DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR [BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS] PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO. R2-25-39-02/2015
Dalam perkara Aturan 53 dan Kaedah (2) & (3) Kaedah-Kaedah Mahkamah 2012;
Dalam Perkara Aturan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012;
Dalam perkara Seksyen 18A, 18B dan 18C Akta Pertubuhan 1966;
Dalam perkara Undang-Undang Kecil Perhimpunan Pilihanraya Agung MIC 2003;
Dalam perkara Perlembagaan The Malaysian India Congress.
1. PAKAS RAO A/L APPLANAIDO
(sebagai Pegawai Awam bagi pihak Malaysian Indian Congress (MIC) selaras Dengan Seksyen 9 (c) Akta Pertubuhan 1966)
2. PALANIVEL A/L K. GOVINDASAMY
3. SOTHINATHAN A/L SINNA GOUNDAR
4. BALAKRISHNAN A/L V. SINNAYAH … PEMOHON-PEMOHON
1. PENDAFTAR PERTUBUHAN MALAYSIA
2. MENTERI DALAM NEGERI … RESPONDEN-RESPONDEN
S. VIGNESWARAN A/L M. SANASEE … PENCELAH YANG DICADANGKAN
DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR [BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS] PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO. 25-37-02/2015
Dalam perkara Aturan 53, kaedah-Kaedah Mahkamah 2012;
Dalam Perkara 10 (1) (c) Perlembagaan Persekutuan Malaysia;
Dalam perkara surat daripada Pendaftar Pertubuhan Malaysia bertarikh 6hb Februari 2015 dengan rujukan nombor JPPM.02(S):165/791/6 Jld. (31)
ditandatangani oleh Mohammad Razin bin Abdullah kepada Parti Malaysian Indian Congress (MIC) (No. Pendaftaran : 122);
Dalam perkara Seksyen 18A, 18B dan 18C, Bahagian 1A, Peruntukan-Peruntukan Yang Terpakai bagi Parti-Parti Politik sahaja, Akta Pertubuhan 1966 (Akta 335) & Peraturan-Peraturan.
K. RAMALINGAM A/L KRISHNAMOORTHY (NO. K/P: 680206-10-6401)
Pemohon dibuat selaku Ahli Jawatan Kuasa Kerja Pusat dan
Pengarah Strategik Parti Malaysian Indian Congress (MIC) … PEMOHON
MOHAMMAD RAZIN BIN ABDULLAH
PENDAFTAR PERTUBUHAN MALAYSIA … RESPONDEN
R2-25-39-02/2015 (ENCLOSURE 8) 25-37-02/2015 (ENCLOSURE 7)
GROUNDS OF JUDGMENT
1. Enclosure 8 was the application filed by the Proposed Intervener one, S. Vigneswaran a/l M. Sanasee, for leave to intervene in the Judicial Review proceedings commenced by one Pakas Rao a/l Applanaido and three (3) others against the Registrar of Societies and Minister for Home Affairs, Malaysia (Application for Judicial Review No: R2-25-39-02-/2015) (“JR 39”).
2. Enclosure 7 was the application filed by the same S. Vigneswaran a/l M. Sanasee for leave to intervene in the Judicial Review proceedings commenced by one K. Ramalingam a/l Krishnamoorthy against Mohammad Razin bin Abdullah and The Registrar of Society (Application for Judicial Review No. 25-37-02/2015) (“JR 37”).
3. The Proposed Intervener had filed Enclosures 38 and 37 respectively at the leave stage of the proceedings of JR 39 and JR 37. Both these applications were supported by the affidavits of S. Vigneswaran affirmed on 5th March 2015.
4. As the two (2) Enclosures were similar in nature and filed by the same Proposed Intervener, I proposed to deal with these two (2) applications in one goal in this Grounds of Judgment.
5. The Proposed Intervener is a member of political party known as the Malaysia Indian Congress (“MIC”). He is also the Chairman of MIC, Klang Division and holds the office of a Senator.
6. On 30th November 2013, MIC held its election for the office bearers of MIC Central Working Committee (“CWC”) as well as three (3) Vice Presidents.
7. After the announcement of the results of the election on 30th November 2013 the MIC members including those candidates who stood for the posts of Vice President and the CWC, including the Proposed Intervener had lodged complaints with the Registrar of Societies, Malaysia (“ROS”) concerning some irregularities and noncompliance of the rules and regulations during the election.
8. Based on the investigation conducted by ROS it was disclosed that there were non-compliance and contraventions of the law such as the MIC Constitutions, MIC Election By-Laws 2003 as well as the Societies Act 1966.
9. Vide its letter dated 6th February 2015, ROS had communicated to
MIC amongst others, the following:
9.1. That the 1st Respondent had investigated the complaints on the illegal formation of branches after year 2012 and found that there was non-compliance of the relevant law as regards the formation of branches after year 2012.
9.2. The ROS acted under Section 3A of the Societies Act 1966, and recommended that MIC to hold a re-election at all branch level, Division level, election of Vice Presidents, election of the office bearers of CWC, election of the President, election of Deputy President, the Women’s Wing including the Putera and Puteri Wing of MIC, to resolve the disputes over identity of the office bearers for the benefit of MIC members as a whole.
9.3. The 1st Respondent recommended that the members of the MIC elected in the 2009 election to form an Interim Central Working Committee (“Interim CWC”) of MIC for the purposes of conducting the re-election.
9.4. The Members of the Interim CWC were advised to form an Election Commission within fourteen (14) days from the date of the said letter to facilitate the election process of MIC.
10. Pursuant to ROS’s letter dated 6th February 2015 on 9th February 2015 MIC had issued a letter wherein MIC agreed to hold the reelection and for members of the Interim CWC to hold office to conduct the re-election.
11. In the media statement dated 1st March 2015, the 2nd applicant stated that he had instructed the 1st applicant to hold a meeting with the members of the Interim CWC on an immediate basis.
12. The MIC members relied on the statements made by the national level leaders including the applicants, in particular, the 2nd applicant who undertook to hold a re-election pursuant to the recommendations of the ROS to put the house back in order.
13. By filing the application for Judicial Review against the respondents, the 2nd applicant had taken a unilateral stand contrary to his earlier stand.
14. MIC is a political party, which had an inherent obligation to act in the interest of the party and its members.
15. The applications for Judicial Review were actions filed by the applicants seeking to quash the decision of the 1st respondent were not collective decision of MIC as the applications herein were commenced without any resolution from the MIC.
THE PROPOSED INTERVENER’S DIRECT INTEREST
16. The Proposed Intervener was one of the candidates who contested in the election for the position of MIC Vice President who complained to the ROS on the irregularities of the 2013 Election.
17. The ROS formed an opinion that there were irregularities as alleged and recommended for a re-election to be held to put the house back in order.
18. As the applicants are challenging the opinion and the recommendation by the ROS through the Judicial Review applications herein, the Proposed Intervener is directly involved in the issues presented for the Judicial Review applications and will be directly affected by the outcome of the proceedings herein.
19. The Proposed Intervener represented the interest of MIC members and it is the paramount interest of MIC to ensure that this Court is presented with complete facts before arriving at a decision in this matter.
THE LAW ON LEAVE TO INTERVENE
20. The Proposed Intervener’s applications for leave to intervene were made pursuant to Order 53 Rule 8 (1) of the Rules of Court 2012 which states:
“O 53 r 8 (1) of the Rules of Court 2012
Upon hearing of an application for judicial review, any person who desires to be heard in opposition to the application and appears to the Judge to be a proper person to be heard may be heard notwithstanding that he has not been served with the cause papers in the matter.”
21. The Proposed Intervener had sought leave to intervene even at the leave stage. Case laws seem to suggest that this could be done. In Advance Synergy Capital Sdn Bhd (formerly known as Advance Synergy Capital Bhd) v. The Minister of Finance, Malaysia & Anor  6 MLJ 376 the Court of Appeal had stated that a proper party or person ought to be granted leave to intervene and be made a party to the proceedings if the person could show that he had a direct interest in the outcome of the Judicial Review Application. The Court of Appeal held:
“(1) There is no plausible reason to exclude a proper party or person to
be granted leave to intervene as a respondent at the leave stage. In such circumstances, inclusivity rather than exclusivity should be the norm, so as to ensure fairness to the party who has a direct interest in the matter.
(2) The second respondent was the recipient of the MOF approval which was now being challenged by way of judicial review. The second respondent was directly involved in the MOF approval and would be directly affected by the outcome of the judicial review proceedings. The second respondent clearly had a direct interest in the outcome of ASC’s application for leave at the threshold stage, and so ought to be added as a
party to the proceedings. In the context herein, justice and fairness dictated the necessary inclusion of the second respondent as a party to canvass their opposition on a subject matter directly affecting their interest. Order 53 r 8(1) could therefore be invoked to allow the second respondent to appear as a proper party to oppose ASC’s application at the leave stage (see para 28).”
The above case was followed by subsequent cases of Wahi bin Saidin & Ors v. Yang Dipertua Majlis Perbandaran Kulim & Ors  8 MLJ 275 and Mohamed Taufiq Teng Abdullah & Ors v. Menteri Sains, Teknologi dan Inovasi Malaysia & Anor (Lynas Corp Ltd & Anor, intended interveners)  9 MLJ 712.
The High Court in Wahi bin Saidin stated as follows:
“The correct test for Order 53 Rule 8(1) would therefore be at pp 319 (MLJ), 418 (CLJ) as laid by the Federal Court in Majlis Agama Islam Selangor v. Bong Boon Chuen & Ors  6 MLJ 307 where the Court states:
I am of the view the use of the phrase ‘proper person’ in O 53 r 8(1) of the RHC must be read as referring to persons with a direct interest…
… As to the application to intervene being made at the leave stage Advance Synergy Capital Sdn Bhd (formerly known as Advance Synergy Capital Bhd) v. The Minister of Finance, Malaysia & anor  6 MLJ 376;  7 CLJ 557 makes it clear this can be so. In this regard it is stated at pp 985 (MLJ, 569 (CLJ):
First of all, it is noteworthy that O 53 is captioned ‘application for judicial review’. The word ‘application’ in this caption would cumulatively cover the two stages ie, the leave application at the threshold stage as well as the substantive stage after leave has been granted. Similarly, the expression ‘an application for judicial review’ in O 53 r 8(1)—(2) would also include the two stages which are the essential characteristics prevailing in an application for judicial review … There is no plausible reason to exclude a proper party or person to be granted leave to intervene as a respondent at the leave stage. In such circumstances, inclusivity rather than exclusivity should be the norm, so as to ensure fairness to the party who has a direct interest in the matter. ”
24. In Mohamed Taufiq Teng Abdullah the High Court held that the proposed interveners were a necessary and proper party who had direct interest in the matter and were adversely affected by the decision of this judicial review proceeding. The inclusion of the proposed interveners as parties was necessary as they were directly affected by the applicants’ application.
25. The Court Appeal in Advance Synergy referred to the Federal Court decision in Majlis Agama Islam Selangor and stated as follows:
In Majlis Agama Islam Selangor v Bong Boon Chuen & Ors  6 MLJ 307 (FC), Zulkefli FCJ explained at p 319  that a proper person or party who has a direct interest may be joined as a party. The well considered judgment of His Lordship refers to the ‘joinder as a party in judicial review’ proceedings. However, the parties before the Federal Court did not address the question of whether the ‘judicial review’
proceedings refer to the two stages or to one stage only ie either the threshold stage or the substantive stage.
Hence, it is our bounden duty to provide an answer. In our view, the resolution thereto depends on the true construction to be placed on the expression ‘application for judicial review’ in O 53 r 8(1). The precise meaning of this expression may be crystallised by a careful consideration of the word ‘application’. This word is to be construed by reference to the maxim noscitur a sociis and in such a manner as to take colour and precision from the context in which it appears or is used in O 53. It is or will be known from its associates.
First of all, it is noteworthy that O 53 is captioned ‘Application For Judicial Review’. The word ‘application’ in this caption would cumulatively cover the two stages i.e. the leave application at the threshold stage as well as the substantive stage after leave has been granted. Similarly, the expression ‘an application for judicial review’ in O 53 r 8(1) and (2) would also include the two stages which are the essential characteristics prevailing in an application for judicial review.
Leave at the threshold stage is a sine qua non to the judicial review proceedings, as the absence of leave would inevitably render the particular judicial review proceedings incomplete and inchoate. By no stretch of imagination can the essential requirement for leave be jettisoned or truncated to leapfrog to the substantive motion. In our view, the submission presented for ASC that leave may be granted to ACE to intervene at the substantive application for judicial review should also apply equally to the threshold stage as well.
There is no plausible reason to exclude a proper party or person to be granted leave to intervene as a respondent at the leave stage. In such circumstances, inclusivity rather than exclusivity should be the norm, so as to ensure fairness to the party who has a direct interest in the matter (I
am grateful to my learned brother Mohamed Apandi bin Ali JCA for this input).
In addition, O 53 r 8(1) confers upon the judge a wide discretion to hear a proper party or person in opposition to an application for judicial review’ so long as the conditions contained therein have been fulfilled, viz:
(a) the person desires to be heard in opposition to the application; and
(b) that person appears to the judge to be a proper person to be heard, notwithstanding that he has not been served with the cause papers in the matter. ”
26. In Tan Bun Teet & Ors v. Minister of Science Technology & Innovation of Malaysia & Anor  1 LNS 910 the High Court held that the Proposed Interveners are necessary and proper party who had a direct interest in the matter and adversely affected by the decision of the judicial review proceedings. In the context herein, justice and fairness dictate the necessary inclusion of the Proposed Intervener as a party to canvass his opposition on a subject matter directly affecting his interest. O. 53 r. 8(1) can therefore be invoked to allow the Proposed Intervener to appear as a party to oppose the applicants’ application in the Judicial Review proceedings.
WHETHER THE INTERVENER NEED TO BE INVOLVED IN THE DECISION MAKING PROCESS
27. ROS is the author of the directives that are sought to be quashed. The law does not require the Proposed Intervener to be a person
directly involved in the decision making process as illustrated in the authorities cited above.
28. In Wahi bin Saidin (supra), the Court held that, to impose the requirement that the proposed intervener must be involved in the decision making process would negate O. 53 r. 8(1) of the Rules of Court 2012.
29. The Judge hearing the leave application has a discretion to direct for the ex-parte leave application be heard inter partes. This principle was laid down in Bandar Utama Development Sdn Bhd & Anor v. Lembaga Lebuhraya Malaysia & Anor  1 MLJ 224, where the High Court observed the following:
“Generally such an application is made ex parte, but it may, at the direction of the Court be heard on a inter partes basis. In the case of R v. Secretary of State, ex p Begum  COD 107, English Court of Appeal observed as follows:
If on considering the papers, the judge comes to the conclusion that he really does not know whether there is or is not an arguable case, the right course is for the judge to invite the putative respondent to attend and make representations as to whether or not leave should be granted…”
30. The Federal Court in Tuan Hj Sarip Hamid & Anor v. Patco Malaysia Bhd 2 MLJ 442 held as follows:
“Through the granting of leave is discretionary, in an application for leave, however, the court is governed by certain principles. These principles are now generally well established. In Association of Bank Officers, Peninsular Malaysia v. Malayan Commercial Bank Association  3 MLJ 228, Ajaib Singh SCJ in delivering the judgment of the Supreme Court observed at p 229: The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application. In Dr. Amir Hussein bin Baharuddin v. Universiti Sains Malaysia  3 MLJ 298, Edgar Joseph Jr J (as he then was) also heard the application for leave on an inter partes basis, ‘having regard to the importance and the novelty of the issues raised’.”
31. Based on the aforesaid, I am of the view that Proposed Intervener ought be granted leave to intervene as a respondent in these Judicial Review proceedings even at the leave stage as the Proposed Intervener has satisfied the Court that he is the proper person who has a direct interest and directly affected by the outcome of JR 39 and 37. The proposed Intervener is therefore granted leave to intervene in these Judicial Review proceedings and be made the respondent.
(ASMABI BINTI MOHAMAD)
HIGH COURT SPECIAL AND APPELLATE POWERS
Date of Grounds : 17th June 2015
Date of Decision : 24th April 2015
Date of Notice of Appeal : 15th May 2015
1. Messrs Arbain & Co.
Advocate & Solicitor
For and on behalf the Applicants Suite 5.3, 5th Floor Wisma Bandar,
No. 18 Jalan Tuanku Abdul Rahman 50100 KUALA LUMPUR
[Ref: V/JR/986/15] … Mr. Jadadish Chandra,
(Mr. R Thayalan, Mr. M. Karuppayan, Dato’ Ganesan, and Dato’ S Murugesan with him)
2. Tetuan Vas & Co.
Peguam Bela & Peguam Cara
Bagi Pihak Pencelah Yang Dicadangkan
No. 14-1 Jalan Remia 5/KS6,
Banadar Botanic 41200 Klang Selangor Darul Ehsan
[Ref: V/JR/986/15] … Ms. Vasanthi Arumugam
[Ref: V/JR/987/15] (Mr. Porres Royan with her)
3. Tetuan Najiana Wan Balbir
Peguam Bela & Peguam Cara No. 11-2, Jalan Solaris 3 Solaris Mont Kiara,
50480 Kuala Lumpur
[Ref: NWB/L/20/2551/15] … Mr. Lim Choon Khin
(Mr. Balbir Singh with him)
4. Peguam Kanan Persekutuan,
Jabatan Peguam Negara, Malaysia
(Civil Division) Aras 3, Blok C3,
Pusat Pentadbiran kerajaan Persekutuan 62512 PUTRAJAYA
Mr. Amarjeet Singh (Ms. Suzana binti Atan with him)
[Ref: PN/WKL/HQ/11/14/2015] [Ref: PN/WKL/HQ/11/15/2015]