A GLIMMER OF HOPE?

by

K.Siladass

         

Mohd Sharif bin Abdullah applied to the National Registration Department (NRD) to change his religious status on his identity card which described him as a Muslim. Mohd Sharif’s earlier action in the High Court to remove the word was dismissed, so also his appeal to the Court of Appeal. Now, the Federal Court has dismissed Mohd Sharif’s application for leave to appeal to itself. The exact judgment of the Federal Court was not available at the time of writing this note. However, the brief report in the MalayMail Online gives a good narration of what had happened.

          Mohd Sharif was a Hindu by birth, thus the description “Hindu-born”. Mohd Sharif claimed that, when an identity card was issued to him the NRD had relied on an application that had been filed by his mother. There is no indication, in the brief story, as to the religious status of Hindu-born Mohd Sharif’s parents.

          In refusing leave, the Federal Court unanimously decided that based on the facts, Mohd Sharif should seek a declaration that he is not a Muslim. Apparently there had been an administrative error, for there was no conclusive evidence that Mohd Sharif had ever converted to Islam. There was also the observation by the Chief Justice of Malaysia Tun Arifin Zakaria that there was no certificate that Mohd Sharif had converted to Islam: therefore, without that certificate of conversion Mohd Sharif cannot be a Muslim. Mere “registration as Muslim does not make you a Muslim” so observed the learned Chief Justice. The NRD had issued the contentious identity card when Mohd Sharif was 12 years old on an application made by his mother. So, it was not a case of conversion or a challenge to the improper conversion; but, a case of mistaken description of Mohd Sharif’s religious status on his identity card.

  

In the light of these circumstances the Federal Court indicated that Mohd Sharif should seek a declaration.

The next question is which court has the jurisdiction to make a declaration that Mohd Sharif is not a Muslim. Firstly, a declaratory relief could only be granted by the High Court as it is the only court which is empowered to grant such reliefs. This can be gleaned from the Courts of Judicature Act 1964, sections 23, 24 and 25. The Shariah Court’s jurisdiction does not cover declaratory reliefs. Besides, its jurisdiction only extends to Muslims but not non-Muslims. This too is clear from the learned Chief Justice observation.

The position of “Mohd Sharif” is that he is not a Muslim; but by an administrative error his religious status had been described as Islam. This is not case where “Mohd Sharif” is leaving Islam but exercising his constitutional right to correct a mistake on his identity card. Therefore, Shariah court is not the correct forum to correct this error.

It may have been proper that the Federal Court could have exercised its inherent powers and rectified the administrative error. However, in democracy, rule of law is important and has to be strictly observed. The decision which carried the advice to seek a declaration is correct and consistent with the rule of law and the Constitutional provisions.

MIC LEADERSHIP TUSSLE

by

K.Siladass

         

When there is a leadership tussle in a political party, or there arises a dispute between the members of a political party such leadership tussle, or the members’ dispute should be settled by the political party’s own members. The rules of a political party, would provide the mechanism as to how any such dispute should be resolved. Contrary to the established rule drastic change was introduced by the former Prime Minister Tun Dr Mahathir Mohamed’s government whereby a provision empowering the Registrar of Societies to intervene in the affairs of a political party if there is a dispute in the manner that party is managed. This provision could be scandalously abused when a member, to satiate his own selfish ends, makes unfounded allegations thus invoking the Registrar’s intervention.

          In 1960, one Tharmalingam brought an action against the then MIC President V.T. Sambanthan, in which the former claimed that his dismissal from the party was illegal and that he be reinstated. Tharmalingam had in fact ignored the MIC rules governing this sort of complaints, which is in fact domestic inquiry, and had gone directly to court for remedy. In this context the then Chief Justice Thompson said that, Tharmalingam should have come to court after the “MIC Gods” had dealt with his grievances. [see Tharmalingam v. Sambanthan (1961) MLJ 63].

If we look at the laws as they are in relation to the affairs of political parties it would seem that the Registrar is the present God.

          There is currently a dispute in MIC as to which faction commands the support of the party members and who is the de facto President. Elected President of MIC Dato Sri Palanivel has had been removed, in fact dismissed, from the party in the pretext that he has contravened MIC’s constitution.

          The present position in the light of the current impasse in MIC is that it is not that MIC members who are unable to find a solution but there is no mechanism to solve it when a tussle of this magnitude springs up. The help of the Registrar is needed, purportedly an independent authority. The question is: would the Registrar of Societies act impartially? In a time when the number of little Napoleons has rapidly increased the views of the Registrar of Societies, whether in writing of otherwise, could attract considerable controversy. The ROS should not lend his ears to one side and come to a conclusion which could result in being challenged in court. Besides, it would be patently wrong to allege that what the Registrar has stated in his letter is final. The Registrar may say many things clouded by the lopsided comments, and unfounded allegations. There could be no basis for such a claim. In fact, the ROS has not the power to terminate the membership of a party member.

It is now claimed that Dato Sri Palanivel, by going to court, has ceased to be a member of MIC. Those who so claim rely on Article 15.6 read together with Article 91 of the MIC Constitution.

         

Article 91 reads as follows:

“Every member shall be bound by the decision of the Central Working Committee in matters relating to his rights, obligations, duties and privileges as a member of the Congress. If he resorts to court proceedings in respect of his rights, obligations, duties and privileges or on behalf of any other member or in respect of the rendering or meaning of the provisions of this Constitution without first referring to the Central Working Committee or in violation of any decision or directive if the Central Working Committee he shall ipso facto cease to be a member of the Congress and shall not be entitled to exercise any of the rights of a member.”    

And Article 15.6 reads as follows:

“Any member who resorts to Court proceedings in breach of Article 91 shall cease to be a member.”   

          The effect of article 91 is that every member shall be bound by the decision of the Central Working Committee. In Palanivel’s case the Central Working Committee has not made any decision which would, in case of any contravention, result in the said provision being invoked. Palanivel has made an application to the High Court, for judicial review as against the ROS. In other words, ROS has made certain decisions which affect the party not an individual. Palanivel wants that wrong to be remedied. It was not an action against MIC or its members, or over any decision MIC’s Central Working Committee had made. It is simply a matter where the ROS had made a decision without consulting the person affected by his decision. Strictly speaking the ROS is in breach of the rules of natural justice as he had failed to give an opportunity to Palanivel to explain a properly formulated charge. Or, the ROS has exceeded his powers; or, that the ROS is bias. Besides, the ROS seems to have believed what Palanivel’s opponent had said, which should have been tested critically and with opportunity extended to Palanivel to explain or challenge the allegations levelled against him. But, what is he guilty of? Seeking legitimate redress for the wrong decision of ROS which could affect the party as a whole is not within the contemplation of Article 15-6 read together with Article 91 of MIC’s constitution.

          In the circumstances it would be wrong to conclude that Palanivel has lost the membership of MIC.