Peaceful assembly subject to national security, court told in Bersih suit

The right to assemble peacefully is not an absolute right but subject to conditions, a government lawyer told the High Court today. – The Malaysian Insider file pic, January 8, 2015.

The right to assemble peacefully is not an absolute right but subject to conditions, a government lawyer told the High Court in a suit brought by Putrajaya against Bersih over its rally in 2012.

Senior federal counsel Kamal Azira Hassan said the protection of the rights of other persons was a crucial part in exercising the right to gather.

"It is for this reason, the right (to assemble peacefully) is not an absolute right but made subject to restriction in the interest of the federation or public order," he said in his submission before judge Datuk John Louis O' Hara.

In May 2012, Putrajaya took the unprecedented step of suing former Bersih co-chairman Datuk Ambiga Sreenivasan and Bersih steering committee members, as rally organisers, for damages of RM122,000.

The government filed its suit against Ambiga under Section 6(2)(g) of the Peaceful Assembly Act 2012 which states that organisers must “ensure that the assembly will not endanger health or cause damage to property or the environment”.

“The plaintiff (government) charges that the defendants failed to carry out their statutory responsibility when the assembly went out of control and turned into a riot, causing damage to vehicles owned by the plaintiff,” the writ said.

The government’s statement of claims lists 15 vehicles, mostly belonging to the police and repair cost amounted to RM122,000.

But in June, 2012, Ambiga filed a counter-suit against Putrajaya, alleging that the government had breached her constitutional rights.

Among other things, the former Bar Council president charged that the PAA was against the Federal Constitution, particularly Section 6 which she said had restricted her right to freedom of assembly.

In court today, Kamal Azira said the government was also a class of persons to be accorded protection from damage to their property.

"Parliament passed the PAA by striking a balance between the interest of the plaintiff (government) and the defendants to maintain public order.

"The government, including local authorities, which has right to acquire and manage property must also be given the right to peaceful enjoyment of their possessions."

Kamal Azira said Section 6 of the PAA did not run foul of key articles in the Federal Constitution.

While Article 10 guaranteed the right to hold peaceful assembly, he said, the rally organisers had a duty to ensure that gatherings were orderly and without chaos.

Kamal Azira added that any restriction imposed on Article 10 could not be questioned as provided under Article 4 (2) of the constitution.

"Article 4 states that the validity of any law shall not be questioned on grounds that it imposes restriction as mentioned in clause (2) of Article 10."

Senior federal counsel Normastura Ayub said the defendants were negligent because they knew the possibility the gathering on April 28, 2012 could turn chaotic.

"They were refused permission to assemble but yet they continued with the rally," she said that the defendants were responsible for those who took part in the meeting.

She said the defendants made open invitations to the public as they wanted a bigger crowd to show support for their cause.

"The rally organisers are liable for the damages caused as they had a special relationship with the participants."

- TMI