Umno 16 challenge: Apex court will decide on two questions of law
The constitutionality of Section 18C of the Societies Act 1966, which stipulates that the decision of a political party is final and cannot be challenged in any court, would be decided by the Federal Court.
A three-member Federal Court bench today granted two questions of law brought by 16 former Umno members regarding the section which is considered an ouster clause that bars the court from hearing such challenge...
The constitutionality of Section 18C of the Societies Act 1966, which stipulates that the decision of a political party is final and cannot be challenged in any court, would be decided by the Federal Court.
A three-member Federal Court bench today granted two questions of law brought by 16 former Umno members regarding the section which is considered an ouster clause that bars the court from hearing such challenges.
This came after Chief Judge of Sabah And Sarawak David Wong Dak Wah allowed the appeal by the former party members, who are challenging the Registrar of Societies' (ROS) decision to extend the period of party elections.
"We allow the two questions of law," said Wong, who made no order as to costs.
In the past, many questioned the constitutionality of the section which was brought in place after the 1987 Umno elections, but were unsuccessful.
Section 18C states that no court shall have jurisdiction to entertain or determine any suit, application, question or proceeding on any ground regarding the validity of such a decision.
The other two justices in today's appeal were Ramly Ali and Azahar Mohamed.
The two questions are:
1. Is Section 18C, which ousts any court's jurisdiction to entertain and determine any suit, application, question or proceeding or any matter relating to the affairs of the party, ultra vires of Article 121 of the Federal Constitution?
2. Is the Federal Court decision in ROS vs Justine Jinggut still good law in light of the recent decisions in the Semenyih Jaya Sdn Bhd and M Indira Gandhi?
Lawyer Mohd Haniff Khatri Abdulla, who appeared for the 16 Umno members, said the Semenyih Jaya and Indira Gandhi cases have brought into question the constitutionality of the ouster clause.
Both cases found that legislation which ousts the court's jurisdiction from hearing the matter is considered unconstitutional.
'Ouster clause a policy decision'
Haniff said his clients' challenge was dismissed due to the Federal Court decision in the Justine Jinggut case, and it was high time the apex bench decide on the matter.
Senior federal counsels Shamsul Bolhassan and Mazlifah Ayob, appearing for the ROS, said the court is bound by Section 18C and the decision made by political parties cannot be challenged in court.
However, the chief judge of Sabah and Sarawak asked. "Isn't it in the public interest of the Attorney-General's Chambers to know the position of these ouster clauses? There have been academicians and many people writing and talking about the Semenyih Jaya and Indira Gandhi decisions."
Shamsul replied that the ouster clause was there because of a policy decision.
The third judge, Azahar, then interjected and said the ouster clauses would deprive the court of its power.
Shamsul then added that the 16 are no longer members and they don't have locus standi after being expelled by the party.
The 16 former Umno members, led by Salihudin Ahmad Khalid, had wanted to quash the decision by the ROS last year to allow Umno to extend its party elections until April 2019, to investigate the complaints made and reply to them, and also a dissolution of the party.
Subsequently, all 16 were expelled by the party as announced by then secretary-general Tengku Adnan Tengku Mansor.
On April 27, last year, just before the general elections, the High Court in Kuala Lumpur allowed the preliminary objection by the AGC and dismissed the challenge without granting leave on the grounds that it was bound by Justine Jinggut, and the Semenyih Jaya and Indira Gandhi decisions do not apply.
The Court of Appeal upheld the High Court decision last November.
