has met a conundrum. Let’s see how the Court resolves this.

Helena
Helena
24 Apr 2018 12.53pm
Reply to  Ban Cheng Tan

This is going to be fun to watch. The court is between a rock and a hard place and right now, three parties are sweating: the court, RoS and Umno, particularly its president. If the court sides with the RoS or throws out the case in favour of both Umno and Ros, then the whole country and the world at large will see how “controlled and scared of its boss” the judiciary is and what a travesty of the law it is making just so it doesn’t fall out of favour with its boss. If it upholds justice and finds Umno illegal, then **** is gonna hit the fan for all sides, including the courts because there will surely be repercussions of the highest order. Unless of course the president is not allowed to come back post GE14.

Ban Cheng Tan
Ban Cheng Tan
24 Apr 2018 7.02pm
Reply to  Helena

Helena, I had previously written in the Malaysian Bar website many years ago, highlighting the cautiousness of Tun Abdul Razak who I verily believe will never have got himself into such a messy situation.

Malaysian Courts have a record of bending backwards to deliver what the government wants, possibly in the name of political stability and national security.

My guess, Helena, is that what the PM wants, the PM will get.

Ban Cheng Tan
Ban Cheng Tan
24 Apr 2018 7.03pm
Reply to  Helena

(2) As the article argues, Helena, the Umno 16 will be stopped in their tracks by the preliminary question of locus standi. If you remember, we do have an overly restrictive interpretation of locus standi that was delivered in the North-South Highway case involving Lim Kit Siang as an MP.

If such is the case, then the Umno 16 will not be able to ventilate the merits of their case. QED.