IN THE COURT OF
APPEAL OF MALAYSIA HOLDEN IN KUCHING, SARAWAK (APPELATE JURISDICTION) CIVIL
APPEAL NO. KCH:Q-01(NCVC)(A)-384-12/2015
BETWEEN
1. DATO’SERI DR AHMAD ZAHID BIN HAMIDI MENTERI DALAM
NEGERI KEMENTERIAN DALAM NEGERI
2. PENDAFTAR JABATAN PENDAFTARAN PERTUBUHAN MALAYSIA
SARAWAK
3. GOVERNMENT OF MALAYSIA … APPELLANTS
 |
| SAPA president Lina Soo |
AND 1. SOO LINA (WN KP: 580502-13-6068)
2. HUGH LAWRENCE ZEHNDER (WN KP: 470811-13-5221)
3. TAMBI ANAK PILANG (WN KP: 560515-13-5875) (For and on
behalf of the Sarawak Society For People’s Aspiration (SAPA)) … RESPONDENTS
(In the Matter at the High Court in Sarawak at Kuching
Application for Judicial Review No: KCH-13NCVC-2/1-2015
Between
1. Soo Lina (WN KP: 580502-13-6068) - -
2. Hugh Lawrence Zehnder (WN KP: 470811-13-5221)
3. Tambi Anak Pilang (WN KP: 560515-13-5875) (For and on
behalf of the Sarawak Society For People’s Aspiration (SAPA)) … Applicants
And 1. Dato’ Seri Dr Ahmad Zahid Bin Hamidi Menteri Dalam
Negeri Kementerian Dalam Negeri
2. Pendaftar Jabatan Pendaftaran Pertubuhan Malaysia
Sarawak
3. Government of Malaysia … Respondents)
CORAM MOHD ZAWAWI
SALLEH, JCA
ABDUL RAHMAN SEBLI, JCA
ABDUL KARIM ABDUL JALIL, JCA
JUDGMENT OF THE COURT
Introduction
[1] This is an appeal against
the decision of the High Court of Sabah and Sarawak at Kuching (Rhodzariah
Bujang J (as she then was), presiding) dated 30.10.2015, granting the
respondents’ application, inter alia, for an order of certiorari to quash the
1st appellant’s order dated 14 November 2014 which declared the Sarawak
Association For Peoples’ Aspiration (“SAPA”) an unlawful and/or illegal society
with costs of RM8,000.00.
[2] After hearing
the parties, we dismissed the appeal and affirmed the decision of the learned
High Court Judge. We now give our reasons.
Background Facts
[3] The background facts relating to this appeal have
been set out in the grounds of judgment of the learned High Court Judge. We do
not propose to repeat them in entirety, save to highlight the facts that are
germane to the appeal.
[4] The
respondents are committee/office bearers of SAPA. The 1 st respondent, Soo
Lina, is SAPA’s president, Hugh Lawrence Zehnner its deputy president, and
Tambi anak Pilang its assistant secretary.
[5] SAPA is a human rights society which has been
registered under the Societies Act 1966 (Act 335) on 12 November 2013. - 4 -
[6] As stated in
clause 3 of its Constitution, SAPA’s objectives are as follows –
(a) To uphold and promote universal respect for, and
observance of human rights and fundamental freedoms as enshrined in the United
Nations Universal Declaration of Human Rights;
(b) To defend the right of every Sarawakian to a standard
of living adequate for the health and well-being of himself and his family,
including food, clothing, housing, medical care and other social services;
(c) To defend the right to education for every Sarawakian
irrespective of race, creed, gender, language, religion, social origin, birth
or other status;
(d) To support and empower communities working for peace
and justice, indigenous and human rights, democracy and gender equality;
(e) To initiate and support community programmes for the
eradication of poverty;
(f) To provide a forum for like-minded citizens to
exchange ideas and experiences; (g) To accept from government, purchase, take
on lease or in exchange or otherwise occupy or acquire any land or building for
the attainment of the objectives of the Association; and - 5 -
(h) Any other initiatives to enhance the progress,
empowerment and holistic development of the people of Sarawak.
[7] The main activities of SAPA since its inception are
to promote human rights education, especially Sarawakian rights. In this
respect, public talks and forums are held which touch on the history of
Sarawak, the formation of Malaysia and the Malaysia Agreement. All SAPA forums
and other activities are open to the public.
[8] The 1st appellant (Minister of Home Affairs) had
declared SAPA as an illegal society pursuant to section 5 of Act 335 via a
Federal Government Gazette published on 14 November 2014. The 1st appellant was
of the opinion that ‘SAPA is being used for the purposes prejudicial to the
interest of the security of Malaysia and public order’.
[9] SAPA was deregistered following the said decision.
[10] Aggrieved with the impugned decision, the
respondents filed an application for a judicial review and sought, inter alia,
an order for certiorari to quash the impugned decision, costs and other reliefs
deemed fit by the court.
[11] The nub of the respondents’ contention is that the
impugned decision struck at the very tenets of democracy and fundamental civil
liberties i.e. freedom of speech and expression, freedom of thought and freedom
of association guaranteed by the Federal Constitution.
[12] The respondents further contended that the impugned
decision is totally unjustified. According to the respondents, SAPA never - 6 -
carried out any activities or was being “used for the purposes prejudicial to
the interest of the security of Malaysia and public order”.
[13] The respondents posited that the impugned decision
is illegal, unreasonable and/or irrational, or based on procedural impropriety
which is amenable to judicial review.
[14] In response, the 1st appellant vide Affidavit in
Reply dated 11.5.2015 denied all the allegations put forward by the respondents
and stated that he had considered all the relevant facts and exercised the
power provided under section 5 of Act 355 judiciously in declaring SAPA an
unlawful society.
[15] As alluded to earlier, the learned High Court Judge
found in favour of the respondents and allowed the respondents’ application
with costs of RM8,000.00 to the respondents.
[16] Being dissatisfied the decision, the appellants
appealed to this Court. Hence, this appeal before us.
The Appeal
[17] The appellants assail the decision of the learned
High Court Judge on the following grounds –
(a) The learned High Court judge had erred in fact and in
law when Her Ladyship had decided that the 1st appellant’s decision is
unreasonable and/or irrational even though there are sufficient evidence on
record to justify the 1st appellant’s decision; - 7 -
(b) The learned High court Judge had erred in law and in
fact when Her Ladyship decided that the 1st appellant had not proved any
untoward incidents to the activities involving the SAPA when the 1st appellant
made his decision under section 5 of Act 335;
(c) The learned High Court Judge had erred in law when
Her Ladyship usurping the power of the 1st appellant in relation to the matters
pertaining to the national security as provided under section5 of Act 335; and
(d) The learned High Court Judge had erred in law when
Her Ladyship quashed the decision of the 1st appellant dated 14.11.2014 even
though the decision arrived by the 1st appellant is in compliance with section
5 of Act 335.
[42] Now, we turn
to the facts of this instant appeal. The 1st appellant deposed in his Affidavit
in Reply that there were police reports lodged against SAPA with respect to the
activities of SAPA which he claimed were prejudicial to the interest of the
security of Malaysia and public order, hence the declaration on its illegality
with effect 14th November 2014.
[43] The learned High Court Judge had summarised the said
police reports in his grounds of judgment and we reproduce the same hereunder –
“(i) Kuching Sentral Report No. SENTRAL/008390/13 dated
27th December 2013 made by one Abdul Rahman bin Nazirin who complained that Soo
Lina was inviting a number of NGOs through the social media to assemble at a
ceremony called Sarawak Nationalist Year End Gathering 2013. The complainant
alleged that the intention of Lina and her associates was to influence
(“menghasut”) the people of Sabah and Sarawak to hate the Federal Government
who were not fair to the two States and to agitate for the two States to leave
Malaysia which action is disruptive of the harmonious relations in the two
States. The report is in Bahasa Malaysia and the above summary is my own
translation of the - 27 - same. I noted that the Association was not mentioned
in this report.
(ii) Miri Report No. MIRI/004047/14 dated 20th April 2014
by a police officer Nagulan a/l Maniam who stated that he was with a group of
police personnel supervising an assembly of fifty persons at Taman Awam Miri
who were carrying banners “ Sarawak for Sarawakians” and “July 22nd Sarawak Day
– Enhance Immigration Law – Restore English medium – One Race One Dream” . He
identified amongst those present was Eric Chin from a political party SUPP Miri
and Chong Kon Fat from another political party, STAR. I noted that neither the
Association nor the applications or its other members were named in the report.
(iii) Padungan
Report No. PADUNGAN/001224/14 dated 1st May 2014 by Ramlan bin Hamzah who
reported reading an article in a blog of The Malaysian Insiders, where it was
allegedly said in a forum organized by the Association that breaches of the
Malaysian Agreement has rendered it invalid. (iv) Kuching Sentral Report No.
SENTRAL/003919/14 dated 19th July 2014 by a policeman Sim Tiang Khoon against
the staging of a “Sarawak Independent Walk” attended by about 40 to 60 people
at Padang Merdeka. The situation was under control, he said. Neither the
Association and/or its committee members were mentioned in the report.
(v) Kuching Sentral Report No. SENTRAL /003967/14 dated
22nd July 2014 about the gathering of the Association participated by about
eighty to one - 28 - hundred persons carrying placards and gathering signatures
who marched to the old courthouse and assembled infront of the Square Tower.
The situation was under control, he said.
(vi) Satok Report No. SATOK/4139/14 dated 3rd September
2014 by police officer, Lee Leng Ian on a Face book posting of the Association
urging people to attend a briefing on the Malaysia Agreement by Mr. Robert Pei
on 7th September 2014 at 2.00 p.m which according to him will affect peace and
harmony in Sarawak. I noted that there is no follow-up on the said event.
(vii) Miri Report No. LUTONG/005095/14 dated 15th
September 2014 by a police officer, Mohd Kushaini bin Sulaiman regarding their
supervision of the gathering at the Petronas Office, Luthong which was
organised by the Association and was attended by about eighty to one hundred
people. He mentioned in the report that the slogan “Sarawak for Sarawakians”
was voiced and a number of placards bearing words such as “No satisfaction with
5%” and “Bigger Oil and Gas Cake for Sarawak” were displayed. No untowards
incident happened at that gathering, he said.
(viii) Miri Report No. LUTONG/005095/14 dated 15th
September 2014 by the same police officer above on the same incident but at the
Shell’s office.
(ix) Miri Report No. LTBG MIRI/001633/14 dated 16th
September 2014 by another police, Tosing ak. Dareh regarding a gathering of
about thirty persons at Jalan Airport wearing black shirts with the words
“Sarawak for Sarawakians” - 29 - with words such as “Bousted – Tanah Sarawak
Bukan Milik Nenek Moyang Kamu”. “Tanah NCR Milik Orang Asal, Bukan Milik
Boustead”. “Hentikan Pencerobohan Terhadap Tanah Kami” and “Stop Sarawak Dams”.
Again, neither the Association not its committee members were mentioned in this
report.’.
[44] After
reviewing the above police reports objectively, the learned High Court Judge
concluded as follows – “The decision to outlaw the Association is unreasonable
for the reasons that the evidence supporting the basis of that decision is
severely lacking and the Hon. Minister had it appears, considered even police reports
of incidents not related to the Association and/or it’s committee members,
which in itself and with respect is a flaw in the decision making process.”.
[45] We are in full agreement with the findings of the
learned High Court Judge that the police reports relied upon by the 1st
appellant neither collectively nor singularly produced that the result that
SAPA and their activities had compromised the interest of the security of
Malaysia and public order. From the reports, it is clear that the gathering organised
by SAPA were indeed peaceful and under the watchful eyes of the police and with
no untoward incidents.
[46] The insistence to honour the Malaysia Agreement, the
reminder that Sarawak is an equal partners in the formation of Malaysia and to
have a more fairer share in the oil and gas revenue provided by the state had
not been shown to be agitations which disrupted or had potential to disrupt
public order or to threaten the security of Malaysia. -
[47] We also agree
with the learned High Court Judge that in a democratic country like Malaysia, a
mere dissenting voice or a chorus of such voices without more cannot simply be
categorized as detrimental to public order and national security.
[48] In her Supplementary Affidavit affirmed on 8th June
2015, the 1st respondent referred to statements made by Sarawak Minister for
Land Development, Tan Sri Datuk Amar James Masing and by the then Chief
Minister, Tan Sri Datuk Patinggi Adenan Satem (reported in Borneo Post dated
4th June 2015 and 3rd June 2015 respectively) where the former reiterated the
need to honour the Malaysia Agreement and the latter that Sarawak should be
recognised as a component in the formation of Malaysia and not just a state in
Malaysia. The 1st respondent also exhibited a copy of an online report of
Borneo Post dated 10th November 2013 where the later repeatedly made comments
along the same line. The report was headlined ‘Masing wants review on state’s
position in Malaysia Federation’.
[49] In our view, what SAPA has been saying in its forums
basically are what the Chief Minister and other Ministers from Sarawak have
also been quoted to have said in the Borneo Post.
[50] The learned High Court Judge also referred to the
statement of another Sarawak Minister, Datuk Abang Johari Tun Openg (now the
Chief Minister of Sarawak) reported on the front page of the Sunday Post on
25th October 2015 who had proposed the setting up of a formal committee from
both the States and Federal Government to - revisit the Malaysia Agreement. The
Federal Government had agreed with the proposal.
[51] The highlighted statements in the Affidavit in Reply
of the 1st respondent were not answered or rebutted by the 1st appellant and
therefore deemed to be admitted.
[52] In the course of hearing submissions from both
parties, we put a direct question to learned Senior Federal Counsel as whether
there was evidence to show that SAPA was directly or indirectly trying to
champion the secession of Sarawak from the Federation of Malaysia. To her
credit, learned Senior Federal Counsel candidly conceded that there was no
evidence to suggest that SAPA is a “secessionist” group.
{53] For the reasons we have stated above, we are
constrained to hold that the 1st appellant’s decision which declared SAPA as
unlawful society is unreasonable because it is fundamentally at variance with
reason and common sense. There was no evidence to justify the factual
conclusion reached by the 1st appellant.
[54] That, however, it is not the end of the matter.
Senior Federal Counsel complained that the learned High Court Judge had erred
in law in holding that the respondents ought to be given the right to be heard
even though there is no such right provided under section 5 of Act 335.
[55] We agree with the submission. However, it is
pertinent to note that it is only an additional ground proffered by the learned
High Court Judge as Her Ladyship had already decided to grant an order of
certiorari to quash the impugned decision/order of made by the 1st - appellant.
Her Ladyship addressed the issue in passing as it has been raised by the
respondents in their submission. The issue was discussed in order for the
completeness of her grounds of judgment.
[56] We agree with learned Senior Federal Counsel that
section 5 of Act 355 does not impose a statutory duty on the 1st appellant to
afford the respondents an opportunity to be heard. There cannot be any breach
where such rights do not exist in law. (See Nordin Hj. Zakaria (Timbalan Ketua
Polis Kelantan) & Anor v Mohd Noor Abdullah [2004] 2 CLJ 777). In the
absence of any provision as to the right to be heard in section 5 of Act 355,
no question of failure to observe the principal of natural justice could arise.
[57] Having said that we must hasten to add that the
trend of law has been towards increased recognition of the duty upon the
decisionmakers to afford an opportunity to be heard before making any adverse
decision against the person concerned. This trend is consistent with current
development towards an increased openness in the matter of government and
administration. In Halsbury’s Law of England (Judicial Review) (Volume 61
(2010) 5th Edition), para 639, it stated as follows with respect to the right
to notice and opportunity to be heard – “The rule that no person is to be
condemned unless that person has been given prior notice of the allegations
against him and a fair opportunity to be heard (the audi alteram partem rule)
is a fundamental principle of justice.
This rule has been refined and adapted to govern the
proceedings of bodies other than judicial tribunals; and a duty to act in
conformity with the rule has been imposed by the common law on administrative
bodies not required by statute or contract to conduct themselves in a manner
analogous to a court. Moreover, even in the absence of any charge, the severity
of the impact of an administrative decision on the interests of an individual
may suffice in itself to attract a duty to comply with this rule …
However, the nature of an inquiry or a provisional
decision may be such as to give rise to a reasonable expectation that persons
prejudicially affected should be afforded an opportunity to put their case at
that stage; and it may be unfair not to require the inquiry to be conducted in
judicial spirit if its outcome is likely to expose a person to a legal hazard
or other substantial prejudice. The circumstances in which the rule will apply
cannot be exhaustively defined, but they embrace a wide range of situations in
which acts or decisions have civil consequences for individuals by directly
affecting their interests or legitimate expectations.”.
Conclusion
[58] For the foregoing reasons, we had concluded that the
appeal was bereft of merit and dismissedthe same with no order as to costs. So
ordered.
Dated: 19th December 2017
sgd. (DATO’ SETIA MOHD ZAWAWI SALLEH) Judge Court of
Appeal Malaysia
Counsel for
Appellants: Maisarah Juhari Senior Federal Counsel Civil Division Attorney
General’s Chambers No. 45, Persiaran Perdana Precinct 4 62100 Putrajaya.
Counsel for the Respondents: Dominique Ng Advocates Lot
4259, Block 207 Jalan Sungai Maong (Poh Kwong Park 93150 Kuching Sarawak
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