Pejuang wins court order to compel home minister to provide answer on RoS application within 14 days

KUALA LUMPUR, June 25 — Parti Pejuang Tanah Air (Pejuang) has been granted a court order compelling Datuk Seri Hamzah Zainudin, as the home minister, to make a decision concerning its pending application to register itself as a political party within the next 14 days, the High Court decided today.

Judge Datuk Ahmad Kamal Md Shahid, when reading out his judgment via a virtual proceeding, granted three out of four court orders which were sought by Pejuang through judicial review, where among them includes the mandamus order that compels Hamzah to decide within the fortnight.

Ahmad Kamal said, in his opinion, a five-and-a-half months delay from Hamzah to make a decision that does not need the input of others was a period that was unreasonable by usual norms and interpretations.

“I am of the view that the first respondent (Hamzah) has a legal duty to make a decision. In reasonable time means as soon as possible or within a reasonable time, and not as late as possible.

“The time taken by the first respondent (Hamzah) which is approximately five-and-a-half months until now would be unreasonable, hence the prayers sought by applicants on the declarations should be allowed.

“It is in my view that based on the facts and circumstances that the mandamus order against the first respondent to give his decision in the appeal by the applicant within 14 days from the date of this judgment should also be granted against the first respondent,” he said when reading out his judgment.

Pejuang today were also granted a court declaration from Ahmad Kamal that Hamzah’s omission or failure as the home minister to make any decision on their appeal letter dated January 8, 2021, regarding the second respondent’s or the Registrar of Societies’ (RoS) application rejection was a breach of his statutory obligations under Section 18 of the Societies Act 1966.

The third court order granted by Ahmad Kamal to Pejuang was a declaration that Hamzah’s breach of statutory obligations by the home minister — in failing to decide on the January 8 appeal — contravened Pejuang’s legitimate expectations, was unreasonable, malicious and an attempt to deny them the constitutional right to associate and Pejuang’s constitutional right to contest in the general elections using its own logo.

The last mandamus order sought by Pejuang, however, was dismissed by the Court.

“However, I am of the view that the prayer for the mandamus order to instruct the first respondent to instruct the second respondent to finalise the registration of Pejuang must be dismissed as the reliefs sought falls outside the scope of Section 18 (b) of the Societies Act,” said Ahmad Kamal.

In March, Pejuang, an association headed by former prime minister Tun Dr Mahathir Mohamad, filed a lawsuit against the home minister and RoS over the latter two’s failure to decide after about two months on the political party’s appeal to be officially registered by the government.

The civil suit, filed initially as a judicial review application, was served by Pejuang secretary-general Datuk Amiruddin Hamzah, on behalf of Pejuang’s founders or sponsors at the High Court here. 

A month later, Ahmad Kamal granted Pejuang leave to proceed with the judicial review after the Attorney General’s Chambers had told the court they had no objections to the leave application. 

Ahmad Kamal gave his judgment today before Pejuang’s counsels Muhammad Rafique Rashid Ali and Mior Nor Haidir, with Senior Federal Counsel Ahmad Hanir Hambaly @ Arwi and Federal Counsel Liyana Muhammad Fuad representing Hamzah and the RoS respectively over Zoom teleconference in compliance with movement control order SOPs. 

In justifying his judgment, Ahmad Kamal said despite the absence of a timeframe within Section 18 of the Societies Act to compel the minister to provide an answer, when read alongside Subsection 54(2) of the Interpretation Act, a reasonable time or at convenient speed does not amount to five-and-a-half months as in this particular case. 

He stopped short of providing what the court deemed as reasonable but highlighted the decision should have been made given its straightforwardness even despite Ahmad Hanir previously submitting how Pejuang’s application was number 90 on a waiting list of 102 reviews that required the attention of the minister. 

“It is clear the first respondent is the only person who will make the decision, there is no other person involved in making the decision; therefore, the process does not involve other people who must submit their views like a commission, it is solely the responsibility of the first respondent to make the decision. 

“Hence the decision-making process will not take time unlike a commission whose members’ views are vital, therefore five-and-a-half months is unreasonable for him in making such a decision. 

“Even though there were other cases and appeals for the first respondent to consider, the time taken to decide Pejuang’s appeal should not be too long as the issue does not involve complicated issues that need to be looked upon,” said Ahmad Kamal. 

Following today’s decision, Hamzah and the RoS can choose to comply with the court order or appeal against, a matter both parties have yet to comment on.  

Pejuang started the process to be registered by the government as a political party on August 19, 2020, when it submitted a full written application to the RoS. 

By October 22, 2020, it had failed to obtain any reply despite checking seven times for updates on the status of the party registration application.

On December 10, 2020, Pejuang via Amiruddin sued RoS and its director-general to seek for the High Court to compel the RoS to make a decision on the party’s August application to be officially registered.

But just a day before the High Court was scheduled to hear Pejuang’s application for leave for judicial review to challenge RoS’ months-long delay in deciding on the party registration application, the RoS on January 6, 2021, sent an email to notify Pejuang that it had decided to reject the party’s application for registration.

Following the RoS rejection of Pejuang’s registration application, the party then withdrew its lawsuit that had sought to have RoS decide on the registration application.

Pejuang on January 8, 2021, then submitted a letter to the home minister to appeal against the RoS rejection, but no decision has been made yet on this appeal to date and which then led to the filing of the leave application in March.