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2025 MarsdenLR 5621
HIGH COURT MALAYA KUALA LUMPUR
YB MOHD AZIZI ABU NAIM – Appellant
Versus
YB TAN SRI DATO HAJI MAHIADDIN MD YASIN & ORS – Respondent
[Originating Summons No: WA-24NCvC-2308-06-2024]
Important Points
Subject
Civil Law - Political Party Disputes
Act Referred
Headnote
(B) Judicial Intervention - The court can intervene in political party disputes when constitutional rights are at stake, diminishing the absolute non-justiciability under section 18C. (Para 8)
Facts of the case:
The Plaintiff was expelled from BERSATU and challenges the ensuing vacancy declaration and by-election. The court examines whether his claims are justiciable, the cause of action presented, and procedural conduct regarding the by-election.
Findings of Court:
Claims against the 4th Defendant struck out; declaratory reliefs concerning the by-election dismissed as moot; remaining claims against other Defendants proceed to trial.
Issues: Determination of reasonable cause of action, locus standi, constitutional challenges, and whether the Plaintiff's claims are academic.
Ratio Decidendi: The court established that a political party dispute might invite judicial review in cases of constitutional violations while also underscoring the need for electoral challenges to follow specific legal mechanisms.
Result: Plaintiff's claims against 4th Defendant struck out and other claims proceed to trial.
| Table of Content |
|---|
| 1. whether the plaintiff's os discloses a reasonable cause of action. (Para 1 , 2 , 3) |
| 2. test for striking out an originating summons is well-established. (Para 4 , 5) |
| 3. matters under section 18c of the societies act 1966 and constitutional challenges. (Para 6 , 7 , 8) |
| 4. determining locus standi in political disputes. (Para 9 , 10) |
| 5. election commission's immunity in executing statutory duties. (Para 11 , 12 , 13) |
| 6. claim becomes moot post-election and necessity for electoral legal mechanisms. (Para 14 , 15 , 16 , 17 , 18 , 19) |
| 7. plaintiff’s failure to mitigate harm by not contesting the by-election. (Para 20 , 21) |
| 8. final orders of the court regarding the plaintiff's claims. (Para 22) |
[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] 2 AMR 1969 . The Federal Court in Tony Pua Kiam Wee v. Government Of Malaysia & Another Appeal ; ; [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
