Several Bersatu MPs recently faced termination of their party membership for supporting the Unity Government.

These expulsions raise a key question: can a party remove a member’s elected office simply by revoking their membership?

The MPs argue that their dismissal is “constructive dismissal”, essentially a forced expulsion.

However, Bersatu relies on the Societies Act (Act 335), in particular Section 18(C), which provides as follows:

“The decision of a political party or any person authorised by it or by its constitution or rules or regulations made thereunder on the interpretation of its constitution, rules or regulations or any matter relating to the affairs of the party shall be final and conclusive and such decision shall not be challenged, appealed against, reviewed, quashed or called in question in any court on any ground, and no court shall have jurisdiction to entertain or determine any suit, application, question or proceeding on any ground regarding the validity of such decision.”

Section 18(C) functions as an “ouster clause”, preventing expelled party members from challenging party decisions in court. This effectively grants political parties (Bersatu in this instance) immense power over their members, potentially bypassing judicial review.

Critics have argued that Section 18(C) is unconstitutional. They point out that whilst the right of access to the courts is fundamental, the existence of ouster clauses has turned that right into an illusion. (See Jayanthi Naidu, ‘The Rise and Rise of Administrative Finality’, [2004] 2 MLJ lxxii.)

The current approach of courts

Malaysian courts have traditionally adopted a non-interventionist approach, upholding Section 18(C) and deferring to party decisions.

This stance is seen in cases like the Federal Court decision of Pendaftar Pertubuhan v Datuk Justin Jinggut [2013] 2 CLJ 362 and the decision of the Court of Appeal in Salihudin bin Haji Ahmad Khalid & Ors v Pendaftar Pertubuhan Malaysia & Anor [2019] MLJU 1463, to name some, which effectively shields political parties from judicial scrutiny.

Challenging the status quo

However, some judgements may support the opposing view that Section 18(C) may violate the Federal Constitution.

According to this argument, Section 18(C) could potentially infringe upon fundamental rights like access to justice and the equality clause found in Article 8 of the Federal Constitution.

Moreover, Article 4(1) which asserts the Federal Constitution’s supremacy could potentially render Section 18(C) void for conflicting with these fundamental rights.

The Sugumar Balakrishnan precedent: access to justice

The Court of Appeal’s decision in Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor [1998] 3 MLJ 289 provides a compelling counterpoint.

In this case, the Court of Appeal emphasised that the “fundamental liberty of free access to an independent judiciary to obtain redress is… inconsistent with a provision in a statute that seeks to preclude that right by ousting the power of judicial review.”

This suggests that there could be a conflict between ouster clauses and the right of access to justice.

The Indira Gandhi analogy: is judicial review the bedrock of the Constitution?

Another supporting judgement for judicial intervention was provided by the Federal Court in Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors and Other Appeals [2018] 2 MLRA 1.

The Federal Court held that ouster clauses can be challenged through judicial review.

This decision implies support for the “basic structure doctrine” where certain fundamental rights cannot be completely removed from judicial oversight, one of them being the right of access to justice which is firmly rooted in Article 8 of the Federal Constitution.

The road ahead

While the current legal landscape does not favour the expelled Bersatu MPs, the counterarguments which are raised above hold merit and should not be discounted.

Whilst these challenges could take some time to resolve, the outcome will depend heavily on the arguments presented before the courts.

As regards Section 18(C) only time will tell if the courts continue to maintain their non-interventionist approach or adopt a more assertive role in safeguarding fundamental rights.

(Mark Goh Wah Seng is Senior Lecturer, Department of Law, HELP University.)