Repeal draconian Peaceful Assembly Act 2012, not amend – Respect Right to Peaceful Assembly

Media Statement – 6/7/2019

Repeal draconian Peaceful Assembly Act 2012, not amend – Respect Right to Peaceful Assembly

-Speedy ‘secret’ passing Peaceful Assembly (Amendment) Bill 2019 unacceptable -

MADPET(Malaysians Against Death Penalty and Torture)  is shocked to hear that the Peaceful Assembly (Amendment) Bill 2019 tabled in Parliament, which will amend the Peaceful Assembly Act 2012, which was tabled on 1/7/2019, have already been passed (Star, 5/7/2019), and a perusal of the Parliamentary website indicates that it was passed on 4/7/2019, but interestingly a perusal of the Agenda (Aturan Urusan Mesyuarat) for 4/7/2019  does not state that the Bill was to be voted and passed.

This Parliamentary Session was supposed to end on 18/7/2019, and as such there was no necessity to rush and pass the Bill, which first came to public notice as to the contents only on 1/7/2019.

Such speedy tabling and passing of new law was criticized 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 Members of Parliament. The lack of transparency is abhorred.  

There would have even been no time or opportunity to organize a peaceful assembly to protest or support the said amendment – as the law as it was required 10 days prior notice before the assembly, and even with 5 days prior notice, as the amended Bill apparently now allow would be insufficient.

Even, when the Peaceful Assembly Act 2012 was tabled under the BN regime, there was time enough for the Malaysian Bar to organize a peaceful assembly involving about 1,000 lawyers, and hand over their protest to Members of Parliament on 29/11/2011 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 lame proposals contained in the said Bill, which demonstrates that despite Malaysian Pakatan Harapan-led government’s promise in its election manifesto ‘Buku Harapan’(Book of Hope) that it will remove unjust draconian provisions in this Act, it is obvious that they fail to understand the fundamental principles of the right of peaceful assembly and what are the provisions in the current  law that goes 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 2012, sadly only proposes to reduce the 10 days prior notice to the police to now make it seven(7) days, to apparently, make some of the offences in the act compoundable offences – meaning violators will be offered a compound, if paid will mean that they will no longer be charged and tried in court, and the removal on the restriction on ‘street protest’. Before being passed, apparently the notice period was reduced to five (5) days.

Decriminalizing of street protest – good but really 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 had gathered at meeting points and walked along the streets to assembly points.

The Act currently defines "street protest" means 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 decriminalize ‘street protests’ in the current law but at the end of the day, it is really meaningless as ‘street protest’ has in fact been happening all this while in practice.

Power of Police/Minister to control exercise of the right to peaceful assembly must be abolished

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 include provision of safety to participants, facilitating traffic flow and such.

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 2012 now has a mandatory requirement to notify the police, and thereafter the police can impose conditions and/or restrictions, which if breached is a criminal offence. A person who fails to submit such a notice, or beaches any conditions imposed by the police shall now, on conviction, be liable to a fine not exceeding ten thousand ringgit.

All that the proposed amendment will do is maybe shorten the notice period, but it does not solve the problem of police having the power to control the exercise of one’s right to peaceful assembly. Neither does it remove the power of owner/occupiers to deny this right.

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/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 notice 10(ten days) prior to the intended peaceful assembly, which happened recently in March in a peaceful assembly apparently proposed by a Minister. It was reported, that ‘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, 22/3/2019).

No reasonable person will protest against that particular peaceful assembly in response to mass killings of Muslims at their places of worship in New Zealand, but it highlights the point that peaceful assembly or protest sometimes need to happen promptly to be effective. 

A peaceful assembly in response to human rights violation against the Rohingya people in Myanmar, against atrocities committed by Israel against Palestinians or even Parliament’s intention to pass a Bill all would need a speedy response, and a law that impedes this right for people to assemble peacefully to voice protest or support by imposition of a requirement of any prior notice of 7 or 10 days is clearly violates the right to peaceful assembly, and need to be abolished. The Bill was passed on 4/7/2019 by the Dewan Rakyat(House of Representatives), 3 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 happens, 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 of peaceful assembly.

It is not uncommon that perpetrators against whom the peaceful assembly is happening 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 by reason of actions of a few ‘trouble-makers’.

The Act now has presumptions with regard to who is the organizer 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 organizer of the assembly.(Section 19). This means that even anyone who provide information to another and ask him/her to join could be presumed to be an organizer. This provision need to be repealed.

Age of persons entitled to organize/participate in peaceful assemblies

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

Malaysia also forgets that it is a signatory of the Convention on the Rights of the Child, whereby in Article 15, it clearly ‘recognize the rights of the child to freedom of association and to freedom of peaceful assembly.’ The Convention, in 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 their right to participate in peaceful assemblies.

We recall that children have opinions, and they must be granted the right to freedom of speech, opinion and also the right to participate (and even organize) peaceful assemblies.

The penalizing of parents who bring children to peaceful assemblies is also wrong. Parents have an obligation to teach children values and principles, and as such bring them for peaceful assemblies is a choice of parents. Many a parent also do not have domestic workers to leave their children at home. As such, this restriction is discriminatory and a violation of rights of persons with children. Note also that many who join a peaceful assembly may have no prior plan but suddenly decided to join because it was something they too support.

No right of peaceful assembly to non-citizens

This will include also permanent residents and foreign nationals living and working in Malaysia. This is unacceptable as this a human right and should not be a citizen only right.

In many countries, when some inter-government meeting is going on like the ASEAN meet, 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 sometime want to exercise this right to highlight some rights violation. This is a human right which must be accorded to all in Malaysia.

Peaceful Assembly Act 2012 – Many Other Unjust Hurdles

That draconian Act brought about hurdles to people exercising right of peaceful assembly.

Organizer

One, was the requirement of the organizer to identify himself, and when he/she does so, he/she is made responsible for all persons that participate in a peaceful assembly and may be criminally liable for actions not his/her own. Then, there is draconian obligation to clean up or to be liable to pay for cleaning bill. This obviously will deter the exercising of the right of peaceful assembly. No ordinary person, community, the poor or even smaller groups/organizations 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 of organizing 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 that happened on several consecutive Saturday afternoons that 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 Lynas or Bauxite mining, or the people of Pasir Gudang may want to come together to protest the ‘chemical poison’ but they could not because the law requires a named organizer, and no one wants to take on that onerous responsibility.

As such, the need for an organizer to come forward, to submit notification, to get permission from the consent of the owner or occupier of the place of assembly, arrange for security, etc must all be removed. 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 owners or occupiers of the place of assembly and others must respect the right of their fellow men to exercise their right to peaceful assembly. Asking owners and occupiers consent is also unfair to owners/occupiers as they suddenly have to decide whether to consent or not – either way, there will be an implication to 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, as an example, the Kuala Lumpur City Council (a government appointed Council) has rejected to allow peaceful assemblies in Dataran Merdeka. This is very wrong and a violation of 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 alright to catch and penalize litter-bugs but certainly not right to send organizers 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 convince to join the cause, and 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 organized 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 the 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 Embassy.

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

Power to compound – the proposed new section 21A

This will give the power to the police to compound offence relating to failure to provide notification (Section 9) or persons who breach 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 the judicial supervision of actions of 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.

It must be noted that 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 monies including legal and court fees.

It is of concern that the Home Minister, Tan Sri Dato’ Sri Muhyiddin bin Mohd Yassin, on 4/7/2019, also 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 4/7/2019, page 49)

Therefore MADPET 

-          Calls for the repeal of Peaceful Assembly Act 2012;

-          Calls on the government to withdraw the current Peaceful Assembly (Amendment) Bill 2019, 

-          Call 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 the Peaceful Assembly (Amendment) Bill 2019;

-          Call on Malaysia to amend Article 10(b) of the Federal Constitution to provide all person with ‘the right to assemble peaceably and without arms’; and 

-          Call on the government to respect the fundamental human right to peaceful assembly, and allow all persons in Malaysia, including children, to freely exercise this right;

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)