FEBRUARY 4 ― Recently the Umno supreme council sacked and suspended several senior party members, which was seen as a purge or cleansing of those not aligned with party president Datuk Seri Ahmad Zahid Hamidi.
Since then debates have been raging on the merits and due process of this decision and its implications to the party and individuals involved. Regrettably, its wider implication to democracy, national leadership, and good governance has hardly been discussed, given that major political parties like Umno are breeding grounds for top leadership in government.
Now consider this likely scenario, moving forward.
In accordance with party constitution, Zahid was elected Umno president in June 2018. The presidency is for a term of three years. However, based on party rules, Umno decided to postpone party elections for the (maximum) 18 months to December 2022, with the consent of the Registrar of Societies (ROS).
Citing preparations for the 15th general election (GE15), Umno amended its constitution to provide for an open-ended extension of party elections for 6 months after GE15. The Registrar of Societies duly approved the amendment. It was patently clear then to all and sundry that the six-month extension was for the sole purpose of calling for an early election, one year before it is due, and for the party president to choose his candidates for GE15.
Recently, Umno approved a motion that the top two posts shall not be contested. Then the purge of those not aligned to the president took place. Umno has scheduled the election of its remaining office bearers in May 2023. Zahid’s position has already been secured for another three years without any election. The president could then postpone the next election of office bearers due by June 2026 for another two years.
That would mean Zahid could stay in office as president at least until 2028. Unless of course, barring some unforeseen circumstances such as criminal convictions that makes him ineligible.
The above scenario would best describe some third world autocratic dictatorship. But this is in Malaysia.
The interesting fact is that the Societies Act 1966 (Act 335) actually facilitates this situation. Democratic choice would dictate that election of office bearers should take place at prescribed period, and only exceptionally extended. Was the ROS right in giving the extensions sought, in accordance with Act 335?
Any appeals by disgruntled party members can only be made first to the party itself, then to the Registrar of Societies, and finally to the minister in charge.
Clause 18(C) of the Societies Act shuts up any avenue to seek redress at the courts, and the courts have dutifully struck off any such application thus far. Clause 18 (C) reads,
“The decision of a political party or any person authorized by it or by its constitution or rules or regulations made thereunder on the interpretation of its constitution, rules or regulations or on any matter relating to the affairs of the party shall be final and conclusive and such decision shall not be challenged, appealed against, reviewed, quashed or called in question in any court on any ground, and no court shall have jurisdiction to entertain or determine any suit, application, question or proceeding on any ground regarding the validity of such decision”
Quite a mouthful in legal parlance, but it simply says the doors of the courts are tightly shut, or the so-called ouster clause.
Clause 18 (C) was introduced by the then Prime Minister Dr Mahathir Mohamed, which enabled him, along with other amendments to party rules, to helm the government for 22 years. Mahathir claimed he is not a dictator, but the only one gifted and fit to govern Malaysia, as he sacked his deputies one by one. When Anwar was sacked from the party in 1998, he had no recourse to the courts because of Clause 18 (C).
However, by poetic justice or karma, Mahathir while in his second stint at PM7, as he was aiming to install himself a dictator by forming a unity government, was sacked from the Bersatu party he founded, and having failed to challenge because of the ouster clause, founded another party ― Pejuang.
Pejuang failed miserably at GE15, losing all seats along with the deposits. This is an important lesson of the power of democracy. Mahathir held on as Prime Minister through undemocratic party laws and rules, but was toppled by the common people when they exercised their democratic choice.
In the current scenario, Prime Minister Datuk Seri Anwar Ibrahim heads a fragile unity government. Essentially, Zahid was instrumental in making Anwar the PM, by not only supporting Anwar, but aggressively corralling support from his coalition, and other undecided parties. In fact, Opposition Party Leader Tan Sri Muhiddin Yassin claimed he had enough support with statutory declarations to form the government, before Anwar did.
Zahid’s longevity as President may seem to assure Anwar’s longevity as Prime Minister. But that may not be the reality. Disgruntled members may break away from UMNO, because they have no recourse to the court due to the ouster clause. Already they are claiming it would be futile to appeal the decision internally or to the Register of Societies. Their move will erode support for Umno and strengthen opposition parties.
Umno and its coalition were the arch rival to Pakatan Harapan (PH) in GE15. Yet PH didn’t do well in GE15 and Umno was massacred. PH voters are now disillusioned being in a unity government with BN, especially with Zahid facing several court charges. Zahid himself may make a move against Anwar in either outcomes of an acquittal or conviction.
The message I am sending here is that the ouster clause 18(C) has implications for national leadership, democracy, good governance and democratic institutions. It is not just a matter of resolving internal party matters.
It strikes at the core of our parliamentary democracy and separation of powers. The ouster clause enables the executive, elected from the party/coalition with the most support, to exert pressure or undue influence on the judiciary or parliament, especially when they are in position through undemocratic party processes.
I intentionally avoided legal arguments where lawyers have adept at arguing for either side. The courts have ruled on the validity and legality of the ouster clause, and we have to respect that decision.
As a layperson, I am analysing this situation from the perspective of social and natural justice as it affects our constitutional rights on access to justice, freedom of association, freedom of expression and speech, and most importantly freedom of choice to vote in government leaders who are not tainted with dictatorship and corruption.
As a victim of the ouster clause himself, I trust Prime Minister Anwar Ibrahim would make the necessary reforms in relation to the double-edged ouster clause 18 (C) in the Societies Act.
* Raman Letchumanan is a former senior official/academic in Malaysia, Asean, and Nanyang Technological University Singapore. He is an accredited accountant (registered in Malaysia/UK) and has a Ph.D. in environmental economics, among other qualifications. This advice is provided pro-bono, without any expectation of public office or any other benefits.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
