09 November, 2007

Global human rights group slammed Malaysia for banning rally on free elections

Police yesterday issued a final warning against the proposed illegal assembly at Dataran Merdeka tomorrow.

City police chief Datuk Zul Hasnan Najib Baharudin yesterday told a press conference: "We will act if it goes on."

For the past week, police had held three meetings with the organiser of the rally which, according to reports, will attract almost 100,000 demonstrators.

The organiser, Coalition for Free and Fair Elections (Bersih), plans to gather the crowd at Dataran Merdeka at 3pm after which they will make their way to Istana Negara to hand in a memorandum to the king.

They are calling for a "free and clean elections". The demonstrators have been told to wear yellow on that day.

A global human rights group slammed the Malaysian government Friday for banning an opposition-backed rally that organizers say will attract tens of thousands of activists calling for free elections.

Malaysian law bans public gatherings of more than five people without a permit. National police chief Musa Hassan has denied permission for Saturday's planned rally, saying it would "jeopardize public order." Police have also said the rally would inconvenience motorists.

"The grounds for refusing the rally are nonsense," Brad Adams, Asia director at the New York-based Human Rights Watch, said in a statement.

"If Malaysia wants to count itself a democracy, it can begin by upholding constitutional guarantees of free speech and assembly. The way the system works now, only the ruling coalition can get its messages out," he said.

Activists say elections in Malaysia are generally tilted in favor of the ruling National Front coalition because of gerrymandering, or redrawing of constituencies that weeds out known opposition supporters. There are also frequent allegations of vote buying and other irregularities, including the use of public resources by the ruling parties and bias by the Election Commission.

The National Front, a coalition of various parties representing Malaysia's different races — the majority Malays and minority Chinese, Indians and others — has been in power since independence in 1952.

Bersih can take police to court

1. On the police’s rejection of the application to hold the Bersih assembly and procession on the grounds that “certain groups would take the opportunity to foment trouble” and that the “demonstration will create public disorder”:

This matter falls under the section 27 (2) of the Police Act; but it must be read in conjunction with Article 10 of the Federal Constitution and section 141 of the Penal Code:

i) The officer-in-charge pursuant to Article 10 of the Constitution has to approve applications by citizens to assemble peaceably without arms.

ii) However, he may withhold or withdraw the approval, pursuant to section 27(2), if and only if, pursuant to section 141 Criminal Procedure Code (CPC), “the common object of the persons composing that assembly is to overawe by criminal force, or show of criminal force, the Legislative or Executive Government of Malaysia; or to resist the execution of any law, or of any legal process; or to commit any mischief or criminal trespass, or other offence.”

iii) As the organisers have given ample assurances to the police as to the order and safety of the assembly, they have therefore provided all reasonable evidence for the KL police chief in order for him to be “satisfied that the assembly, meeting or procession is not likely to be prejudicial to the interest of the security … or to excite a disturbance of the peace” [section 27(2)], therefore this ground for rejecting permit put forth by the police is without legal basis.

In light of the above, it is submitted that disapproving the issuance of a permit would be ultra vires Article 10 of the Constitution and derogating from section 27 (2) of the Police Act and section 141 of the CPC.

2. On the grounds that Bersih is an unregistered body, and therefore contravening section 27(2D):

i) Bersih comprises members from the political parties (PKR, DAP and PAS), as well as representatives from the following NGOs - Suara Rakyat Malaysia (Suaram), Women’s Development Collective (WDC) and Writers Alliance for Media Independence (Wami) - all registered bodies pursuant of section 4-8 of the Societies Act 1966 (revised 1987).

Therefore, it is submitted that, if the appeal submitted by PKR, one of the registered bodies who are also members of Bersih, is rejected by the commissioner of police, he would be acting ultra vires Article 10 of the Constitution and further cannot invoke section 27(2D) of the Police Act.

3. On the grounds that the assembly will cause inconvenience to road users:

i) According to section 21(1) of the Police Act; “It shall be the duty of police officers -

a) to regulate, control and divert any traffic;

b) to keep order on public roads, streets, thoroughfares … to which the public have access; and

c) to prevent obstruction on the occasions of assemblies and processions on public roads and streets, and in any case, when any road, street, thoroughfare … may be thronged or liable to be obstructed.”

Therefore, it is submitted that, the police, in stating the above grounds for rejection of application, are in derogation of section 21(1) (a-c).

Conclusion: If the appeal on the application to hold a peaceful assembly is rejected, the aggrieved party can and should file a writ of certioriari seeking judicial review by the High Court.

This would be a ‘test case’ and should the court find in favour of Bersih, it would thereby set a new precedent on the right to peaceful assembly and thus pave the way for future peaceful assemblies to be held without interference from the executive or its authorities.

Taken from Malaysiakini 'Letters to the Editor', written by Aneel David Kannabhiran.

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