The Court of Appeal today shot down the government's contention of 'national security at risk' as one of the grounds it used to reject Parti Sosialis Malaysia's (PSM) application for registration as a national-level political party.

Justice Gopal Sri Ram told senior federal counsel Mary Lim that the home affairs minister cannot cite grounds of national security to defend its decision as there was 'insufficient supporting material'.

Gopal ( pix ), who sat with Court of Appeal judges Mohd Ghazali Mohd Yusoff and Hashim Yusoff, said this after hearing submissions on the appeal by PSM pro-tem chairperson Dr Mohd Nasir Hashim against the government's decision barring PSM's registration.

About 100 people in PSM's red coloured shirts and T-shirts packed the public gallery forcing court reporters, at Gopal's insistence, to sit at the table for counsel.

In urging the court to dismiss the appeal, Lim argued that the affidavit by then Home Affairs Minister Abdullah Ahmad Badawi had stated the reasons for the decision to which Gopal replied: "We don't think so".

Lim countered by saying that as the minister, Abdullah was privy to certain information which formed the basis of the final rejection.

Gopal: "There is no material to back up the national security [argument]."

Lim: "I wouldn't say there is no material. I would say there is material but it is insufficient."

Gopal: "If that is so, then you're finished."

Police information

Lim continued that Abdullah had information from the police to support his decision to reject PSM's application.

Gopal reasoned that the information should be based on facts that related to members of the party and whether they were involved 'in activities detrimental and prejudicial to national security'.

He said it would go against the law of natural justice if the reason for citing national security was not made clear to PSM because the party would not have an opportunity to defend itself.

Lim said the minister's point was not a mere statement, to which Gopal insisted that she produce supporting material.

Lim then submitted that the Registrar of Societies had exercised its discretion properly because there were 'so many wrongs' in PSM's application particularly the incomplete documentation and failure to have representatives from at least seven states on its national pro-tem committee in order to register a society at the national level.

When asked if the 'seven-representative rule' was a reasonable policy, she said it was, adding that PSM had been given sufficient notice in writing and through meetings on the requirements for registration.

"We offered them registration at the state level in Selangor which displays our non-rigidity. We are not inflexible. We were prepared for them at the state level. They just refused to fulfill the requirements," revealed Lim.

'Unreasonable' rule

In his reply, senior counsel Tommy Thomas for PSM said that the 'seven-representative rule' was unreasonable, was not an exercise of discretion and was unconstitutional.

He argued that the rule was a post-registration condition and could only be imposed after the ROS registers PSM.

"There is no power to impose the pre-registration condition, which are in effect the terms and conditions of registration."

When asked by Justice Ghazali if PSM had asked the ROS to reverse the policy, Thomas said they didn't as they wanted to know the legal basis for the requirement.

At this juncture, Gopal asked if the requirement for a national-based party to show it had representation from seven of the 13 states was unreasonable to which Thomas replied that it was because 'there is nothing in law justifying the 'seven-representative rule''.

The bench then wanted know why PSM did not want to register at the state level.

Gopal: "Why can't you register as a state-based party and contest in the national elections?"

Thomas: "It is a matter of principle for my clients."

Gopal: "There is more than one way to skin a cat. You can always register at the state level. There is nothing in principle to stop [Sarawak-based political party] Supp from contesting in West Malaysia."

Time needed

Submitting on Thomas' argument, Lim reiterated the ROS' power to impose conditions for registration although she agreed with Gopal that the court could strike out any unreasonable conditions.

"Yes, if it's unreasonable we can strike it down. We are of the unanimous view that any exercise of any executive powers at any level is reviewable if it can be shown that there is an abuse of discretion," said Gopal.

The court then said it was reserving its judgment as it needed time to consider the arguments. "We have to consider this very carefully against the constitutional right," said Gopal.