Demonstrations and counter-demonstrations ― Where lies the government’s duty?

― Lim Wei Jiet
Malay Mail Online
November 5, 2016

NOVEMBER 5 ― Of late, there have been statements by ministers and authorities which seem to have blamed Bersih for the threatening menace of the Red Shirts come November 19.

Khairy Jamaluddin, in his infinite wisdom, said: “…if Bersih does not do anything, the reds would certainly not do anything, so the burden lies on Bersih. The best way is to not allow the Bersih 5 rally to happen”. The Home Minister, Datuk Seri Ahmad Zahid Hamidi similarly opined: “You see, if there is no yellow, there will be no red. If there is no Maria Chin, there will surely be no Jamal Yunos”.

With respect, such line of thinking is simply erroneous. Imagine this scenario ― a group of students are enjoying a game of football during P.E. lesson. The school bully appears from nowhere, pushes several students to the ground and snatches the ball away like the jerk he is. A brouhaha ensues. The teacher comes along and not only does omit to discipline the bully, but proceeds to scold the students for causing him problems and orders the students back to class.

How’s that for logic?

One can’t put it more simply than O’Brien J in R v. Londonderry Justices (1891) 28 LR Fr. 440: “If danger arises from the exercise of lawful rights resulting in a breach of the peace, the remedy is the presence of sufficient force to prevent the result, not the legal condemnation of those who exercise those rights”

In other words, stop the bully, not reprimand the peaceful demonstrators!

The European Court of Human Rights in Platform Arzte fur das Leben v Austria (1988) 13 EHRR 204 very nicely held: “The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate.”

The prospect of a violent counter-demonstration cannot be justified to call for a blanket ban for peaceful protests. In fact, the law suggests that it becomes the positive duty of the government to protect Bersih’s right of assembly from the threats of the Red Shirts.

As mentioned by the UN Human Rights Committee in Alekseev Russia: “An unspecified and general risk of a violent counter-demonstration or the mere possibility that the authorities would be unable to prevent or neutralise such violence was not sufficient to ban a demonstration…In such circumstances, the obligation of the state party was to protect the author in the exercise of his rights under the ICCPR and not to contribute to suppressing those rights.”

Further, Section 18 of the Peaceful Assembly Act 2012 clearly provides the solution to the prospect of a counter-assembly by the Red Shirts: “If the Officer in Charge of a Police District receives a notification of a counter assembly and it is evident that the organization of the counter assembly will cause conflict between the participants of the assemblies, the Officer in Charge of the Police District shall give an alternative for the counter assembly to be organised at another time, date or place.”

This means that priority should be given to Bersih for the November 19 rally and that the State should actually facilitate the Red Shirts to hold their counter assembly at a venue distant enough to avoid clashes.

It is clear that the law dictates that the government should defend and protect Bersih’s right to demonstrate peacefully, not pour scorn and blame them for the existence of rowdy counter-demonstrators.

If we extend the ministers’ logic, then any exercise of the right to assembly under Article 10 of our Federal Constitution can be stopped as long as there is a threat of a counter-demonstration. This only encourages a nationwide culture of lawlessness and intimidation ― the more violent, the higher the prospect of stopping a group you disagree with.

Come November 19, one sincerely hopes that the government will do the right thing ― uphold the rights of its citizens to assemble peacefully, and to defend such right from being denied by a group of thuggish counter-demonstrators if need be.