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It is distressing to note that the Kuala Lumpur chief police officer Zulhasnan Najib Baharuddin has warned members of the public that those found participating in the Nov 10 Bersih gathering would be violating Section 27 of the Police Act 1967 for participating in an illegal assembly.

It is however heartening to know that Bersih has issued a point-by-point rebuttal of the police's grounds annexed to their appeal.

However, it is not clear from reports if their appeal included any legal reasoning to strengthen the said appeal, the statutory provisions and arguments of which are enumerated below:

1. On the police's rejection of the application to hold the Bersih assembly and procession on the grounds that "certain groups would take the opportunity to foment trouble" and that the "demonstration will create public disorder":

This matter falls under the section 27 (2) of the Police Act; but it must be read in conjunction with Article 10 of the Federal Constitution and section 141 of the Penal Code:

i) The officer-in-charge pursuant to Article 10 of the Constitution has to approve applications by citizens to assemble peaceably without arms.

ii) However, he may withhold or withdraw the approval, pursuant to section 27(2), if and only if, pursuant to section 141 Penal Code, "the common object of the persons composing that assembly is to overawe by criminal force, or show of criminal force, the Legislative or Executive Government of Malaysia; or to resist the execution of any law, or of any legal process; or to commit any mischief or criminal trespass, or other offence."

iii) As the organisers have given ample assurances to the police as to the order and safety of the assembly, they have therefore provided all reasonable evidence for the KL police chief in order for him to be "satisfied that the assembly, meeting or procession is not likely to be prejudicial to the interest of the security or to excite a disturbance of the peace" [section 27(2)], therefore this ground for rejecting permit put forth by the police is without legal basis.

In light of the above, it is submitted that disapproving the issuance of a permit would be ultra vires Article 10 of the Constitution and derogating from section 27 (2) of the Police Act and section 141 of the Penal Code.

2. On the grounds that Bersih is an unregistered body, and therefore contravening section 27(2D):

i) Bersih comprises members from the political parties (PKR, DAP and PAS), as well as representatives from the following NGOs - Suara Rakyat Malaysia (Suaram), Women's Development Collective (WDC) and Writers Alliance for Media Independence (Wami) - all registered bodies pursuant of section 4-8 of the Societies Act 1966 (revised 1987).

Therefore, it is submitted that, if the appeal submitted by PKR, one of the registered bodies who are also members of Bersih, is rejected by the commissioner of police, he would be acting ultra vires Article 10 of the Constitution and further cannot invoke section 27(2D) of the Police Act.

3. On the grounds that the assembly will cause inconvenience to road users:

i) According to section 21(1) of the Police Act; "It shall be the duty of police officers -

a) to regulate, control and divert any traffic;

b) to keep order on public roads, streets, thoroughfares to which the public have access; and

c) to prevent obstruction on the occasions of assemblies and processions on public roads and streets, and in any case, when any road, street, thoroughfare may be thronged or liable to be obstructed."

Therefore, it is submitted that, the police, in stating the above grounds for rejection of application, are in derogation of section 21(1) (a-c).

Conclusion: If the appeal on the application to hold a peaceful assembly is rejected, the aggrieved party can and should file a writ of certioriari seeking judicial review by the High Court.

This would be a 'test case' and should the court find in favour of Bersih, it would thereby set a new precedent on the right to peaceful assembly and thus pave the way for future peaceful assemblies to be held without interference from the executive or its authorities.

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