COMMENT | Last night, on my way out of Lahore, Pakistan, using my mobile phone I read the fascinating article by Sabah MCA Wanita chief Dr Pamela Yong, titled "Contractual Obligation of Federal Government to TAR UC remains unfulfilled."

Before I proceed any further, I must disclose that I am an interested party on this current Tunku Abdul Rahman University College (TAR UC) issue as an alumnus of TAR UC, an independent member of the Audit Committee of TAR UC Education Foundation Bhd ("Tarucef"), the legal adviser to the TARcian Alumni Association (TAA), and also as an appointed independent trustee of the newly-formed TAA Education Trust Fund.

Having read Yong’s article, it prompted my immediate response using the same mobile phone to raise with her three pertinent points, which I believe Yong inadvertently may have overlooked in her research on this issue.

Over the past 50 years of its existence, the TAR UC Board of Governors ("BOG") and its Board of Trustees ("BOT") have raised funds from the Chinese community, with cash in hand of almost RM700 million and other assets worth a few billion ringgit.

However, I must hasten to add that in any event, this is the fiduciary responsibility and legal duty of all concerned in the administration and management of TAR UC as the custodians and public trustees under both the common law and various other statutes too, which they rightly owed to the authorities and the public as well.

Hence, Yong (above) rightly pointed out that Tarucef is rigidly and strictly structured and governed by various laws, and under three different ministries to ensure there is transparency, accountability and proper corporate governance all round as imposed in their licensing requirements to TAR UC.

It also explains in the article why the management of TAR UC is professionally managed, without party political interference in its day-to-day operation and the BOG has independent members as stakeholders from the government, representatives from its two alumni bodies, etc.

However, I am a little puzzled that the Sabah Wanita MCA chief may have overlooked three basic pertinent points in this public debate thus far. Firstly, it has to be placed on record that the BOT, not BOG, is the highest and ultimate decision making body in the corporate structure of Tarucef. BOG is merely involved in administration because the owner and ultimate decision-maker lies with the BOT. The BOT can override the TAR UC management and the BOG.

But strangely, nothing is mentioned by Yong that from day one in 2013, when TAR UC was privatised, it failed to comply with the requirements that at least 50 percent of the membership of the BOT must not be connected to its founders (meaning the two former presidents of MCA, or MCA itself), or Tarucef itself (meaning the membership of Tarucef, whose membership incidentally consists of all MCA leaders).

These are the fundamental conditions imposed on TAR UC's incorporation by the Companies Commission of Malaysia or SSM under the Ministry of Domestic Trade and Consumer Affairs, the tax exempt status granted to Tarucef by the Ministry of Finance, and the licensing as a private university college issued by the Ministry of Higher Education.

A fundamental condition imposed in 2013

For the record, since day one the membership of the BOT is a subset of the entire membership list of Tarucef. Needless to say I need not have to remind Yong that in 2013, the fundamental condition of not being tied or connected to any political party was a basic requirement imposed by none other than the BN government itself. Sadly, Tarucef and BOT stand out for its breach, instead of complying with this fundamental condition.

Such a fundamental condition imposed by the government and the law is the norm for any foundation meant for a public purpose, like Tarucef, on the grounds of public policy considerations. Otherwise, a foundation with a tax-exempt status can be easily abused as a vehicle for tax evasion, money laundering activities and even criminal breach of trust or CBT. Suffice to add that, currently, someone powerful is charged in court, accused of abusing his foundation for some of these crimes.

Secondly, like any public institutions of higher education, public funding was rightly given by the government of Malaysia from 1969 until 2013 as it was a public institution during that period. But TAR UC was privatised in 2013 and handed over to Tarucef, controlled totally by MCA, without the payment of even a single sen when it was upgraded to become a private university college - which Yong has overlooked.

Hence the need for at least the aforesaid 50 percent independent representation in its BOT, for public policy consideration of transparency, check and balance, accountability and good corporate governance, since Tarucef is the trustee and custodian of public money and assets by the billions in ringgit terms. Since 2013, TAR UC has been a private institution of higher learning. And, like any of its private counterparts, it is technically not entitled to any public funding.

Lastly, notwithstanding TAR UC is now a privatised entity since 2013, the government in 2013 still promised a matching grant of up to RM60 million per annum, but strictly only on a best endeavour basis depending on its financial condition, and also subject always to the compliance of the fundamental conditions imposed right from the start in 2013 that TAR US is tied to or connected with any political party.

This RM60 million pledge was reduced to RM30 million by the BN government under the federal budgets for 2017 and 2018, without any protest from MCA. Unfortunately, to date Tarucef, i.e. effectively MCA, has failed to comply with the aforesaid minimum 50 percent independent representation in its BOT and not being tied or connected to any political party, as required for its approval as a private institution of higher education by the Ministry of Higher Education.

In conclusion, my simple solution to MCA Wanita leader Yong is simple: comply with the basic legal requirements of the Tarucef Charter itself and its licensing requirements of not being tied to or connected with any political party.

With this compliance, I earnestly hope that all unnecessary political drama arising out of this TAR UC funding issue can finally put to rest.

So, too, the poor hawkers who are legitimately and honestly trying to raise funds for TAR UC can also be spared from these unnecessary theatrics by some politicians trying to cover up their errors.

KENNY NG BEE KEN is an advocate and solicitor. He is also an appointed independent trustee of the newly-formed TAA Education Trust Fund.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.