Police threat against joining Bersih rally – a betrayal by PH, contravenes court decision

The Bersih 5 crowd outside KLCC on 19 November 2016

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Lawyers for Liberty (LFL) refers to the statement made last night by Kuala Lumpur Police chief Allaudeen Abdul Majid warning the public not to join Bersih’s march on Parliament on Tuesday and claiming that the rally “violates the law” as no notice has been given to police.

Allaudeen’s claim that the planned Bersih rally is unlawful shows serious ignorance of the provisions of the Peaceful Assembly Act 2012 (PAA) as well as the Federal Constitution.

First, the Court of Appeal has already struck down Section 9(5) of the PAA for being unconstitutional in the case of Nik Nazmi bin Nik Ahmad v Public Prosecutor in 2014. The decision of the Court of Appeal in this case still stands and has not been overturned by a higher court.

In 2015, another Court of Appeal bench in Public Prosecutor v Yuneswaran gave an opinion that Section 9(5) is constitutional and disagreed with the Nik Nazmi decision.

However, the 2015 court could not overrule the earlier decision, as both courts are of the same level. Only the Federal Court, which is a higher court, could have overruled the Nik Nazmi decision. This has never happened, and the decision remains valid and enforceable until now.

Second, failure to give notice does not render the rally itself unlawful. The concept of an illegal assembly only existed under the repealed provisions on public assemblies in the Police Act 1967. Breach of any provision of the PAA does not render any rally unlawful. Hence, there is no basis for the police chief to warn the public from attending the rally.

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Finally, it is appalling that under a Pakatan Harapan-led government, police are cracking down on a Bersih rally.

The home minister is himself from the PH coalition. PH rode into power on the backs of many successful Bersih mass rallies. PH leaders also marched side by side with Bersih in the streets, when the then Barisan Nasional government had also declared the Bersih rallies illegal or ‘haram’.

Now in power, the PH-led government is doing the exact same thing. This is Judas-like behaviour by the PH coalition.

LFL urges the police to immediately withdraw the threat against those attending the Bersih rally.

LFL further urges the government to halt all enforcement of Section 9(5) of the PAA in accordance with the decision of the Court of Appeal in the Nik Nazmi case.

Zaid Malek is director of Lawyers for Liberty

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