PSM has been trying to get registered since 1998

Democracy in Malaysia suffered yet another setback on 13 January 2003 when Justice Datuk Abdul Hamid b Said of the KL High Court dismissed with costs the PSM�s Application for a Mandamus ordering the Home Minister to register the party.

The PSM�s application for registration which was tendered to the Registrar of Societies, Selangor on 30 April 1998 was officially rejected on 27 Jan 1999. No reasons were given then. The PSM protem committee submitted an appeal to the Home Minister on 23 February 1999 as is allowed for under Section 18 of the Societies� Act. On 15 September 1999 the Home Ministry replied that this appeal was also rejected. Again no grounds were given.

The PSM then decided to seize the bull by its horns and took the Home Minister to Court - the very first time a political party seeking registration has done so in Malaysia. The PSM�s contention was that the right of association is enshrined in the Malaysian Constitution under Article 10. The Home Minister must have very good grounds if he wishes to deny any citizen their constitutional rights.

On 26 October 1999, the PSM, represented by lawyers Tommy Thomas, Teng Chang Khim and Ragunath Kesavan, filed an application for Cetiori (to set aside the Home Ministers rejection of the party�s registration) as well as for a Mandamus (ordering the Home Minister to register the party). After much delay occasioned initially by the DPP�s offer to register the party if the PSM would first withdraw this case, and later by the retirement of the Judge, the hearings began under Abdul Hamid on 13 November 2002.

No Rhyme or Reason

The Home Minister had, in his Affidavid in Reply, claimed that the PSM was refused registration for two reasons. One was that the PSM had refused to provide the names of members from seven different States. The other reason was that the PSM was a threat to the security of Malaysia.

PSM�s lawyer Mr Ragunath argued that the requirement of members from seven different States is not a requirement under the Societies Act. This requisition was never stated in any of the written instructions to groups seeking registration but was arbitarily imposed on the PSM without any explanation or just cause. The PSM�s queries regarding this additional requirement were never addressed. Ragunath argued that a Constitutional right cannot be set aside by a bureaucratic requirement that is not grounded in the laws governing the registration of political parties.

As for the issue of the PSM being inimical to the security of the Federation, Ragunath pointed out that this is not consistent with the Selangor ROS� offer (in mid 1998) to register the PSM as a Selangor-based party, nor with the fact that none of the protem members of the PSM have been charged for any subversive act, violence or sedition in the past four years since the party submitted its application for registration. There was therefore, no rhyme or reason to consider PSM as a threat to the security of Malaysia.

Ragunath argued that the Court should apply the objective test to the Minister�s decision and to countermand that decision if the Minister cannot give any evidence to back his claim that the PSM will adversely affect the security of Malaysia. He cited Sdr Mohd Ezam�s habeas corpus application to the Federal Court which led to the landmark decision by three Federal Court Judges that the detention of the six ISA detainees was illegal.

Unfortunately the Honourable Judge chose to accept the DPP�s counter argument that Parliament in enacting Section 7 (3)(a), of the Societies Act states �The Registrar shall refuse to register�where it appears to him�is likely to be used for any purpose prejudicial to the peace, welfare, security�� had given the Home Minister absolute power to decide regarding registration of political parties, and that the Court did not have the mandate to weigh the grounds of the Minister�s decision.

Disappointing Decision

The PSM protem leadership, though disappointed with the decision as they had been hoping to open branches in several areas to give political voice to the sectors that they are already working with, announced that the PSM will continue its work with the marginalised sectors while appealing this High Court decision - a process that might well drag on over the next three years.

Apart from the PSM and the sectors that it represents, the other main casuality in this affair is the institution of democracy in Malaysia itself. There are two essential requirements for the flourishing of the democratic process in any society.

One is the existence of a well informed, politically mature public, and this in turn is dependent on the free-flow of information and the existence of avenues of discussion of important issues in the media. This first requirement continues to be circumscribed with the attack on Malaysiakini as well as the threatened use of the ISA on the so-called detractors of the policy to use English for the teaching of maths and science.

The second vital requirement for the survival and growth of the democratic process is the widespread belief among the public that the process is free and inclusive of all the major public leanings within that society - and that the bureaucracies set up to administer the process are fair, professional and strictly neutral. In Malaysia, however, we have the spectacle where certain parties can get registration within days - UMNO Baru, the MDP, the Sarawak Progressive Democratic Party (3 days!), and three Sabah-based parties (SAPP, PDS and PBSR) in 1994, etc - while others like the PSM are denied their freedom of association despite patiently exploring every legally sanctioned avenue.

The latest delineation exercise by the Election Commission - where the majority of additional seats have been created in States known to be BN strongholds, and where serious gerrymandering has been carried out to make constituencies more ethnically mixed, as this will benefit the BN in the current political situation - is another clear indication of the partisan bent of the institutions entrusted with implementing the process of democracy in Malaysia.

Democracy in Malaysia is under seige - and has been so for a long time. However this should not be a reason for despair and quietism, We need to recognise that the only force that can rescue Malaysian democracy is public opinion. The Malaysian people wield far more power than they realise. In the 1999 elections for example, about a third of the seats were won with slim majorities comprising less than 4 % of the votes cast. Any public issue that results in a mere 2% of the public switching their votes to the opposition will result in a tidal wave of opposition victories - a fact that the wily political leaders of the BN are well cognisant of.

We need to intensify our campaigns of identifying and highlighting unfair and partisan policies and actions taken by the institutions that have been entrusted with the safeguarding of democracy in Malaysia. The existence of strong public pressure in defence of the democratic institutions will definitely help curb the abuses of bureaucratic processes to stifle alternative viewpoints in Malaysian Society.

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