Ironically when Justice Rohana Yusof allowed (on our Home Minister’s application) the Saudi blogger Hamza Kashgari to be deported without local due process [despite the absence of an extradition treaty between Saudi Arabia & Malaysia] to face possible death penalty in Saudi Arabia for alleged blasphemy, no one asked for her judgment to be published in the papers as an example of a judgment “full of common sense and logic”. The wonderful thing about human’s bias is that we attribute common sense and logic to legal decisions/outcome that we like and the opposite to that which we don’t like! For eg the principle of interpreting a legal provision: people vacillate (without internal consistency) their support between 2 positions of interpretation that may be taken by a court. Whether a judge ought to (in interpretation) (a) follow the plain grammatical meaning of what the statute/law (made by Parliament) says or (b) ignore the plain meaning of its words by reading/interpreting beyond their plain words appears to receive our support or criticism depending on whether we like or dislike the outcome of the decision and our politics. It is seldom common sense and logic based on consistency of approach by (a) all the time or (b) all the time. Sometimes(a) sometimes (b), semua Ok as long as we like the outcome!

The decision is based on the logic questioning why Home Minister (HH) -if he declares Bersih 2.0 unlawful on grounds of Bersih posing a threat to national security – would (without regard to consistency but with regard to political considerations/realities) subsequently by conduct inconsistent with Bersih’s unlawful status treat it otherwise as if it were a lawful organisation, with Ambiga granted an audience by the King and allowed to negotiate with govt terms of where to hold rally etc (in stadium) and allow protestors to gather up to the point of Dataran barricades! This implies – the logic goes- if HH had been “consistent” in not accommodating Bersih in any way or by an inch, if the govt had advised such that the King would not grant audience to Ambiga, and regardless of political realities and considerations had refused Bersih a gathering conditional upon it being held in a stadium and had draconianly arrested everyone including its leaders the moment they gathered, his original declaration that Bersih was unlawful would have stood valid by the law in the Societies Act! Think about the logic of that!

The BN govt’s dilemma boils down to this. They will have to appeal. They cannot have such a precedent. There are legal justifications for the Appeal Courts to overrule the High Court’s decision. If however the appeal is taken it may be an unpopular move. The moral cause is not on the govt’s side. After all Joe Public cannot understand what’s so illegal/unlawful about an organistion standing for Clean elections – unless the ruling coalition wants the maintain govt power via electoral manipulation contrary to majority democratic will? But to allow this decision to stand implies Courts by precedent can after this review and question every ministerial/administrative decision arrived at by exercise of executive’s absolute discretion given by law made by a BN dominated BN that years before under TDM’s watch, the constitutional check by exercise of Judicial Power/balance of power between Judiciary & Parliament had already been taken away in favour of Parliamentary Sovereignty and Executive Ministerial Absolute Discretion!