The Kuala Lumpur High Court (Appellate and Special Powers Division) has dismissed the application for a judicial review of the powers of the Director-General of Trade Union (DGTU) to conduct elections.

The action, brought to clarify the Trade Union Act 1959 provisions that are currently silent on the point, is meant to determine the new leadership of the National Union of Bank Employees (NUBE) through fresh polls.

The leadership dispute has plagued the embattled banking sector union since 2001, prompting calls for a total revamp in the human resources ministry.

The NUBE faction led by Abdul Jalil Hamid had sought an order for a special committee to be appointed, comprising three representatives each from both sides, to conduct fresh polls in accordance with the union constitution.

The group had also sought an order for the DGTU to oversee the fresh election conducted by the special committee, a decision the NUBE rivals had agreed on, and which the DGTU had confirmed having no objections to.

Members of a 20-member NUBE caretaker committee, formed under the auspices of the Malaysian Trades Union Congress (MTUC), had sought a similar order in September to hold fresh polls to determine the union's legitimate leadership.

Abuse of process

The application was dismissed with costs by Justice Raus Sharif, who described it as "an abuse of process".

Raus said that, since the application had sprung out of the Sept 17 decision in the same court, he had no choice but to dismiss it.

"To accede to this application...would (be) tantamount to this court revisiting or reviewing its own decision. This is not permissible," he wrote in his judgment dated Dec 10.

Raus said that if he had the power under Section 25 of the Courts of Judicature Act 1964 to recognise a special committee to conduct a full election, he would have made the order on the first application in September.

"But I was then of the view that this court cannot compel the committee to be formed and conduct an election, as the committee does not have the power or right to conduct an election."

Similarly in this application, he said the proposed committee had no power or right under the constitution or rules of the NUBE to conduct the election.

"There is also no power under the Act empowering the DGTU to supervise an election conducted by a trade union.

"Thus, I am of the view, when the committee or DGTU has no such right or power, this court cannot compel them to act in the manner sought by the applicants."

Endorse results

Lawyer for Abdul Jalil's group, R Sivarasa, said Raus was being consistent with his earlier decision on the same matter.

"I will be discussing with the client (Abdul Jalil's group) for further instructions, but I'm confident that they will be appealing against this," he said when contacted.

"We will also consider out-of-court options to resolve this long-standing dispute."

Expressing disappointment, J Solomon, general secretary in Abdul Jalil's group said the DGTU should now endorse the results of an earlier election conducted on July 20, 2002.

"Since the court said the DGTU has no powers to conduct or even supervise the election, I think he should endorse the results, especially since a majority of members had voted on the resolutions," he said when contacted today.

"The election was conducted as secret balloting in line with the NUBE constitution."

Of the 19,831 eligible NUBE members who were issued with ballot papers, 14,103 had voted on the resolutions while 13,812 ballots papers were returned for the election.

"We have submitted the results of the secret balloting to the Registrar of Trade Union in Selangor. We will write to remind the DGTU of this matter this week."

D Kalai, lawyer for the faction led by Mohamed Fauzi Shamsuddin, said the dismissal effectively ends the rival group's attempts to get the DGTU to supervise election by the special committee.

More importantly, he said, the Federal Court must decide whether the DGTU can, under Section 41 of the Trade Unions Act 1959, register Form L (a list of the NUBE principal officer-bearers) in a conflict situation.

Two sets of the Form L were submitted by the rival factions in mid-2002, leading to a string of legal action to declare one of it as void.

"The Federal Court has directed the Court of Appeal to come up with the grounds for upholding the High Court decision which had held that the DGTU cannot do so," he said when contacted today.

"Alternatively, having deferred the motion, the Federal Court is also faced with the question of whether the DGTU should wait for the dispute to be resolved before registering Form L."

Mohamed Fauzi could not be reached for comment.