2 conflicting views on right to assemble

Last Thursday, a three-man bench chaired by Tan Sri Md Raus Sharif ruled that Section 9(5) of the Peaceful Assembly Act (PAA) was in line with Article 10 of the Federal Constitution.

This means the provision in the PAA which punishes organisers for holding assemblies is constitutional. These restrictions could undermine pluralism and tolerance in society.

The ruling diverged from a previous Court of Appeal panel’s landmark decision which struck out a similar charge faced by Seri Setia assemblyman Nik Nazmi Nik Ahmad, on the grounds that criminalising the right to assemble was unconstitutional.

One of the starting points to discuss this is some sort of a formal expression of rights for all citizens.

Ideally, these rights should be protected by the state, but apparently, it is not the case.

There is consensus that in the exercising of one’s rights, it can also have a negative impact on others’ rights.

There is also consensus that everyone has responsibilities, which means we do not have an unlimited right to do certain things that will harm another person.

Basically, what we need is to balance the different forms of rights.

But the question now is where are the boundaries and limits about what people can do in public spaces? How does the state manage those spaces?

Ideally, the responsibility of the state is to be able to protect everyone’s rights and to find ways to balance between competing rights at any one time.

This is why, beyond protecting the freedom of speech and assembly, it is crucial to protect first public space itself.

A government which claims to guarantee the rights to speech, expression, assembly and association but provides no space in which to do so makes an artificial promise to its citizens.

The departure from the earlier ruling that Section 9 (5) was unconstitutional is confusing not only to lawyers but also the public.

That shows the state knows to impede on the exercise of the right to assembly is one of the most perverse forms of control.

Therefore, the constitutional or statutory limits of the right to peaceful demonstration are carefully examined.

Challenging the status quo is tough.

Malaysia today faces a proliferation of protests. One can only assume that far from destabilising democracy, protest is instrumental in forcing the expansion of freedoms. – October 5, 2015.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.