“Peruntukan” challenge: Court can’t question government

The Court of Appeal has set aside the Order granting leave to Dr Jeyakumar Devaraj to challenge the “Special Constituency Allocation” given by the Federal Government only to Barisan Nasional MPs.

In February of this year, Aziah Ali J had granted the Sungai Siput MP Dr Jeyakumar Devaraj leave to apply for judicial review so that the Court could examine if the manner in which the Federal Government was disbursing millions of ringgit of taxpayers monies over the years through Barisan Nasional MPs was legal. The judgment there was summarised here.

I summarised the facts of the challenge as follows:-

The Special Constituency Allocation is a fund administered through the Implementation and Coordinating Unit of the Prime Minister’s Department and given for various small projects throughout Malaysia.

Politicians from the ruling Barisan Nasional coalition have publicly stated many times that the Fund is only for Barisan Nasional politicians and Barisan Nasional constituencies.

However, in various answers to Parliamentary Questions and according to correspondence from the government department, the fund is said to be available for allocation throughout the country for deserving projects.

Dr Jeyakumar had made several applications on behalf of various schools and other bodies which in his view deserved assistance in his constituency.

All his applications were rejected. Hence, the application by him for judicial review.

On Monday, 10th October 2011, the Court of Appeal comprising Low Hop Bing, Abdul Wahab Patail and Anantham Kasinather JJCA unanimously allowed the appeal by the Attorney General’s Chambers and dismissed the application for leave. The crux of the Court’s decision was that the disbursement of the funds was a matter of “policy considerations and management prerogative” on the part of the Executive branch of government. Hence, the exercise of the discretion by the civil servants in disbursing the funds was not “justiciable”.

The full judgment of the Court of Appeal, delivered by Low Hop Bing JCA, can be viewed here.

After the decision, Dr Jeyakumar is reported by Malaysiakini to have commented as follows:-

Jeyakumar said the court – the last bastion of justice for the people – should have been supportive of the decision to ensure that the money allocated is not wasted.

“I do not want the money for myself … but to ensure (that whatever is allocated) is properly spent ….opposition MPs do not directly get the allocation from the federal government and this is disappointing.

“Following this decision, my message to the people is that as we cannot depend on the courts to look for transparency and it is people power (that will) decide in the coming general election.”

Jeyakumar said he will consult Parti Sosialis Malaysia as to whether or not to appeal this decision.

The lawyers:

Dato’ Ambiga Sreenevasan and Mahaletchumy Balakrishnan appeared for YB Dr Jeyakumar. The Attorney General was represented by Senior Federal Counsel Puan Suzana Atan, Puan S Narkunavathy and Tuan Shamsul Bolhassan.

Appearing for the other MPs who had been added as Interested Parties by the High Court: Ranjit Singh appeared for YB Dr Dzulkefly Ahmad, YB Nurul Izzah Anwar and YB Tian Chua. Aston Paiva acted on behalf of YB Dr Hatta Ramli, YB Liew Chin Tong, YB M Manogaran and YB Dr Siti Mariah Mahmud. Shamala Balasundram appeared for YB Khalid Samad. YB Yusmadi Yusoff appeared in person.

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Posts by Shanmuga K

Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com

Posted on 11 October 2011. You can follow any responses to this entry through the RSS 2.0.

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