Disciplinary Report to Presidential Council, MCA

Executive Summary Report to Presidential Council, MCA

Issue No. 1: The Complaint had already been disposed of by the Previous Board and Datuk Seri Dr Chua Soi Lek had now been re-charged and re-tried for the same complaint
1. The letter of complaint (“the Complaint”) dated 28.5.2008 lodged by Eng Cheng Guan (“the Complainant “) against Dr Chua was received by MCA HQ on 23.6.2008.
2. The Complaint was considered by the then Disciplinary Board of MCA for the period 2005-2008 (“the Previous Board”) at its meeting held on 18.7.2008 and it was resolved to refer the Complaint to the Presidential Council for further decision
3. The Complaint was not referred to the Presidential Council and it was tabled for discussion again by the Previous Board at its meeting held on 6.8.2008. At this meeting, it was resolved to postpone hearing and discussing of all new cases until after the Party election at the national level was over in October, 2008.
4. The Complaint was therefore not disposed of either by the Previous Board or the Presidential Council and it was in fact put on hold.
5. Tan Sri Sak Cheng Lum, a member of the Previous Board, gave evidence at the Inquiry on 4.8.2009 and merely stated that the Complaint was considered by the Previous Board at its meeting on 18.7.2008 and it was resolved by the Previous Board to refer the Complaint to the Presidential Council for further decision. Tan Sri Sak Cheng Lum also admitted that the Previous Board had not disposed of the Complaint.
6. At the Inquiry on 4.8.2009, lawyer for Dr Chua decided not to call Datuk Ho Lim Teck and Tan Sri Wong See Wah to give evidence.
7. On the record of the Board, it was stated in Chinese “纪委会决定暂搁此项投诉 ” (Disciplinary Board resolved to put on hold this complaint temporarily).
8. On 3.3.2009, the Presidential Council decided to refer the 40 outstanding complaints received from April, 2008 to 1.3.2009 to the Board for further investigation. Of the 40 outstanding complaints, 31 complaints do not comply with the constitutional provisions for initiating a complaint and 1 of the complaint is against the President.
9. At its meeting held on 2.6.2009, the Board resolved to investigate the Complaint. After considering the Complaint and studying the evidence, the Board at its meeting held on 29.6.2009 resolved to prepare a charge against Dr Chua and hold an inquiry into the Complaint on 4.8.2009.
10. The Charge against the Dr Chua and the Notice of the date, time and place of Inquiry was sent to Dr Chua on 30.6.2009, the Board did not inform the President before or after sending the notice.
Issue No. 2 The Complaint has been withdrawn by the Complainant and he was not present at the Inquiry to give evidence.
11. Guideline No. 15 of the Board provides that once a complaint has been lodged with the Board it cannot be withdrawn without the consent of the Board. This guideline was made to prevent members from filing and withdrawing complaints arbitrarily. If members are allowed to lodge and withdraw complaints at their ‘whims and fancy’, the whole disciplinary system will become a mockery. It will not only cause confusion and wastage of resources, it will so allow ‘money politics’ to be practised and perpetuated.
12. After receipt of the facsimile letter purporting to withdraw the Complaint on 29.7.2009, a letter was sent by the Board to the Complainant advising him on the provisions in Guideline No. 15. In the same letter, the Complainant was advised to appear at the Inquiry and make the necessary application, stating his reasons. However, the Complainant chose to be absent at the Inquiry. As no application for consent to withdraw was made or granted by the Board, the Board resolved that the Complaint remains valid.
13. It is to be noted that the legal position by the following illustration: “A after witnessing B’s commission of a serious crime, A lodged a report with the police; A subsequently agreed with B to withdraw the police report.” In law, the agreement to withdraw the police report was void against public policy and cannot be enforced by a court of law.
14. Guideline No. 16 provides: “If the complainant does not appear in person at the inquiry…if the complaint involves the Party’s reputation or image or serious misconduct of a member, the members of panel conducting the inquiry may proceed with the inquiry if there are sufficient evidence for the inquiry to be continued.” As the Complaint satisfies the requirements set out in the second limb of Guideline No. 16 and there are clearly sufficient evidence for the Inquiry to proceed, the Board resolved to proceed with the Inquiry.
Issue No. 3 The MCA Constitution does not recognize or refer to the Code of Conduct for MCA Members (“the Code of Conduct”)
15. The Code of Conduct was duly formulated and approved by the Central Committee of MCA (“the Central Committee”) at its meeting held on 20.1.2005 and amended on 23.1.2007.
16. Under Article 37.6 of the Constitution, the General Assembly of MCA (“the General Assembly”) has the powers to formulate any rules, regulations and bye-laws to regulate, direct and control the affairs and business of the Party.
17. Under Article 39 of the Constitution, the Central Committee shall be the body responsible for the affairs of the Party. The Central Committee may do all acts on behalf of the General Assembly.
18. Further, Dr Chua has been a high-ranking Party official for many years. According to the relevant minutes of the meetings of the Central Committee, he was present at both of the meetings when the Code of Conduct was approved and subsequently amended. He was a party to the formulation and making of the Code of Conduct. No objections whatsoever were raised by Dr Chua at the relevant meetings.
19. After the Code of Conduct was implemented, disciplinary actions have been taken against a number of members of MCA and a few of them lost their political career. Now, when Dr Chua is facing disciplinary proceedings himself, he is saying that the Code of Conduct was not recognized or referred to in the Constitution and therefore it is not valid and cannot be enforced.
Issue No. 4 Dr Chua was allowed to participate in the party elections held in October, 2008
20. The Complaint against Dr Chua was pending investigation and hearing when he participated in the party elections held in October, 2008. A person is presumed to be innocent until he is found guilty. As such, no action could be taken legally to disqualify Dr Chua from participating in the elections under the Constitution.
Issue No. 5 Dr Chua was duly elected as the Deputy President.
21. Participation in the party elections by a member of MCA and the disciplinary proceedings/actions by the Disciplinary Board of MCA are two distinct and separate issues.
22. As the disciplinary proceedings against Dr Chua have been postponed and became pending at the time of the holding of the election, the success of Dr Chua at the elections does not mean either expressly or impliedly that the General Assembly (and the members of MCA) have vindicated him. There are no provisions in the Constitution to suggest what Dr Chua intended it to be and all members are equal before the Party Constitution.
23. Apart from the above equality principle, Article 45.24 of the Constitution provides that the Central Committee shall have the power “to take whatever disciplinary action it deems fit against a member….Provided that if the member is a Party Official elected by the General Assembly pursuant to Article 20….the Central Committee may not suspend or expel him from the Party unless with the support of two-thirds of the Central Committee present at the meeting….”. In other words, the Constitution envisages and provides for disciplinary action to be taken even against the Party’s President or Deputy President in suitable cases only on one condition, i.e., two-thirds of the Central Committee members present at the meeting and support the motion. An elected party official can only be judged by his peers, who are mostly elected by the same general assembly.
Issue No. 6 Dr Chua would be punished twice
24. As the Complaint has not been disposed of either by the Previous Disciplinary Board or the Presidential Council, no decision has yet been taken or made against Dr Chua when the Board took over. As Dr Chua had not been punished before, there is no question of him being punished twice.
The facts
25. Dr Chua did not deny as a fact that the Sex Video did exist and the woman in the Sex Video is not his legal wife
26. Dr Chua did not deny as a fact that the Sex Video was circulated in Malaysia at the relevant times and are still accessible on the internet.
27. Dr Chua did not offer to resign from the party and government post at the first press conference held on 1.1.2008, because he had obtained the understandings from his family, wife and children.
28. He said the only mistake he admitted to have committed was that “he stayed in the same room and in the same hotel”. Ironically, this is an admission that his extra-marital affairs had been going on for quite some time before he was caught in the disc.
29. He pushed all the blames to the person or persons who had recorded his conduct without his knowledge.
30. The fact is what the men behind the camera can do if Dr Chua behaved like a public figure is expected to behave. If Dr Chua did not have sexual affairs with his girlfriend “in the same room and in the same hotel”, there is nothing the men behind the camera can do to him.
31. It is noted that at the second press conference held on 2.1.2008 at Putrajaya, he changed his mind totally. He announced that he resigned from all the positions he then held in the party, the government and as a Member of Parliament with immediate effect. He stated that he decided to resign from all posts because of moral problems and he did not want to burden the Party. He also said that he resigned because people did not want him anymore.
32. However, in spite of his above announcement, he only resigned from all his Party and Government posts. He did not submit his letter of resignation to the Speaker of Parliament as required by Article 51 of the Federal Constitution. He remained a Member of Parliament until Parliament was dissolved in February, 2008 for the last General Election to be held on 8.3.2008. And he received and kept the allowances for Member of Parliament until Parliament was dissolved.
33. In 1998, disciplinary actions were taken against Tan Yoke Chung, the former Chairman of MCA Kapar 4th Mile Branch, and 7 others, for “illegal gambling” at the Party Branch premises during festive season of Chinese New Year, the former Chairman and Vice-Chairman of the Branch were expelled from the Party.
34. One of the aims and objects of the Party is “to foster, safeguard, advance and secure the political, social, educational, cultural, economic and other interests of Malaysian of Chinese descent” (Article 6.7 of the Party Constitution). In the mind of the Malaysians of Chinese descent, who are renounced to have been influenced by the traditional Confucian teachings, how would they compare “illegal gambling” with “adultery”. Both types of conduct are of course “bad”. But, in terms of the degree of “badness”, which type of conduct is worse than the other. However, “adultery” has never enjoyed such a “status” in the Malaysian Chinese community, which MCA represents.
35. In short, it is safe to conclude that, for the general Malaysian public, a public figure in Malaysia is expected to behave like a public figure. The public figure has a choice; if he wants to remain as a public figure, he has to give up the luxuries (including having extra marital affairs) of a private person. He cannot be a public figure and enjoys the luxuries of a private person at the same time and, when he is caught, he will not be allowed to defend and excuse himself by saying that it is my private life. To the Malaysians, a public figure represents his family, organization or party, community and the nation.
36. The Board has no difficulties in arriving at the conclusion that the Respondent can no longer be said to be an “asset” of the Party. What the Respondent had done in failing to uphold the image and reputation of the Party have not only “haunted” and hurt the Party and the Government, but is going to continue to “haunt” and hurt the Party and the Government in the future, especially in every forthcoming by-election and general election unless some drastic actions are taken by the Party.
Advice
37. The Board unanimously advised the Presidential Council as follows:- “that Datuk Seri Dr. Chua Soi Lek, the Respondent, be expelled from the Malaysian Chinese Association with immediate effect.”