Repeal – not amend – draconian Peaceful Assembly Act 2012

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Kita Lawan rally participants represented a majority of Malaysians - Photograph: Latheefa Koya

Respect the right to peaceful assembly, says Malaysians Against Death Penalty and Torture. The speedy ‘secret’ passing of the Peaceful Assembly (Amendment) Bill 2019 is unacceptable.

Malaysians Against Death Penalty and Torture (Madpet) is shocked to hear that the Peaceful Assembly (Amendment) Bill 2019, which will amend the Peaceful Assembly Act 2012, tabled in Parliament on 1 July 2019, has already been passed (The Star, 5 July 2019).

A perusal of the Parliament website indicates that it was passed on 4 July – but interestingly a perusal of the agenda (Aturan Urusan Mesyuarat) for the day does not state that the bill was to be voted and passed.

This parliamentary session was supposed to end on 18 July. As such, there was no necessity to rush and pass the bill, the contents of which first came to public notice only on 1 July.

Such speedy tabling and passing of new laws was criticised during the Barisan Nasional era as it does not give adequate time for the public to respond, let alone discuss and communicate their position with their respective MPs. The lack of transparency is abhorred.

There would have even been no time or opportunity to organise a peaceful assembly to protest or support the amendment – as the law requires 10 days prior notice before the assembly. Even five days prior notice, as the amended bill apparently now allows, would have been insufficient.

Even when the Peaceful Assembly Act 2012 was tabled under the BN regime, there was enough time for the Malaysian Bar to organise a peaceful assembly involving about 1,000 lawyers and to hand over their protest memo to MPs on 2 November 2011 before the vote. This time there was no such opportunity for any peaceful assembly.

Amendments fail to remove draconian unjust provisions

Madpet is disappointed with the lame proposals contained in the latest bill, which demonstrate that despite the Pakatan Harapan-led government’s promise in its election manifesto “Buku Harapan” (Book of Hope) – that it would remove unjust draconian provisions in this act – it has obviously failed to understand the fundamental principles of the right to peaceful assembly and the provisions in the current law that go contrary to this right.

Article 10(b) of the Federal Constitution provides that “all citizens have the right to assemble peaceably and without arms”.

The right to peaceful assembly must be a right exercisable by any person in Malaysia at any time without any restrictions or prior requirement of “permission” from the government, police or any other person/entity.

The bill to amend the Peaceful Assembly Act sadly only proposes to:

  • reduce the 10 days’ prior notice to the police to now make it seven days;
  • apparently make some of the offences in the act “compoundable” offences – meaning violators would be offered a “compound” – which, if paid would mean that they would no longer be charged and tried in court; and to
  • remove the restriction on ‘street protest’.

Before being passed, apparently the notice period was reduced to five days.

Decriminalising street protests – Good but of little consequence

It is good, but a perusal of all past large peaceful assemblies in recent times in Malaysia would show that hundreds and thousands gathered at meeting points and walked along the streets to assembly points.

The act currently defines street protest to mean an open air assembly which begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes.

It is good to specifically decriminalise ‘street protests’ in the current law. But, ultimately, it is meaningless as “street protests” have in fact been happening all this while in practice.

Power of police/minister to control the exercise of the right to peaceful assembly must be abolished

The police should not have the power to allow or not allow the right to peaceful assembly. They should merely facilitate the exercise of this right – and that includes providing safety to participants and facilitating traffic flow.

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There is no need for a Peaceful Assembly Act that provides for any new offences, as our other existing laws are sufficient.

The Peaceful Assembly Act now has a mandatory requirement to notify the police. The police can then impose conditions or restrictions – which if breached would be a criminal offence. A person who fails to submit notice or beaches any conditions imposed by the police shall now, on conviction, be liable to a fine not exceeding RM10,000.

All that the proposed amendment will do is maybe shorten the notice period. But it does not solve the problem of the police having the power to control the exercise of an indvidual’s to peaceful assembly. Neither does it remove the power of owners or occupiers to deny this right.

The police or government’s powers to set conditions and restrictions on the fundamental right to peaceful assembly is wrong.

Only the law or the courts should be vested with such powers. Certainly not the police or the minister – as the act now provides that anyone unhappy with the conditions or restrictions imposed by the police may appeal to the minister.

Peaceful assembly: A right that must be exercisable fast at times

The police even seem to have the power to waive the application of the mandatory requirement of providing 10 days’ notice prior to the intended peaceful assembly – which happened recently in March in a peaceful assembly apparently proposed by a minister.

It was reported:

The police said today it will allow tomorrow’s Peace, Solidarity Rally in Kuala Lumpur, despite not meeting the 10-day notice requirement. Inspector-General of Police Tan Sri Mohamad Fuzi Harun said organisers can proceed with the “peace rally” at Dataran Merdeka, but only from 7.30am to 11am. Minister in the Prime Minister’s Department Datuk Seri Mujahid Yusof Rawa had proposed for the rally back on Monday, which was too short for the 10-day notice required under the Peaceful Assembly Act 2012 (Malay Mail, 22 March 2019).

No reasonable person would protest against that particular peaceful assembly in response to the mass killings of Muslims at their places of worship in New Zealand. But it highlights the point that peaceful assemblies or protests sometimes need to be held promptly to be effective.

A peaceful assembly in response to human rights violations – eg against the Rohingya in Myanmar, against atrocities committed by Israel against Palestinians or even Parliament’s intention to pass a bill – would need a speedy response.

A law that impedes this right for people to assemble peacefully to voice their protest or support through the imposition of a requirement for prior notice of seven or 10 days clearly violates the right to peaceful assembly and needs to be abolished.

The bill was passed on 4 July by Parliament three days after it was first tabled, and people did not have the time to exercise their right to peaceful assembly, if they wanted to.

Police powers limited to facilitating the right to peaceful assembly

Police may take action against any participant or others that breach the ordinary already existing many laws of the land like maybe causing damage to property or assaulting another person.

When a peaceful assembly takes place, the police still have the power to take action against any individual that breaks the law. But this should never prejudice the right of others to continue to exercise their right to peaceful assembly.

It is not uncommon that perpetrators – against whom the peaceful assembly is being held – may place their agents or even agent provocateurs who may resort even to violence or damage to property simply to undermine the objects of those exercising their right to peaceful assembly.

Such individuals who break laws may be arrested then and there – but the right of other peaceful protesters must not be violated due to the actions of a few trouble-makers.

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The Act now has presumptions over who the organiser is: any person who initiates, leads, promotes, sponsors, holds or supervises the assembly, or invites or recruits participants or speakers for the assembly, shall be deemed to be the organiser of the assembly (Section 19).

This means that even anyone who provides information to another and asks him or her to join could be presumed to be an organiser. This provision need to be repealed.

Age of those entitled to organise, participate in peaceful assemblies

It is ironical that this government wants to reduce the voting age from 21 to 18, but then the right to organise a peaceful assembly is only for those above 21.

Malaysia also forgets that it is a signatory of the Convention on the Rights of the Child.

Article 5 clearly recognises the rights of the child to freedom of association and to freedom of peaceful assembly.

Article 1 states that “a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”.

Hence, a child, whether accompanied by adults or not, should be granted his or her right to participate in peaceful assemblies.

Children have opinions, and they must be granted the right to freedom of speech, and opinion and to participate (and even organise) peaceful assemblies.

The penalising of parents who bring children to peaceful assemblies is wrong. Parents have an obligation to teach children values and principles – and as such bringing them for peaceful assemblies is the parents’ choice. Many parents also do not have domestic workers with whom they can leave their children at home.

As such, this restriction is discriminatory and a violation of the rights of those with children. Note also that many who join a peaceful assembly may have no prior plan but may suddenly decide to join because it is a cause they support.

No right of peaceful assembly to non-citizens

This will include permanent residents and foreign nationals living and working in Malaysia. This is unacceptable as (the right to freedom of peaceful assembly) is a human right and should not be a citizens-only right.

In many countries, when some inter-government meeting is going on like an Asean meeting, it is not uncommon that many will want to participate in a peaceful assembly to express a common stance.

Likewise, in some issues like the massacre of Muslims in New Zealand or what happened to the Rohingya, it makes no sense to bar non-citizens from participating in peaceful assembles.

Migrant workers also may sometimes want to exercise this right to highlight some rights violation. This is a human right which must be accorded to all in Malaysia.

Many other unjust hurdles

This draconian act brought about hurdles to people exercising their right to peaceful assembly.

Organisers

One, was the requirement of the organiser to identify himself or herself. When he or she does so, the organiser is made responsible for all those participating in the peaceful assembly and may be criminally liable for actions not or his or her own.

Then, there is draconian obligation to clean up or to be liable to pay for a cleaning bill. This obviously will deter the exercising of the right to peaceful assembly. No ordinary person, community, the poor or even smaller groups/organisations can afford this risk of such criminal liability, and more importantly the financial obligations.

As such, since the Peaceful Assembly Act 2012, only bigger groups like Bersih 2.0 and political parties have the capacity to organise peaceful assemblies.

In many peaceful assemblies, there may be no organisers. People may gather at a place to protest with others with a common objective. The 1998 Reformasi peaceful assemblies, which happened on several consecutive Saturday afternoons saw thousands participating peacefully along Jalan Tuanku Abdul Rahman ending in Dataran Merdeka, is such an example.

Likewise, the people of Kuantan may want to protest against Lynas or bauxite mining. Or the people of Pasir Gudang may want to come together to protest the ‘chemical poisoning’ but they cannot because the law requires a named organiser – and no one wants to take on that onerous responsibility.

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As such, the need for an organiser to come forward, to submit notification, to get permission from the consent of the owner or occupier of the place of assembly and arrange for security must all be removed. All this impedes the right to peaceful assembly

Consent of the owner or occupier of the place of assembly

There should be no such requirement (for consent from) owners or occupiers of the place of assembly – and others must respect the right of their fellow men and women to exercise their right to peaceful assembly.

Asking owners and occupiers’ consent is also unfair to them as they suddenly have to decide whether to consent or not. Either way, there will be an implications on them directly or indirectly. They would really prefer not to be burdened with this question of consent, and should not be asked.

If freedom of assembly is a right, then even others who are against it should respect the right of those who choose to exercise that right.

Most peaceful assemblies happen not inside private premises, but in public areas which usually comes under the local council or the government. In the past, for example, the Kuala Lumpur City Council (a government-appointed council) did not allow peaceful assemblies in Dataran Merdeka. This was very wrong and a violation of the right to peaceful assembly, which must be allowed in all public areas.

Cleaning bills

This again is absurd, as in all public areas, it is the obligation of the local council (local government) to keep the area clean. It is an offence to litter, and it is all right to catch and penalise litter-bugs – but certainly not right to send organisers of peaceful assembly a hefty cleaning bill.

Designated places of peaceful assembly

If a peaceful assembly is held at a designated place of peaceful assembly, then there is no need to notify the police. As of now, the only such designated place is the Darul Makmur Stadium in Pahang.

The object of a peaceful assembly is usually to highlight a certain issue, wrongdoing or failure – and it is held in a public place where there are many other persons so that more will be educated and convinced to join the cause. As such peaceful assemblies are usually where there are many other people.

The idea of allowing a peaceful assembly in a stadium or some field, far away from the public eye defeats the purpose. That exactly has been the reason why many peaceful assembly have been organised along Jalan Tuanku Abdul Rahman, in front of KLCC and Dataran Merdeka.

If the peaceful assembly is protesting something concerning a company, it may be held in front of that company. If it is about Asean, it will be held where Asean is meeting, If it is concerning something in Parliament, then it will be in front of Parliament. If it is to try and prevent a Malaysian being executed in Singapore, then it will be before the Singapore High Commission.

As such, increasing the number of designated places for peaceful assembly is foolish – for it all depends on the subject matter of the peaceful assembly. Every public area should be a place permissible for peaceful assembly.

Power to compound – the proposed new Section 21A

This will give the power to the police to “compound” offences relating to failure to provide notification (Section 9) or breach of the restrictions and conditions imposed by police (Section 15).

This power will negate the need to prosecute or provide a person with a fair trial, thus removing judicial supervision over actions of the police unless the victim refuses the offer to pay the compound. Some conditions/restrictions imposed by the police may be found to be unjust or unconstitutional.

Many in Malaysia, guilty or not, would choose to pay the compound rather than be prosecuted in court, which will entail not just loss of time and income, but also loss of money including legal and court fees.

It is of concern that Home Minister Muhyiddin Yassin, on 4 July, said that the compound will be good for parliamentarians – as unlike fines, it would not affect their qualification as MPs or their ability to contest in future elections (Hansard, 4 July 2019, page 49).

Therefore Madpet:

  • calls for the repeal of the Peaceful Assembly Act;
  • calls on the government to withdraw the current Peaceful Assembly (Amendment) Bill 2019;
  • calls on the government to transparently disclose to the public way in advance proposed bills, or at least the proposed main points of law to enable public participation, and not speedily rush and pass laws as it did with the Peaceful Assembly (Amendment) Bill 2019;
  • calls on Malaysia to amend Article 10(b) of the Federal Constitution to provide everyone with “the right to assemble peaceably and without arms”; and
  • calls on the government to respect the fundamental human right to peaceful assembly and allow everyone in Malaysia, including children, to freely exercise this right.

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).

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