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.

TMI: Is Bersih the death knell of tyranny — by N H Chan

Is Bersih the death knell of tyranny — N H Chan

July 20, 2011

JULY 20 — The picture on the front page of the Sunday Star, 10 July 2011 spoke louder than words. It showed the huge crowd of peaceful but bold Bersih supporters flying in the face of the cowardly might of the police who were decked out in full riot paraphernalia.

They must be daunted by the sea of placid, mostly young, people facing them. Those in the front rows were seated on the road and those at the back were standing. All were unarmed and none were menacing the police.

They were all peaceful demonstrators who were trying to put across to the imbeciles in power the people’s right to peaceful assembly and to show that they were united in their call for a clean and incorrupt general election.

The BN regime may say anything they like but the fact that the common people could come out in large numbers in silent protest only goes to show that the regime has lost its credibility. The regime and its underlings the police behaved as expected of tyrants – typical of all bullies they were afraid of their own shadow – they saw the ghosts of the insurgency of Chin Peng and the CPM (Communist Party of Malaya) being revived; see the Sun of Friday, July 8, 2011 where the former Perak chief police officer and Special Branch commander Yuen Yet Leng gave his thoughts to Maria J. Das in an interview. He said:

If you are going to sport a picture of Chin Peng on your t-shirt, you are only asking for trouble. How do you expect the police not to take action?

I agree with what the Special Branch had done. This problem has been thrown in the police’s lap and involves national security and public order.

The CPM has the same ideology as … Mao Zedong who believed that the highest form of struggle is an armed struggle, and not a political struggle.

He must be joking! I am astounded by the man’s naivety. I think he is still living in the past which is a pity for one of our country’s heroes (but then I also have the same problem, I could remember the past vividly but I could not remember what I said or promised yesterday).

He was the CPO Perak when I was a Judicial Commissioner in Ipoh back then in 1970. He was one policeman I have admired for his dedication to make Ipoh safe from criminals. He brought down the crime rate in Ipoh. I remember the occasion when he told me that at a police road block at Simpang Pulai which is on the outskirts of Ipoh, the police had arrested the occupants of a car when they found weapons for committing armed robbery hidden in its boot. On interrogation they admitted they were en route to Penang because it was perilous for them to commit the crime in Ipoh as there was a fierce Chinese judge there.

To be fair I must also point out that Mr Yuen was supportive of the reason for the people’s negative perception of the police. For example:

Das: … many people question why the police seem to act against only certain parties, while others who make seditious comments and threats get away. Won’t the public equate this with police persecution?

Yes and no. The police usually back the effort of the incumbent government of the day so long as it acts by the rule of law, but they need to be more courageous to act when supporters of the government go too far. When they are hesitant, they are bound to be accused of being unfair. Being balanced will earn the police some respect.

He also said:

… there is nothing wrong with Bersih 2’s demands and the incumbent government must hear the genuine worries of the people. They need to pry things apart and deal with people who are sincere with their concerns. Then legitimate complaints can be looked into.  … the timing is such that there appears to be a united front against the government, and this frightens them.

Returning to the hullabaloo of the police on the involvement of national security and public order, don’t they know, as all of us already know, that communism as an ideology had collapsed with the fall of the Berlin wall and the disintegration of the Soviet Union?

There is no more threat from any idea of communist expansionism from Chinese communists as China has turn to capitalism and has prospered as the world’s second largest economy next to America. It is true that China is still being governed by an oligarchic regime.

One must be a member of the communist party to form the government because it is the ruling party as China is a one party totalitarian state, just as Malaysia has also become an oligarchy with the Umno led Barisan Nasional remaining in power for some 54 years. To say that this country is a democracy is laughable. Democracy has become an anachronism in Malaysia.

As in China the ruling BN coalition will not tolerate dissent in any form as the Bersih episode on 9 July 2011 had graphically exposed to us common folk that the police have used excessive physical force to quell the rally of peaceful protestors who were only asking for the reformation of the electoral system to a fairer and incorrupt one – so that when the crowd was heard to have shouted “reformasi” it did not mean that they were for the opposition party PKR.

We have read about police brutality against peaceful demonstrators from eyewitnesses account in loyarburok and in Malaysiakini and we also see them in graphic detail as the incidents of the use of excessive force by the police on the hapless protestors were recorded live on mobile phones by those who were there for all the world to see on Youtube.

Yet in the Star, Monday 18 July 2011, the deputy prime minister Muhyiddin said that what had emerged through the alternative media and YouTube were scenes that seem to show the police had acted in a cruel manner.

“What was not shown were prior scenes where the police were provoked and taunted”, he said.

Obviously the deputy prime minister has never heard of the well known proverb, ‘sticks and stones will break my bones but words can never hurt me’. In any case, a policeman should be patient and tolerant when conducting crowd control.

They should try to defuse the anger instead of being short tempered and responding with unequal force. However, I think the negative public perception of the police in this respect will be difficult to erase.

In any case, one notices the glaring difference in the integrity of the government in the UK and ours. In the hacking scandal involving the News of the World and the London police we do not see the prime minister or the home minister or any minister coming out to defend the police. Instead they were embarrassed and concerned so much so that an emergency session of parliament was called. Even Britain’s police chief had to resign.

On the other hand, in Malaysia, we have the deputy prime minister Muhyiddin coming out in defence of the police when in fact he should be concerned and should suggest an investigation into the heavy handed conduct of the police in handling the crowd. In this country we throw integrity to the wind! Even our police chief did not resign – the fact that in some areas the police had responded and reacted with unequal force should have made him responsible as a commander.

The police have justified their hash crackdown on the peaceful demonstrators of Bersih for the reason of national security and public order. But as I have explained above any prospect of a revival of a communist insurgency in this country is a myth. To say that the CPM has the same ideology as Mao Zedong (whose idealogy should have died with him) who believed that the highest form of struggle is an armed struggle and, therefore, there is every danger of an armed insurrection being revived in this country is an unjustifiable assumption in this day and age.

Only imbeciles could have imagined that! That is why I say these people are afraid of their own shadow. If you are afraid of your own shadow then you must be a coward. You are also a coward, if not a madman, if you donned your suit of armour like Don Quixote who battled imaginary dragons in the form of windmills or riot gear ready to do battle with unarmed and peaceful street protestors to quell a whimsical or imaginary insurrection in the farcical interest of national security and public order.

To be fair, it is reported in the Star, Wednesday 13 July 2011 under the headline No plans to hold another Bersih that the Bar Council has said something nice about some policemen:

The Bar Council thanked Inspector-General of Police Tan Sri Ismail Omar for allowing the council’s monitoring teams to observe the rally and for acknowledging the council’s impartiality in conducting the observation exercise.

“Many of our monitors noted a significant number of police officers were polite towards the leaders of the public rallies, participants and the monitoring team,” council president Lim Chee Wee said …

However, the council said unnecessary physical force was used in some instances.

I suppose not all policemen are the bad guys. There are some decent ones still around. Just as there are some decent Umno guys around like the chief of Umno Youth Khairy Jamaluddin who has shown magnanimity to Ambiga. When we leave matters to the younger generation we do not find animosity and recrimination. They are prepared to talk and discuss on how the country’s electoral system could be reformed. Bravo and I salute them.

Next, there is this pithy assessment from the Star, Thursday 14 July 2011 by Baradan Kuppusamy:

Awakening the young voters

The Bersih 2.0 rally was a success by some measure because Pakatan Rakyat supporters braved police restrictions, roadblocks and barbed wire to gather in the city centre calling on the Government to institute electoral reform.

There eight-point demand included issues that the opposition had been campaigning on for many years, like a clean electoral roll, reforming postal voting and a minimum of 21 days campaigning.

These are fundamentals of a basic election system in a democratic society and few citizens would find these objectionable.

Saturday’s rally, therefore, had an unprecedented impact on society at large and on the election system

While Saturday’s rally was smaller in size compared to Bersih’s first rally in November 2007, the effects were the same – the awakening of young people to political action to rally for a basic right in defiance of the police.

The rally proved its point that a large number of Malaysians can gather, despite police action, and march peacefully.

The message of Bersih is unequivocal, the people, especially the young people, of this country have been awakened and are no longer afraid of being intimidated by a bullying police force and they will take political action to rally for their basic rights in defiance of the police who they know are the minions of the avaricious people who are greedy for power. For after all, the awakened young people are only exercising their universal right of assembly that has been endorsed by the United Nations as the Universal Declaration of Human Rights which says that “Everyone has the right to freedom of peaceful assembly and association”.

For after all the Bersih demands are not outrageous nor are they extravagant or unusual – most are matters that the opposition has been canvassing in Parliament perennially. As the writer of the above article has said, “These are fundamentals of a basic election system in a democratic society and few citizens would find these objectionable”.

Yet the Bersih movement and those who support them are being suppressed by those people who are clinging on to power and their minions the police force. Decent and normally law abiding citizens are suppressed just for voicing out their grouses for electoral reforms. The answer is plain for all to see. When we, the people, see our elected representatives failed us in Parliament; when our grouses or grievances have fallen on deaf ears in Parliament where the majority is the errant BN coalition which has been clinging on to power for more than half a century; when all else failed in the legislative process, the common people of this country have no other choice but to resort to political action of their own and the only avenue that is available which can carry their massage across most effectively is to rally for their cause even to the extent of open defiance of police action against them.

Strange as it may seem, the powers that be seemed to have missed the point. The point is that the Bersih movement does not belong to or support the opposition or any political party. It is an apolitical movement. But it supports democracy which is a government of the people, by the people and for the people. When a government does not listen to the people’s grouses and does not take action on them then it is not a government for the people. And a government which is not for the people is not a democratic government, it is a dictatorship.

The message of Bersih, which is in fact the people’s message, is loud and clear – we, the people of this country, do not want a dictatorship! Since we do not want a dictatorship, at the next general election we will vote the dictators out of office and replace them with a new coalition even to the extent of voting in the opposition. And if the new order were to fail the people too, then we will replace them at another election. And finally if any of our political parties were still to fail us again then, as a last resort, we may have to vote only for individuals who are for the people and who are incorruptible. There must be plenty of suitable candidates to choose from for our representation in Parliament from the Bersih movement itself. Like Ambiga I do not have the stomach for politics in this country. There are much braver souls around.

Having said all that, one may still ask, what is the point then for a street demonstration albeit a peaceful one? The point is to bring out the people’s dissatisfaction and their grouse for a clean and incorrupt government. The multitude’s belief is that the only way to attain their goal is for a clean and incorrupt forthcoming general election. And when that had fallen on deaf ears the only avenue left for the people to voice their discontent is to rally in an orderly and peaceful demonstration like the Bersih walk to Stadium Merdeka although they never made it there as they were blocked by the police.

Now that you know what is at stake, my dear readers, you can go straight to Loyarburok.com to read about how the police have used excessive force on the peaceful demonstrators. In particular, do read this article “Ambushed like Animals, I Had to Walk-Crawl”. Here is an excerpt:

There was no sense of danger because the police had so far let us go ahead. Sure, we all knew that eventually they would arrest the BERSIH and political leaders but we had no clue of how inhumane it was going to be.

When we found ourselves manoeuvred into the tunnel, we started running as fast as we could.

Even if we had never imagined that we would be tear-gassed in the tunnel, there was that imminent danger.

I was in the middle of the crowd when I reached the end of the tunnel, relieved to be out of the ominous place. But by then, there was screaming because the FRU had started shooting tear gas straight towards at us. I saw it with my own eyes, the FRU was aiming directly at the people, and not over our heads.

The message was clear to me: to hurt and maim as many as possible, even though these were peaceful demonstrators, many of whom are respected political leaders of our country. It was only after that I had heard that Anwar Ibrahim and his bodyguard were badly hurt for being shot at, along with another PAS politician who was in front of the crowd.

After reading this you should also read the other articles about the Bersih rally in loyarburok.

After you have read all those articles in loyarburok, do you want to support Bersih? We should not be afraid of threats and coercion anymore. Bersih is not a society or association or club. There is no subscription or membership. You don’t have to join it. It is a movement and whenever there is an outcry by the people we can show our support for the movement by voting out the incumbent government of the day at the next election.

We have the power of the people. You don’t have to be loyal to any political party. Always be ready to tell those in government that they are our servants who should serve the people.

We, the people, have put them there and we the people can remove them in the next election. Any government must be for the people. It is not to be a government for those in authority or in power. That kind of attitude among those who governed us will no longer be tolerated by the people who had put them there in the first place. Shortly stated, we do not want a dictatorship at all. It is democracy that the people want and that means the government must always be for the people.

A government for the people does not incarcerate its citizens without a trial or on trump up charges or use draconian laws to terrorize and overawe its citizens or to stifle dissent. A government for the people are not intolerant of the people’s grouses. A government for the people does not shoot tear gas cylinders directly at peaceful demonstrators nor would it use physical force on them — they should not copy the violent methods used by the dictators of the Middle East on their own people. I could go on and on. But I think you have got the picture.

* This is the personal opinion of the writer or publication. The Malaysian Insider does not endorse the view unless specified.

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.

TMI: The day when the people rise up: July 9 — by Kim Quek

The day when the people rise up: July 9 — Kim Quek

July 07, 2011

JULY 7 — That’s it! Bersih finally has had enough of the treacherous conduct of a shameless government which has lost all sense of decency!

In a firmly worded statement released late last night, Bersih effectively said “come what may, we will have our rally at the Stadium Merdeka on July 9 at 2 pm!”.

This is Bersih’s final answer to a battery of ridiculous obstructions, warnings and excuses put up by the Najib government to obstruct a Bersih rally in the stadium.

This is despite Bersih having made a major concession to shift the rally from the streets to a stadium under the unprecedented intervention of the Yang di-Pertuan Agong, and after Prime Minister Najib Razak’s offer of a suitable stadium for the purpose.

And the 360 degree turn by Najib and his government happened within one day!

Impasse resolved under auspices of Agong

It was only on Tuesday (July 5) afternoon that Bersih had an audience with the Agong during which it accepted the government’s rally-in-stadium offer to resolve the tense impasse between Bersih and the Najib government, during which an obviously panic-stricken government went on a rampage to make wanton arrests to deter an anticipated massive street rally.

Upon Bersih’s announcement  to stay off the streets, Najib immediately expressed readiness to meet Bersih over a suitable stadium for the purpose.

The next day, Wednesday July 6, Bersih indicated it wanted the event to be held at Stadium Merdeka due to its historical significance and central location. Bersih further said that it had ascertained the stadium’s availability on July 9, as a scheduled concert had been cancelled.

But Umno Youth immediately said: “We reject Stadium Merdeka for Bersih. It is not a place for political gathering. Do it in a Pakatan Rakyat controlled state.”

This was followed by the stadium management’s rejection of Bersih on blatantly false excuses of “internal management sports event” and “renovation”.

What did the Prime Minister, who had earlier suggested and agreed to the rally-in-stadium proposal, have to say about the rally in Stadium Merdeka?

He said it was up to the authorities in charge of such matters to act in accordance with requirements of security and safety. 

He emphasised however that “permission would only be given to organizations that are registered, but Bersih has never been registerd, it is an illegal organization”. He gave no indication whether approval to use the stadium would be forthcoming.

Then, Home Minister Hishammuddin Hussein, who had earlier declared Bersih illegal, made the shocking and puzzling announcement that Bersih is still illegal, despite the impasse being resolved in accordance with the wishes of the Prime Minister, mediated by His Majesty Yang di-Pertuan Agong. Hishammuddin said:

“They are still banned. Nobody can put themselves over the law. Just because Tuanku met them, doesn’t mean they are no longer illegal”.

However, despite the alleged illegality, Hishammuddin made the curious statement that Bersih could still apply to the police for a permit to hold the rally, but gave no assurance that a permit would be given.

Bersih is betrayed

Finally, Bersih’s door to a stadium rally in Kuala Lumpur was shut when Information and Culture Minister Rais Yatim announced that the Cabinet has decided to bar Bersih from holding its rally in any of the stadiums in the Kuala Lumpur area. Rais suggested that Bersih could hold its rally in a Pakatan Rakyat controlled state.

Meanwhile, police crackdown on Bersih supporters continues unabated, arresting any one seen wearing yellow shirts or any paraphernalia linked to Bersih. So far, there have been more than two hundred arrests, including  members of parliament and state legislative assemblymen. Some are being charged in court, and some are detained under the draconian Emergence Ordinance which provides for indefinite detention without trial, which has been traditionally used against vice criminals.

Ministers and police have warned that even when a stadium rally is approved, anyone wearing anything suggesting support for Bersih including the yellow T shirts will be arrested.

Legal nonsense

So, Bersih was played out!

It gave up the street rally out of respect for His Majesty and in compliance with the PM’s wishes; but in return, it was denied a stadium for rally, and its supporters continue to be hunted down and persecuted like criminals through massive abuse of police power under fallacious legality.

Hishammuddin claimed that Bersih is illegal because it is not registered with the Registrar of Society, and hence any article or any activities promoting Bersih is also illegal, hence the mass arrest.

But this is pure legal nonsense.

Bersih is a temporary and loose grouping of registered NGOs (62 in nos. at this moment) who have come together for the specific task of pursuing electoral reforms. If these NGOs are by themselves legally registered bodies, how can they become illegal just because they have joined forces to pursue a transient objective? If Bersih is decreed illegal, then all the NGOs in this group must also be deemed illegal.  So are the members that belong to these respective NGOs.

By extension, any grouping of registered bodies who have joined forces to pursue any joint objective must also be considered illegal, including the opposition alliance of Pakatan Rakyat, which consists of PKR, PAS & DAP.

Why hasn’t Hishammuddin banned Pakatan Rakyat, and decreed their joint pursuits as also illegal?

Can Hishammuddin explain the strangest logic ever known — as reflected in the police arresting individuals bearing symbols of Bersih, when the organisation itself was sanctioned by the PM through the offer of a stadium to conduct its function?

Isn’t the entire Barisan Nasional government — PM, cabinet, police and judiciary — making a fool of themselves by crucifying and persecuting a well-meaning civil society movement on the premise of a fictitious law?

Greatest disrespect to Agong

By insisting that Bersih is an outlaw, after it has reached a settlement with the PM under the auspices of His Majesty, hasn’t Hishammuddin shown the greatest disrespect to the two highest leaders of the country?

And hasn’t PM in turn made a mockery of His Majesty’s gracious effort to bring reconciliation and good sense by failing to keep his end of the bargain to allow Bersih to hold its rally in peace?

In the midst of such treasonous conduct from our leaders, we wish to congratulate Bersih for its courage and determination to do what is right. In its statement signed by all the 14 members of its steering committee last night, it said:

“As members of civil society that are committed to principles of integrity, we fully intend to abide by the advice of Tuanjku DYMM SPB YDP Agong and hold our gathering in a stadium to state our demand for clean and fair elections.

“Whether or not the government abides by their principles, we the Malaysian people will always uphold ours. Our determination to exercise our constitutional right to gather peacefully for a just and reasonable cause is unwavering.”

Now that Bersih has conducted itself with honour, we the people must respond likewise.  It is about time that we stand up to reclaim what is due to us – our liberty and dignity and our right to determine our future, as enshrined in the Constituion.

Let everyone come out wearing yellow, and let the traitors be swarmed and drowned by a sea of yellow in Kuala Lumpur on that day.

Let July 9 be remembered in generations to come as the day when Malaysians finally rise up to reclaim their motherland from the grip of a tyrannical power.

* Kim Quek is the author of “The March to Putrajaya”.