One either plays by the rules (the law) and play outside them. If by the rules, we have the Police Act. It is a draconian Act. It requires a permit to be applied from the police for a gathering that is more than three people. The decision of the police is final and cannot be challenged in court. If the assembly has not obtained the permit then it is illegal, and the police could apply what reasonable force it deems fit to disperse it. Using tear gas or water cannons is considered “reasonable force” by the authorities.

When one challenges the Police Act one would cite article 10 of the Constitution and argue that Freedom of Assembly is constitutionally protected, and to the extent that the Police Act conflicts with the Constitution the Police Act should be struck down as illegal because it conflicts and contradicts the most basic law, the Federal Constitution.

However the real question is does it conflict? It will not however conflict if the Constitution (amended by 2/3 majority of BN parliamentarians) itself says that the authorities have sole prerogative to qualify this fundamental right by withholding the permit based on the overarching concerns for security and public order.

The position is clear that, by the very Constitution that is cited by all as sacrosanct, the right of citizens to “assemble peaceably without arms” guaranteed by Article 10(1)(b) is qualified under Article 10(2) by such laws like the Police Act (the others would be the Sedition Act and Printing Publication and Press Act) that Parliament enacted restricting it in the interest of security and public order.

This means discretion is conferred by Parliament to the IGP who makes the decision on whether public order and security will be jeopardised by the assembly. He says it does and withhold the permit making the assembly illegal, then what can you say?

The more precise question is whether the IGP’s exercise of discretion is justiciable ie. can be reviewed by court as to whether it is correct or not correct, tenable or not tenable.

Here the provisions of the Police Act would say the decision of the police is final and cannot be challenged in court. It seems to be a dead end here but for the saving grace that in any democratic country in which there is a brave and independent judiciary, nothing is really not justiciable when one plays with interpretation.

Parliament (with aid of AG’s draftsmen) may craft the right language to say that the Minister or IGP has all the rights to decide without the intervention courts but who is the referee who reads the rules and says that is or is not so?

It is still the courts and an independent and brave court will always circumvent the rules and using the flexibility that words and language allow, will rule that the courts are not excluded from reviewing in this or that event and in the particular instance (for example) the Minister or IGP has decided wrongly to withhold the police permit for Hindraf or Bersih when no action was taken against Khairy who had a rally against Condoleezza Rice, and therefore the assemblies were legal, and all those participants arrested would walk free.

So ultimately if one plays by the rules it is of paramount importance to look to the independence of judiciary – this is the ultimate safeguard – a judiciary that is not beholden to executive interference and will be ready juxtaposition itself as bulwark between a powerful Executive and the rights of the citizenry when push comes to shove!

For an independent judiciary to evolve, the citizenry must be vigilant and not indolent of their rights, which again depends again on tradition and culture whether the peoples or at least the majority of them are desensitized to authoritarian directives as in feudal practices or fiercely jealous of their freedoms.

The problem in this country is that there are substantial segment still acquiescing wit the BN’s authoritarian rule, never mind the reasons whether they are beneficiaries of the existing order whether in terms of business, NEP etc or just distrustful of the Opposition. The BN won over 90% of the seats by garnering slightly over 60% of the votes. One can say that it got 90% because of taking advantage of gerrymandering or postal or phantom votes money politics and so on but one cannot ignore discounting all that it is still getting at least over 50% of the popular vote to support its claim that bit represents the majority!

Unless one can persuade this majority to change track, it is an uphill battle for the minority vigilant of their democratic rights to make the ruling coalition to change and cleanse the judiciary or Article 10(2) of the Constitution or the electoral system – in other words change the rules of the game stacked against the minority and their agenda for reform for the betterment of the nation based on justice and equality.

The minority will always find that based on the rules, the law, and with it the courts and the whole power of the state are arrayed against them.

Which is why many of late (undoubtedly inspired by DSAI) are testing grounds, going around the rules, the law, the Police Act via street demonstrations ie peoples power. They are saying if the rules are stacked how to play lawfully by them? They are also testing the Premier’s will, whether he will order crackdown. That is not a remote possibility.

I would think it is likelihood – another Operation Lallang II – this is the cost of this experiment at Peoples Power – it is not a question of if but when – they feel sufficiently pressed against the wall.

You see, our ruling elite will never willingly give up power due to such pressure because (1) too much and too many vested interests, contracts fears of being held accountable after losing power are at stake (2) they have the police and armed forces solidly behind them not to mention the rules and laws that they have fine tuned to justify their actions under the cover of a democratic practice based on elections and (3) they are absolutely counting on the majority 50 to 60% backing them to defeat the challenge of peoples power….

So you decide – whether want to play by the rules and slowly try to win concessions to change them or forget entirely about them and the ballot box and take to the streets.

If you play by the rules, the immediate priority is to lobby for independent judiciary and at the same time do whatever necessary to try change the mindset of the majority especially in rural heartlands whose support for the BN is by and large quite prevalent.