Ambiga: Fundamental right to a peaceful assembly

The Malaysian Bar is of the view that the Police Act requiring people to have permits for a gathering is ultra vires (beyond the powers) and against the Federal Constitution, its president S Ambiga said today.

Testifying before Sessions Court judge SM Komathy Suppiah, Ambiga said the Malaysian Bar feels that any legislation that effectively negates a provision of the Federal Constitution is invalid.

"We believe that to be the case with regards to police permits. That is also the view held by the police commission although they state it is a violation," she responded to questions from counsel M Puravalen.

Ambiga was the 16th witness in the trial of eight people who were charged in an illegal assembly and disobeying police orders to disperse when they marched from the Sogo departmental store in Jalan Tuanku Abdul Rahman to Central Market in Kuala Lumpur to mark International Human Rights Day.

Those who participated in the Dec 9, 2007, rally and were charged with the offence included PKR vice-president R Sivarasa, who is also Petaling Jaya Selatan MP, PKR supreme council member Latheefa Koya, lawyers Amer Hamzah Arshad and N Surendran and activists Eric Paulsen, Johny Andy and Indian national Ashraf Ali Raja.

Ambiga said the council notified the police on Nov 13, 2007, of their proposed activities to mark Human Rights Day which included organising a walk. The walk had been held in the past without any untoward problems.

Bar did not oppose march

She said although there was no permit, the Bar Council did not oppose the march as we believe in the fundamental right to a peaceful assembly.

Explaining her point, Ambiga said it was like Wednesday's gathering in front of veteran lawyer Karpal Singh's office, where police negotiated with the participants.

DPP Raja Rozela Raja Toran, however, objected to Ambiga's above testimony as it was irrelevant and is not part of the issue in the case at hand.

Komathy allowed the objection in disallowing Ambiga to explain further.

Ambiga said the Malaysian Bar decided not to hold the walk for fear the authorities namely the police may use a "heavy hand" against the participants and that it was the responsibility of the council to ensure their safety.

Asked by Puravalen, what she meant by "heavy hand", the witness said it was the use of force and tear gas like in the previous gathering of Hindu Rights Action Force (Hindraf) and the Bersih rally where we feared the police hurting the public.

Earlier during examination-in-chief by Raja Rozela, Ambiga said the Human Rights Day is celebrated annually on Dec 10, and that the walk was cancelled following the police not issuing a permit.

"However, other activities continued and it was held at our Bar Council building instead of Central Market which we proposed earlier."

"The walk was cancelled as prior to our (proposed) walk, there has been two events namely the Bersih and Hindraf gatherings which raised the concern of many people who expressed their concerns in the press. We cancelled it to prevent any members of the public being in harms’ way," said Ambiga.

She said the council issued a statement and it was published in the newspapers.

Warning to marchers to disperse

Ambiga said the Malaysian Bar and members of the Bar decided to cancel the walk after having taken into account all viewpoints.

The president also said she knew several lawyers participated in the march although it had been cancelled and she pointed to Surendran, Latheefa, Amer Hamzah and Sivarasa as among them.

Another witness chief inspector Zakwan Hafiz Ahmad Ansari told the court that on the morning of Dec 9, he was stationed along Jalan Raja Laut and Jalan Tuanku Abdul Rahman and at about 8.10am to 8.20am, he saw between 80 to 100 people marching towards Jalan Raja Laut heading towards the CIMB Bank in Jalan Tun Perak.

"Dang Wangi deputy OCPD superintendent Che Hamzah Che Ismail issued a warning asking them to disperse. I heard an echo of the directives as Che Hamzah was using a hailer.

"However, as they failed to adhere to the warnings by Che Hamzah, the deputy OCPD instructed me to arrest them," he said.

Zakwan, when replying to questions from DPP Mohd Munzil Muhamad said he arrested Amer Hamzah and Surendran and led them to a police vehicle.

He said the arrest was made near the CIMB bank in Jalan Tun Perak.

"The arrests were made after they failed to adhere to three directives issued by Che Hamzah to disperse," Zakwan said.

On cross-examination by Puravalen, Zakwan agreed he arrested the two on orders from Che Hamzah and he did not acted on his own.

Hearing before Komathy continues on March 31.