Salihudin Bin Haji Ahmad Khalid & 15 Lagi v Salihudin Bin Haji Ahmad Khalid & 15 Lagi (W-01(IM)-301-05/2018)

(i) A certiorari to quash the decision of the ROS which allowed an extension of time for UMNO’s elections at all levels;

(a) one in the states of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine;

(b) one in the states of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its 11 principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine; and

(c) repealed and such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law. [16] The Appellants argued that the abovementioned constitutional provision recognises the power of civil courts to review the decision of any authority to prevent any abuse of power by such authority. Thus, it was asserted that the power of the civil courts under Article 121(1) of the Federal Constitution is inextricably intertwined with their constitutional role as a check and balance mechanism. In support of the above, reference was made to the recent Federal Court decision of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561. In addition, the Appellants referred to the recent Federal Court decision of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak v Ors And Other Appeals [2018] 1 MLJ 545 which had approved of the principle stated in the Semenyih Jaya. 12 [17] Thus, the Appellants submitted that the learned High Court Judge had erred in law in dismissing the application of judicial review by the Appellants on the basis of section 18C of the Act 355, when section 18C can be construed as ultra vires Article 121(1) of the Federal Constitution. OUR DECISION [18] We have carefully considered the oral and written submissions of counsels as well as the Appeal Records. We are of the unanimous view that there was no error in the learned High Judge’s findings and application of relevant law to warrant appellate intervention. We therefore affirmed the decision of the learned High Court Judge and dismissed this appeal with costs. We give our reasons for doing so below. [19] The Appellants were members of UMNO, a political party before their expulsion from UMNO prior to the hearing for the leave for judicial review. The Appellants contended that the UMNO Supreme Council had breached article 10.16 of UMNO’s Constitution in delaying the party’s election. The Appellants had challenged the decision of the ROS which had allowed an extension of time for UMNO to hold its 13 elections at all levels. The Appellants filed an application for judicial review, inter alia for an order of certiorari to quash the decision of the ROS which allowed an extension of time for UMNO to carry out its elections at all levels. [20] The primary argument raised by learned counsel for the Respondent is that the High Court has no jurisdiction to hear the matter because of the express provision of section 18C of the Act 355 which ousts the jurisdiction of the courts to challenge the decision of a political party or any person authorized by its constitution or rules or regulations in matters relating to the affairs of the party. [21] Section 18C of the Act 355 provides as follows: “18C. The decision of a political party or any person authorized 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 14 ground regarding the validity of such decisions.” (Emphasis added) [22] The interpretation of section 18C of the Act 355 was considered at length by the Court of Appeal in the case of Pendaftar Pertubuhan Malaysia v PV Das (bagi pihak People’s Progressive Party of Malaysia (PPP)) (Datuk M Kayveas, Intervener) [2003] 3 MLJ 449. In that case, the respondent, PV Das suing on behalf of himself and also purportedly on behalf of PPP, had brought a suit against the Registrar of Societies (ROS), and prayed for inter alia declarations that the Registrar’s recognition of Datuk M Kayveas (‘Kayveas’) as the president of the PPP and his supporters as office bearers was unlawful and ultra vires the Act 355 and PPP’s Constitution; and all approvals given by the ROS to Kayveas and his supporters in respect of the change of address of the headquarters of PPP, formation of branches, change of logo, change of name of PPP and amendment of PPP’s constitution were all illegal, ultra vires the Act 355 and PPP’S Constitution. [23] The High Court had allowed the Respondent’s claim. The Registrar appealed. The Court of Appeal allowed the Registrar’s appeal. Abdul Hamid Mohamad, JCA (as he then was) examined the ambit of 15 section 18C of the Act 355 in comparison to similar ouster clauses in other legislations. His Lordship (at p. 455) had stated as follows: “The first thing to be observed is that this section applies only to political parties. Secondly, the words used are more exhaustive than those used in other similar provisions. For examples, in s 33(4) of Election Offences Act 1954 the words ‘shall be final’ are used. In s 41 of the same Act, the words ‘shall not be questioned’ are used. In s 37(6) of the Extradition Act 1992, the words ‘shall be final and conclusive, and shall not be challenged, appeal against, reviewed, quashed or called in question in any court’ are used. This section was inserted by Act A484 and came into force on 30 May 1980.” [24] His Lordship Abdul Hamid, JCA (at p. 458) had added as follows: “…Ten years later, Parliament found it necessary to legislate s 18C. Having learnt from the experience regarding the ineffectiveness of the wording used in s 33C, Parliament had come up with a new formula. It did not stop at the words ‘shall be final and conclusive, and shall not be challenged appealed against, reviewed quashed or called in question in any court’. It went further to provide “… on any ground, and no court shall have jurisdiction to entertain or determine any suit, application, question or proceeding or any ground regarding the validity of such decision”.” 16 [25] Abdul Hamid Mohamad, JCA had also observed that at least five High Court Judges had consistently expressed the same view on the interpretation of section 18 C of the Act 355, i.e. the court has no jurisdiction to question the validity of decisions of a political party relating to the affairs of the party. The five High Court cases referred to by his Lordship in the Kayveas case abovementioned (Unfortunately, as his Lordship had noted, at that time there were no decisions of a court higher than the High Court on section 18 C of the Act 355), were namely: SI Rajah & Anor v Dato’ Mak Hon Kam & Ors [1993] 3 MLJ 741; Ismail bin Mohd & Satu Lagi lwn Zainal Abidin bin Mohamad Hashim & Tiga Lagi [1994] 2 CLJ 201 PV Das v Maniam KVS Kayveas ( Guaman Sivil No. 22-72-96); Abdul Aziz bin Jamal Mohammad & Ors v Maniam KVS @ M Kayveas [1998] 5 MLJ 794 and Md Raus J’s unreported judgment in Civil Suit No 22-21-1997). His Lordship agreed with the position taken in the five High Court judgments abovementioned that effect must be given to the intention of Parliament in legislating section 18C of the Act 355 to keep issues relating to the affairs of political parties outside the purview of the courts. [26] Abdul Hamid Mohamad, JCA (as he then was) had considered the facts of the Kayveas case before him in the light of section 18C of the Act 355 and added as follows: 17 “We shall now consider the provision of s 18C in the light of this case. The suit is against the Registrar of Societies. The first prayer concerns the act of the registrar in recognizing Datuk M Kayveas as president and his supporters as office bearers of the party. The second prayer seeks a declaration by the court that the plaintiff and his supporters are the president and office bearers of the party, respectively. The third prayer seeks a declaration that the approval by the registrar of the change of address etc are void. The fourth prayer is for a declaration regarding the address of the headquarters of the party. … All these arise from the dispute regarding the validity of the Extra Ordinary Delegates Conference, the election of Datuk M Kayveas and his supporters as president and office bearers respectively, the validity of the voting done and the resolutions passed and also who are members and who are not. These in our views are ‘decision(s) of a political party on any matter relating to the affairs of the party’…” [27] Similarly, in the facts of the instant case, the Appellants had sought inter alia for the following reliefs: a certiorari to quash the decision of the Registrar of Societies (ROS) which allowed an extension of time for UMNO’s elections at all levels; a Mandamus order to compel ROS to provisionally dissolve UMNO and for ROS to suspend all UMNO activities until the judicial review is completed and a declaration to cease the legality of UMNO branches and dissolution of all party divisions and the UMNO Supreme Council effective 20.4.2018. The 18 above reliefs sought are not within the court’s purview as they come within the ambit of section 18C of the Act 355 in that they relate to, “the interpretation of its constitution, rules or regulations or on any matter relating to the affairs of the party”. Parliament has expressly and in clear and unambiguous terms prohibited courts from being entangled in disputes relating to the affairs of political parties, and the reasons for taking that position is obvious and needs no further elaboration. [28] The Federal Court in the case of Pendaftar Pertubuhan v Datuk Justin Jinggut [2013] 2 CLJ 362, had approved the decision of the Court of Appeal in the Kayveas case. In Justin Jinggut case, a leadership crisis arose in Parti Kebangsaan Sarawak (‘SNAP’), a political society registered under the Act 355 between two groups, one led by the President and the other led by the Deputy President. The issue arose when the Deputy President, during the absence of the President, called for a Central Executive Committee (‘CEC’) meeting and subsequently convened the National Council Meeting. The President subsequently suspended the Deputy President and the decision was confirmed by another CEC meeting. 19 [29] The crisis led to the issuance of a notice by the Registrar of Societies (‘ROS’) under section 16 (1) of the Act 355, which inter alia stated that the ROS was of the opinion that a dispute had occurred among the office bearers of SNAP, as a result of which he was not satisfied as to the identities of the persons who had been properly constituted as the office bearers of SNAP. The ROS subsequently issued another notice, under section 13(2) of the Act 355, where a notification on his proposal to cancel the registration of SNAP was given unless SNAP could furnish reasons within a month why it should not be de-registered. Upon the failure by the parties to settle its crisis, the ROS issued his decision to cancel the registration of SNAP under section 13 (1) (c) (ix) of the Act 355. [30] The President and the respondent filed an application to the High Court for (i) an order of certiorari to quash the decision of the ROS in cancelling the registration of SNAP; and (ii) a declaration that the decision of the ROS in cancelling the registration of SNAP was void and of no effect. The respondent’s application was dismissed by the High Court. However, the respondent’s appeal to the Court of Appeal was allowed and the decision of the High Court was set aside. 20 [31] The ROS had appealed to the Federal Court on the following questions of law, inter alia: (i) whether the ROS had any power under section 16(1) of the Act 355 to determine the validity of the meetings before he decided that a dispute had arisen pertaining to the identity of the office bearers; (ii) whether the court, having considered the facts of the case objectively, could decide that there was no dispute pertaining to the identity of the office bearers to enable the ROS to issue a notice under section 16(1) of the Act 355; (iii) whether under section 16 read with section 13(2) of the Act 355, the ROS needed to act mechanically or whether he had any discretion to cancel the registration of a society if the condition in section 16 (1) had not been satisfied; and (iv) whether, under section 16 read with section 13 of the Act 355, the ROS was required to give any reasons for his decision to cancel the registration of a society. [32] The Federal Court allowed the Registrar’s appeal and agreed with the Court of Appeal in Pendaftar Pertubuhan Malaysia v PV Das, Datuk M Kayveas (Intervener) that in legislating section 18C of the Act 355 Parliament had clearly intended to exclude the jurisdiction of the courts in respect of decisions of political parties on any matter relating to the affairs of a political party. Abdul Hamid Embong, FCJ had stated (at para. 37) as follows: 21 “[37] We agree with the learned Senior Federal Counsel, for the ROS who submitted that, in any event, s 18C of the Act clearly excludes the jurisdiction of the courts from going into the merits of any disputes between members of a political party. Section 18C states that: Decision of political party to be final and conclusive 18C. The decision of a political party or any person authorized 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”. (Emphasis added) So clearly the court is restrained from questioning the decisions made by the disputing parties of a political party at their respective meetings. The concluding phrase in s 18C as we underscored above was considered by the Court of Appeal in Pendaftar Pertubuhan Malaysia v PV Das; Datuk M Kayveas (Intervener) [2003] 3 CLJ 404, where the court, with which we agree, held that: [1] Effect must be given to the intention of Parliament in legislating s 18C of the Societies Act 1966. In s 18C, Parliament did not stop at 22 the words “shall be final and conclusive and… shall not be challenged, appealed against, reviewed, quashed or called in question in any court”. It went further to provide “… 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”. These words clearly show that Parliament intended to exclude the jurisdiction of the courts. Also, the dispute regarding the validity of the Extra Ordinary Delegates Conference, the election of Datuk M Kayveas and his supporters as President and Office Bearers respectively, the validity of the voting done and the resolutions passed etc. were decisions of a political party on any matter relating to the affairs of the party within s 18C.” [33] With the clear endorsement by the Federal Court in Justin Jinggut on the interpretation of section 18C of the Act 355 by the Court of Appeal in Pendaftar Pertubuhan Malaysia v PV Das, Datuk M Kayveas (Intervener), the issue of whether section 18C of the Act 355 excludes the jurisdiction of the courts in matters relating to political parties is laid to rest by the principle of stare decisis. Thus, we are bound by the Federal Court’s interpretation of the ambit and effect of section 18C of the Act 355. 23 [34] Learned counsel for the Appellants have raised the same principle of stare decisis in respect of the Federal Court decisions of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah, Hulu Langat and another case [2017] 3 MLJ 561 and Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545. Learned counsel for the Appellants have also urged this court to review the Federal Court decision of Justin Jinggut in the light of more recent Federal Court decisions of Semenyih Jaya and Indira Gandhi. Our response is as follows. The Federal Court case of Justin Jinggut deals specifically with the issue of the interpretation of section 18C of the Act 355, which was the sole issue before the High Court in the instant case. The instant case can be distinguished clearly on the facts as well as the issues raised and determined by the Federal Court in both the cases of Indira Gandhi and Semenyih Jaya. [35] It is worthy of note than in both Indira Gandhi and Semenyih Jaya, section 18C of the Act 355 was not referred to for the reason that it was not the issue before the respective Federal Court. In both the cases abovementioned, the Federal Court did not refer to its own decision in Justin Jinggut. Thus, the Federal Court’s interpretation of Justin Jinggut which referred and approved of the Court of 24 Appeal’s decision in the Kayveas case must remain good law and in accordance with the principle of stare decisis, binds this court. [36] As was stated earlier, the facts and issues raised in the instant case can be distinguished from Semenyih Jaya and Indira Gandhi. Semenyih Jaya was a land reference matter in which one of the issues before the court was the interpretation of section 40D (3) of the Land Acquisition Act 1960 (‘LAA’) and the proviso to section 49