Another injustice by our Courts!

Dr D Jeyakumar’s bid to question the government over its annual RM1 million allocation for the Sungai Siput constituency was shot down in the Court of Appeal today.

His lawyer Ambiga Sreenevasam said it is a disappointing decision as Jeyakumar was hoping that the court would serve as a check on the government in terms of transparency, as to where the money has gone.

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.

This is because the final opportunity to go to the Federal Court could be costly although the lawyers are providing their services free of charge.

Justice Low Hop Bing, sitting with Justices Abdul Wahab Patail and Anantham Kasinater, unanimously allowed the federal government’s appeal today and dismissed Jeyakumar's application.

Jeyakumar had named the director-general of the Implementation Unit of the Prime Minister's Department, the director of the Perak Development Department and the federal government as defendants.

In February Justice Aziah Ali of the Kuala Lumpur High Court hadgranted Jeyakumar leave to apply for judicial review, to challenge the government's action not to give or provide details of its annual allocation of RM1 million to his constituency.

On Sept 23, the same High Court refused the government a stay of the judicial review proceedings, leading to the appeal being filed.

Low: Judge erred in law

Justice Low, whose decision was read out by a deputy registrar, said the appellate court is of the view the High Court had erred in granting leave for judicial review.

"We allow this appeal, set aside the order of the High Court and substitute it with an order that the Notice of Motion be dismissed," he said.

His reasoning was that the disbursement of the allocation is entrusted in the director-general and director. And this involves the exercise of discretion based on a detailed and comprehensive process of evaluation.

"The DG or director is not required to approve all and sundry applications for the allocation. The respondent (Jeyakumar) must show that there is a legal or statutory duty on the part of the DG and director as a matter of course to approve his 2010 application."

Justice Low said the respondent must establish the existence of a duty of a public nature, the performance of which is imperative and not optional or discretionary.

"The respondent has failed to do so. The notice of motion is clearly premised on the DG's and or director's discretion to approve and disburse funds. There is not an iota of law that the DG or director must do so," he said in his 21-page judgment.

Justice Low further said there can be no doubt that the approval and disbursement of fund involves the exercise of discretion.

"The DG or director must evaluate the applications for the allocation. These applications can only be decided by the DG or the director in line with policy considerations and management prerogative.

"The factual background did show that the appellants had approved (Jeyakumar’s) application amounting to RM1.72 million, while other applications are being given consideration.”

He further pointed out the Perak development department head had suggested that Jeyakumar should channel relevant applications to relevant government agencies.

He said that, in the process of evaluation, the DG or the director must ensure that disbursement of allocations is consistent with government policy.

"Our courts do not possess the knowledge of policy considerations that underlie the decisions pursuant to the DG’s or director’s evaluation.

"The issues raised in the notice of motion are issues of policy considerations and management prerogative. We find that the submission presented by the respondent is legally unsustainable.

"Therefore we are of the view that the issues raised in the notice of motion are not judicially reviewable and hence not justiciable."

The case has been watched closely by Pakatan Rakyat MPs because the federal government has been disbursing allocations to their constituencies only via BN representatives.

Jeyakumar pointed out he does not know where the allocation goes in Sungai Siput and whether the disbursements are the correct amount.

"We want to make sure that if RM5,000 is allocated for a project, (that) amount is given and the project is done properly. That is the purpose. I do not want to see someone benefitting from shortcuts or leakages," he said.

He also said that RM30 billion to RM40 billion of the RM230 billion allocated in Budget 2012 could be wasted if there is no accountability in expenditure.

The Government Transformation Programme and Economic Transformation Programme would similarly “(come) to nought if (the government) is not held accountable", he added.