Fw: Blunder by Registrar of Societies a general election game changer

[Chang Mei Bin]

                                                         

Subject: Blunder by Registrar of Societies a general election game changer   Blunder by ROS a GE game changer Tommy Thomas 12:49PM Apr 23, 2013   COMMENT The letter dated April 17, 2013 from the Registrar of Societies (ROS) to the DAP was one of the worst pieces of partisan decision-making by BN controlled civil servants intended to cripple an opposition party on the eve of nomination day prior to general elections. It would have resulted in a most unfair elections. At the outset, I disclose my interest - I was one of the lawyers advising DAP on how to respond to ROS’ letter. The letter was faxed by the ROS to DAP’s office at 5.25pm on the evening of April 17, 2013. It was, however, only noticed by DAP at noon the next day, on April 18. The letter informed DAP of an existence of a dispute between its members and the party arising from the election of its office-bearers and the central executive council (CEC) on Dec 15, 2012. ROS went on to state that as the validity of these elections was impugned, it was issuing a notice under Section 16(1) of the Societies Act, 1965 through that letter requiring DAP to submit a written explanation, to reach ROS within one month, on steps that DAP will take to resolve the dispute. But the critical decision of the ROS is found in the last sentence of the letter, stating that pending the resolution of this dispute, ROS, acting under Section 3A of the Act “does not recognise the office-bearers of DAP appointed by the CEC on Dec 15. ROS’ letter had been copied to the EC The practical effect of this decision was catastrophic. DAP secretary-general Lim Guan Eng (below) could no longer sign all the requisite documents for the nomination on April 20, of DAP’s 156 candidates for parliamentary and state seats. Thus, DAP’s right to field these 156 candidates in its own name, and to campaign using its famous rocket symbol was called into question. The timing was as dastardly as the decision itself, since DAP only had 36 hours to decide its next course of action prior to nomination. Any doubt that this was the sole intention of the ROS’ decision was removed when it is realised that their letter was copied to the Elections Commission (EC). When are letters from the ROS ordinarily copied to the EC? I shall not tediously advance in this note legal arguments of a highly technical nature as to why the ROS’ decision is terribly flawed in law, and is, an abuse of his awesome powers under the Act. In other words, the decision is ultra vires the Act. Even if DAP was minded to challenge ROS’s letter in court, the absolute lack of time to do so meant that this was neither a viable or practical option. As this was clearly a politically-motivated decision, DAP’s response had to be political. Danger offers challenges and opportunities. DAP decided that instead of trusting either the EC or the ROS, it would accept the generous offer of PAS and PKR to stand on their tickets. Hence, once again a decision of a BN-directed agency comes back to haunt BN - an own goal, if you will. It would be difficult to find a single Malaysian who will attribute the decision contained in the letter dated April 17 to have been independently made by ROS. Administratively, ROS reports to the Home Affairs Ministry. Hence, the only question is whether it was actually taken by caretaker Minister Hishammuddin Hussein, acting on his own or in consultation with caretaker Prime Minister Najib Abdul Razak (right). It absolutely defies belief that a decision of such magnitude on the eve of a country’s general elections can be made by a civil servant acting independently. Within hours, the BN/ROS decision had back-fired, and at 9.30pm on April 19, ROS faxed a second letter to DAP. This is probably unprecedented, and certainly represents the quickest flip-flop in the history of Malaysian governments. Unintended Electoral Consequence What caused the U-turn was not a realisation that their first decision was wrong and improper. Rather, it was based on realpolitik — a realisation that BN would suffer at the polls for this monumental blunder, and damage control measures had to be taken quickly. Although the second letter states that ROS “has no objection to the DAP participating in the 13th general election and using its symbol”, its concluding sentence is of concern because it states that “it is only the office-holders in the CEC elected on Dec 15 who are not recognised” by the ROS. However, as the 156 DAP candidates were finally allowed to be nominated on April 20 even if their requisite documents were signed by Lim, the EC did not seem to be troubled by the inconsistent conduct of ROS (left). The BN/ROS decision of April 17 has an unintended consequence. It gave an opportunity to the three parties in Pakatan Rakyat - PAS, PKR and DAP  - to become a closer union, which their senior leaders immediately accepted. This is not without risk; chauvinist fringes in DAP and PAS may feel alienated by the landing of the red rocket on the green moon. However, the majority of voters will accept that DAP was pushed into a corner and had to clear the immediate hurdle of being able to offer their 156 candidates to the electorate. Disqualification of these candidates by biased EC nominating officers on April 20 had to be avoided at all costs. The alacrity at which PKR and PAS responded to the crisis in DAP can only be a harbinger of true cooperation between them when they secure power in a fortnight. A closer examination of the crisis bringing the three Pakatan parties together will indicate that it was not really an unintended consequence. On the contrary, it was most foreseeable. Why was it therefore not considered by the BN/ROS decision-makers before they issued the letter? When desperate people take desperate decisions, rationality evaporates. A significant reason why Malaysian voters must decisively vote out BN as our federal government is its utter incompetence and inability to govern properly, as demonstrated by ROS’s April 17 letter given on the instructions of BN. They have to be punished at the polls. TOMMY THOMAS is a constitutional lawyer.