High Court: Hisham’s order to declare Bersih illegal ‘tainted with irrationality’

File photo of the July 9, 2011 Bersih rally in Kuala Lumpur. — Picture by Choo Choy May

KUALA LUMPUR, Sept 6 — Inconsistencies in the behaviour of the authorities led to a High Court decision here to quash Home Minister Datuk Seri Hishammuddin Hussein’s order declaring Bersih 2.0 an unlawful society on the grounds that his decision was “tainted with irrationality.”

“It cannot be a case that a society is a threat to public security on 1.7.2011, and then no longer so soon after that... I hold the view that the decision in finding Bersih unlawful is tainted with irrationality,” High Court judge Rohana Yusuf said in her grounds of judgment made available to The Malaysian Insider today.

On July 24 she had ruled Bersih 2.0 a legal society and quashed the minister’s order made last year just a week before last year’s July rally for free and fair elections.

The loose coalition of 62 registered civil societies led tens of thousands to demand for free and fair elections in the capital city on July 9 last year, which resulted in some 1,600 arrests but ultimately resulted in the government agreeing to set up a bipartisan parliamentary polls panel.

Prominent lawyer and former Malaysian Bar president Datuk Ambiga Sreenevasan and 13 of her colleagues in Bersih’s steering committee had in July last year filed a judicial review seeking to get the Barisan Nasional (BN) government to lift its July 1, 2011 ban of the movement.

In her judgment, Rohana pointed out that after Bersih had been declared unlawful, the minister’s representatives subsequently negotiated with the movement’s leaders on how and where the planned rally should be held.

Ambiga, she said, had also been granted an audience by the Yang di-Pertuan Agong.

Instead of being subjected to the various provisions in law in tandem with its pronouncement as an illegal society, the judge noted that the events after the ban showed the opposite happened.

“In the upshot the conduct of the respondents in dealing and handling Bersih soon after it being outlawed in fact does not reflect Bersih as an unlawful society, but it connotes something else.

“It does not at all reflect the conduct of persons who found the society to be used for the purposes prejudicial to the interest of the security of Malaysia and public order,” Rohana said.

She noted that the reason of public security for declaring Bersih illegal could not have changed in a matter of days.

“The respondent (home minister) cannot be blowing hot and cold at the same time.

“However, if the reason of public security had since ceased then the declaration should be lifted accordingly.”

Apart from Ambiga, the 13 other leaders named in the court filing are Maria Chin Abdullah, Datuk Toh Kin Woon, Zaid Kamaruddin, Dr Ahmad Farouk Musa, Arul Prakkash Sinnappan, Haris Fathillah Mohamed Ibrahim, Andrew Khoo Chin Hock, Liau Kok Fah, Wong Chin Huat, Datuk Yeoh Yong Poh and Yeo Yong Woi.

The group has since held another rally on April 28 this year to push for electoral reforms to be enforced before the 13th general election is due.