The decision of the Registrar of Societies (RoS) to issue an order yesterday to provisionally dissolve PPBM, purportedly pursuant to Section 14 (5) of the Societies Act 1966 for failure to comply with the RoS notice for information issued under Section 14 (2) of the act on Feb 28, is not only questionable but also unlawful. There is no dispute that PPBM is a political party.
PPBM has confirmed that the information required by the RoS was provided on March 29 before the expiry of the notice period. The RoS cannot invoke Section 14 (5) of the act unless the particulars have not been provided by PPBM. Further, Section 14 (5) of the act is not a mandatory provision but only discretionary. This means that even if the particulars are not provided or are insufficient, the RoS has discretion on whether or not to make the provisional dissolution order.
It must be noted that Section 14 (5) of the act comes under Part 1 of the legislation.
For the provisional dissolution order to be binding, it must be served on the relevant persons in PPBM pursuant to Section 62 of the act in Part 111 of the legislation. The relevant persons to be served are mentioned in Section 15 (1) of the act. If the order is not so served, then the persons mentioned are not bound by the said order.
The premise of the RoS order, among others, was that it disagreed with the interpretation of the PPBM constitution given by the party president on the issue of division and branch meetings of the party.
What the RoS overlooked was that under Section 18C of the act, the decision of a political party or any person authorised 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.
Section 18C of the act comes under Part 1A of the legislation. In the event of any inconsistency between Part 1A and Parts 1 and 111 of the act, Part 1A shall prevail. This is provided for in Section 18A of the act.
Therefore, the RoS like the court under Section 18C of the act is bound by the decision of the party or any person authorised by it such as the party president when it comes to the interpretation of the constitution, rules or regulations or any matter relating to the affairs of the party.
Even if the RoS was acting on the unverified allegations made by certain alleged PPBM members about the affairs of the party and the purported non-compliance with the constitution, rules and regulations of the party, it cannot take action in violation of Section 18C of the act.
The RoS was patently wrong to say that with the provisional dissolution order, PPBM cannot organise any political activity or use its party symbol for any purpose.
This is because PPBM only becomes an unlawful society if its registration is cancelled under Section 14 (7) of the act after the expiry of the 30-day period provided for in that section. This can only happen if PPBM does not provide the information required by the RoS within the 30-day period. If the information is provided, the RoS may cancel the provisional dissolution order under Section 14 (6) of the act.
PPBM also has the right to appeal to the home minister pursuant to Section 18 (j) of the act against the provisional dissolution order, and his decision will be final but still subject to judicial review.
Therefore, until and unless the dissolution order becomes absolute and PPBM is deemed to be an unlawful society and its registration cancelled under Section 2A, 13, 14 or 16 of the act, PPBM can continue with its lawful political activity including the use of its party symbol for the next 30 days.
In fact, Section 41 (1) (d) of the act is very clear on this. PPBM only becomes an unlawful society if its registration is cancelled under Section 2A, 13, 14 or 16 of the act. Once it becomes an unlawful society, only then do the statutory prohibitions and penalties under Section 42, 43, 44, 45, 46, 47, 48, 49, 50 or 51 of the act come into effect.
The RoS should be reminded that the provisional dissolution order is not the same as the cancellation of the registration of PPBM and therefore, PPBM is not yet an unlawful society.
In the interim, PPBM should continue to function as normal in accordance with the provisions of the act and its constitution, rules and regulations.
Any appeal by PPBM to the minister within the 30-day period and thereafter to the court by way of judicial review would take time, and it is unlikely that the provisional dissolution order will be cancelled before nomination day for the 14th general election. Therefore, as a precautionary measure PPBM should contest in the election under one of the other parties in the Pakatan Harapan coalition.
It is regrettable that the RoS has clearly exceeded its powers under the act in making the order for provisional dissolution. As a statutory body under the public service, the RoS must act and function in an independent and impartial manner. Its decisions must be made with integrity and in accordance with the law. Any improper exercise of discretion by the RoS is liable to be set aside in judicial review proceedings. But more importantly, it damages the credibility and image of the institution. Rightly or wrongly, the RoS at present is perceived to be a lackey of the ruling party.
Gerard Lourdesamy is an FMT reader.
The views expressed are those of the author and do not necessarily reflect the views of FMT.