Re: In the matter of the Complaint lodged by Sdr Eng Cheng Guan to the Disciplinary Board of the MCA
Submissions by the Respondent (Sdr Datuk Seri Chua Soi Lek) to the Disciplinary Board
1. The Respondent has, through his solicitors, Messrs Zul Rafique & Partners, written three letters to the Disciplinary Board (“DB”) of the MCA. These letters are dated 22.7.2009, 29.7.2009 and 31.7.2009. These letters are before the Board and are taken as read. The matters raised in those letters are repeated here. The request for documents are also, again, repeated here. These documents have not been provided to the Respondent at this time.
First Ground for dismissing complaint
2. The complaint can and should be dismissed on the following grounds alone
(i) Firstly, the absence of the complainant at the hearing today before the DB in order to pursue his complaint;
(ii) Secondly, the complainant’s press conference (and letter dated 29.7.2009 to the DB) whereby the complainant has communicated his intention of withdrawing the complaint; and
(iii) The non-availability of the complainant here at the hearing of the complaint in order to be questioned by the Respondent. The Respondent is entitled to ask questions of his accuser. As matters stand, the Respondent is denied this right.
DB cannot be both Judge and Prosecutor
3. In further breach of the Respondent’s rights, it now appears that by the exercise of an administrative discretion by the DB in the issuance of the ‘Guidelines of the Board’ (which the DB has steadfastly refused to provide the Respondent) the DB now purports, in the absence of the complainant, to prosecute the complaint.
4. In so acting, the DB purports to act as both judge and prosecution, a role not allowed it under the Constitution of the MCA.
5. Under the Constitution of the MCA, the DB is meant to deliberate and consider all complaints which are legitimately before it in an independent, impartial and unbiased manner. How can the DB do so in this instance if it is both prosecutor and judge in the matter? The short answer is that it cannot. If the DB were to act as both judge and prosecution, it would overstep the bounds stated in the Constitution of the MCA and would act unconstitutionally, illegally and wrongly.
2nd Ground for dismissing complaint
6. The complaint is not a complaint within the meaning of the Constitution of the MCA in that it does not satisfy the provisions of the Constitution of the MCA.
6.1. The complaint has no basis since the complainant in the matter has no standing (no locus standi) to bring this complaint. The complainant is not a complainant within the meaning of Articles 59.8, 86.6 or 111.5 of the Constitution of the MCA and therefore cannot lodge this complaint against the Respondent;
6.2. The complainant, Sdr Eng Cheng Guan, is from the Simpang Renggam Division of the MCA;
6.3. The Respondent is from the Batu Pahat Division;
6.4. The complainant therefore does not have standing (or locus standi) to lodge the complaint against the Respondent;
6.5. Articles 59.8, 86.6 and 111.5 of the Constitution of the MCA are clearly not satisfied since the complainant is not from the same Division as the Respondent;
6.6. This fact was noted by the then Disciplinary Board of the MCA sitting on 18.7.2008 (of which Tan Sri Dr Sak Cheng Lum was a member);
6.7. This present DB is bound by the decision of the earlier DB on 18.7.2008. The present DB cannot review the earlier decision of the DB nor can it come to a different decision.
Decision of earlier DB on 18.7.2008 binds this DB
7. As such, by virtue of the sitting of the DB on 18.7.2008 which considered the standing (locus standi) of the complainant to lodge this complaint (and decided that there was no standing) the decision of the DB dated 18.7.2008 remains.
8. The Respondent was at all times under the impression that the complaint had been dealt with and that the complaint had been disposed of. There is no explanation whatsoever how the complaint is now being heard afresh by the DB.
3rd Ground for dismissing complaint
9. If this complaint is heard again, the Respondent would be penalized twice. When this issue was first raised, the Respondent resigned from all government and MCA posts. The Government and the MCA accepted the Respondent’s resignation and the complaint was not heard thereafter.
10. During the MCA party elections, the MCA permitted the Respondent to contest the position of Deputy President. The Respondent was successful in the elections.
11. Throughout the campaigns for the MCA party elections and during the nomination period before that, no objections whatsoever were raised by anyone to the Respondent’s candidacy. Neither did the complainant raise the issue of the existence of his complaint as a basis as to why the Respondent should not run for office in the MCA during the party elections.
12. This conduct on the part of the MCA, the DB and the complainant all leads to one irresistible conclusion: that the complaint had been dealt with and was over.
13. It is clear to all, in any event, that the General Assembly (and the members of the MCA) have vindicated the Respondent.
4th Ground for dismissing complaint
14. The Constitution of the MCA is quite clear: Article 123A requires that a written complaint must be ‘initiated and referred’ by the Presidential Council.
15. If the DB takes the position that the complaint has been adopted by the Presidential Council, the following questions arise –
(i) Pursuant to which provision of the Constitution of the MCA can the Presidential Council take over a complaint that has been made and then withdrawn; and
(ii) Article 123A of the Constitution of the MCA requires the Presidential Council to initiate and refer a complaint. Here, the Presidential Council clearly has not ‘initiated’ the complaint. The complaint was initiated by a member who had no standing (locus standi) to initiate the complaint. Further, that member has now, in writing, withdrawn his complaint.
16. The complaint fails on these grounds alone.
5th Ground for dismissing complaint
17. The complaint states as its basis the allegation of a breach of the ‘Code of Conduct for MCA Members.’
18. The Constitution of the MCA does not recognise or refer to the ‘Code of Conduct for MCA Members’ and since the disciplinary function and powers of the DB 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.
19. The complaint should be dismissed on this ground alone.
20. The reasons outlined here are all good reasons for dismissing the complaint.
Sdr Datuk Seri Dr Chua Soi Lek
4th day of August, 2009