by Roger Tan

When the MCA delegates decided to sack both Datuk Seri Ong Tee Keat and Datuk Seri Dr. Chua Soi Lek in the Oct 10 EGM (“1010 EGM”), the Chinese community stood up and took notice of the courage of the MCA delegates. This has not happened for a very long time, but what the delegates did on 1010 EGM obviously earned the respect and admiration of many in the community.

But later when Prime Minister Datuk Seri Najib Razak said the 1010 EGM decision is ultimate and must be adhered to, Ong and Chua decided to ignore it.

And when Deputy Prime Minister Tan Sri Muhyiddin Yassin said MCA did not belong to either Ong or Chua, both of them decided to do exactly that after refusing to respect the 1010 EGM decision, treating the party as if it is their personal property.

As an MCA member, I feel completely indignant with how this 60-year-old party is being usurped by the two illegitimate leaders.

I will continue to speak up without fear and favour. After all, I have always been defending the principles of accountability, transparency and integrity especially during my days as a member of the Bar Council. Of course, I could have easily written something to extol Ong and Chua as our dear and beloved leaders so that my writings could be published by the party’s paper, The Star which has now been used as Ong’s mouthpiece. To tell you the truth, The Star is almost unreadable at this time, and what is reported in other English mainstream papers also does not correctly reflect the sentiment on the ground. I hope they will not make the same mistake which Barisan Nasional did in the last general elections.

Why fresh polls are the only way out

As far as the history of MCA is concerned, Ong is now the only president of MCA to have lost a vote of confidence, and one who has so flagrantly abused his presidential powers to nail himself to the throne. All I can describe him now is that the Chinese in this country probably like him as much as the Indians in this country would like Datuk Seri S. Samy Vellu.

As for Chua, he is in fact still under suspension and will also go down in the history of MCA as its first deputy president to be “appointed” by the Registrar of Societies.

In fact, if you ask me, Chua is actually the current de facto leader of MCA since Ong has hardly any more grassroots support.

Having personally known Chua since his days as a Johor state executive councillor in the early 1990s, I must say I am extremely disappointed by his recent actions. I used to have a lot of respect and admiration for him as a Johor exco member and the Minister of Health. What impressed me most about him is his ability to master the Chinese language and Bahasa Malaysia within a short time. He would also not hesitate to speak his mind fearlessly on various issues affecting the Chinese community. Prior to this, I had also come to his defence why he should not be prosecuted for consensual oral sex based on archaic laws.

What is now most disturbing is his call to MCA delegates to boycott the Nov 28 EGM (“1128 EGM”). Being an intelligent man himself, I would have thought he would support fresh polls and use this opportunity to legitimise his position as well as to justify his young son’s appointment to the central committee (“CC”). He may even easily win the presidency if he contests now. By adopting this route, he can at least clothe the office he later holds with the required legitmacy.

If Ong and Chua decide only to call for fresh polls after having jointly exterminated all their political foes, this will only go to show how vindictive and ruthless they can be in their obsession for power by axing all those whom they think have wronged them before this, all done in the sham name of unity. MCA or any political party for that matter, I must stress, has no place for such vengeful leaders.

They must remember too that in politics, what goes around will one day come around to haunt them. Ong and Chua’s son are there today because of the magnanimity of previous leaders like Tan Sri Ong Ka Ting and Tan Sri Chan Kong Choy.

As I have said in my second article on MCA, fresh polls are the only way out to redeem the party and its leaders in the eyes of the Chinese community. It is highly untenable for the two of them to continue to hold on to power illegitimately. Like what Najib has so correctly told the MIC delegates, it is pointless to win the party position if you cannot win the hearts and minds of your community.

If MCA continues to be run in this illegitimate way, MCA may even lose more seats in the next general election including those in Johor which is traditionally the Barisan Nasional fortress. I am sure our leaders in Johor Barisan Nasional like Muhyiddin and Datuk Ghani Othman would be extremely alarmed. If this crisis continues, it may make better sense for Najib to appoint prominent Chinese involved in civil society to his Cabinet. This will not only shake up the MCA leadership, but will probably attract more support for the Barisan Nasional from the Chinese community.

Is the Nov 28 EGM unconstitutional?

On the face of it, the 1128 EGM resolution calling for fresh polls does appear to go against the MCA Constitution as fresh polls can only be called in three situations — when the term expires after three years; when two-thirds of CC members resign en bloc under Article 41 and when two-thirds of CC members have been removed by the general assembly under Article 35.

The CC had also very cleverly invoked Article 174 on Nov 18 to declare the 1128 EGM to be unconstitutional. The CC is entitled to do so, and under Article 174, the decision by the CC in interpreting any provision of the constitution is final and conclusive and is not subject to question by or in any court of law. With this decision, I am sure the requisitionists will be barred from even using Wisma MCA as the venue for the 1128 EGM.

If this is so, then why were Ong and Chua allowed to jointly call for the 1010 EGM if the resolution on vote of no confidence is also against Article 35 since a party official can only be removed by a two-thirds majority in the EGM? Is the MCA leadership not practising double standards by being inconsistent? Having then recognised the constitutionality of the 1010 EGM, MCA has already set a precedent for 1128 EGM to be lawfully held.

The next question follows, that is, is the general assembly which is the supreme body of MCA really that powerless after the CC has declared the 1128 EGM to be unconstitutional?

The answer is obviously not. Having examined again the relevant provisions of the MCA constitution with my friend Edmund Bon, who handles many constitutional law cases and is also chairman of the constitutional law committee of the Bar Council, I agree with his view that the 1128 EGM is lawful and the requisitionists are entitled to go ahead with it for the following reasons:

(1) Under Article 32, the quorum for the 1128 EGM is one-third of the delegates. If the quorum is met, and if the resolution for calling for fresh polls is carried by two-thirds of the delegates present at the 1128 EGM, then this is tantamount to having dismissed all the CC members under Article 35. If this happens, the resolution if carried is perfectly constitutional.

(2) The decision made by the CC on Nov 18 under Article 174 can be overruled by the general assembly because under Article 37, the general assembly being the supreme body, also possesses the same powers of the CC, divisional and branch committees. In addition to that, Article 37.1 provides that the general assembly has very wide powers to regulate its own proceedings, direct, manage and control the affairs of the party and act in the name of the party. This is reinforced by Article 37.6 which provides that the general assembly has the power to direct, manage and control the affairs and business of the party, its committees, sub-committees and any other organisation established under the constitution. In other words, if the current affairs of the party can only be managed and controlled by holding fresh polls and the resolution is passed even by a simple majority, then the entire CC is under a strong moral obligation to step down.

(3) Under Article 175, the members are entitled to exhaust all avenues and remedies provided for under the constitution. Hence, by calling the 1128 EGM, the 16 CC members are exercising their constitutional right to exhaust all avenues and remedies under Article 30.2 to overrule the CC and to call for fresh polls. Their constitutional right under Article 175 cannot be denied.

(4) It follows that Article 31 is clear, that is, if the EGM is requisitioned by one-third of the CC members, then the constitution says the secretary-general “shall” proceed to issue the appropriate notice. The same article goes on to state that if the secretary-general fails to issue the notice of meeting “for any reason whatsoever” which should mean to include the CC’s decision that it is unconstitutional, then the requisitionists can go ahead to issue the notice of meeting. The article does not provide that if the notice is not issued by the secretary-general for “any reason whatsoever”, then the EGM is unconstitutional. In other words, the EGM has to be held so long as one-third of CC members have requisitioned it, and it is up to the general body to decide whether the resolution is constitutional or otherwise. It is immaterial that four of the requsitionists were later removed from the CC by Ong because at the time of the requisition, the four were duly appointed CC members. Further, as I argued in my last article, Ong acted ultra vires by removing them without complying with Article 35 which he himself has sought refuge under even though he has waived it by his infamous promise to resign before the 1010 EGM.

(5) It is pivotal to understand that the general assembly is always vested with residual powers to correct any wrong and injustice perpetuated by the powerful CC. Frankly, I have yet to come across any constitution which says that the general assembly is subservient to a committee.

MCA delegates must rise to the occasion

MCA delegates must not stay away from the 1128 EGM just because later their decision can still be ignored by the irresponsible leaders. The fact that Ong and Chua have shown no regard whatsoever to the general body after the 1010 EGM makes it all the more necessary for them to attend the 1128 EGM to assert the supremacy of the general assembly. They must rise and send a strong message to the leaders that power is vested in the members and delegates. They must reclaim this right!

Even though I am English educated, I do know that in the 5,000 years of Chinese civilisation, history is replete with many inspirational stories of how upright and righteous junior officials stood up against tyrants in order to bring about social justice. Many of these heroes espoused great virtues of integrity and uprightness.

I know one of them was Zheng Banqiao (1693-1765), who was the official calligrapher and painter for the Qianlong emperor during the Qing Dynasty. Wikipedia described him as follows: “He began life in poverty, but rose in the exam system to become a magistrate at Shandong. However, after 12 years, he became critical of the life of an official as he refused to ingratiate himself with senior officials. When he was reportedly criticised for building a shelter for the poor, he resigned. After that, he expressed himself in art and became one of the Eight Eccentrics of Yangzhou. He was noted for his drawing of orchids, bamboo, and stones.”

Incidentally, Ong loved to quote one of Banqiao’s great poems, and even had it printed in his 2006 Chinese New Year cards:

In simple terms, the poem talks about how a bamboo growing from the cracks of a rock is rooted strongly to the rock that no matter how strong the winds, it will still stand still. The moral of the story is that if one is strongly rooted in our position, we will not falter when faced with whatever adversity.

Now, let me digress a little. When my nonagenarian uncle died a few years back in China, he left behind a precious book detailing our family genealogy. The book traced our ancestry and concluded that one of our possible ancestors is Banqiao.

If so, as a descendant of Banqiao, I think I stand in good position to tell Ong to stop quoting Banqiao because Banqiao was such a great righteous and upright official during his time. I do not think Banqiao would condone his current acts and antics to stay rooted in power by uprooting the principles of accountability and integrity.

1128 EGM is the opportunity for MCA delegates who represent me and more than one million other members to say no to such tyranny. MCA delegates must not shy away because they are more concerned about losing their party and government position for fear of antagonising Ong and Chua.

They must not continue to ingratiate themselves with those who hold on to power illegitimately. They must not place their own interests above the party, but start to walk the talk so that the Chinese community can be proud of them and proud of the party again.

I hope they will steadfastly hold on to the saying that a good thing has its number of days, but a good name will last forever. It is time to search their hearts and conscience and not to allow themselves to be manipulated and enticed by money and position. For the sake of their own next generation, they must rise to the occasion to do honour to their own name by sticking to the principles of accountability and integrity which in turn will restore democracy to MCA. To do otherwise will only commence and accelerate the journey of MCA into oblivion.

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