1. ) Janet Jasbeer Kaur Pillai v 1. ) Menteri Dalam Negeri (BA-25-41-06/2021)

JANET JASBEER KAUR PILLAI (No. K/P: 600404-08-5370)

CHRISTINA QARA PILLAI (No. K/P: 850718-14-6094) …PEMOHON-PEMOHON 02/03/2023 17:12:16 Kand. 61

1.

LIM FONG CHUEN (No. K/P: 441016-10-5151) (dalam kapasitinya sebagai Setiausaha Gereja Perhimpunan Grace Sungai Way/Subang Selangor) …RESPONDEN-RESPONDEN JUDGEMENT Introduction [1] This is an application for judicial review pursuant to Order 53 of the Rules of Court 2012 by the applicants, Janet Jasbeer Kaur Pillai and Christina Qara Pillai for the following reliefs: “(a) An order of certiorari to quash the decision by the first respondent in allowing the Church’s appeal for re-registration vide Notification of the Appeal Decision dated 01.04.2021 (“the Impugned Decision”);

A declaration the first respondent acted ultra vires of the Societies Act 1966 in his Impugned Decision; and

In the alternative, an order of Mandamus that the first respondent imposed a condition that the Church’s appeal for re-registration would only be allowed:-

When an independent committee comprising three members to be mutually agreed to by the office bearers of the Church (“the Board”) and the applicants (failing which by the court) has completed its investigations on the memberships and financial issues affecting the Church and submitted the report to the satisfaction of the Registrar of Societies (“ROS”) and upon complying with any the ROS; and

(ii) In addition, the Board takes cognisance of and give effect to the ROS’ decision that Jeremy Ting Keng Fui (“Jeremy Ting”) and Thong Mei Chin were not validly appointed under Clause 7(2)(c)(iii) of the Church’s constitution.” Parties [2] The parties in these proceedings are as follows: “(i) The first applicant is the wife of Reverend Dr. Henry Krishnan Pillai (“Pastor Henry”), the founder of Grace Assembly Church Sungai Way/Subang (“the Church”).

(ii) The second applicant is the daughter of the first applicant and Pastor Henry and also a member of the Church.

(iii) The first respondent is the Minister of Home Affairs of Malaysia.

(iv) The second respondent is the secretary of the Church and one of the office bearers of the Church.” The Salient Facts [3] There was a fall-out between the Pastor Henry and his Deputy Priest, one Rev. Stancil Roberts resulting in a power struggle between the two of the them and their followers. This resulted in a show cause under section 13(2) of the Societies Act 1966. The Church’s registration was cancelled by the Registrar of Societies under section 13(1)(c)(iv) of the Societies Act 1966 on the ground of various breaches set out in the Show Cause Notice. [4] The breaches for which an order to show cause was issued against the Church are essentially in relation to:

the conduct of an AGM (the membership, the eligibity of voting members, the presence of members from other assemblies);

(ii) eligibility of an Elder’s appointment (as a result of the AGM);

(iii) regularity of an EGM, the eligibility of appointees and legality of appointments made therein; and

(iv) financial management of the Church. [5] The Registrar of Societies, having considered the explanations afforded by the executive committee of the Church represented by the second respondent, and from Pastor Henry, found the explanations wanting and proceeded to cancel the Church’s registration. [6] Dissatisfied with the decision of the Registrar of Societies to cancel the Church’s registration, both parties appealed against the cancellation to the Minister of Home Affairs. [7] The Minister of Home Affairs having considered explanations given by the both parties, allowed the appeal without any additional conditions and reinstated the registration of the Church. [8] Dissatisfied with the Church’s reinstatement, the applicants filed an application for judicial review seeking the reliefs mentioned in paragraph [1] above. [9] It was argued by the applicants in the alternative that the Minister in reinstating the Church’s registration had failed to impose the following additional conditions for which they now seek by way of mandamus to compel the Minister to do so. Grounds for Judicial Review Application [10] For this application for judicial review, the applicants put forth numerous grounds before this court. This court has reduced these grounds as follows:

that the first respondent had failed to take into account the relevant considerations and took into account the irrelevant considerations when arriving to the impugned decision;

(ii) the first respondent entirely disregarded the investigation findings and decisions of the Registrar of Societies without sufficient or good reason;

(iii) the first respondent failed to give reason for allowing the appeal;

(iv) the impugned decision is unreasonable, perverse and irrational in the circumstances of the case. Law Relating to Judicial Review [11] Order 53 of the Rules of Court 2012 provides for the procedures for an application for judicial review [12] The grounds for an application for judicial review are illegality, irrationality, procedural impropriety and proportionality. These grounds were laid down by Lord Diplock in the case of Council of Civil Service Unions & Ors v Minister of Civil Service [1985] AC 374 which was adopted by the Federal Court in the case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 as follows: “In this context, it is useful to note how Lord Diplock (at pp 410– 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By 'illegality' as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned 'proportionality' as a possible fourth ground of review which called for development.” [Emphasis added] [13] The Federal Court’s decision in R Rama Chandran v The Industrial Court of Malaysia & Anor (supra) suggests that the courts are permitted to scrutinize the challenged decision not only for process but also for substance. In other words, the Courts are allowed to go into the merit of the matter. Nonetheless, the Federal Court in subsequent decisions held that not every case is amenable to such approach and merits can only be scrutinized in the most appropriate of cases [14] In the Federal Court case of Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1 the court stated the following: “[16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts’ liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Perangsang Selangor Bhd v Zaid Noh [1997] 1 MLJ 789; [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate. [17] The Federal Court, in Petroliam National Bhd v Nik Ramli Nik Hassan [2004] 2 MLJ 288; [2003] 4 CLJ 625, again held that the reviewing court may scrutinise a decision on its merits but only in the most appropriate of cases and not every case is amenable to the Rama Chandran approach. Further, it was held that a reviewing judge ought not to disturb findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion.” Examination and Findings [15] This court will now proceed to consider this application. The first and second grounds will be considered together.

the first respondent had failed to take into account the relevant considerations and took into account the irrelevant considerations when arriving to the impugned decision

(ii) the first respondent entirely disregarded the investigation findings and decisions of the Registrar of Societies without sufficient or good reason [16] The Registrar of Societies issued the Show Cause Notice dated 2.6.2020 to the second respondent pertaining to the same allegations and complaints. The Registrar of Societies then went on to issue the Notice of De-registration dated 19.8.2020 and in accordance to the provisions of the Societies Act 1966. Pastor Henry as well as the second respondent had submitted their respective appeals in writing within the thirty (30) days' time frame as required by the Societies Act 1966. [17] After considering both the appeals by Pastor Henry as well as the second respondent, the Minister of Home Affairs re-registered the Church. [18] It is this decision of the Minister of Home Affairs to re-register the Church which is being challenged before this court. The applicants are of the view the impugned decision did not take into account the relevant considerations and took into account the irrelevant considerations when arriving to the impugned decision. They further argue that the first respondent disregarded the investigation, findings and decisions of the Registrar & Societies. [19] This court observes that most of the Church's Board decision were within the knowledge of Pastor Henry, general meetings were attended to and approved by Pastor Henry, letter of appeal were drafted and signed by Pastor Henry himself to the first respondent and Registrar of Societies. The applicants who are the wife and daughter of Pastor Henry were not involved in these actions. [20] The Minister of Home Affairs re-registered the Church on 1.4.2021. According to the affidavit of the Minister of Home Affairs, he had considered the appeal letter from Pastor Henry dated 30.9.2020. The Minister of Home Affairs also considered the letter of appeal dated 31.8.2020 from the second respondent. Having considered both the appeals by Pastor Henry as well as the second respondent, the Minister of Home Affairs re-registered the Church pursuant to section 18 of the Societies Act 1966. [21] It appears to this court that the Home Minister had given parties an opportunity to be heard vide their appeals. Reference is made to the case of Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi Perumal [2001] 2 MLJ 417 where the Federal Court followed the decision of Najar Singh v Government of Malaysia [1976]1 MLJ 203 where the Federal Court held the right to be heard under Article 135 (2) of the Federal Constitution does not require the individual facing the charge to be given an oral hearing. [22] In this case, the Minister of Home Affairs had considered the representation made by the second respondent and Pastor Henry prior to coming to a decision to re-register the Church. Founded on this, this court is therefore satisfied that the second respondent and Pastor Henry was given the opportunity to have the right to be heard. Hence, the rule in audi alteram partem was not denied to either party. [23] Following the re-registration of the Church, Pastor Henry has now chosen to go into retirement. Whatever the issues were between the parties prior to the de-registration of the Church, it has now been resolved as the Church has been re-registered and Pastor Henry has now chosen to go into retirement. In the view of this court, the issues raised by the applicants, have been resolved. [24] It is also important to note that while Pastor Henry appealed to the Minister of Home Affairs, he is not an applicant in these proceedings before this court. Pastor Henry has gone into retirement. Instead, it is his wife and daughter’ the first applicant and second applicant who have chosen to bring this application for judicial review. [25] The raises the issue of whether the applicants are adversely affected persons. In this case, each and every allegation were authorized, drafted, raised and levelled by Pastor Henry, not the applicants herein. The applicants are the wife and daughter of Pastor Henry who are part of the congregation of the Church. [26] The applicants' Affidavit in Support was filed to demonstrate to this court that the applicants were or are the aggrieved parties or adversely affected by the decision of the first respondent dated 01.04.2021. [27] Order 53 Rule 2(4) of the Rules of Court 2012 provides that any person who is adversely affected by the decision of any public authority shall be entitled to make the application for judicial review. In this regard, this court alluded to the case of Kerajaan Negeri Selangor & ORs v Pendaftar Pertubuhan Malaysia [2012] 3 MLJ 795 where the court stated: “Even so the applicants will have to show how this decision has affected their legal rights to bring them within the ambit of a person adversely affected by this decision under O 53 r 2(4) of the RHC. In absence of such evidence I do not agree that they have the required locus to be given the remedies sought in the application.” [28] Reference is also made to the case of The Guat Hong v. Perbadanan Tabung Pendidikan Tinggi Nasional [2018] 2 CLJ 762; [2015 MLJU 2268 CA: “An aggrieved person in such circumstances has a right to seek the court’s supervisory powers over decision-makers and ought not to be shut out summarily.” [29] Before this court, it is not Pastor Henry who has filed this application for judicial review. The applicants are Pastor Henry’s wife and daughter. In order for the applicants to succeed in this application for judicial review, it is necessary for the applicants to demonstrate to this court that the applicants are indeed adversely affected. [30] Having considered the facts before this court, there is naught before this court to demonstrate that the applicants are adversely affected persons. The applicants are two members of the Church which has more than 1000 members. The applicants have failed to show they have acted in any manner beneficial to the Church and its members. The applicants have also failed to show that they had acted for the larger interest of the Church as a whole. [31] Therefore, for these reasons this court is of the considered view the applicants are not adversely affected persons which would enable the applicants to succeed at judicial review.

(iii) the first respondent failed to give reason for allowing the appeal [32] The applicants raised the ground that the first respondent had failed to give reason for allowing the appeal. [33] In relation to the duty of the Home Minister to give reasons for his decision, this court alluded to the Court of Appeal case of The State Minerals Management Authority, Sarawak & Ors v Gegah Optima Resources Sdn Bhd [2021] 1 MLJ 268 (‘Gegah Optima’). In Gegah Optima, the Court of Appeal stated that there is no universal common law duty to give reasons. Moreover, the Minister of Home Affairs in his affidavit had explained the manner in which he had arrived at his decision. The Minister of Home Affairs further gave his reason for the re-registration of the Church at paragraph 20 of Enclosure 33.

(iv) the impugned decision is unreasonable, perverse and irrational in the circumstances of the case [34] The next ground before this court is whether the decision made by the Minister of Home Affairs was unreasonable, perverse and irrational in the circumstances of the case. To consider this ground, this court examined the affidavit averred by the Minister of Home Affairs in Enclosure 33. [35] The Minister of Home Affairs, in his affidavit averred that in coming to his decision, he had considered the appeal letter dated 31.8.2020 from the second respondent’s solicitors and the appeal letter dated 30.9.2020 from Pastor Henry. The Minister of Home Affairs had taken into account the provisions of the Church’s Constitution. The Minister of Home Affairs came to a conclusion that the purported breach was technical and unintentional. [36] In coming to his decision, the Minister of Home Affairs had considered the fact that the Church had many members and workers who conduct charitable work and that the Church is a place of prayer and worship. The deregistration of the Church, in the view of the Minister of Home Affairs, would have an impact on the Church and its members. [37] Moreover, there was also an appeal letter dated 22.6.2020 from Pastor Henry. This letter was taken into consideration by the Minister Home Affairs in arriving at his decision. [38] In the Federal Court case of Darma Suria Saleh v Menteri Dalam Negeri Malaysia & ORs [2010] 1 CLJ 300, the court stated as follows: “…The question that a court must ask itself is whether a reasonable Minister apprised of the material set out in the statement of facts would objectively be satisfied that the actions of the appellants were prejudicial to public order.” [39] Having considered the affidavit filed by the Home Minister and the considerations the Minister of Home Affairs took in coming to his decision, this court is satisfied that the decision of Home Minister is not illegal, not irrational and there is no procedural impropriety. Conclusion [40] For the abovementioned reasons, this court is satisfied this application for judicial review is without merit. Consequentially, this application for judicial review is hereby dismissed with no order as to costs. Date: 02 March 2022 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya Shah Alam Counsels: - For the Applicant Tang Kah Weng TETUAN BENJAMIN DAWSON Advocates & Solicitors C-11-5, Blok C, Level 11, Megan Avenue 2, 12, Jalan Yap Kwan Seng, 50450 Kuala Lumpur. +6 03 2710 1822 ben.dawson@benjamindawson.com For the First Respondent Liew Horng Bin JABATAN PEGUAM NEGARA MALAYSIA Bahagian Guaman, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya. +6 03 8872 2000 liewhorngbin@agc.gov.my For the Second Respondent Yong Jia Wei TETUAN AZRI, LEE SWEE SENG & CO Advocates & Solicitors No. 210, Tingkat 2, Blok A, Pusat Dagangan Phileo Damansara 2, Jalan 16/11 Off Jalan Damansara, 46350 Petaling Jaya, Selangor. +6 03 7932 3663 jiawei@alss.co