Chua is still suspended, Dismissal of the 4 Central Committee MCA Members is unconstitutional

Before the 2008 general election, the support from the Chinese voters for MCA was fluctuating around 40 per cent. But this went down dramatically during the GE 2008 to just about 20 per cent.

With the intensity of the current in-fighting in MCA which does not seem to be abating, the support may plunge to just about 10 per cent. It will not be a surprise if at the end of the day, probably only the relatives and friends of MCA leaders will end up voting for MCA!

It is for this reason that talk that MCA will soon become or has already become irrelevant to the Chinese community cannot be taken lightly. Its ultimate demise may even be inexorable!

After all, this 60-year-old party is no longer attractive to the young urban Chinese who are mostly English speaking. This group of Chinese prefers to vote for the DAP and the PKR. To many English-speaking Chinese, the MCA now appears more as an avenue for the Mandarin-speaking ones to seek positions in national and local governments.

So, MCA leaders can continue to fight among themselves for all they want, but soon they will lose everything. By the time they wake up from this nightmare, it will be already too late.

This would be a sad thing really not so much because I am an MCA member and a supporter of the Barisan Nasional, but rather MCA leaders during the formative years of the party did contribute to the welfare of the Chinese community.

It is, therefore, rather naive to think that maintaining the status quo of the MCA leadership of Datuk Seri Ong Tee Keat and Datuk Seri Dr Chua Soi Lek will bring the Chinese community back to supporting MCA or that it will bring about greater party unity.

Breaking on their promise to respect the decision of the Oct 10 EGM has gone down badly with the Chinese community.

With the latest turn of events, it looks like only fresh polls can redeem the party and its leaders in the eyes of the Chinese community and the members.

As I wrote recently, if there is any honour left in him, Ong should resign rather than rely on Article 35 of the MCA constitution which states that a two-thirds majority is required to unseat a party official.

By declaring in these words before the 10-10 EGM— “Once a simple majority is obtained, I will be left with no choice but to step down. Anyone who argues that I do not need to do so, that only a two-thirds majority is required to boot me out, I think that is a great lie” — Ong has legally, politically and morally waived the constitutional provision of Article 35. For not resigning, he has now been labelled by many in the Chinese community as the great liar!

Had he resigned and sought fresh elections, he would have earned the respect of Malaysians as well as probably getting re-elected. His honour and integrity has now vanished in the eyes of the Chinese community. After all, a defeat in a vote of confidence simply means the leader has failed to command the majority of the House and the honourable way out is to resign. By clinging on to power devoid of any moral authority, his presidency can best be described as disgraceful and numbered.

Decision of the RoS

I shall now turn to the turn-around decision of the Registrar of Societies (RoS) in reinstating Chua as the deputy president. The RoS is correct in so far as saying Chua cannot be dismissed as the deputy president unless under Article 35. What is wrong with the RoS’s decision is that he did not go one step further to qualify that Chua is still under suspension as the deputy leader.

Let me explain. Prior to the 10-10 EGM, Chua was suspended both as a member and deputy president of the MCA. The 10-10 EGM voted on the two resolutions proposed by Chua.

Resolutions 2 and 3 of the Oct 10 EGM read as follows:

“2. That the decision of the Presidential Council of 26 August 2009 (accepting the recommendation of the Disciplinary Board) and the subsequent decision of the Central Committee (if any) to expel or suspend Sdr Datuk Seri Dr Chua Soi Lek from membership of the MCA is hereby annulled;”

“3. That following from the passage of Resolution (2) above, that Sdr Datuk Seri Dr Chua Soi Lek be rightfully restored to the position of Deputy President of the MCA.”

The supreme body voted for Resolution 2 but rejected Resolution 3. This means the suspension of Chua’s membership is lifted, but not the suspension of his deputy presidentship.

In other words, when the 10-10 EGM voted not to reinstate Chua, it simply means the supreme body wanted him to continue to be suspended. Chua was not, therefore, dismissed. Chua can resume as the deputy president only if the suspension is subsequently lifted by another EGM. The CC cannot lift the suspension because the supreme body had already decided not to lift the suspension of his post as the deputy president.

For this reason, the RoS totally missed the point when he ruled that Chua could not be dismissed. Chua was never dismissed as a deputy president. He was suspended and is still suspended. The RoS’s decision is, therefore, wrong.

Appointment of Liow as deputy president

Having said that, I am rather surprised that the CC in its meeting on Oct 15 went ahead to appoint Datuk Seri Liow Tiong Lai as the deputy president.

Article 23 of the MCA constitution reads as follows:

“Subject to Article 40 hereof, in the event of any elected Party Officials ceasing to hold office due to any reason whatsoever the Central Committee shall have the power to fill the vacancy until the next election of Party Officials by the General Assembly.”

Article 42 of the Constitution reads as follows:

“A member of the Central Committee may resign his office by letter submitted to the Secretary-General giving his reasons. The Central Committee shall consider his resignation at its meeting next after the submission of the letter of resignation. In the event of any of the elected members of the Central Committee ceasing to hold office for whatsoever reason the Central Committee may appoint another to fill the vacancy until the General Assembly in which Party elections are held.”

Under the two articles, a deputy president is both an “elected Party Official” and “elected member of the Central Committee”. These two articles empower the CC to fill a vacancy if the incumbent has ceased to hold office.

The issue is if Chua is still under suspension, has he ceased to hold office as the deputy president? I would answer the question in the negative.

To my mind, the word “cease” means to bring to an end. But the word “suspend” means to discontinue for a temporary period of time. Reference can be made to Article 126.1 of the constitution which says that a member shall “cease” to be a member if he is expelled from the party. It follows suspension is not tantamount to expulsion, and for that reason Chua has not “ceased” to hold office as the deputy president within the meaning of Articles 23 and 42 of the constitution.

Hence, by electing Liow, it is as good as saying the CC has dismissed Chua and this is not possible because of the two-thirds restriction under Article 35.

Dismissal of four CC members

It is ironical that on Nov 3, Ong dismissed four appointed CC members hours before the CC meeting held to discuss the “greater unity plan”.

The four are Deputy Finance Minister Datuk Chor Chee Heung, national organising secretary Yoo Wei How, his deputy Gan Hong Su, and Datuk Chai Kim Sen. In their place, Datuk Donald Lim, Datuk Tan Chin Meng and Chua Tee Yong were appointed.

It is my considered opinion that the dismissal of the four CC members is unconstitutional as Article 35 also requires a two-thirds majority in a general assembly to unseat any appointed party official.

Article 35 reads:

“The General Assembly may dismiss any Party Official (whether the said Party Official is elected at the General Assembly or otherwise appointed) if approved by at least two-thirds of the delegates to the General Assembly present and voting at the meeting of the General Assembly.”

Under Article 38.11, the president is entitled to appoint not more than 8 CC members. He is only entitled to appoint their successors if the appointed party officials resign under Article 42.

Article 166 is germane to this point, and it reads:

“Unless otherwise provided for in this constitution, where powers are conferred on any person or body in this constitution to appoint, such person or body shall also have the power to terminate such appointment in like manner.”

Under the MCA constitution, apart from the president, other persons and bodies such as the CC, state chairmen and other divisional committees are entitled to appoint various persons to various positions at various levels.

Article 166 will apply to those situations except for the position of appointed party officials who include appointed CC members.

The situation is, however, different from the appointment of members of the presidential council under Article 46 and Council of Elders under Article 50. Both Articles 46 and 50 expressly state that the president is entitled to terminate the appointments if and when he thinks fit.

No such power of termination is expressed with regard to the appointments of CC members under Article 38.11, the secretary-general, treasurer-general, national organising secretary under Article 22 and their deputies under Article 22A.

Hence, it can be safely concluded that appointed party officials can only be removed by the general assembly with a two-thirds majority under Article 35.

Article 35 is the exception to and the provision which provides otherwise to Article 166.

Article 35 cannot be interpreted to mean the power of termination of appointed party officials is always reserved to the president under Article 166 and that it is applicable if the president refuses to remove the appointed party officials. If so, then if a president is appointed by the CC to fill the vacancy, then the former can also be subsequently removed by the CC. This will offend Article 35.

In fact, there are good reasons why the president cannot dismiss the appointed party officials unless they resign. This is to ensure that the party officials once appointed will not be beholden to the president so that they can act independently without fear and favour and in the best interest of the party. After all, the CC is the highest decision-making body in MCA and the CC members including those who are appointed must have the security of tenure to perform their duties.

It follows that I will not be surprised if the four CC members also refer their dismissal to RoS. If this continues, MCA will be run by the RoS and not by its members.

All said, if party leaders have the interest of the party at heart, they should call for fresh polls which appear to be the only way to resolve the current imbroglio before the party is torn apart to the point of no return.


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The writer is a senior lawyer.

Posted on 6 November 2009. You can follow any responses to this entry through the RSS 2.0.

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