Can the government justify the grounds of national security it had cited in rejecting the application by Parti Sosialis Malaysia (PSM) to register as a political party eight years ago?

Is the rigid government policy on which PSM's application was rejected "a fettering of discretion?"

A three-member Bench will hear these points in the Court of Appeal on Wednesday following an adjournment today.

PSM is appealing against the High Court judgement for an order of certiorari and mandamus .

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

This case, eight years running, is the first time a political party has sought judicial review of the government's rejection of its application to register itself.

Justices Gopal Sri Ram, Mohd Ghazali Mohd Yusoff and Hashim Yusoff presided today.

Rigid policy

Gopal raised the question of inflexibility which restricts the freedom of movement for senior federal counsel Mary Lim's consideration.

"To have a fixed policy with no flexibility amounts to a fettering of discretion. There must be a reason why the policy (for representatives in seven states) was implemented for registration of a national-based party."

It was the Bench's preliminary view that there was "a serious misdirection by the High Court judge" and that " a certiorari ought to have been issued in this case".

He said that if the government fails to justify the grounds of national security, the court would be "inclined to allow the appeal".

"You need to prepare some material for us. Why does it (registration of a political party) affect national security?

"Just because the Registrar (of Societies) says (it's) national security does not mean that it is. We must have some material to work on."

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

Ultra vires?

The Registrar's stated policy is that a national-level political party must have representatives in seven states, failing which the party will only be registered at the state level.

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.

In a summary of the written submission today, Mohd Nasir claimed that subsequent written requests for clarification produced unsatisfactory replies until the ministerial rejection.

He is contending that the requirement for representatives in seven states is baseless and exceeds existing constitutional provisions regulating freedom of association.

"The policy contradicts Article 10(1)(c) of the Federal Constitution because it is not contained in the Societies Act or related regulations. The national security reason can be reviewed by the court and the minister should justify it."

Mohd Nasir is represented by Tommy Thomas, K Ragunath and Teng Chang Khim.

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 Suaram.

The courtroom at the Palace of Justice was filled with supporters and sympathisers who came by the busloads and gathered inside to form a circle at the main lobby.

Nine buses ferried about 350 people from Perak, Kuala Lumpur and Selangor to Putrajaya. Later they had a picnic of packed lunch under the shade of trees outside the court complex.

International support has also been pouring in for PSM from all over the world pledging solidarity.

Photos by Colin Nicholas.