DALAM MAHKAMAH RAYUAN MALAYSIA, PUTRAJAYA

(BIDANGKUASA RAYUAN)

RAYUAN SIVIL NO : W-01(IM)-434-2011

ANTARA

RAMESH A/L PERIASAMY … PERAYU

DAN

1. Y.B. DATO’ SERI NAJIB TUN RAZAK

PERDANA MENTERI MALAYSIA

2. Y.B. DATO’ SERI HISHAMUDDIN TUN HUSSEIN

MENTERI DALAM NEGERI, MALAYSIA

3. PENDAFTAR PERTUBUHAN MALAYSIA … RESPONDEN-

4. PENDAFTAR PERTUBUHAN WILAYAH PERSEKUTUAN … RESPONDEN

[DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

(BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS)

PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO : R1-25-120-2011

Dalam perkara permohonan untuk perintah Certiorari dan Mandamus

DAN

Dalam perkara keputusan tersirat oleh Responden–responden pada 29/3/2011 Dalam Perkara Artikel 10(1)(C) Perlembagaan Persekutuan

DAN

Dalam perkara Seksyen 7 dan Seksyen 18 Akta Pertubuhan 1966

DAN

Dalam perkara Aturan 53 Kaedah 2 Kaedah-Kaedah Mahkamah Tinggi 1980

ANTARA

RAMESH A/L PERIASAMY … PEMOHON

DAN

1. Y.B. DATO’ SERI NAJIB TUN RAZAK

PERDANA MENTERI MALAYSIA

2. Y.B. DATO’ SERI HISHAMUDDIN TUN HUSSEIN

MENTERI DALAM NEGERI, MALAYSIA

3. PENDAFTAR PERTUBUHAN MALAYSIA … RESPONDEN-

4. PENDAFTAR PERTUBUHAN WILAYAH PERSEKUTUAN … RESPONDEN]

APPELLANT’S WRITTEN SUBMISSIONS

PEGUAMCARA BAGI PIHAK PERAYU PEGUAMCARA BAGI PIHAK RESPONDEN

TETUAN M MANOHARAN & CO. PEGUAM KANAN PERSEKUTUAN

Peguambela & Peguamcara JABATAN PEGUAM NEGARA, MALAYSIA

Suite C-5-5, 5^th Floor, Tower C [BAHAGIAN PERBICARAAN DAN RAYUAN]

Wisma Goshen, Plaza Pantai No. 45, Persiaran Perdana

Off Jalan Pantai Baru Aras 5, Presint 4

59200 Kuala Lumpur 62100 Putrajaya

[Ruj : MM/R0239/ramesh/diana] [Ruj : PN/WKL/HQ/SD/11/01/1/2011]

A. The Application

On 30/6/2011 the Kuala Lumpur High Court Judge Yang Arif Abang Iskandar bin Abang Hashim dismissed the Appellants application for Judicial Review dated 25/5/2011 applying for leave for:-

1. An Order of Certiorari to set aside the decision of the Respondents presumed to be given on 26/4/2011 as the Respondents had refused to even reply to the Appellant’s application for Hindraf Makkal Shakti to be approved and registered as a Non Governmental Organization (NGO).

2. An Order of Mandamus to compel the approval and registration of Hindraf Makkal Shakti as a Non Governmental Organization (NGO).

3. And today this Appeal before the Court of Appeal.

B. The Salient Facts

1. Vide the Appelant’s Solicitors letter dated 2/10/2009 the Appellant had first applied for Hindraf Makkal Sakthi to be approved and registered as a Non Governmental Organisation (NGO) for which there was no reply. (Page 65 Rekod of Rayuan)

2. Vide the Appellant’s formal application to the Respondents dated 18/3/2011enclosing all the relevant documents and fulfilling all the conditions stipulated by the Respondents the Appellant had applied for the approval and registration of Hindraf Makkal Shakti as an NGO. (page 67 to 88 of Rekod Rayuan).

3. Vide the Respondents letter dated 23/3/2011 the Respondents acknowledged receipt of the Appellant’s application to be registered as N.G.O and undertaking to reply as soon as possible (“secepat mungkin”) (page 90 of Rekod Rayuan)

4. The Respondents had thereafter failed/omitted/neglected to even reply to the Appellant’s said application let alone approving and registering Hindraf Makkal Shakti as an NGO for reasons best known to them.

5. Vide the Appellant’s Solicitor’s letter dated 11/4/2011, the Appellant had demanded that Hindraf Makkal Shakti be approved and registered as an N.G.O within fourteen (14 days from the date thereof ie on or before 26/4/2011 falling which the Appellant would presume that the Respondents have failed/omitted/neglected to do so and would commence legal proceedings for the due registration of the same (page 92 to 94 of Rekod Rayuan).

6. The Appellant’s application for registration is by virtue of Article 10 (1) (c) (Freedom of Association),Article 8 (Equality before the law) of the Federal Constitution and Section 7 of the Societies Act 1966 and the Rules of Natural Justice. (page 5, 6 and 22 of Ikatan Authoriti Perayu)

7. The Respondents conduct is a plain and obvious case of mala-fide and abuse of their powers.

8. The Respondents motive is to stop Hindraf Makkal Shakti from further continuing to champion the plight of the victimized Malaysian Indian poor.

9. The Respondent’s mala-fide and abuse of powers, is plain and obvious when they have registered 46,870 other mostly pro government NGOs’ as per the Respondent’s list of NGOs’ published in their webiste. Some approved within two weeks and one month. (page 97 of Rekod Rayuan).

10. And when the Appellant and other Hindraf Makkal Sakthi

leaders continue championing the plight of the victimized Malaysian Indian poor by state sponsored racism the Appellant had been targeted, assaulted and repeatedly

kicked by even uniformed police personnel in broad daylight and in a public area and was hospitalized when he was merely standing at a peaceful assembly. (Photos of this and his police report refers at page 103 to 107 of Rekod Rayuan).

11. In February 2011 alone some 400 Hindraf Makkal Shakti

supporters were arrested nationwide. It’s legal adviser P. Uthayakumar, a lawyer of 21 standing was handcuffed and arrested right at his doorsteps on 27/2/2011 for allegedly intending to attend a peaceful assembly against the Interlok book which referred to Malaysian Indians as “Pariahs” and which was made a compulsory examinable textbook for Form Five students. (Photo and his police report is in pages 109 to 111of Rekod Rayuan).

12. Out of the 400 aforesaid, 54 including the Appellant was

prosecuted nationwide for being members of an unlawful society ie Hindraf Makkal Shakti. Photos and Charge Sheet are in pages 113 to 129 of Rekod Rayuan.

13. Hindraf Makkal Sakthi leaders S. Jayathas, a kidney

patient was beaten up, roughed up when arrested and while pushing him into a police van (page 131 and 132 Rekod Rayuan), K. Tamil Selvan was strangled and beaten up (page 134 Rekod Rayuan),W. Sambulingam was beaten up and his head pushed to the cement floor and injuries caused to his forehead (pages 136 and 137 of Rekod Rayuan)

14. The Appellants have legitimate expectations to be

approved as an NGO further to Article 10 (1) (c) Article 8 of the Federal Constitution, Section 7 of the Societies Act 1966 and the Rules of Natural Justice.

15. Up to date the full case of the Appellant has not be heard

in contravention of the First Limb of the Rules of National Justices ie Audi Alterm Partem or the right to be heard.

16. Up to date the Appellant has not been informed by the

Respondents as to why Hindraf Makkal Shakti’s registration has been rejected.

C. The Principles in a leave Application.

1. In Bandar Utama Development Sdn Bhd & Anor v Lembaga Lebuhraya & Anor [1998] 1MLJ 224, Visu Sinnadurai J held at (1)/page 225

“.. The court, in exercising its discretion that an application for leave be granted must be convinced by the applications that prima facie the application is genuine and that there is some substance in the grounds supporting the application. The test’s threshold is very low; a prima facie case of reasonable suspicion, an arguable case must be shown, not a prima facie case. (page 141 Rekod of Rayuan).

2. The Federal Court in Association of Bank Officers, Peninsular Malaysia v Malayan Commercial Bank Association (1990) 3 MLJ 228 held as follows:

“The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application”. (page 142 Rekod Rayuan).

3. Edgar Joseph Jr. FCJ in Tuan Haji Sarip & Anor v Patco Malaysia Berhad [1995] 3 CLJ 627 at page 636 held:-

“In R. v. Secretary of State for the Home Department, ex parte Rukshanda Begum [1990] Crown Office Digest 109, Dip, the Court of Appeal in England correctly laid down guidelines to be followed by the Court when considering an application for leave, in the following terms:

i. The Judge should grant leave if it is clear that there is a point for further investigation on a full inter partes basis with all such evidence as is necessary on the facts and all such argument as is necessary on the law.

ii. If the Judge is satisfied that there is no arguable case he should dismiss the application for leave to move for judicial review.

iii. If on considering the papers, the Judge comes to the conclusion that he really does not know whether there is or is not an arguable case, the right course is for the Judge to invite the putative respondent to attend and make representations as to whether or not leave should be granted. That inter partes leave hearing should not be anywhere near so extensive as a full substantive judicial review hearing. The test to be applied by the Judge at that inter partes leave hearing should be analogous to the approach adopted in deciding whether to grant leave to appeal against an arbitrator’s award…namely: if, taking account of a brief argument on either side, the Judge is satisfied that there is a case fit for further consideration, then he should grant leave. (page 142 of Rekod Rayuan).

D. The Principles on the Right to freedom of Association

The Supreme Court in the authority of Dewan Undangan Negeri Kelantan & Anor v Nordin bin Saller & Anor per Abdul Hamid Omar L.P held that :-

(2) ‘The enunciation of the right to freedom of

association in Article 10 (1) (c) of the Federal Constitution means a citizen’s right to form, to join, not to join or resign from an association. Any restriction to dissociate from an association would make the guaranteed right ineffective or illusory.

(3) A constitution should be construed with less rigidity and more generosity than other statutes and as sui juris, calling for principles of interpretation of its own, suitable to its character but not forgetting that respect must be paid to the language which has been used.

(5) The direct and inevitable consequence of Article XXXIA of the Kelantan State Constitution which is designed to enforce party discipline does impose a restriction on the exercise by members of the legislature of their fundamental right of association guaranteed by Article10 (1) (c) of the Federal Constitution, and that such restriction is not only not protected by Article 10 (1) (c) of the Federal Constitution but clearly does not fall within any of the grounds for disqualification specified unders 6 (1) of Pt I of the Eighth Sch to the Federal Constitution. By virtue of Article 4 (1) of the Federal Constitution, Article XXXIA of the Kelantan Constitution is to that extent void. (page 49 of Ikatan Othoriti Pemohon).

Per Gunn Chit Tuan SCJ:

1) In Malaysia, freedom of association is a fundamental right guaranteed by art 10 (1) (c) of the Federal Constitution and can only be restricted on any of the grounds specified in Article 10 (2) (c) and (3), namely, in the interest of the security of the Federation or any part thereof, public order or morality.

2) Article XXXIA of the Kelantan Constitution imposes a restriction on the membership of a legislative assembly which infringes a citizen’s right to form associations under art 10 (1) (c) of the Federal Constitution. Such a restriction cannot, by any stretch of the imagination, be deemed necessary or expedient in the interest of the Federation or any part thereof, public order, morality or even labour or education. As Article XXXIA of the Kelantan Constitution is inconsistent with the Federal Constitution which is the supreme law of Malaysia, it is therefore void under Article 4 (1) of the Federal Constitution.

3) Article 10 (2) of the Federal Constitution provides that only parliament may by law impose restrictions referred to in Article 10 (2), (3) and (4) of the Federal Constitution. The restriction imposed by Article XXXIA of the Kelantan Constitution even if valid (which it is not) could not impose by a law passed by state legislature and as such Article XXXIA should be invalidated. (page 50 of Ikatan Othoriti Pemohon).

Conclusion

For the above reasons, we humbly submit that the Appellant has a prima facie arguable case and pray that this appeal is allowed with costs.

Dated 9^th July 2012.

P. Uthayakumar

………..……………………

Solicitors for the Appellant

This Written Submissions is filed by M/s Manoharan & Co Advocates & Solicitors for the Appellant of Suite C-5-5, 5^th Floor, Tower C, Wisma Goshen, Plaza Pantai, Off Jalan Pantai Baru, 59200 Kuala Lumpur.