MARCH 7 ― Home Minister Datuk Seri Saifuddin Nasution Ismail today confirmed that Umno was granted an exemption under the Societies Act 1966 for the resolution barring contests for its top two posts in the upcoming party elections.

He said the exemption was granted to Umno pursuant to Section 70 of the Societies Act 1966 (Act 832).

"In reference to Umno’s constitution and conference rules, the ministry has, in accordance with Section 70 of the Societies Act 1966 decided to exempt Umno from compliance with Section 13(1)(c)(iv) of the Act,” he said in a statement today.

Section 70 allows the minister, at his discretion, to exempt in writing any society registered under the Act from all or any of the provisions of the Act. It reads as follows:

Power to exempt

The Minister may at his discretion in writing exempt any society registered under this Act from all or any of the provisions of this Act.

Ministerial discretions are worded differently in the law. For example, Section 5(1) of the Act reads as follow:

Power of the minister to declare a society unlawful

It shall be lawful for the Minister in his absolute discretion by order to declare unlawful any society or branch or class or description of any societies which in his opinion is or is being used for purposes prejudicial to or incompatible with the interest of the security of Malaysia or any part of Malaysia, public order or morality. (Emphasis added)

It is clearly stated that the "discretion” given to the minister in the provision above is an "absolute discretion.”

Be that as it may, the fact that Parliament has given "absolute discretion” to the minister does not necessarily immunise the minister’s decision from judicial review.

The minister can still be held to have committed an error of law in the exercise of the discretion if the decision in question can be challenged on the ground of "illegality, irrationality, procedural impropriety and proportionality.” (See the recent decision of the Court of Appeal in Hew Kuan Yau v Menteri Dalam Negeri & Ors [2022] MLJU 1571)

The ground is a principle of administrative law that was propounded in the celebrated English House of Lords case of Council of Civil Service Unions & Ors v Minister for Civil Service [1985] 1 AC 374, which has been consistently followed by Malaysian courts.

Accordingly, although the discretion of the minister is stated to be absolute, such discretion must also have legal limits to avoid it being abused. (See the judgment of the Court of Appeal in Mohd Faizal Musa v Menteri Keselamatan Dalam Negeri [2018] 9 CLJ 496).

It is an established law that a court does not interfere if the ministerial discretion is properly exercised.

However, it is also clear that whatever label is attached to the nature of the discretion, the minister’s action can be questioned if it breaches administrative law principles.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.