Engaging With Bersih: An “Illegal” Association?

An often heard message from the Government in the run-up to the 9th July rally was that Bersih is an illegal organization, and therefore the Government cannot deal with it or its leaders.  Bersih is not an illegal organization merely because it is not registered with a regulatory authority like a company, society, trade union or cooperative society.  Malaysian law recognizes associations which are not registered or incorporated, that is, the “unincorporated association”.  It must be noted that one of the fundamental liberties enjoyed by Malaysians is the freedom of association under Article 10 of the Federal Constitution.

However, let us assume for the purposes of discussion, that Bersih is indeed an illegal organization.  Does it follow that Government leaders cannot engage with it.  The answer is absolutely no.  One example in history is relevant, that is, how the Government dealt with the Malayan Communist Party (“MCP”).  One of Tunku Abdul Rahman’s first decision after becoming Chief Minister in 1955 was to arrange a meeting with Chin Peng, the leader of MCP.  This was in the height of the Emergency when MCP was outlawed as illegal, and described as violent and murderous.  Chin Peng was the most wanted man in the country, with a massive bounty for his capture.  Despite British reservations, Tunku met Chin Peng in the now famous Baling Talks in December 1955.  Tunku, as the duly elected leader of UMNO and Alliance, had no qualms meeting with a leader whom the British and Malayan Governments perceived as having “blood on his hands”, and led an illegal armed struggle to overthrow the status quo.

It must be remembered that the British imperial power, grateful for MCP’s armed struggle against Japanese invasion, had recognized MCP as a legitimate political party in 1946.  Only in July 1948, after the Proclamation of Emergency, did the British Government declare MCP to be an illegal party under the laws of Malaya.  That illegal status remains in force until today.

Despite its illegal status, the Malaysian Government during Prime Minister Mahathir’s administration, had 5 rounds of Tripartite Peace Talks in Phuket in 1989 with MCP, under the auspices of the Thai Government, which acted as the honest broker.  Rahim Noor led the Malaysian delegation in all 5 rounds; a prominent member was Norian Mai, both of whom ended their careers as Inspector General of Police (“IGP”).

On 2nd December 1989 in Haadyai, the Government of Malaya signed the historic Agreement with the MCP to terminate hostilities, witnessed by representatives of the Government of Thailand.  Signing for the Malaysian Government were Dato Wan Sidek bin Wan Rahman, the Secretary General of the Ministry of Home Affairs, General Tan Sri Hashim Ali, Chief of Defence Forces and Tan Haniff Omar, the IGP.  Chin Peng, Abdullah C.D and Rashid Maidin signed for the MCP.

The 1989 Agreement was hailed as a great victory for peace, and has often been cited by independent scholars as one of the few examples of a peaceful settlement between an elected government and a communist party in the 20th century.

During the entire negotiations and when the Agreement was signed, MCP remained illegal under the laws of Malaysia.  That fact however did not deter the Malaysian Government from dealing with it.

Accordingly, it is hypocrisy of the highest order for the current Government to say that it will not deal with Bersih because it is illegal, and will not meet with its leader Ambiga Sreenevasan because she leads an unlawful society.  What about the MCP and Chin Peng then?


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Posts by Tommy Thomas

Tommy Thomas is an advocate and solicitor who was called to the Bar on 3 June 1976. He is a senior counsel and has argued many important cases as well as written contributions to the Bar Council and Aliran. LoyarBurok is delighted with his decision to contribute to the blawg.

Posted on 3 August 2011. You can follow any responses to this entry through the RSS 2.0.

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3 Responses to Engaging With Bersih: An “Illegal” Association?

  1. Lawyer Bukan Burok

    This govt is run by nitwits, hell bent on holding on to power. They have little morals and no clue about the rule of law. "You help me and I help you" – that's their guiding principle for holding on to undeserved power, using tax payers' money.

  2. Avatar111

    This government is formed by a bunch of Umero people who are not guided by any principle. They decide by their whim and fancy and the rule by laws and not of laws according to their convenience.. What can we expect from them???

  3. The hUMbug Party

    UMNO mudah lupa.