If I may recap what I had written in Part One of this series (A Clean Assembly – Part One), the right to assemble is NOT an absolute right, nor has it been guaranteed by Article 10 (1) of the Federal Constitution. In fact, the same right, as provided for in Article 20 of the Universal Declaration of Human Rights, has its limitations set as provided for by Article 29 (2) of the same. It reads:
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
In drafting Article 29(2), the United Nations recognised that for every right and fundamental liberty granted to every human being, there would be a competing right of others that includes the society or state in which that person lives. Therefore, what BERSIH supporters see as their fundamental right to march, is actually limited by the right of road users whom had paid the tax to use the roads involved. The wishes of the majority who may or may not support the want to march to express; and these are the considerations the judicial review would have had to take, had BERSIH went to court to challenge the police’s refusal to issue a rally permit.
One should remember that Article 29 of the Universal Declaration of Human Rights demands countries to balance these competing rights, on one side wanting recognition of their cause, and the limitations provided by the law solely for the purpose of securing due recognition and respect for the rights and freedom of others opposing, by meeting the requirements of national security, public order, public moral and public health and welfare. Public in this context refers to the others who do not join or support such cause.
As a person from the outside looking in, with BERSIH’s high profile individuals such as Ambiga Sreevasan, Edmund Bon et al, they should have known that a judicial review is needed for them to justify their claim to their right under Article 10 (1). However, in view of their failure to exercise that option gives me no choice other than to assume that it was an act of mala fide . Maximum publicity was the real intent.
Of course, as in any other rally, there will be culprits bent on causing havoc; as evident in a video shown of a politician riding on the BERSIH platform doing a countdown before charging towards the police line in the hope that the police would do something drastic to them, and these events are captured especially by the foreign media. This is where the history of such rally and of its organisers must be investigated thoroughly by the police and the judicial review in determining the clear and present danger, and incitement tests.
In Part Three, I shall write about the conduct of the government, the police, and of the six members of the Socialist Party of Malaysia arrested under the Emergency Ordinance.
8 Replies to “A Clean Assembly – Part Two”
Very well-explained about the balance of rights and the competing rights of others against uncontrolled freedom to march or congregate, which even some lawyers don’t seem to know or don’t want to let know. Plus, I have read that some of the videos in Reuters possession also show the provocations on purpose by some of the marchers.
The pro-BERSIH lawyers conveniently omit parts that do not favour them. So, the blind will sondol membabi BUTA
Well, that’s what they’re good at.
So how do they express their support to free & fair election? If we really2 implementing democracy why can’t allow peacefull assembly??? I don’t see any riot, I don’t see any of protestors bring m16, gun, c4 or whatsoever. Again, why not allow peaceful assembly while gov leaders keep saying malaysia is a democracy country?
Like I said, go through the process, all of it. Anyway, I haven’t finished writing on this series. I haven’t written on how I thought the government handled the situation
Excellent article! Can’t wait for part 3. Looks like the high falutin’ lawyers aren’t so noble after all. Maybe these lawyerers should stick to lawyering.
Part 3 is already up
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