High Court throws out Railway Coop 'money grab' suit against Govt
The government crossed the first legal hurdle in taking away part of the profits of cooperatives following a high court decision last week.
But there is two more to cross with the plaintiff, Koperasi Keretapi Bhd (KKB) filing an appeal yesterday against High Court judge Datuk Lau Bee Lan’s (pic) decision last Friday.
And another joint suit by Cooperative Union of Malaysia and Midlands Cooperative Bhd is awaiting judgment on April 15.
The controversial judge, who two months ago cleared the way for the Christian Herald to use “Allah” to refer to their God, dismissed last Friday KKB’s originating summons filed a day after the contentious Malaysia Cooperative Societies Commission Act 2007 and the Cooperative Societies Amendment Act 2007 came into force on Jan 1, 2008.
Certain provisions in the new act, which KKB and other cooperatives term as ultra virus the Federal Constitution among others require cooperatives societies to deposit all their monies not immediately required for operations into a Cooperative Deposit Account to be operated and managed by the newly created Cooperative Commission of Malaysia (CCM).
The other provision in the new act which KKB wanted the Kuala Lumpur High Court to decide on its validity vis-a-vis the Federal Constitution is empowering CCM to order any cooperative society to further contribute money to a Central Liquidity Fund.
KKB also challenged two other two provisions which require CCM approval for members wanting to serve on the cooperative board and powers vested on CCM officers to arrest any person without warrant of arrest suspected of committing an office under the Cooperative Societies Act 1994 or the Commission Act 2007.
“Our lawyers have filed an appeal and we will go all the way to the Federal Court if it need be to safeguard the interest of our members and the cooperative in general,” said KKB secretary Hani Ismail.
Speaking to The Mail Mail, today (Sunday) at the KKB office in Brickfields, Hani said not only KKB members are unhappy with the court decision but the well managed cooperatives are sore at the judge’s decision.
“Where have you heard in the democratic hemisphere where the government can take away whatever is yours without compensation,” he asked.
In the originating summons, filed through Kanesalingam & Co, KKB named the Finance Minister, the Minister of Domestic Trade, Cooperatives and Consumerism (formerly known as Ministry Of Entrepreneur and Co-Operative Development), CCM and the government as defendants.
KKB feels it is unreasonable for its capital, which has been built up over the years for the benefit of its members as a result of good management by the members of its Board, to now be taken away and used by the Government without adequate compensation.
The requirement for an outside body approving the members of the Board is also an unreasonable restriction on the rights of the members of KKB to manage KKB, said Hani..
”The Federal Constitution ensures that no one should be deprived of ones property, the liberty of association and not be subjected to arbitrary arrest under Article 5, 10 and 13 so we cannot understand why the judge failed to see these fundamental points,” said Hani.
KKB formerly known as Rail Way Cooperative Society Ltd was formed in1923 and has a subscription capital of RM4,342,257.99 and fixed and current assets amounting to RM4,674,199.73 and reserve capitals of RM1,092,000.00.
Meanwhile, controversial cooperative consultant Shun Thirusingam said the cooperative movement is a free enterprise and the UN charter requires non-interference by governments.
Here we laws and regulations inhibiting the growth of the movement. Just fine tune the existing laws and punish the errant coops and directors, he said.
Koperasi Keretapi Bhd’s Case against the government
The legal action filed by KKB had asked the Kuala Lumpur High Court to declare that:-
Section 43 (1) of the Malaysian Cooperative Societies Commission Act 2007 (the Act) requiring that all cooperative societies shall deposit their funds not immediately needed for operations or investments into the Cooperative Deposit Account and Section 42(2) of the Act requiring cooperative societies to pay a percentage of its share capital, subscription capital and assets to the Central Liquidity Fund without providing for adequate compensation for the compulsory acquisition or use of the funds is inconsistent with Article 13 (2) of the Federal Constitution and is therefore invalid pursuant to Article 4 (1) of the Federal Constitution.
Section 42 (1) of the Malaysia Cooperative Societies Commission Act 2007 (the said Act) enabling the Malaysia Cooperative Societies Commission to require any cooperative society or any class, category or description of cooperative society by order in writing to contribute to the Central Liquidity Fund established under Section 42 of the said Act is money howsoever raised or received by the Federation and ought to be paid pursuant to Article 97 of the Federal Constitution to the Federal Consolidated Fund from which withdrawals are permitted in the manner stated in Article 104 of the Federal Constitution and the said Section 42 (1) of the said Act is therefore invalid under Article 4 (1) of the Federal Constitution for being inconsistent with the Federal Constitution.
Section 54 of the Malaysia Cooperative Societies Commission Act 2007 (the said Act) which provides that every offence punishable under the said Act, the Cooperative Societies Act 1993 or any other written law enforced by the Malaysia Cooperative Societies Commission shall be a seizable offence and that a police officer not below the rank of Inspector or an Investigating Officer may arrest on reasonable suspicion without being required to state the reasons for the arrest is inconsistent with to Article 5 (1) and (3) of the Federal Constitution which provides that no person shall be deprived of his life or personal liberty save in accordance with law and further requires that the person arrested shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice and the said Section 54 of the said Act is therefore invalid under Article 4 (1) of the Federal Constitution.
Section 43 (2) of the Cooperative Societies Act 1993 (as amended by the Cooperative Societies Amendment Act 2007) which requires that a cooperative society shall, prior to the appointment or re-appointment of any person as a member of the Board of a cooperative society, seek verification from the Malaysia Cooperative Societies Commission on whether such person satisfies the fit and proper person criteria as may be specified by the Malaysia Cooperative Societies Commission is inconsistent with the citizens’ fundamental right of freedom of association guaranteed by Article 10 (1) of the Federal Constitution and not excepted by Article 10 (2), 10 (3) or 10 (4) of the Federal Constitution.
The judge dismissed all four challenges but made no order as to costs.
According to Kanesalingam & Co, the lawyers representing KKB, the judge gave some brief grounds for her decision which the plaintiff see as unacceptable and thus appeal.
-------------------------
No comments:
Post a Comment