Why the Illegal Gathering Should've Been Legal
The illegal gathering, of course, is the BERSIH rally held a couple of weeks ago in Kuala Lumpur. Thanks to the ever-helpful government-controlled media, we all naturally know that this was an illegal assembly.
The question is, why? The original Constitution proposed by the Reid Commission did not allow for significant exceptions to the right of people to peacefully assemble, or to peacefully voice their grievances. Thanks to security concerns at the height of the communist insurgency, the right to peaceful assembly was significantly curtailed in the final approved draft, as it has been ever since.
All gatherings on public property larger than five people are illegal without a permit from the Police. This has not stopped people from organising such gatherings, of course. Even people associated with the ruling party, such as the present Prime Minister's son-in-law and Deputy Barisan Nasional Youth Chief, Khairy Jamaluddin, have not bothered with getting a permit to go about their shenanigans.
In fact, a lot of us have probably violated the law at some point or another. The fact is, as someone I know wryly commented about the equivalent law in Singapore, a family of six picnicking in a park is probably illegal. The law, written as it is, denies the people of Malaysia a fundamental right — the right to peacefully assemble in pursuit of happiness, whatever that assembly may be for.
The present administration, like its predecessors, has made a lot of noise about how such demonstrations are unhealthy, and liable to end in violence. The spectre of May 13 is ever-present, as the horribly silly video montage in this Malaysian taxpayer-funded piece of propaganda illustrates:
Of course, the evidence indicates that most demonstrations are peaceful; prior to 13 May 1969, the vast majority of public gatherings in Malaysia ended peacefully and without injury to anyone. The much-vaunted protests against the Malayan Union, praised in the official history texts, certainly did not result in violence (contrary to the "demonstrations always end in violence" rhetoric we have been hearing).
One can always make the argument that we should not allow people to gather on public property, lest they interfere with others' rights to use that property. Those inconvenienced by the traffic jams on 10 November were probably of this persuasion.
The trouble with this line of thinking is that it assumes that the majority is always right — that if a majority of taxpayers would rather go to the shopping mall rather than fight for democracy, then we should not allow anyone to fight for democracy if it means peacefully assembling in the streets.
While this is democracy in the crudest sense, it is not in keeping with the ultimate spirit of democracy. A tyranny of the majority cannot remain a democracy, for democracy is about the minority's right to persuade the majority to think differently. Democracy is predicated upon an open exchange of views, which cannot occur if the majority has the right to dictate what people may hear. Refusing people the right to do this on public property — if that is not undemocratic and tyrannical, I do not know what is.
People of course should not inconvenience others; publicly-owned property is obviously meant for the use of the public in general, and not a select few to harp on their own idee fixe at the expense of the majority. But we have adequate torts to deal with this problem; people who are nuisances and enjoy holding frequent protests at the cost of public order can be sued accordingly. There is no need to criminalise the right to express oneself on public property.
That rallies such as the one held on 10 November continue to be illegal speaks volumes about the state of Malaysian democracy. If we want to be a true democracy, let us restore public property to its true owners: the public. Let us, the Malaysian public, use the roads and parks we pay for as we wish to use them.