The Federal Court today ruled that the Penang government has no power to set up the Voluntary Patrol Unit (PPS).
Chief Judge of Malaya Zaharah Ibrahim said that PPS could not be constituted under the Local Government Act 1976, as there was no provision allowing for the establishment of such associations.
Zaharah noted that the Penang government had taken the position that PPS was not a society, but an association of persons constituted under written law.
"In our view, the respondent's (Penang government) reliance on Section 9 and paragraph 101(v) of the Local Government Act as the legal basis for the establishment of PPS is not supported by the facts and the law."
Zaharah added that there is also nothing in the State List of the Ninth Schedule of the Federal Constitution that provides for the establishment of a voluntary association of persons, such as the PPS, to assist a government in the administration of the state or the performance of its functions.
"The PPS is meant to be an initiative to involve members of the public in activities which are not part of what is needed to keep the government of the state functioning," she said.
“The establishment of a body with the stated objective of undertaking community policing is certainly outside the executive powers of the state.
“The PPS is a society under the Societies Act 1966, and the provisions of that act state that any association of seven or more persons, whatever may be the purpose of the association, is a society.”
Zaharah said it was clear in the affidavit of Penang exco Phee Boon Poh (photo) that PPS is an association of at least 15 persons or of numerous persons.
“To enable members of the public to participate and assist in the maintenance of public order, Parliament had enacted laws such as the Rukun Tetangga Act 2012 and Malaysia Voluntary Organisations Act 2012," she said.
'PPS never registered'
Zaharah said that Section 6 of the Societies Act requires every society to be registered before its members can take part in any activity.
"That the PPS was never registered is a fact.
"Thus, every member who organised or took part in any activity of the PPS without the written permission of the Registrar of Societies committed a breach of Subsection 6(2) of the Societies Act and committed an offence."
Then-home minister Ahmad Zahid Hamidi's (photo) opinion that PPS was being used for purposes prejudicial to public order was not substantiated, Zaharah noted, adding that his exercise of discretion in issuing the order to declare PPS unlawful was unreasonable and irrational.
In 2016, the Penang High Court dismissed the state government's judicial review, ruling that the PPS was unlawful because it was not registered under the Societies Act.
The Court of Appeal in 2017 ruled in favour of the Penang government and declared that PPS was lawfully established.
The Federal Court today partly allowed the federal government's appeal to set aside the appellate court's decision which declared that PPS was lawfully established.
It also set aside the Court of Appeal's decision to declare that PPS is not a society under the Societies Act.
That decision was delivered by the other four judges on the bench – Zaharah, Court of Appeal president Ahmad Maarop, as well as Federal Court judges Ramly Ali and Alizatul Khair Osman Khairuddin – as former Chief Justice Md Raus Sharif had resigned.