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 © The Star (Used by permission)
By Rashvinjeet S. Bedi & Joseph Loh
22 November 2009
When there is a dispute on whether or not a party constitution has been breached, the Registrar of Societies gets dragged into the fray. Just what is the role of the body and should it have the final say on such matters?
OVER the past two years, there have been several instances whereby disputes on political party matters were directed to the Registrar of Societies (ROS) for a decision.
And when these turn out to be high profile disagreements, it is tough going for the ROS. But it has consistently maintained a low profile to minimise altercation and even declined to be interviewed on its recent decision on the MCA deputy presidency, saying its dealings with political parties are a “sensitive” matter.
Neither was it keen to elaborate on its role in overseeing societies registered with it.
In essence, the ROS, which is empowered by the Societies Act 1966 (the Act), is the authority that oversees all societies. It has a similar role to the Companies Commission of Malaysia (CCM), which looks into the affairs of a company.
There are 13 categories of societies - religious, welfare, sports, trade and political parties among them. Non-governmental organisations (NGOs) would come under the purview of the ROS, but trade unions, companies and co-operatives, for example, would not.
Political parties have to register with the ROS and there are currently 32 political parties so registered.
The ROS registers a society according to provisions of the Act, with societies required to adhere to principles in both Federal and State Constitutions.
Where a society has not abided by its constitution, the ROS can issue a show-cause letter. An unsatisfactory explanation can result in the de-registration of the society.
Even a process that seems straightforward has its share of trouble as ROS suffers from a perception problem over which society it deems “acceptable”.
“The feeling is that if the society is not pro-establishment, then there will be problems registering with the ROS,” says Malaysian Bar Council President Ragunath Kesavan.
Hence, organisations that fail to make the cut with the ROS have had to register as companies, as was the case with several vocal NGOs such as Sisters in Islam (SIS), Suaram and Tenaganita.
Ragunath says that Parti Sosialis Malaysia (PSM) had to wait for more than 10 years to be registered because their application was rejected on the basis of non-compliance. The matter was pending in the Federal Court when PSM finally received approval from the Home Ministry for registration.
“The registration of political parties becomes an issue and because of this, the ROS is not seen to be independent,” says Ragunath, adding that the Human Rights Party formed by former Hindraf legal adviser P. Uthayakumar has yet to be registered.
Not meant to be political
While the ROS ensures that a society runs according to its constitution and by-laws, it is not supposed to get involved in the party’s affairs, says a constitutional law lecturer who declined to be named.
He points out Section16 of the Act, which says that if the Registrar thinks a dispute has occurred, it can demand an explanation from the society. If it does not get a satisfactory explanation from the society, the ROS can de-register it.
Ragunath does not believe the ROS has the jurisdiction to make any declarations on positions.
“In my opinion, they cannot be involved in disputes relating to removal and appointment of principal officers. Their role is just to regulate and register a society,” he says.
Similarly, says lawyer Malik Imtiaz Sarwar, the ROS is supposed to be an administrative body that supervises and oversees the registration of societies. “It ensures there is a registration or de-registration process, or compliance to the legal requirements. The ROS does not have an adjudicative function, but it might have limited discretionary power to reflect changes,” he says.
He likens its discretionary power to that of the National Registration Department, where, for example, a person wishes to register a change of name.
“They will ask for the prerequisites and see if they have been complied with. If not, they can say no,” says Imtiaz.
However, where there has been a change in leadership, the ROS must reflect the change as long as the person submitting it has the requisite authority.
“The ROS should not be seen as being partisan. It should be there to effect a neutral position on its objects. It is not supposed to take sides,” he adds.
But Imtiaz says the ROS’ threshold becomes murky when it believes there is non-compliance with the constitution of the society.
“Should the ROS take the information as such, or can they go behind the information given? At this point we do not know,” he says, adding that the discretion of the ROS should not extend that far.
Imtiaz believes the ROS should only be concerned with procedural requirements, and if fulfilled, should be accepted as the true state of affairs.
“It may be for the courts to decide the scope of powers of the ROS,” he says.
On claims that the ROS had only offered a point of view and not a re-instatement letter, Imtiaz is of the view that this is “unconventional”.
He does not unequivocally state that the ROS acted beyond its authority, but: “From media reports, it is unclear where they got their authority from. It is not evident where they derived the power to decide between one or the other.”
He was referring to registrar Datuk Md Alias Kalil’s letter to MCA on Datuk Seri Dr Chua Soi Lek’s status.
Dr Chua had requested the ROS to interpret the outcome of the Oct 10 EGM, where the central delegates overturned the presidential council’s decision to expel him from the party and voted against a resolution to restore him as deputy president.
In the letter, Md Alias explained that it was the ROS’ opinion there was no vacancy in the deputy president’s post, based on the MCA constitution (Art 35) which states that a two-thirds majority of general meeting delegates is required to remove a party official, which the EGM did not fulfil.
The ROS had no jurisdiction to do so.
Drawing a parallel that should such a situation arise in the presidency of Umno, Imtiaz says, “The ROS would be in fact be telling us who the Prime Minister should be and that is not right at all.”
Restore court’s power
In the past, the ROS has de-registered the Parti Bansa Dayak Sarawak (PBDS) and the Sarawak National Party (SNAP) because of leadership disputes.
Several leaders from PBDS went on to form Parti Rakyat Sarawak (PRS) on the same day it was de-registered, while SNAP appealed the ROS’ decision in court. The case is still pending but they are allowed to continue operations.
However, societies unhappy with the decision of the ROS can file an appeal with the Minister under Section 18 of the Act.
The Minister’s decision, which is final, can confirm, reject or vary the decision of the registrar.
Ragunath says the Minister’s powers in S18 is exhaustive and does not mention the Minister’s power to decide on disputes such as those in the MCA or PPP.
He adds that the Minister can only make decisions pertaining to matters such as the cancellation of, or the refusal to register, a society.
In any case, Ragunath says any decision made by the Minister can be challenged in court.
If a dispute with regards to positions in a society arises, the issue can be taken to court: the Malaysian Association of Tour and Travel Agents’ (Matta) has done just that.
But the same cannot be done for political parties. S18C of the Act says that the courts do not have the jurisdiction to question the validity of a decision made by a political party or a person authorised by it.
Last year, former Indian Progressive Party (IPF) vice-president V. Mathyalagan sought a declaration that Puan Sri M. Jayashree was not the lawful IPF president and all actions taken by her in that capacity were to be declared null and void.
She had retained her position as the president of the IPF after the High Court ruled it has no jurisdiction to entertain any dispute by a political party, with Judicial Commissioner Mohamad Ariff Md Yusof citing S18C.
This provision was added to the Act after the 1987 Umno party elections, which eventually saw the party being de-registered by the courts.
Malaysian Bar Council constitutional law committee chairperson Edmund Bon says that the provision is unconstitutional and should be struck down.
“It takes away the powers of the court. If there is any problem within a political party, there should be an avenue to seek redress.
“These kind of ‘ouster clauses’ are against human rights and violate the principal of justice,” he says.
Imtiaz adds that the provision has far-reaching consequences, especially since political parties have a close relationship with governance.
“In a highly politicised society, you need some form of check and balance at the source of the power, that is, the party itself,” he says.
He explains that if surreptitious means were used to suppress a legitimate challenge in a party – say the use of money politics – and the Exco takes an unreasonable position on the evidence, one cannot take the matter to court.
“Some courts have taken to saying even if the act was in bad faith, the court cannot afford review. That cannot be correct because the law presumes that you are acting within the confines and on a legitimate exercise of power,” he says.
Imtiaz opines that matters beyond judicial review can only be acts done within vested powers.
“If the decision maker makes it outside the constitution of the party, then it is not immunised,” says Imtiaz, adding that some judges believe political parties need a separate piece of legislation altogether.
Imtiaz says that recent events have brought the unreasonableness of S18C to the fore, and may have pushed the ROS to take an adjudicative position.
“They may have been acting altruistically, wanting the issue dealt with expediently so that the disputes do not go on for years,” he says.
“The legal framework is such but they have no choice but to adjudicate a dispute.
“But the law should never be like that. It should never push actors into situations where they feel they have to overstep express bounds in order to prevent an injustice. This is the sort of ambiguity introduced by this provision,” says Imtiaz.
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