PETALING JAYA: Umno’s decision to bar contests for the party’s top two positions has raised questions on the legality and constitutionality of the move.
The motion adopted by the general assembly ensures that party president Ahmad Zahid Hamidi and his deputy, Mohamad Hassan, will be returned unopposed in the Umno elections which must be held by May 19.
Umno leaders are divided on the matter; some are sure of the motion’s validity while others take an opposite view.
Zahid said the adoption of the motion was in line with the party constitution while secretary-general Ahmad Maslan said legal advice had been obtained and the motion is valid.
However, Umno vice-president Ismail Sabri Yaakob deemed the motion invalid and contrary to the Umno constitution, saying members have the right to speak up and voice their objections.
FMT takes a closer look at the motion, whether it is in line with the party constitution and how the Registrar of Societies comes into the picture.
Legal concerns over no-contest motion
In casting doubt on the motion’s validity, Ismail said although the general assembly is the party’s highest authority, its decisions cannot go against Umno’s constitution.
The party constitution says elections must be held once every three years. Postponements are allowed as long as they are clearly stated in the party constitution.
Article 9(3) of Umno’s constitution states an election must be held every three years to fill the positions of permanent chairman, deputy permanent chairman, president, deputy president, three vice-presidents as well as the 25 seats on the supreme council.
Whether the general assembly can override Article 9(3) is debatable; although it is the party’s highest authority, Article 8(1) stipulates that it is subject to the party’s constitution.
Lawyer Arik Zakri Abdul Kadir said on paper, Umno’s general assembly has the right to table and adopt the no-contest motion under the Societies Act.
Arik said there is nothing to stop Umno from adopting the no-contest motion because the law allows the party to do so. The law allows a party to enact rules to govern its party elections.
However, the law prevents party members from taking the matter to court, but nothing stops them from challenging the constitutionality of Section 18C in the Societies Act if they believe it violates their freedom of expression or association.
“The Societies Act says all the rules and actions of a party must conform to the constitution of the party. This should include rules on party elections.
“What’s the point of having that rule if you can just ignore it under Sections 18B and 18C? It’s contradictory. It’s either one qualifies the other or one is not constitutional,” he told FMT.
Ismail said Umno members have the right to take action against the motion but advised them to take the matter up with the Registrar of Societies as party decisions cannot be challenged in court under Section 18C of the Societies Act.
Constitutional law expert Shad Saleem Faruqi said Umno’s no-contest motion is not a law. “It does not suspend a party member’s constitutional and civil rights.”
He told FMT that under the Societies Act, party disputes should be referred to the registrar and not the courts. However, it remains open to debate whether the courts would still examine the legality of the motion.