I refer to the Malaysikini report BN doesn't discriminate, Azalina tells MBs .

It is not clear from the press reports whether the government has a formal policy that allows for adverse decisions against opposition-led states on the matter of tourism funding simply because these states are under opposition rule. Much of what she says suggests that there is, at least, a practice of this kind.

This inference can be drawn from her claim that some such practice had been applied to Kelantan, a state long under PAS rule, and that the government is now acting consistently in extending it to all opposition led states. And it can be inferred from her statement that although the federal government would act in the ‘interests of the people,’ things would be ‘easier’ if the opposition joins BN.

I find these remarks highly troubling. I should say that her reply smacks of the ‘separate but equal’ rhetoric once employed to defend segregation against blacks in the US. That a state is under opposition control is irrelevant from the perspective of justice because justice demands equal concern for the moral interests of individuals as individuals.

On this view, a person’s political allegiances are therefore morally irrelevant when it comes to judgments that affect such interests. My aim in this letter is to press this issue of equality first as an objection of constitutional principle and then as a broader point about her failure to appreciate the significance of equality within the notion of democracy.

From the constitutional standpoint, Azalina needs to keep in mind that all exercises of official discretion are subject to a test of constitutional legitimacy. In this regard, the constitution’s protection of the principle of equality before law is relevant (Art. 8).

While the explicit terms of the constitutional norm apply to protect the interests of the individual against the state, the moral justification for the principle suggests that the minster’s position is constitutionally objectionable. If the government is withholding funding simply because it does not want to fund a project in an opposition state, this is discrimination against the people in that state.

To be sure, it is not clear that the currently constituted judiciary will be receptive to such an argument. The jurisprudence on equality coming out of our Federal Court has been discouraging as the court has shown, over and over, that it is willing to uphold legislative and executive decisions that violate the equality principle.

In addition, current concerns about judicial impartiality suggest that we should not blindly accept the court’s views on matters of constitutional principle. I raise this point about the judiciary because I want to affirm that courts do not hold a monopoly on constitutional truth.

State governments should therefore use constitutional arguments to force the minister to defend her ministry’s practice on constitutional terrain. Contrary to her comments, the legitimate uses of federal funds is not a simple matter of who gets to sign the cheque because the relevant issue is about what factors should determine whether the cheque should be signed and whether those who sign the cheque are drawing on the correct factors. This also means that - contrary to her claim that these decisions are discretionary - all discretion is subject to constitutional constraints.

So far as my larger point about equality and democracy is concerned, I want to make my argument by pointing to how Azalina’s comments actually work to deflate the efforts of the PM to convince the Malaysian public of the legitimacy of his rule and of the legitimacy of the BN government more broadly.

As is well known, the PM’s response to the argument that he should resign is that he is the rightful leader of the BN government in light of the support of a majority vote gained at the recent general elections. For his argument to stand, one has to assume that the electoral result is the product of a legitimate procedure that gives legitimacy to the government’s position.

Again, it is the idea of equality, the notion that when a person votes, their vote has equal value in influencing the choice of government, that makes the idea of an electoral process legitimate.

Azalina, in suggesting that the status of a state government as opposition-led marks a salient difference that should determine funding decisions, undermines the notion of equality required to ground the legitimacy of the electoral process.

This is because her comments suggest that a vote for the opposition is worth less than a vote for BN. In so doing, they contradict the views of the PM who is relying on that legitimacy to defend his status and the status of the ruling government, a defence that hinges on the idea of equality a central to that process.

My broader point, therefore, is that an egalitarian ideal underlies democracy – a government for the people, of the people, and by the people – an ideal also expressed in our constitution’s commitment to equality. This ideal requires that a government in power serve all Malaysians regardless of their particular political allegiances. The sooner the BN government comes to this realisation, the better, and then maybe, if it is lucky, itsmMinisters will also start to make some sense.