Who killed Teoh Beng Hock? by NH Chan

Who killed Teoh Beng Hock?

The burden of proving that Teoh’s death was an accident lies on those who had held him at the MACC

By N H Chan

Recently (see my article “If you put the cart before the horse” or “Cart and Horse” depending on where you have read it), I wrote about the unfounded conclusion of a befuddled Royal Commission of Inquiry that Teoh Beng Hock was driven to suicide while he was in the custody of the MACC.

One still wonders how such a conclusion could ever have been reached by the RCI without any evidence to support it whatsoever! Such evidence requires the opinion of an expert – which is a relevant fact under section 45 of the Evidence Act – to say that Teoh was driven to suicide as a direct consequence of the third degree method of interrogation inflicted on him by the police while he was in the custody of the MACC. It is because the finding of the RCI that Teoh was driven to suicide was unsupported by any evidence that we all realized how silly had been those judges who sat on the Royal commission. Those three judges have since become the laughing stock of the nation!

This nursery rhyme from our early childhood immediately comes to mind:

Three blind mice, three blind mice
See how they run, see how they run.
They all ran after the farmer’s wife
Who cut off their tails with a carving knife.
Did you ever see such a thing in your life
As three blind mice?

Those three blind mice that ran after the farmer’s wife got their tails cut off.

Like the three blind mice, the three judges of the Teoh Beng Hock RCI were unable to see the wood for the trees in the forest of their task to enquire into the death of TBH. Because they were blinded by the confusion of their task they could only manage to come out with an unfounded opinion.

Have you ever seen such a thing in your life as three blind judges? Were our judges incompetent? Or were they interested in the pursuit of their own aggrandizement? “Judges are not interested in the pursuit of power. If they were, they would not have become judges” said Lord Nolan in his lecture “Certainty and Justice: The Demands on the Law in a Changing Environment” at The Sultan Azlan Shah Law Lectures, Thomson/Sweet & Maxwell, at pages 312-313. Undoubtedly judges who are interested in the pursuit of power are corrupt; for power corrupts and absolute power corrupts absolutely. So now you know. They are either incompetent or corrupt.

Now is an opportune moment to discuss further. Since Teoh did not commit suicide as there was no evidence to support such a conclusion, then how did he fall from the window on the 14th floor to his death?

How did Teoh fall to his death?

We all know that Teoh fell from the MACC building to his death when he was in the custody of the MACC. We also know that he was subjected to cruel and unrelenting interrogation by the police officers at the MACC who wanted to extract a confession from him so as to implicate the Selangor state government with alleged wrongdoings. He was found dead from a fall from a window on the 14th floor of the MACC building. All these happenings cannot be denied because it has been revealed at the hearing of the RCI.

One should also know that section 106 of the Evidence Act 1950 says the burden of proving any fact especially within the knowledge of any person lies on him. So that in the TBH case, the burden of proving how TBH died lies on the MACC. This is because only the MACC and its personnel knew how TBH was killed. His death occurred when TBH was in the custody of the MACC. That is why the Malaysian Bar said “that full responsibility for Teoh Beng Hock’s death lies squarely and solely on the MACC”. This is what section 106 says:

106. Burden of proving fact especially within knowledge

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

ILLUSTRATIONS
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

This is what the Malaysian Bar said (see loyarburok.com on “Teoh Beng Hock: the search for justice and truth must continue):

It is very clear to the Malaysian Bar that full responsibility for Teoh Beng Hock’s death lies squarely and solely on the MACC, and that immediate action must be taken to hold the culpable officers accountable for their behaviour. … The authorities should investigate the relevant MACC officers for possible offences under sections 304 and 304A of the Penal Code, namely for culpable homicide not amounting to murder and for causing the death of TBH by negligence, respectively.

Actually the Malaysian Bar was being polite for suggesting an investigation by the authorities on possible offences under sections 304 and 304A of the Penal Code. Unquestionably a crime was committed. The authorities are duty bound to prosecute the perpetrators who have become common criminals irrespective of their rank in the police force! The ball is now in the court of the Public Prosecutor, who, as we all know, is the Attorney-General, to do his duty.

What then are the crimes these policemen of the MACC were supposed to have committed? As suggested by the Malaysian Bar, they are sections 304 and 304A of the Penal Code and, I would add, even murder under section 302 of the same Code. It doesn’t matter which is the section applicable as the burden is on the accused persons to prove the facts which are in their knowledge to try to reduce the charge to a lesser one.

It is murder (section 302) if TBH was dropped from the 14th floor to his death by his captors.

It is culpable homicide not amounting to murder (section 304) if TBH was taken to the window to frighten him but his captors somehow lost their grip and he fell to his death.

It may be a case of causing the death of TBH by negligence under section 304A if TBH had tried to escape by climbing out of the window and fell to his death in the attempt. The negligence is for leaving the window on the 14th floor conveniently open.

The above are the possible scenarios for the reduction of the crime from murder. But it is on the accused to prove the exculpating factors.

I use the word “captors” decidedly. A witness is never restrained and he is interviewed. He is free to leave at any time. A suspect is restrained and he is interrogated. He has no freedom of movement. He is held in custody. That is why in the coroner’s inquiry into the death of Selangor Customs assistant director Ahmad Sarbaini we get this kind of answer from a witness:

Awtar: What is the reason for him to climb out of the window? Why didn’t he use other ways?
Dr Shahrom: From what I was told by the police, he had a visitor’s pass, which only allowed him to go up the building, not down.
[see the New Straits Times, Thursday, August 4, 2011]

Could Teoh have accidentally fallen to his death?

We have ruled out suicide for the reasons stated above. Was his death accidental then? Of course, if the accused persons could show that TBH’s death was an accident then the culprits would get off scot free.

I think it is most unlikely that such a defence can succeed. How could TBH or anyone fall out of a window by accident, meaning by chance or without apparent cause? There was no reason or cause for TBH to climb out of the window on the 14th floor. Unless he was trying to escape from his captors in which case it would not be an accident at all. But, in any case, there was never any suggestion that Teoh tried to escape through the window before the RCI. Therefore, such a defence if raised could only be an afterthought. As such it is no defence at all.

An accident is an incident that happens by chance or without apparent cause. An incident that is happening by chance is a fortuitous happening – an accident.

In any case, I think, section 15 of the Evidence Act is worth considering when there is a trend of people falling to their deaths when they were held by the MACC as witnesses. Section 15 reads:

15. When there is a question whether any act was accidental or intentional or done with a particular knowledge or intention, the fact that the act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

Could homicide be ruled out?

There was a suggestion from some forensic pathologist that there were no injuries on Teoh’s body not related to the fall to show that there was a struggle or resistance to being pushed or carried to the window. Since there was also no sign of damage to the window sill to show any sign of a struggle, homicide, according to their cloistered mind, was ruled out.

It doesn’t take a kung fu or karate exponent to know that a person could be disabled in such a way that he would not be able to put up any resistance or struggle against his captors.

Speaking from my own experience as a criminal lawyer in my younger days at the Bar, I know that most suspects when subjected to intense and prolonged interrogation were generally docile and would not put up a struggle when asked to perform certain tasks like being asked to remove their pants and to sit on ice.

Also, because I have done it myself, I know it is not difficult to subdue a person to do as he is told with very little physical effort on my part. The easiest thing that I have used when I was set upon by a thug when I was a student in London who had grasped my throat was to grab the little finger of the hand that grabbed my throat with my hand and by bending the finger upward the pain inflicted on my assailant was so excruciating that I could make him do anything. It would not take much effort to snap his little finger but there was no need. I made him kneel to say he was sorry. He never tried to bully me again.

The easiest way to make a person do as he is told is to use an arm lock on him from behind. On the other hand a policeman would simply put a pair of handcuffs on his wrists behind his back. He can then be led to the window without a struggle. In most cases the suspect is docile so that you don’t even have to disable him. There are other methods but any trained policeman would know how to do it.

In a disabled state the suspect with some assistance from his captors could even be made to climb onto the window sill without a struggle and made to sit there.

mysinchew: Welcome to Malaysia — by David D. Mathew

Welcome to Malaysia — David D. Mathew

July 28, 2011

JULY 28 — Malaysia receives thousands of visitors every day. Some come looking for jobs while others are travellers yearning to enjoy our sunny beaches and delicious food.

But this article is not about jobseekers or tourists.

It is about two men.

About a month ago, Malaysia welcomed someone from a country formerly known as Rhodesia. He was treated very well and afforded all the luxuries and hospitality Wisma Putra could possibly provide.

This man, who so easily entered Malaysia, has a European Union travel ban against his name.

When this man appeared at a food summit in Rome in 2008, Mark Malloch Brown, the British Foreign Office minister for Africa, Asia and the UN, commented that this was “like Pol Pot going to a human rights conference.”

The Australian foreign minister, Stephen Smith, said that the man’s attendance at the food summit was obscene because “this is a person who has presided over the starvation of his people.”

In 2006, the African Union’s Commission on Human and Peoples’ Rights released a report which expressed concern over “the continuing violations and the deterioration of the human rights situation” and “the number of internally displaced persons and the violations of fundamental individual and collective rights resulting from the forced evictions” that was being carried out by the government led by this man.

Three years ago the Queen of England stripped this man of his honorary knighthood which was awarded to him in 1994.

Without mincing his words, a British Foreign Office spokesman said that the action had been taken “as a mark of revulsion at the abuse of human rights and abject disregard for the democratic process” in the country over which this man presided.

The man being referred to is Zimbabwe President Robert Mugabe. He visited Malaysia last month to attend the Ninth Langkawi International Dialogue as an invitee of the government.

Much of the world chides him. Thousands of his people have died of starvation because of his policies. Hundreds of his political opponents have been savagely beaten and tortured by the state.

Yet, Malaysia welcomes him.

Last week, the former general secretary of the International Federation for Human Rights visited Malaysia.

This man has been very active in initiating legal proceedings in France against former Serbian or Rwandan leaders suspected of crimes against humanity and crimes of war.

He acts for Franco-Chilean families who were victims of the former dictator Augusto Pinochet. He also defends several French prisoners detained in Guantanamo.

The man also founded Sherpa, a non-profit organisation dedicated to protecting and defending victims of economic crimes.

In 2009, Sherpa along with other non-profit organisations lodged a complaint in France against Dalhoff, Larsen and Horneman (DLH), one of the world’s leading international timber wholesalers.

It is alleged that during the civil war in Liberia from 2000-2003, DLH brought timber from Liberian companies that provided support to Charles Taylor’s brutal regime.

According to the claimants, by importing timber from forest concessions operated by corrupt Liberian companies, the French arm of DLH is guilty of handling and profiting from goods obtained illegally which is punishable under French criminal law.

The man being referred to is French human rights lawyer William Bourdon.

He arrived in Malaysia last week at the invitation of local human rights group Suara Rakyat Malaysia (Suaram) to attend three fund-raising dinners. After the first dinner in Penang, Bourdon was detained by the authorities on his return to Kuala Lumpur and then unceremoniously deported.

Bourdon is in fact engaged by Suaram to represent them in a case pending at the French courts concerning alleged financial kickbacks received by top government officials both in France and Malaysia over the purchase of the Scorpene submarines.

The Mugabe and Bourdon incidents raise grave concerns about the Malaysian foreign and immigration policies.

How can it be possible that we welcome an undisputed, evil despot but kick out a human rights campaigner who at the end of the day is merely advocating the stand of a local organisation trying to have their day in the French courts?

I guess it all comes back to something I have written about before.

We don’t like it when it is about us.

March and rally all you like if it is against Israel or America. But it is not all right to march when it concerns local issues like free and fair elections.

Welcome to Malaysia if you don’t criticise us, doesn’t matter about what you do elsewhere.

Get out if you are here to talk about the possible shortcomings of those in government.

Only time will tell if Bourdon and Suaram succeed in proving their case. But one thing is for sure. Robert Mugabe is no hero and if there is one person in this world who does not deserve to enter this land, it would be him. — mysinchew.com

fmt: Lawasia says Govt disdains human rights.... by Patrick Lee

‘Govt disdains human rights’

Patrick Lee

 | July 27, 2011

In Malaysia, political survival is more important than human rights, according to an international lawyer's group.

PETALING JAYA: Malaysia’s heavy-handed crackdown on Bersih 2.0 (Coalition for Free and Fair Elections) indicates its disdain for human rights, an international lawyers’ group said.

Lawasia president Lester Huang condemned the arrests surrounding the July 9 rally and alleged that there was police brutality on the day itself.

“It defies any understanding that any government which claims to support the democratic process can maintain credibility among voters,” he said in a press statement.

Huang said that the government of the day appeared to make political survival a priority instead of adhering to the country’s “democratic principles”.

He pointed out that the authorities appeared to adopt “haphazard” crowd control methods, which included an “indiscriminate” use of tear gas and water cannons.

Malaysia, Huang added, did not seem to follow the “United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials”, which it adopted in 1990

Police were alleged to have fired tear gas canisters directly into crowds of protesters during the July 9 rally in Kuala Lumpur.

There also appeared to be little restraint employed by the authorities in dispersing Bersih supporters on that day.

In one instance, the Tung Shin Maternity Hospital was targeted by water cannons, with tear gas trailing into the compound.

The police have, however, defended their seemingly aggressive position on that day, attributing it to standard operating procedure.

Huang, however, did not appear to be convinced, and noted the continued harassment by the authorities, particularly against people wearing Bersih T-shirts.

He said that Malaysia needed to be more mindful over the rights of its citizens, and had to take its regional role more seriously.

“It is of profound regret to the regional legal community that the reaction to the Bersih movement sees these principles cast aside.”

“Actions of this sort in any country will always deserve the strongest criticism from the legal community on both legal and humanitarian grounds,” Huang said, adding that Malaysia’s membership on the United Nations Human Rights Council was called into question.

UN Human Rights High Commissioner: Malaysia: Government risks undermining democratic progress, say UN experts

11 July 2011

Malaysia: Government risks undermining democratic progress, say UN experts

GENEVA – UN human rights experts* on Monday expressed their dismay at the use of tear gas and water cannons by security authorities against peaceful protestors in Malaysia on Saturday, reportedly leading to injuries and one death, and the arrest of more than 1,600 people at the Bersih 2.0 rally. 

“The right to freedom of opinion and expression, including in the form of peaceful protests, is essential for democracy. By declaring the demonstration illegal, sealing off parts of the capital in advance and responding in such a heavy-handed manner against peaceful demonstrators, the Government of Malaysia risks undermining democratic progress in the country,” said Frank La Rue, UN Special Rapporteur on the right to freedom of opinion and expression. 

Tens of thousands of people gathered near the Medeka Stadium on Saturday despite the announcement made by the police that no gathering would be permitted that day on the basis of the Malaysia Police Act, which requires organizers of public gatherings of three or more persons to seek permits beforehand.  The protests were called by Bersih, a coalition of more than 60 non-governmental organizations seeking to promote free and fair elections in Malaysia.

“Actions taken by the authorities prior to and during the rally unduly restricted the rights to freedom of expression, assembly and association,” said La Rue. “Declaring Bersih illegal based on claims that it is trying to topple the Government or is a risk to national security and public order - in the absence of any credible evidence to substantiate such claims – is also an unnecessary restriction of civil and political rights.”

According to Malaysian police, all of those arrested on Saturday have been released. But the UN experts noted that six leaders from the Socialist Party of Malaysia reportedly remain in detention. These individuals include Michael Jeyakumar Devaraj, Sukumaran Munisamy, Letchumanan Aseer Patham, Choo Chon Kai, Sarasvathy Muthu, and Satat Babu Raman.  

“We remain deeply concerned about the detention of six individuals since 25 June under the Emergency Ordinance, which allows for detention without trial for up to 60 days,” said El Hadji Malick Sow, Chair-Rapporteur of the Working Group on Arbitrary Detention. 

The Working Group on Arbitrary Detention also reiterated its recommendation, made to the Government of Malaysia following a visit to the country in June 2010, to repeal the Emergency Ordinance and other preventive laws, on the grounds that they significantly hinder fundamental human rights, such as the right to fair trial.** 

The independent experts reminded the Government of Malaysia of its obligation to fully respect the rights to peaceful assembly, association, and expression, as guaranteed under the Federal Constitution and the Universal Declaration of Human Rights. They also recalled that as a member of the Human Rights Council, Malaysia has pledged to uphold the highest standards in the promotion and protection of human rights.

“Malaysia, as a dynamic, multi-ethnic, multi-cultural and pluralistic nation, should remain open to legitimate political discourse on democracy, including the expression of dissent,” the experts said. “We urge the Government to allow all individuals to enjoy their human rights, and to address the problem of preventive detention. Likewise, we call upon the Government to ensure that there will not be any punitive measures taken against peaceful demonstrators.”

END

* Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr. Frank La Rue; and Chair-Rapporteur of the Working Group on Arbitrary Detention, Mr. El Hadji Malick Sow. 

** A/HRC/16/47/Add.2, available at http://www2.ohchr.org/english/issues/detention/index.htm.

For media inquiries, please contact Momoko Nomura (Tel: +41 22 917 9304 / 
e-mail: mnomura@ohchr.org.

Anti-Bersih actions unfit for UNHRC member.... by Amnesty International

Anti-Bersih actions unfit for UNHRC member

Amnesty International etc
Jul 5, 2011
1:19pm

Open Letter to the prime minister:

We write to raise our very serious concerns about the escalating harassment, intimidation, and crackdown by your government against the leaders and supporters of the Coalition for Clean and Fair Elections (Bersih).

UN general assembly resolution A/RES/60/251 states that members of the Human Rights Council shall “uphold the highest standards in the promotion and protection of human rights.”

Malaysia's image and standing as a member of the UN Human Rights Council is being severely tarnished when instead of responding substantively to the detailed proposals for electoral reforms made by Bersih, you and your government have unleashed a barrage of arbitrary arrests of Bersih's leaders and supporters in violation of their fundamental rights to freedom of association, expression, and peaceful assembly.

Malaysia should immediately release all those being arbitrarily detained under the Emergency (Public Order and Prevention of Crime) Ordinance of 1969, the Sedition Act of 1948, article 122 of the penal code, and other laws for peaceful Bersih-related activities; rescind the decision to declare Bersih an illegal organization and stop arresting peaceful political activists promoting Bersih 2.0; and allow the march of Bersih 2.0 planned in Kualu Lumpur on July 9, 2011 to proceed.

Suara Rakyat Malaysia (Suaram) and other organiations on the ground in Malaysia have documented that police have arrested or summoned at least 150 persons for investigation on politically motivated charges.

Most serious is your government's use of preventive detention in violation of fundamental due process rights under the Emergency Ordinance (EO) on July 2 to hold six Parti Sosialis Malaysia (PSM) leaders, including Sungai Siput MP Michael Jeyakumar Devaraj, PSM deputy chairperson M Saraswathy, central committee members Choo Chon Kai and M Sukumaran, Sungai Siput branch secretary A Letchumanan, and PSM Youth leader Sarat Babu.

We call on you to order the Home Minister to immediately rescind his arrest order under the EO and free the six PSM leaders, and urge you to publicly commit that the EO, the Internal Security Act (ISA,) and other preventive detention laws will not be used again against Bersih leaders and supporters in the lead-up to the July 9 march.

We are also extremely concerned by your government's action to charge the above-mentioned 6 PSM leaders and another 24 PSM activists (who were pulled off a bus heading to Penang) for offenses under penal code article 122 (“waging war against the king”), the Sedition Act, and the Police Act of 1967.

The authorities were acting in violation of basic rights to freedom of expression and freedom of association when they arrested peaceful members of a political party for possessing T-shirts and campaign pamphlets simply because the government does not approve of their content.

This action is contrary to article 19 of the Universal Declaration of Human Rights (UDHR) which provides that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media.” Accordingly, we call on your government to immediately release all of these activists still in custody and drop these charges against them.

Similarly, the police should be ordered to end their wave of harassment and arrests against Bersih activists who are peacefully promoting the July 9 march by making presentations or speeches, distributing pamphlets or other literature, wearing garments associated with Bersih, and other similar actions.

Article 20 (1) of the UDHR states that “Everyone has the right to freedom of peaceful assembly and association.” Your government should immediately release any such activists it is holding for promoting Bersih, and drop all charges against them that violate their right to freedom of expression and association. The police should also return confiscated office machines and campaign materials belonging to Bersih, including laptops, T-shirts, leaflets, and banners, that were seized during the police raid on June 29 at the Empower office, which was functioning as the secretariat of Bersih.

Bersih was established for the purpose of promoting reform of Malaysia's electoral laws, regulations, and procedures. As a coalition of over 60 NGOs, it has made comprehensive proposals that deserve the consideration of your government and the Election Commission. The Bersih leaders and supporters have pursued their rights to participation in their government, as provided by article 21(1) of the UDHR, which states “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.”

For this reason, your government is violating the right to freedom of association by designating Bersih as an “illegal organisation” under section 5 of the Societies Act of 1966. Your government has failed to provide any credible evidence to substantiate the Registrar of Societies' claims that Bersih is trying to topple the government, or is a risk to public order, safety, economy, and sovereignty.

Bersih's leaders have publicly pledged that the planned July 9 march will be peaceful. The Malaysian government should allow the march to proceed and clearly undertake not to unilaterally block, disrupt, or otherwise break up the march as long as it remains peaceful.

Similarly, the planned marches by Perkasa and Umno Youth should also be allowed under the same provisos and conditions that they are peaceful. We call on the authorities to confine their role to maintaining the peace by ensuring all three marches and rallies to be held on July 9 remain separate so that there are no incidents between marchers. The police should not be permitted to harass or arrest persons peacefully travelling to join and participate in those marches on July 9.

Finally, the government's use of draconian preventive detention laws is incompatible with your government's seat on the UN Human Rights Council. We note that when you became Malaysia's prime minister in April 2009, you pledged your “intention to uphold civil liberties” and expressed your “regard for the fundamental rights of the people of Malaysia.”

We call on you to turn these pledges into concrete action by ordering law enforcement officials to immediately cease use of all preventive detention laws, and by starting a time-bound process to repeal those laws. The Malaysian penal code and criminal justice system are fully capable of addressing situations of internal security, and should be allowed to do so without resorting to preventive detention, which results in long-term arbitrary detention without the right to a fair trial.

Your government stepped back from tabling the Internal Security Act 1960 (ISA) for amendment by parliament in March 2010. We are concerned that amending the law is not an adequate remedy because the law's core premise runs contrary to international human rights standards. Rather, we urge your government to publicly push for immediate repeal of the ISA and the Emergency (Public Order and Prevention of Crime) Ordinance 1969 as recommended in 2003 and 2005 by Suhakam, the national Human Rights Commission of Malaysia and the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police respectively.

Your government should also repeal provisions allowing for preventive detention under the Emergency (Public Order and Prevention of Crime) Ordinance 1969, the Dangerous Drugs (Special Preventive Measures) Act 1985, and the Restricted Residency Act 1933, as called for by the UN Working Group on Arbitrary Detention in their report following their June 2010 mission to Malaysia.


This open letter to the government was signed by: 

• Sam Zarifi, Asia-pacific director of Amnesty International
• Yap Swee Seng, Executive Director Asian Forum for Human Rights and Development
• Phil Robertson, deputy director Asia division Human Rights Watch
• Souhayr Belhassen, president of International Federation for Human Rights (FIDH)
• Eric Sottas, secretary general of World Organisation Against Torture (OMCT)

malaysiakini: Bring about a healthy democracy... by Kee Thuan Chye

Bring about a healthy democracy

Kee Thuan Chye
Jul 5, 2011
7:58am

The King has issued a statement on the developments surrounding the proposed Bersih 2.0 rally for free and fair elections. What do we make of it?

It is quite clear that he is not in favour of the rally proceeding on July 9, although he does say that the original intentions of street demonstrations can be good. This, read together with his acknowledgement of "the political fervour of a section of the people to bring about a healthy democracy (menyuburkan demokrasi) in our country", indicates he is not condemning Bersih 2.0.

He is aware that the people are involved (even though it constitutes "a section"), and what they desire is something positive, i.e. menyuburkan demokrasi.

He is, however, concerned that "street demonstrations bring more bad than good" and he wants it ensured that the people's democratic demand "does not bring destruction to the country".

He advocates that whenever a problem arises, "we as a civilised society should (hendaklah) resolve it through consultations".

What has been the effect of the King's statement on the parties involved?

Prime Minister Najib Razak's first reaction is to offer Bersih 2.0 the opportunity to protest in a stadium. This is the most accommodating posture he has struck since the controversy began. In doing so, Najib has now come to 'legitimise' Bersih without openly saying so, although only a few days ago, his Home Minister, Hishammuddin Hussein, had declared Bersih 2.0 an illegal organisation effective July 1.

Najib's offer indicates he has lost the battle of wills against the movement for electoral reform and is now scrambling to save face by making this offer. But it's not good enough. He has done too much damage; he has used an atom bomb to annihilate ants through his unreasonable, even maniacal arrests of people in the past week.

The worst is alleging that the 30 Parti Sosialis Malaysia (PSM) members arrested in Kepala Batas were waging war against the King, and subjecting six of them to detention under the Emergency Ordinance.

The King has not, figuratively speaking, slapped Najib's face, but he has tapped him on the shoulder by saying in his statement, "I also urge the Government to carry out everything that is entrusted to it by the people in a just and wise (bijaksana) manner".

The words "just and wise" can be read as a reminder to the government that it has been using unfair and sometimes inane tactics over the past week. The most inane would be either alleging that the PSM 30 were resurrecting communism or declaring Bersih 2.0 illegal.

Najib is like the head prefect who has been caught out by the headmaster and is now being told to carry out his duties within the school rules.

It is noteworthy that the King uses the line, "entrusted to it by the people". It issues a very important reminder to a government that has become arrogant and unmindful of the rule of law, which is evident in its arbitrary arrests of people over the past week, in one case for simply wearing a yellow T-shirt.

It is further significant that the King says he does "not want to see animosity develop between the communities in our plural society or a section of the people being enemies with the Government, on whatever grounds".

This could be alluding generally to the racial drumming of Perkasa,Utusan Malaysia and even Dr Mahathir Mohamad that has contributed to racial tension of late, and specifically to Perkasa's role in inflaming the Bersih 2.0 rally by wanting to counter it and issuing veiled threats of violence.

The reaction on the part of Bersih 2.0 is to seek an audience with the King. Opposition political parties have indicated that they want to be included, but on no account must Bersih 2.0 allow this. It has all this while maintained that it is a movement that is led and initiated by civil society; it should remain so.

If the King grants the audience, what Bersih 2.0 might request is for him to advise the prime minister to initiate negotiations with it and the Election Commission on carrying out electoral reform. If this is not forthcoming, Bersih 2.0 should still have the option of holding its rally on July 9.

But what if the King does not grant Bersih 2.0 an audience soon enough? This would then pose a quandary for the NGO. Should it then proceed with the rally on July 9? When it comes to that, Bersih 2.0 would have to answer the ultimate question: Does it listen to the King or to the rakyat?

Ours is a constitutional monarchy; on political matters, the King can offer advice but it is up to the listener to accept it or not. However, many Malaysians are still infected with a feudal mentality and to them, going against the King's advice is tantamount to derhaka.

It is this that Bersih 2.0 will have to guard against, because if it were to be branded penderhaka, a fair part of the sympathy it has been getting so far through the government crackdown will be obliterated.

On the other hand, it could be comforted by the thought that Perkasa and Umno Youth have said that if Bersih 2.0 goes ahead with its rally, they would also go ahead with theirs. This would expose them to accusations of menderhaka as well, so Bersih 2.0 would not be alone.

However, the best course for everyone might well be negotiation, at which a timetable should be set for the electoral reform process to take place, before the next general election is held. But before going to the negotiating table, Bersih 2.0 should be given due recognition, which means Hishammuddin must revoke his order of illegalising it.

This is a prerequisite; otherwise it will make the government look silly negotiating with an "illegal" organisation. But even if Hishammuddin refuses to admit his high-handed mistake, Bersih 2.0 may have already been legitimised by the King's call for "consultations", and of course, by Najib's offer of holding the rally in a stadium.

Furthermore, the six PSM detainees should be released immediately, and the charges against the other 24 PSM members dropped. As it is, charging them with associating with an illegal society does not seem right. Bersih 2.0 was declared illegal several days after they were arrested; how could they have looked into the future to predict it would become illegal?

The next few days will be interesting to watch. The clash of wills between Bersih 2.0 and the government (with Perkasa and Umno Youth as secondary players) may now be raised to a higher level.

Najib may not want to give in for fear of appearing weak, and Bersih 2.0 may feel it has right and the rakyat on its side.

It will take an impartial referee who has the country's best interests at heart to arbitrate the matter and bring about a satisfying solution.

KEE THUAN CHYE is the author of 'March 8: The Day Malaysia Woke Up', which won 3rd prize in the Popular Readers' Choice Awards. It has also been translated into Chinese.

BERSIH 2.0: Let Reason Prevail... by Pahlawan Volunteers

BERSIH 2.0: Let Reason Prevail

by Pahlawan Volunteers, Posted on 03 July 2011.

Malaysians will support BERSIH 2.0 whether one or 1 million people walk on the street on July 9 2011. And if things don’t improve, there will be BERSIH 3.0, 4.0, 5.0 until the cause is successful.  World history has shown governments the wisdom to uphold the will of the people, and the law of nature dictates that energy cannot remained pent up; they must be channeled productively to bring positive outcomes.

By Pahlawan Volunteers

Those present at the 1997 Hong Kong hand-back ceremony to China  would have developed great admiration for the Police force of the Special Economic Region.

At that time there was a lot of concern on a potential noisy demonstration staged by the pro-democracy groups  outside the convention hall where the historic hand-back ceremony attended by the world’s dignitary and 6000 journalists was held. Many thought that Beijing would do all it can to block the demonstration; but the territory’s police did Hong Kong proud by managing the demonstrations orderly; the democrats had their say; the hand-back ceremony went smoothly;  both events happening side by side, watched by the people of Hongkong and the world. A really big step for living democracy in HongKong’s nascent democratic system which only started elections in the recent past.

5 years later, on 24 September 2002 the Hong Kong government released its proposals for the anti-subversion law, known as Section 23.  The proposal became the cause of considerable controversy and division in Hong Kong.

On July 1 2003, some 500,000 people took to the streets in anger  — the largest mass demonstration on Chinese soil since the 1989 Tiananmen Square protest. Critics had argued that Article 23, the controversial anti-subversion legislation, violated the civil liberties guaranteed in Hong Kong’s Basic Law. But the demonstrators railed against more than Article 23: pent-up anger over the wobbly local economy and the government’s handling of the SARS crisis prompted a huge outpouring of anger, much of it directed at Chief Executive Tung Chee-hwa. In the aftermath of the public protest, two cabinet members resigned, and the government ultimately retreated from the proposed law.

Pressure vaults

Peaceful demonstrations are necessary and are guaranteed by the constitution; even if only one single person who does not agree with the system, he or she must be allowed to express his feelings on the street. No matter how many people want to walk on the street, peaceful demonstrations are an expression of democracy, and all democratic governments must have the capabilities to manage them. To keep order in public demonstrations; the responsibility lies with the police force and it is a test of their management skills. The police cannot ban public demonstrations because of its imagined fear of chaos and inconvenience to the public.

Development is not about hardware or physical infrastructure alone. We can have state of the art technology and tall towers, we must also show that the system respects each and every single individual among us; and that we have the capability to sort out differences among ourselves. Those with contrarian views, or opposing positions  from the power of the day must be given fair and free expression. Democracy functions with a free market; the marketplace of ideas should be unrestrained and the people be allowed to choose.

Bersihkan Malaysia

Many of us were not aware of Bersih 1.0.  The Pahlawan brothers and sisters who come together to rally around a national cause are non-partisan. We only come to notice Bersih in the recent months and are attracted by their 8-point rational appeal.

Bersih has won our hearts because the movement is agitating to build a better electoral system that will enable Malaysia to elect better leaders; and better leaders are exactly what the doctor would prescribed for Malaysia’s current woes.

As Bersih moves into 2.0, Malaysia too must move from its old operating system mindset into a Malaysia 2.0 mindset and framework. For example we have a state of the art Mykad being used for national registration; but we still need each eligible voter to go register before they can vote. This is totally unnecessary and ought to be reformed yesterday; anyone holding the Mykad attaining the legal voting age must be permitted to vote with the Mykad, no separate voter registration required — saving national resources, man power and no paper forms needed; therefore less waste and save more trees!

So if the Election Commission has not got around to doing this, now they can pay attention to a much neglected reform. This is what BERISH 2.0 is all about.

Bersih 2.0’ s very reasonable demands are:

1. A clean electoral roll

2. Reform the postal ballot,

3. Use of indelible ink to reduce voter fraud

4. A minimum 21-Day campaign period

5. Free and fair access to media,

6. The strengthening of public institutions to act independently and impartially in upholding the rule of law and democracy

7. The end of corruption by acting against all allegations of corruption including vote buying

8. And end to dirty politics.

All these 8 demands are good for the entire country and good for all political parties because a clean and fair system will enable the best people be elected to run the country.

In today’s competitive world, the success of each and every citizen depends on the efficiency of the political and economic system one operates in; and our well being and success is directly related to how smart and efficient our public administration and its leadership. Why are so many Malaysians voting with their feet; the answer is obvious. They have no confidence in the current system in delivering success to their career, business and family.

If our government does not wake up to the demands of the times, the country will become sidelined and our people will no longer be able to compete. We cannot talk about any national vision if we don’t fix our governance system first.

8 REASONS why peaceful demonstrations must be allowed:

1. Public demonstration is guaranteed by our constitution. It is a legal right of every Malaysian citizen. Every   individual or group must be allowed to take his or her cause onto the street.

2. Malaysia has a tradition or history of public demonstrations; UMNO and the Malay pressure groups successfully won their case by taking their cause to the street.

3. Peaceful and orderly demonstrations reflect on the maturity of the populace, and the competence of the police force. They add on to the attractiveness of the country to all, including its citizens, visitors, foreign investors and tourists included. Everyone will feel secure that Malaysians can sort out their differences in public and in an orderly manner, and that the police force is impartial and fair.

4. Bersih 2.0 is about improving the Malaysian electoral system, it is non-partisan. It is working for the interest of One Malaysia. Bersih 2.0 has a just cause.

5. It is a test of the police’s public order management abilities; the police and government must not made groundless accusations and propagate imaginary threat and fear. Our police must demonstrate that they can handle public expressions of the people and that they can manage peaceful and orderly public demonstrations with rational argument for our cause. Misplaced emotions do not help our national cause.

6. The government should not worried about the public being misled by public demonstrations staged by whichever groups; in open societies, the public  will and can make out whether they can identify with the cause, and competition is the best guarantee for fair play. Today Bersih 2.0 is gaining support not because of the personality of its leadership; but because of its cause.

7. The government of the day would win votes by acting responsibly and in a liberal manner. In this age of transparency enabled by the Internet and social networking media; “spins” would only bring negative backlash; the only way to win hearts is to be open and transparent and compete on merits.

8. Malaysia need Bersih. This is an important message to be sent to all Malaysians, political parties and leaders; the wellbeing and development prospects of Malaysian society rests on the foundation of a Clean society and fair political system.

On July 2nd 2011, the BN government has declared Bersih as an illegal organization. Yes,  Bersih does not fit the conventional legal framework of  social institutions; it is a convergence of NGO groups; it is the coming together of many registered groups who share the same agenda and love for the country. Bersih 2.0 is an expression of the internet age’s  free association of NGO groups working on different causes being united by one common agenda. Their cause is just and legitimate.  They therefore should be allowed to take the people’s cause in  public. When the BN government allow the will of these groups to prevail, it will only help them win or win back more hearts!

Anyway, Malaysians will support BERSIH 2.0 whether one or 1 million people walk on the street on July 9 2011. And if things don’t improve, there will be BERSIH 3.0, 4.0, 5.0 until the cause is successful.  World history has shown governments the wisdom to uphold the will of the people, and the law of nature dictates that energy cannot remained pent up; they must be channeled productively to bring positive outcomes.

From now on, July 9 will be Hari BERSIH because Malaysia needs to be cleaned up badly. Our success and our family’s well-being can only be guaranteed in a Clean Malaysia.