The Kuala Lumpur High Court today dismissed an application by three groups to stop the Bersih 5 rally and also the red-shirts counter-rally this Saturday.

Justice S Nantha Balan in his decision said the plaintiffs in the inter-parte injunction application did not show merits and hence dismissed the application.

He also expressed surprise that lawyers representing Bersih and the red-shirts both agreed to oppose the application.

“Remarkably the red shirts and yellow shirts could find a common ground to go against the traders' injunction application in and around Dataran Merdeka,” he said, when starting his decision.

The judgment was delivered at 7.20pm and ended at 7.35pm.

Justice Nantha Balan said it is not up to this court to declare a gathering to be illegal.

He also noted that the traders association's application was defective from the start, as under Section 9 (c) of the Societies Act 1966, it must also state its office bearers if they want to sue for damages.

“The plaintiff have not complied with the provision which makes it mandatory. This is a fundamental flaw in commencing this action as the name of the principal (or office bearers) should be made. This is fatal in this instant,” he said, adding that hence, the suit is not competent.

The judge also ruled there was no reasonable ground for the plaintiffs to file the application at the 11th hour as they knew about the gathering two months earlier.

He also said there is no credible explanation for the delay in filing the application and the court noticed while the plaintiff claimed it had lodged a police report, there is no evidence (documentation in the application) of any action.

Justice Nantha Balan, also cited Section 18 of the Peaceful Assembly Act 2012, where authority is given to the police to divert any rival group to an alternative place, or venue or time or day.

“Section 18 of PAA operates as a safety valve to avert a clash of conflict. The power to do this lies with the police and not the traders,” he said.

“I agree it is for the authorities who is allowed to regulate or place such restriction while at the same allow time for freedom of assembly (as enshrined under the Constitution),” he said.

The argument was brought up by the traders that the two rival groups of the yellow and red may cause damage to their property.

Three traders association filed application

The application was made by the Association of Modern Malay traders of Masjid India, the Lorong Jalan Tuanku Abdul Rahman traders and the Medan Mara traders. They claim to represent 1,000 business owners.

They named Bersih, its chairperson Maria Chin Abdullah, the Bersih & Adil Network Sdn Bhd, along with Gabungan NGO Gerakan Merah Malaysia and red-shirt leader Jamal Md Yunos as respondents in the statement of claim.

The suit was filed by the firm of Tetuan Rabia and Farain.

The traders were each claiming that they had a daily revenue of RM800 a day, more during weekends, and were afraid that the rallies would affect their revenue.

The traders were represented by V Mugunthan who claimed that past Bersih rallies had resulted in losses for the traders, and were concerned that with the red-shirt counter-rally, it would result in collateral damages.

The protesters, he said could have chosen an alternative venue such as a stadium.

However, Bersih's counsel Ambiga Sreenavasan denied that there was damages suffered by traders in the past. Co-counsel Gurdial Singh Nijar pointed out that the plaintiff's statement of claim did not provide any evidence to support this.

Lawyer Mohd Nasir Yusof, appearing for Jamal and the red-shirts, adopted Gurdial's submission and said that wherever the "yellow shirts" are, the red shirts will also be there unless the authorities give an alternative venue.

Bersih 5 will continue

With the court's decision today, Maria said the Bersih 5 gathering this Saturday will continue.

She denied that the rally had affected the traders revenue because from feedback gained in Bersih 4, their revenue increased by three to four folds.

The Bersih 2.0 chairperson appreciated the traders' concern but vouched that this is not an illegal rally.

“We have made our level best to submit a notice within the period,” she said.

Ambiga during her submission, said when Dataran Merdeka was declared off limits by the Kuala Lumpur City Hall, they submitted another application on Nov 9 to be within the vicinity of Dataran Merdeka.

Hence, the lawyer said ample notice was given to the police. Maria said there was no need for a permit, as they have fulfilled all requirements to give a notice and they looked forward to working with the police to ensure the gathering is orderly.