PUTRAJAYA: Sixteen former Umno members won the right to question the party’s legality today following its failure to hold elections within the stipulated time frame.
A three-member Federal Court bench led by Chief Judge of Sabah and Sarawak David Wong Dak Wah allowed them leave to appeal the application on two questions of law.
They are: whether Section 18C of the Societies Act, which prevents the court from determining any suit relating to the affairs of political parties, is against Article 121 of the Federal Constitution; and whether the decision of the Federal Court in Pendaftar Pertubuhan v Justine Jinggut (2013) is still a good law in light of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat (2017) and M Indira Gandhi v Pengarah Jabatan Agama Islam Perak (2018).
In both cases, then-Federal Court judge Zainun Ali held that judicial power is always in the hands of the court, and appeared to suggest that the 1988 amendment to Article 121 was null and void.
Zainun also held that ouster clauses in state enactments and federal laws are unconstitutional as aggrieved parties are prevented from seeking remedy in court.
Following the deregistration of Umno in 1988, the Societies Act was amended to stop members of political parties from challenging the decisions of top party office bearers.
Lawyer Mohamed Haniff Khatri, who appeared for the 16 applicants, said the High Court and Court of Appeal had dismissed the judicial review as they were bound by the 2013 decision by the apex court.
“The Societies Act excluded the jurisdiction of the court to inquire into administrative decisions,” he said.
In the present case, he said, the court was restrained from questioning the decisions of political parties.
Federal counsel Shamsul Bolhassan, who represented the Registrar of Societies (RoS), submitted that Section 18C which acted as an ouster clause prevented party members from allowing the court to hear their complaints.
“The ouster clause is there (in the Societies Act) because of a policy decision,” he said.
Three months ago, the Court of Appeal dismissed the appeal by the 16, saying it found no reason to depart from the decision of the High Court.
“Section 18C of the Societies Act explicitly says that party matters are final and conclusive and cannot be reviewed by the court,” judge Badariah Sahamid said in delivering the unanimous decision.
Then-Umno Seri Merpati Pandan Indah branch leader Salihudin Ahmad Khalid and his 15 fellow members sought judicial review against the party on grounds that it had breached its constitution by delaying the party elections.
They named the RoS and Umno executive secretary Ab Rauf Yusoh as respondents.
The group sought to question Umno’s legality just weeks before the May 9 general election, saying the party should hold elections every three years, and that the leadership could only delay the polls for a period of 18 months.
They were later sacked by Umno for taking the party to court.
Umno held its party elections in June, after losing federal power. Ahmad Zahid Hamidi was elected as president and Mohamad Hasan as deputy president.