1. ) Kesatuan Kebangsaan Pekerja -Pekerja Bank (Nube) v 1. ) Mohd Effendy Abdul Ghani (Upcw) (BA-24NCvC-1263-08/2022)

KESATUAN BANK

KESATUAN PEKERJA-PEKERJA KELAB SEMENANJUNG

KESATUAN PEKERJA-PEKERJA PAKAIAN SERAGAM POS (M) BHD (UPUS) 13/09/2023 14:54:09

4.

KESATUAN PROJEK LEBUHRAYA

KESATUAN SEKERJA INDUSTRI ELEKTRONIK WILAYAH

KESATUAN PEKERJA-PEKERJA PERUSAHAAN MEMBUAT

KESATUAN PEKERJA-PEKERJA DALAM PERKHIDMATAN

9.

NATIONAL UNION OF DRINK INDUSTRY WORKERS

NATIONAL UNION OF TRANSPORT EQUIPMENT & ALLIED

KESATUAN

KESATUAN KAKITANGAN AM KOLEJ UNIVERSITI TUNKU

KESATUAN PEKERJA-PEKERJA SABAH PORTS SDN. BHD.

KESATUAN PERUSAHAAN PETROLEUM DAN KIMIA SEMENANJUNG MALAYSIA (NUPCIW) … PLAINTIF-PLAINTIF

MOHD EFFENDY ABDUL GHANI (UPCW) (dalam kapasitinya sebagai Presiden Kongres Kesatuan Sekerja

MATKAR BIN SIWANG (FIEU) (dalam kapasitinya sebagai Timbalan Presiden Kongres Kesatuan

KAMARUL BAHARIN BIN MANSOR (NUMW) (dalam kapasitinya sebagai Setiausaha Agung Kongres Kesatuan

MOHD KHAIRI BIN MAN (EIWU) (dalam kapasitinya sebagai Timbalan Setiausaha Agung Kongres

WANG HENG SUANG (NUTP) (dalam kapasitinya sebagai Setiausaha Kewangan Kongres

NG CHOO SEONG (ABOM) (dalam kapasitinya sebagai Timbalan Setiausaha Kewangan

MOHAMAD DAUZKAPLY NOR BIN GHAZALI (KEPAIM) (dalam kapasitinya sebagai Naib Presiden (Sektor Swasta) Kongres

SHATIRI BIN MANSOR (CANON OPTO) (dalam kapasitinya sebagai Naib Presiden (Sektor Swasta) Kongres

DZULKERNAIN BIN HASSAN (TNBEU) (dalam kapasitinya sebagai Naib Presiden (Sektor Swasta) Kongres

A. BALASUBRAMANIAM (UNEPASS) (dalam kapasitinya sebagai Naib Presiden (Sektor Swasta) Kongres

MOHD RAIS HAFIZUDDIN BIN ADNAN (PERODUA) (dalam kapasitinya sebagai Naib Presiden (Sektor Swasta) Kongres

MOHD KHAIRUL BIN BUYANG @ BUANG (KPPINFINEON TECH) (dalam kapasitinya sebagai Naib Presiden (Sektor Swasta) Kongres

MICHELLE CHEOW YEE PIN (INSURANCE) (dalam kapasitinya sebagai Naib Presiden (Sektor Swasta) Kongres

NOR HAYATI BTE ABDUL RASHID (MNU) (dalam kapasitinya sebagai Naib Presiden (Sektor Awam) Kongres

ASMAN BIN MOHD NAWAWI (AUEGCAS) (dalam kapasitinya sebagai Naib Presiden (Sektor Awam) Kongres

AMINUDDIN BIN AWANG (NUTP) (dalam kapasitinya sebagai Naib Presiden (Sektor Awam) Kongres

ALWI SHAKIR BIN ABDULLAH (TOURISM) (dalam kapasitinya sebagai Naib Presiden (Sektor Majlis Tempatan & Badan-Badan Berkanun) Kongres Kesatuan Sekerja Malaysia ("MTUC"))

BASHARUDDIN BIN HARUN (KKAPPUM) (dalam kapasitinya sebagai Naib Presiden (Sektor Majlis Tempatan & Badan-Badan Berkanun) Kongres Kesatuan Sekerja Malaysia ("MTUC"))

MAZMIR BIN MOHD AMIN (UMGSU) (dalam kapasitinya sebagai Naib Presiden (Sektor Majlis Tempatan &Badan-Badan Berkanun) Kongres Kesatuan Sekerja Malaysia ("MTUC”)) … DEFENDAN-DEFENDAN DIDENGAR BERSAMA DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN PEMULA NO.: BA-24NCvC-1423-08/2022 Dalam perkara mengenai Memorandum Persidangan Pewakilan MTUC 2022 bertarikh 6.4.2002 Dalam perkara mengenai Klausa 6(7), Klausa 6(8), Klausan 6(2), Klausa 7(2), Klausa 7(130 dan Klausa 10(1) Perlembagaan Kongres Kesatuan Sekerja Malaysia Dalam perkara mengenai Saman Pemula di Mahkamah Sesyen Shah Alam No. BA-454-25-04/2022 Dalam perkara mengenai Seksyen 9(c) Akta Pertubuhan 1966 Dalam Perkara mengenai Seksyen 41, Seksyen 42, Akta Relif Spesifik 1950 Dan Dalam perkara mengenai Aturan 5 Kaedah 4, Aturan 7, Aturan 28, Aturan 32 Kaedah 1 dan Aturan 92 Kaedah 4, Kaedah-Kaedah Mahkamah 2012 ANTARA ABDUL HALIM BIN MANSOR (No. K/P: 600508-71-5621) [Dalam kapasitinya sebagai Setiausaha Agung National Union of Petroleum and Chemical Industry Worker (“NUPCIW”) Menurut Seksyen 9(c) Akta Pertubuhan 1996] … PLAINTIF

MOHD EFFENDY BIN ABDUL GHANI (No. K/P: 740929-04-5173) [Dalam kapasitinya sebagai Presiden Kongres Kesatuan Sekerja Malaysia (“MTUC”) Menurut Seksyen 9(c) Akta Pertubuhan 1966]

KAMARUL BAHARIN BIN MANSOR (No. K/P: 720801-11-5007) [Dalam kapasitinya sebagai Setiausaha Agung Kongres Kesatuan Sekerja Malaysia (“MTUC”) Menurut Seksyen 9(c) Akta Pertubuhan 1966] … DEFENDAN-DEFENDAN JUDGMENT [1] To ensure that society at large in general and associations of individuals and entities in particular are able to function in an orderly and effectual manner, rules, by-laws and regulations are made to govern the affairs of these bodies of persons and entities. Needless to say, adherence to these rules, by-laws and regulations is essential. Members in a society or in an organisation are permitted to demand compliance with the rules, by-laws and regulations that govern them, lest there be chaos and disorder in the way society at large and the bodies of persons and entities function. [2] Ultimately, the Courts are the sentinels of these rules, by-laws and regulations. The Courts are expected to and indeed will see to it that rules, by-laws and regulations governing the behaviour and conduct amongst members in a society or an organisation are complied with and respected. Appropriate remedies and orders will be granted and made in the event of non-compliance(s) with these precepts. [3] In the matters before this Court, it is the responsibility of this Court to determine if indeed the clauses in the Constitution of an organisation that is registered under the Societies Act 1966 have been breached, as alleged by the parties who have commenced these proceedings. The Parties and the Nature of Applications [4] There are two related Suits that were heard together. The first is Originating Summons No BA-24NCvC-1263-08/2022 (“Suit 1263”). The second is Originating Summons No BA-24NCvC-1423-08/2022 (“Suit 1423”). The hearing of both these Originating Summonses was on 24 May, 2023. [5] The Originating Summonses in both cases relate to the same issue, that is, whether the 42nd Triennial Delegates Conference (“TDC”) of the Malaysian Trade Union Congress (“MTUC”) held on the 2nd and 3rd of July 2022 was unconstitutional and as such null and void. [6] In Suit 1263, filed on 2 August, 2022, there were originally 16 plaintiffs, namely:

Kesatuan Kebangsaan Pekerja-Pekerja Bank (NUBE) (“P1);

Kesatuan Pekerja-Pekerja Kelab Semenanjung Malaysia (CLUBEU) (“P2”);

Kesatuan Pekerja-Pekerja Pakaian Seragam Pos (M) Bhd (UPUS) (“P3”);

Beverage Industry Executive Staff Union (BIESU) (“P4”);

Kesatuan Pekerja-Pekerja Projek Lebuhraya Usahasama Bhd (KPPPLUS Bhd) (“P5”);

Kesatuan Sekerja

Kesatuan Pekerja-Pekerja Perusahaan Membuat Tekstil &

Kesatuan Pekerja-Pekerja Dalam Perkhidmatan Perubatan &

Association of Maybank Class One Officers (AMCO) (“P9”);

National Union of Drink Industry Workers Peninsular Malaysia (NUDIW) (“P10”);

Kesatuan Pekerja-Pekerja KTMB (RUM) (“P11”);

National Union of Transport Equipment & Allied Industry

Kesatuan Kebangsaan Pekerja-Pekerja Telekomunikasi

Kesatuan Kakitangan Am Kolej Universiti Tunku Abdul

Kesatuan Pekerja-Pekerja Sabah Ports Sdn Bhd (KPP Sabah Port) (“P15”); and 16. Kesatuan Kebangsaan Pekerja-Pekerja Perusahaan Petroleum dan Kimia Semenajung Malaysia (NUPCIW) (“P16”). [7] All the plaintiffs are trade unions. According to section 25(1) of the Trade Unions Act 1959, a registered trade union may sue and be sued and be prosecuted under its registered name whilst under section 25(2) of the same Act, an unregistered trade union may be sued and prosecuted under the name by which it has been operating or is generally known. In this case, all the 16 trade unions had commenced proceedings under its registered names. [8] On 11 August, 2022, P4, P5, P14 and P15 withdrew from this suit. [9] On 20 October, 2022, P16 withdrew from this suit. [10] In Suit 1263, the 19 defendants are:

Mohd Effendy Abdul Ghani (in his capacity as the President of the Malaysian Trade Union Congress) (“D1”);

Matkar bin Siwang (in his capacity as the Deputy President of the Malaysian Trade Union Congress) (“D2”);

Kamarul Baharin bin Mansor (in his capacity as the Secretary

Mohd Khairi bin Man (in his capacity as the Deputy Secretary

Wang Heng Suang (in his capacity as the Finance Secretary of the Malaysian Trade Union Congress) (“D5”);

Ng Choo Seong (in his capacity as the Deputy Finance

Mohamad Dauzkaply Nor bin Ghazali (in his capacity as the

Shatiri bin Mansor (in his capacity as the Vice President (Public Sector) of the Malaysian Trade Union Congress) (“D8”);

Dzulkernain bin Hassan (in his capacity as the Vice President (Private Sector) of the Malaysian Trade Union Congress) (“D9”);

A. Balasubramaniam (in his capacity as the Vice President (Private Sector) of the Malaysian Trade Union Congress) (“D10”);

Mohd Rais Hafizuddin bin Adnan (in his capacity as the Vice

Mohd Khairul bin Buyang @ Buang (in his capacity as the Vice

Michelle Cheow Yee Pin (in her capacity as the Vice President (Private Sector) of the Malaysian Trade Union Congress) (“D13”);

Nor Hayati bte Abdul Rashid (in her capacity as the Vice

Asman bin Mohd Nawawi (in his capacity as the Vice

Aminuddin bin Awang (in his capacity as the Vice President (Public Sector) of the Malaysian Trade Union Congress) (“D16”);

Alwi Shakir bin Abdullah (in his capacity as the Vice President (Statutory Body) of the Malaysian Trade Union Congress) (“D17”);

Basharuddin bin Harun (in his capacity as the Vice President (Statutory Body) of the Malaysian Trade Union Congress) (“D18”); and

Mazmir bin Mohd Amin (in his capacity as the Vice President (Statutory Body) of the Malaysian Trade Union Congress) (“D19”). These 19 defendants were elected as the principal office bearers of the MTUC at the MTUC’s 42nd TDC held on the 2nd and 3rd of July 2022. [11] In Suit 1423, filed on 24 August 2022, the plaintiff is one Abdul Halim bin Mansor. According to the Intitulement in the Originating Summons, the plaintiff had commenced this action in his capacity as the Secretary General of the National Union of Petroleum and Chemical Industry Workers (“NUPCIW’) in accordance with section 9(c) of the Societies Act

To all intents and purposes, this is a personal action by Abdul Halim bin Mansor. [12] The defendants in Suit 1423 are Mohd Effendy Abdul Ghani (in his capacity as the President of the MTUC) and Kamarul Baharin bin Mansor (in his capacity as the Secretary General of the MTUC). These defendants are D1 and D3 in Suit 1263. [13] The plaintiffs in both Suits 1263 and 1423 are trade unions and these plaintiffs are affiliate members of the MTUC, the umbrella body of trade unions in Malaysia. As noted, the defendants in both Suits 1263 and 1423 are the principal office bearers of the MTUC. [14] The MTUC is a national trade union centre in Malaysia. According to its website, it was formed in 1949 and was originally known as the Malayan Trades Union Council. It then changed its name to the Malayan Trades Union Congress in 1958, and then to its current name with the formation of Malaysia. As rightly noted by the defendants, the MTUC is an important and integral part of the Malaysian labour fabric. The Issues and Reliefs Sought in Suits 1263 and 1423 [15] The prayers sought by the plaintiffs in Suit 1263 are, inter alia, as follows:

A declaration that the 42nd TDC conducted by D3 was unconstitutional and as such is null and void;

A declaration that all decisions made at the 42nd TDC were unconstitutional and as such are null and void; and

A declaration that the elections of the D1 to D19 as the principal office bearers at the 42nd TDC were unconstitutional and as such are null and void. [16] The overriding issue in Suit 1263 is thus: whether there had been violations or breaches of the constitutional provisions of the MTUC, rendering the 42nd TDC as null and void. [17] Whereas the prayers sought by the plaintiff in Suit 1423 are, inter alia, as follows:

A declaration that the 42nd TDC was in violation of the provisions of the Constitution of the MTUC and is thus invalid and void ab initio;

A declaration that the elections of the principal office bearers at the said TDC are unconstitutional, invalid and void ab initio;

A declaration that a new TDC be held; and

A declaration that the decisions by the defendants in determining the final date for the submission of nominations and the barring of 13 nominations from the NUPCIW was in breach of the MTUC Constitution. [18] It can therefore be concluded that the overriding issues raised in Suit 1423 are similar to those raised in Suit 1263. The Plaintiffs’ Contentions in Suit 1263 [19] The plaintiffs in Suit 1263 contended that there were numerous instances evincing violations or breaches of the MTUC Constitution. Counsel for the plaintiffs underscored the point that the MTUC Constitution constitute as the terms of contract that bind all parties and the need to uphold the sanctity of the contract. [20] Primarily, the plaintiffs in Suit 1263 made references to six clusters of Clauses and Rules in the Appendixes of the MTUC Constitution. A. Breach of Clause 7 [21] Clause 7 of the MTUC Constitution is under the heading of Delegates Meeting. The important provisions that are relevant for purposes of this application are:

Clause 7 Rule 6(7);

Clause 7 Rule 6(8);

Clause 7 Rule 6(9);

Clause 7 Rule 6(11); and

Clause 7 Rule 6(13); For ease of reference, these provisions read as follows: Clause 7 Rule 6(7) Delegates Conference to be Triennial The Delegates Conference shall be convened triennially and held during the period October – December of the year in which it is due. The date, place and agenda of the Delegates Conference shall be decided by the General Council. Clause 7 Rule 6(8) Business of Triennial Delegates Conference The business of the Triennial Delegates Conference shall be the consideration and determination of all matters affecting the interest and welfare of the members of affiliated unions and for their representatives to receive the Triennial Report and Accounts of the MTUC, to appoint Auditors, to elect principal officials and to consider and determine all other matters included in the agenda. Clause 7 Rule 6(9) Standing Orders for Triennial Delegates Conference The Triennial Delegates Conference shall be conducted in accordance with the provisions contained in Standing Orders attached as Appendix E to this Constitution. Clause 7 Rule 6(11) Period to Submit Nominations, etc. Every affiliated trade union shall forward to the Secretary General of MTUC at least 7 weeks prior to each Delegates Conference the names of their delegates, nominations for election of principal officers except for the 2 Vice Presidents representing Youth and Women Sections of the MTUC, motions for discussion and amendments to the Constitution, if any. Clause 7 Rule 6(13) Delegates Conference Agenda and Motions The Secretary General shall send to the member trade Unions at least 14 days before the Delegates Conference a complete Agenda including motions, copies of reports and accounts, list of nominations for principal officials and proposals for amendment to the Constitution. [22] As evident from the headings to each of the provisions in Sub-Rule 6 to Clause 7, Rule 6(7) provides that the Delegates Conference shall be convened triennially while Rule 7(8) explains the business that are to be conducted at the Triennial Delegates Conference. [23] Rule 6(9) concerns the standing order for the triennial delegates conference and this is to be read with Appendix E. On the other hand, Rule 6(11) deals with, amongst others, the period to submit nominations and Rule 6(13) is in relation to the conference agenda and motions. B. Breach of Clause 9 [24] Provisions pertaining to the duties of the office bearers are contained in Clause 9 of the MTUC Constitution. The relevant provision said to have been breached is Rule 9(5)(4). It reads as follows: Working Committee The Working Committee shall strictly ensure compliance of Financial Regulations laid down in MTUC Rules and Constitution including management of project funds. C. Breach of Clause 10 [25] The next grievance relates to Clause 10, on Financial Provisions. In particular, the plaintiffs highlighted Clause 10 Rule 13(1) of the MTUC Constitution, which they said had not been complied with. In Rule 13(1), it is clearly provided that: In order that affiliated organisations may have an opportunity of pursuing the financial statement prior to each Triennial Delegates Conference, the financial year shall close on the 31st March. The audit shall then take place and printed Balance Sheet, duly certified by the Auditors shall be sent with the complete Agenda to the Secretary of each affiliated union not less than 14 days before each Triennial Delegates Conference. D. Breaches of Provisions in Appendix D [26] The fourth set of provisions in the MTUC Constitution said to have an important bearing on this application are Rules 8, 10 and 11 of Appendix D. Appendix D deals with the Financial Regulations of the MTUC and form a part of Clause 10. Rules 8 provides that – The Financial Secretary shall present at every meeting of the MTUC General Council a statement showing receipts and expenditure during the quarter preceding of the General Council meeting. while Rule 10 expressly states that – All disbursements shall be made in accordance with the approved estimates of expenditure. Finally, Rule 11 mandates that: The Financial Secretary shall prepare the Annual Estimates of Revenue and Expenditure. E. Breaches of Provisions in Appendix E [27] The provisions in Appendix E that deal with the Standing Orders of the Triennial Delegates Conference are related to Clause 7 under the heading of Delegates Meeting. The provisions in Appendix E complained of are Rule A(i), Rule 3(d), Rule 6 and Rule 7. Rule A(i) of Appendix E, on the formation of a Credentials Committee, reads: The Conference shall elect on the recommendations of the General Council from amongst the delegates 5 members to constitute the Credentials Committee. The members of Committee shall appoint from their body a Chairman and a Secretary. and Rule 3(d) of Appendix E, which deals another Committee known as the General Purposes Committee states that one of its duties is: To report to the Delegates Conference any violation of the Rules or Standing Orders that may be brought to their notice, together with any recommendations agreed upon. In Appendix E Rule 6 on Agenda, it is provided that: The Agenda compiled by the General Council shall be taken as the first business of Conference. Finally, Rule 7 of Appendix 7 that is said to have been violated reads:

The Secretary General shall present the General Council’s Report at the Delegates Conference. The Report shall be discussed seriatim, and not as a whole.

General Council’s Report shall be given precedence over all other business of the Conference provided that where a motion bears directly upon any part of the Report, such motion may at the direction of the Chairman of the Conference be taken in conjunction with such part of the Report. F. Breach of Provision in Appendix F [28] Appendix F comes under the purview of Clause 8 that deals primarily with the Central Committee. Under the heading of Financial Matters, Rule 6 of Appendix F provides that: The General Council shall at all times, prior to taking any decisions involving expenditure, refer them first to the Finance Committee except in the case of exigencies when the General Council may take such decisions as it may consider necessary. The Finance Committee’s Report for the consideration of General Council, as the case may be, shall include an estimate of the cost and a suggestion as to the matter in which provisions should be made for the necessary expenditure. [29] The plaintiffs in support of this Originating Summons application highlighted the fact that the TDC was held on 2-3 July, 2022 instead of during the period between October-December, 2022. The plaintiffs further alleged that the General Council of the MTUC had not made a decision on the date and place of the TDC. Accordingly, it was the plaintiffs’ contention that these amounted to a clear violation of Clause 7 Rule 6(7) of the Constitution of the MTUC by the defendants. [30] In support of this Originating Summons application, the plaintiffs also pointed to the non-compliance relating to the notice of agenda and the prescribed documents that must be sent to the delegates as prescribed in Clause 7 Rule 6(3) of the Constitution of the MTUC. What was missing, as alleged by the plaintiffs, were the Triennial Reports and the Audited Accounts for the years 2020-2022. It was the plaintiffs’ case that the primary focus of the notice of agenda was the elections of the office bearers and the important purpose of the TDC to consider and determine all matters affecting the interest and welfare of the members were sidelined by the third defendant. [31] It was further said that the notice which was sent on 18 June, 2022 fell short of the 14-day requirement set out in Clause 7 Rule 6(13) of the MTUC Constitution. [32] The effect of the breaches of the provisions of the MTUC Constitution as set out in paragraphs [30] and [31] above had, argued the plaintiffs, caused serious prejudice to the delegates. The delegates had thus been deprived of the opportunity of coming to the TDC fully prepared and to appraise the past performance and chart the future directions for the MTUC. The plaintiffs pointed to Rule 7 in Appendix 7 which makes it mandatory for the Secretary General to present the General Council’s report at the TDC and more crucially the stipulation that “the report shall be discussed seriatim and not as a whole”. [33] In relation to the financial matters of the MTUC, the plaintiffs also made allegations that purportedly showed a slew of non-compliances with the provisions of the MTUC Constitution. In this regard, the plaintiffs had sought, inter alia, an order that “Defendan-Defendan dihalang membuat sebarang keputusan di Mesyuarat Majlis Am dan/atau apa-apa mesyuarat yang lain yang berada di bawah pengawasan dan/atau seliaan Defendan-Defendan untuk mengeluarkan dan menggunakan RM1.5 juta yang disimpan di dalam Akaun Simpanan Tetap MTUC”. [34] The plaintiffs in seeking the declarations sought in their Originating Summons have also drawn this Court’s attention to the manner in which the TDC was conducted, which they say, violated the constitutional provisions of the MTUC. [35] The plaintiffs emphasized the followings facts, namely that: (i) the TDC was held in July instead of between the months of October to December as mandated in the Constitution; (ii) the Notice sent by D3 on behalf of the MTUC to its affiliates to submit their nominations and lists of their delegates had not complied with the minimum “7-week prior to the Conference” period as laid down in the Constitution. As the TDC was fixed on 2 July, 2022, the last day for submission of nominations and lists of delegates would be on 12 May, 2022. However, D3 had fixed 3.00pm of 9 May, 2022 as the deadline for submission of nominations and the lists of delegates. [36] As of the result of the above, the plaintiffs alluded to the fact that the delegates from the plaintiff’s Union in Suit 1423 together with those from 11 other Unions were barred from attending the TDC on the basis that they had delayed submitting the name list of delegates who will be attending the TDC. The nomination papers submitted by the plaintiff in Suit 1423 was also rejected by D3. In the case of the plaintiff in Suit 1423, it was pointed out that he had submitted his nomination papers well within 12 May, 2022, that is, on 9 May, 2022. [37] Still on the subject on the manner in which the TDC was conducted, the plaintiffs took issues with the way in which the Credential Committee and the General Purpose Committee had functioned during the TDC. The Plaintiff’s Contention in Suit 1423 [38] The plaintiff advanced three main contentions in Suit 1423, that is, first, the defendants’ affidavits are defective, second that this Court has the power to grant the declarations sought by the plaintiff and third, that the defendants had breached the provisions of the MTUC Constitution in carrying out their duties as the President and Secretary General of the MTUC. [39] On the third ground, the plaintiff has adopted the arguments raised by the plaintiffs in Suit 1263. Additionally, the plaintiff in this Suit also underscored the binding nature of the Constitution The Case for the Defendants in Suit 1263 [40] In response to the contention by the plaintiffs that in holding the TDC on the 2nd and 3rd of July, 2022 instead of during the period between October – December, 2022 had violated one of the constitutional provisions of the MTUC (see para [29] above), the defendants explained that that was due to an unavoidable situation that had arisen, a special circumstance that had warranted it. The MTUC had been advised on 23 December, 2020 by the Registrar of Societies (“ROS”) to hold a Special Delegates Conference (“SDC”) to elect a President as at the SDC held on 19 September, 2020, two candidates for the position of President had received similar number of votes. But due to Covid restrictions, the SDC could only be held in 2022. To avoid incurring the costs of holding the SDC and the TDC within months in 2022, the General Council had then decided to hold the TDC “to kill two birds with one stone”, so to speak. [41] The defendants further relied on a tacit approval by the ROS, in that the ROS did not advise the MTUC to call off the TDC after having received objection letters from some of the affiliate unions of the MTUC. [42] The defendants also pointed to the fact that at the start of the TDC, the delegates had voted to “regularise” the TDC. According to the defendants, any irregularity was thus cured as according to Clause 7 Rule 6(1) of the Constitution, the Delegates Conference is the Supreme Authority of the MTUC and “their endorsement settles this issue”. [43] In respect of the notice of agenda (see paras [30] – [32] above), the defendants contended that the since the plaintiffs had attended the TDC based on the notice received, the plaintiffs were not prejudiced by the non-compliance with the period for the issuance of the said notice. [44] As for the allegations by the plaintiffs in paragraphs [30] and [32] above that relate to the Triennial Reports and the Audited Accounts for the years 2020-2022, the defendants submitted that the General Committee Report 2020, 2021 and 2022 were presented in slides as part of the Activity Report to all the delegates. On the failure to table the Audited Reports for 2020 – 2022, the defendants put the blame squarely on the previous administration. [45] As for the other alleged instances of violations as outlined in paragraphs [33] – [35] above, the defendants submitted that issues relating to the management of financial matters are not within the purview of the Court’s power. [46] On the issue pertaining to the closing date for the submission of nominations and lists of delegates prior to the TDC and that Abdul Halim bin Mansor’s (the plaintiff in Suit 1423) nomination paper was rejected, the defendants response was “that NUPCIW is not a party to this proceeding any longer” and in any event, “this fact is not for consideration” by this Court. The Case for the Defendants in Suit 1423 [47] In opposing the plaintiff’s Originating Summons in Suit 1423, the defendants argued that Suit 1423 ought to be merged and heard together with Suit 1263. In this regard, the defendants here relied on the arguments that the defendants have raised in Suit 1263, in particular, on the issue of whether the provisions of the MTUC Constitution have been violated. [48] It should be noted that the defendants in this Suit also submitted that the subject matter of the dispute that has arisen between the parties falls squarely within the power and jurisdiction of the ROS and henceforth ought to be resolved by the ROS before it should be brought for determination by this Court. The Overriding Issues [49] The overriding issues for consideration in this dispute can henceforth be distilled into the following, namely:

Whether the matters complained of fall exclusively under the powers and purview of the ROS for determination;

If the answer to (1) is in the negative, whether the matters complained of have violated the provisions of the Constitution of the MTUC; and

If the answer to (2) is in the affirmative, what are the appropriate order(s) that ought to be made by this Court. The Legal Principles and Authorities [50] The defendants in both Suits 1263 and 1423 have referred this Court to a number of provisions in the Societies Act 1966, decided cases and secondary materials. [51] The provisions of the Societies Act 1966 which are said to be relevant are sections 3A and 16. Section 3A provides:

In addition to the powers, duties and functions conferred on the Registrar by this Act and any regulations made under this Act, the Registrar shall have and may exercise all such powers, discharge all such duties and perform all such functions as may be necessary for the purpose of giving effect to and carrying out the provisions of this Act. On the other hand, section 16 reads: Disputes 16

If the Registrar is of the opinion that a dispute has occurred among the members or office-bearers of a registered society as a result of which the Registrar is not satisfied of the identity of the persons who have been properly constituted as office-bearers of the society, the Registrar may serve notice on the society requiring the society, within one month of the service of such notice, to produce to him evidence of the settlement of any such dispute and of the proper appointment of the lawful office-bearers of the society or of the institution of proceedings for the settlement of such dispute.

If any such notice as is provided in subsection (1) is not complied with to the satisfaction of the Registrar within the period of one month or any extension of the period allowed by the Registrar, the Registrar may take steps to cancel the registration of the society under section 13. [52] The leading authorities cited by the plaintiffs in both Suits 1263 and 1423 include Ismail bin Abd Halid & Ors v National Union of Newspaper Workers CLJ [1991] 1 LNS 87; [1993] 3 MLJ 541; [1991] 4 MLRH 633, Goh Say Joo & Ors v Dato’ Lim Ah Chap (Disaman Dalam Jawatannya Sebagai Presiden Persatuan Dewan Perniagaan Cina Jerantut, Pahang) [2004] 1 LNS 669; [2006] 7 MLJ 571; [2004] 3 MLRH 772, Lee Tak Suan v Shahabudin Burhanuddin & Ors [2012] MLRHU 1799; [2012] 1 LNS 598; [2013] 7 MLJ 157, Tan Kah Wich & Ors v Datuk Phua Cheng Leong & Ors [1979] 2 MLJ 259; [1979] 1 MLRA 119; [1979] 1 MLRA 119, Seethapathy v Singapore Harbour Board Staff Association & Ors [1964] MLJ 152; [1964] 1 MLRH 258] and Union of Beverage Industry Workers, Federation of Malaya & Anor v Syed Sharir bin Syed Mohamud (Sued as President of MTUC) & Ors [2005] 4 CLJ 148; [2005] 6 MLJ 43; [2005] 1 MLRH 687. [53] On the other hand, the defendants in Suits 1263 and 1423 relied on, inter alia, Pendaftar Pertubuhan v Datuk Justin Jinggut [2013] 2 AMR 310; [2013] 2 CLJ 362; [2013] 3 MLJ 16; [2013] 2 MLRA 611 (“Datuk Justin Jinggut”), Pakas Rao a/l Applanaidoo (as Public Officer of the Malaysian Indian Congress (MIC) pursuant to s 9(c) of the Societies Act 1966 & Ors v Pendaftar Pertubuhan Malaysia & Ors [2015] AMEJ 1150; [2015] 8 CLJ 521; [2015] 5 MLJ 500; [2016] 1 MLRA 258 (“Pakas Rao”), Kevin Ramesh a/l Rajakumar & Anor v Ramachandran a/l Maniam (Sebagai Wakil Jawatankuasa Pengurusan Pertubuhan Kuil Sri Thirumurugam, Taman Danau Kota, Setapak, Kuala Lumpur) [2022] MLJU 312 (“Kevin Ramesh”), Fauzi bin Hassan (Menyaman Sebagai Pemangku Presiden Dewan Perniagaan Melayu Malaysia (‘DPMM’) dan/atau DPMM) & Ors v Abdul Halim bin Husin & Ors [2020] MLJU 2432 (“Fauzi bin Hassan”) and Abdul Halim bin Mansor (Dalam Kapasiti Beliau Sebagai President Kongres Kesatuan Sekerja Malaysia) v National Union of Bank Employees & Anor [2020] MLJU 256. [54] In Abdul Halim bin Mansor (Dalam Kapasiti Beliau Sebagai President Kongres Kesatuan Sekerja Malaysia) v National Union of Bank Employees & Anor, the Court of Appeal had also referred to a secondary source, namely, NE Renton, “Guide for Voluntary Associations: A Handy Reference Manual for Members of Clubs and Societies and a Useful Primer on Election Systems” (5th Edition). Application of the Law and Principles Whether the matters complained of fall exclusively under the powers and purview of the ROS for determination? [55] On the issue of whether the matters complained of in this dispute are matters for the ROS and not for the Court to adjudicate, it is evident that Parliament has deemed it proper to confer wide powers on the ROS. As noted by the defendants, section 3A of the Societies Act 1966, as set out in paragraph [51] above, expressly states that the Registrar shall have and may exercise all such powers, discharge all such duties and perform all such functions as may be necessary for the purpose of giving effect to and carrying out the provisions of the said Act. These are in addition to the powers, duties and functions already conferred on the ROS by the Societies Act 1966 and any regulations made under the Act. [56] While there is no denying that the ROS shall have and may exercise all such powers conferred by the Societies Act 1966, save for situations where the Courts have been expressly excluded from exercising their jurisdiction, such as in section 18C, the exercise of such powers is subject to the superlative authority of the Court. [57] The provision in section 16(1) of the Societies Act 1966 that specifically deals with “Disputes” applies in a situation where the ROS has made a determination and is of the opinion that a dispute has occurred among the members or office-bearers of a registered society as a result of which the Registrar is not satisfied of the identity of the persons who have been properly constituted as office-bearers of the society. In such a case, the ROS may proceed with the taking of further steps and action if necessary. [58] In Datuk Justin Jinggut, the Federal Court held that the Court should not usurp the powers of the ROS under section 16(1) of the Societies Act

However, this decision of the Federal Court was premised on the fact that the ROS had made certain findings based on the factual background on the validity of the dispute in that case. Hence, to go behind the opinion stated by the ROS would be to substitute the subjective opinion of the ROS. [59] In the present Suits, the dispute in question does not fall squarely within the condition as envisaged in section 16(1) of the Societies Act

The ROS has not made a determination of the dispute at hand and as such any argument to suggest that a decision by this Court on the present dispute would undermine or substitute a decision made by the ROS is flawed. [60] In addition, Datuk Justin Jinggut is distinguishable in that the Federal Court in that case was dealing with a dispute that involved a political party. As pointed out by the Federal Court and as noted in paragraph [56] above, section 18C of the Societies Act 1966 clearly excludes the jurisdiction of the Courts from going into the merits of any disputes between members of a political party. Section 18C of the Societies Act 1966 provides as follows: Decision of political party to be final and conclusive 18C. The decision of a political party or any person authorised by it or by its constitution or rules or regulations made thereunder 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. [61] The Court of Appeal in Pakas Rao had clarified the extent of the ROS’ power under sections 3A and 16(1) of the Societies Act 1966 and that decision, which is binding on this Court, has no bearing on the issue under consideration in the present Suits. [62] This Court entirely agrees with the observations by the High Court in Kevin Ramesh, a case relied by the defendants, to the effect that: [8] … the Registrar has not only the power to resolve dispute of an Association but also determine the validity of the appointment of the lawful office bearers. … the powers to conduct a detailed and thorough internal inquiry. [9] The law does not preclude the dispute from being referred to the Court. … … [12] In the event the Registrar does hold and [sic] inquiry and decides on the disputed issues and only then a party aggrieved by the decision brings the matter to the Court, the Court will be in a better position to resolve the dispute. [63] However, the ROS to date has not conducted a thorough inquiry into the current dispute in both these Suits. This Court is also not barred by any express provisions in the Societies Act 1966 to exercise jurisdiction over the dispute in both these Suits. When this Court intervenes in the present proceedings, this does not amount to “stepping into the shoes” and usurping the powers of the ROS. Whether the matters complained of have violated the provisions of the Constitution of the MTUC? [64] In Abdul Halim bin Mansor (Dalam Kapasiti Beliau Sebagai President Kongres Kesatuan Sekerja Malaysia) v National Union of Bank Employees & Anor, Abdul Halim bin Mansor (the current plaintiff in Suit 1423) had successfully appealed against the decision of the High Court in holding that a decision made by the General Council of the MTUC to hold fresh elections for three principal office bearer’s posts was ultra vires and had contravened the MTUC Constitution. In reversing the decision of High Court, the Court of Appeal held that as two of the three candidates had been found to be ineligible to stand as candidates, the decision of the General Council should be upheld. This was despite the fact that the third candidate had been duly elected and his eligibility to stand for election had not been questioned nor disputed. [65] The Court of Appeal underscored the importance and integrity of the election process, together with the scheme of the MTUC Constitution. At paragraph [30], Abdul Karim JCA (as his Lordship then was) said: … Fokus utama seharusnya ditumpukan pada ketidaklayakan Kamarul dan Dauz pada asalnya lagi (ab initio), satu hakikat yang tidak dicabar malahan ditentu sahkan oleh responden kedua sendiri. Ketidaklayakan tersebut telah menidakkan kedudukan Kamarul dan Dauz bukan sahaja untuk menjadi wakil kesatuan mereka malahan tidak langsung melayakkan mereka untuk bertanding bagi jawatan pegawai utama dan seterusnya menjadi ahli Majlis Am. Mereka bukan ahli sejak awal lagi sama ada sebagai perwakilan kesatuan mereka mahupun sebagai pegawai utama MTUC. Kami perhatikan Hakim bicara telah terkhilaf dari sudut undang-undang dengan memberikan tumpuan utama pada kesan turutan (consequential effect) iaitu kekosongan akibat penyingkiran Kamarul dan Dauz. Hakim bicara seharusnya mengambil pendekatan yang bertitik tolak penemuan ketidaklayakan ab initio Kamarul dan Dauz yang merupakan isu kritikal dan mempunyai implikasi yang serius ke atas integriti proses pemilihan itu sendiri. Kami berpendapat pendekatan yang diambil oleh Hakim bicara tidak selaras dengan skema Perlembagaan MTUC sepertimana yang dibentangkan di atas. Kami berpendapat ketidaklayakan ab initio Kamarul dan Dauz itu merupakan satu kecacatan proses yang telah menjejaskan integriti proses pemilihan itu sendiri dan mewajarkan Majlis Am memutuskan, selaras dengan peraturan 8 (11), untuk mengadakan pemilihan baru bagi kedua-dua jawatan iaitu Naib Presiden (Sektor Swasta) dan juga jawatan Setiausaha Agong. [66] It should be noted that the Court of Appeal had referred to a secondary source, namely, NE Renton, “Guide for Voluntary Associations: A Handy Reference Manual for Members of Clubs and Societies and a Useful Primer on Election Systems” (5th Edition) and had accepted the views expressed therein. The defendants had referred to this decision of the Court of Appeal and highlighted the following passages from the above secondary source, that is: “11.89 Sometimes election irregularities are discovered, and the question then arises as to the best way to cure them. There is no simple solution to this problem, but it is important that any remedy proposed should be practicable having regard to the realities of the situation and to the fact that an unincorporated body will not normally wish to go to court. It is also clearly desirable that justice should be both done and be seen to be done.

11.90. Irregularities can range from minor ones - such as admitting as a voter an odd person who ineligible to vote or giving one day too little notice of nominations - to major ones such as electing a candidate who was not qualified to stand or declaring elected more candidates that there were vacancies.

11.92. The question “Was any body prejudiced by the irregularity?” is of some importance. So is the fact that it would be demonstrably unjust to penalize candidates for mistake caused, for example, by the organization itself. [67] The Court of Appeal had indeed quoted the above passages at paragraph [30] of its judgment. The parts in bold were the Court of Appeal’s own emphasis. The three passages do suggest that minor infractions in an election process should be resolved internally. However, the Court of Appeal also quoted three additional passages from the work of NE Renton and they read as follows:

11.95. It is obvious that the irregularity should be rectified as soon as possible after discovery. It is most undesirable in such circumstances for an invalidly-elected committee to continue in office as though nothing had happened, as it would clearly have no authority to act…

11.96. in some cases, it may constitutionally be possible for a parent body to intervene and to take steps to rectify the irregularity. In other cases, it may be practicable to restore status quo and recall the retiring committee, on the basis that it never ceased to exist despite an election which purported to have that effect. In other cases again, and in particular where organisation’s office-bearers retire by a system of rotation (for example, one-third each year, all being elected for three years term), it may be possible to gather together a quorum from amongst committee members the validity of whose appointment is not in dispute.

11.97. The most satisfactory remedy will usually be to declare vacant all offices which purportedly filled by the irregular election, and hold a fresh election. A decision in this regard could in practice be taken even by a defectively-elected committee, as the substantial matter is to be decided by the members. It should, however, be noted that such a course of action can still be unfair to candidates who were properly elected in the defective poll but who might get defeated on a second occasion. To minimize any risk of injustice on this score it may be possible to limit the candidates to those who had previously nominated; this device is, of course, not appropriate if the irregularity was one involving the nomination process itself. “ [68] The irregularities complained of in Suits 1263 and 1423 were indeed numerous and varied. This Court is in agreement with what was said by the High Court in Fauzi bin Hassan that section 16 of the Societies Act was put in place “as the Parliament did not intend for the courts to be inundated with having to deal with such disputes between members of societies” (see para [81] of the said judgment in Fauzi bin Hassan). [69] Some differences or disputes are meant to be resolved through existing internal mechanisms. In the case of the MTUC, the General Council and Committees exist for this very reason. Others are intended for determination by the ROS. The anomalies complained of by the plaintiffs relating to the financial management of the MTUC by the defendants would be within the ambit of the ROS to superintend. [70] However, for matters such as the manner in which the TDC of the MTUC is conducted, strict adherence to the constitutional provisions of the MTUC is demanded. This is because one of the key businesses of the TDC is the elections of the principal office bearers. If any of the constitutional provisions relating to these matters are violated, this will, as reminded by the Court of Appeal in Abdul Halim bin Mansor (Dalam Kapasiti Beliau Sebagai President Kongres Kesatuan Sekerja Malaysia) v National Union of Bank Employees & Anor, “mempunyai implikasi yang serius ke atas integriti proses pemilihan itu sendiri”. Hence, the Court may step in, not to usurp the powers of the ROS, but to preserve the integrity of the election process and to ensure that the provisions of the Constitution which bind the members inter se are observed and enforced. [71] It bears reiteration that the failure to comply with the minimum period of a 7-week notice that every affiliated trade union is entitled under the Constitution to submit their list of delegates and nominations for elections of principal officers had affected the core business of the TDC. When the nomination papers and list of delegates submitted by the plaintiff in Suit 1423 were rejected, that had the effect of, again to borrow the phrase use by the Court of Appeal in Abdul Halim bin Mansor (Dalam Kapasiti Beliau Sebagai President Kongres Kesatuan Sekerja Malaysia) v National Union of Bank Employees & Anor, “menjejaskan integriti proses pemilihan itu sendiri”. [72] Eleven other unions were also barred from attending the TDC on the basis that they had delayed in submitting the lists of delegates to attend the TDC. [73] Then there was this grievance by the plaintiffs in both Suits pertaining to the delay, albeit by one day, in which the requirement for the notice of agenda to be sent at least 14 days before the said TDC had not been met. The plaintiffs did concede that the delay of one day, in violation of Clause 7 Rule 6(13) of the MTUC Constitution may be trivial when considered on its own and in isolation. [74] As alluded to in paragraph [42] above, the defendants had pointed out that the delegates had voted to “regularise” the TDC. Since the Delegates Conference has been categorically acknowledged as the Supreme Authority of the MTUC in Clause 7 Rule 6(1) of the Constitution, the “ratification” of the irregularities, according to the defendants, had settled this issue. While it is true that Clause 7 Rule 6(1) of the MTUC Constitution recognises the Delegates Conference as the Supreme Authority of the MTUC, the fact that some of the delegates who were wrongfully barred from attending the TDC meant that the delegates present at the TDC did not represent the entire body of delegates who were entitled to be present at that said TDC. In such a case, the sanction by the delegates present, sans those that had been wrongfully barred from attending, cannot be regarded as valid. [75] A number of other grievances have also ben raised by the plaintiffs. This Court regards some of these complaints as nothing more than petty squabbles that have no bearing on the outcome of these Suits. [76] However, the disregard for the provisions of the MTUC Constitution relating to the matters as outlined in paragraphs [71] and [72] above directly affect the integrity of the election process of the principal office bearers at the TDC. These violations impacted the rights of members to partake in the election process in a meaningful way. This Court is of the view that these constitutional provisions must be safeguarded, lest the good name and the role that an important body such as the MTUC play in the labour movement landscape are tainted and compromised. The Decision of this Court [77] Based on the above findings, this Court hereby declares that:

The 42nd TDC held on the 2nd and 3rd of July, 2022 had not complied with the provisions of the Constitution of the MTUC and is thus null and void;

All decisions made at the said TDC are null and void; and

The elections of the principal office-bearers at the 42nd TDC held on the 2nd and 3rd of July, 2022 were in breach of the provisions of the Constitution of the MTUC and are thus null and void. [78] The plaintiffs in Suit 1263 did not seek costs. I make no order as to costs in Suit 1263. [79] In Suit 1423, the plaintiff is awarded costs of RM10,000. Postscript [80] It is granted that a Society such as the MTUC is at liberty to decide and make its own rules, by-laws and regulations. The MTUC may conduct its own affairs in a manner it deems fit, so long as these do not run afoul of the Societies Act 1966. By way of observation, the Constitution of the MTUC is unwieldy, to say the least. Appendixes are inserted within the various Clauses and they are not in sequential order. Nevertheless, these provisions constitute as a binding contract that must be observed by its members. It is a certainty that differences amongst and disputes between members will continue to arise. The sooner a comprehensive revamp process of the provisions in the MTUC constitution is undertaken, the better it would be for all the stakeholders in labour union industry. Dated: 9 September, 2023 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: BA-24NCvC-1263-08/2022 Ravindran a/l Nekoo and Alia Maisara binti Zainal Abidin for the Plaintiffs (Messrs. Nekoo) Francis a/l Francis Julious Pereira for the Defendants (Messrs. Francis Peirera & Shan) BA-24NCvC-1423-08/2022 Muhammad Ashrul Haikal bin Ashri for the Plaintiffs (Messrs. Kiranjit Randhawa & Co) Francis a/l Francis Julious Pereira for the Defendants (Messrs. Francis Pereira & Shan)