Today, the Kuala Lumpur High Court quashed the Home Minister & Registrar of Societies (“ROS”)’ decision to deregister Persatuan Penduduk dan Pemilik Bandar Utama Petaling Jaya (Bandar Utama Residents Association, Petaling Jaya) (“BURA”).
ROS had de-registered BURA on 15.9.2020. That decision was upheld by the Home Minister on 12.9.2022. Among the reasons for deregistering BURA were:
(a) Failure to vote in or appoint an Assistant Secretary, Assistant Treasurer & a representative from each of the sections in the Bandar Utama township, as provided in BURA’s Constitution
(b) Failure to organize Executive Council meetings once a month, as provided in BURA’s Constitution
(c) Failure to organize the AGM for the year 2019
(d) Failure to prepare audited financial accounts for 2015-2018
(e) Failure to update BURA’s latest registered address in ROS’ online system for societies called “eROSES”
(f) BURA had used flags, symbols & badges in materials without ROS’ consent
In reaching the decision, the Home Minister & ROS relied on Section 13(1)(iv) of the Societies Act 1966:
“(1) Subject to subsection (2), the Registrar may, in the following cases, cancel the registration of any society registered under section 7…
(c) if the Registrar is satisfied—
…
(iv) that the society has wilfully contravened any provision of this Act or of any regulation made thereunder or of any of its rules or that any members of the society have habitually contravened the provision of subsection 4(1) of the Sedition Act 1948 [Act 15] by any acts or utterances to which paragraph 3(1)(f) of that Act applies”
The Applicants, who were current & previous Executive Council members of BURA, filed a judicial review to, among others, quash the impugned decision above.
In His Lordship’s broad oral grounds of judgment, Justice Wan Ahmad Farid found that the impugned decision had contravened the doctrine of proportionality, which is well-established in administrative law since Edgar Joseph Jr FCJ’s decisions in R Rama Chandran v The Industrial Court Of Malaysia & Anor [1997] 1 MLJ 145 & Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor dengan tanggungan [1999] 3 MLJ 1. His Lordship also held that the need for Executive decisions to be proportionate also has a constitutional dimension, taking into account recent apex court decisions including Letitia Bosman v Public Prosecutor and other appeals (No 1) [2020] 5 MLJ 277.
His Lordship found that, even assuming there was non-compliance by BURA towards its Constitution & the Societies Act 1966, the decision to de-register BURA was ultimately disproportionate for 3 reasons. First, this was a first time offence in BURA’s 30-year long history. Second, there was no element of dishonesty or abuse of funds in the aforesaid non-compliance. Third, the Executive could & ought to have given time for BURA to rectify the non-compliance, but decided to resort to the drastic decision to de-register instead.
As such, Justice Wan Ahmad Farid granted an order of certiorari to quash the impugned decision. His Lordship further granted an order of certiorari to quash ROS’ decision to blacklist the applicants from forming any society or becoming executive council members of existing societies – ROS had recently set up a blacklist database online which is accessible to the public.
This decision brings to close a 3 year long ordeal for BURA, an active resident association with a rich history in the matured township of Bandar Utama. Over the years, BURA has contributed in organizing various community events, sport activities, security patrols & in spearheading community protests on overdevelopment in the neighbourhood.
On a broader level, this decision also brings into the forefront the necessity of all Executive bodies to act proportionately in arriving at any decisions, particularly within the framework of regulating registered societies in Malaysia. It is not uncommon for registered societies in Malaysia to have failed to comply with certain clauses in their Constitution, or to fail to update information on the eROSES system – most of the times, by genuine oversight & not wilfully. This case may set a useful precedent that, barring any element of dishonesty, de-registering a society under Section 13(1)(iv) of the Societies Act 1966 for first-time non-compliances is disproportionate & can be quashed by the Courts.
It must be noted however that the written grounds of judgment are not provided yet at this stage. We will update the same on this site once or if they are available.
Our Lim Wei Jiet (assisted by pupil-in-chambers Nevyn Vinosh) acted for the successful Applicants from BURA.
