I am not a lawyer.
I have never disputed the right to assemble by any one person or by a group. What I have been disputing is the fact that some uninformed or misinformed individuals have been abusing Article (10) of the Federal Constitution, as well as Article 20 of the Universal Declaration of Human Rights on the right to assemble. To me, BERSIH on its own could have been well-received had it not been for its association with political parties representing the opposition, and a series of threats to public order made by its organisers added to the imbroglio.
Now, what went wrong, if any did at all?
Ambiga declared the march to be held on 9th July 2011. What should have (did it, I wouldn’t know) followed is the application for a rally permit, venue, route to be taken if there is a need to march, and so on. One must remember, the right to assemble is provided for in Article 10 (1) of the Federal Constitution of Malaysia. However, if you were to read that particular paragraph carefully, it begins like this:
Subject to clauses (2), (3) and (4), everyone has the right to freedom of speech and expression; have the right to assemble without arms; and the right to form associations. Clauses (2), (3) and (4) of the Article provides the limitations to those rights: they must not be a threat to national security, public order, public moral and public health.
Based on these limitations, the police, in the spirit of the law, should award the permit based on the details given by the permit applicant. Any dispute, then the applicant should take it to the courts for a judicial review, in which the court will then hear out the pros and cons of having the rally. In the US, two tests are applied to this stage of process: the Clear and Present Danger test; and the Incitement test.
The court will then find a remedy (a compromise if you must) on the matter. If judgement is made to allow the rally to go on, then the organisers would have to provide marshalls, routes, rules to be followed and so on. This matter should have been handled as per the recommendation for the Red Lion Square disorder of 1974 by Lord Justice Scarman. He said:
‘…’The right (to demonstrate) of course exists, subject only to limits required by the need for good order and the passage of traffic…’
Did the organisers of the march take the police’s objection to court? The answer as we all know is a simple but deafening NO.