From a freedom of association and human rights perspective, it is hypocritical for Prime Minister Anwar Ibrahim to call on societies to reject corruption, abuse of power and oppression.
It is the Malaysian government itself – through the draconian Societies Act 1966 and other laws like the Universities and University Colleges Act 1971 and the Trade Unions Act – that continues to oppress and abuse its power to prevent the full enjoyment of one’s right and freedom of association.
Like its predecessor, the Societies Ordinance 1949 of the States of Malaya [FM 28 of 1949] enacted by the British colonial powers, our current Societies Act was not enacted for the facilitation of one’s true right of association. Rather, it was for the state to ‘control’ and suppress one’s freedom of association.
In Malaysia, through this law, the state even controls the name of societies, their constitution and even the ability to register any society, including political parties. Members’ rights against societies are also denied.
Act that prevents registration of societies – abolish control of state
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Anwar’s own Parti Keadilan Rakyat (PKR), previously known as Parti Keadilan Nasional, could not itself easily register under the Societies Act. It had to go through a roundabout way by taking over an existing political society, Ikatan Masyarakat Islam Malaysia, and later amending its name.
Likewise, another Pakatan Harapan party, being Parti Amanah Negara, could not register easily. It had to take over the Malaysia Workers’ Party (Parti Pekerja-Pekerja Malaysia).
The Socialist Party of Malaysia (PSM) started to register as a party in 1998. But the Registrar of Societies (RoS) only approved its registration after 10 years, in 2008 after a long drawn-out court battle.
No society in Malaysia can be registered unless its constitution is pre-approved by the RoS. That results in the state’s ability to deny or control our freedom of association, which is unacceptable. Freedom of association means the easy registration of societies.
No changing constitution without registrar’s approval – this must end
Even when a society, through its membership of a society at a general meeting, the highest decision-making body of any society, makes an amendment to its constitution or rules, it will only come into force if and when the RoS approves it. The amendment can also be rejected by the RoS.
We saw this recently, when an amendment to the Parti Pribumi Bersatu Malaysia’s (Bersatu’s) constitution, aimed at preventing its members from switching sides, required RoS approval before it came into force.
The Societies Act, which denies freedom of association, must be repealed.
The freedom to register any society with any name must be there. The power and freedom to decide on or amend the society’s constitution and rules must be with members alone. There must be no necessity of prior state approval for any of this.
Political party members even denied right of access to court when their party violates their rights as members
In 1990, the Societies Act was amended through the Societies (Amendment) Act 1990 which introduced, amongst others, a new Section 18C. This provision denies access to court to members of one type of societies – political parties.
The law was amended following a 1988 suit by 11 Umno members, which resulted in a court declaration that Umno was unlawful. This resulted in the demise of Umno, which was formed in 1946 and which had been in government since independence. A new party, Umno Baru was speedily registered after that.
Section 18C now says:
The decision of a political party or any person authorized by it or by its constitution or rules or regulations made thereunder 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 and such decision shall 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 proceeding on any ground regarding the validity of such decision.
Thus, effectively, the law ousted the courts’ jurisdiction to hear matters concerning political party decisions. It also deprived party members from being able to refer any such matter, including wrongful termination of membership, to the courts.
The normal access to justice for any victims has always been the courts, which will independently uphold justice. This was no longer available for members of political parties.
Hence, the current party leadership can even simply expel or suspend the membership of party members whom they believe may even be potential contenders in the party’s upcoming elections that will decide on a new leadership – a threat to the incumbents’ continued hold of power.
This was possibly what happened prior to the last Umno elections, which saw the expulsion of Khairy Jamaluddin, suspension of Hishammuddin Hussein and the expulsion or suspension of others.
Sadly, our courts to date seems to be bound by Section 18C. So aggrieved members or victims of political party wrongdoings or abuse of power simply do not have the option to go to court to seek justice.
Now, Bersatu’s six expelled MPs, because of Section 18C, may have no right to bring the matter to court.
Anwar Ibrahim too, when expelled from Umno in 1998, had no access to court to challenge his ‘wrongful expulsion’ from Umno because of this Section 18C provision. Ironically, Anwar was in the Umno leadership and the cabinet when these amendments were brought to Parliament.
Freedom of association – a right of a person, not a political party
Freedom of association is a right accorded to persons, not to associations including political parties.
Article 10(1)(c) of the Federal Constitution says all citizens have the right to form associations. Once a member of an association, he or she naturally has equal membership rights and, reasonably, the right not to have his or her membership rights violated by other members, including the then elected leaders of the party.
When a society violates a member’s rights, access to court is fundamental
If a member’s rights are violated by other members or even the association, reasonably, the member ought to have recourse to the courts to determine whether there has been a violation of the member’s rights.
Did the political party wrongfully terminate his or her membership?
Was there procedural non-compliance, including the right to be heard, before termination?
Was the reason used justified or proven, whether it was a breach of the party’s constitution or rules?
It cannot be the alleged perpetrator who decides what is right or wrong. It always must be the courts.
Comparatively, when a worker is terminated, he or she has the right to take the employer to court for wrongful dismissal, and the court determines whether the termination was wrong or right. The same goes with any other alleged violation of workers’ rights.
A prime minister’s decision, a minister’s decision or any government decision can be taken to court for the court to determine whether the decision (among others) was illegal (contrary to law or rules), procedurally unfair and irrational.
Thus, why should members of a political party be unable to take the decisions or actions of their party to court for review?
There is no justification in denying the right of access to court to a member or members of a political party when the political party abuses its power or oppresses a member’s rights. A political party’s decision should also be subject to judicial review.
Section 18C – discriminatory?
In Malaysia, Section 18C of the Societies Act has removed the right of access to court for members of just political parties – not other societies.
That itself is wrong or discriminatory. Should not the same law apply to all societies and their members? After all, political parties are also societies under the Societies Act.
Courts are bound by bad laws – Only Parliament can reform bad laws
The courts are bound by laws enacted by Parliament, unless a law is in violation of the Federal Constitution.
Thus, until and unless Parliament amends the law, be it to repeal Section 18C and other draconian provisions, the injustice will continue. Oppression and abuse of power by party leaderships will continue.
Hence, Malaysians Against Death Penalty and Torture (Madpet) calls on Pakatan Harapan, led by Anwar, who just reaffirmed its commitment to the rejection of “corruption, abuse of power and oppression”. We call on the government to repeal the draconian Societies Act, including Section 18C and other draconian provisions that oust the court’s jurisdiction. This law is most oppressive and a violation of the right of members of political parties to defend themselves against violations of their right to association by their party.
Madpet calls for respect for freedom of association, including the rights of members in an association.
Madpet calls for a repeal of all legislations, like the Universities and University Colleges Act 1971 and the Trade Unions Act, especially provisions that violate freedom of association.
Madpet also calls for political parties and societies to repeal provisions in their constitutions and rules that deter their members’ access to the courts. – Madpet
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture.
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