Putrajaya,
The Federal Court which sat today granted PSM leave to take on their case to the Federal Court. The leave application was allowed under Section 96 B – under the Courts of Judicature Act, 1964 which addresses any provision of the Constitution including the validity of any written law relating to any such provision.
PSM’s Counsel, Tommy Thomas argued that this is a question of Constitution as the appeal touched on the validity of a written law. In this case, the Federal court has to examine if the restriction imposed by Section 7 of the Societies Act restricts the freedom of Association under Article 10c of the Constitution.
Tommy Thomas also raised three constitutional issues on the effects of constitutional provisions as the intended appeal raises 3 questions on general principles decided for the first time in any court. The issues were
(i) Whether the decisions by the Registrar of Societies and the Minister of Home Affairs based upon a departmental policy that national level registration of the Parti Sosialis Malaysia (“PSM”) under the Societies Act, 1966 would only be permitted if there is representation in its Committee from at least 7 of the States of Malaya amounted to a breach of the Applicant’s freedom of association under Article 10 (1) (c) of the Federal Constitution;
(ii) Whether the said department policy was a condition imposed by the Registrar of Societies under Section 7 (1) of the Societies Act; and if so, whether such condition was a permissible restriction pursuant to Article 10 (2) (c) of the Federal Constitution of the Applicant’s freedom of association; and
(iii) Whether the Court of Appeal was correct in law in upholding the decision of the Minister of Home Affairs in refusing registration to PSM after the Court had determined that the said Minister was not entitled in law to refuse such registration on the ground of national security.
The Judges who sat today were Dato’ Abdul Hamid bin Haji Mohamad, Dato’ Abdul Aziz bin Mohamad and Dato’ Arifin bin Zakaria. They granted the leave application after delebrating around 20 minutes. Earlier the judges denied watching brief by the Bar Council, Malaysian Human Rights Society (HAKAM) and SUARAM. Amer Hamzah represented the Bar Council while Hakam and SUARAM were represented by Vengkat Roa and Edward Saw. Though the three lawyers stated that this was a public interest case and involves the society at large as it touches on provision under Article 10 c of the Constitution, yet the Judges denied the organization to hold watching brief and allowed them to monitor the case as it was an open court hearing.
The granting of leave was happily received by PSM supporters who packed the court room. At a Press Conference later, Dr. Nasir Hashim, PSM National Chairperson said that PSM would use all avenues to fight the system and today we are glad that the courts are with us. PSM Secretary General, S.Arutchelvan said that the decision today was a small victory which means that the legal battle is not over and PSM can argue its case at the highest level.
PSM is the first political party in Malaysian history to take the Home Ministry to court for not allowing the party to be registered as it is a right guaranteed under the Constitution.
The PSM supporters left the court shouting “Long live socialism”. For today, the courts have granted PSM a leave to continue its legal struggle. But For tomorrow, only the people and the power they hold can determine the destiny of the only remaining socialist party in the country.
PSM marches on……….9 years without registration.
Brief Back ground
On 30th April 1998, PSM submitted an application to the Registrar of Societies to register PSM as a registered society under the Societies Act, 1966). By letter dated 27th January 1999, the Registrar enclosed Form 4 rejecting PSM’s application for registration. No reasons were given by the Registrar for this decision. By letter dated 23rd February 1999, PSM appealed to the Minister of Home Affairs under Section 18 of the Societies Act. By letter dated 15th September 1999, the Minister rejected PSM’s appeal. No reasons were given by Minister for his decision.
On 26th November 1999, PSM applied for Judicial Review under Section 53 of the Rules of the High Court. On 13 th January 2003, the High Court (Justice Hamid bin Said) dismissed the application stating that it is not the role of the courts to check on the Executive on issues relating to national Interest. PSM then appealed to the Court of Appeal. The Court of Appeal (Dato’ Gopal Sri Ram CAJ., Datuk Wira Hj.Mohd Ghazali CAJ and Dato’ Hashim FCJ.) heard the appeal on 10 and 12th. April 2006. On 16th August 2006, the Court of Appeal dismissed the appeal. Though the Appeal’s Court felt that the issue of National Security was not a good reason not to register PSM, yet the court upheld a feeble technical argument of a seven national members argument to deny PSM the right to register.
PSM appeal also points out that the Court of Appeal contains matters which are false. Gopal Sri Ram’s judgement read, “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”. This is factually in-correct as till today the state of Selangor has yet to grant registration in the State of Selangor to PSM. PSM leaders also checked with the Selangor ROS who stated that PSM has yet to be given a registration.
International Bureau
Socialist Party of Malaysia / Parti Sosialis Malaysia (PSM)
Address:
No.22A, Lorong Vivekananda, 50470 Brickfields, Kuala Lumpur, MALAYSIA.
Tel: +60-3-22747791, (mobile) +60-19-5669518
Fax: +60-3-87374772
email: (headquarters) psmhq tm.net.my
(international bureau) int.psm gmail.com