Five reasons to dismiss sex tape probe'，蔡细历举5大理由撤销光碟案投诉 马华党章不承认《党员行为守则》

From Malaysiakini, 05.08.09

A day after attending the MCA disciplinary board hearing on his sex tape scandal, Dr Chua Soi Lek made public his submissions to the board - listing five main reasons why the probe should be dismissed.

In the latest posting in his blog yesterday, the embattled MCA deputy president revealed that his lawyer had written three letters to the disciplinary board in the last week of July.

The case against him pertains to a DVD which portrays Chua having sex with an unknown woman, widely distributed in January 2008.

The charge is that the scandal has tarnished the party's image.



Chua summarised those letters and gave five main grounds, explaining why the complaint againt him should be dismissed.



1 The complainant Eng Cheng Guan had withdrawn his complaint against him and did not attend the hearing. This had denied Chua's right to question his accuser.



Due to the absence of a complainant, the disciplinary board is acting as both judge and prosecution, which is against the party constitution which requires the board to deliberate and consider all complaints in an independent, impartial and unbiased manner.

Complainant had no 'locus standi'

"How can the disciplinary board do so in this instance if it is both prosecutor and judge in the matter?" asked Chua.



"...it would overstep the bounds stated in the constitution of the MCA and act unconstitutionally, illegally and wrongly."



2 According to the MCA constitution, Eng has no locus standi to lodge a complaint against Chua as he is from a different division (Simpang Renggam) from Chua's (Batu Pahat).



3 Chua would be penalised twice if the complaint is heard again.



Chua said he had resigned from all government and MCA posts when the tape surfaced in January 2008, and the resignation was accepted by both the government and MCA.



When he constested the party deputy president's post in October 2008, none including Eng questioned his candidacy and eventually he made it as the number two in the party.

"This conduct of the MCA, its disciplinary board and the complainant all leads to one irresistible conclusion: That the complaint had been dealt with and is over."

MCA members vindicated me



"It is clear to all, in any event, that the General Assembly (and the members of the MCA) have vindicated the respondent (Chua)," he stressed.



4 The party constitution requires that a written complaint must be 'initiated and referred' by the party presidential council to be heard by the disciplinary board.



Chua further questioned whether the presidential council could "take over a complaint that has been made and then withdrawn" by "a member who had no standing to initiate the complaint".


5 Eng's complaint alleged that Chua had breached the 'Code of conduct for MCA members' which is not recognised or referred by the party constitution.



"Since the disciplinary function and powers of the disciplinary board are based on articles 123 and 124 of the constitution of the MCA, and not from the 'Code of conduct for MCA members' these entire proceedings are, with respect, a non-starter," said Chua.



"The code is the legacy of former president Ong Ka Ting. However, he did not amend the party constitution to include the code.



"The reasons outlined here are all good reasons for dismissing the complaint," said Chua.

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转载自当今大马， 06。08。09

昨日出席马华纪委会性爱光碟事件听证会的蔡细历（右图），今日在其部落格公布其律师向纪委会提呈的5大理由，说明为何纪委会应该撤销针对他的投诉，停止调查。

他表示，其代表律师是在7月22、29与31日，分别致函纪委会要求撤销投诉。他将这三封函件的内容总结为5大理由。

黄清源撤销投诉缺席听证会

（一）身为投诉人的马华新邦令金区会主席黄清源已经撤销投诉，同时没有出席听证会，而且这等于剥夺了蔡细历反问投诉人的权利。

蔡细历表示，随着黄清源撤销投诉，此案缺乏控方，纪委会因此必须同时扮演检控官与法官的角色，但这是不受马华党章所允许的，因为党章规定纪委会必须在独立与不偏袒的情况下处理每宗合法投诉。

“若纪委会身兼检控官与法官，它如何能够做到（立与不偏袒）？”

蔡细历强调，纪委会若继续调查此事，就等于是“违章、非法与错误”。

来自不同区会不具投诉资格

（二）根据马华党章，黄清源不具有投诉人的法定地位（locus standi），因为黄清源来自新邦令金区会，蔡细历却来自峇株巴辖区会，由于两人来自不同区会，因此前者不能投诉后者。

蔡细历指出，在2008年7月18日开会的纪委会，早已议决承认这项论点，因此目前的纪委会受制于该项议决，不能重新检讨或做出不同的决定。

党员与党大会已宽恕蔡细历

（三）若纪委会继续调查此事，等于是第二度基于同样的罪行惩罚蔡细历。

蔡细历表示，当性爱光碟事件曝光时，他已辞去所有党政职务，政府与马华也接受其呈辞，没有再进行调查。之后马华允许蔡细历参与去年的党选，当时没有任何人包括黄清源提出这项课题，蔡细历也在党选中告捷。

“马华、纪委会和投诉人（黄清源）的举动都导向一个无可否认的结论：投诉已获得处理并结束。”

“对许多人来说，在任何情况下，全国代表大会（以及马华党员）已经宽恕了答辩人（蔡细历）。”

党章不承认《党员行为守则》

（四）马华党章第123A条文规定，会长理事会必须“提出与提呈”（initiated and referred）书面投诉给纪委会，后者才能展开调查。

蔡细历进一步指出，若纪委会认为会长理事会已提出投诉，就会引发两项疑点：（一）马华党章的哪一条文允许会长理事会接受一项已被撤销的投诉？（二）明显的会长理事会并没有提出投诉，因为投诉是由一名不具法定地位的党员提述，而且这名党员已撤销投诉。

（五）黄清源是根据《马华党员行为守则》投诉蔡细历，但是马华党章并不承认，也没有提及这项守则，加上纪委会是根据党章第123和124条文操作，而非《马华党员行为守则》，因此整个听证会根本就不应开始。

《马华党员行为守则》是前总会长黄家定上台后，大力推动“九大政纲”时所制定的守则，不过当时他并没有修改党章纳入这项守则。

蔡细历在贴文结尾时总结说，“上述提及的理由都是撤销投诉的恰当理由”。