.jpg "Lawyer Mohamed Haniff Khatri Abdulla is pictured at the Kuala Lumpur Court Complex June 18, 2020. u00e2u20acu201d Picture by Ahmad Zamzahurinn")
KUALA LUMPUR, Aug 7 ― The Registrar of Societies’ (RoS) decision yesterday to invalidate Umno’s postponement of its party polls ― which were initially due about a month ago ― could lead to the government authority exercising further powers such as suspending or even deregistering Umno, a lawyer has said.
Lawyer Mohamed Haniff Khatri Abdulla, who explained this to Malay Mail, however said that Umno could take various steps to challenge any RoS decision ― including the RoS decision to invalidate Umno’s postponement of its party elections.
Haniff had previously acted for clients such as 16 former Umno members in lawsuits to challenge decisions and actions by the RoS.
What’s the issue again?
Umno last had its internal party election on June 30, 2018, where Datuk Seri Ahmad Zahid Hamidi won the Umno president post for a three-year term from 2018 to 2021.
On June 30, 2021, Zahid’s term and other Umno officebearers’ term would have expired, and a fresh party election was required to be held by that day itself.
But Umno’s supreme council decided that it would exercise its right under the party constitution to postpone the party elections from the original date June 30, 2021 by 18 months or to be deferred by one-and-a-half years.
Yesterday, the RoS however said the Umno supreme council’s decision to postpone party elections at all levels (division, branch, supreme council) by 18 months was invalid as this decision was allegedly made when the supreme council’s term had already ended. In announcing its decision, the RoS cited the July 7 minutes of an Umno supreme council meeting.
Umno secretary-general Datuk Seri Ahmad Maslan later took to Twitter to present a chronology of events since February 19, 2021, which appeared to present Umno’s position that it had validly decided to postpone the party elections before its supreme council’s term had ended and that the postponement was done in line with Umno’s party constitution.
Among other things, Ahmad’s chronology claimed that 52 of 56 Umno’s supreme council had on June 18 agreed via a circular resolution to postpone party elections and that he had notified this decision in a June 24 letter to the RoS director-general.
Ahmad’s chronology said the Umno supreme council had on July 7 legitimised the June 18 decision by supreme council members to postpone party polls, and that the RoS director-general had in a letter on July 19 said there was no objection to Umno’s postponement of its party elections.
With a quick recap of the facts above, we now move on to Haniff’s explanation of the law and other related issues:
What’s next?
1. What can RoS do now?
When contacted, Haniff said RoS could exercise its powers under Section 13 of the Societies Act to deregister Umno, with a typical deregistration process involving the issuing of a show cause letter for the political party to explain itself.
But even while investigating the matter, the RoS could also opt to suspend Umno’s activities first, Haniff explained.
“The most serious is deregistration, but while investigating, they can suspend the party first,” he said when explaining possible options available for the RoS to take.
Under Section 13(2) of the Societies Act, if the RoS proposes to cancel the registration or deregister any registered society ― including political parties, the RoS is required to notify at least one office-bearers of such intention to deregister, and to give the registered society a chance to submit written reasons why it should not be deregistered.
Under the same provision of Section 13(2), the period to be given for the registered society to give the reasons is within 30 days from the date of RoS’ notification of the intention to deregister.
Under Section 13(2A), the RoS may during the 30-day period make a written order to suspend all activities or any activities of the registered society, if the RoS thinks it is necessary in the public interest or in the registered society’s own interest or to stop the registered society from further violating any Societies Act provisions or regulations made under this Act or any rule of the society.
Haniff pointed out as example the RoS’ previous temporary suspension order to Bersatu in early April 2018 which left the party unable to function, but noted that Bersatu subsequently got a court order in late April 2018 or just before the 2018 general elections to stay the suspension order, which enabled the party to carry out activities such as holding ceramah or political talks.
As for the effect of a hypothetical scenario where Umno is suspended by the RoS, Haniff said this would mean that the political party’s disciplinary board cannot function and that disciplinary action cannot be taken against those supporting Prime Minister Tan Sri Muhyiddin Yassin’s government against the party’s wishes.
This is in light of Umno president Zahid having on one hand on August 3 said that the party has decided to withdraw support towards both Muhyiddin and his Perikatan Nasional government, while 20-odd Umno MPs were yesterday (August 6) said to have allegedly chosen to support Muhyiddin’s government and to support Muhyiddin’s plans to only have his legitimacy tested in Parliament next month.
But even without any further actions by RoS such as to suspend Umno, Haniff said the current Umno leadership could still face challenges by party members over their mandate to continue to hold on to their party positions after June 30, 2021, following RoS’ invalidation decision yesterday.
But even without the party being suspended or deregistration, Umno can call a supreme council meeting to decide to maintain the leadership’s status quo pending an appeal of the RoS’ decision yesterday, and can also call for an extraordinary general meeting (EGM) to support the supreme council’s decision.
2. What can Umno do now?
Haniff said that challenges against the RoS’ decisions would typically involve a process of appealing directly to the RoS, before further appealing to the home minister, and finally filing a lawsuit in court if the previous appeals were unsuccessful.
Haniff said Umno could start by first asking the RoS to clarify its decision yesterday to invalidate Umno’s decision to postpone party polls, and could also ask to rectify the situation or to ask RoS to state what is the effect of the RoS decision yesterday.
“Number one, they may write a letter of inquiry first, if it’s true Umno was granted a sanction to allow them to extend elections, to enquire how come the decision to defer is invalid.
“Their letter of inquiry could be coupled with a letter of appeal to ask RoS to reconsider and to allow them to justify why the decision to defer is actually based on the party constitution,” he said.
If Umno does not send in such letters now, Haniff said the RoS could take steps under Section 13 such as starting the deregistration process by issuing a show cause letter to ask Umno to explain why it did not conduct party elections within the required period.
Under Section 16, the RoS can take steps to deregister a registered society ― including political parties ― if no satisfactory evidence is provided within one month to the RoS of matters such as the proper appointment of office-bearers.
“Because under Section 16 of the Societies Act, if there is any dispute with regards to this issue of societies, which includes even political parties, then under Section 16 it allows the matter to be decided by the Registrar.
“They can write to RoS to get clarification or rectification of this issue so that there's no issue of deregistration,” he said.
Any subsequent decision made by RoS such as to deregister Umno must then be appealed by the political party to the home minister, Haniff said while citing Section 18 of the Societies Act.
Under Section 18, Umno can appeal against the RoS decision ― within 30 days of the decision date ― to the home minister, and the home minister may confirm, reject or vary the RoS decision. Such a decision by the home minister shall be final, Section 18 says.
“Any decision of the RoS, if they deregister or any decision of cancellation of registration, they can appeal to the minister, so they have to go through that,” Haniff said when explaining the need to appeal to the home minister before resorting to filing a legal challenge in court.
“Even today's decision to cancel the decision to defer the election is a decision which they should appeal to the home minister if they didn't get proper clarification. They don’t have to wait until RoS deregisters them.
“Umno should appeal against the decision to the minister under Section 18, why we are not allowed to extend our election,” he said.
Haniff said Umno should only take the third step of filing a lawsuit through a judicial review application in court, after it has appealed to the home minister and if the home minister maintains the RoS decision that was being appealed.
It is unclear how long the entire process of appealing to the RoS and to the home minister would take, as newly-formed political parties Pejuang and the Malaysian United Democratic Alliance (Muda) for example have had to file lawsuits after months of waiting for the RoS and home minister to decide on their appeals against RoS decisions.
3. Going straight to court without appealing to the minister?
When asked if it would be too late for Umno if it were to go through the entire process of appealing to the RoS and home minister first, Haniff explained that the court would generally ask those who file judicial reviews to first attempt other avenues already available under the relevant Act such as exercising the right to appeal to the minister.
In other words, those who file for judicial review should first try out alternative remedies before resorting to go to court.
However, one can try to go directly to court if they can prove that the minister whom they are appealing to is “not going to act in good faith”, Haniff said.
“The exception to this is … if you have sufficient basis to say the minister will act mala fide (in bad faith) and your process of going to the minister will be a waste of time, and you think it’s sufficient, you can go straight to court,” he said, adding that Umno could for example seek to convince the court of the need to directly file a judicial review by presenting a chronology of events to support their assertion of the alleged bad faith.
But if this route of going straight to court is taken, Umno should at the same time take steps to clarify matters with RoS as the latter could start the process to deregister the party, he said.
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4. So, what is Umno going to do?
In his Twitter response yesterday, Umno secretary-general Ahmad had said he would reply in a letter next Monday (August 9) to the RoS on the government agency’s notification that Umno’s postponement of its party elections was invalid. He had also indicated that Umno’s lawyers had upon reference, said the party did not do anything wrong.
*Editor's note: An earlier version of this article contained an error which has since been rectified.
