BASED on recent news, the Registrar of Societies (RoS) has rejected applications made by both Pejuang and Muda to be registered as political parties. Because of this, the Human Rights Commission of Malaysia (Suhakam) made a statement on January 9 to express its concern with regard to such rejection of application for registration.
I appreciate the concern expressed by Suhakam and also agree with it regarding its emphasis that the right to form an association is enshrined under Article 10 (1)(c) of the federal constitution. In its statement, Suhakam suggests the need to review the Societies Act 1966, as it contains provisions that may contravene the right to freedom of association.
It is known that the right to form an association is not absolute, as Article 10 (2)(c) of the constitution states that Parliament may impose restrictions as it deems necessary or expedient in the interest of the security of the federation or any part thereof, public order or morality. A section in point regarding the restriction imposed is Section 7 of the Societies Act 1966, and such provision could be deemed to be the legislative response of Parliament towards Article 10 (2)(c).
Basically, Section 7 of the said Act states that the RoS could refuse the application for registration, provided that the registrar is satisfied with the occurrence of the situations listed under Section 7 (2) and Section 7 (3). For instance, one of the grounds for refusal can be seen under Section 7 (3)(a), where, in the eyes of the registrar, the society possesses elements of illegality or the society is likely to be used for unlawful purposes or any purpose prejudicial to or incompatible with peace, welfare, security, public order, good order or morality in Malaysia.
In the case of Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia [2006] 6 MLJ 213, the court held that there is nothing in Section 7 amounting to an unreasonable restriction on the freedom of association conferred by Article 10(1)(c). All Section 7 does is regulate the registration of associations to conform with the criteria set out in Article 10 (2)(c). Accordingly, the Act itself and Section 7 shall be deemed consistent with the federal constitution.
Take note that S.18 of the Societies Act 1966 allows the appeal to be filed to the minister within 30 days after the registration is refused and the minister, whose decision shall be final, may confirm, reject or vary the decision of the registrar. In the case of Abdul Hakim @ Ramizu bin Othman & Ors v Menteri Dalam Negeri, Malaysia [2018] 12 MLJ 686, the judge was of the view that the decision of the minister under S.18 cannot be said to be contravening Article 10 (1)(c). This goes on to say, the minister is entitled to confirm the registrar’s decision of the refusal to register and the said confirmation shall be final as well.
Be that as it may, the law still allows further review of the decision made by the authorities. In Council of Civil Service Unions & Ors v Minister for the Civil Service [1984] UKHL 9, Lord Diplock classified the grounds subject to control by judicial review under three heads, which are illegality, irrationality and procedural impropriety. By illegality as a ground for judicial review, it means that the decision-maker or authority exercises a power that it does not possess in law, and this is where the argument on constitutionality of S.7 of Societies Act 1966 comes into the picture. For irrationality, there shall be unreasonableness and the decision made by the authority might be so outrageous in its defiance of logic that no sensible person applying his mind to the question to be decided upon could have arrived at it.
With regard to procedural impropriety, it covers failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.
The latest development pertaining to this matter is that Muda has filed its application for leave for judicial review in the Kuala Lumpur High Court, but it was reported that the senior federal counsel representing the RoS and home minister argued that the failure to appeal on the part of Muda to the minister under Section 18 of the Societies Act 1966 before filing for leave for judicial review is an abuse of the process of the court, since it has not exhausted other avenues before filing its case in court. Muda, however, contended that the minister had essentially pre-judged the matter and, therefore, it would be of no utility to appeal to him.
It was held in R. Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 that one of the grounds that the court may, at its discretion, decline relief in judicial review proceedings could be due to the availability of an alternative remedy, which in our case, is S.18 of the Societies Act 1966.
Lastly, I believe the case of Savrimuthu v Public Prosecutor [1987] 2 MLJ 173, where the late Tun Mohamed Salleh Abas held that “[…] any statutory power must be exercised reasonably and with due consideration”, could give us insight into the manner on how the authorities shall carry out their functions or exercise their discretion. Perhaps, by fairly and reasonably exercising their discretion, any unnecessary costs could be avoided in the first place.
This is in light of the fact that judicial review is always resorted to where there is an aggrieved party under such circumstances. – The Vibes, February 2, 2021
Beston Tan Yon Chin is a student studying law in Malaysia
