KUALA LUMPUR (July 26): The Attorney General's Chambers (AGC) and Umno on Wednesday (July 26) filed preliminary objections against an application by three members of Barisan Nasional component parties to challenge Home Minister Datuk Seri Saifuddin Nasution Ismail's decision to exempt Umno's president and deputy president posts from being contested.
AGC senior federal counsel Ahmad Hanir Hambaly @ Arwi, who was representing Saifuddin and the Registrar of Societies (ROS), said under Section 70 of the Societies Act 1966, the minister could make an exemption in order to prevent the party’s top two posts from being contested.
Ahmad Hanir also questioned the legal standing of the three plaintiffs, especially MIC member P Vellasamy, to bring the action, as the decision only affected Umno, and not MIC.
The other two plaintiffs who filed the application were Umno members Sattariah Abdul Karim and Zaidi Abdul Majid.
Ahmad Hanir said under Section 18C of the Societies Act, the decision made by a political party should be considered final and conclusive.
“Here, the decision not to allow the contest for the top two posts was also passed in the Umno general assembly, which is the highest decision-making body of the party,” he added.
Umno’s counsel Datuk Mohd Hafarizam Harun concurred with the senior federal counsel.
“This was the resolution made by all [Umno] members who attended the assembly. Isn’t the party's general assembly the supreme body making the decision?” he said.
Hafarizam added that Section 18C of the Societies Act stipulates that the decision of a political party should be considered final and conclusive, and the Anina Saadudin case decision applies in this case.
Anina was sacked from Umno after filing a civil suit against former party president Datuk Seri Najib Razak and other leaders over RM2.6 billion that was transferred into the former prime minister's accounts.
Her appeal against the party's decision to terminate her membership was dismissed by the High Court, citing Section 18C of the Societies Act. That decision was later upheld by the Court of Appeal.
Hafarizam further said that when Sattariah and Zaidi became Umno party members, they were bound by the party’s contract, and that includes a provision within the party that any party members who bring an action against the party to the court would cease to become its members.
“This also applies to Vellasamy. Hence, with all three of them bringing the action, they have ceased to become party members, and hence do not have the legal standing to bring the action,” Hafarizam said.
Plaintiffs challenging minister’s administrative decision for exemption
Thalia Rohaina Abdul Latiff, who represented the three plaintiffs, replied that they are challenging the minister’s decision in allowing the exemption, and not the party's decision.
She argued that Saifuddin should not have allowed the no-contest ruling, as the Umno party constitution allows contests for the top two posts.
Furthermore, Thaila said the ROS in February initially decided that Umno should explain the additional motion for the non-contest ruling issued before the minister made the decision.
“If the party was not satisfied with giving an explanation, they should have gone to the court rather than waiting for the minister to give a decision. Here, the trio are questioning the administrative decision by the minister (Saifuddin) in granting the exemption, when there was a question raised by the ROS,” she added.
“As for MIC member Vallasamy, he decided to file this application as he was also concerned that such exemption could be given to MIC, or any society for that matter, by the minister in the near future. Hence, he has the legal standing in making the application,” Thalia added.
Judge Datuk Amarjeet Singh Serjit Singh who heard the matter fixed Aug 30 to deliver his decision on whether to grant leave. In judicial review applications, leave has to be gained first before the merits of an application is heard.
During proceedings, Amarjeet also allowed Thalia to amend the court documents in replacing the Registrar of Societies Department to only the ROS, and for the plaintiffs to name the office bearer in Umno as a respondent, instead of the party.
The court also struck off the Malaysian government as a respondent, as the plaintiffs are only challenging the decision by the minister.
The trio filed the application on May 15, through Messrs Rohaina & Co, where they sought leave for a certiorari order to quash the home minister’s decision dated March 7, 2023, which exempted Umno from abiding by Section 13(1)(c)(iv) of the Societies Act 1966 through a provision in Section 70 of the Act.
They also want a declaration that the additional motion by Umno — as decided in the party's 2022 general assembly for no contest for the top two posts — was not proper, in conflict with the party's constitution, and hence is null and void.
The trio sought a declaration that Umno should resort to corrective measures by not setting aside the party constitution under Article 9.3, and they also sought a declaration that the posts of the president and deputy president of the party are contested within 30 days of the court order.
Sattariah, Zaidi, and Vellasamy also sought a declaration that Umno had gone against Section 13(1)(c)(iv) of the Societies Act by approving the additional motion in the party's general assembly, and that the additional motion was in violation of Article 9.3 of Umno's constitution.