Sometimes taking up cases that have no chance of winning advances the struggle for justice. This was such a case, writes Jeyakumar Devaraj.
“Thozhvi (defeated),” cried Tamil Nesan on 17 January 2013 in its front page, a pronouncement repeated by theSun and Star papers reporting the Federal Court’s dismissal on 16 January of Dr Jeyakumar’s appeal against the rejection of his leave application by the Appeal Court in October 2011.
The Sungai Siput Member of Parliament had filed a motion for judicial review in October 2010 at the KL High Court asking, among others, for a declaration that the systemic denial of constituency funds to all opposition members of parliament contravenes Article 8 of the Federal Constitution and constitutes abuse of power on the part of the Prime Minister’s Department.
An application for judicial review requires first getting ‘leave’ from the High Court. This was granted to the PSM MP by the High Court on 25 February 2011. But it was withdrawn upon appeal to the Appeal Court by the Federal Counsel, who argued that the Courts are not empowered to evaluate the decision of the Executive as it is the “prerogative of the executive”.
The PSM, however, does not agree with the mainstream media’s categorisation of the Federal Court decision as a “loss” or a defeat. The action filed by Jeyakumar in October 2010 brought to public notice a cowardly and discriminatory policy that the BN had been implementing for more than 30 years. Every year the BN MPs get RM1m to spend as they wish in their constituencies while not a sen is given to any Opposition MPs. This wasn’t generally known.
Now, after the filing of this case, the Malaysian public knows that the BN does not have the confidence that its MPs can hold their own on a level playing field – that is why the BN has to give their MPs a huge handicap of RM1m per year!
Apart from exposing this malpractice, this case has led to the creation of a consensus within the Pakatan Rakyat and its supporters that the PR should not do the same onto the BN should the PR succeed in winning federal power. Many PR MPs have endorsed the call that under PR rule, constituency funds should be allocated equally to all MPs whether from the ruling party or the opposition, with the caveat that the funds must be handled more transparently and with annual public accounting by all the MPs.
The Appeal Court decision in October 2011 and the Federal Court decision on 16 January 2013 underscore yet again how emasculated and feeble our Judiciary has become. The Judiciary is supposed to be the third independent pillar of a functioning democracy – a place where the rakyat can turn to complain about executive excesses.
But in Malaysia senior judges bend over backwards to avoid displeasing the Executive. They are not wholly to blame, as the past 25 years contains many examples of judges being victimised for being too “independent” as well as judges being promoted rapidly up the judicial services for being “loyal” to the executive!
When (if?) the PR takes over Putrajaya? Does the Malaysian Public just want the Judiciary to shift it’s sycophantic allegiance from the BN to the PR? Is that the change we are fighting for? If not, should we not look into the process by which judges are chosen? Shouldn’t we look at the example of countries where the selection and promotion of judges is done by an independent commission that is free of the executive?
If the constituency funds case has contributed to the awareness that we desperately need to resuscitate our judiciary and that we need better measures to ensure a separation of powers, then this case has served the cause of building democracy in Malaysia.
Being realists, from the beginning, the PSM never expected to win this case. Our lead counsel, Dato Ambiga dispelled all illusions about winning, But she was prepared to take up the case pro-bono because she agreed with us that it was a good case to expose abuse of power and double standards in the handling of the constituency fund. And she and her team did a fabulous job in presenting our case.
The PSM would like to take this opportunity to thank all the lawyers who played a role in this case, the media who helped publicise the matter, the PR MPs who turned up again and again to show their support, as well as all Malaysians who supported us.
The struggle to re-establish democracy in Malaysia is a long haul. Sometimes taking up cases that have no chance of winning advances that struggle. This was such a case, and we believe that we actually scored, for together, we have advanced the cause of democracy and fair play in Malaysia.
Dr Jeyakumar Devaraj, an Aliran member, is the Member of Parliament for Sungai Siput