JUNE 17 — In a talk show titled “Bersama Wan Saiful” yesterday, former Dewan Rakyat speaker Azhar Azizan Harun said a party leadership’s interpretation of its constitution is final and cannot be challenged by the courts.

Azhar cited Section 18C of the Societies Act 1966 (SA). The provision states as follows:

“The decision of a political party or any person authorized by it or by its constitution or rules or regulations made thereunder on the interpretation of its constitution, rules or regulations or on any matter relating to the affairs of the party shall be final and conclusive and such decision shall not be challenged, appealed against, reviewed, quashed or called in question in any court on any ground, and no court shall have jurisdiction to entertain or determine any suit, application, question or proceeding on any ground regarding the validity of such decision.”

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Almost 10 years ago in the case of Anina Saadudin v Datuk Seri Tengku Adnan Tengku Mansor & Anor [2015], Judicial Commissioner S. Nantha Balan (as he then was) explained the ouster of the court’s jurisdiction in Section 18C SA as follows:

“In Malaysia, political parties are somewhat in an exalted, privileged and rare position in that their affairs and/or disputes are statutorily excluded from curial scrutiny by the courts by virtue of s. 18C of the Societies Act 1966 which was intended to denude the courts of any jurisdiction where the matter involves disputes and affairs of a political party.

“Since the coming into force of Section 18C of the Societies Act 1966, all attempts by disgruntled party members to take the grievances to court have failed. And this is regardless of the fact that the litigants may well have valid grounds to question and perhaps impugn the particular decision or meeting of the political party.

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“Section 18C of the Societies Act 1966 admits no exception and all manner of suits involving political parties are not to be entertained by the courts. At one time, it was thought that ouster clauses were of no effect where it is shown that the decision being challenged suffers from an error of law and therefore a nullity.

“[T]here are some who regard Section 18C of the Societies Act 1966 as being an affront to the rule of law and to democracy itself. There is no doubt [however] that Section 18C of the Societies Act 1966 has proved to be a tool of great utility in keeping political party disputes including but not limited to elections, meetings, suspension and/or expulsion from membership etc, away from the purview of the court’s scrutiny.

“[T]he view that I take is that Section 18C of the Societies Act 1966 is widely and unambiguously worded and ... is effective to oust the jurisdiction of this court.”

Azhar, however, contended that the Dewan Rakyat Speaker also has no right to interfere in how a party leadership interprets its constitution just like the court.

On that contention, Azhar arguably has read into Section 18C SA the word “legislature” or “Parliament”.

When the court is ousted from deciding a matter, the matter is said to be non-justiciable. It is one which is not capable of being decided by a court of law – one of the three branches of government in a Westminster system of government.

From the court’s point of view, the court identifies a non-justiciable matter as one about which it ought not make a decision, leaving that decision to the other branches of government, which usually is the executive but can also be the legislature.

So, one may argue that non-justiciability does not extend to the legislature. By definition also, non-justiciability ousts the court’s jurisdiction only.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.