CLA News / Safeguarding the Right of Peaceful Assembly through Modern Policing by CLA President Steven Thiru

The role of police in facilitating assemblies is paramount. Being the most visible manifestation of government authority, the police demonstrate a state’s commitment to upholding the rule of law and protecting fundamental human rights and freedoms.

~ Human Rights Handbook on Policing Assemblies,
Organization for Security and Co-operation in Europe

A. Assembly as a Cornerstone of Democracy

In every democracy, assemblies represent one of the most tangible and powerful expressions of civic participation, embodying the right of citizens to gather freely in solidarity to express views, press for change, and strengthen public discourse.

The right to freedom of peaceful assembly is not a discretionary benevolence or privilege granted by those in power, but a universal entitlement enshrined in various international human rights instruments, such as Article 20(1) of the Universal Declaration of Human Rights, and Article 21 of the International Covenant on Civil and Political Rights.

Commonwealth instruments also affirm the right of individuals to peaceful assembly as an essential component of democratic participation. Article 16 of the Commonwealth Charter, for example, expressly recognises the freedom of association and peaceful assembly. In the 1991 Harare Declaration, Commonwealth countries pledged their commitment to uphold “the individual’s inalienable right to participate by means of free and democratic political processes in shaping the society in which he or she lives”. The South African Constitutional Court in Doctors for Life International v Speaker of the National Assembly and Others accepted this part of the Declaration to include the freedom of assembly.

B. Principles and Practice: A Troubling Disparity

Protests and assemblies across the globe highlight the uneven treatment by the authorities: where some demonstrations are facilitated, others are stifled — at times with disproportionate force.

In July, citizens of Angola protesting against the rise in fuel prices and elimination of public transport subsidies faced the heavy hand of the state. In Kenya 31 people were killed, over 500 were arrested, and tear gas was used to disperse anti-government protestors on 7 July, known as Saba Saba Day.

Another concerning development has emerged in the United Kingdom. Also in July 2025, the Government proscribed the protest group Palestine Action under its terrorism legislation, criminalising support for the movement and leading to numerous arrests. The ban, widely criticised by human rights organisations as well as the United Nations and the International Bar Association, has raised grave concerns that such measures suppress legitimate political expression and peaceful protest.

In stark contrast, during the Malaysian Bar’s Walk to Safeguard Judicial Independence on 14 July, the police provided traffic assistance and the protest was described as “joyous yet resolute” by our independent observer.

These examples of divergent reactions illustrate the distinction between the rule of law, where rights are upheld consistently irrespective of who speaks or what is said, and rule by law, where rights are tolerated only when politically convenient. Protection of fundamental freedoms cannot hinge on a government’s tolerance for dissent.

C. From Suppression to Facilitation: Principles for Modern Policing

As human rights frameworks have evolved alongside heightened awareness and accountability, the modus operandi of law enforcement agencies must similarly advance. The modern policing of assemblies necessitates approaches that facilitate the right of assembly rather than imposing unnecessary or disproportionate limitations on it.

The use of the term ‘modern’ here is not to inform that the underlying principles for ‘modern’ policing are novel. Rather, it manifests a crucial shift away from entrenched law enforcement practices that fall short of upholding long-standing principles — norms that can be can be traced back to at least 1990, most notably in the United Nations (UN) Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Those principles provide that force must always be avoided, but, if not practicable when dispersing unlawful but non-violent assemblies, the use of force must be restricted to the minimum extent necessary.

More recently, the UN Human Rights Committee, in its General Comment No. 37 (2020) on the right of peaceful assembly (CCPR/C/GC/37), stipulated that States have both negative obligations (to refrain from unwarranted interference) and positive obligations (to promote an enabling environment for peaceful assemblies). States must “put in place a legal and institutional framework within which the right can be exercised effectively”.

A State’s fidelity to both its positive and negative obligations thus finds its most evident expression in the manner in which such assemblies are policed. The Guidebook on Democratic Policing by the Organization for Security and Co-operation in Europe crystallises these standards into the following core principles:

1. Democratic policing: Police must maintain order, protect rights, prevent crime, and serve the public.
2. Upholding the rule of law: Police must act in line with domestic and international standards, demonstrating genuine commitment to the rule of law.
3. Police ethics and human rights: Police must follow a professional code of conduct, act with integrity, and prioritise the protection of life.
4. Police accountability and transparency: Police conduct, operations, appointments, and budgets must remain open to scrutiny by citizens, oversight bodies, and the law.
5. Police organisation and management issues: States must ensure proper structures, supervision, resources, and training to enable policing that upholds law and human rights standards.

These salutary principles should not remain merely aspirational, but be given practical effect through institutional reforms, training, and oversight that re-orient policing away from suppression, towards facilitation.

Another concrete expression of a State’s adherence to its positive and negative obligations in safeguarding the right of peaceful assembly lies in the laws it enacts and amends to protect and facilitate this freedom. This aligns with Paragraph 2 of the Kotte Declaration by the Commonwealth Asia Region Parliamentarians, which commits legislators to advocate for the integration of human rights values into new legislation and to remedy gaps within existing legal frameworks.

D. The Judiciary

It is essential that the judiciary in the Commonwealth ensures that enabling laws are both enacted and interpreted in line with international human rights standards. Recent jurisprudence demonstrates that courts act as a key guardian of this right.

In May 2025, the UK Court of Appeal in R (on the application of the National Council for Civil Liberties v The Secretary of State for the Home Department (Public Law Project and another intervening)) struck down anti‑protest regulations that unlawfully lowered the threshold for police intervention in protests, from “serious disruption” to merely “more than minor” disruption.

In July 2025, Malaysia’s Federal Court in Amir Hariri bin Abd Hadi v Public Prosecutor invalidated Section 9(5) of the Peaceful Assembly Act 2012, ruling that criminalising the failure to notify the police five days before an assembly disproportionately restricts the right of peaceful assembly.

The judiciary, in discharging its role as a guardian of constitutional freedoms, has consistently affirmed that fundamental liberties must be interpreted broadly and generously, while any restrictions imposed on them must be construed strictly and narrowly. In the 1978 case of Maneka Gandhi vs Union of India, the Supreme Court of India emphatically declared that:

It is a salutary thought that the summit court should not interpret constitutional rights enshrined in Part III to choke its life-breath or chill its élan vital by processes of legalism, overruling the enduring values burning in the bosoms of those who won our independence and drew up our founding document.

This approach ensures that the scope of a right is not unduly diminished by interpretations of its limitations that would erode its substance and value.

E. A Democratic Imperative

Article X of the Commonwealth (Latimer House) Principles on the Three Branches of Government calls for governments and parliaments to engage constructively with civil society, and explicitly affirms the need for a “broader opportunity for lawful participation in the democratic process”. The underlying principle clearly supports the tenet that facilitating orderly public gatherings is central — and not merely ancillary — to democratic governance.

F. Conclusion

The right of peaceful assembly is among the clearest barometers of a state’s commitment to democracy and the rule of law. The Commonwealth’s foundational documents — its Charter, the Harare Declaration, and the Latimer House Principles — along with international law, UN guidelines, and comparative jurisprudence underscore the same norm: policing must facilitate, not frustrate, this freedom.

The test of a genuine democracy lies not in how it treats voices of approval, but in how it responds to dissent. Only by policing assemblies with restraint, proportionality, and a facilitative spirit can States lay claim to a true commitment to democratic values and the rule of law.

Steven Thiru

President

Commonwealth Lawyers Association

28 August 2025

Steven Thiru records his appreciation to Jaishanker Sadananda and Chin Oy Sim for their assistance in preparing this article for publication.

Image courtesy of Jahabar Sadiq 2025