Wednesday, August 16, 2006

PSM lost in Court of Appeal

Tommy Thomas, Ragunathan Kesavan and I were unable to convince to Court of Appeal to allow the Parti Sosialis Malaysia (PSM) led by Dr Mohd Nasir Hashim to be registered as a national political party.
Dato Gapal Sri Ram in his judgment, as concurred by the other 2 judges, ruled that the Registrar of Societies was not unreasonble to request that 7 representatives from different states were required in the pro-tem committee in order to register as a political party at the national leve.
However, the court ruled that the second ground of national security as alleged by the Minister of Home Affairs, was unsupported by any evidence and as such the ground of national security was bad in rejecting the application.
As the ground of national security was not the overriding factor that refused the application, the decision of the Minister of Home Affairs to reject the application on the first ground was upheld .

The Malaysiakini reported as follows:-

No injustice has been occasioned in the government’s refusal to register Parti Sosialis Malaysia (PSM) as a national political party, the Court of Appeal ruled in an unanimous decision today in dismissing an appeal from the pro-tem party.

Justice Gopal Sri Ram said that, “it is crystal clear that the reason advanced on grounds of national security was not the predominant reason for the minister’s decision”. This was one of two main points of contention, the other involving registration criteria which the court upheld.

“It (national security) stands as a separate and distinct ground for refusing registration at the national level. It is not entangled and mixed up with other reasons. It did not therefore materially affect the decision based on grounds of departmental policy,” he told a courtroom packed with PSM supporters.

“Accordingly, this is a case in which the minister’s decision to deny PSM registration at the national level may be upheld, and I would do so.” He dismissed the appeal with costs.

Party supporters were visibly upset on hearing the unanimous decision of the three-member bench, which also comprised Justices Mohd Ghazali Mohd Yusoff and Hashim Yusoff.

Elaborating on the government’s argument that “national security” was at risk if registration were granted to the socialist party, Gopal said there was “not a scintilla of evidence” to show that issues of national security were involved.

“All we have is the mere ipse dixit (unsupported assertion) of the minister based on information given by the police to him, nothing else. On the authorities this is insufficient, the appellant’s complaint is therefore justified,” he said.

The appellant, PSM pro-tem chairperson Dr Nasir Hashim, had sought to set aside the home minister’s written order rejecting the application for registration and to direct for a registration within seven days.

Seven representatives

In his 34-page judgement today, Gopal said he was satisfied with the departmental policy stated by the Registrar of Societies (ROS) in relation to the requirement for the registration of a national political party.

The ROS requires a national-level political party to have representatives in at least seven states, failing which the party will only be registered at the state level. The appellant had contested this, saying the requirement is baseless and exceeds constitutional provisions regulating freedom of association.

Gopal, however, ruled that it was not unreasonable exercise of the statutory power conferred upon the ROS under Section 7 of the Societies Act.

“Since Malaysia has 13 states, the ROS probably had in mind that a political party seeking registration at the national level must seek to represent 50 percent plus one state in the federation,” said the judge.

“There is nothing unreasonable about this. Some policy is necessary to guide conferred by Section 7 (of the Societies Act), otherwise it may become an unprincipled discretion.”

The judge stressed that no injustice had been occasioned in the refusal to grant PSM registration. “The ROS granted PSM registration in the state of Selangor. As advised by counsel on both sides, this does not prevent PSM from contesting in national elections, neither is PSM prevented from seeking registration at the national level if it is able to meet the ROS’ requirement.

“So, even if the ROS and the minister were wrong in refusing PSM national level registration - and I hasten to add that they were not - no injustice has been occasioned. This underpins the nature of judicial review.

“It is not enough that a decision of a public decision maker is not in accordance with law. The error must be one that has caused an applicant for judicial review some harm or injustice in a broad and general sense.”

The appellant was represented by Tommy Thomas, Ragunath Kesavan (photo) and Teng Chang Kim while the government was represented by senior federal counsel Mary Lim, who was recently promoted as the industrial court president.

Watching briefs are being held for the Bar Council by Amer Hamzah Arshad, M Vengkatraman for the Malaysian Human Rights Society and Edward Saw for local human rights watchdog Suaram.

‘We’re not disheartened’

Outside the courtroom, Nasir vowed to fight on. With him were some 80 PSM members and supporters, some of whom had arrived from Perak and Seremban this morning.

“We will appeal, we are not disheartened. We feel sad but this is not the end. We know we will face all these problems but we will never stop fighting or be affected by this, we will go on to do what is right,” Nasir said.

He said he would re-submit seven names to the ROS, to meet the criteria of representation in the states. PSM has claimed that it complied with this requirement earlier but that the ROS did not clarify such representation should be based on addresses based on place of birth or work.

Pro-tem secretary-general S Arutchelvan said the verdict was a minor victory as it cleared a major hurdle for the party - over the national security threat - ahead of its next appeal to the federal court.

But he registered disappointment with the decision, saying: “Article 10 (freedom of association) is a fundamental right. By not allowing PSM to be registered, what is the state implying? Do they want us to go underground? It doesn’t make sense at all.”

Ragunath, meanwhile, described the reason for dismissing the appeal as based on a “feeble reason”, since it did not go into the merits of the application.

Since the formal application in April 1998 which was rejected in September 1999, PSM and its supporters have persisted on a long-haul struggle to be registered and recognised. The home minister then was Abdullah Ahmad Badawi, who is now the prime minister.

In a judgment on Jan 13, 2003, the Kuala Lumpur High Court agreed with the government’s policy of non-compliance and national security to reject PSM’s application for judicial review.

The case is the first time a political party has sought judicial review of the government’s rejection of an application to register itself.

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