When I first heard that a protest march will be held on 05 December 2010, I could immediately picture the chain of events.

The protest will not have a police permit. The police will warn protesters to keep away. The police will set up roadblocks to stop the protesters. The protesters will gather. The FRU will be called in. Water cannons and teargas will be used on the protesters. Arrests will be made.

The turn of events that Sunday was as how I predicted it.

You should know by now that the protest was to support the handing over of a memorandum on the Selangor state water issue to Yang di-Pertuan Agong at Istana Negara. You can certainly argue the merits of the issue and that the matter has been politicised by certain quarters in order to gain mileage especially with the people of Selangor. Industry analysts have said that unless politics are taken out of the equation, the water impasse will not be solved anytime soon.

But I am not interested in the merits of the cause. That is irrelevant to me. What I am concerned with is the right itself. The fundamental freedom to assemble peaceably without arms.

Article 10(1)(b) of the Federal Constitution provides that “all citizens have the right to assemble peaceably and without arms”. This is in line with the Universal Declaration of Human Rights (UDHR) which provides that “everyone has the right to freedom of peaceful assembly and association”.

The right to assemble peaceably is therefore a constitutionally guaranteed human right, a political freedom as well as a civil liberty. The celebrated English judge, Lord Denning opined that individuals should be allowed to exercise this  right without impediment as it is often the only means in which grievances can be brought to the knowledge of those in authority.

The Federal Constitution does not distinguish between causes and merits of the protest. One has the right to protest, whether it is for the abolishment of the Internal Security Act, the call for an independent judiciary, to uphold the so- called ‘Malay rights’ or to protest alleged irregularities in the internal elections of a political party. It is simply not for us to make judgment calls on which causes are ‘protestable’. But somehow, the authorities seem to think that the protest against Israel over the Mavi Marmara flotilla attack is kosher but not Selangor’s water issue.

Of course, the right to assemble is not absolute. The right subsists as long as the assembly remains peaceful. Further, Article 10(2)(b) of the Federal Constitution also provides that on the right to assemble peacefully, Parliament may by law impose “such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof or public order”.

What this means is that Parliament may enact laws that restrict this right in the interest of national security or public order. A restriction on this right for any other reason would be unconstitutional.

A discussion on the right to assemble in the Malaysian context will inevitably involve the question of Section 27 of the Police Act which provides that any assembly, meeting or procession in any public place must first obtain a license from the OCPD of the district, without which it will be deemed to be an illegal assembly.

The Bar Council’s position on the requirement of a police license is that it is unconstitutional. I do not wish to delve into a protracted legal submission on this issue, suffice to say that the Courts have held that any restrictions placed upon an individual’s right must be reasonable and proportionate to the legitimate objective it seeks to achieve.

The requirement of a permit subjects and places a prior restraint to the exercise of a citizen’s right to assemble and is predicated on the discretion of the OCPD. It is argued that this amounts to an unreasonable restriction or outright prohibition upon the right guaranteed by the Constitution and a disproportionate measure to safeguard national security and public order.

The right to assemble peaceably cannot be restricted by the authorities merely because of the inconvenience it may cause. Some have argued that the protests have caused traffic congestions and that it has impeded the right of other citizens to go about their daily lives.

This may be so, but any intervention by the authorities for this purpose cannot be constitutionally justified. In any event, the traffic congestions were caused by the roadblocks set up by the police to prevent the protest from happening and not because of the protest itself. Had the protesters been allowed to march and deliver the memorandum and the police monitoring to ensure that the protest remain peaceful, it is likely that the matter would be concluded without incident.

Yes, inevitably some roads will be closed to facilitate the protest march. But roads are closed everyday for all sorts of reasons. Kuala Lumpur is such a vibrant city that every other day there will be something that happens which require a road closures. Maulidur Rasul and Thaipusam processions will also result in the inconvenience of many people, yet does that mean these processions should be banned?

‘But the country does not belong to merely the thousands of protesters, but to 27 million people’, some have argued. ‘In a democracy, the rights of the majority should prevail over those of the minority’.

Unfortunately, this is a common misconception about democracy. Democracy is not tyranny of the majority and does not mean that the rights of the minority take a back seat. Democracy is not equivalent to majoritarianism. In fact, democracy demands that the right of the dissenting minority be allowed expression and due consideration.

Personally, I myself am not a big fan of street demonstrations. There are many who share my sentiments. Yet despite what we feel about it, we cannot deny the right that the protesters have to take to the streets and demonstrate. We cannot tell the protesters that they should have protested in a stadium or a hall or that they could have just taken a smaller crowd to deliver the memorandum, who are we to dictate how they exercise their rights? Surely it is time that we give effect to the whole of the Constitution, and not merely thoseprovisions which are beneficial or agreeable to us.

*this article was published exclusively in Star’s iPad application on 16 December 2010 for my fortnightly column, “A Humble Submission“.

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