Law Speak - Foreign funds and NGOs

14 Nov 2016 / 14:30 H.

    ONCE again the hounds are baying for blood. I refer to the calls by some ministers to act against NGOs such as Bersih; and professional bodies such as the Malaysian Bar. As well as media outlets, such as Malaysiakini. On various grounds — such as the receipt of funds from foreign sources; and for (Bersih) organising rallies which could provoke violence.
    The common thread of these bodies: they speak out fearlessly against any perceived wrongdoing by the powers that be. This irks people in authority.
    It is not the first-time that Bersih — a coalition of more than 80 NGOs for clean and fair elections — is targeted. In July 2011, home minister declared Bersih illegal on the ground that it was being used for purposes which threatened the security of Malaysia and public order. Then chairman of Bersih, affectionately known as Ambiga, challenged this order. She succeeded. The High Court quashed the minister's order.
    The judge, Justice Rohana Yusuf, said the minister's order was irrational. Meaning that it was so outrageous that no sensible person who had applied his mind could have declared it as illegal. As well as illogical and ludicrous. Because shortly after, Bersih was allowed to hold another rally, the King had an audience with Ambiga relating to the planned rally, and the rally took place without any censure.
    Banning an organisation, opined the court, "impinges on the right and liberty of an individual, guaranteed under the Federal Constitution, in particular the right to assembly." By ignoring this, the minister had acted in "a lackadaisical manner". The upshot: Bersih is a lawful society.
    The latest volley is the receipt of foreign funds by NGOs. It's undeniable that most of them receive such funds. To finance their activities. Laudable activities — for women's rights, protection of children, the disabled, the dispossessed, the marginalised and the voiceless. And this foreign sourcing is well-known. That's how most NGOs survive.
    Surely the minister must know of this from a long time ago. To suddenly use this ground to malign an organisation could be perceived by the public to be a ruse or subterfuge; and motivated by little else than a desire to get these organisations to desist from their role as guardians of society. Notably, the Court of Appeal recently recognised the beneficial role of activists in promoting the common good.
    In tandem, the IGP has thrown in his lot — and has categorised the receipt of funds as potentially a crime of "undermining parliamentary democracy". Preposterous, most will say. Yet another case-in-waiting for courts to declare such action as "irrational"?
    For, Bersih is about free and fair elections and ridding the country of scourges — such as corruption. The Malaysian Bar is obliged by the Legal Profession Act "to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour". And Malaysiakini is an alternative media on current affairs.
    The "crime" for which the Malaysian Bar is being investigated is that it received a "hefty" sum of RM15,000 for its research on refugees. This undermines parliamentary democracy? Yet the admitted receipt of massive foreign funds for the 2013 elections seems to be insulated from any action.
    Bersih's rally must be banned because another group has vowed to counter it by having a rally in the same place and time. This, says the minister, could provoke violence. In his famous words: If no yellow shirts there will be no red shirts.
    This, with respect, defies logic; and undermines the constitutionally guaranteed right to assemble. It encourages others to take the law into their own hands and threaten a lawful group from holding a lawful rally. Under the Peaceful Assembly Act the police must direct the other organisation to hold its rally at another time, date or place if it is evident that the "counter assembly" will cause a conflict between participants of the assemblies. This is to prevent any breach of law and order.
    Surely, the IGP and the minister are aware of this provision.
    The enforcement target then should be the "interrupters". For they, said Lord Denning in a UK Court of Appeal decision, would be the destroyers of fundamental freedoms: Verrall v Great Yarmouth BC.
    Gurdial, a former law professor, is now a legal consultant. Comments:

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