16 ex-UMNO members challenging RoS decision, not party's, Federal Court told

Their counsel Mohamed Haniff Khatri Abdulla submitted that the sixteen were not directly challenging UMNO’s internal decision.

He said they challenging the RoS’ decision to allow extension of time was on the basis that it was tainted with illegality, irrationality and procedural impropriety.

Mohamed Haniff Khatri argued that the reliance by the High Court judge and Court of Appeal judges on Section 18C of the Society Act 1966 was misplaced.

The High Court in 2018 had dismissed the sixteen’s application to obtain leave to commence a judicial review to challenge the legality of UMNO’s decision on grounds that Section 18C stipulates that a party member cannot bring a dispute regarding the party to court.

The 16 former UMNO members are Salihudin Ahmad Khalid, Noorhalimi Yahya, Mariam Mohd Ishak, Mohd Hafami Hanif, Saharudin Tukiman, Azaid Jani, Normalawati Hassan, Radiana Abd Manaf, Mohd Rafeek Rahim, Nurul Hanna Mohd Suhot, Kamarul Abd Wahid, Mohd Hikamal Md Hassim, Muzamzamir Abd Wahab, Norizam Jamaludin, Rohani Ahmad and Muhamad Hafizi Hashim.

Mohamed Haniff Khatri said Section 18C was not applicable in the present case as it did not apply to the ROS’ decision and only applies to the decision of the political party.

Earlier, the Federal Court bench led by Chief Judge of Malaya Tan Sri Azahar Mohamed raised a question whether the High Court and Court of Appeal had been correct on the factual matrix of the appeal to rely on Section 18C and whether that section was relevant to the legal questions posed in the appeal.

The other judges were Federal Court judges Datuk Abdul Rahman Sebli, Datuk Seri Hasnah Mohammed Hashim, Datuk Mary Lim Thiam Suan and Datuk Rhodzariah Bujang. The proceedings were conducted remotely via Zoom.

Senior Federal Counsel Shamsul Bolhassan, however, submitted that the appellants were in fact challenging the decision of the political party, adding that it was a disguise to bypass Section 18C.

The court also heard submissions on the issue of locus standi (legal standing) of the former UMNO members to file the judicial review and the issue of whether the matter was academic.

Datuk Wira Mohd Hafarizam Harun, appearing for then UMNO executive secretary Datuk Seri Ab Rauf Yusoh, argued the issues raised by the appellants on his client's decision to extend the party's election and the RoS’ decision to allow the extension of time were no longer in existence as party election on all levels had been carried out in June 2018.

As such, a remedy from the court was no longer needed or would it affect the parties, adding that the sixteen former UMNO members also did not have the locus standi as their membership had been terminated.

The sixteen had filed leave to commence a judicial review, naming the RoS and Ab Rauf, in his capacity as the political party’s public officer, as respondents.

Among others, they sought a certiorari order to quash the RoS decision as announced through a media statement dated March 5, 2018, to grant UMNO an extension for its party elections till April 19, 2019, which exceeded the maximum period.

They had further sought a mandamus to compel RoS to provisionally dissolve UMNO and for RoS to suspend all the party activities pending disposal of the judicial review.

The High Court, on April 27, 2018 denied the group leave to commence the judicial review and they lost their appeal in the Court of Appeal in Nov 2018.

The Federal Court, last year granted leave to the group to pursue their appeal on two legal questions.

The court will set another date to be fixed later to continue the appeal hearing and all parties were instructed to include additional submission on whether Section 18C was applicable to the judicial review.