Bersih decision, refreshing and reaffirming

— Proham
The Malaysian Insider
Jul 26, 2012

JULY 26 — Proham notes that it is refreshing to see a High Court decision re-affirming the time honoured principle that an executive decision must be based on a proper interpretation of the law and the application of reasonable and rational consideration of relevant facts.

On July 24, 2012, Justice Datuk Rohana Yusof allowed an application for certiorari to quash the Minister’s order made on July 1, 2001 under section 5 of the Societies Act where he had declared the Coalition for Clear and Fair Elections (Bersih) as a unlawful movement.

The decision illustrates the pitfalls of administrative decisions which are not consonant with provisions of the law and the Constitution but are made relying on faulty appreciation of the law and on unreasonable and irrational considerations of unverified or irrelevant facts supplied normally by aides.

Another important aspect of the case is the re-affirmation of another principle that in a democratic system of governance under the Constitution, the intervention of an independent judiciary able to make judicial decisions affecting aggrieved parties without fear and favour is of paramount importance bearing in mind too, that in our court system the right of appeal is not shut to parties dissatisfied with the decisions.

Proham hopes that the 30 page decision will be published in the papers; it will be seen as a judgment where it would not be appropriate to pursue an appeal as the grounds are comprehensive and full of common sense and logic.

* This statement was issued for the Association for the Promotion of Human Rights (Proham) by Tan Sri Simon Sipaun (Proham Chair), Tan Sri Ramon Navaratnam, Tan Sri Michael Yeoh and Datuk Dr Denison Jayasooria (Proham Secretary-General).

  1. #1 by monsterball on Friday, 27 July 2012 - 2:25 am

    Malaysians hope and pray all Judges are brave enough to be lawful and righteous judges like what we read the verdict being announced by the very brave noble Judge.
    It is not that the news pleases Malaysians.
    It is a fact…the government keep bullying Malaysians that do not agree with them.

  2. #2 by Jeffrey on Friday, 27 July 2012 - 6:52 am

    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!

  3. #3 by Jeffrey on Friday, 27 July 2012 - 7:10 am

    The plain words of Section 5 of the Societies Act – “It shall be lawful for the (Home) Minister in his absolute discretion by order to declare unlawful any society or branch or class or description of any societies which in his opinion is or is being used for purposes prejudicial to or incompatible with the interest of the security of Malaysia or any part thereof public order or morality”.

  4. #4 by Jeffrey on Friday, 27 July 2012 - 7:58 am

    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!

  5. #5 by Jeffrey on Friday, 27 July 2012 - 8:30 am

    Proham is however right about one thing which Malaysians can rejoice in respect of Justice Rohana Yusof’s decision.
    Regardless of whether reasoning in that decision is sound or otherwise, the decision does constitute a landmark one in deciding (even after Tun Mahathir admin had taken out “judicial power” from the courts in 1988) that a judge can, in principle, review a govt minister’s exercise of ministerial discretion as conferred in clear and unequivocal language by Parliament, and overturn his decision on grounds of what the court perceives as improper exercise. Under Westminster system – which hasn’t a written constitution- the Court has to be independent to check the other 2 branches of Executive (BN Govt) and Parliament (majority BN). Ours however has written constitution, and relevant constitutional parts on this checking by exercise of judicial review (what we call judicial power) had during TDM’s watch been amended and taken away in the guise of sovereignty of Parliament to make any law it deems fit including draconian laws which courts cannot go behind to say Parliament cannot have intended this. Society Act is in a way such a law : by its plain wordings it confers absolute discretion to Executive (represented by Home Minister) to declare any organisation unlawful as he deems the case without the courts being able to review the substantive grounds. Justice Rohana Yusof’s decision basically says, never mind, the court could review what the Minister decided -no matter Parliament gave the Minister the clear and unequivocal discretion to decide conclusively and with legal finality according to his subjective discretion- whether what he decided (ie Bersih unlawful) is objectively defensible. The decision is a morally right one but (legally) controversial.

  6. #6 by Jeffrey on Friday, 27 July 2012 - 8:42 am

    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!

  7. #7 by Jeffrey on Friday, 27 July 2012 - 8:45 am

    4th line from bottom – “……given by law made by a BN dominated “Parliament/Legislature…” – (not “BN”, a typo mistake)

  8. #8 by omeqiu on Friday, 27 July 2012 - 5:06 pm

    Mr. Loo, they are only reporters, not journalists. Please don’t upgrade them. I’m sure you know the difference.

  9. #9 by Loh on Friday, 27 July 2012 - 10:56 pm

    Jeffrey :
    The plain words of Section 5 of the Societies Act – “It shall be lawful for the (Home) Minister in his absolute discretion by order to declare unlawful any society or branch or class or description of any societies which in his opinion is or is being used for purposes prejudicial to or incompatible with the interest of the security of Malaysia or any part thereof public order or morality”.

    The law assumes that the Home Minister would act in the interest of the nation at all time. When it was seen that the Minister’s actions were politically motivated, the judge has to act.

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