A claim may only be struck out if it is plainly unsustainable; constitutional challenges in party disputes warrant judicial review despite internal regulations.

Roz Mawar Rozain J:

[1] This judgment pertains to the Defendants' respective applications to strike out the Plaintiff's Originating Summons (OS) under O 18 r 19(1)(a), (b), and (d) of the Rules of Court 2012 (ROC). The primary issue before this Court is whether the Plaintiff's OS discloses a reasonable cause of action or is frivolous, vexatious, and an abuse of Court process.

[2] The Plaintiff, a former member of Parti Pribumi BERSATU Malaysia (BERSATU) and the elected representative for N.43 Nenggiri, Kelantan, challenges his alleged loss of membership in BERSATU, the declaration of a casual vacancy in his seat, and the by-election conducted by the 4th Defendant.

Issues For Determination

[3] The applications to strike out the OS raise the following key issues:

(a) Whether the Plaintiff has disclosed a reasonable cause of action against the Defendants;

(b) Whether the claim is barred by s 18C of the Societies Act 1966 ;

(c) Whether the Plaintiff has locus standi to challenge his removal from BERSATU and the vacancy of his seat;

(d) Whether the Plaintiff's claim against the Election Commission (4th Defendant) is sustainable;

(e) Whether the reliefs sought by the Plaintiff are academic, moot, or an abuse of Court process.

Analysis And Findings

Issue 1: Whether The Plaintiff's OS Discloses A Reasonable Cause Of Action

[4] The test for striking out under O 18 r 19(1) RoC is well-established. A claim should only be struck out if it is plain and obvious that it is unsustainable — the Supreme Court's decision in Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd 1993 MarsdenLR 99 ; ; ; [1993] 2 AMR 1969. The Federal Court in Tony Pua Kiam Wee v. Government Of Malaysia & Another Appeal 2019 MarsdenLR 332 ; ; ; [2019] 8 AMR 325 reaffirmed that a cause of action must contain a complete factual matrix to sustain the claim.

[5] Upon reviewing the Plaintiff's OS and supporting affidavits, this Court finds that the Plaintiff's challenge to his membership status in BERSATU and the validity of the by-election raises arguable legal and factual issues. These include:

(a) Whether the retrospective application of BERSATU's constitutional amendments is lawful under the Federal Constitution;

(b) Whether the Speaker's (3rd Defendant) declaration of vacancy was made ultra vires given the factual disputes surrounding the Plaintiff's membership status;

(c) Whether the Plaintiff's fundamental rights under arts 5, 8 and 10 of the Federal Constitution were violated.

Issue 2: Whether The Claim Is Barred By Section 18C Of The Societies Act 1966

[6] The law under s 18C of the Societies Act 1966 bars the Court from entertaining disputes arising from political party matters. The Court of Appeal in Tan Sri Datuk Seri M Kayveas & Ors v. Datuk Seri Maglin Dennis D Cruz & Ors And Another Appeal [2023] MLRAU 166; [2023] 6 MLJ 194 held that the said provision is absolute in preventing judicial intervention in internal party disputes.

[7] The 1st and 2nd Defendants contend that the Plaintiff's expulsion from BERSATU falls squarely within s 18C of the Societies Act 1966 , rendering the matter non-justiciable. However, the Plaintiff argues that his removal resulted from unconstitutional retrospective amendments to BERSATU's Constitution.

[8] This Court finds that the matter is not entirely non-justiciable because it raises a constitutional challenge rather than a mere political party dispute. In Mohamed Ezam Mohd Nor & Ors v. Ketua Polis Negara 2001 MarsdenLR 346 ; [2002] 1 MLJ 321; 2001 MarsdenLR 1708 , the Federal Court held that courts may intervene where an internal party decision violates constitutional rights. The Plaintiff contends that his removal violated the Federal Constitution, particularly regarding the retrospective application of party rules, and thus requires judicial scrutiny. To that extent, this Court finds that the Plaintiff has pleaded a cause of action that cannot be struck out summarily at this juncture.

Issue 3: Whether The Pla