Mohd Zainal Abidin

- vs -

The Minister for Home Affairs

Judgment

Hashim Yeop A Sani CJ (Malaya)

(delivering the judgment of the court)

1. By a notice of motion in the High Court the appellant sought for leave to apply for an order of certiorari to quash the decision of the Minister of Home Affairs under s 18 of the Societies Act 1966 (‘the Act’). What the Minister did in his decision on 19 April 1988 was to confirm the decision of the Registrar of Societies under s 13(1) of the Act cancelling the registration of a society called the United Malay National Organization (‘UMNO’). In cancelling the registration of the society the Registrar relied on the order of the High Court ([1988] 2 MLJ 129) declaring that UMNO had become an unlawful society based on what was agreed to in the High Court then that there were 30 unapproved branches.

2. On appeal to the Supreme Court [1988] 3 MLJ 82 it was held that the learned judge of the High Court was correct in his interpretation of s 12(3) and s 41(c) of the Act that as a result of the existence of the unapproved and unlawful branches the main body (UMNO) was also rendered unlawful by the Act.

3. The appeal before this court was against the refusal of the learned judge to grant leave in the said notice of motion. The gist of the grounds of decision of the learned judge is stated in his own words as follows:

   Now under s 18(f) the Minister is not required to call the applicant in person. In my opinion it is sufficient for the Minister to decide upon the representation made to him by the applicant. There is therefore no evidence that the Minister had acted without or in excess of his jurisdiction or that he had acted in bad faith. There is no evidence of any bias and certainly there is no failure of natural justice.

4. The appeal may briefly be dealt with in three parts.

5. Firstly the duty of the Registrar under s 13(2) of the Act.

6. Before the amendment by Act A700 effective on 10 June 1988 s 12(1) and (3) of the Act produced the effect that the existence of an unapproved branch rendered not only the branch but the society itself unlawful. Section 13(2) required the Registrar before cancelling the registration of a society to notify his intention to one or more of the office bearers of the society and to give him or them an opportunity to submit any reasons why the registration should not be cancelled.

7. In the present case the Registrar notified the secretary-general of the society (UMNO) and copied the notification to the president and the treasurer. That in our view was more than sufficient compliance with the law. Mr. Shafee submitted that since no period was mentioned in the notification, it was therefore a bad notice or to use his words ‘a silly notice’. With due respect we disagree.

8. The fact that no period was prescribed in the notice worked in fact to the advantage of the addressee in the notice. This is because of the language of s 13(2) of the Act which provided that the Registrar could not cancel the registration without first receiving the reply from the person addressed to in the notice.

9. Secondly was there any evidence at all of bad faith on the part of the Registrar?

10. We are of the view that looking at the allegation of bad faith on the part of the Registrar they remain only as allegations not substantiated by any credible evidence or reasonable inference. Much was said about the supposed failure of the Registrar to investigate fully before cancelling the registration of UMNO. We are unable to follow this argument. This is because there was already a court order to the effect that UMNO was an unlawful society and this finding of the court was based on the operation of the statute, that is the Societies Act itself. In the face of the court order what else could be expected of the Registrar to investigate? We cannot therefore impute bad faith on the part of the Registrar solely by not investigating after receiving the reply from the secretary-general of the society.

11. By the same token we also accepted the explanation of the Registrar why the cancellation was proceeded with quickly. The Registrar stated that the cancellation was in fact to comply with the order of the court and we accepted the explanation as reasonable and should not be construed as evidence of bad faith.

12. Finally was there any evidence at all of bad faith on the part of the Minister of Home Affairs?

13. The Minister heard the appeal by the appellant under s 18 of the Societies Act. Here it was alleged by counsel for the appellant that there was a breach of natural justice in that:

    1. the appellant was not given the opportunity to be heard; and

    2. when the Minister decided on the appeal he was already the president of the new UMNO.

14. As regards the first point, in view of the grounds of appeal contained in the letter of the appellant addressed to the Minister of Home Affairs, there was in effect sufficient compliance with the law and since the Minister already had the grounds of appeal with him there was no necessity for the appellant to be present before the Minister.

15. As regards the second point it would not be out of place here to refer to the view in De Smith’s Judicial Review of Administrative Action (4th Ed) at p 277:

    What would be the position in English administrative law if a Minister were to be called upon to decide whether or not to confirm an order made by a local authority affecting his own property? He could not lawfully transfer to another Minister his duty to decide. He might depute one of his own officials to make the decision; the decision would nevertheless be made in the Minister’s name. It is submitted that the validity of the decision could not be challenged merely on the ground that the Minister was in a sense judge in his own cause; for the legal duty to decide the class of matter to which this belonged had been cast upon him, and upon him alone. (Cf Auten v Rayner [1958] 1 WLR 1300). If it were possible to show that the Minister had in fact failed to consider the merits of the order for reasons of personal interest, his decision could be successfully challenged.

16. Thus apart from the doctrine of necessity, we have to bear in mind that in this case a court of law had already declared UMNO to be an unlawful society and in deciding the appeal there was in fact no other option open to the Minister except to confirm the decision of the Registrar to cancel the registration of the society in compliance with the declaration of the court.

17. We accordingly dismissed the appeal with costs. In deference to the submission by Mr. Yeoh that his client was not a man of means and that the decision of the court according to him could well pave a way for unity we allowed the deposit to be paid to the respondents as costs.

Cases

Mohd Yusof Jaafar v Mohd Noor Othman [1988] 2 MLJ 129; Mohamed Noor Othman v Haji Mohamed Ismail Ibrahim [1988] 3 MLJ 82

Legislations

Societies Act 1966: s.12, s.13, s.18, s.41

Authors and other references

De Smith’s Judicial Review of Administrative Action (4th Ed)

Representations

PS Yeoh (Mohd Shafee Abdullah & Puravelan with him) for the appellant.

T Selventhiranathan (Senior Federal Counsel) for the respondents.