By Hazlan Zakaria
25 June 2011 | MalaysiaKini

Renowned constitutional law expert Abdul Aziz Bari, hit out at the cops for their unilateral banning of the Bersih 2.0 rally planned for July 9, pointing out that the police crackdown on the gathering is not only illegal but unconstitutional.

“They have acted illegally because they have publicly stated that they are not going to issue a permit. As a public authority they can only make a decision after an application has been made,” the International Islamic University Malaysia (IIUM) lecturer told Malaysiakini.

Abdul Aziz explained that under the law, the police are duty bound to consider every permit application, and not take irrelevant considerations into account.

He argued that the police have pre-judged the matter and this is against the law. Worse still, it contravenes a right that is enshrined in the Constitution.

“The police have no power to suspend the right of peaceable assembly guaranteed by Article 10(1)(b) of the constitution by declaring it illegal at will. Even the (lower) courts cannot do that,” said the law lecturer.

The said article guarantees “all citizens have the right to assemble peaceably and without arms”.

The massive rally, planned by electoral reform group Bersih, followed a similar gathering in 2007, when close to 40,000 people gathered in the federal capital of Kuala Lumpur, to push the government and the Election Commission (EC) for free and fair elections.

‘Gathering declared illegal’

The police have declared the gathering illegal and said that is has “strategies” to prevent a repeat of the 2007 mammoth gathering.

Abdul Aziz also dismissed a previous order obtained by the police from a magistrate’s court to declare the national capital as a prohibited area to pre-empt the first Bersih rally, and as some believe, a pretext to arrest those taking part.

He was referring to the ex-parte order issued by the Kuala Lumpur magistrate’s court on Dec 10, 2007, under section 98 of the Criminal

Procedure Code, following a criminal application by the Sentul police chief.

Section 98 provides powers for a Magistrate to issue “temporary orders in urgent cases of nuisance”, to restrain a person or persons from performing certain acts in order to avoid “a riot or any affray”.

However, the constitutional expert argued that in that instance, the order from the magistrate’s court cannot cancel the constitutionally guaranteed freedom of assembly, as the subordinate court had no power to interpret the constitution.

Elaborating further, Abdul Aziz said that only Parliament may restrict constitutional rights, but even then, only for two reasons; in the interest of the security, and public order.

What should be highlighted in the police handling of the matter, the law professor posited, is that security and public order is not the sole prerogative of the police, especially when it comes to interpreting constitutional rights.

‘Bersih 2.0 constitutional and legal’

“It has to be decided in the (higher) courts. Until and unless that is done I am of the opinion that the proposed assembly is constitutional and thus legal,” contended Abdul Aziz.

A such, Abdul Aziz is of the opinion that it is also illegal for the police to set up road blocks. The usual police tactic to prevent people from taking part in the rally, as was the case during the first Bersih rally.

Police road blocks restrict freedom of movement, a right guaranteed by Article 9(2) of the constitution. Any such restrictions to the civil liberties must be justified by the cops or they constitute abuse of power.

The lecturer recounted the 2006 royal commission on the police chaired by former chief Justice Dzaiddin Abdullah which recommended the abolishment of section 27 of the Police Act empowering police to issue gathering permits, as it is often abused.

Commenting on the many expressed legal opinions on the status of the Bersih rally, including from Umno lawyer Hafarizam Harun who spoke about it on TV1 this week, Abdul Aziz believes that it may be time to test the case in the higher courts.

“Of course some people are cynical about taking the matter to court. But let us see whether the judges are willing to uphold and protect the constitution. Or they prefer to allow the kangaroo court tag remain with them on this matter,” he jibed.

As for what the Agong’s role should be in the matter, the legal expert said that such considerations are for later.

“Let us first deal with the right of the citizens and the way the police should handle them,” concluded Abdul Aziz.