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Apex court wants parties to make submissions on whether Societies Act section applies to challenge by 16 Umno members

PUTRAJAYA (Jan 25): A five-member Federal Court bench today directed parties involved in a dispute over the delay in Umno election in 2018 to make further submissions on whether a section of the Societies Act was rightly applied by the High Court and the Court of Appeal to halt a challenge by 16 former Umno members.

This comes after the apex court bench, led by Chief Judge of Malaya Tan Sri Azahar Mohamed, questioned if the lower courts' decision in applying Section 18C to oust the challenge was correct or not.

The lawyer for the 16 former Umno members, Mohd Haniff Khatri Abdulla, had pointed out that his clients led by Salihudin Ahmad Khalid were not questioning the party's decision but the decision by the Registrar of Societies (RoS) in granting an extension.

He said Umno should have held its party election by Aug 31, 2016 or be given an 18-month extension as stipulated by the party's constitution.

However, as the 18-month extension elapsed by February or March in 2018, it was the RoS that came to Umno's rescue on March 5, 2018 by issuing a press statement stating it granted Umno a further extension, said Haniff.

The party only held its election on April 19, 2019, which was far beyond the three years and additional 18 months allowed, he added.

"My clients who are branch members had written in to ask the RoS in April 2018, to inquire whether this could be done, but did not receive any reply from it. As a result of there being no reply, they filed the judicial review application to quiz the RoS,: the lawyer said.

However, before leave was granted by the High Court, the challenge was dismissed based on Section 18C of the Societies Act.

That section stipulates "the decision of a political party or any person authorised by it or by its constitution or rules or regulations made there under on the interpretation of its constitution, rules or regulations or on any matter relating to the affairs of the party shall be final and conclusive and such decision shall not be challenged, appealed against, reviewed, quashed or called in question in any court on any ground, and no court shall have jurisdiction to entertain or determine any suit, application, question or proceeding on any ground regarding the validity of such decision".

Haniff told the apex court bench that Section 18C should not be applicable as his clients were not challenging Umno's decision but merely that of the RoS in its move to grant an extension to Umno whether it was right or lawful or otherwise.

"We are saying that the RoS' move in granting the extension is an illegality or an irrationality part by it. My clients are not questioning Umno's party decision and hence Section 18C is not applicable," the lawyer said.

Objection against Umno being part of proceedings dismissed

The lawyer's argument was questioned by Justice Azahar and Federal Court judge Datuk Mary Lim Thiam Suam, resulting in the panel having to take a short recess three times to discuss and deliberate on the matter, including Haniff's earlier objection that Umno, represented by counsel Datuk Mohd Hafarizam Harun, should not be part of today's proceedings.

Haniff had said that as this was an appeal for leave to hear the full merits that was not granted by the High Court and the Court of Appeal, this matter should be between his clients and the RoS, and not Umno at the moment, as the party was never part of the proceedings at the courts below.

Despite this objection, Justice Azahar allowed Umno to be part of today's proceedings as Hafarizam told the court that Haniff was willing to give the papers regarding the case during case management at the Federal Court, and there was no objection then.

Senior federal counsel Shamsul Bolhassan for the RoS told the court the judicial review application by Haniff's clients appeared as a disguise to bypass Section 18C and the decision by the High Court and the Court of Appeal was right in dismissing their application for leave.

He also told the bench that the challenge by the 16 should not, however, be considered academic in light of the recent decision in the Maria Chin Abdullah's case over her travel ban.

Hafarizam, however, said the matter is academic as the party had already held its party election and he further questioned the 16 former members' locus standi (legal standing) to initiate the matter.

Haniff replied his clients should be considered members at the time of the filing of the judicial review they were members and that they were removed from the party a day later.

"The court should take into consideration that they were party members at the time of the filing of the application," he said.

The questions of law posed before the court to answer were whether Section 18C of the Societies Act 1966, which ousts any court's jurisdiction to entertain any suit, application, question or proceeding on any matter relating to the affairs of the party, is ultra vires Article 121 of the Federal Constitution, and whether the Federal Court's decision in the case of Pendaftar Pertubuhan vs Datuk Justine Jinggut is still a good law, in light of the recent decisions of the Federal Court in cases such as Semenyih Jaya Sdn Bhd vs Pentadbir Tanah Daerah Hulu Langat and another, and M Indira Gandhi vs Pengarah Jabatan Agama Islam Perak and others.

Justice Azahar asked parties to continue submissions at another date. Besides Justice Azahar and Lim, the other Federal Court judges on the bench were Justice Datuk Abdul Rahman Sebli, Justice Datuk Seri Hasnah Mohamed Hashim and Justice Rhodzhariah Bujang.

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