July 24, 2012
BERSIH2.0 is Legal, says Kuala Lumpur High Court
by Hafiz Yatim@http://www.malaysiakini.com
The Kuala Lumpur High Court has quashed the Home Minister’s declaration on July 1 last year that the Coalition for Clean and Fair Elections (BERSIH) is an “unlawful” organisation However, the court did not grant the two prayers sought by BERSIH for the coalition to be registered.
Justice Rohana Yusof in her decision this morning said BERSIHhas successfully proven its case in challenging the government’s declaration. She also ruled the Home Minister’s declaration as “tainted”.
“Hence, we are allowing the applicant’s application (for judicial review of the government’s declaration), with no order as to costs,” she said.
Senior federal counsel Azizan Md Arshad, representing the respondents, said the attorney-general would be briefed and further instructions sought.
BERSIH lawyer K Shanmuga said the decision means in effect that the coalition is now a legal entity. “…The Home Minister’s decision was irrational because, after declaring it as a threat to national security, he and the authorities had met with BERSIHfficials,” he said.
BERSIH co-chairperson and national laureate A Samad Said (left) said the outlawing of the coalition was unnecessary.
“The legal process has wasted time, energy and government funds. This process also caused unnecessary fear to the people,” he said outside the court.
“The government branded BERSIH as dirty (kotor). Statements from the Prime Minister and the authorities last week said BERSIH has affected the haj quota set by the Saudi (Arabian) government.
“All parties should remember that Justice Rohana saw the contradiction in the actions of the authorities when – during the hearing on June 26 – (she established that) the government had entertained Bersih’s request (to hold its third rally although it had been declared unlawful).”
Apart from Ambiga, the plaintiffs include Dr Ahmad Farouk Musa, S Arul Prakkash, K Arumugam, Haris Fathillah Mohamed Ibrahim, Andrew Khoo Chin Hock, Liau Kok Fah, Maria Chin Abdullah, SP Subramaniam, Toh Kin Woon, Wong Chin Huat, Yeo Yang Poh, Yeoh Yong Woi and Zaid Kamaruddin.
Claims and counter-claims
Home Minister Hishammuddin Hussein and the Registrar of Societies (ROS) had declared the coalition to be unlawful, prior to the BERSIH.0 rally on July 9.
Hishammuddin said the declaration was made under Section 5 of the Societies Act 1966 as investigations had shown that BERSIH was not a registered organisation and that it was creating unease among the people.
Two days later, BERSIH stated that coalitions need not be registered with the ROS. The coalition filed a judicial review application on July 8 to challenge the declaration. It said that it had held numerous meetings with the government and the Election Commission prior to the declaration.
It further claimed that Bersih is not a society within the meaning of the Societies Act and that the government has no power to declare a group of organisations as “unlawful”.
Based on this, Justice Rohana sought clarification from the senior federal counsel. On May 15, however, the court threw out BERSIH’s application to cross-examine Hishammuddin and Police chief Ismail Omar.
At the time, it ruled that BERSIH was still unlawful according to Hishammuddin.