I note with concern the reports, letters to malaysiakini and some private communications that I received after criticising DAP for applying for a police permit to stage the recent debate on the Internal Security Act.

My points then were: the problem of obedience to iniquitous laws and the endorsement of a dangerous precedent: that a police permit is needed for assemblies held indoors in privately owned premises for certain "sensitive" issues when the legal requirement is ambiguous in that area.

It was alarming for me that a restricted view on civil liberties was taken instead of affirming and reclaiming these freedoms. It was taken that legally the police have the arbitrary power to brazenly obstruct our civil liberties and no attempt was made to challenge this misconception. One of the most common and dangerous misunderstanding is that a police permit is required for a gathering of three or more persons. Let me say it clearly. There is no such general rule for any gathering of three or more persons whether in a public place or otherwise.

If that is true, any wedding reception in a hall or wedding procession would require a police permit. For that matter, three or more persons could not go out of the office to have lunch if this absurd view is applied to its absurd end. You might be surprised that police personnel while testifying in "illegal assembly" cases have said of such a "general rule" and agreed to suggestions from the defence counsel that if that was true, then picnicking families would need to apply for police permits! Surely legally that cannot be right.

Further, there is no legal requirement that only opposition political events or possible politically "sensitive" (whatever that means) events are subjected to the requirement of police permit, even though practically, it seems that only these events are obstructed by the police. Again, legally that cannot be right.

Different standards

Does an event on the future and relevance of the National Economic Policy organised by Umno or Universiti Malaya require a police permit? What if the event was organised by the Bar Council, UNDP, MCA Youth or Persatuan Pemilik-pemilik Kedai Kopi Hainan? Should the identity of the organiser make a difference? What about a debate as to whether foreigners are unjustly blamed for the rise of crimes, social problems and illnesses? Or a debate if water management should be privatised? Or a debate whether Akademi Fantasia or Malaysian Idol is better? Should it make a difference if the event was opened to the public, invited guests or members only? How and who should make the decision to apply for the police permit? Why should we allow the police to wield such wide and arbitrary powers?

Even if I were to accept that by the very fact of having an ISA debate it is politically "sensitive" and the police may want to intervene in the event, I am of the view that legally, a police permit is still not required. This is because the requirement for a police permit as per the Police Act is only applicable for an assembly in a "public place" (that is not defined in the Act). I would think that the venue Selangor Chinese Assembly Hall would not fall under "public place," but "other than a public place" after taking into account the private ownership of the venue, that it is an enclosed hall and could not be in an ordinary sense be referred to as a "public place." The term "public place" I submit would ordinarily only cover open spaces like parks, beaches and streets.

A proper and liberal reading of the law states that you and I have the right to assemble peacefully in public, as guaranteed by the Federal Constitution. When it is "other than a public place" like an indoor or privately owed premise, it is not the business of the police as the privacy of the matter and other civil liberties should be upheld unless a clear criminal offence (as opposed to political) has been committed e.g. conspiracy to rob a bank.

The police should only come into the picture in order to regulate any public speech or assembly (or procession) so as no harm is caused to others, namely the public. The harm comes in various guises: national security, public safety, prevention of disorder or crime, protection of health or morals or the protection of the rights and freedoms of others.

Legitimate aim

However very importantly, the harm that it seeks to protect must be a "legitimate aim" that is consistent with the democratic and constitutional principles and values that Malaysia is built upon and professes to practice, and the measures taken by the police in restricting these rights must satisfy the principles of "necessity" and "proportionality".

For example in the case of the ISA debate, if the police imposes the restrictions on basis that the speech/assembly would be a threat to public order or security, the onus is on the police to make the causal link. First, the threat of public order or security must be serious. This implies that the risk is concrete rather than abstract or theoretical and that the disturbance, if it took place, would be grave. Second, there must be a close temporal link between the speech/assembly and the threatened disturbance. Where the risk is of a future disturbance, the requisite link between the speech/assembly and this risk is insufficient to justify a restriction on the freedom of speech/ assembly.

Otherwise, it would not be acceptable for the police to impose any condition into the substance of the speech/ assembly; what more 11 silly conditions as in the ISA debate, that range from not asking questions to bringing firearms and explosive substance (which is an offence at all times) into the event.

This interpretation and principles are international standards of adjudication in international courts and proper legal systems the world over (Putrajaya is excluded on that count) that take civil liberties seriously and will be quick to defend these rights when challenged by the might of the state. The 11 police permit conditions, I submit would not pass all the tests of legitimate aim, necessity and proportionality. No reasonable and bona fide lawyer would hold the contrary view, unless of course the person comes from the police or the attorney general's chambers.

In practising democratic states, a police permit is only relevant as a matter of due course in merely informing the police of an event, and in many cases, the police facilitates the event e.g. the control of traffic if there is a march. Of course certain harmful events should be substantially regulated by the police, and if necessary and by proportional means stop, control or divert the event e.g. the hate marchers of white supremacists or xenophobic. In flourishing democratic countries, the police provides protection to such hate marches or meetings that could quite easily turn violent.

This is what Malaysia has failed to comprehend state protection of illiberal views and/or minority views, is one of the key ideas of democracy. The biggest lie and misunderstanding of democracy is that only the views of the majority count, and that the people should only participate in the democratic processes through the elections, and nothing else. The lie goes on that anything else that is given in between elections are luxuries and privileges that should not be abused and things that we should be grateful for.

It's a bad law

The police have always acted undemocratically, unjustly and in bad faith when considering whether to grant permit for the opposition and civil society. I for one refuse to play along. Whilst I am not saying that the Police Act is not law, I am saying that it is bad law that does not possess the moral force to demand our obedience. To put it another way, the question of legality of a piece of law is separate from the obedience owed to it, and when it comes to such odious laws as the Police Act, I know where I stand. I end for your contemplation, the seminal writings of positivist legal philosopher HLA Hart in The Concept of Law (1961) who said:

"What surely is most needed in order to make men clear sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience, and that, however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to a moral scrutiny. This sense, that there is something outside the official system, by reference to which in the last resort the individual must solve his problems of obedience, [is surely more likely to be kept alive among those who are accustomed to think that rules of law may be iniquitous, than among who think that nothing iniquitous can anywhere have the status of law.]"

I suggest that it is time that we concentrate on the issues as to why odious laws that betray our freedoms continue to exist, why they continue to be obeyed, why they are not challenged by groups that one would expect to be more aware of their rights and obligations, and why the public would be "fearful" (whether real or exaggerated, as frequently commented) to come to a debate on the ISA or any other similar events.

Eric Paulsen is a human rights activist and lawyer.