14 Days?

When I finally managed to talk to a lawyer friend, who had dealt with a society dissolving before, about the issue of the BNWs submitting their dissolution application to the ROS long after 14 days had passed from March 9th, he threw me a very cryptic question :-

The date they decided to dissolve was March 9th. What was the effective date of dissolution? 

He mentioned that when dissolving a society, the society’s bank account needs to be brought down to zero and closed. This takes time, so he doubts very much that it could have been the same day. 

I leave it up to you all to decide what this could mean.

Are all PR wives eligible? Is Betty eligible?

Are all PRWs Eligible?

Many have approached the PBT issue with the idea that :-

“all the PRWs of Penang are automatically members of the PBT”

This statement is made up of two assumptions. I have already shown that according to the constitution, one of these assumptions, “are automatically members”, is inaccurate. The PRWs of Penang are not automatically members but are eligible to join as members. We must therefore modify the statement to read :-

“All the PRWs of Penang can join as members of the PBT”

We must now go back to question the other assumption contained in this statement, which is “All the PRWs of Penang”. Is it true that all of them can join? Let us return to Article 5.1 :-

Keahlian Pertubuhan BUNGA TANJUNG hendaklah terdiri dari Ahli Biasa dan Ahli Bersekutu seperti berikut:-

a.     Ahli Biasa

i.       Isteri Ahli Dewan Undangan dan Parlimen bagi Negeri Pulau Pinang kecuali mereka dari parti pembangkang;

- Article 5.1, Perlembagaan Bunga Tanjung

A wife’s eligibility to join PBT as member depends on the status of her husband. If he is in government, she is eligible. If he is in opposition she is not. 

How is the status of “opposition” to be determined? Common sense seems to indicate that the status of “opposition” can only be assigned in the context of the legislature the person sits in. 

Therefore, since a PR ADUN of Penang is in government (not in opposition) in the state legislature, a PR ADUN’s wife would be able to join as a member of PBT. However, since a PR MP of Penang IS in opposition in parliament, a PR MP’s wife would not be eligible to join as a member of PBT. 

I suppose, because as an MP he is in opposition, Jeff Ooi’s wife would not qualify to be a member of PBT even though he assumes she would? This applies also to the wives of Tan Tee Beng (Nibong Tebal), Liew Chin Tong (Bukit Bendera), Chow Kon Yeow (Tanjong), Karpal Singh (Bukit Gelugor), Zahrain Hashim (Bayan Baru), Mohd Yusmadi Mohd. Yusoff (Balik Pulau), Lim Guan Eng…

 

Is Betty Chew Eligible?

Hold on a minute… with Betty Chew (and lets not forget Ramasamy’s wife), we come up against a logical dilemma. As we can see, the constitution does not specify what to do about the wives whose husbands are in government at the state level and in opposition at the federal level. Because of her ‘dual status’ as both,

1. a government ADUN’s wife, which means she is eligible, and
2. an opposition MP’s wife, which means she is ineligible,

it is a catch-22 situation. When she applies to be a member, either way the committee decides (here I assume they consider her application only in terms of whether it violates the constitution or not) it would be wrong.

If they accept her, it would be going against the constitution, which would be legally invalid. If they don’t accept her, since as the wife of the CM she automatically becomes the YDP (Yang Di Pertua) once she becomes a member, it could very well result in a society with no YDP or no leader. 

This is a serious issue as the YDP not only casts the deciding vote in any deadlock, she is also one of the signatories for the PBT bank account and is thus important in dispensing the money out for charity.

 

What is Fair and Responsible?

Of course we can say “why can’t the PRW call an EGM to change the constitution?” Here, we see that yet again, as with dissolving the society, the constitution seems to bind them to only be able to do it at an AGM:-

Perlembagaan Pertubuhan BUNGA TANJUNG boleh dipinda dan diubah dari masa ke masa dengan keputusan Mesyuarat Agong. Pindaan atau perubahan kepada Perlembagaan hanya boleh dikuatkuasakan mulai dari tarikh pindaan atau perubahan itu dibenarkan oleh Pendaftar Pertubuhan. Permohonan untuk membuat pindaan kepada Perlembagaan hendaklah dikemukakan kepada Pendaftar Pertubuhan dalam masa 28 hari dari tarikh keputusan membuat pindaan itu diluluskan.

- Article 14, Perlembagaan Bunga Tanjung

Again, no mention of the validity of doing it at an EGM. After the AGM scheduled on March 9 2008, the PRW would have to wait almost another year before they can call an AGM and change the constitution. Are we willing to wait for one year for the mess to be sorted out?

Is it fair to the people for the BNW to leave the society in such a state? Is it being responsible for the BNW to wash their hands and let the PRW just “deal with it”?

 

An Inadequate Constitution

Looking at the very unclear wording in the PBT constitution, especially within Article 5.1, it is obvious that it was written at a time and was meant for a time when political realities were different. It is a constitution that cannot handle there being one government at the state level and another government at the federal level adequately. When it meets a potential member like Betty Chew who holds ‘dual identities’, it ties itself into a proverbial Gordian knot. 

 

An Unorthodox Idea

What if the BNWs, having helped draft the constitution and thus knowing the contradictions that would arise within it after the March 8 elections, took the “drastic” step of dissolving the PBT in order to cut the Gordian Knot? By dissolving a society whose constitution no longer functions adequately in today’s changed political environment, have they in fact cleared the way for the PRW to set up a new society with a constitution that works?

Is Donating to BAKTI illegal?

One of the most frequently discussed questions is probably the donation of funds to BAKTI. Was this an illegal act?

The state government of Penang seems to think so:-

Kegagalan Puan Sri dan ahli jawatankuasa menyerahkan PBT dan wang kepada kerajaan baru secara amnya dan isteri wakil rakyat kerajaan baru secara khasnya sebaliknya membubarkan PBT dan mendermakan sebahagian wang kepada BAKTI adalah ultra vires dan boleh dianggap menyalahi Perlembagaan PBT dan salah di sisi undang-undang.

- Page 2, Paragraph 3, Letter from Ng Wei Aik to Chui Kah Peng

And so do the PRW (Pakatan Rakyat Wives):-

We are very shocked at the former members’ ultra vires decision (decision beyond their power) to dissolve PBT and to donate RM350,000 to Bakti (the Association of Wives of Ministers and Deputy Ministers).

- Betty Chew, the Star, May 7 2008.

However, is donating to BAKTI really a decision beyond the power of the original members of PBT (or the BNW, Barisan Nasional Wives)? Lets look at the constitution again:-

Sekiranya Pertubuhan BUNGA TANJUNG hendak dibubarkan secara yang disebutkan di atas, wang lebihan setelah dibayar segala hutang dan lain-lain tanggungan, akan didermakan kepada Kerajaan (Persekutuan atau Negeri) atau lain-lain Tabungwang yang serupa. 

- Article 19.2, Perlembagaan Bunga Tanjung

Since BAKTI is a charitable organization like the PBT, strictly speaking, donating the money to BAKTI is in accordance to the constitution and thus is within the power of the BNW. 

Again I emphasize that I am not a lawyer, but from what I can see from the constitution, it doesn’t matter how much the amount donated to BAKTI was, whether it is 350k or 590k, it was legally right to do so.

 

 

Of course, the question is now whether it was moral or ethical to do so? This goes beyond what I can safely theorize because I currently just have the constitution to go by (I am trying to investigate elsewhere though).

However, I reiterate my stated approach to this matter, which is not to fall into the “guilty until proven innocent mindset”. In the matter of morals and ethics I believe we can only judge this when we have heard what the BNWs have to say about their plans.

I would urge the PBT to let us, the public, know what their intention was at the time. Of course we can be cynical and disbelieve whatever reason they may give, but for now lets give them the benefit of the doubt. Let us see their intentions and then see if it measures up.

 

Since I am currently at the limits of theorizing about intentions that I have no knowledge on until the PBT says something or I discover something, for the next article I will return to more ‘nick-picking’ about the constitution.

Next: Are ALL PRWs eligible?

 

 

Was Dissolution Legal?

In this article I am only going to touch on the three issues that were listed as the “questions to ponder over” in a recent Malaysiakini article, :

Legally, is it that an association can only be dissolved at an extraordinary general meeting (EGM), not at an AGM, and upon a written request [by] one or a certain number of members?


In most cases, a 14-days notice of this EGM shall be sent to all members to validate the meeting. Was this done?


After March 8, BNWs had automatically lost their membership since their husbands were no longer in power. Hence, do they still have any legal right to conduct an AGM, let alone dissolve the organisation? [my emphasis]

I believe that I have already talked about Question #3 in my earlier post. Question #2 is actually but a ‘consequence’ of Question #1 so this article will now address Question #1.

What does the PBT constitution say about “Pembubaran”?

Pertubuhan BUNGA TANJUNG ini boleh dibubarkan secara sukarela dengan persetujuan Mesyuarat Agong yang dihadiri tidak kurang daripada tiga perlima jumlah semua ahli-ahli. [my emphasis]

Article 19.1, Perlembagaan Bunga Tanjung

Is there a mention on the requirements of a written request by one or a certain number of members?

Is there any mention of an EGM (Mesyuarat Agong Khas) in here? In fact it seems that the PBT constitution BINDs the PBT members to only be able to dissolve their society at an AGM (Mesyurat Agong). 

As such doesn’t Question #1 and by extension Question #2 now become immaterial?

 

Next: Is donating to BAKTI illegal?

Automatically Kicked-out?

Although I had mentioned before in an earlier post what LGE and Ng Wei Aik said in terms of the membership of original PBT members after March 8th, I’ll repeat it again here for comparison purposes.

“So, how can they dissolve the association on March 9 when they are no longer members? …”

LGE in ”Lim declines open debate”, Star, May 3 2008

And,

Perlu diingatkan bahawa apabila mesyuarat Agung PBT diadakan pada 9 Mac 2008, semua ahli asal PBT sudah kehilangan hak keahlian kerana suami kamu telah kalah ataupun bertukar menjadi ahli pembangkang berikutan “tsunami politik” yang menyebabkan perubahan kerajaan daripada Barisan Nasional kepada DAP, PKR dan PAS pada 8hb Mac 2008. [my emphasis]

- Page 1 Paragraph 3, Letter from Ng Wei Aik to Chui Kah Peng.

This issue has even appeared on Malaysiakini, where three issues were listed as ‘questions to ponder over‘

1. Legally, is it not that an association can only be dissolved at an extraordinary general meeting (EGM), not at an AGM, and upon a written request for one or a certain number of members?
   
2. In most cases, a 14-day notice of this EGM shall be sent to all members to validate the meeting. Was this done?
   
3. After March 8, BNWs had automatically lost their membership since their husbands were no longer in power. Hence, do they still have any legal right to conduct an AGM, let alone dissolve the organisation? [my emphasis]

 

So, what does the PBT constitution say on “Pemberhentian dan Pemecatan”?

Ahli yang hendak berhenti menjadi ahli Pertubuhan BUNGA TANJUNG hendaklah memberi kenyataan bertulis dua minggu terlebih dahulu kepada Setiausaha dan membayar segala hutang-hutangnya.

Article 16.1, Perlembagaan Bunga Tanjung

And,

Mana-mana ahli yang gagal mematuhi Perlembagaan Pertubuhan BUNGA TANJUNG atau bertindak dalam cara yang akan mencemarkan nama baik Pertubuhan BUNGA TANJUNG bolehlah dipecat atau digantungkan keahliannya dalam satu tempoh yang difikirkan munasabah oleh Jawatankuasa. Sebelum Jawatankuasa memecat atau menggantungkan ahli tersebut, ahli itu hendaklah diberitahu sebab-sebab pemecatan atau penggantungan secara bertulis. Ahli tersebut juga hendaklah diberi peluang menerangkan dan membela dirinya. Pemecatan atau Penggantungan itu hendaklah dijalankan melainkan mesyuarat agung menunda atau membatalkan keputusan itu atas rayuan oleh ahli tersebut.

Article 16.2, Perlembagaan Bunga Tanjung

These are the only two sub-sections in the constitution on the matter. If 5.1 is the “who can join as members” clause and 5.3 is the “how to join as members” clause, then 16.1 and 16.2 can be considered the “cessation of membership” clauses.

Interestingly, in the constitution there is no clause that mentions the automatic loss of membership rights (kehilangan hak keahlian) upon the loss of the husband in the election.

Again I stress that I am not a lawyer and am not aware of any additional considerations that may come in to play in this case when the constitution is silent, but it seems that unless a member resigns (16.1) or is fired by the committee (16.2) technically they continue to remain a member. 

Why was this key part of the constitution withheld when all these statements on the constitution and membership were being made? 

 

Next I shall look into the dissolution of the PBT, since the legality of it has become quite a hot topic now.

Next: Was Dissolution Legal?

Not a single member?

Hypothesis: What if what the Penang State Government says about PBT members losing their membership is true?

For hypothetical arguments sake, let us assume that what the Penang state government has said about PBT membership is true, that they are no longer members, as stated by LGE in Star, 3 May 2008, because their husband were voted out in GE2008, as stated by Ng Wei Aik in his letter to Chui Kah Peng on 4 May 2008, which I quote:

Perlu diingatkan bahawa apabila mesyuarat Agung PBT diadakan pada 9 Mac 2008, semua ahli asal PBT sudah kehilangan hak keahlian kerana suami kamu telah kalah ataupun bertukar menjadi ahli pembangkang berikutan “tsunami politik” yang menyebabkan perubahan kerajaan daripada Barisan Nasional kepada DAP, PKR dan PAS pada 8hb Mac 2008. [my emphasis]

- Page 1 Paragraph 3, Letter from Ng Wei Aik to Chui Kah Peng.

 

Since we saw in my earlier post that it appears that membership to PBT is not automatic and new members need to apply, lets look at what would happen if the above hypothesis is true:

1. On March 8th, all original PBT members lose their membership.
2. There are no members in PBT from March 9th onwards.
3. Since there are no members, there is no committee from March 9th onwards.
4. New members need to apply and the application needs to be approved by the committee before they become members.
5. There is NO COMMITTEE to approve new membership.
6. New members cannot be approved, therefore they cannot enter the PBT.

If we take this hypothetical situation to its logical conclusion, there will be no more members in PBT from March 9, 2008 onwards. 

Since I am no lawyer, I do not know what will happen to the society when the society has no members. Who can operate the society’s funds? How can the funds then be used for charity if no-one can operate it?

BUT, is the above hypothesis true? Are PBT members automatically non-members when their husbands lose the election?

Next: Automatically Kicked Out?

Automatic Membership?

Since I have explained how I will approach this issue, lets begin the discussion!

After getting in touch with a few friends, I managed to get a copy of the PBT constitution (of course like LGE I cannot be sure that the constitution hasn’t changed!). Unfortunately, I am not a lawyer so I will be just using my own logic.

In the media and on the blogs, the most attention has been given to Article 5.1 of the PBT constitution. By now most of us should be familiar with it, but for the sake of completeness I’ll post it up anyway:

Keahlian Pertubuhan BUNGA TANJUNG hendaklah terdiri dari Ahli Biasa dan Ahli Bersekutu seperti berikut:-

a.     Ahli Biasa

i.       Isteri Ahli Dewan Undangan dan Parlimen bagi Negeri Pulau Pinang kecuali mereka dari parti pembangkang;

ii.    Isteri kepada YB Setiausaha Kerajaan Negeri Pulau Pinang;

iii.    Isteri kepada YB Penasihat Undang-undang Negeri Pulau Pinang;

iv.     Isteri kepada YB Pegawai Kewangan Negeri Pulau Pinang;

v.    Isteri bekas Ahli Dewan Undangan dan Parlimen Negeri Pulau Pinang kecuali pembangkang;

- Article 5.1, Perlembagaan Bunga Tanjung

It is via this point that it has been asserted that his wife and other PR people’s representative’s wives are automatically members after winning the election on March 8th.

However, when looking at a constitution I’m sure we cannot just look at one article in isolation. There are many provisions that could affect one another. From what I have read of the PBT constitution, it is no different. Lets look at the following:

Tiap-tiap seorang yang ingin manjadi ahli hendaklah mengisi borang yang disediakan oleh Pertubuhan Bunga Tanjung dan menghantar borang tersebut kepada Setiausaha bersama dengan yuran. Jawatankuasa berkuasa menerima atau menolak permohonan menjadi ahli tanpa memberi apa-apa sebab.

- Article 5.3, Perlembagaan Bunga Tanjung

In this context, it seems that membership to PBT is not automatic even when a person’s husband becomes a people’s representative. The way I read it, what Article 5.1 lays down is the eligibility of membership, the “who can join the society” clause. But “joining as a member” is a two step process that is governed by Article 5.3 :-

1. A person would have to apply for membership, then
2. Her membership would have to be approved by the committee.

Does this mean that the membership of PR wives is not automatic? 

Why was this part of the constitution not revealed to all of us?

Next: Could we end up with NO MEMBERS in the society?

Are they Really Desperate Housewives ?

   

Alternate Views

 

As I was reading the many blogs that have touched on the topic of PBT (Pertubuhan Bunga Tanjung), I thought that I would like to share some of my thoughts from an alternate standpoint so that we can provide the readers a more complete view on the matter. I will base my thoughts on some of the research that I have been doing on this subject and also with the intention of providing a “voice” (not sure PBT will welcome it as this is done on my own accord).

 

Instead of thinking they are guilty untl proven innocent, I decided to play devil’s advocate and approach this issue from a different angle:

 

“Let us assume that their intention to perform charitable work was genuine, but that good intention is now being misconstrued. How would they feel? Would it discourage them so much that they would give up on doing charity all together in the future?”

 

With individuals who are willing to perform charitable activities becoming near extinct in today’s society, without giving these people a voice, we could well be pushing them in that direction.

 

Next up: Is membership for PR wives automatic after March 8?