1.0 INTRODUCTION
Lately
in Malaysia, we frequently heard about demonstrations made by citizens which most of it, are made when people
feel their certain rights have been deprived. They will gather in certain
places, and in a large number of people to express their thoughts about certain
matters. It must be noted that in most democracy countries, having an assembly or
protest demonstrations is common since the power of government are in the hands
of citizens. Patricia Hewitt stated that the characterisation of
demonstrations and other forms of public protest becomes a threat to normal
community living obscures the basic fact that protest is part of normal
community life and serves a vital function in a democratic system of government[1].
Here
it can be seen that the right to assemble peaceably is a fundamental right and
it is linked to other rights such as freedom of speech and freedom of religion.
This right is called ‘freedom of assembly’ which is a vital right for citizens
to gather in a peaceful manner and express their rights. This kind of freedom
also have been recognized at the international level and provided under Article 20(1) of the Universal Declaration
of Human Rights (UDHR) and Article
21 of the International Covenant on Civil and Political Rights (ICCPR).
This is in the sense that generally people agreed of having freedom in assembly
are prevalent among citizens and it became the reason for Malaysian to use
their rights of assembly to gather in certain places to express their rights in
certain matters. This kind of rights has been ensured in Article 10(b) of Federal Constitution
of Malaysia for citizens to
assemble peaceably without arms and it is among fundamental rights given to
each citizen which is should not be infringed by anyone even the government
itself.
However, even the aim of such congregate is to retrieve the own rights, sometimes
it may results to chaos, financial loss, and in serious cases, may inflict
injuries to the innocence, apart from countless other detriment faced by many parties.
In short, it could be a threat to government in exercising their duties and
also to public at large. One must bear in mind that by giving
such absolute rights to citizens, it will then bring pandemonium to the nation
especially when the purpose of the assembly itself is related to sensitive
matters such as religion, race and language. This become the main reason for
parliament to impose certain restrictions to control citizen in exercising
their freedom of assembly based on fourteen constitutionally permissible
grounds which relate to national
security and public order as already stated in Article 10(2), (3) and 149
of Federal Constitutions.
Thus,
it is clear that every citizen has rights to assemble peaceably even though we
are subject to certain restraints given under certain laws. Apart from that, we
must aware that some lawful assembly may become unlawful if some
of the conditions given under certain acts are not being followed. It may also
became unlawful from the start if the intention itself for bad purposes. Before
going through in detail about ‘unlawful assembly’, one must define the meaning
first. ‘Unlawful Assembly’ generally means a meeting of three or more
people likely to cause breach of peace or to endanger the public. It is also a
legal term used to describe a group of people with the mutual intent of
deliberate disturbance of the peace. If the group are about to start the act of
disturbance, it is termed a rout, and if the disturbance is commenced, it is then
termed riot[2]. Meanwhile, according to Lord
Hawkins, unlawful assembly is not only an assembly to do an act, which is
if done, would make turbulence, but it is the meeting of many people which
would endanger the public peace in order to recover their interests[3]. Meanwhile in legal term,
definition of ‘unlawful assembly’ has been stated clearly under Section 141 of Penal Code which
states that an assembly of five or more persons is designated as ‘unlawful
assembly’, if the common object of the persons composing that assembly is;
(a) To restrain by criminal force, or show of criminal
force, the Legislative or Executive Government of Malaysia or any State, or any
public servant in the exercise of the lawful power of such public servant;
(b) To resist the execution of any law, or of any legal
process;
(c) To commit any mischief or criminal trespass, or
other offence;
(d) By means of criminal force, to any person, to take
or obtain possession of any property, or to deprive any person of the enjoyment
of a right of way, or of use of water or other incorporeal right of which he is
in possession or enjoyment, or to enforce any right or supposed right; or
(e) By means of criminal force, or show of criminal
force, to compel any person to do what he is not legally bound to do, or to
omit to do what he is legally entitled to do.
In short,
under Section 141 Penal Code, an assembly would be considered as unlawful when
there are assembly of five or more person and the common object of these
persons themselves are unlawful.
So, in this research, the ‘unlawful
assembly’ will be the main topic and we are going to discuss critically about
how lawful assembly may become unlawful and how the government will handle this
issue. In addition to that, we are also going to define on how the government
will use certain acts to control freedom of assembly in Malaysia. This includes
by using Federal Constitution, Penal Code, Criminal Procedure Code, Police Act
1967, and also Peaceful Assembly Act 2012. These acts especially Peaceful
Assembly Act 2012 has becoming a controversial law and thus, through this
research, we are going to examine completely the laws enacted for ‘unlawful
assembly’ before year 2012 until now. There are also few debates and critics on
some of the laws especially on Peaceful Assembly Act 2012 which we are going to
disclose later. Apart from that, to learn further, we also will go into detail
and make some comparisons for law on freedom of assembly in Malaysia and
another country which is Myanmar that also practicing democracy as in Malaysia
for comparison.
2.0 APPLICATION OF LAW OF UNLAWFUL
ASSEMBLY BEFORE 2012
2.1 FEDERAL CONSTITUTION
Freedom
of assembly is broadly recoqnized as part of the freedom of speech and
expression. It is also an integral part of the right to practise and propogate
one’s religion. Right to
freedom of assembly also has been stated clearly under Article 10(1)(b) of Federal Constitution as part of fundamental
rights given to citizens of Malaysia. Article
10 of Federal Constitution stated that;
(1) Subject to Clauses (2), (3) and (4) –
(a) every citizen has the right to
freedom of speech and expression;
(b) all citizens have the right to
assemble peaceably and without arms;
(c) all citizens have the right to
form associations.
(2) Parliament may by law impose –
(a) on the rights conferred by
paragraph (a) of Clause (1), such restrictions as it deems necessary or
expedient in the interest of the security of the Federation or any part
thereof, friendly relations with other countries, public order or morality and
restrictions designed to protect the privileges of Parliament or of any
Legislative Assembly or to provide against contempt of court, defamation, or
incitement to any offence;
(b) on the right conferred by paragraph
(b) of Clause (1), such restrictions as it deems necessary or expedient in the
interest of the security of the Federation or any part thereof, or public
order;
(c) on the right conferred by
paragraph (c) of Clause (1), such restrictions as it deems necessary or
expedient in the interest of the security of the Federation or any part
thereof, public order or morality.
(3) Restrictions on the right to
form associations conferred by paragraph (c) of Clause (1) may also be imposed
by any law relating to labour or education.
(4) In imposing restrictions in the
interest of the security of the Federation or any part thereof or public order
under Clause (2) (a), Parliament may pass law prohibiting the questioning of
any matter, right, status, position, privilege, sovereignty or prerogative
established or protected by the provisions of Part III, article 152, 153 or 181
otherwise than in relation to the implementation thereof as may be specified in
such law.
According to the said
provision, the right to exercise freedom of speech and expression, assembly and
association are only available to citizens. Thus, non-citizens in Malaysia
could be said to be denied of this fundamental rights. In Article
10(1)(b), the Federal Constitution provides that all citizens have the right to
assemble peaceably and without arms and there is no mention about processions
and pickets. Presumably, these freedoms are included in the constitutional
right of assembly because a procession is an assembly in motion. The assertion
of the right to assembly however, goes hand in hand with the realisation that
as well as powers have to be surrounded by restraints, rights also must be
qualified by some restrictions. This is under the principle that human beings
are not always right in the use of their rights.
Thus, it must be noted
that although the article gives freedom to the citizen in assembly, but it also
provides some other limitations as stipulated in clause (2) where the
parliament may impose law in order to give restriction as it deems necessary or
expedient in the interest of the security of the Federation or any part
thereof, friendly relations with other countries, public order or morality and
restriction designed to protect the privileges of parliament or of any
legislative assembly or to provide against contempt of court, defamation or
incitement of any offence. So, it clearly shows that this article not merely
contains the right of the citizen but more on the obligation of the citizen
since there are many limitation provided. For instance, a person cannot
assemble in a large group for any purpose, anytime and anywhere that he wants
because his right to assembly is subject to clause (2). This can be seen in the
case of Cheah Beng Poh v Public Prosecutor[4]. In
this case, 42 lawyers were charged for taking part in unlawful assembly. The
High Court held that in public meetings or processions, even they are
spontaneous, it still would be considered as unlawful since there was no police
permit given. It was strongly alleged by the accused persons that their
arrestment was unlawful because it inconsistent with Federal Constitution as a
supreme law of the land giving rights to assemble peaceably. However, for
public security purpose, the acts of police under Section 27 of Police Act 1967
are not considered as inconsistent. Article 10(2)(b) clearly stated
that, in order to preserve peace, the Federal Constitution permits Parliament
to impose restrictions on freedom of assembly on grounds of security and public
order even it violated certain individual rights as stated under Article 149 of Federal Constitution.
This provision gave permission to the parliament to deny any fundamental rights
stated under Article 5, 9, 10 or 13 to make or allow any laws against
subversion and any act considered as prejudicial to public order such as
Internal Security Act 1960. So, whether the resulting law is actually necessary
or not is a question that is unreviewable in the courts. It is notable that the
power to restrict fundamental rights vests in the federal Parliament, not the
State legislatures[5].
However, this seems
contrary to the draft of constitution contained in Reid Commission Report where
it put the duty on courts to protect fundamental liberties provision by taking
a critical view of the law restricting fundamental liberties and not just to
put into effect any law passed by parliament. This can be seen in the case of Nik
Noorhafizi bin Nik Ibrahim & Ors v Public Prosecutor[6]. The main issue in this case
is whether Section 27 of Police Act 1967 inconsistent with Article 10 of
Federal Constitution. Here, the appellants were found in an assembly in a
public place in respect of which a police licence had not been issued
under Section 27(2) of the Police Act 1967. After a
full trial before the magistrate they were convicted under Section 27(5)
of the Act and sentenced to a fine of RM3,900 each. The appellants paid the
fines and appealed to the High Court to set aside their convictions and
sentence on the grounds that the law used to prosecute them was
unconstitutional. It was the appellants argument that both Section 27(2) and
(5) of the Act contravened art 10(1)(b) of the Federal Constitution, which
guaranteed the primary right of freedom to assemble.
The
High Court then held that Section 27(5) of the Act read together with Section
27(2) of the Act did not contravene the Constitution and that provision of the
Act was valid and constitutional. It is clear that even though citizens have
right to assemble peaceably, but they are still subject to the Article 10(2),
(4) and also Article 149 of the Federal Constitution which give parliament power
to enact law for security and public order. Thus, render the Section 27 of
Police Act 1967 as constitutional and valid.
So, one must bear in mind
that notion of this ‘freedom’ is actually not a question of right but rather of
privilege in nature. For instance, from Article 10(2)(b), 149 and 150, these
provisions may set aside the
constitutional safeguard for freedom of assembly. That is why many laws
relating to ‘unlawful assembly’ has been amended like under Section 141 and 149
of the Penal Code, Section 83 and 84 of Criminal Procedure Code, Section 27 of
Police Act 1967, and lately, new act just has been amended by parliament and
become controversial recently which is Peaceful Assembly Act 2012.
2.2 PENAL CODE
The Penal Code[7]
covers the crime of unlawful assembly in chapter VIII for the offences against
the public tranquility. Section 141 of
the Penal Code[8] defined an unlawful assembly as an
assembly of five or more person with a common objective which includes:-
(a) To overawe by criminal
force, or show of criminal force, the legislative or executive government of
Malaysia or any state, or any public servant in the exercise of the lawful
power of such public servant ;
(b) To resist the
execution of any law, or of any legal process;
(c) To commit any mischief
or criminal trespass, or other offence;
(d) By means of criminal
force, or to show of criminal force, to any person, to take or obtain
possession of any property, or to deprive any person of the enjoyment of a of
way, or of use of water or other incorporeal right of which he is in possession
or enjoyment, or to enforce any right or supposed right; or
(e) By means of criminal
force, or show of criminal force, to compel any person to do what he is not
legally bound to do, or to omit to do what he is legally entitled to do.
The above provision stated that an assembly
which was not unlawful when it assembled can subsequently be unlawful. This
means, an assembly may be lawful at the beginning of the assembling but may
become unlawful because of the people assembled had committed any act which
defined in the above section. The member of a lawful assembly who knows that
the assembly had become unlawful but intentionally still continuing assembling
will be regarded as a member of an unlawful assembly as according to Section 142 of the Penal Code. In
addition, the punishment for member of unlawful assembly is stipulated under Section 143 of the Penal Code which
includes imprisonment up to six months or fine or both.
In the case of Fam Meng Siong & Anor v Public
Prosecutor (2012) 5 MLJ 464[9], the appellants with two other accused has
been charged under Section 149 of the Penal Code which read together with
Section 302 of the same act. The gathering for purposes as stated under Section
141 of the Penal Code made the assembly unlawful. Therefore, all members of the
unlawful assembly were convicted for murder. They were charged for
participating the unlawful assembly with the common object of causing the death
of the deceased and also being members of the unlawful assembly with the
knowledge that the said offence would be likely to be committed in the
prosecution of that common object.
One must bear in mind that whoever who is said
to have the knowledge or intention to participate in an unlawful assembly will
regarded as the members of that unlawful assembly as provided in Section 142 of
the Penal Code. This can be seen in the case of Public Prosecutor v Muhamad bin Atan & Others[10] that the liability under Section 149 of the code is such that a
person may be held vicariously liable for acts of others. The vicarious
liability of the members of the unlawful
assembly will extend only if the acts were done in pursuance of the
common object of the unlawful
assembly, and such offences as the members of the unlawful assembly knew to be
likely to be committed in prosecution of that object.
In addition, in order to assemble in a lawful
manner, there shall be no weapon during the assembly. Possession of weapons or
missiles at unlawful assembly which if liable, ones will be punish with
imprisonment for a term which may extended to two years, or fine, or with both
punishments[11]. In
the case of Periasamy & Anor v Public Prosecutor[12],
the appellant had joined a riot and used a weapon which later on leads to a
murder. He then was liable under Section
144 of the code for possessing a weapon in an unlawful assembly which would
be likely to cause death in a riot.
Section
149 of Penal Code stated that if an
offence is committed by any member of an unlawful assembly in prosecution of the
common object of the assembly, or such as the members of the assembly knew to
be likely to be committed in prosecution of that object, every person who, at
the time of the committing of that offence, is a member of the same assembly
would be guilty of that offence. In short, the members who would likely to have
the common objective during the assembly would be jointly liable for the
offence committed. In the case of Mohd Haikal bin Mohd Khatib Saddaly &
Ors v Public Prosecutor[13], appellants killed a member in their school during a fight. The deceased
was not even retaliating. It was not sure who gave the fatal blow to the
deceased. The court then held that it was a joint liability as stated under
Section 149 of the Penal Code because they had common object of causing
grievous hurt that would likely lead to death.
Next, according to Section 151 of the Penal Code, a person may be punished with
imprisonment up to six months or fine or with both punishments if he knowingly
joining or continue to assemble after it has been commanded to disperse.
In conclusion, this act provided the
definition or the way for a person to be convicted for an offence of unlawful
assembly. Generally, if there is a gathering of five or more person with common
objective which laid down in Section 141 of the Penal Code, they will be liable
for an offence of unlawful assembly.
2.3 CRIMINAL PROCEDURE
CODE
This code[14]
describes about the procedure in an unlawful assembly in chapter VIII. It gives
a power to the magistrate, gazette police officer not below the rank of
Inspector or officer in charge of a police station to disperse an unlawful
assembly and it is the duty of the assembly member to disperse accordingly as
stipulated under Section 83 of Criminal Procedure Code.
Next, Section
84 of the Criminal Procedure Code provided that if members of unlawful
assembly resist to disperse accordingly to the command of person in power to
give command to disperse, the armed force may do all things necessary to
disperse the assembly. The procedure to disperse the unlawful assembly may
extend to cause harm, death or damage to property if necessary and the armed
force would be immune in this matter from criminal or civil proceedings. There also
will be no prosecution as provided in
Section 88 of the Act 593 against any Magistrate, police officer or member
of the armed forces for any act purporting to be done under this Chapter shall
be instituted in any Court except with the sanction in writing of the Public
Prosecutor personally or, in Sabah or Sarawak, of the Director of Public
Prosecutions.
In the case of Siva Segara v Public Prosecutor[15], a
group of lawyers has been held guilty for participating in an unlawful assembly
even after the commission for the rally to be dispersed has been given. They
were found guilty under Section 84 of the Act 593 for disobeying a command to
disperse by the authority which was made under Section 83 of the Criminal
Procedure Code. The act was aiming to avoid public riot and to keep peace.
Federal Court in this case held that the underlying object of all these
provisions which is the Penal Code, the Criminal Procedure Code and also the
Police Act clearly was to uphold public order and to protect the public
generally against lawlessness and disorder.
In conclusion, this code described on the
procedure which will be taken when there is an unlawful assembly and the
consequences if the members of unlawful assembly did not disperse accordingly.
The procedure involves the authority such as the magistrate and the police
officer to command to disperse the unlawful assembly.
2.4 POLICE ACT 1967
The Police Act 1967[16]
is an act of parliament that governing constitution, control, employment,
recruitment, funds, discipline, duties, and powers of the Royal Police of Malaysia including Royal Malaysia Police Reserve
and the Royal Malaysia Police Cadet Corps. A police with the authority
prescribed in this act has the power in dispersing or to detent the member of
an unlawful assembly.
Section
27(1) of Act 344 prescribed the
authority or the power to regulate an assembly to the police officer in charge
of police district. According to this section, any officer in charge of a
Police District or any police officer duly authorized in writing by him may
direct, in such manner that he thinks fit, the conduct in public places in such
Police District of all assemblies, meetings and processions, whether of persons
or vehicles and may prescribe the route by, and the time at, which such
assemblies or meetings may be held or such procession may pass.
Next, the police have the power to issue a
license for an assembly according to Section
27(2) of the Police Act 1967. It is prescribed in this section that;
“Any
person intending to convene or collect any assembly or meeting or to form a
procession in any public place aforesaid, shall before convening, collecting or
forming such assembly, meeting or procession make to the Officer-in-Charge of
the Police District in which such assembly, meeting or procession is to be held
an application for a license in that behalf, and if such police officer is
satisfied that the assembly, meeting or procession is not likely to be
prejudicial to the interest of the security of Malaysia or any part thereof or
to excite a disturbance of the peace, he shall issue a license in such form as
may be prescribed specifying the name of the licensee and defining the
conditions upon which such assembly, meeting or procession is permitted: Provided
that such police officer may at any time on any ground for which the issue of a
license under this subsection may be refused, cancel such license.”
This section also prescribed the regulation in
applying a license for an assembly. For instance, in Section 27(2A) of the Police Act 1967 stated that a license to make
an assembly shall be made by an organization or jointly by three individuals. Meanwhile
Section 27(2B) further stated that,
where an application is made jointly by three individuals, the police officer can
refuse the application if he is satisfied that the assembly, meeting or
procession for which a license is applied is in actual fact intended to be
convened, collected or formed by an organization. The police must also specify
in the license, the name of those jointly three persons as licensees as
prescribed in Section 27(2C) of the
act. An organization which is not registered or recognized by any law of the
Malaysia shall not get any license under this act according to Section 27(2D) of the Police Act.
Apart from that, Section 27(5) of the Police Act described how an assembly becomes
unlawful and the members of that assembly are liable for an offence for the
reason no license was issued for that assembly and the assembly does not obey
any order given under the provision of subsection (1). This is prescribed in Section 27(5) (a) and (b) of the said act. Subsection
5A, 5B and 5C prescribed about the defense against the unlawful assembly
and the parties which will be vicariously liable of the offence under this
section. According to Section 27 (5A) of the Police act 1967;
“In any
prosecution for an offence under subsection (5) of attending, being found at or
taking part in an assembly, meeting or procession which is an unlawful
assembly, it shall not be a defense that the person charged did not know that
the assembly, meeting or procession was an unlawful assembly or did not know of
the facts or circumstances which made the assembly, meeting or procession an
unlawful assembly”
The above provision is in the meaning that not
knowing the assembly was unlawful or has been unlawful would not be an excuse
or defense. However, Section 27 (5B) stated
that any person who was being found in an unlawful assembly and claiming
himself to be a spectator or does not has intention to join the assembly, must
prove that he had no intention to join the said assembly as defense.
In other hand, Section 27(6) of the Police Act gives the power to the police
officer to arrest without warrant any member of an unlawful assembly. According to Section 27 (7) of the act, any person aggrieved by the refusal of
the Officer-in-Charge of a Police District to issue a license under subsection
(2) may within forty-eight hours of such refusal appeal in writing to the Commissioner
or Chief Police Officer, and the decision of the said Commissioner or Chief
Police Officer thereon shall be final. Lastly, under Section 27(8) stated that any person who is guilty of an offence
under this Police Act 1967 shall be liable on conviction to a fine of not less
than two thousand ringgit and not more than ten thousand ringgit and also with imprisonment
for a term not exceeding one year.
The case closely related to this provision is
the case of Murugan A/L Muniandy V Public Prosecutor[17].
The appellant was charged with an offence under Section 27(5)(a) of the Police Act 1967 for being in an unlawful
assembly in a public place for which no license had been issued. An application
for a license had been made to hold an assembly in front of the British High
Commission. The police in charge had refused the issue of such license.
Nevertheless, a group of about 600 Indians had and headed towards the British
High Commission. The group had failed to disperse despite warnings from the
police.
The appellant's defense was that he was
present at the assembly in innocent circumstances. However, the appellant was
found guilty and was convicted. He was sentenced to 14 days imprisonment with
effect from the date of sentence and a fine of RM2000, in default to 30 days
imprisonment. The appellant appealed against his conviction and sentence, inter
alia, on the ground that the prosecution did not call the investigating officer
('IO') as a witness. It was submitted that the IO's presence was necessary to
explain the investigations that were carried out by him to prove the charge
against the appellant. The appellant also claimed that the learned trial judge
had failed to consider the appellant's plea in mitigation that he was a first
offender with no previous conviction record. The court dismisses the appeal.
For an offence under Section 27(5) of the Act, the prosecution would have to
prove that there was an unlawful assembly and the appellant was found in the
unlawful assembly.
The prosecution had adduced evidence that no
license was issued to the applicant, for holding an assembly in front of the
British High Commission. The decision not to issue the license was duly
informed to the applicant. The prosecution had established that the HINDRAF
assembly on 25 November 2007 was an illegal assembly and also that the
information about the proposed assembly or rally not having been issued with a
license had been duly disseminated to the public at large. There are evidences
produced to clearly establish the presence of the appellant at the unlawful
assembly. Taking into account the nature of the charge against the appellant
and the nature of the evidence adduced by the prosecution in this case, in the
circumstances of this case, the failure to call the IO was not fatal to the
prosecution case.
Apart from that, the Police Act 1967 also allows
the police force to regulate public meetings and processions in public places,
allows an area to be declared a ‘proclaimed area’ and gives the executive
powers to disperse assemblies therein[18].
Despite the clear provision in the Federal Constitution to enjoy freedom of
assembly, the Police Act 1967 circumvents this right and confers wide
discretionary powers to the police to regulate assemblies, meetings and
processions in public and private places.
The Police Act requires a permit to be
obtained from the police for any public assemblies, meetings and processions,
and further requires that these gatherings are not likely to be ‘prejudicial to
the interest of the security of Malaysia or any part thereof to excite a
disturbance of the peace’. The application for the permit can be refused, but
if a license is issued, it can be imposed with conditions or cancelled by the
police at any time. Without such a license, or upon breach of the conditions
attached to the license, the police can stop the assembly, meeting or
procession and order its dispersal. Under Section 27(2) of the Police Act 1967,
all assemblies, meetings and processions of more than three persons in any
public place require a prior police license from the officer in charge of a
police district (‘OCPD’). The license must be applied for by a registered
organization or by three organizers jointly. An application must be made 14
days in advance. The licensee must assume responsibility for the entire conduct
of the rally and its component members.
According to Section 27(5) of the Act, if
three or more participants of an assembly or procession disobey any police
order, the entire assembly shall be deemed to be an unlawful assembly and all
persons taking part knowingly in the assembly shall be guilty of a criminal
offence. It would appear that one of the biggest obstacles to Malaysians in
being able to enjoy their right to freedom of assembly is that the provisions
under the ‘catch-all’ Section 27 of the act are subject to interpretation and
manipulation.
In conclusion, the Police Act 1967 gives vast
power to the police in terms of permitting or not to permit an assembly to be
held lawfully and to give restrictions to the assembly, should it be permitted.
Apart from that, it also gives the power to the police to arrest without
warrant a member of an unlawful assembly. Perhaps, these powers conferred to
the police force had aroused some objections from the member of the society,
which therefore leads to the making of new law to regulate this issue.
3.0 APPLICATION OF LAW OF UNLAWFUL ASSEMBLY
AFTER 2012
3.1 PEACEFUL ASSEMBLY ACT 2012
The Peaceful Assembly Act was enacted to provide a guideline to the
people in organizing or attending an assembly.
This is important because there should be a fine line drawn so that the
people will know what is wrong from right in being a part of an assembly. Furthermore,
it functions to fulfill the right and needs of the public in general. According
to Section 2 of the Peaceful Assembly
Act (PAA), the act was made to provide the people with a legal channel to
organize and participate in such assembly that is hold in a harmonious manner,
of course, without involving any armaments. This is one of the precautionary
measures taken in order to safeguard the safety of the public, in case if the
event goes out of hand. The interpretation section in the PAA explained the
word ‘arms’ as any kind of weapon, substance or object that by its nature, can
be used to cause fear injury to persons, or damage to property. Section 2 of
the act further stated that such assembly shall be subjected to certain
restrictions.
The Prime Minister, in reviewing this act, stated that it is only right
to introduce a less-stringent law in repealing the previous act (Police Act)
which governs the issues faced regarding assemblies. This kind of bill is a
more people-friendly law because it allows the expressions of people’s mind via
public assembly in a regulated manner. The construction of the act marks the
starting of a more accepting approach by the government towards public
assembly.[19]
The Public Assembly Act, as it is a novice to the previous act that
deals with illegal assembly which is the police act, can be said as a better
version the Police Act. Some of the contents of the Act, which goes in the
opposite way to the people’s preference, had been modified especially in terms
the procedure. The former Prime Minister, Tun Mahathir Mohammad, in commenting
on the construction of this act, said that it is a good way to give the people
their right without gambling the safety of the civilians.[20]
Apart from that, this currently prevalent act had mitigated the power
given to the police when dealing with an assembly. The commander of the Federal
Reserved Unit (FRU), Datuk Abdul Hamid Mohd Ali stated that Section 27 of the
Police Act had awarded carte blanche
to the police in giving out permit to hold any assembly. The Peaceful Assembly
Act however had limited the power of police, who will only serve as the
regulator and observer of the event. Nonetheless, the police may take action to
those who go against the law in the assembly by the virtue of the Penal Code
and the Criminal Procedure Code.[21]
Besides, before the establishment of the Peaceful Assembly Act, there
was no specific law regulates on the rules and regulations in organizing and
joining an assembly. Section 27 of the Police Act does not seem to be adequate
in covering all the possibility that may happen in an assembly. Moreover,
looking at the current situation, there were quite a number of assemblies took
place recently and this urge for an act to be enacted, focusing on this matter.
At the first look, this may seems to be nothing but another restriction on the
people’s rights set in lawful manner as it opens for more rooms to handicap the
people’s action during an assembly. But, to be seen at its bright side, such
law also benefits the people when it provides the organizer with a proper
guideline to organize a lawful assembly. Therefore, it can be said that this
new law is aimed to rectify the previous law which is more onerous and at the
same time, it fills up the loopholes in the Police Act.
3.2
CONTENT OF THE PEACEFUL ASSEMBLY ACT 2012
Part
I PRELIMINARY
1.
Short title, commencement and non-application
Section 1 of the Peaceful
Assembly Act discussed on the title, date the law takes effect, and the
situations that rendered the act ineffective. The act, published as the
Peaceful Assembly Act 2012, was commenced on 23 April 2012. This act shall not
be in application should the assembly cover under the Election Offences Act
1954, the Industrial Relations Act 1967 or the Trade Unions Act 1959.
2.
Objects
This
section explains on the objective of the construction of the act. Basically,
this act touched on the right of people to organize or to join an assembly,
which to be held in a safe manner. This right is subjected to some limitations
to ensure the security of the Federation and to protect the public interest.
3. Interpretation
The section shall be referred in
explaining the various terminologies used in the act in order to avoid misinterpretation
of the act, except when it mentions otherwise.
Part II RIGHT TO ASSEMBLE PEACEABLY AND WITHOUT ARMS
4. Right to organize assembly or participate in
assembly
This section contains four
subsections. Here, it stated that an assembly, held without arms shall not be
organized or participated by a non-citizen, within the area of prohibited
place, street protest, not organized by a person below twenty-one years old and
not participated by a child. If such restrictions are not followed, the person
is said to be committing an offence and therefore is liable for a fine up to
ten thousand ringgit. Any person who brings or allowed children to join such
illegal assembly can be convicted and thus, liable to be fine up to twenty
thousand ringgit.
5. Right of person who has interests
This provision stated that the
person in-charge should be informed on the details of the assembly, as
accordance to the manner explained in section 12, for him to put the assembly
into consideration.
Part III RESPONSIBILITIES OF ORGANIZERS, PARTICIPANTS
AND POLICE
6. Responsibilities of organizers
This section stated that the
organizers should keep the assembly in parallel with the law and no act or
statement made during the assembly that promote ill-will or may disturb the
public peace. The organizer should make sure that the organization and the
assembly carried out according to the notification given to the person in-
charge and that the assembly is stick to the ruled down restrictions and
conditions. He should appoint some people to be in- charge on the assembly and
he is to make sure that that the assembly will not endanger health or cause
damage to property or the environment. In addition, the organizer is to ensure
that the assembly will not cause any inconvenience to the public and he has to
ensure the cleanliness of the venue where the event take place. Where there are
two or more assemblies will be held simultaneously, the respective organizers
are responsible to make sure that there are no conflict arises between the participants
of the assemblies.
7. Responsibilities of participants
This section mentioned about the
prohibition on the participants from disrupting or preventing any assembly,
behaving offensively towards any person; doing any act or making any statement
which has a tendency to promote feelings of ill-will or doing anything which
will disturb public tranquility, committing any offence at any assembly, and
causing damage to property, and follows the order from the person in charge of
the orderly conduct of the assembly.
8.
Responsibilities of police
This section awarded the police
officers with power to practice any relevant action to make sure that the
assembly is carried out according to the law.
Part IV REQUIREMENTS ON ORGANIZING OF ASSEMBLY
9. Notification
of assembly
This
section deals with the procedures that need to be followed in organizing a
peaceful assembly. The organizer should inform the Officer in Charge of the
Police District in which the assembly is to be held about the assembly ten day
prior the event takes place. However, this is not the deal if the assembly is
to be held in designated place of assembly or other assembly defined in the
Third Schedule. For assembly related to religious or funeral procession, the
organizer may request for assistance to maintain traffic or crowd control.
Those who failed to comply with this section shall be fined up to ten thousand
ringgit.
10. Requirements regarding notification of assembly
This section explains in further
details on the technical procedures in preparing a notification to organize an
assembly, which need to be given to the Officer in Charge of the Police
District.
11. Consent of owner or occupier of place of assembly
This section stated that, except
to the conditions laid out in section 9(2), the organizer should obtain the
consent of the owner or occupier of the place of assembly for it to be used for
the purpose of the assembly.
12. Requirement to inform persons who have interests
This section mentions the duty of
the Officer in Charge of the Police District to inform the persons who have
interest about the assembly in twenty-four hours after he received the
notification. Within forty-eight hours after he received the information on the
assembly, the person who has interest should informs his concerns or objections
to the assembly together with his reasons to the Officer in Charge of the
Police District. The response from the person who has interest will be counted
in making restrictions and conditions under section 15.
13. Meeting with organizer
The Officer in Charge of the
Police District may call the organizer for a meeting to advise the organizer on
the assembly.
14. Response to
notification of assembly
This provision stated that the
Officer in Charge of the Police District should respond to the notification by
the organizer within five days of the notification and inform the organizer of
the restrictions and conditions imposed under section 15. If no respond from
the Officer in Charge of the Police District to the notification, the assembly may
proceed as proposed in the notification.
15.
Restrictions and conditions
This provision stated that the
Officer in Charge of the Police District can impose restrictions and conditions
on an assembly for the purpose of security or public order. Any person who
contravenes any restrictions and conditions under this section commits an
offence and shall be liable to a fine not exceeding ten thousand ringgit.
16. Appeal on restrictions and conditions
This provision stated that if the
organizer did not agreed with the restrictions and conditions imposed, he may
appeal to the minister within forty-eight hours and the minister, upon hearing
the grievance of the organizer should deliver his decision within forty-eight
hours.
17. Simultaneous assemblies
This provision stated that if the
Officer in Charge of a Police District receives notifications that two or more
assemblies to be organized, and the assemblies are proposed to be held at the
same time, date and place, the assemblies may, subject to restrictions and conditions
imposed under section 15, be held simultaneously.
18. Counter assembly
This section the power of Officer
in Charge of the Police District to give an alternative time, date and place
for the counter assembly if it is believed that there will be problems arise
between the participants of the assembly if both assembly is to be held
simultaneously.
19. Presumption as to organizer
This provision defines the
meaning of organizer as any person who initiates, leads, promotes, sponsors,
holds or supervises the assembly, or invites or recruits participants or
speakers for the assembly.
Part V ENFORCEMENT
20. Power of arrest
This provision stated that a
police officer may arrest without warrant, any organizer or participant who
refuses or fails to comply with any restrictions and conditions under section
15. Or bringing arms, or child to an assembly other than an assembly specified
in the Second Schedule. The police officer may take necessary measures to
ensure voluntary compliance by the organizer or participant.
21. Power to disperse assembly
This section lined up the
circumstances in which a police officer may issue an order to disperse .In
order disperse an assembly, the police officer may use all reasonable force.
Any person who fails to comply with the order issued shall be liable to a fine
not exceeding twenty thousand ringgit.
Part VI MISCELLANEOUS
22. Maintenance of register
The provision stated that the
Officer in Charge of a Police District shall maintain a register containing the
record of notifications received.
23. Recordings
This provision stated that a
police officer may make any form of recording of an assembly.
24. Media access
This provision stated that any
media representative is given the access to the place of assembly and uses any
equipment to report on the assembly.
25. Designated place of assembly
This provision stated that The
Minister may designate any place to be a designated place of assembly. Any
person who organizes or participates in an assembly held at a designated place of
assembly shall have the same responsibilities as an organizer and a participant
under sections 6 and 7.
26. Power to amend Schedules
This provision stated that the
Minister may, by order published in the Gazette, amend the Schedules.
27. Regulations
This provision stated that the
Minister may make regulations for the better carrying out of the provisions of
this Act.
FIRST SCHEDULE
[Section 3]
PROHIBITED PLACES
Section 3 of the first schedule
in the PAA listed several places that are prohibited to hold an assembly:
o
Dams,
reservoirs and water catchment areas
o
Water
treatment plants
o
Electricity
generating stations
o
Petrol
stations
o
Hospitals
o
Fire
stations
o
Airports
o
Railways
o
Land
public transport terminals
o
Ports,
canals, docks, wharves, piers, bridges and marinas
o
Places
of worship
o
Kindergartens
and schools
SECOND SCHEDULE [Paragraph 4(1)(e)]
ASSEMBLIES IN WHICH A CHILD MAY PARTICIPATE
This section mentioned 4 types of
assemblies that can be joined by children, which are
religious assemblies, funeral processions, assemblies related to custom and
assemblies approved by the Minister.
THIRD SCHEDULE [Paragraph 9(2)(b)]
ASSEMBLIES FOR WHICH NOTIFICATION IS NOT REQUIRED
This section listed out several
occasions where the notification is not compulsory.
FOURTH SCHEDULE
[Section 10]
FORM
NOTIFICATION UNDER SUBSECTION 9(1)
The fourth schedule laid out the
sample of notification form for assemblies which are religious assemblies, funeral processions,
wedding receptions, open houses during festivities and a few others.
3.3 HOW THIS ACT FUNCTIONS
In general, this Act states the limitations of the Freedom of
Peaceful Assembly Act empowered by Article 10, of the Constitution which is the
freedom of speech, assembly and association. In the Federal Constitution of
Malaysia, specifically, this article 10(1)(b) in the Federal Constitution
explains about the importance of freedom of assembly. Also, this Article
10(1)(b) provides that all citizens have the right to assemble peaceably and
without arms.[22]
There is no mention about processions and pickets. Presumably, these freedoms
are included in the constitutional right of assembly because a procession is an
assembly in motion. The affirmation of
the right to assembly, however, goes hand in hand with the realisation that
just as powers has to be surrounded by restraints; rights too must be qualified
by restrictions. Human beings are not always right in the use of their rights.
Also, to preserve peace, the Federal Constitution permits Parliament to impose
restrictions on freedom of assembly on the grounds of security and public
order. Whether the resulting law is actually necessary or not is a question
that is unreviewable in the courts. It is noteworthy that the power to restrict
fundamental rights vests with the federal Parliament, not the State
legislatures.[23]
The right to Peaceful Assembly was
effectively further explained by the Peaceful Assembly Act 2012. Basically, the
scope of the Peaceful Assembly Act is about the right to assemble peaceably
without arms, the responsibilities of organisers, participants and police, the
requirements on organizing of assembly, and the enforcement regarding
assemblies. The
Act was drafted four months after the Bersih 2.0 rally and two months after the government announced to
replace Section 27 of the Police Act, meaning that, permits from police to
organise an assembly will be no longer required.[24] The new procedure is that the organisers must notify the
officer in charge of the police district within 10 days before the gathering
date and they will respond to the notification within five days, outlining the
restrictions and conditions imposed. It was discussed in Parliament on 22 November 2011, later
passed by the House of Representatives on 29 November 2011, and approved by the
Senate on 20 December 2011. The
function of this Peaceful Assembly Act 2012[25] is to reaffirm, promote and facilitate the right
of peaceful assembly for all persons.
Moreover, this act is also to ensure that a person may
exercise the right to participate in public assemblies free from unnecessary or
unreasonable conditions, restrictions or hindrance and thirdly is to ensure
that the exercise of the right to participate in public assemblies is subject
only to such restrictions as are necessary and reasonable in a democratic
society in the interests of public safety and to ensure that the right of
persons to participate in public assemblies may be exercised without payment of
a fee, charge or other amount for a licence, permit or other authorisation.
Furthermore, the function of the Peaceful Assembly Act
is about the right to assemble peacefully without arms, and to provide
restrictions deemed necessary or expedient relating to such right in the
interest of the security of the Federation or any part thereof or public order,
including the protection of the rights and freedoms of other persons, and to
provide related matters.[26] The
objectives of this Act are to ensure that all citizens have the right to
organise assemblies or to participate in assemblies peaceably without arms.[27]
This Peaceful Assembly Act provides specifically about the right to assemble
peaceably and without arms by which the organisers and participants of the
assembly must be a citizen of the Federation,[28]
the assembly shall be held not in a prohibited area,[29]
the assembly must not a street protest,[30]
and both organisers and participants must be twenty-one years old and above.[31]
The prohibited places according to the third schedule
under Section 3 of the Peaceful Assembly
Act 2012 are as follows:
- Dams, reservoirs and water catchments
areas.
- Water treatment plants.
- Electricity generating stations.
- Petrol stations.
- Hospitals.
- Fire stations.
- Airports.
- Railways.
- Land public transport terminals.
- Ports, canals, docks, wharves, piers,
bridges and marinas.
- Places of worship.
- Kindergartens and schools.
When it comes to the organizer of the assembly, this
Act provides that whoever wants to organise an assembly, they have to ensure
that the assembly is in compliance with the Peaceful Assembly Act.[32] Other than that, this act also functioned to
control the behaviour of the participants[33].
It is also for the police officer to take measures to make the assembly
accordance with the law.[34]
Apart from that, this Peaceful Assembly Act also
provides the requirements on organising an assembly by which whoever wants to
organise an assembly must notify the officer of the Police District ten days
before the assembly.[35]
Whoever contravened, they will be liable to a fine not more than RM10000.[36]
Then, the officer in charge of the Police District may impose restriction for
the purpose of security and public order and the protections of the rights and
freedom of other persons[37] and
the organiser may appeal the restrictions within forty-eight hours after the
announcement of restrictions to the Minister.[38]
Next, this Act also functioned where the owner of the
place where the assembly will be held must first get consented.[39] According
to this Act, the police office must notify the organiser about the assembly
within 24 hours[40] and
meet the organizer about the procedure of the assembly.[41]
Plus, the approval of the assembly must be informed to the organiser within
five days after the notification.[42]
This Act also said that assembly cannot be held simultaneously[43] and
if the Officer in Charge of a Police District receives notification of counter
assembly that will cause conflict between two organizers; the Officer in Charge
shall set another time or place for the other assembly.[44]This
Peaceful Assembly Act [Act 736] also provides the enforcement by which the
power to arrest by the police without warrant to arrest organisers or
participants.[45]
Also, the police also have the power to disperse the assembly if it is opposing
the law in the Peaceful Assembly Act. [46]
3.4 CRITICISMS ABOUT THE PEACEFUL ASSEMBLY ACT
The Peaceful Assembly Act 2012 (PAA) was passed
despite much criticism. There are so many strong criticisms about the
implementation of the Peaceful Assembly Act 2012 especially from the
opposition, which says that the new law if
passed will crackdown on the right to protest instead of safeguarding it.[47]
For example, the police have the power to immediately stop the assembly if they
think that assembly will bring harm to the nation. The Bar Council and various civil society
leaders have also spoken out against the Act[48] because they will not have
absolute freedom when conducting or participating in an assembly.
Next, there are also criticisms
saying that this Act will deter the freedom of assembly as stated in Article 10
of the Federal Constitution, As what Bersih 2.0 leader Ambiga Sreenevasan have said, "This Bill restricts our rights
as much as possible. It gives unfettered powers to the minister and the police
to further restrict the freedom to assemble. It impinges on free speech. In
short, it will stymie legitimate dissent in our country."[49]
Meaning that, the government limits their freedom of assembly. There are lots
of restrictions provided in organizing or participating in an assembly.
Next, one of the criticism is that this Act[50]
will give absolute powers to the Police and not democratic.[51]
The police can do whatever they want if they are not satisfied with the
assembly especially when an assembly is organized by the opposition. For example,
even the assembly does not bring any harm, and the police still not satisfy
with it, they have absolute power to stop the assembly immediately. Also, the
Democratic Action Party (DAP) leader, Mr. Lim Kit Siang said that the Act is
passed forcibly through the Parliament without public consultation.[52]
Meaning that, the Act was easily passed without consent of people in the
Parliament.
Also, the Bar Council president said that the new Act
is more restrictive compared to Section 27 of the Police Act[53] by
which there are many restrictions that must be followed when organising or
participating in certain assemblies. Furthermore, the
other criticisms about this Peaceful Assembly Act 2012 is that Section 9(5) of the Act was not consistent with the
freedom of assembly as stated under the Federal Constitution because it rundown
certain sections of people access to such rights.[54] As in,
the new Act is not in par with the Federal Constitution. Other criticism is
that Under Section 9(2) of the Peaceful
Assembly Act 2012, it explains about ten days’ notice about the assembly.[55]
There is no need to give a ten day notice if the place is a ‘designated place
of assembly’. But, there is no ‘designated place of assembly’ in Malaysia and
the exceptions under Section 9(2) of this Act regarding the 10 days’ notice are
not practical at all.
Moreover, the other criticism is that Section 9 of the Peaceful Assembly
Act 2012 has failed in protecting the principles of the Federal Constitution as
well as human rights. Otherwise, the present legislation is abused by the
authorities. They do not have an absolute freedom of assembly anymore. Because
of this Act is questioned by many, a review should be done on this section of
the Peaceful Assembly Act.[56] In addition, the freedom of assembly guaranteed
in article 10 of the Federal Constitution has long been severely curtailed by a
statute that was arguably unconstitutional because it all but negated the right
it purported to regulate, as critics such as human rights NGOs Suaram and
Aliran, and the National Human Rights Commission (Suhakam) have repeatedly
pointed out.
Besides, with the existence of the Peaceful
Assembly Act 2012, street protests, marches and rallies are now prohibited,
whereas previously they were permissible. Section
4 of Act 736, which signifies to set out the right to organise and
participate in an assembly is, actually specifies restrictions regarding the
assemblies rather than diminishing the restrictions.[57]
4.0 ANALYSIS OF UNLAWFUL ASSEMBLY
LAW IN MALAYSIA
Malaysia is a democratic country. Despite of so many criticisms lay down
upon us, yet we still claim that we have the privileged, “so-called” freedom
especially in relation to the right of assembly. As we know, freedom
to assemble is an essential feature of a liberal democratic set-up which then
defines a free society. We have discussed earlier throughout this research
paper that in Malaysia, we partially practice this due to law restrictions that
intended to protect public safety. Even though the existence of a law is basically to
maintain the order of society, however in this sense, it also brings flaws to
the society as well. People are afraid to stand up for what they believe
and may have thought of themselves as protesters are not into action to protect
a precious freedom or right that actually theirs. The question is until when
only we can form a matured society then? It means for us to form a society that
open to criticism and welcome for improvement and revolution. Therefore in this
part, we are now going to compare and contrast the practice of Malaysian law on
freedom of assembly with United States and Canada.
First and foremost, looking into the U. S. Constitution, the first
amendment made quoted that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances”. Both the California Constitution and the First Amendment to the
United States Constitution protect people’s right to free expression. There are
three principles to be noted with regards to this law. They are the conduct
must be observed, free speech is for everyone and lastly when, where and how
the assembly will be held.
One’s right is guaranteed on the content of the speech or matter but not
the improper conduct that be done in performing the assembly. Therefore, nobody can restrict a person’s
right simply because others do not like what he says. However, if you organize
a protest that causes serious disruption, the government may be able to
intervene. Besides that, free speech is for everyone; young or old; anarchist
or evangelical; pacifist or hawk; Mormon or Muslim; these rights apply to all.
Next is when, where and how the assembly will be held. If you organize a rally that causes violence
or unnecessary disruption, your event may be disbanded. Same as Malaysian law,
reasonable regulations on time, place, and manner when exercising the rights to
demonstrate and protest must be observed.
Permit Ordinances requires one to check on permit before marching. The
government cannot prohibit marches on public sidewalks or streets, or rallies
in most public parks or plazas. But it can often require a permit to regulate
competing uses of the area and to ensure one respects reasonable time, place
and manner restrictions. In addition, one should not need a permit for
demonstrations that do not “realistically present serious traffic, safety, and
competing-use concerns beyond those presented on a daily basis by ordinary use
of the streets and sidewalks.”[58]
Most permit ordinances require that an application be submitted a few days in
advance, so be sure to give officials sufficient notice. But advance notice
periods should be days, not weeks, and there should be an exception to allow
demonstrations in response to breaking news. On the other hand, in Malaysia,
Section 27(2) of the Police Act 1967 provides that all assemblies, meetings and
processions of more than three persons in any public place require a prior
police license from the officer in charge of a police district (‘OCPD’). The
license must be applied for by a registered organization or by three organizers
jointly. An application must be made 14 days in advance. The licensee must
assume responsibility for the entire conduct of the rally and its component
members. However, the new procedure in accordance with the Peaceful Assembly
Act 2012 [Act 736] is that the organizers must notify the officer in charge of
the police district within 10 days before the gathering date and they will
respond to the notification within five days, outlining the restrictions and
conditions imposed.
Besides that, the First Amendment protects one’s right to express
opinion, even if it is unpopular. Critics on the President, the Congress, or
the chief of police are allowed without fear of retaliation. However, this
right does not extend to libel, slander, obscenity,“true threats,” or speech
that incites imminent violence or law-breaking. Also, the government cannot
stop you from talking generally about ideas or future events. But it may ban
speech that’s “directed to inciting or producing imminent lawless action and is
likely to incite or produce such action.” However, the latest law amendment
dictates that Malaysia’s freedom of expression is increasingly under threat.
The Sedition Act amendment makes it illegal not only to incite religious hatred
but also now allow authorities to ban and block online media deemed to be
seditious in the eyes of the government. On April 3, cartoonist Zulfiki ‘Zunar’
Anwar Uljaqur was charged with nine counts of sedition following his arrest on
February 10 for tweets and cartoons he published following the sodomy case
against Anwar Ibrahim. Zunar is currently in jail, with bail set at 13,500 RM
(USD 6,207) and could face 43 years imprisonment if found guilty. This is the
second time Zunar has been charged under the Sedition Act, after he was charged
in 2010.[59]
Furthermore, one cannot be held responsible for the way that
counter-demonstrators or your own supporters react, as long as your words do
not directly incite violence or law-breaking. This is because according to
their law, it is the responsibility of the police to control the crowd. This
ultimately contradict to Malaysian law as for the purpose of security or public
order, any person who contravenes any restrictions and conditions of police
commits an offence and shall be liable to a fine not exceeding ten thousand
ringgit.[60]
Throughout this research, we manage to identify that there is still
ambiguity and loopholes in the Peaceful Assembly Act. Firstly, we can see that
although its main purpose is to replace Section 27 of the Police Act 1967,
there is not much different in term of application of the law itself. Section
27(2) of the Police Act 1967 provides that the license must be applied for all
assemblies, meetings and processions of more than three persons in any public
place require a from the officer in charge of a police district (‘OCPD’) 14
days in advance. On the other hand, the organisers must notify the officer in
charge of the police district within 10 days before the gathering date
according to the Peaceful Assembly Act 2012. They will respond to the
notification within five days, outlining the restrictions and conditions
imposed. In conclusion, informing the police is crucial before any assembly can
be performed.
Next, the PAA give is not democratic. It supposed to be drafted in
favour of the “rakyat” instead. The powers of police are too vast and thus,
give them absolute powers upon the people. For instance, the Police Act
requires a permit to be obtained from the police for any public assemblies,
meetings and processions, and further requires that these gatherings are not likely
to be ‘prejudicial to the interest of the security of Malaysia or any part
thereof to excite a disturbance of the peace’. The application for the permit
can be refused, but if a license is issued, it can be imposed with conditions
or cancelled by the police at any time.[61] On
the other hand, Section 8 of the Peaceful Assembly Act [Act 736] awarded the
police officers with power to practice any relevant action to make sure that
the assembly is carried out according to the law.
Next, prior to the limitless power given to the police, we are in the
opinion that a free body should be introduced by the government to allow for a
complete administrative review with regards to this matter. By this, there will
be no abuse or overuse of power by authorities towards the people to use their
freedom of assembly to voice out their opinions or dissatisfactions. Thus,
justice and fairness can be attained. Other than that, we are well-informed
that any gathering should not likely to be ‘prejudicial to the interest of the
security of Malaysia or any part thereof to excite a disturbance of the peace’.
Therefore, it is advisable for Minister to make clear guidelines on what
constitutes threaten to the interest of the security of the nation and to what
extend it may apply.
Lastly, our recommendation would be on the definition of unlawful
assembly in the statute. Under Section 141 of Penal Code which states that an
assembly of five or more persons is designated as ‘unlawful assembly’. In our
opinion, the minimum number of people that are allowed for any gathering should
be reviewed as five people is too minute for any unlawful assembly to be
performed as Article 10(1)(b) of the Federal Constitution which provides that
all citizens have the right to assemble peaceably and without arms. This is
because we can say that nothing much can be done by a group of five people in
order for them to threaten the security of the country. Plus, any assembly with
arms is strictly prohibited though. Hence, we presume that the number of people
should be increase to fifteen and above.
5.0 CONCLUSION
In conclusion, people
shall be given certain rights to exercise their right to assemble peaceably
since this right has been stipulated clearly under Article 10(1)(b) of Federal
Constitution. However, this kind of right still must be restricted to certain
provision to ensure public safety like has been stated under Penal Code,
Criminal Procedure Code, Police Act 1967 and also Peaceful Assembly Act 2012.
There also shall be a fine line between power of government in restricting
freedom of assembly and how much right of citizens to assemble shall be given.
This is based in the principle that, people cannot be given absolute right and
at the same time, there shall be no vast powers given to authority in restricting
it.
In this case, right of freedom to assemble
peaceably has been put under certain restriction, however, in our opinion, the
power given to police in handling assembly are too vast. This is in the sense
that, police may act depends on his opinion alone where he thinks fit to
disperse or as long as for public security, people shall not be given such
rights. This can be seen clearly under Anti-GST demonstration that has been held
during 23th of March 2015 at Petaling Jaya. In this protest, people have been
given rights to assemble peaceably to voice their points of view in the new tax
called Goods and Services Tax which being controversial lately. Meaning that,
they are being in a lawful assembly. However, this assembly has been declared
to disperse by police after office hour. People who still refused to leave will
be considered as joining unlawful assembly and at the end, 79 members of
Anti-GST demonstration has been captured for making such offense just because
the police have declared people to disperse after office hour[62]. So,
here, is protest after office hour considered as threat to public? And where are
the people’s right to assemble peaceably in democratic country when power of
police seems too vast? Police has been given rights to give permission to
assembly and also have the right to declare a lawful assembly as unlawful based
on his own thinking for public security purpose. However, this kind of power
may be abused since the police himself might act under arbitrary power not on
their discretionary power based on rule of law. This is why there are still lot
criticizes toward Peaceful Assembly Act 2012 and the power given to police
shall be reviewed.
Apart from that, one
must bear in mind that when permit has been given to citizens to exercise their
right to assemble in lawful manner, this is of course without arms and any
weapons shall not give any harm towards public at large since there also has
been a designated place given to do the assembly. Lot people criticized that in
what sense these people under lawful assembly will give certain harm towards
public to give right to police to declare any lawful assembly as unlawful? This
kind of concern also has been expressed by Malaysian former Prime Minister, Tun
Mahathir Mohamad that worried Malaysia might be a ‘Police Nation’ instead of
democratic country because of the huge power given to police[63].
Thus, power of police
shall also be restricted same as the power of people to assemble peaceably
being restricted and there shall be a good balance between these two to achieve
a standard of true democratic nation. This is in the reason that if such huge
power keeps on being given to police, individual will feel insecure to join any
assembly and to express their right in the future. So, Peaceful Assembly Act
2012 shall be amended and power given to police shall also be reviewed by court
to ensure that police act based on rule of law and people can exercise their
right to freedom of assembly without any fear.
6.0
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