©The
Sun (Used by permission)
Comment by R. Nadeswaran
If in March 2007 I had "temporarily transferred" the LawCare Fund out, to ensure that the money would be spent for the welfare purposes intended, and because I was unsure whether (Datuk) Ambiga (Sreenivasan) might remove some of the names from the list of recipients, I would be (and should be) struck off by now. My face will also not suffer from dry skin, because people will spit at me wherever I go. Carry on insulting the intelligence of the people, if you must.
– Yeo Yang Poh (former President of the Bar Council)
THE above response to theSun’s front page report on the transfer of funds from Balkis to Bakti appeared in the Bar Council’s website last week. It puts the whole issue into context. In a nutshell, the movement of money from one account to another is illegal and the council has been quoted in The Star as saying that this could tantamount to criminal breach of trust.
But the spin doctors and certain sections of the media who are beholden to individuals and not the truth have joined the bandwagon in an attempt to exonerate Datin Seri Zaharah Kechik, the beleaguered wife of former Mentri Besar, Datuk Seri Dr Mohamad Khir Toyo from any wrongdoing.
However one looks at it, the whole exercise appears to have been carried out hastily without cognisance of law and procedure; ethics and morals and above all, common sense.
Donations to Balkis are exempt from tax, a privilege that is enjoyed by a select few and the all–important criteria is: the exemption is given ONLY for non–political bodies. Therefore, Balkis, in the eyes of the law, is apolitical although its membership is made of elected women wakil rakyat and in the case of men, their wives. There is a category for associate members, restricted to women who had been politicians or whose husbands had been elected wakil rakyat. They have no voting rights. Therefore, the issue of it being an exclusive "Barisan Nasional" club does not arise and ad–hoc decisions cannot be made by Zaharah, whose position as president is by virtue of being the Mentri Besar’s wife.
The issue that comes into question is the dissolution of Balkis. Zaharah, in her capacity as the former president (emphasis is the writer’s), has no power of dissolution. According the Balkis’ constitution, it can only be dissolved by two–thirds of the members at a special meeting convened at the request of at least one–fifth of "ordinary members".
The constitution is clear on such special meetings and it states it must be held within 30 days of receiving notice of such a requisition. It goes on to say that the notice and agenda of the meeting must be sent out by the secretary to members giving them 14 days’ notice.
Let’s work backwards. If the meeting was held on March 11, the notice must have been given on Feb 25 – at the latest. But her husband, then the Mentri Besar, was going around campaigning on the lines of "Zero Opposition in Selangor"! Did Zaharah get a written requisition from one–fifth of the members on Feb 11 – when Parliament was not even dissolved? Unless of course, some wives knew that their husbands won’t be occupying the seats of power!
Therefore, in short, this whole exercise of dissolution is void because procedures were not followed. This has been confirmed by the Registrar of Societies, who in his letter dated April 14 to the (new) Selangor Mentri Besar, says: "After going through the application to dissolve Balkis, we discovered that the information provided is incomplete. I have sent a letter asking Balkis to provide additional information within 30 days."
So, legally, Balkis is not dissolved. Therefore, no individual or factions can take it upon herself or themselves to transfer any monies to any other person or organisation.
Even if they had the power, they have defied their own constitution which states that upon dissolution, all monies should be donated to the government or a similar fund approved by the Inland Revenue Board (IRB). So, the inevitable question is: When was an application made to the IRB and if given the go ahead, when did it come?
Again, on March 11, Zaharah was no longer the president. There’s no such thing as "caretaker president" in its constitution. The only consolation she can take is that she can apply for associate member which does not come with voting rights, which she has not done to date.
But Bakti, the national body, cannot be absolved of blame for this shameful episode. How could it have accepted the money and held it in a separate account without checking if Balkis’s dissolution had been carried out in accordance with the law?
According to documents sighted by theSun, a sitting judge credited as "Bakti’s legal advisor" opined that it is all right. But Datuk Param Cumaraswamy, the former United Nations Special Rapporteur on the Independence of Judges and Lawyer said that the judge’s conduct was "likely to cause a reasonable suspicion that the judge allowed his private interests to come into conflict with his judicial duties, which could amount to a breach of the Judge’s Code of Ethics 1994".
Do remember, two wrongs don’t make a right.
And by the way, Mr Yeo, a lot of people are not yet walking around with wet skin!