A response to legal opinions about the MIC - SA Vigneswaran

Datuk S Murugesan and lawyer T Rajasekaran have given us detailed tutorial on the provisions in the MIC constitution that empower the president of MIC to carry out his duties.

I beg to differ.

Murugesan and Rajasekaran’s detailed discussion is only useful in reference to a lawfully elected president of MIC and does not apply to a president who has been ordered to hold a re-election to fill the office of president lawfully.

1. Issue 1: How do branches affect the sanctity of election results

• To address this issue, let us take a look at the role of Branches in MIC.
• Article 16 of the MIC Constitution states that membership of the Congress shall be through admission at a Branch Congress, amongst others.
• Article 31.2 of the MIC Constitution states that every Divisional Congress shall have at least 5 Branch Congresses at one time. And Article 32.1 states that the Divisional Delegates Conference shall consist of all delegates duly elected by the Branch Annual General Meetings.
• Article 42.2.7 of the MIC Constitution states all the Divisional Chairman in the State shall be included in the State Liaison Committee.
• Hence, the entire foundation of MIC stems from the strength of the lawfulness of the Branches.
• There is ample evidence the conduct of the 2013 poll was deeply flawed right from the beginning – starting with participation of illegal branches as if some branches are declared unlawful, the entire chain of subsequent involvement of the said branches would be tainted as well.

Issue 2: How do illegal branches affect the presidential election

• The total delegates in the 2013 AGM exceeded the mandatory limit of 1500 as enshrined in Article 74.1 of the MIC Constitution and then RoS issued the Section 16(1) notice.
• Thereafter, more complaints were lodged by the branches and divisions of MIC with the RoS on the illegality of formation of the branches in express breach of Article 17.10 of the MIC Constitution.
• The alleged branches were not approved by CWC.
• In addition to that, there were also complaints lodged with the RoS that subscription fees that are required to be paid by members were in reality paid from the funds of party headquarters in express breach of Article 76 and 77.1 of the MIC Constitution.
• The findings of the RoS concluded that there were serious illegality issues as regards formation of branches after 2012.
• Hence, RoS has decided to only recognize branches’ elections until 2012 and branches that were active up to 2012.
• RoS has also decided to the Branches Listing as registered with RoS as at 2012 for the purposes herein.
• RoS further rejects any attempt to retabulate the vote counts from the 2013 election as it is tainted with illegality at every level of due to the unlawful branches.
• Article 58.2 of the MIC Constitution states that the President shall be elected by secret ballots of the Chairman of all Branch Congresses and the members of the CWC.
• Hence, the presidential election results will be tainted if even one of the Branch Chairman who voted for him hailed from an unlawful Branch.
• Even when the President takes office unopposed, he still takes office by virtue of the votes from all the Branch Chairman.
• RoS has stated there are branches that are illegally formed and has recommended for a reelection of the entire hierarchy of office bearers, which include the President and the Deputy President. What does that mean? The President and the others are not lawfully elected!
• Furthermore, if the Branch is tainted, all election upwards would become void ab initio as a void vote cast is a vote void ab initio. In the nature of things the void taint in the election would have to be traced to the illegal branches.
• In summary, if branch election is called for reelection then all the office in the party shall automatically be called for reelection as it’s a chain of qualifying delegates for elections at subsequent level.
• When a President has been asked to seek reelection to regularize his position, how can he empower himself with all the constitutional powers given to a President who has been lawfully elected?
• All the provisions quoted by Dato Murugesan and Rajasekaran can be invoked by the President after his reelection when he is lawfully elected as the President.
• In any case I would remind my learned brothers that the same Datuk Seri G.Palanivel himself agreed for Reelection that means he have accepted the fact that 2013 election is null and void. Therefore accepting the fact that he is not the president.

Issue 3 : What are the powers of RoS as regards the affairs of a political party?

• Powers to make inquiry: Section 6A(1) empowers the RoS to make enquiries when there is an application under subsection 12(1) which is an application as regards formation of branches. MIC members made such application to RoS. After the inquiry, the RoS did declare the branches as illegally formed. The decision by the RoS on this is valid and binding.
• Powers to cancel and suspend Section 13(1)(c)(iv) empowers the RoS to cancel the registration of any society that has willfully contravened any provisions of the Act or any of its rules; Section 13(1)(c)(ix) empowers the RoS to cancel the registration of any society that the society has failed to comply with the notice served by him under subsection 16(1); Section 13(2A) empowers the RoS to suspend the societies activities if he thinks fit;
• Powers to order to settle disputes Section 16 (1) states : If the Registrar is of the opinion that a dispute has occurred among the members or office-bearers of a registered society as a result of which the Registrar is not satisfied of the identity of the persons who have been properly constituted as office-bearers of the society, the Registrar may serve notice on the society requiring the society, within one month of the service of such notice, to produce to him evidence of the settlement of any such dispute and of the proper appointment of the lawful office-bearers of the society or of the institution of proceedings for the settlement of such dispute.

The scope of RoS’s power under Section 16(1) has been decided by the Federal Court in Datuk Justin Jinggut’s case.

The Federal Court held as follows:

a. On a literal interpretation of s. 16(1) of the Act, the RoS merely needs to act on the documents presented to him to objectively decide if a dispute had arisen. Once he is satisfied, on a subjective test, that a dispute had in fact occurred, he may straight away form such an opinion. The word 'opinion' as found in s. 16(1) entails a subjective evaluation by the RoS. He forms the opinion based on the documents and information before him. He need not inquire into the meetings to determine if they were in compliance with SNAP's constitution.

b. Section 16(1) of the Act thus has to be given a narrow interpretation limiting the scope of the duty of the RoS to that of only giving an opinion to the existence of a dispute and directing that society to settle the dispute by serving a notice to it. In the event of a non-compliance of that notice, the RoS may deregister the society under s. 13(1)(c)(ix) of the Act.

c. For the court to go behind the opinion stated by the RoS and make its own finding based on the factual background on the validity of the dispute, would usurp the limited powers of the RoS under s. 16(1). The court would then have to substitute the subjective opinion of the RoS. In other words, it would take over the role of the RoS, which the court could not do. In any event, s. 18C of the Act clearly excludes the jurisdiction of the courts from going into the merits of any disputes between members of a political party.

d. The RoS having been satisfied that there has been a non-compliance of his notice, could act under s. 13(1)(c)(ix) of the Act to cancel the registration of SNAP. Although it is an exercise of discretion by the RoS, the discretion must be exercised within the confines of the law. It is in this regard that the RoS had to act mechanically within his mandate under s. 13(1)(c) of the Act.

e. Even if the discretion is an absolute one, the basic proposition is that "the courts do not probe into the merits of a discretionary action or decision. The courts will not question a discretionary decision on such grounds as to whether it was correct or proper, right or wrong. Also the courts will not substitute its own discretion for that of a concerned authority".

f. The decision to deregister SNAP was consequential to the failure of SNAP to comply with the s. 16 notice. There was no requirement for the RoS to conduct any formal hearing before exercising his power under s. 13 of the Act as it was not a judicial adjudication process. There was no evidence of any bad faith or bias against SNAP when the ROS acted under s. 13(1)(c)(ix). The s. 16(1) notice was clear in its terms and the only prejudice suffered by SNAP was due to its own doing, ie for not complying with the conditions specified in the notice.

Therefore it is clear from para (f) above that RoS has the power to attach conditions to its Section 16(1) notice.

RoS’s Section 16(1) notice to MIC giving recommendations to hold meetings within the time frame specified are the condition attached to the notice and are valid and binding.

Issue 4: Are the powers of RoS ousted by Section 18

• Section 18B (1) states, “No election in any political party shall be invalid by reason of any failure to comply with any provision of the political party’s constitution or any rules or regulations made thereunder, or the participation in such election by any person who is disqualified from being a member or office-bearer under this Act or the constitution of the political party, if it appears to the political party or any person authorized by it or by its constitution or rules or regulations made thereunder, that the result of the election would have remained the same had there not been any failure to comply with any such provision, or had the said person not participated in such election, as the case may be”.
• In MIC’s case, the RoS has already formed an opinion that there is a dispute as regards the identity of the office bearers as the result of the election would not have remained the same had there not been any failure to comply with any such provision.
• Hence, once there is evidence that result of election would be different if the provisions in the constitution or rules or regulations made thereunder were complied with, then such election can be declared null and void as declared by the RoS herein.
• Section 18C states that 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.
• No where in Section 18C is any reference to oust jurisdiction of the RoS. The ouster clause applies to courts only as observed a para C of the Federal Court’s decision above.
• In any event, Section 18C does not refer to status of election as 18B has specifically dealt with it.

Issue 5: Has RoS acted within the ambit of the law

• I pause here for a moment to reiterate Section 16(1) the duty of the RoS to that of giving opinion to the existence of a dispute and directing the society to settle the dispute by serving a notice on it. And in the event of a non-compliance of that notice, s. 16(2) stipulates that the RoS may deregister the society under s. 13(1)(c)(ix) of the said Act.
• In MIC’s case, RoS did exactly what is stipulated in the Act.
• The RoS rightly issued a follow-up letter dated 5-2-2015 directing the MIC to re-elect the all office bearers and for the purposes of holding the reelection, to rely on the lawfully constituted CWC of 2009.
• In light of two dominant factions trying to run the reelection in MIC, RoS’s directive to use the 2009 CWC as a temporary measure to manage the elections seems the best way to go. There seems no other option available to MIC to hold the reelection smoothly.
• If the directive is not complied with, the next course of action is for RoS to exercise his discretion under s. 16(2) to take steps to cancel the registration of the party.
• MIC still have the opportunity to put their house in order, so to speak.
• The President of MIC who is also seeking reelection has no powers to do anything more than run the reelection. He is not lawfully appointed to be empowered to make appointments in the party now.
• The President is not immune to the operations of the law. Abiding by the notice of RoS and the conditions attached thereto is the most prudent move for MIC at this juncture to avoid deregistration.
• As a concluding remark I would like to recap the words of the Federal Court in Datuk Justin Jinggut : “The decision to deregister SNAP is merely consequential to the failure of SNAP to comply. Once the conditions stated in the s. 16(1) notice have not been satisfied, the operation of s. 13 is triggered. No reasons are required under the law; no reasons need to be given.

* Datuk SA Vigneswaran is a former MIC Youth chief.

- TMI