PUTRAJAYA (Bernama): The law does not grant the Penang state government power to set up Voluntary Patrol Units (PPS), ruled the Federal Court on Tuesday (May 14).
Chief Judge of Malaya Tan Sri Zaharah Ibrahim, in her judgment, said PPS could not be constituted under the Local Government Act as there was no provision providing for its formation.
She said the Penang government had taken an unsustainable position that the PPS was not a society, but an association of persons constituted under written law such as the Federal Constitution and the Local Government Act.
"In our view, the respondent's (Penang government) reliance on Section 9 and paragraph 101(v) of the Local Government Act as the legal basis for the establishment of PPS is not supported by the facts and the law," said Justice Zaharah, who delivered the decision of the Federal Court five-man bench in the appeal by the federal government.
She said there was also nothing in the State List of the Ninth Schedule of the Federal Constitution that provided for the constitution of a voluntary association of persons such as the PPS to assist a state government in the administration of the state or the performance of its functions.
"The PPS is meant to be an initiative to involve members of the public in activities which are not part of what is needed to keep the government of the state functioning," Justice Zaharah said.
"The establishment of a body with the stated objective of undertaking community policing is certainly outside the executive powers of the state.
"The PPS is a society under the Societies Act 1966 and that the provisions of the Act state that any association of seven or more persons, whatever may be the purpose of the association, is a society."
She said it was clear in the affidavit of the Penang state executive councillor for Welfare, Caring Society and Environment, Phee Boon Poh that PPS was an association of at least 15 persons or of numerous persons.
"To enable members of the public to participate and assist in the maintenance of public order, Parliament had enacted laws such as the Rukun Tetangga Act 2012 and Malaysia Voluntary Organisations Act 2012," she said.
Justice Zaharah said Section 6 of the Societies Act required every local society to be registered before its members could take part in any activity of or on behalf of the society.
"That the PPS was never registered is a fact. Thus, every member who organised or took part in any activity of the PPS without the written permission of the ROS committed a breach of Subsection 6(2) of the Societies Act and committed an offence," she said.
However, Justice Zaharah said the then-home minister Datuk Seri Ahmad Zahid Hamidi's opinion that PPS was being used for purposes prejudicial to public order had not been substantiated, adding that his exercise of discretion in issuing the order to declare PPS unlawful was unreasonable and irrational.
In 2016, the Penang High Court dismissed the state government's judicial review, ruling that the PPS was unlawful because it was not registered under the Societies Act.
The Court of Appeal in 2017 ruled in favour of the Penang government and declared that PPS was lawfully established. The Federal Court today (May 14) partly allowed the federal government's appeal to set aside the appellate court's decision which declared that PPS was lawfully established.
It also set aside the Court of Appeal's decision to declare that PPS is not a society under the Societies Act.
The decision was delivered by the remaining four judges – Court of Appeal president Tan Sri Ahmad Maarop, Justice Zaharah, and Federal Court judges Tan Sri Ramly Ali and Datuk Alizatul Khair Osman Khairuddin as provided under Section 78 of the Courts of Judicature Act 1964 as former Chief Justice Tan Sri Raus Sharif had resigned. – Bernama