Law Speak - Street demonstrations and the Constitution

05 Sep 2016 / 22:00 H.

    LATELY we have seen further serious inroads into the rights of citizens to assemble peacefully, travel abroad and speak. I look at one particular right – the right to assemble peacefully. This includes, in common parlance “street demonstrations”.
    Bersih has announced its intention to organise one such demonstration. Bersih comprises some 83 non-governmental organisations within its fold – a truly sizeable chunk of our population.
    Such assemblies or demonstrations are not prohibited by the Federal Constitution. The Peaceful Assembly Act enhances such a right; it establishes a process as to how this right may be exercised.
    But the authorities appear to thwart this right by various contrivances. At least that is the perception of many.
    What invariably happens is as follows. The organisers – to optimise the effect of their action – almost always choose a venue of high visibility. The natural choice is Dataran Merdeka: a large enough place to accommodate the crowd; and prevent a spill onto “the streets”.
    The police say they will authorise the demonstration subject to consent from those administering the venue, namely DBKL.
    DBKL chimes in – and simply refuses to give that permission.
    The police then restrict the organisers to a venue selected by them – quite obviously to minimise the impact of the assembly.
    Next, a colour-shirted group threatens the organisers with reprisals if they proceed with their demonstration. And the authorities do nothing about that.
    The police then say that this is a situation that threatens security – and impose further restrictions. Ignoring the fact that this sort of threat violates the law and the right for Bersih to proceed with its constitutional right.
    In an analogous situation, the inimitable Lord Denning, speaking for the English Court of Appeal said: The evidence is that if there is any trouble it will not be at the meeting at all. If it does occur, it will be outside caused by opponents … Their members may threaten or assault the members of the National Front; or try to stop their meeting. It would then be the interrupters who would be the destroyers of freedom of speech. They cannot be allowed to disrupt the meeting by mass pickets, or by violent demonstrations, and the like. The police, will, I hope, be present in force to prevent such disruptions”. Verrall v Great Yarmouth BC (1980)
    The police are present. But surely, they should be acting against such threats by appropriate preventative measures. After all, they are the front-liners against any violations of the Constitution.
    Yet another “approach” is to act collaterally to blunt the effect of the demonstration. Impassioned speeches made in the heat of the occasion – are scrutinised and elevated to the high crime of sedition. “Demonstrators” are hauled in for investigations – some imprisoned and paraded with handcuffs and all. Students threatened with expulsion. T-shirts bearing the Bersih logo banned; the Court of Appeal has just struck down as illegal this ludicrous ministerial dictate.
    The police also resort to suing the organisers for damage. For the 2012 Bersih assembly, the government sued the organisers collectively, including the past and present Bersih heads. It claimed in excess of RM100,000. In dismissing the claim, Court of Appeal judge Varghese George noted that it was intriguing why the police with all the technological means at their disposal could not identify the particular persons who caused the damage; and instead chose to “take this broad and vague sweep against the organisers”.
    What then for the next Bersih demonstration? And of other groups? Will these same thwarting manoeuvres emerge? Will the police act against the threat of the same motley crowd to “counter” the rally? Will the highest governmental authority desist from condoning the action of this group – by supporting them for being slapped more than once!
    What of the national day speech which spoke out against “street demonstrations” – linking it with the spectre of illegally toppling the government? A veiled warning against street demonstrations of the Bersih genre? Ignoring their peaceful conduct.
    The choice is clear – either uphold the Rukun Negara’s cardinal “rule of law” imperative; or condone its subversion for narrow political ends.
    Gurdial, a former law professor, is currently practising as a legal consultant. Comments: letters@thesundaily.com

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