The decision (to declare it illegal) is tainted, says the judge.
High Court (Appellate and Special Powers Division) judge Rohana Yusof said that Home Minister Hishammuddin Hussein’s order made last year is quashed.
“In my view, the decision is tainted with irrationality… The decision to declare Bersih unlawful was made without taking into account some relevant facts or by taking into account irrelevant facts,” she told a packed courtroom.
She ruled that it was “unreasonable” for the minister to find Bersih unlawful for the serious reason of being “prejudicial to public order and security” on July 1 and then subsequently on July 5 and July 9, the authorities continued to negotiate with the organisers and allow the rally.
“It cannot be the case that one week after that, such reason is no longer valid or applicable… the declaration should be lifted accordingly,” she said.
Rohana said that the conduct of the respondents after Bersih was declared illegal did not reflect the seriousness of it being “prejudicial to public order and security”.
“The decision to outlaw Bersih impinges on the rights guaranteed under the Federal Constitution and should not be taken in just a lackadaisical manner. If it is found to be a threat to the security of the nation, the conduct of the respondents in treating Bersih certainly shows the opposite,” she said.
However, Rohana ruled that Bersih 2.0 fell within the ambit of the Societies Act 1966 as it can be defined a society under Section 2 of the said Act.
She then ruled that the Home Minister had acted within his powers, but noted that no charges were brought against any Bersih leader under any offences of the Act.
She also noted that Bersih leader S Ambiga had also met the Yang di-Pertuan Agong even after her group was declared illegal.
In her ruling, Rohana made no orders as to costs.
Speaking to reporters minutes after the decision, Bersih lawyer K Shanmuga said that Rohana’s decision effectively means that the coalition was now legal.
“Bersih is now legal,” he said outside the court, causing a crowd of Bersih leaders and supporters to erupt into cheers.
“It was a waste of time, energy and resources and the order to make us illegal should never have been made,” he said.
Samad said that the minister’s order had tarnished Bersih and made it look kotor (unclean), resulting in many being afraid to support it.
“With this decision, we can clearly see the contradictory actions of the authorities,” he said.
Senior federal counsel Azizan Md Arshad, who appeared for the home minister, police and the government, told reporters that he would take further instructions from the Attorney-General’s Chambers on whether the government would appeal the decision.
In the judicial review case filed on July 8 last year, a day before its mammoth rally in Kuala Lumpur, Bersih 2.0 sought to quash the minister’s order which declared it an unlawful society.
The applicants are 14 members of the movement’s steering committee, including its chairperson Ambiga.
Other Bersih steering committee members are 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.
The respondents are the Home Minister, Inspector-General of Police (Ismail Omar) and the government.
On Sept 28, the High Court granted leave for a judicial review.
Bersih 2.0 is seeking an order of certiorari to quash the Home Minister’s order dated July 1, last year declaring Bersih 2.0 an unlawful society and a declaration that the order is null and void and of no effect.
Not a threat
Bersih 2.0 had argued that it is a coalition of 62 NGOs and civil societies and had no political parties in the coalition, in contrast with the first Bersih of 2007.
As such, the Registrar of Societies (ROS) could not deem Bersih 2.0 illegal as it was a “movement” and not a society by virtue of the fact that it was a coalition with no fixed membership, Bersih 2.0 had said.
Bersih had accused Hishammuddin of using his powers for ulterior purposes rather than out of a genuine desire to preserve public order.
The government legal representatives had argued that the Home Minister had acted in accordance with the law and had the powers to declare Bersih 2.0 illegal.
Previously, during submissions, senior federal counsel Azizan Md Arshad had said the minister’s decision was also based on national security and public order and such a decision was legal.
Azizan had said that the Bersih steering committee had no case as declaring Bersih an unlawful society was “reasonable and rational”.
During the course of the case, Bersih had attempted to cross-examine the Home Minister and the IGP but the court had ruled against it, saying that affidavits were sufficient.
The judge had previously sought clarification from Hishammuddin and Ismail for the grounds for labelling Bersih as illegal as the former had, in an apparent change of stance, said that the more recent Bersih 3.0 rally (which was held on April 28) would be allowed as it was not a security threat.
Hishammuddin had filed an affidavit explaining that Bersih was still unlawful and his comments were made in the context of the new Peaceful Assembly Act.