ROS must ask for clarification on Clause 10.16 of Umno's constitution

Clause 10.16 of Umno’s constitution states: “Majlis Tertinggi berhak menangguhkan pemilihan di peringkat Majlis Tertinggi, Bahagian dan Cawangan. Penangguhan ini tidak boleh lebih daripada lapan belas (18) bulan dari tarikh pemilihan yang sepatutnya ia diadakan”.

From a reading of that clause, it would seem that a one-time postponement is permitted under the party’s constitution to postpone party elections for a maximum of 18 months from the date the elections were initially scheduled to be held.

What is silent in Clause 10.16 or anywhere in the constitution is whether a second postponement of up to 18 months is permitted under the constitution for the same initially scheduled party elections.

If that were the case, it would mean that the initially scheduled party elections is allowed, under the party’s constitution, to be postponed for up to 36 months.

Is that the correct interpretation?

The issue here is whether the “Majlis Tertinggi” is even allowed, under the party’s constitution, to postpone party elections for up to 36 months, and whether the Registrar of Societies is clear in her mind that she can entertain, let alone approve, such a request for postponement of the party elections without reading into the party’s constitution, or even running the risk of re-writing the party’s constitution in that process.

When faced with such ambiguity and uncertainty, it is only proper that when the Registrar of Societies receives a second postponement application, the Registrar should invoke her powers under Section 13A(2) of the Societies Act 1966 (Act 335).

Section 13A(2)(b) of the Societies Act 1966 states:-

“The Registrar may at any time, after giving a registered society an opportunity to make representations to him, make an order in writing requiring the society, within the time specified in the order, to amend its rules or constitution so as to remove any ambiguity or vagueness therein, or provide for greater clarity and preciseness of meaning in any provision thereof.”

If the Registrar of Societies is unsure at any point in time whether her actions may or may not extend beyond or encroach into a society’s constitution, the Registrar of Societies should not attempt to give her own interpretation of the society’s constitution but should instead ask for clarification from the society itself and make directions for amendments to the society’s constitution if necessary.

Section 13A(2)(b) of the Societies Act 1966 was clearly drafted by our legislature with the intention of giving the Registrar of Societies, when unsure, the power to ask for clarification of provisions of a society’s constitution so as to not run the risk of making a decision in relation to the society’s constitution which is lacking in jurisdiction or tainted with illegality.

Section 13A (4) of the Societies Act 1966, states: “The Registrar may, on application in writing made to him by a registered society, extend the time provided by him to the society in any order made under subsection (1) or (2) if he is satisfied the society has given good grounds in its application and it would be just and proper to grant such extension.”

Therefore, clearly before approving any application for extension of time under Section 13A (4), the Registrar of Societies should be absolutely certain that her decision is in line with a society's constitution and that she is cloaked with the proper jurisdiction.

If there is ambiguity in the provisions of the society's constitution, she should then firstly invoke her powers under Section 13A (2) and make the necessary directions and orders to provide for greater clarity and preciseness of meaning in a society's constitution, and then give the necessary approvals or rejections of applications for extension of time under Section 13A (4). - Mkini