The right to form associations stipulated under the highest law of the land, the Federal Constitution, is not unconditional as the home minister can declare a society unlawful on the grounds of national security, the Kuala Lumpur High Court heard today.

Senior federal counsel Zainal Adzam Abd Ghani, who is representing the Home Ministry in a legal suit filed by Parti Sosialis Malaysia, said the ministry has "absolute discretion" over the matter as it can, at anytime, overrule decisions made by the Registrar of Societies (ROS).

He said if the home minister had been advised by the police that the organisation is "incompatible with the interest and security of Malaysia", he is duty-bound under the Societies Act (1966) to reject the application.

"Otherwise, it would mean that the minister must approve applications even by known terrorist groups. Is that the situation we want? It is an unthinkable situation," he argued.

Zainal was making his case against PSM pro tem committee president Dr Mohd Nasir Hashim ( photo ), who is asking the court to set aside a decision and a mandamus order made on September 1999, where the party's application to register as a political party under Section 7 of the 1966 Societies Act, had been rejected by the ministry and ROS.

[Mandamus order is an order from a higher court which can be used to cause a lower court to enter an order instead of continuing to sit on a case].

PSM and the ministry have been embroiled in a legal tussle since October 1999, as its application to operate as a legal political party has been rejected by the ROS in April 1998 on grounds that it did not comply with certain provisions.

All requirements met

The party then made several appeals to Home Minister Abdullah Ahmad Badawi, who had subsequently rejected the application for security reasons.

Mohd Nasir is represented by legal counsel R Kesavan and Teng Chang Khim. Judge Abdul Hamid Said presided over the case.

On Nov 13, Kesavan submitted his case before Abdul Hamid in a courtroom packed with party supporters.

Kesavan argued that the ROS' rejection of PSM's application was ultra vires as both the minister and registrar were bound by the Societies Act when deciding the fate of the application.

Kesavan added that PSM had satisfied all the requirements in the Act and if the application was rejected, it was incumbent upon the minister and registrar to show the provisions contravened by PSM.

He also challenged the Home Ministry's decision to reject the application on grounds of national security, saying it must be subjected to the objective test and the court has the right to scrutinise the matter.

ROS, however, said it rejected PSM's application as a national political organisation as it failed to adhere to a policy that requires the party to provide seven representatives from seven states in Malaysia.

Application 'questionable'

In his submission, Zainal said that PSM's application was "questionable" as the party was unwilling to comply with the said provision imposed by ROS.

"It is not difficult to understand if a party wants to register as a nationwide party, it must have at least been able to show seven representatives from seven states," he told the court.

"We have 13 states and three federal territories. To ask you to show that you have seven representatives from seven states out of 16 is not unreasonable," he added.

Zainal cited various articles in the Societies Act which empowered the ROS to impose the provisions for political party application, while stressing that decisions by the minister and registrar was "reasonable, fair, perfectly allowed and recognised by law".

But instead of complying with the provision by ROS, Zainal said PSM decided to indulge in a "long running battle" with both the registrar and the minister.

The hearing will continue tomorrow with PSM's counsel making their submission.