Mahathir suit against PPBM: court postpones decision to 7th August 2020
(Malaysia Today) – The High Court heard at length this morning the arguments by Tun Dr Mahathir Mohamad as to why he ought to get an injunction to prevent Parti Pribumi Bersatu (PPBM) from expelling him from the party and to allow him to return as the Chairman. High Court Judge Rohani Ismail also heard arguments for Prime Minister Muhyiddin Yassin on why the action by Mahathir and the five others were frivolous and vexatious and ought to be struck out.
When court started, there was confusion when Syed Saddiq Abdul Rahman told the court he did not want to be represented by lawyer Mohamed Haniff Khatri Abdulla. Earlier, Syed Saddiq had filed a Notice of Change of Solicitors to change his lawyer to Messrs JR Tey.
Syed Saddiq backs out from suing PPBM
Judge Rohani was confused as it is unheard of for plaintiffs to be represented by different lawyers whereas it is accepted that defendants can have different lawyers. JR Tey explained that Haniff did not agree to allowing Syed Saddiq to withdraw as plaintiff, hence the change of lawyers.
After the change of Solicitors was allowed, Syed Saddiq then withdrew as plaintiff and asked the defendants to not seek costs against him. Muhyiddin’s lawyer, Rosli Dahlan, agreed not to press for costs.
The arguments on striking out stretched from 9.30am to 1.30pm. Muhyiddin is applying to firstly strike out Mahathir’s abuse of process by naming PPBM as the 7th plaintiff. According to Section 9c of the Societies Act, a society cannot sue or be sued in its name but has to sue on the name of its officers. Furthermore, Mahathir cannot use PPBM’s name because he is no longer a member of the party.
Lawyer Rosli Dahlan acting for PM Muhyiddin Yassin
Muhyiddin is also seeking to strike out the whole action by Mahathir and the other plaintiffs on the basis that they have no locus standi after crossing the floor of Parliament on 18th May 2020. In any event they lost all rights when they filed the action on 9th June 2020.
Clause 10.2 of PPBM’s constitution provides for the automatic loss of membership by certain pre-defined events:
“10.2. Keahlian seseorang ahli terhenti secara serta-merta apabila berlaku mana-mana satu yang berikut: …
10.2.6. Seseorang ahli membawa apa-apa jua perkara parti atau hak keahliannya ke mahkamah.”
The Court was also told that Section 18C of the Societies Act, 1966 bars the Plaintiffs from bringing this claim, as the decision of a political party to be final and conclusive
“18C. 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.”
Haniff Khatri may have ill-advised his clients
D.P. Naban, lead Counsel for Muhyiddin, cited the Federal Court decision in Pendaftar Pertubuhan v. Datuk Justine Jinggut [2013] 2 CLJ 362 which held that s.18C ‘clearly excludes the jurisdiction of the courts from going into the merits of any disputes between members of a political party’.
Naban also pointed out that Haniff was not candid on not disclosing he was the lawyer in Salihudin Hj Ahmad Khalid & Ors v Pendaftar Pertubuhan Malaysia & Anor [2020] 2 CLJ where the Court of Appeal unanimously held that s.18C was a clear intention by Parliament to exclude the jurisdiction of the Courts in respect of decisions of political parties on any matter relating to the affairs of a political party.
In fact, Mahathir was the Prime Minister who amended the law in Parliament by introducing s.18C into the Societies Act.
The court postponed the decision to 7th August 2020.
Muhyiddin’s legal team comprised of D.P. Naban, Rosli Dahlan, Chetan Jethwani and Leonard D’Cruz. Mahathir and the other plaintiffs were represented by Haniff Khatri, Tabian Tahir and two other counsel.
