R2-25-37-02/2015K. Ramalingam A/L Krishnamoorthy(No. K/P: 680206-10-6401)Permohonan Dibuat Selaku Ahli Jawatankuasa Kerja PusatDan Pengarah Startegik Parti Malaysian Indian Congress … PemohonDan1. Mohammad Razin Bin AbdullahPendaftar Pertubuhan Malaysia2. S. Vigneswaran A/L M Sanasee3. Saravanan A/L Murugan Sebagai Wakil BagiJawatankuasa Kerja Pusat Malaysian Indian Congress 2009 … Responden-RespondenR2-25-39-02/20151. Pakas Rao A/L Applanaidoo(Sebagai

  

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR [BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS] PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO. R2-25-37-02/2015

 

Dalam Perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012;

 

Dan

 

Dalam Perkara 10(1) (c) Perlembagaan Persekutuan Malaysia;

 

Dan

 

Dalam Perkara Surat daripada Pendaftar Pertubuhan Malaysia bertarikh 6hb Februari 2015 dengan rujukan nombor JPPM.02(S):165/791/6 Jld 2. (31)

 

ditandatangani oleh Mohammad Razin bin Abdullah kepada Parti Malaysian Indian Congress (MIC) (No. Pendaftaran: 122);

 

Dan

 

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.

 

ANTARA

 

K. RAMALINGAM A/L KRISHNAMOORTHY

 

(No. K/P: 680206-10-6401)

 

Permohonan dibuat selaku Ahli Jawatankuasa Kerja Pusat

 

Dan Pengarah Startegik Parti Malaysian Indian Congress … PEMOHON

 

DAN

 

1. MOHAMMAD RAZIN BIN ABDULLAH

 

PENDAFTAR PERTUBUHAN MALAYSIA S. VIGNESWARAN A/L M SANASEE SARAVANAN A/L MURUGAN sebagai wakil bagi

 

Jawatankuasa Kerja Pusat Malaysian Indian Congress 2009 … RESPONDEN-

 

RESPONDEN

 

(Didengar bersama)

 

i

 

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 Kaedah-Kaedah Mahkamah 2012;

 

Dan

 

Dalam Perkara 92 Kaedah 4 kaedah-kaedah Mahkamah 2012;

 

Dan

 

Dalam Perkara Seksyen 18A, 18B dan 18C, Akta Pertubuhan 1966;

 

Dan

 

Dalam Perkara Undang-Undang Kecil Perhimpunan Pilihanraya Agung MIC 2003;

 

Dan

 

Dalam Perkara Perlembagaan The Malaysian Indian Congress.

 

ANTARA

 

1. PAKAS RAO A/L APPLANAIDOO

 

(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

 

DAN

 

1. PENDAFTAR PERTUBUHAN MALAYSIA

 

2. MENTERI DALAM NEGERI MALAYSIA

 

3. S. VIGNESWARAN A/L M. SANASEE

 

4. SARAVANAN A/L MURUGAN sebagai wakil bagi

 

Jawatankuasa Kerja Pusat Malaysian Indian Congress 2009 … RESPONDEN-

 

RESPONDEN

 

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GROUNDS OF JUDGMENT

 

INTRODUCTION

 

1. On 30th November 2013 the Malaysian Indian Congress (“MIC”) held its party elections for the office bearers of the MIC Central Working Committee (“CWC”), the posts of three (3) Vice Presidents, and certain Branch and Division Committee. Since the announcement of the election results on 30th November 2013 the members of the MIC, including several candidates for the posts of the Vice Presidents and the CWC had lodged complaints with the Registrar of Societies (“ROS”) on the irregularities and non-compliance of the MIC’s Constitution, the MIC Election By-Laws 2003 and the provisions of the Societies Act 1966 (“Act”) in the 2013 MIC elections.

 

2. After conducting his own investigations relating to the complaints lodged with him, the ROS had issued a letter dated 5th December 2014 notifying the MIC that there were various transgressions of the MIC’s Constitution, the MIC Election By-Laws 2003 and the provisions of the Act in the 2013 MIC elections and requested the MIC to remedy these transgressions, resolve the dispute or conduct limited elections of the affected posts. The ROS then granted the MIC thirty (30) days for the branch re-elections, 60 days for the divisional re-elections in eight (8) divisions and ninety (90) days effective from the 5th December 2014 respectively for the re-election for the CWC and the Vice Presidents posts respectively.

 

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3. Following from the 5th December 2014 letter there was a series of correspondence between the MIC and the ROS pertaining to the alleged transgressions in the 2013 MIC elections. The letters by the ROS dated 5th December 2014 and 31st December 2014 issued to the MIC respectively were significant as these letters relate to the circumstances the ROS had formed his opinion that disputes exist in the MIC as a result of which the ROS was not satisfied as to the identity of the properly constituted office-bearers in respect of certain branches and divisions and the Vice Presidents and CWC respectively. This had led to the issuance of the letter dated 6th February 2015 pursuant to section 3A of the Act, in order to give effect to the section 16 (1) notice.

 

4. The letters from the MIC to the ROS dated 24th December 2014, 2nd January 2015, 5th February 2015 and 9th February 2015 respectively were also significant especially the letters dated 5th February 2015 as the MIC through the 2nd Applicant had admitted that there were transgressions in the 2013 MIC elections at certain levels and informed the ROS of an agreement by MIC to hold fresh elections for all posts at all the MIC levels.

 

5. The three (3) impugned letters issued by the ROS had caused much dissatisfaction and anxiety among some the MIC members, which had led to the filing of two (2) Judicial Review Applications fixed before me.

 

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6. The first application was filed by one Ramalingam A/L Krishnamoorty, who had commenced the Judicial Review Application No. R2-25-37-02-2015 (“JR 37”) seeking for the reliefs, amongst others, a certiorari to quash the letter dated 6th February 2015.

 

7. Apart from Ramalingam A/L Krishnamoorty, four (4) other Applicants, Pakas Rao A/L Appanaidoo, Palanivel A/L K. Govindasamy, Sothinathan A/L Sinna Goundar and Balakrishnan A/L V. Sinnayah who were also aggrieved by the contents of the letters dated 5th December 2014, 31st December 2014 and 6th February 2015 respectively issued by the ROS to the MIC had also commenced the Judicial Review Application No. R2-25-39-02-2015 (“JR 39”), against the ROS and the Minister for Home Affairs Malaysia seeking for various reliefs and, amongst others, a certiorari to quash the said three letters issued by the ROS.

 

8. On 20th March 2015, this Court had granted the Applicants in both these Judicial Review Applications leave to move the Court for various reliefs, amongst others, a certiorari to quash the three (3) letters dated 5th December 2014, 31st December 2014 and 6th February 2015 respectively.

 

9. The JR 37 and JR 39 were fixed for hearing before me on 27th May 2015 respectively. At the outset Mr. R. Thayalan, the learned Counsel for the Applicant in JR 37 informed the Court these two Judicial Review Applications would be heard together and the learned Counsel would be making only one submission applicable to both JR

 

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37 and JR 39 respectively. After hearing the submissions by the respective party, I then adjourned the case for decision to 12th June 2015 and on this date I dismissed both JR 37 and JR 39 with costs of RM30,000 for each case awarded to the original Respondents and RM15,000 each to the 3rd Respondent respectively. As the learned Counsel for the 4th Respondent did not wish to pursue the issue of costs no order as to cost was ordered to the 4th Respondent.

 

THE APPLICATIONS JR 37

 

10. The JR 37 was filed by the Applicant, one K. Ramalingam a/l Krishnamoorthy, CWC member of the MIC seeking for an order of certiorari to quash the directions made by the 1st Respondent, the ROS pursuant to section 3A of the Act vide the ROS’s letter dated 6th February 2015 issued to the MIC.

 

11. The grounds relied by the Applicant were as follows (see paragraph of 4 of Enclosure 2):

 

11.1. The ROS has acted mala fide and ultra vires by deliberately issuing directions under section 3A of the Act against the MIC instead of resorting to the provisions of sections 18B and 18C of the Act which apply solely to political parties; and

 

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11.2. The section 3A directions deprive him of his fundamental liberty guaranteed under Article 10(1) (c) of the Federal Constitution (“FC”).

 

JR 39

 

12. JR 39, on the other hand was an application filed by four 4 Applicants herein who had identified and or described themselves in their Order 53 Statement (see paragraph 1 of Enclosure 2) as follows:

 

12.1. The 1st Applicant, Pakas Rao a/l Appanaidoo as the Public Officer and the Secretary General of MIC;

 

12.2. The 2nd Applicant, Palanivel a/l K. Govindasamy as the President of MIC;

 

12.3. The 3rd Applicant, Sothinathan a/l Sinna Goundar as the Vice-President of MIC; and

 

12.4. The 4th Applicant, Balakrishnan a/l V. Sinnayah as the VicePresident of MIC.

 

13. The Applicants in JR 39 had expressly stated that they are aggrieved with the decisions of the ROS made in the letters dated 5th December 2014, 31st December 2014 and 6th February 2015 respectively and brought the Judicial Review proceedings in their capacity as the office-bearers and the CWC members of the MIC (see paragraph 3

 

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of the Statement in Enclosure 2). In JR 39 the Applicants sought for

 

the following reliefs:

 

13.1. an order of certiorari to quash the decisions and/or directions made by the ROS in the letters dated 5th December 2014, 31st December 2014 and 6th February 2015 respectively (“the said letters”);

 

13.2. a declaration that the decisions and/or directions in the said letters are unlawful and have no legal effect;

 

13.3. a declaration that the decisions and/or directions in the said letters are ultra vires sections 18B and 18C of the Act;

 

13.4. a declaration that the decisions and/or directions in the said letters violate Article 10(1)(c) of the Federal Constitution;

 

13.5. a declaration that the decisions and/or directions in the said letters violate the MIC Constitution;

 

13.6. a declaration that matters concerning elections of a political party are subject to the constitution of the political party and not the opinion of the ROS;

 

13.7. a declaration that the decisions of the Annual General Meeting (“AGM”) of the MIC held on 30th November 2013 are lawful and in force;

 

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13.8. declaration that the decision of the Election Committee Chairman of the party is lawful and binds all the members of the MIC; and

 

13.9. a declaration that the results of the branch and division elections cannot be questioned after the national elections of the MIC are completed.

 

14. In JR 39, the Applicants have also named the Minister of Internal Affairs (“Minister”) as the 2nd Respondent herein however in their Order 53 Statement the Applicants have not pleaded and or cited the alleged decision, action or omission of the Minister which they were seeking to quash.

 

15. The Applicants in JR 39 had stated the grounds on which the orders were sought as follows:

 

15.1. The decisions and/or directions in the said letters are ultra vires the MIC’s Constitution and the By-laws of the MIC General Assembly Elections 2003 (see Paragraphs 1 to 3 and 6 of Enclosure 2).

 

15.2. The decisions and/or directions in the said letters (Paragraph 4 of Enclosure 2):

 

15.2.1. Were made without reasonable notice, arbitrarily and without giving the MIC the right to be heard;

 

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15.2.2. Had taken into consideration irrelevant factors and did not take into consideration relevant factors; and

 

15.2.3. Showed that the ROS did not act independently or reasonably.

 

15.3. The decisions and/or directions contained in the said letters were beyond the jurisdiction of the ROS and/or were abuses of power (Paragraph 5 of Enclosure 2).

 

15.4. Sothinathan a/l Sinna Goundar (“the 3rd Applicant”) and Balakrishnan a/l V. Sinnayah (“the 4th Applicant”) respectively are aggrieved by the decisions and/or directions in the said letters which would nullify their victories in the 2013 MIC elections (Paragraph 7 of Enclosure 2);

 

15.5. The decision that requires all Divisions and Branches of MIC to carry out re-elections is unreasonable because only eight (8) out of 150 Divisions and only 2 out of 3500 Branches were found by the ROS to have problems (Paragraph 8 of Enclosure 2);

 

15.6. The ROS failed to consider section 18B of the Act when deciding that the elections held at the AGM on 30.11.2013 were invalid and that the MIC is protected by section 18C of the Act (Paragraph 9 of Enclosure 2);

 

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15.7. The decisions and/or directions in the said letters were tainted with biasness and mala tides because the ROS did not make the decision independently but acted merely on bare complaints (Paragraph 10 of Enclosure 2);

 

15.8. The decisions and/or directions in the said letter violate the MIC’s rights under the FC (Paragraph 11 to 12 of Enclosure 2); and

 

15.9. The decisions and/or directives in the said letters are unlawful, invalid and void and have no legal effect.

 

16. In both JR 37 and JR 39, S. Vigneswaran a/l M. Sanasee (“3rd Respondent”) and Saravanan a/l Murugan (4th Respondent) were granted leave to intervene and be heard in opposition of both these Judicial Review Applications.

 

THE DOCUMENTS

 

17. For the purpose of JR 37 and JR 39 the following documents were referred to by the Court:

 

JR 37

 

17.1. Notice of Application dated 23rd February 2015 (“JR 37”) (“Enclosure 1”);

 

ii

 

17.1.1. Statement Pursuant to Order 53 of K. Ramalingam A/L Krishnamoorthy dated 23rd February 2015 (“Enclosure 2”);

 

17.1.2. Affidavit in Support affirmed by K. Ramalingam A/L

 

Krishnamoorthy dated 23rd February 2015

 

(“Enclosure 3”);

 

17.1.3. Affidavit in Support affirmed by K. Ramalingam A/L

 

Krishnamoorthy dated 23rd February 2015

 

(“Enclosure 5”);

 

17.1.4. Notice of Hearing for Judicial Review dated 30th March 2015 (“Enclosure 12”);

 

17.1.5. Affidavit in Reply affirmed by A. Vigneswaran A/L M.

 

Sanasee dated 30th March 2015 (“2nd

 

Respondent’s Affidavit in Reply”) (“Enclosure

 

13”);

 

17.1.6. Affidavit in Reply affirmed by Dato’ Mohammad Razin Abdullah dated 12th May 2015 (“Enclosure 32”);

 

17.1.7. Affidavit in Reply by 3rd Respondent affirmed by Saravanan A/L Murugan dated 15th May 2015 (“Enclosure 38”); and

 

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17.1.8. Affidavit in Reply by Respondents affirmed by Dato’ Mohammad Razin Abdullah dated 21st May 2015 (“Enclosure 39”).

 

JR 39

 

17.2. Notice of Application dated 24th February 2015 (“JR 39”) (“Enclosure 1”);

 

17.2.1. Statement Pursuant to Order 53 of Pakas Rao A/L Applanaidoo, Palanivel A/L K. Govindasamy, Sothinathan A/L Sinna Goundar and Balakrishnan A/L V. Sinnayah dated 24th February 2015 (“Enclosure 2”);

 

17.2.2. Affidavit verifying the Judicial Review Application by Pakas Rao A/L Applanaidoo dated 24th February 2015 (“Enclosure 3”);

 

17.2.3. Additional Affidavit of 3rd Applicant by Sothinathan A/L Sinna Goundar dated 25th February 2015 (“Enclosure 4”);

 

17.2.4. Additional Affidavit of 2nd Applicant by Palanivel A/L K. Govindasamy dated 25th February 2015 (“Enclosure 5”);

 

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17.2.5. Additional Affidavit of 4th Applicant by Balakrishnan A/L V. Sinnayah dated 26th February 2015 (“Enclosure 7”);

 

17.2.6. Notice of Hearing for Judicial Review dated 30th March 2015 (“Enclosure 12”);

 

17.2.7. Affidavit in Reply 3rd Respondent affirmed by S. Vigneswasran a/l M. Sanasee dated 30th March 2015 (“Enclosure 15”);

 

17.2.8. Affidavit in Reply by 1st Respondent and 2nd

 

Respondent affirmed by Dato’ Mohammad Razin bin Abdullah dated 12th May 2015 (“Enclosure 38”);

 

17.2.9. Affidavit in Reply by 1st Respondent and 2nd

 

Respondent dated 12th May 2015 (“Enclosure 39”);

 

17.2.10. Affidavit in Reply by 1st Respondent and 2nd

 

Respondent dated 12th May 2015 (“Enclosure 40”);

 

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17.2.11. Affidavit in Reply by 4th Respondent affirmed by Saravanan a/l Murugan dated 15th May 2015 (“Enclosure 44”);

 

17.2.12. Affidavit in Reply by Applicants affirmed by Pakas Rao a/l Applanaidoo dated 20th May 2015 (“Enclosure 46”);

 

17.2.13. Affidavit in Reply by Applicants dated 20th May 2015 (“Enclosure 47”);

 

17.2.14. Affidavit in Reply by Applicants dated 20th May 2015 (“Enclosure 48”);

 

17.2.15. Affidavit in Reply (2) by 1st and 2nd Respondent affirmed by Dato’ Mohammad Razin bin Abdullah dated 21st May 2015 (“Enclosure 51”);

 

17.2.16. Affidavit in Reply (2) by 3rd Respondent affirmed by S. Vigneswaran a/l M. Sanasee dated 22nd May 2015 (“Enclosure 54”); and

 

17.2.17. Affidavit in Reply by Applicants affirmed by Pakas Rao a/l Applanaidoo dated 26th May 2015 (“Enclosure 55”).

 

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THE CHRONOLOGY OF EVENTS

 

18. The material facts, which gave rise to these two (2) Judicial Review Applications, could be gleaned from the series of correspondence between the MIC and the ROS. The learned Senior Federal Counsel (“the SFC”) of Counsel of the 1st and 2nd Respondents had narrated the chronology of events in the learned SFC’s Submissions at great length and I could not do any better than to adopt the chronology of events narrated by the learned SFC with some modifications wherever necessary as follows:

 

Letter by ROS dated 5th December 2014 (“the 1st impugned letter”)

 

18.1. In the 1st impugned letter the ROS informed the Secretary General of MIC (see Exhibit “MRA-2” of Enclosure 40)

 

that his department had investigated the complaints it received from members of the MIC with respect to the elections of the CWC and Vice-Presidents posts held on 30th November 2013 and certain Branch and Division Committee elections. According to the ROS, his investigations revealed there was evidence that the elections were not conducted in accordance with the MIC’s Constitution and the Act.

 

18.2. With respect of the CWC and Vice-Presidents’ elections the ROS found the following transgressions:

 

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18.2.1. The delegates from the Putera and Puteri Wings of the MIC were denied the right to vote and this violated Article 75.3 of the MIC’s Constitution;

 

18.2.2. 67 rightful delegates were denied the status as delegates to the AGM where the delegates in attendance exceeded the 1,500 figure stated in Article 74.1 of the MIC’s Constitution; and

 

18.2.3. The results of the election, after the counting of the votes, were inconsistent with the number of valid ballot papers (1,396 votes) as the final count showed a higher figure (1,424 votes) than the valid ballot papers.

 

18.3. With respect to the branch and division elections the ROS

 

identified the following transgressions:

 

18.3.1. Branches were set up in the election year in violation of Article 17.10 of the MIC’s Constitution in four (4) divisions;

 

18.3.2. Deceased members from two (2) divisions were taken into account so as to increase the delegates for the CWC and Vice-Presidents elections in violation of Article 75.1 of the MIC’s Constitution;

 

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18.3.3. Failure to hold re-elections pursuant to section 18B(2) of the Act for posts where the members were disqualified to hold posts in one (1) division and 2 branches;

 

18.3.4. Sending delegates from a branch whose approval for registration had lapsed under section 12(6) of the Act; and

 

18.3.5. Allowing a branch Chairman to hold the post after he was deemed to have resigned from the said post pursuant to Article 37.4 of the MIC’s Constitution and allowing the same person to hold the post of Chairman of a division.

 

19. In order to resolve the problems and or issues faced by MIC, the ROS had communicated to the MIC of his hope that MIC could carry out re-elections with respect to (see page 2 paragraph 5 of the 1st impugned letter):

 

19.1. The two (2) affected branches within thirty (30) days from 5th December 2014;

 

19.2. The eight (8) affected divisions within sixty (60) days from 5th December 2014;

 

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19.3. The CWC and Vice-Presidents posts within ninety (90) days from 5th December 2014; and

 

19.4. The four (4) posts in three (3) divisions and one (1) post in one (1) branch within thirty (30) days.

 

20. The ROS had made it clear that he was merely seeking the MIC’s cooperation to carry out the re-elections to avoid the serious consequence of cancellation of the MIC’s registration. This could be gleaned from the following paragraphs of the said 1st impugned letter:

 

“Dalam hubungan ini, setelah semua siasatan di pelbagai peringkat pemilihan Jawatankuasa MIC selesai dijalankan, JPPM telah memutuskan untuk meminta kerjasama pihak MIC supaya mengambil langkah-langkah pembetulan bagi mengelakkan implikasi yang lebih berat kepada parti MIC.

 

Sekiranya pihak MIC gagal atau lewat melaksanakan saranan-saranan JPPM ini, maka kuatkuasa di bawah Akta Pertubuhan 1966 (Akta 335) khususnya di bawah Seksyen 13 akan diambil yang boleh menjurus kepada pembatalan pendaftaran MIC. ”

 

Letter by MIC dated 24th December 2014 (“the MIC’s 1st reply”)

 

21. The Secretary General of MIC responded to the 1st impugned letter vide a letter dated 24th December 2014 refuting all the transgressions found by the ROS. In his response, the Secretary General of MIC provided detailed explanations to each and every alleged

 

19

 

transgression stated therein (see Exhibit “MRA-3” of Enclosure 40). The Secretary General further said that in any event the MIC would wait for the ROS’s response on the MIC’s clarifications and for the ROS to withdraw the call for re-elections.

 

22. From the 1st MIC’s reply it was obvious that the MIC was not going to adhere to the ROS’s call for cooperation to carry out the re-elections.

 

Letter by ROS dated 31st December 2014 (“the 2nd impugned letter”)

 

23. The ROS responded to MIC’s 1st Reply by answering each of the explanations given by the Secretary General of MIC and stated that the explanations were in fact evidence of disputes existing in the MIC.

 

24. The ROS then made it clear in the 2nd impugned letter, that the said letter “is a notice pursuant to section 16(1) of the Act”. This could be gleaned from the following wordings:

 

“Sehubungan itu, JPPM dengan ini menyampaikan notis yang dikeluarkan di bawah seksyen 16(1) Akta Pertubuhan 1966 (Akta 335), notis yang mana secara nyata memberitahu MIC bahawa JPPM berpendapat satu pertikaian telah timbul dalam parti MIC berhubung siapakah pemegang Ahli Jawatankuasa Parti MIC di beberapa cawangan, beberapa bahagian, Naib Presiden, Ahli Jawatankuasa Kerja Pusat (CWC).” (see Paragraph 19).

 

25. In this letter the ROS had also made it clear that the MIC was to settle the disputes as follows:

 

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“MIC dikehendaki menyelesaikan sepenuhnya pertikaian ini dalam jangka masa 30 hari untuk pertikaian peringkat cawangan, 60 hari untuk pertikaian peringkat Bahagian dan 90 hari untuk Naib Presiden dan Jawatankuasa Kerja Pusat (CWC) dari tarikh 5/12/2014” (see paragraph 19).

 

26. The ROS had also cautioned the MIC that if the MIC failed to comply with the section 16(1) notice, he would, upon the expiry of 90 days from 5th December 2014, issue a notice for the cancellation of MIC’s registration pursuant to section 13(1)(c)(ix) of the Act (paragraph 19).

 

Letter by MIC dated 2nd January 2015 (“the MIC’s 2nd Reply”)

 

27. In the MIC’s 2nd Reply, the Secretary General of MIC while asserting without prejudice the MIC’s rights in the matter nevertheless requested for an extension of time to settle the disputes within 60, 90 and 120 days respectively from 31st December 2014, which was the date of the section 16(1) notice to the MIC, instead of 5th December 2014 (see Exhibit “MRA-5” of Enclosure 40).

 

Letter by ROS dated 6th January 2015 (“the 3rd impugned letter”)

 

28. In the 3rd impugned letter the ROS while granting the extension of time as requested by the Secretary General in the 2nd MIC’s Reply dated 2nd January 2015 had also made it very clear that the MIC was required to produce evidence of the settlement of the disputes and the proper appointment of the lawful office-bearers to him as

 

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required by section 16(1) of the Act within the extended time (see Exhibit “MRA- 6” of Enclosure 40 and pages 21 to 22 of Tab 5, Respondent’s Core Bundle of Documents) in the following words:

 

“Selaras dengan Notis yang telah diberikan dalam surat JPPM tersebut, pihak Tuan dikehendaki mengemukakan bukti terhadap penyelesaian pertikaian berkenaan siapakah pemegang ahli jawatankuasa parti MIC di beberapa Cawangan, Bahagian dan Naib Presiden dan perlantikan teratur pemegang ahli jawatankuasa kerja (CWC) parti MIC tersebut dalam jangkamasa yang telah diberikan di perenggan 5 di atas. Semua pertikaian tersebut perlu diselesaikan dimana ianya memuaskan hati Pendaftar. ”

 

Letter by MIC dated 5th February 2015 (“the crucial letter”)

 

29. The President of MIC (the 2nd Applicant) in a letter dated 5th February 2015 with the heading stated as “PENYELESAIAN ISU-ISU YANG BERBANGKIT BERKENAAN PILIHANRAYA PARTI MALAYSIAN INDIAN CONGRESS (MIC)” had made specific reference to the ROS’s letter dated 5th December 2014 which relate to alleged transgressions in the election of the MIC at certain levels as well as the ROS’s letter dated 31st December 2014, which is a section 16(1) notice to the MIC to settle the disputes in the MIC. By the said letter to the 2nd Applicant had notified the ROS of an agreement by the MIC to hold fresh elections for all posts and at all MIC’s levels in the following words (see Exhibit “MRA-9” of Enclosure 40):

 

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“Saya ingin mengesahkan bahawa pihak MIC telah bersetuju dengan YAB Perdana Menteri semasa perjumpaan tersebut bahawa Parti MIC akan mengadakan pemilihan baru (fresh elections) bagi kesemua jawatan Parti. Pemilihan baru ini akan merangkumi pemilihan bagi kesemua Cawangan, Bahagian,

 

Presiden, Timbalan Presiden, Naib-Naib Presiden,

 

Jawatankuasa Kerja Pusat, Pemuda serta Wanita MIC.

 

Parti MIC memerlukan masa yang munasabah untuk mengambil langkah-langkah yang sewajarnya untuk memastikan isu-isu yang dibangkitkan sebelum ini diselesaikan supaya tidak timbul lagi isu pada pemilihan baru tersebut. Maka tempoh masa yang dicadangkan di atas adalah sangat munasabah. ”

 

30. In view of this agreement, the ROS was asked to withdraw the section 16(1) Notice and the ROS’s letter dated 5th December 2014. The request was stated in the following words:

 

“Berdasarkan penyelesaian yang dipersetujui bagi menyelesaikan isu-isu yang berbangkit daripada pilihanraya Parti MIC pada tahun 2013, saya berharap agar pihak Tuan menarik balik Notis bertarikh 31.12.2014 dan surat bertarikh 5.12.2014 dengan syarat Parti MIC mematuhi terma-terma penyelesaian seperti yang dinyatakan di atas.”

 

31. The President of MIC had also requested in this letter that certain matters must be addressed and he had ended the letter by seeking the consideration and good-will of the ROS as follows,

 

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“Pertimbangan serta jasa baik Tuan dalam hal ini amat dihargai”. The matters in question referred to by the President were:

 

31.1. That an interim CWC must be set-up as only the CWC is the authority under the MIC’s Constitution that can call for party elections. In this regard the President urged (menyeru) the ROS for the 2013 CWC to be allowed to function as the interim CWC;

 

31.2. That the interim CWC’s powers are only to call for the party elections and in respect of all matters concerning the carrying out of the elections and no other matters;

 

31.3. That he as the President be allowed to take charge of the day to day administration of the MIC so that the administration of the MIC is not compromised by limiting the powers of the interim CWC to only holding elections; and

 

31.4. The President also suggested that the branch elections be held in June and July 2015 respectively, the Presidential elections be held in August 2015, the Division elections be held in September 2015 and followed by the Deputy President, Vice-Presidents, CWC members, Youth Leader and Women Leader elections in October 2015.

 

32. Pursuant to this letter, it is clear that the President of MIC was asking the ROS to give directions to the MIC so that there is legal

 

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authorization to carry out the re-elections at all levels of the party in view of the settlement reached by the disputing parties in the MIC.

 

33. The Court noted that this crucial letter, which would have some effect on these Judicial Review Applications surprising, was not brought to the Court’s knowledge. This is evidenced by the fact that this crucial letter was not exhibited in the Affidavits filed herein for the to take cognisance during the leave stage or in any of the cause papers filed by both the Applicants in the substantive stage, be it, in their Order 53 Statements or the Affidavits filed herein in support of the Judicial Review Applications (see Exhibit “MRA-9” of Enclosure 40 and pages 23 to 24 of Tab 6, Respondent’s Core Bundle of Documents). I am of the view this crucial letter is fatal to both these applications as this letter has completed the factual matrix and explained the action of the ROS in making the directions stated in the letter dated 6th February 2015 (see Exhibit “MRA-11” of Enclosure 40). Without this letter, the directions issued in the letter dated 6th February 2015 would appear to have been made without any basis and given rise to the complaint that the ROS had acted ultra vires or illegally as alleged by the Applicants.

 

34. The reason the letter dated 5th February 2015 was communicated to the ROS was to bring to the attention of the ROS that a settlement had been reached, fresh elections were to be held at all levels of the MIC to settle the issues that arose out of the 2013 MIC elections and for the section 16(1) notice issued by ROS to be eventually withdrawn.

 

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35. It could not be denied that from the clear words of the crucial letter there was in fact an admission by the President of MIC, the 2nd Applicant in JR 39 herein, that there were disputes concerning the MIC’s elections held in 2013. This could be gauged from the following extract of the crucial letter as follows (see Exhibit “MRA-9” of Enclosure 40):

 

“Parti MIC memerlukan masa yang munasabah untuk mengambil langkah-langkah yang sewajarnya untuk memastikan isu-isu yang dibangkitkan sebelum ini diselesaikan supaya tidak timbul lagi pada pemilihan baru tersebut.

 

Berdasarkan penyelesaian yang dipersetujui bagi menyelesaikan isu-isu yang berbangkit daripada pilihanraya Parti MIC pada 2013, saya berharap agar pihak Tuan menarik balik Notis bertarikh 31 Disember 2014 dan surat bertarikh 5 Disember 2014… “

 

Letter by the ROS dated 6th February 2015 (the 3rd impugned letter)

 

36. The ROS responded almost immediately on 6th February 2015, a day after he received the crucial letter (see Exhibit “MRA-11” of Enclosure 40) and in his reply the ROS made specific reference to the President’s letter dated 5th February 2015 and quoted the letter dated 5th December 2014, 31st December 2014 and 6th January 2015 respectively. Firstly the ROS notified the MIC that he was satisfied

 

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there two (2) more transgressions occurred in the 2013 MIC elections which were:

 

36.1. Participation by delegates from branches set up in the election year; and

 

36.2. Participation of persons from illegal branches.

 

37. The ROS emphasized that the participation of persons from the illegal branches is a very serious offence, which has rendered the 2013 elections and the General Assembly Meeting null and void.

 

38. The ROS then focused on the matters raised by the President and made it clear that he was exercising his powers under section 3A of the Act. The following directions were issued to the MIC to carry out the re-elections:

 

38.1. That the re-elections for all levels of office-bearers are to be held as follows:

 

38.1.1 Branch elections in April 2015;

 

38.1.2 Presidential election in May 2015;

 

38.1.3 Division elections in June 2015;

 

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38.1.4 The Women, Youth, Putera and Puteri elections between April to June 2015; and

 

38.1.5 The Deputy President, Vice-Presidents, the CWC elections and the General Assembly be held in July 2015

 

38.2. The CWC elected in 2009 will be the interim CWC until the re-elections are all completed.

 

38.3. This interim CWC is required to set-up an election committee to carry out the re-elections.

 

38.4. The delegates must come from the branches existing as at 2012. (Pertaining to this direction the ROS had clarified in his Affidavit affirmed on 21st May 2015 that there was an error in his earlier direction and what the ROS meant was that the delegate must come from the branches existing as at 2012 and not that the delegates must be from the branches established in 2012. This is also in line with the intention of the MIC to have re-election for all post at all levels).

 

38.5. A cleaning-up exercise is to be carried out to ensure that only valid and qualified branches participate in the fresh elections;

 

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38.6. To submit to his office the list of all the Divisions and Branches of MIC within fourteen (14) days.

 

Letter by MIC dated 9th February 2015 (the MIC’s 3rd Reply)

 

39. In this letter the President of the MIC responded to the ROS’s letter dated 6th February 2015 denying the new transgressions found by the ROS and reiterating the MIC’s position to hold fresh elections as stated in the MIC’s letter dated 5th February 2015 (see Exhibit “MRA-12” of Enclosure 40).

 

40. In the same letter, the President set out the CWC elected in the 2009 MIC elections as directed by the ROS but added 3 other names to the list whom he himself appointed. It was also noted that at no time did the President object to the ROS’s suggestion for the 2009 CWC to conduct and take charge of the re-elections. Instead the President had renewed his request for time to be extended to carry out the directions imposed by the ROS and ended the letter by stating, “Saya berharap pihak Tuan memberi pertimbangan sewajarnya dalam perkara ini”.

 

41. The ROS did not reply this letter and the chronology of events ended at this juncture before the Applicants filed the above Judicial Review Applications on the 23rd and 24th February 2015 respectively.

 

42. The above chronology of events clearly showed that each letter between the ROS and the MIC was connected and therefore ought to

 

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be considered cumulatively in order to understand the whole factual matrix which led to the JR 37 and JR 39 herein. It is to be noted that each of these letters was significant and had the impact on the outcome of the ROS’s said letters and these Judicial Review Applications. Hence it would not be fair to the parties in dispute if this Court was to treat these letters in isolation and merely focused on the said letters which the Applicants had sought this Court to quash without considering the factual background and the real reason behind the 6th February 2015 letter.

 

GROUNDS OF CHALLENGE

 

Whether there was in fact a Section 16 (1) Notice and/or a Section 3A

 

Directions or both

 

43. From the chronology of events as set out herein it could be deduced that there were in fact two decisions made by the ROS. The first relate to the decision to issue the section 16(1) notice to the MIC as stated in the 2nd impugned letter dated 31st December 2014. The basis of this decision was that the ROS was of the opinion that disputes exist in the MIC as a result of which he was not satisfied as to the identity of the properly constituted office-bearers in respect of certain branches and divisions and the Vice-Presidents and CWC respectively.

 

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44. The 3rd impugned letter dated 6th February 2015, relate to the decision of the ROS to issue the section 3A directions in order to give legal authorization and facilitate the re-elections in the MIC.

 

45. In the Order 53 Statements, the Applicants in these Judicial Review Applications had launched attack on the 1st, 2nd and 3rd impugned letters premised on the following grounds:

 

45.1. The violations in the “decision making process” premised on

 

“illegality”, “procedural impropriety”, “wednesbury

 

unreasonableness”, “biasness” and “mala tides”;

 

45.2. The section 18B;

 

45.3. The section 18C;

 

45.4. The breach of the MIC’s constitution; and

 

45.5. The breach of Article 10(1) (c) of the FC.

 

The violations in the “decision making process”

 

46. In essence the Applicants’ attack under this heading could be summarized as follows:

 

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46.1. The decision and directions were made without any reasonable notice, arbitrarily and without giving the MIC the right to be heard (“procedural impropriety”);

 

46.2. The decision was made mala fide and/or with biasness because the ROS did not act independently but acted on mere complaints by MIC members (“mala fide” and/or “biasness”);

 

46.3. The directions were unreasonable because the MIC was directed to carry out re-elections in respect of all branches and divisions whereas only eight (8) out of a hundred and fifty (150) Divisions and only two (2) out of three thousand five hundred (3500) Branches were found by the ROS to have problems (“wednesbury unreasonableness”); and

 

46.4. The decision and directions were outside the jurisdiction of the ROS and/or were abuses of power (“illegality”).

 

THE DECISIONS

 

47. Before I delve into the issues, it is pertinent at this juncture for me to refer to and be reminded of the scheme and purpose of section 16(1) of the Act which was expounded and interpreted by the Federal Court in the case Pendaftar Pertubuhan v Datuk Justin Jinggut[2013] 3 MLJ 16 (“Justin Jinggut”) as follows:

 

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“On a literal interpretation of s 16(1) of the Act we are of the view that the ROS is not empowered to inquire into the validity of those meetings referred to in order to form an opinion regarding the existence of a dispute. The ROS merely needs to act on the documents presented to him to objectively decide if a dispute has arisen. Once he is satisfied, and here we say on a subjective test, that the dispute had in fact occurred, he may straight away form such an opinion. We say that this is his only statutory duty. The word „opinion ’ as found in s 16(1) entails a subjective evaluation by the ROS [29].

 

Under s 16(1) of the Act the power given to the ROS is to direct a society to settle its dispute. There is no power to determine if the meetings held by the disputing parties are valid or not. The ROS need not make a finding. He merely comes to an opinion of the existence of a dispute. And this he needs to do as quickly as possible. Otherwise, the fate of the society will be left in a limbo, and all its activities suspended. To make inquiries into those meetings as suggested by the respondent would delay the whole process. The other rationale stemming out of s 7(2)(c) of the Act is that any dispute between the parties in a society should, if possible, be determined by the members of that society itself [30].

 

We say that the ROS’s role is one of non-interference in a dispute situation involving a political society, such as SNAP here. This is unlike the Mutual Benefit Societies under Part II of the Act where the ROS is empowered to hear and determine disputes (see s 40(3) of the Act). [31]

 

We are in agreement with the remarks made by Raus J (as the PCA was then) in Union of Beverage Industry Workers & Anor v Syed Shahir Syed Mohamud & Ors [2005] 6 MLJ 43 who said: “In fact

 

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there is nothing in s. 16 which states that the Registrar shall determine the dispute or adjudicate upon it. It only provides that if the Registrar is of the opinion that a dispute has occurred among members or office bearers, the Registrar may serve notice on the society requiring evidence of settlement of the dispute or institution of the proceedings for settlement of such dispute”. [32]

 

Ground 1: Procedural impropriety

 

48. In dealing with this grounds of challenge I am guided by the principle of law illustrated in the case of Justin Jinggut which states that before the ROS issued the section 16(1) notice, the ROS is not required by the Act to hear the parties or hold any enquiry. The ROS merely comes to an opinion based on the documents placed before him whether there are disputes as a result of which he is not satisfied as to the identity of the persons who are properly constituted as office-bearers of the society. The Federal Court in Justin Jinggut held that:

 

“The ROS merely needs to act on the documents presented to him to objectively decide if a dispute has arisen. [29]”

 

49. The purpose and scheme of section 16(1) as entrenched in Justin Jinggut is therefore clear. There is no requirement of the right to be heard to be given to the MIC because the ROS is not required to decide on the validity of the disputes. The ROS merely comes to an opinion that disputes exist and for the society to resolve the disputes.

 

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50. On the issue of the right to be heard before the issuance of the section 3A directions, the complaint flies in the face of the President’s letter dated 5th February 2015 and 9th February 2015 respectively. These letters clearly showed that it was the President of MIC himself (“the 2nd Applicant”) who informed the ROS that the MIC was going to hold elections at all levels to settle the issues concerning the 2013 MIC elections and suggested certain directions be given by the ROS. The directions were necessary to give legal authorization to the MIC to carry out the re-elections and to ensure the problems that arose in the 2013 elections would not be repeated. In the 3rd impugned letter which the Applicants were seeking this Court to quash, the ROS was merely reiterating the contents of the MIC’s 3rd Reply and giving directions, which were requested by the Applicants’ in order to set the house in order and prevent the MIC from facing deregistration pursuant to section 13 (1) of the Act.

 

51. In view of the principle expounded by the Federal Court in Justin Jinggut as discussed above and the 3rd MIC letter dated 5th February 2015, this ground of challenge has no merits at all and ought to be rejected by this Court.

 

Ground 2: “Wednesbury unreasonableness”

 

52. The Applicants alleged that the direction requiring the MIC to carry out re-elections at all its Divisions and Branches is unreasonable. This was based on the fact that only eight (8) out of a hundred and fifty (150) Divisions and only two (2) out of three thousand five

 

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hundred (3500) Branches were found by the ROS to have committed election offences. Hence the ROS has no justification to order reelections for all posts at all levels of the MIC as was done in this case.

 

53. The above contention could not be true and the Applicants had obviously misunderstood the clear and proven facts placed before the ROS as well as before this Court, in that, by the 1st impugned letter dated 5th December 2014, the ROS merely required the MIC’s cooperation to hold elections in respect of the said eight (8) Divisions and the said two (2) Branches only. The 2nd impugned letter dated 31st December 2014 was a section 16(1) Notice to the MIC. Nowhere in any of these letters was there any decision and/or direction to hold elections for all branches and divisions of the MIC as claimed by the Applicants.

 

54. The directions only appeared in the letter the 3rd impugned letter dated 6th February 2015 which was in response of the President, the 2nd Applicant in JR 39, of the MIC’s letter dated 5th February 2015 that is the crucial letter where the President notified that the decision to hold elections at all levels of the party was the MIC’s decision. This could be gleaned from the said crucial letter dated 5th February 2015 and I quote as follows:

 

“Saya ingin mengesahkan bahawa pihak MIC telah bersetuju dengan YAB Perdana Menteri semasa perjumpaan tersebut bahawa Parti MIC akan mengadakan pemilihan baru (fresh elections) bagi

 

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kesemua jawatan Parti. Pemilihan baru ini akan merangkumi pemilihan bagi kesemua Cawangan, Bahagian, Presiden, Timbalan Presiden, Naib-Naib Presiden, Jawatankuasa Kerja Pusat, Pemuda serta Wanita MIC.

 

55. Therefore, it is not justified for the Applicants to turn around and blame the ROS when in fact it was the Applicants themselves who had communicated to the ROS on how they proposed to resolve the dispute with regard to the proper appointment of the lawful officebearers of the MIC, which the ROS found to be in dispute. The 2nd Applicant had provided the solutions to the dispute to the ROS. In view of this, it is not justified for the Applicants to now blame the ROS. It was the 2nd Applicant himself, who had agreed to hold elections at all levels of the MIC. The 1st impugned letter dated 5th December 2015 was not in any way to be termed as direction by the ROS to have elections at all levels of the MIC. The ROS merely reiterated the decisions of the MIC to hold fresh elections to resolve all issues affecting the 2013 MIC elections in the 6th February 2015 letter and the ROS then provided the direction on how the MIC was to move forward to resolve the dispute surrounding the properly constituted office bearers of the MIC.

 

56. Therefore, this ground of attack is unmeritorious and must be dismissed by this Court.

 

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Ground 3: “Mala fide” and/or “biasness”

 

57. It was also the contention of the Applicants that the said letters ought to be quashed by this Court as in issuing the said letters and/or when forming the opinion that there are disputes in the MIC based on the complaints made by members of the MIC the ROS merely acted on the bare complaints. Having examined the affidavits in reply filed by the ROS vide Enclosures 38 to 40 respectively I am satisfied that the ROS had not acted on bare complaints as alleged by the Applicants but he had acted on the documentary complaints presented to him by members of the MIC. Upon receipt of these complaints he then directed for investigations to be carried out to confirm the allegations and only after considering the results of the investigation that the ROS came to the opinion that disputes existed in the MIC as a result of which he was not satisfied as to the persons properly constituted as office-bearers of the MIC (see Paragraphs 4 to 6 Affidavit of Dato’ Mohammad Razin bin Abdullah affirmed on 12th April 2015 Enclosure 38). This is shown at paragraph 2 and 5 of the 1st impugned letter dated 5th December 2014 where the ROS had stated:

 

“Untuk makluman tuan, Jabatan Pendaftaran Pertubuhan Malaysia (JPPM) telah selesai menjalankan siasatan ke atas aduan-aduan daripada ahli-ahli Parti Malaysian Indian Congress (MIC) berhubung ketidakpatuhan tatacarapemilihanyang tersebut di atas…

 

Dalam hubungan ini, setelah semua siasatan di pelbagai peringkat pemilihan Jawatankuasa MIC selesai dijalankan JPPM telah

 

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memutuskan untuk meminta kerjasama pihak MIC supaya mengambil langkah-langkah pembetulan…”

 

58. It is obvious in this case that the ROS had conducted investigation into the alleged complaints by the members of the MIC and had satisfied himself that there were disputes as to the legally constituted office bearers of the MIC. Therefore, it was wrong for the Applicant to claim that the ROS had acted on bare complaints. ROS had in fact conducted his own investigation into the complaints before causing the 1st and 2nd impugned letters to be issued to the MIC.

 

59. I observed that the Applicants herein were not consistent with their stand surrounding the issue faced by the MIC. In one breath the Applicants contended that the ROS had acted on bare complaints and on the next breath the Applicants admitted that there were issues that needed to be resolved concerning the 2013 MIC elections in respect of which the MIC through the 2nd Applicant in JR 39 had agreed to hold re-elections in order to clear all issues so that there would not be any more issues raised affecting the MIC.

 

60. In view of the above, this ground mounted by the Applicants ought to be dismissed by this Court.

 

Ground 4: Illegality

 

61. The Applicants alleged that the ROS had no jurisdiction and/or there were abuses of power in making the decision and directions in the

 

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said letters. In this case, the ROS had stated that he had received the complaints from the MIC members and caused investigations to be carried out. It was upon considering the results of investigations that he found that disputes existed in the MIC as a result of which he was not satisfied as to the identity of the persons who have been properly constituted as office-bearers of the MIC. As illustrated in the case of Justin Jinggut this Court could not go beyond the opinion of the ROS. With regard to the function of the Court when faced with the similar circumstances with respect to section 16 (1) notice, this Court was guided by the following passage in Justin Jinggut as follows:

 

“In our considered view, for the courts to go behind the opinion stated by the ROS and make its own findings based on factual background on the validity of the dispute, would be usurping the limited powers of the ROS under s 16(1). The court would then have to substitute the subjective opinion of the ROS. In other words, it would take over the role of the ROS, which we say we cannot do. ”

 

62. The letters dated 24th December 2014 by the Secretary General of the MIC and the letter dated 31st December 2014 by the ROS showed that there were disputes in the MIC relating to the properly constituted office-bearers of the MIC. Section 16(1) of the Act does not require the ROS to decide on the validity of the disputes, as his role under that section is one of non-interference in a dispute involving the political party.

 

63. It is clear from the scheme and spirit of Section 16(1) as illustrated above the ROS is only vested with the power to direct a society to

 

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settle the disputes and nothing more. This principle is reflected in Justin Jinggut where the Federal Court held as follows:

 

“Under section 16(1) of the Act the power given to the ROS is to direct a society to settle its disputes. ”

 

64. Section 16(1) of the Act expressly requires a society against whom a notice has been issued to:

 

64.1. Produce evidence of the settlement of the dispute and the proper appointment of the lawful office-bearers; or

 

64.2. Evidence of “institution of proceedings for settlement of such dispute”.

 

65. The 2nd limb of section 16 (1) which relate to “institution of proceedings for settlement of such dispute” had been interpreted by His Lordship Justice Lim Beng Choon in the case of SI Rajah v Mak Hon Kam [1993] 3 MLJ 741 at 754 para B-C as follows:

 

“…To my mind the institution of proceedings does not mean the instituting of legal proceedings – it merely means the instituting of any act or acts to settle the disputes.”

 

66. Hence, the letter from the President dated 5th February 2015 tantamount to an act to settle the dispute as the President had expressly asked for the withdrawal of the section 16(1) notice and the

 

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letter dated 5th December 2014 in view of the settlement reached by the MIC. In the said letter, the President had also asked the ROS to consider allowing the 2013 CWC to be the interim CWC to call for and oversee the fresh elections, that pending the elections, the President be authorised to administer the MIC due to the limited powers of the interim CWC, that branch elections be held in June and July, Presidential election be held in August, division elections, be held in September and the Deputy President, Vice Presidents, CWC, Youth and Women elections be held in October 2015.

 

67. In order to give effect to the section 16 (1) notice the ROS had to rely on section 3A of the Act. Section 3A of the Act which states as follows:

 

“In addition to the powers, duties and functions conferred on the Registrar by this Act and any regulations made thereunder, 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.”

 

68. Hence, there exist a connection between the powers of the ROS under section 3A and the second limb of section 16(1) of the Act when the MIC communicated to the ROS of the agreement to settle the disputes by having elections at all levels of the MIC. The ROS was therefore acting lawfully and it is within the scope of his powers in issuing the directions.

 

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69. Given the above factual matrix, the ROS’s decisions and/or directions were in accord with the law and within the confines of his jurisdiction. Therefore, this ground of contention too must fall.

 

Ground 5: Section 18B

 

70. It was also the contention of the Applicants that the ROS should have subjected the MIC’s explanations in the letter dated 24th December 2014 relating of the alleged transgressions to section 18B of the Act. The Applicants further contended that it is incumbent on the ROS to show that the 2013 elections are invalid when tested against this section. They further contended that the act of the ROS by circumventing section 18B tantamount to a mala fide act and/or an ultra vires act and/or an act in excess of the ROS’s jurisdiction.

 

71. This is misconceived. It is obvious that the Applicants had misunderstood the scheme and spirit of section 18B of the Act.

 

72. Section 18B (1) of the Act states as follows:

 

“No election in any political party shall be invalid by reason of any failure to comply with any provision of the political party’s constitution or any rules or regulations made thereunder, or the participation in any such election by any person who is disqualified from being a member or office-bearer under this act or the constitution of the political party, if it appears to the political party or any person authorized by it or by its constitution or rules or regulations made thereunder, that the result of the election would

 

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have remained the same had there not been any failure to comply with any such provision, or had the said person not participated in such election, as the case may be.

 

73. Pursuant to section 18B (1) the power lies with the political party or any person authorized by the party to save an otherwise invalid election to avoid re-elections if the stipulated conditions are satisfied. The provision does not impose any duty on the ROS as contended by the Applicants. Any attempt to confer such duty on the ROS would be in contravention of Parliament’s intention and/or a usurpation of Parliament’s powers.

 

74. In order, to rely on section 18B of the Act it is incumbent on the Applicants to show that section 16(1) and section 3A of the Act are in conflict with or inconsistent with section 18B. A comparison between these two (2) sections would show that there is no conflict or inconsistency as the said sections cover different subjects and are for different purposes.

 

75. Section 18B (1) empowers a political party to save an election

 

which does not comply with the party’s constitution or any rules or regulations made thereunder or where persons disqualified from being members or office-bearers under the Act or the party’s constitution had participated in such election if the result of the election would have remained the same notwithstanding such contravention.

 

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76. Therefore, the Applicants’ reliance on this ground is clearly misplaced and ought to be dismissed.

 

Ground 6: Section 18C

 

77. The Applicants had also claimed that section 18C of the Act protects the MIC. The Applicants have again misinterpreted the purpose of section 18C as the section is not an immunity or protective clause as claimed but is an ouster clause. The intention of such clauses is to oust the courts from questioning a particular subject matter. The purpose of section 18C of the Act is to oust the jurisdiction of the courts from, inter alia, questioning the validity of any decision on any matter relating to the affairs of a political party.

 

78. Section 18C reads as follows:

 

“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. “

 

79. Section 18C made no mention that the jurisdiction of the ROS is ousted. The ouster only applies to the Courts. In the beginning, there

 

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were only two limbs, which said that the decision of a political party is final and that such decision cannot be called into question in any court. These combined limbs were ineffective against the supervisory jurisdiction of the courts. It was for this reason that the legislature introduced a third limb which by its plain and clear words say that the courts have no jurisdiction to question the validity of a decision of a political party concerning the affairs of the political party.

 

80. This position was illustrated by His Lordship Abdul Hamid JCA in Pendaftar Pertubuhan Malaysia v PV Das (Datuk M Kayveas Intevener) [2003] 3 CLJ 404 as follows:

 

“To the argument that s. 18C should be given similar interpretation as s. 33B of the Industrial Relations Act 1967 we would like to point out that prior to 30 May 1980, there were no provisions similar to ss.

 

33A and 33B. With the “development” of administrative law taking place in this country during that period, Parliament thought it fit to insert ss. 33A and 33B in the Act. There is no doubt that the intention was to curtail if not to prevent the courts in the exercise of its power of judicial review in such cases. But, the current was too strong to be stopped, or even slowed down. That provision became a dead letter. The courts continued and even expanded the grounds for their interference. Whether we like it or not, that is now the law and we accept it.

 

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

 

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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.”

 

81. The words of the third limb clearly showed that Parliament intended to exclude the jurisdiction of the courts. This matter was put to rest by the Federal Court in Justin Jinggut when the Federal Court approved of the Court of Appeal’s decision in PV Das [2003] 3 CLJ 404 and held as follows:

 

“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. ”

 

82. Section 18C is therefore an effective ouster clause to exclude the jurisdiction of the court when the court is called on to question a decision of a political party.

 

83. Section 18C is triggered in this case against the Applicants. It is the Applicants who filed these proceedings challenging the decisions and directions made by the ROS in the said letters. In doing so the Applicants are asking the court to look into the validity of the MIC’s decisions in respect of the 2013 MIC elections to show that the disputes discovered by the ROS are not valid disputes. This can be seen in the following paragraphs:

 

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83.1. Paragraph 14.3(b) of Enclosure 3 which states as follows:

 

“Adalah jelas bahawa …. Responden Pertama tidak mengambil kira bahawa kaedah yang digunakan oleh Responden Pertama adalah memprejudiskan pihak-pihak yang memegang jawatan dalam MIC dan tidak mengambil kira langsung penjelasan dan klarifikasi yang diberikan oleh MIC dan bertegas bahawa pertikaian telah berlaku hanya berdasarkan aduan dan bukannya kesemua dokumen yang diketengahkan.”;

 

83.2. Paragraph 20 of Enclosure 3 which states as follows:

 

“Saya dinasihati peguamcara Pemohon-Pemohon dan sesungguhnya percaya bahawa arahan dan/atau keputusan yang tertera dalam surat-surat Responden Pertama adalah jelas bercanggah dengan Perlembagaan serta undang-undang MIC yang sediaada memperuntukkan bagi pengendalian aduan-aduan berkenaan pilihanraya dan pemilihan dalaman MIC. and

 

83.3. In Paragraph 24 of Enclosure 3 which states as follows:

 

“Saya dinasihati peguamcara Pemohon-Pemohon dan sesungguhnya percaya bahawa arahan dan/atau keputusan yang tertera dalam surat-surat Responden Pertama telah

 

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dilakukan berdasarkan aduan sahaja dan dicemari dengan berat sebelah (“bias”) dan mala fide. Lebih-lebih lagi Responden Pertama tidak mengambil kira keputusan Mesyuarat CWC pada 24.10.2013 dan 6.2.2014 dan/atau Undang-Undang Kecil Pilihanraya Agung MIC 2003 dan/atau peruntukkan relevan dalam Perlembagaan MIC.”

 

84. Although judicial review proceedings are directed against the decisions of the ROS, section 18C is wide enough to oust the courts from entertaining the validity of any decision of the MIC concerning the 2013 party elections if the ROS has recognized or not recognized any such decision in making his decision. The Court of Appeal in PV Das [2003] 3 CLJ 404 held as follows

 

“It may be argued that, at least in respect of the first and third prayers, what are being challenged are the acts of the registrar and not the decisions of the party. But, to take that view would mean that whereas a decision of a political party cannot be challenged in court, but all the issues may be reopened for decision by the court. That would defeat the whole purpose of s. 18C. ”

 

85. In these Judicial Review proceedings, the Applicants urged the court to uphold the MIC’s decisions in respect of the 2013 MIC elections, which the ROS has found to be illegal and void. These are clearly matters that are caught by the section 18C and therefore this Court has no jurisdiction to entertain such matters. On this ground alone, the applications should be dismissed.

 

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Ground 7: Breach of MIC’s Constitution

 

86. This ground too is without any merit. The MIC’s Constitution does not bind the ROS when exercising his powers under section 16(1) of the Act. The scope of ROS’s powers under the Act was eloborated by Lim Beng Choon J in SI Rajah & Anor v Mak Hon Kam & Ors [1993] 3 MLJ 741 at 753 as follows:

 

“Upon a careful reading of the Societies Act 1966, I am fully satisfied that the legislators of the Societies Act 1966 intended to confer on the Registrar of Societies full power to deal with matters concerning the function and the administration of societies – including the appointment of office bearers of societies, as well as disputes arising between members of a society and its office bearers, subject only to the supervisory power of the Minister for the time being charged with the responsibility of the registration of societies. ”

 

87. The contention of the applicants that the ROS is bound by the MIC’s Constitution will not only defeat the intention of Parliament but also render section 16(1) of the Act and other powers of the ROS to deal with matters concerning the function and administration of societies in the Act obsolete.

 

Ground 8: Breach of Article 10 (1) (c)

 

88. It was also argued by the Applicants that their rights and that of the MIC provided by Article 10(1) (c) of the FC had been violated by the

 

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decisions and/or directives of the ROS. This ground is also baseless and without merit.

 

89. In Justin Jinggut where similar argument was ventilated the Federal Court had dismissed the argument and held as follows:

 

“As regards the argument by the respondent that the ROS’s decision had adversely affected his fundamental rights under arts 8 and 10 of the Federal Constitution, we hold that there is no merit in this stance… Secondly this case has nothing to do with equality before the law or on freedom to form associations. The matter before us relates solely to the power of the ROS and the circumstances where he may cancel the registration of a society. “

 

90. In the case before me, the MIC’s registration under the Act is unaffected. The MIC is still in existence. The right under Article 10(1) (c) is to form associations. There is no fundamental right to manage associations. This was held by the Federal Court in Sivarasa v Badan Peguam Malaysia [2010] 3 CLJ 507:

 

“Learned senior federal counsel relies on AzeezBasha v Union of India AIR [1968] SC 662, 675 to argue that there is no such right as contended by the appellant. In that case, the Supreme Court of India held that art. 19(1)(c) (the equipollent of our art. 10(1)(c)) of the Indian Constitution does not give any right to any citizen to manage any association but merely the right to form associations. She submits that by parity of reasoning there should be no such right under the personal liberty clause. There is no question that AzeezBasha v. Union of India is certainly good law in the context of art. 10(1)(c). “

 

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91. For the aforesaid reason this ground of challenge too must fall.

 

Ground 9: No authority to commence these proceedings

 

92. Turning now to the contention of the Intervener (“3rd Respondent”) that the Applicants have no locus standi to commence these Judicial Review proceedings. The proceedings were commenced in their personal capacity as office-bearers in the CWC. At paragraph 3 of Enclosure 2 the Applicants deposed as follows:

 

“Pemohon-pemohon telah terkilan dengan keputusan Responden Pertama melalui surat-surat bertarikh 5.12.2014, 31.12.2014 dan 6.2.2015 dan membawa tindakan ini dalam kapisiti mereka sebagai pemegang jawatan mereka serta selaku ahli Jawatankuasa Kerja Pusat MIC. ”

 

93. The Court noted that the proceedings were commenced without any mandate of the 2013 CWC or the 2009 interim CWC or any resolution from the MIC. It is clear that the Applicants’ act of bringing these applications was in their capacity as office bearers but not on behalf of the MIC. That would be a decision for the CWC to determine.

 

94. The 3rd and 4th Applicants contended further that they are aggrieved by the decisions and/or directions in the said letters which would nullify their victories in the 2013 MIC elections. This is purely a personal matter and not in the interest of MIC.

 

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95. It would appear that JR 37 and JR 39 were instituted by certain personalities who were controlling the MIC and not by the proper resolution and/or mandate from the MIC.

 

CONCLUSION

 

96. On the evidence placed before me, I found that, the 2nd Respondent was unnecessarily brought as a party in JR 39. The Applicants had failed to show how the 2nd Respondent was said to be involved with the decision making process involving the three (3) letters sought to be quashed herein. Therefore, the 2nd Respondent in JR 39 was wrongly cited as a party in the proceedings. The case against the 2nd Respondent ought to be dismissed in limine.

 

97. Further in view of my reasoning stated above and by the MIC’s crucial letter dated 5th February 2015 whereby the 2nd Applicant himself had intimated to the ROS that the MIC had agreed to conduct re-elections for all posts at all levels of the MIC in order to eliminate all issues surrounding the elections, could the Applicants then turn around to say they are adversely affected by the decision, act or omission of the ROS vide the 3rd impugned letter within the context of Order 53 Rule 2 (4) of the Rules of Court 2012. Any reasonable person’s answer to that is of course a flat no.

 

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98. Having considered the cause papers filed herein and having heard the arguments by the learned Counsels for the Applicants, the learned SFC and both the learned Counsel for the Interveners and having given the matter a very careful and serious consideration I am of the view that there is no reason for me to grant the reliefs sought by the Applicants in JR 37 and JR 39. Both these Applications were dismissed with costs of RM30,000.00 for each case to be awarded to the 1st and 2nd Respondents and RM15,000.00 for each case for the Intervener M. Saravanan (“the 3th Respondent”). As the Intervener, S. Vigneswaran a/l M. Sanasee (“the 4th Respondent”) did not wish to pursue the issue of cost with the Applicants, no order as to cost was made against the 4th Respondent.

 

99. May I take this opportunity to commend all parties, especially the learned SFC, for the thorough research as well as the detailed submissions having been filed herein (the same being adopted by the learned Counsels for the 3rd and 4th Respondents herein) to assist this Court in arriving at this decision.

 

100. This is indeed a sad episode and the worst crisis in the history of the MIC, one of the oldest political societies in Malaysia having been established in 1946 and a component party in the “National Front” Ruling Party. The crisis affecting the MIC has far reaching consequences and if not resolved soonest would lead to the MIC facing the same fate encountered by the United Malays National Organisation (“UMNO”) which was held to be unlawful vide the

 

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decision of the High Court in Mohamad Noor Othman & Ors v. Mohd Yusof Jaafar & Ors [1988] 1 LNS 160 by His Lordship the late Harun Hashim J. The same fate too had befallen the SNAP vide Justin Jinggut.

 

t.t.

 

(ASMABI BINTI MOHAMAD)

 

JUDGE

 

HIGH COURT SPECIAL AND APPELLATE POWERS

 

KUALA LUMPUR

 

Date of Grounds Date of Decision Date of Notices of Appeal

 

4th July 2015 15th June 2015 16th June 2015 (JR 39)

 

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Parties:

 

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,

 

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 (Mr. R Thayalan, Mr. M. Karuppayan, Dato’ Ganesan, and Dato’ S Murugesan with him)

 

[Ref: V/JR/986/15] [Ref: V/JR/987/15] Ms. Vasanthi Arumugam (Mr. Porres Royan, Mr. M. Edmund & Ms. Rita Jeremiah 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 Bahagian Guaman (Civil Division) Aras 3, Blok C3, Pusat Pentadbiran Kerajaan Persekutuan 62512 PUTRAJAYA [Ref: PN/WKL/HQ/11/14/2015] [Ref: PN/WKL/HQ/11/15/2015] Mr. Amarjeet Singh (Ms. Suzana binti Atan with him)

 

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