Mohd Noor v Mohd Yusof [HCM]

www.ipsofactoJ.com/archive/index.htm [1988] Part 1 Case 4 [HCM]

HIGH COURT OF MALAYA

Mohd Noor

- vs -

Mohd Yusof

Coram

HARUN J

13 APRIL 1988

Judgment

Harun J

INTRODUCTION

In this action, the 11 plaintiffs who are members of the United Malays National Organization (UMNO), a political party, are seeking to declare the party elections held on 24 April 1987 null and void and for consequential orders to hold fresh elections. UMNO has been the dominant party of coalition governments continuously to the present day since the first general elections in 1955.
In eight successive governments since Merdeka (Independence), the Prime Minister and the Deputy Prime Minister have been chosen from the leaders of UMNO, viz. the UMNO President and Deputy President respectively. The UMNO party elections are therefore not only of public interest but of national importance as well.

The 1987 party elections attracted more than the usual interest because for the first time there was a serious challenge to the top leadership of UMNO resulting in the President and Deputy President being elected by very narrow margins as follows:

President

Datuk Seri (Dr) Mahathir	761
Tengku Razaleigh Hamzah	718
Margin	43

Deputy President

Mr. Ghafar Baba	739
Datuk Musa Hitam	699
Margin	40

ORGANISATION OF UMNO

UMNO is organized in a pyramid structure with the general assembly at the apex, the state liaison body at state level, the divisions at parliamentary constituency level, and branches at the base. Any number of branches may be established within a parliamentary constituency which are grouped under a single division for each parliamentary constituency. A member may belong to only one branch at any time but he may transfer his membership from one branch to another. There are more than 8,000 branches; 132 divisions; and more than one million ordinary members of UMNO.
Parallel to this structure are the Youth (Pemuda) and Women (Wanita) wings. The day-to-day management at each level consists of:
- Branches —
  
  A branch committee of 20 members including the branch heads of Pemuda and Wanita.
- Divisions —
  
  A division committee of 28 members including the division heads of Pemuda and Wanita.
- State liaison body —
  1. chairman;
  2. deputy chairman;
  3. secretary;
  4. treasurer;
  5. information chief;
  6. heads of divisions who are not holders of posts (a) to (e); and (g) two representatives of Pemuda and two representatives of Wanita including the state heads of each wing.
- General assembly — The Supreme Council —
  1. the president;
  2. the deputy president;
  3. five vice-presidents including the national heads of Pemuda and Wanita;
  4. the secretary-general;
  5. the treasurer;
  6. information chief;
  7. 25 members elected by the general assembly; and
  8. seven members appointed by the president.
  The president, deputy president, three vice-presidents and 25 council members are elected by the general assembly once every three years.
In January each year, the branches hold their annual general meetings and elect delegates to the division conference on the basis of one delegate for every 50 members subject to a maximum of five delegates from each branch provided the members of the branch have paid their annual subscriptions on or before 31 December of the previous year.
In April each year, the divisions hold their annual general meetings and elect delegates to the general assembly on the basis of one delegate for every 500 members subject to a maximum of ten delegates from each division including the heads of Pemuda and Wanita provided the members of the division have paid their annual subscriptions on or before 31 December of the previous year. In addition, the chairman of each division is also a delegate and if he is a member of the Supreme Council he may appoint an alternate delegate from amongst the members of the division committee.
In June each year, UMNO holds its general assembly. The Supreme Council may, however, either advance the date of the general assembly (which it did in 1987 to April) or postpone it to a later date but not longer than 18 months after the previous general assembly. If the general assembly is held earlier than June, then the division conference is also advanced to not later than 30 days before the general assembly. Those eligible to attend the general assembly and vote are:
1. members of the Supreme Council;
2. the chairman and delegates elected at the division conferences;
3. five delegates from Pemuda and five delegates from Wanita elected at their respective national level meetings held immediately prior to the general assembly.
AGREED FACTS
The trial commenced with a statement of agreed facts and no witnesses were called to give oral evidence. The agreed facts may be summarized briefly as follows:
1. Six of the plaintiffs are heads of branches; the 11th plaintiff, head of Pemuda of Beruas division; and the others ordinary members of UMNO.
2. The eight defendant is the secretary-general of UMNO and the other defendants are secretaries of divisions.
3. In 1987, the branches held their annual general meetings in January; the divisions held their annual general meetings in February and March; and the general assembly was held on 24 April 1987.
4. There were 30 unapproved branches in four divisions which held their annual general meetings and elected delegates or sent observers to the division conferences which in turn elected delegates to the general assembly on 24 April 1987.
5. Complaints by the plaintiffs regarding the validity of the division conferences attended and participated by delegates from the unapproved branches and other irregularities were made to the secretary-general before the general assembly but were not dealt with by him in accordance with the provisions of the UMNO constitution. Indeed in the case of the Pasir Puteh division following complaints that members from unapproved branches had attended and voted at the division conference, the secretary of the division issued a notice on 27 March 1987 declaring the meetings of the Pemuda, Wanita and the division itself as invalid and required the said meetings be held again. The Supreme Council, however, at its meeting on 28 March 1987 held that the meetings held on 19, 20, 21 February 1987 were valid and directed the Pasir Puteh division to cancel the proposed reconvened meeting on 11 and 12 April 1987. As a result, the head of Pasir Puteh division and ten other delegates elected at the division conference on 21 February 1987 attended the general assembly.
6. Other irregularities included underaged Wanita who do not qualify for membership and even non-members attended the Wanita meeting; an overaged Pemuda was elected as a Pemuda delegate; and the disqualification of 22 branches out of 25 branches of the Nibong Tebal division in the election of delegates to the general assembly.
THE SOCIETIES ACT 1966

The Societies Act 1966 (the Act) provides that a society of seven or more persons, whatever its nature or object, is to be registered under the Act. By definition, a society includes a political party such as UMNO. Section 12 provides:

(1)	No registered society shall establish a branch without the prior approval of the Registrar;
.... (3)	Where a registered society establishes a branch without the prior approval of the Registrar such registered society and the branch so established shall be deemed to be unlawful societies.
(4)	The provisions of this Act other than ss 6(1), 7 and 8 shall apply to any branch of a registered society approved under this section as though such branch were a society registered, as the society of which it is a branch, under the provisions of this Act.
(5)	For the purpose of this section, a branch of a registered society includes any society which is in any way subordinate to another society.
(6)	Where an approval to establish a branch has been given, such branch shall be established within three months thereof unless the Registrar has granted an extension of time.

Section 6(2) and (3) read:

(2)	Until a local society is registered under this Act, no person shall, without a written permission of the Registrar, organize or take part in any activity of or on behalf of the society, except only to apply to, or correspond with the Registrar.
(3)	Any person committing a breach of sub-s (2) shall be guilty of an offence and shall on conviction be liable to a fine not exceeding two thousand ringgit, and where the breach is a continuing one to a fine not exceeding two hundred ringgit for every day after the first day during which the breach continues.

Section 41 provides:

For the purposes of this Act any of the following societies shall be an unlawful society, that is to say—

....

(c)	a society which establishes a branch without the prior approval of the Registrar in contravention of s 12 and the branch so established;

UMNO is a registered society under s 7 of the Act. The divisions and branches are established as approved branches under s 12.
Sections 42 to 47 prescribe offences in respect of unlawful societies. In particular, s 43 makes it an offence for any person to attend a meeting of an unlawful society.

CASE FOR THE PLAINTIFFS
The case for the plaintiffs simply is that because of the presence of delegates from the unapproved branches and their participation at the divisional conferences, the divisional conference itself is rendered invalid and all decisions taken at such conference ineffective, null and void. The plaintiffs say that because the elections held at the divisional conference, which had delegates from unapproved branches participating, were null and void, consequently the delegates sent by these divisions to the general assembly were not entitled to attend the general assembly and the presence of such delegates at the general assembly and their participation in the voting at the election of the general assembly contravened the fundamental requirements of any democratic institution, i.e. to conduct an election fairly. That is to say, persons not entitled to vote should not be allowed to vote and those entitled to vote should not be precluded from voting. Finally, as the results of the voting were very close, it is a material factor of the April elections that the votes of delegates from only two divisions are sufficient to alter the results.

RELIEFS CLAIMED
The plaintiffs accordingly seek the following reliefs:
1. a declaration that the divisional delegates meetings for elections of delegates to the general assembly of the following divisions were unconstitutional and ultra vires the UMNO Malaysia constitution and therefore null and void and of no effect:
  1. Tanjung (Penang)
  2. Jelutong (Penang)
  3. Nibong Tebal (Penang)
  4. Pasir Puteh (Kelantan)
  5. Machang (Kelantan)
  6. Rantau Panjang (Kelantan)
  7. Pekan (Pahang Darulmakmur);
2. a declaration that all office-bearers/delegates elected at these divisional delegates meetings as described in (a) above were illegal and unconstitutional and all subsequent acts done by them in the purported exercise of their powers were also null and void and of no effect;
3. a declaration that the whole election of the office-bearers at the general assembly was unconstitutional, legal and therefore null and void and of no effect;
4. a consequential declaration that the previous elected office-bearers of UMNO Malaysia at the 37th UMNO Malaysia general assembly still exists in law with all the powers subscribed to them until expiration of their full term or upon a fresh UMNO general assembly and election being taken on a date to be fixed in accordance with the UMNO constitution;
5. an order that UMNO Malaysia and the eighth defendant do within one (1) month of this order make arrangements for fresh delegate elections at the following affected divisions of UMNO Malaysia:
  1. Tanjung (Penang)
  2. Jelutong (Penang)
  3. Nibong Tebal (Penang)
  4. Pasir Puteh (Kelantan)
  5. Machang (Kelantan)
  6. Rantau Panjang (Kelantan)
  7. Pekan (Pahang Darulmakmur);
6. an order that UMNO Malaysia and the eighth defendant do make arrangements for a fresh UMNO general assembly and elections to be held after compliance with (e) above and in any case not later than three months from the date of this order;
7. a declaration that the plaintiffs are entitled to obtain forthwith (upon payment of prescribed fees) from the ninth defendant the list of all UMNO Malaysia registered branches from the following UMNO Malaysia divisions:
  1. Tanjung (Penang)
  2. Jelutong (Penang)
  3. Nibong Tebal (Penang)
  4. Pasir Puteh (Kelantan)
  5. Machang (Kelantan)
  6. Rantau Panjang (Kelantan)
  7. Pekan (Pahang Darulmakmur);
8. costs;
9. further or other relief as this honourable court deems fit.
AGREED ISSUES
The parties agreed that the following issues be tried:
1. What is the effect in law of branches of UMNO having been established in the following divisions, without the prior approval of the Registrar of Societies contrary to s 12 of the Societies Act 1966:
  1. Pasir Puteh,
  2. Machang
  3. Rantau Panjang
  4. Pekan
  specifically upon:
  1. the elections conducted at the meeting of each of the said branches in and for the year 1987;
  2. the elections conducted at the meeting of each of the aforesaid divisions in and for the year 1987;
  3. the elections conducted at the general assembly held on 24 April 1987?
2. If each of the aforesaid elections was unlawful and/or a nullity, then are the plaintiffs or any of them entitled to the several declarations and injunctions sought by them in their writ and in particular (but without prejudice to the generality of this issue) by reference to:
  1. the locus standi of the plaintiffs to obtain the relief;
  2. the availability of alternative remedies;
  3. the doctrine of unclean hands;
  4. the failure to exhaust domestic remedies;
  5. the presence of illegality, if any;
  6. the requirement that the plaintiffs should obtain benefit by the relief claimed?
3. On a proper construction of the UMNO constitution, is any of the plaintiffs a member of UMNO at the date of hearing of this suit?
4. Does the UMNO constitution constitute a contract?
  
  If it does, then between whom?
5. On a proper construction of the UMNO constitution, do the plaintiffs have any interest enforceable by declaration and/or injunction?
FINDINGS
Section 12(3) read with s 41(c) clearly applies to the facts of this case. I find that from the moment the first unapproved branch was established not only the unapproved branch so established is an unlawful society but also UMNO itself. The defendants cannot plead ignorance because under the UMNO constitution no branch can be established without the approval of at least two-thirds of the members of the division committee. Also under the UMNO constitution, no branch delegates can attend the division conference if their subscriptions had not been paid up. In all instances in the present case, when the attendance of delegates from unapproved branches were challenged, the respective chairmen were content to hold that as their branches have paid up their subscriptions, they were entitled to attend the division conference. In the case of the Pasir Puteh division, the validity of the division conference was considered by the Supreme Council which held that the division conference, although attended by delegates from unapproved branches, was valid and proceeded to order the cancellation of a reconvened conference which was intended to preclude the attendance of delegates from the unapproved branches. Moreover, UMNO has been the dominant political party, and must be aware of the provisions of the Societies Act which was introduced in Parliament in 1966 embodying these stringent provisions which Parliament in its wisdom considered fit to enact to ensure strict compliance with the law which were non-existent in the Societies Ordinance 1949 which it repealed and replaced by the 1966 Act.
It was urged that only the unapproved branches be declared unlawful and not UMNO itself. Vethanayagam v Karuppiah [1968] 1 MLJ 283 (distd) and Vethanayagam v Karuppiah [1969] 1 MLJ 146 (distd) were cited as authorities for severance. That case involved an unapproved branch of the Malaysian Indian Congress (MIC) where an interim injunction was sought to restrain the members of the branch committee from acting further. In that case, the court considered s 12(3) and held that the unapproved branch was an unlawful society but did not declare that the MIC itself was an unlawful society. The facts of that case can be distinguished from the present in that by the time the matter came up for hearing on the second day the branch had undergone a metamorphosis, the Registrar of Societies having approved the branch in the meantime thus making it a lawful society. By the time the Federal Court heard the appeal, fresh elections had been held and therefore the case had become academic.
In the instant case, up to the date of the trial the unapproved branches remained in existence as unapproved branches and therefore UMNO, its divisions and branches are deemed by the Act to be unlawful societies. The provisions of ss 12(3) and 41(c) are clear and unambiguous and it will do violence to the language of the statute if only the unapproved branches are declared by the Act to be unlawful societies but the parent body is not.
In my judgment, as UMNO was an unlawful society at the material time, persons who took part in the elections in 1987 at branch, division and the general assembly levels committed an offence (s 43 of the Act) and therefore the elections were null and void and the office-bearers elected at all levels were not office-bearers at all. The entire series of elections were a nullity all the way. It follows that the office-bearers elected at the 37th general assembly in 1984 continue to be the lawful office-bearers of UMNO.

REMEDIES
The obvious remedy is for the office-bearers elected in 1984 to hold fresh elections at all levels after obtaining the necessary approvals in respect of the unapproved branches from the Registrar of Societies. But as stated earlier, even up to the time of the trial, except for three branches in the Rantau Panjang division, no attempt was made to obtain the Registrar’s approval. It follows that UMNO is still an unlawful society. That being so, the plaintiffs as members of UMNO cannot acquire any right which is founded upon that which is unlawful. The court will therefore not lend its aid to the reliefs sought by the plaintiffs.
Having said that, I do, not think it is necessary to deal with the other issues and I accordingly dismissed the plaintiffs’ claim.

COSTS
In the circumstances of this case although the plaintiffs have lost their case they have succeeded in obtaining a declaration that the 1987 UMNO elections were null and void and the most appropriate order would be to make no order as to costs.

OBITER
Before parting with this case, I would observe that the Societies Act was originally intended to eradicate secret societies. It still does. In the past, social and sports clubs were exempt from its provisions. But the legislation is, in my view, not suitable to regulate political parties. An attempt was made to legislate specifically for political parties by the addition of Pt IA in the Societies Act 1966 in 1981 but it was repealed in 1983. Perhaps the time has arrived for Parliament to legislate a separate Act for political parties as it has done for trade unions and co-operative societies. Be that as it may, it seems to me that the root cause of the party’s problems is the fact that any number of branches may be established within a constituency and local leaders are prone to establish branches on the eve of elections to ensure being voted into office. There is only one UMNO at national level; only one UMNO division at parliamentary constituency level and there should be only one UMNO branch for each polling district.

Cases

Vethanayagam v Karuppiah [1969] 1 MLJ 146

Legislations

Societies Act 1966: s. 6, s. 12, s. 41, s.42, s.43, s.44, s.45,s.46, s.47.

Representation

YM Raja Abdul Aziz Addruse (Mohd Shafee Abdullah & Christina Kow Sow Chow (Ms) with him) for the plaintiffs.

G Sri Ram (Zaki Tun Azmi, Juliana Solomon (Ms) & WW Cheong with him) for all the defendants except the fourth and seventh defendants.

HS Lim for the fourth defendant.

Ghandi K Singam for the seventh defendant.

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