IT is doubtful whether changes to political parties’ constitutions to prevent their members, especially MPS, from switching political allegiances can be subject to legal challenges.

One can call a political party a special species of society governed by the Societies Act 1966 (Revised 2021) (Act 832). This is because a separate Part 1A of the Act makes special provisions applicable to political parties only.

Part 1A has three sections: sections 18A, 18B and 18C. The first states that the provisions contained in Part 1A shall apply in addition to those contained in Part I and Part III of the Act to political parties registered under the Act and where there is any conflict or inconsistency between any provision in Part 1A and any provision in any other Part of the Act, the provision in Part 1A shall prevail to the extent of such conflict or inconsistency.

The second makes for circumstances which do not make an election in any political party invalid by reason of any failure to comply with any provision of the political party’s constitution or any rules or regulations made under the constitution.

The third is arguably the most significant. Section 18C states that the decision of a political party or any person authorized by it or by its constitution or rules or regulations made under the constitution 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.

Such decision shall also 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 proceedings on any ground regarding the validity of such decision.

The purport of the provision was considered by the Federal Court in the case of Pendaftar Pertubuhan v Datuk Justin Jinggut (2013), where a leadership crisis which broke out in the year 2002 within the Parti Kebangsaan Sarawak went all the way to the apex court.

Although strictly obiter, as the issues turned on sections 13(2) and 16(1) of the act, the Federal Court agreed with the decision of the Court of Appeal in Pendaftar Pertubuhan Malaysia v PV Das (Bagi Pihak People’s Progressive Party of Malaysia (PPP)) (Datuk M Kayveas, intervener) [2003]. 

Federal Court judge Abdull Hamid Embong, who delivered the judgment of the apex court, said: “Clearly the court is restrained from questioning the decisions made by the disputing parties of a political party at their respective meetings. The concluding phrase in section 18C was considered by the Court of Appeal in Pendaftar Pertubuhan Malaysia v PV Das (Bagi Pihak People’s Progressive Party of Malaysia) (M. Kayveas, intervener) [2003] 3 MLJ 449 where the court, with which we agree, held that effect must be given to the intention of Parliament in legislating section 18C of the Societies Act 1966.

“In section 18C, Parliament did not stop at the words ‘shall be final and conclusive and… shall not be challenged, appealed against, reviewed, quashed or called in question in any court’. It went further to provide’… 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’.”

The words clearly show that parliament intended to exclude the jurisdiction of the courts. – January 22, 2024.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.