KUALA LUMPUR: Tengku Razaleigh Hamzah’s plan to revive the “old 1946 Umno” has sparked a debate on how he actually hopes to accomplish this given that the time to make an appeal has lapsed.
Section 18 of the Societies Act provides only 30 days for party members to appeal from the date of the last ruling.
Experts noted that in the case of Tengku Razaleigh, this had taken place back in 1988.
The High Court had at the time declared Umno an illegal party, but according to Tengku Razaleigh, the court had no jurisdiction to do so.
Constitutional law expert Professor Datuk Dr Shad Saleem Faruqi said on the contrary, back in 1988 the courts had the power to examine administrative actions of all executive bodies.
Shad said at the time, there was no clause barring the courts from doing so, adding that even if such a clause had existed, that would not have prevented the court from examining the legality of an action.
“Throughout our history, the courts have generally never given up their power in what is called judicial review, which is an inherent power. So it is not for Tengku Razaleigh to say the High Court was wrong. It is for a higher court to say that.
“Once there is a decision, it cannot be overturned by you or me or anyone because it has to be overturned by a superior court,” he told the New Straits Times.
After the 1987 Umno elections, the High Court found that at least 30 unregistered branches had sent delegates to participate in the party polls. This, it ruled, automatically turned Umno into an “unlawful” party.
Shad pointed out since that was the case, the High Court had in fact made the “correct” decision.
“The courts said there were unregistered branches and so (Umno) was considered an illegal party, which means there was never a vote because the election was considered void.
“In any case, it is too late to question the High Court’s decision. It is 33 years too late. You can’t go around disturbing things 30 years later. To me, it is res judicata,” he said.
Res judicata refers to a matter that cannot be raised again either in the same court or in a different one to prevent injustice to the parties involved and inconsistent decisions, as well as to avoid waste of resources in the court system.
Political observers believed that although Tengku Razaleigh would be unable to bring this to court, he may be able to appeal to the Registrar of Societies (RoS).
Constitutional law expert Professor Dr Nik Ahmad Kamal Nik Mahmod said Tengku Razaleigh is, however, likely to face another dead end should he decide to approach the RoS.
“The RoS already registered a new Umno (in February 1988) which means the old Umno is defunct. How can we revive a defunct party?” he asked.
However, Shad said Tengku Razaleigh could re-register the old Umno, provided that it is still available for revival.
“He has to start everything all over again instead of challenging something that is too old to be challenged.
“It is good that he has started the pro-tem committee as announced (on Tuesday). Go ahead and try to register and all the best to him,” Shad said.
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