CASE OF THE WEEK

This was an application by the applicants for judicial review of the decision by the first respondent, Menteri Dalam Negeri. The Honourable Minister had issued an order pursuant to s. 5(1) of the Societies Act 1966 (`the Act') declaring the `Coalition for Clean and Fair Election' (`BERSIH') an unlawful society. The applicants were members of the steering committee of BERSIH 2.0 and were individuals from a number of non-governmental organisations (`NGOs'). BERSIH 2.0 planned to organise a rally on 9 July 2011. However, a week before the scheduled date, an order was issued to declare BERSIH an unlawful society. The said order was made on the ground that BERSIH was being used for purposes prejudicial to the interest of the security of Malaysia and public order. Notwithstanding the declaration order, BERSIH 2.0 organised the rally which proceeded as scheduled. In her affidavit, the first applicant affirmed that despite the order, she and the other applicants had never been complained of being part of an unlawful or illegal society, or as being a threat to national security nor public order. It was made clear by the said affidavit therefore, despite the development of BERSIH and its continuous activities, the Honourable Minister remained firm in declaring BERSIH as an unlawful society under s. 5 of the Act. The applicants are now challenging the decision of the Honourable minister on, inter alia, these grounds (i) it was an error of law and in excess of jurisdiction because BERSIH was not a society within the definition of "society" in the Societies Act 1966 (`the Act'); (ii) the merits of the Honourable Minister's decision was made without evidence; (iii) the failure to comply with the rules of natural justice and for breach of the rights guaranteed under the Federal Constitution to which the court should give a non-restrictive interpretation. The SFC maintained his objection on the locus of the applicants in this application and argued that the Minister is empowered under the Act to issue the impugned order. It was further submitted that the decision of the Minister was one made on grounds of public order and public security. In view of the fact that the Minister had exercised his discretion properly under the law, learned SFC reminded the court that it should be slow in interfering with such a decision.

Held (allowing the application):

(1) The definition of "society" under s. 2 of the Act includes "an association of seven or more persons ... whatever its nature or object whether temporary or permanent." The word "person" is defined under s. 3 of the Interpretation Acts 1948 and 1967 to include "body of persons, corporate or unincorporated." Applying that definition, the word "persons" in s. 2 included coalition of NGOs. Thus, BERSIH 2.0 was an association or society within the definition of "society" under s. 2 of the Act. Since BERSIH was caught by this definition, it was therefore within the power of the Minister to declare it unlawful under s. 5. (paras 19 & 23-24)

(2) The date the impugned order was made was 1 July 2011. Thereafter, these events took place (a) there were negotiations between the applicants and the respondents as to the location of BERSIH rally on 9 July 2011; (b) there was an audience given by His Majesty DYMM to the first applicant relating to the planned rally; and (c) BERSIH 2.0 rally took place without censure as scheduled. No action was taken against the applicants under the provisions of the Act applicable to unlawful society. BERSIH, the unlawful society under s. 5, was uncharacteristically allowed to carry out its activities like normal. The conduct of the respondents in dealing and handling BERSIH soon after it had been outlawed did not reflect BERSIH as an unlawful society. It did not reflect the conduct of persons who found the society to be used for purposes prejudicial to the interest of the security of Malaysia and public order. (paras 30-31 & 34)

(2a) The decision to outlaw BERSIH impinged on the rights guaranteed under the Federal Constitution and should not be taken in a lackadaisical manner. It was difficult to reconcile how a society found to be used for purposes of threatening public security on 1 July 2011 could be allowed to organise a peaceful assembly on 9 July 2011. The decision to declare BERSIH unlawful therefore was questionable. Thus, the decision in finding BERSIH unlawful was tainted with irrationality. Having analysed the background against which the impugned order was made in its entirety, the impugned order was liable to be quashed on this ground. (paras 32, 38 & 41)

(3) The decision by the respondent was a legal decision made under the Act and applicants' rights were adversely affected by the impugned order. The applicants were also liable to criminal prosecution under the Act. Being adversely affected, there was no reason to deny them the remedy sought. (para 52)

Case(s) referred to:

Ahli-Ahli Suruhanjaya Yang Membentuk Suruhanjaya Siasatan Mengenai Rakaman Klip Video Yang Mengandungi Imej Seorang Yang Dikatakan Peguambela Dan Peguamcara Berbual Melalui Telefon Mengenai Urusan Pelantikan Hakim-Hakim v. Tun Dato' Seri Ahmad Fairuz Dato' Sheikh Abdul Halim & Other Appeals [2012] 1 CLJ 805 FC (refd)

Associated Provincial Pictures House v. Wednesbury Corporation [1948] 1 KB 223 (refd)

Chin Mee Keong & Ors v. Pesuruhjaya Sukan [2007] 5 CLJ 363 CA (refd)

Council of Civil Service Unions v. Minister For the Civil Service [1984] 3 All ER 935 (refd)

Damansara Jaya Sdn Bhd v. Penghuni-Penghuni Kuil Muneswaran Alayam atau Kuil Muniandy Maha Kali Alayam [1994] 1 CLJ 164 HC (refd)

Darma Suria Risman Saleh v. Menteri Dalam Negeri & Lagi [2010] 1 CLJ 300 FC (refd)

Datuk Musa Aman & Ors v. Tan Sri Chong Kah Kiat [2010] 6 CLJ 134 CA (refd)

Edwards v. Bairstow [1956] AC 14 (refd)

Harpers Trading (M) Sdn Bhd v. National Union of Commercial Workers [1991] 2 CLJ 881; [1991] 1 CLJ (Rep) 159 SC (refd)

Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81 FC (refd)

Lee Eng Teh & Ors v. Teh Thiang Seong & Anor [1966] 1 LNS 79 HC (refd)

Minister of Home Affairs, Malaysia v. Persatuan Aliran Kesedaran Negara [1990] 1 CLJ 699; [1990] 1 CLJ (Rep) 186 SC (refd)

Mohamad Ezam Mohd Noor v. Ketua Polis Negara & Other Appeals [2002] 4 CLJ 309 FC (refd)

Ong Boon Hua @ Chin Peng & Anor v. Kerajaan Malaysia [2010] 3 CLJ 125 HC (refd)

PP v. Chew Choon Ming & Ors [1987] 1 LNS 35 HC (refd)

R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147 FC (refd)

R v. L and Another [2008] EWCA Crim 1970 (refd)

Re Application Of Tan Boon Liat @ Allen; Tan Boon Liat v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1976] 1 LNS 126 HC (refd)

Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 FC (refd)

SPH De Silva Ltd v. Balwant Singh [1960] 1 LNS 121 HC (refd)

Tan Eng Hoe v. Liang Hooi Kiang [1960] 1 LNS 135 HC (refd)

Tharmalingam v. Sambathan [1960] 1 LNS 144 HC (refd)

Theresa Lim Chin Chin & Ors v. Inspector General of Police [1988] 1 LNS 132 SC (refd)

Legislation referred to:

Interpretation Act 1948 & 1967, s. 3

Federal Constitution, art. 10

Rules of the High Court 1980, O. 15 r. 12(1), O. 53 rr. 2(4), 6

Societies Act 1966, ss. 2, 5(1), (2), 9(c), 17, 41(1)(a), (b), (c), (d), 42, 43, 44, 45, 46, 47, 48, 49, 50, 51

Counsel:

For the applicants - Tommy Thomas (Honey Tan Lay Ean & K Shanmuga with him); M/s Azzat & Izzat

For the respondents - Azizan Hj Arshad (Shamsul Bolhassan & Munahyza Mustafa with him) SFCs; AG's Chambers

Reported by Suhainah Wahiduddin