The Book of Prof Shad.docx

However the initial police description of the bersih

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However, the initial police description of the Bersih 5 rally as illegal has important implications for the right to assembly as enshrined in Article 10 and the Peaceful Assembly Act. Likewise, the attempt in 2016 by some private groups to obtain an injunction against the rally organisers is constitutionally significant. In this case a few Malay traders’ groups, Justice S. Nantha Balan held that – 74
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i the police are legally bound by Section 18 of the Peaceful Assembly Act to redirect any counter-rallies if they know that clashes are imminent. Justice Nanthan Balan pointed out that the police must redirect any counter-rallies if they knew that clashes were imminent. The police are legally-bound by Section 18 of the Peaceful Assembly Act to ensure the Red Shirts movement holds its counter-rally at a different location to prevent clashes with Bersih 2.0 supporters. “Section 18 of the PAA acts as a safety valve to diffuse any potential conflict therefore it is the duty of the police to prevent a clash or conflict should there is a possibility that it would eventuate.” ii He also agreed with the argument presented by Bersih 2.0’s lead counsel Gurdial Singh that no private citizen or groups should use the court to prevent any organisations from exercising their constitutional right to assemble. iii The High Court judge rejected an application for an injunction to stop Bersih 5 and a counter-rally from taking place in the capital city. iv Justice Nanthan Balan said the application, filed by three city Malay trader groups, failed, among others, to provide a credible explanation as to why the suit was only filed at the eleventh hour when Bersih 2.0 had already made it known that the Bersih 5 rally was to be held within the Dataran Merdeka vicinity since September 2016. “The delay is inordinate and the plaintiff failed to provide any credible explanation as to why they have filed for the injunction at the eleventh hour. v Justice Nanthan also noted that the plaintiffs had failed to provide any evidence to support its claims that previous Bersih rallies had led to damages to their shops or assets. “The plaintiff said they have lodged a police report (against the defendants) yet there is no evidence of a police report. The plaintiff said they suffered from damages every time the defendants held rallies, yet there is no evidence of monetary issues,” Justice Nanthan said in his ruling. Judicial review : Mercifully, the Act has no ouster clauses for excluding judicial review. Counter-assemblies : The Act takes admirable note of counter- and simultaneous assemblies, and seeks to regulate them by giving preference to the assembly first in place. It also provides for alternative sites, times and dates for the counter- or simultaneous assembly or assemblies.
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