— Tommy Thomas
The Malaysian Insider
Jul 29, 2011
JULY 29 — An often-heard message from the government in the run-up to the July 9 rally was that Bersih is an illegal organisation, and therefore the government cannot deal with it or its leaders. Bersih is not an illegal organisation merely because it is not registered with a regulatory authority like a company, society, trade union or co-operative society. Malaysian law recognises 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 organisation. 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 decisions after becoming chief minister in 1955 was to arrange a meeting with Chin Peng, the leader of the MCP. This was at the height of the Emergency when the 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 the MCP’s armed struggle against Japanese invasion, had recognised the MCP as a legitimate political party in 1946. Only in July 1948, after the Proclamation of Emergency, did the British government declare the 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 five rounds of tripartite peace talks in Phuket in 1989 with the MCP, under the auspices of the Thai government, which acted as the honest broker. Rahim Noor led the Malaysian delegation in all five rounds; a prominent member was Norian Mai, both of whom ended their careers as Inspector-General of Police.
On December 2, 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 Datuk Wan Sidek Wan Rahman, the secretary-general of the Ministry of Home Affairs, General Tan Sri Hashim Ali, Chief of Defence Forces, and Tan Sri 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, the 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?
* Tommy Thomas is a senior lawyer in the Malaysian Bar.
Won’t the 1989 Agreement – hailed as a great victory for peace – signed with an illegal organisation (both before and after) be equally tainted with illegality as to be invalid and non-binding?
///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./// The real reason is because they’re angry with her and Bersih for causing political damage on 9th July. If Bersih were an illegal/unlawful organisation, then it is very exceptional one to whom the King had granted an audience and its supporters (kaki-tangan) arrested for wearing yellow Bersih tee shirts but neither Ambiga nor Bersih’s steering committee’s members (leaders) are arrested (so far)!
What about Bersih being a de facto entity?
The King agreed and has already received Bersih’s 8-points Memorandum about 10 days ago. Wouldn’t this be an informal acknowledgement of Bersih’s right to exist, that it has legitimacy?