“….//….The people I met at Selayang Court awaiting to be charged for an illegal assembly in connection with the Hindraf rally on Sunday are mostly respectable and law-abiding Malaysian citizens, business people, technicians, contractors, clerks and even executive and management officers…//…” – YB Kit.

Are they are all going to plead not guilty?

In 2001, a group of seven university students (dubbed the ‘ISA 7′) were involved in a protest against the use of the ISA against a number of human rights activists. These students were arrested, charged with illegal assembly and were acquitted off the charges at the magistrate court. How did they do it?

From the little I know, prosecution has all cards in its favour under the Police Act.

All it has to prove is that you are assembling with 2 others with intent to carry out some common purpose without sanction of a police permit of which the only defence is that you happened to be there for some other innocent purposes not otherwise associated with the assembly and its purposes, and even in this defence, the onus is you to prove it.

In today’s The Star Hindraf’s secretary V K Regu was reported to have said that “it was wrongfully claimed that the gathering on Sunday was a Hindraf organized rally as it never sent out any form of invitation for the gathering and even the SMS messages calling for the mass gathering did not originate from the movement. He said the publicity actually came from statements by the police and the Government against Hindraf’s decision to hand over the memorandum” to the British High Commission…..

What does this really imply in terms of defence – was this a rally not organized by anyone in particular and that everyone was there because only of the publicity from statements by the police and the Government against Hindraf’s decision to hand over the memorandum” to the British High Commission …..that there was no assembly for a common purpose and that all just happened to be just onlookers to see, as a matter of interest, the publicized hand over the memorandum” to the British High Commission?

The other fact – that can be proven and cited – is that since 1999 onwards, police permits under the Police Act 1967 for public assemblies were by and large withheld by the police to NGOs but generously handed out to pro-government demonstrations, and even for those without permit, no attempt was made to break them up.

I wonder whether if assuming Hindraf for example owns up that they organized the rally – for which its tantamount to its organizing officers admitting that they have committed the offence of unlawful assembly – whether they could, by class action to the courts, proceed “upstream” and challenge the police selective granting of permits to pro-government demonstrations or withholding of permits to anti-government or anti British government demonstrations, there being in both first and second instances no rational differentiating factor if all are peaceful demonstrations guided by the spirit of article 10(1)b of the Federal Constitution on right to assemble…..bearing also in mind that under article 8 of the Constitution there should be equality before and equal protection of the law, a constitutional safeguard.

Yes, we agree to treat oranges and apples differently if, comparing anti government and pro-government demonstrations, the former is proven more violent and inimical to public order than the latter but if both are peaceful for the purpose of the Police Act (guarding against breach of public order and security), then shouldn’t one orange be treated exactly like the other orange – ie whether pro or anti govt demonstrations both treated alike if there were no differentiating criteria proven that one is, by character, more likely to breach public order than the other demonstration?

Central to the issue is that whether pro government or anti government, this is not the rational criteria for authorities to differentiate, discriminate and apply selective treatment when both types of demonstrations are peaceful. The object of the law making an offence of unlawful assembly is its propensity to breach public order and security – not whether the objective of assembling is more pro or anti government in flavour.

That being the case they should not give permit if judging by circumstances (say a demonstration against certain minority group) the pro government demonstration is likely to breach public order, and they should give permit if judging by circumstances (say a peaceful march to the Istana) though anti government is peaceful.