With all convenient speed and not as late as possible

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Trevor Padasian 

All convenient speed or reasonable time means as soon as possible or within a reasonable time, and not as late as possible”” - per Justice Ahmad Kamal Md. Shahid
 
The High Court in Dato’ Wira Haji Amiruddin bin Haji Hamzah (selaku Setiausaha Jawatankuasa Penaja Parti Pejuang Tanahair (PEJUANG) dan mewakili Jawatankuasa Penaja PEJUANG) v Menteri Dalam Negeri and Jabatan Pendaftaran Pertubuhan Malaysia (KLHC Application for Judicial Review No: WA-25-68-03/2021) allowed the application for judicial review filed by the Secretary of the Sponsoring Committee of Parti Pejuang Tanahair (“Applicant”) in respect of the omission or failure of the Home Minister (“First Respondent”) to make a decision on Pejuang’s appeal against the refusal by the Registrar of Societies of Malaysia (“Second Respondent”) to register Pejuang as a registered society.
 
Brief Facts

On 8 August 2020, the Applicant had submitted an online application to the Second Respondent to register Pejuang as a society. On 19 August 2020 and 28 September 2020, the Applicant and the Committee members of Pejuang had meetings with the Second Respondent. As a result of the second meeting on 28 September 2020 in which the Second Respondent had suggested that Pejuang make certain amendments to its Constitution, Pejuang submitted its amended Constitution on 2 October 2020, that is, 4 days after the second meeting.
 
On 6 January 2021, the Second Respondent issued a letter of its decision refusing to register Pejuang on the ground that its Constitution did not contain certain provisions in Schedule I of the Societies Act 1966 (“SA 1966”). On 8 January 2021, Pejuang submitted its revised Constitution to the Second Respondent and appealed to the First Respondent against the Second Respondent’s decision. On 4 February 2021, the First Respondent instructed the Second Respondent to hold a meeting with Pejuang to discuss its Constitution. The meeting was held the next day on 5 February 2021.
 
On 1 March 2021, the Applicant applied for judicial review of the First Respondent’s omission or failure to make a decision on its appeal made on 8 January 2021.
 
Issues
 
The issues that arose were:
 
  1. whether the First Respondent was in breach of its statutory duty under section 18 of SA 1966 by reason of its omission or failure to make a decision on Pejuang’s appeal; and
  1. if the First Respondent was in breach, whether an order of mandamus could be granted against the First Respondent to compel him to give his decision on Pejuang’s appeal under section 18(b) of SA 1966 and, in addition, to instruct the Second Respondent to finalise the registration of Pejuang.
Section 18 of SA 1966 provides:
 
Any local society, office-bearer or member of such local society or any other person who is aggrieved by the decision of the Registrar in any of the following cases-
 
(a)
 
(b) refusal to register the society under section 7;
 

 
may, within thirty days from the date of the decision of the Registrar, appeal against the decision to the Minister; and the Minister whose decision shall be final may confirm, reject or vary the decision of the Registrar.
 
The core issue
 
The core issue was the time frame for the First Respondent to make a decision under section 18 of SAA 1966 on whether to confirm, reject or vary the decision that the Second Respondent made on 6 January 2021.
 
The High Court’s Decision

The High Court held that, although no time frame was stipulated under section 18 of SA 1966, the First Respondent had to make a decision on whether to confirm, reject or vary the decision of the Second Respondent “with all convenient speed”. The High Court based its decision on section 54(2) of the Interpretation Acts 1948 and 1967 (“IA 1948 and 1967”) which provides that, where no time is prescribed within which anything is to be done, the thing shall be done with all convenient speed.
 
The phrase “convenient speed” is not defined in section 54(2) of the IA 1948 and 1967. Following established judicial authorities in Malaysia and Singapore, Justice Ahmad Kamal Md. Shahid held that “convenient speed” meant “a reasonable time according to the relevant facts and circumstances of each case”.
 
The High Court pointed out that the judicial review was not about the Second Respondent’s refusal to register Pejuang as a society but the First Respondent’s omission or failure to decide on whether to confirm, reject or vary the Second Respondent’s decision.
 
Based on the facts, the First Respondent had not made a decision on whether to confirm, reject or vary the Second Respondent’s decision in 5½ months (i.e. from August 2020 to February 2021). The Respondents contended that the 5½ month period was not unreasonable as the First Respondent had a busy schedule and had to deal with numerous other appeals. The Respondents’ arguments were rejected by the Court. In the opinion of the learned Judge, the appeal was straightforward and the First Respondent was the sole decision-maker whose decision making did not involve any other decision makers. The Judge added that the First Respondent had officers to assist him with all the tasks, including preparing all relevant documents and files to enable him to decide on the Applicant’s appeal. The Judge concluded that the 5½ months’ time taken by the First Respondent to decide the appeal was beyond the convenient speed.
 
The High Court granted an order of mandamus ordering the First Respondent to make his decision on Pejuang’s appeal within 14 days within the date of the judgment. An order of mandamus was not granted to instruct the Second Respondent to finalise the registration of Pejuang as this was outside the scope of section 18(b) of SA 1966.
 
Following the High Court’s decision given on 25 June 2021, Pejuang was registered as a society by the Second Respondent on 8 July 2021.
 
Comments
 
The High Court’s decision in this case confirms that, where legislation does not set a time frame for an administrative decision to be made, such decision must be made with convenient speed or, in other words, within a reasonable time. Although this case does not break new ground, it is a timely reminder to administrative decision-makers that decisions cannot be delayed without good reason.

Case commentary by Trevor Padasian (Partner) in the Dispute Resolution Practice of Skrine.