Police supremacy replaces Constitutional supremacy
"Every legal power must have legal restrains, otherwise there will be a dictatorship. Power tends to corrupt and absolute power corrupts absolutely."
By Mohamed Hanipa Maidin
Malaysiakini reported recently that the Inspector General of Police (IGP) had issued a statement that all public rallies in Perak would be forbidden. This is yet another glaring example of abuse of power by one of our mercenaries of justice.
The actions by the IGP confirms what Raja Azlan Shah J (as he then was) had stated in one of his powerful judgments " Every legal power must have legal restrains, otherwise there will be a dictatorship. Power tends to corrupt and absolute power corrupts absolutely."
The IGP was definitely ill advised in making such a sweeping statement. Legally speaking his statement was misconceived in law and devoid of any merit.
Legally speaking, he has no right whatsoever under the law to issue a total ban on any peaceful assembly in Perak.
By making such an irresponsible statement he conveniently ignored the provision of section 27 and 27A of the Police Act 1967 respectively.
So long these two provisions remain in the statute, the people in Perak have the right to assemble in any part of Perak. The people's right to assembly is not determined by the IGP.
Talking about law on a peaceful assembly in this country, it is governed by Article 10 of the Federal Constitution.
It is a fundamental right enshrined in the highest law of the land. In theory it seems that this right is so sacred as it is protected and guaranteed by the Federal Constitution.
Unlike England where Parliament is supreme, here we have the constitution which is our supreme law. Any law which contravenes any provision of the Federal Constitution is deemed void by virtue of Article 4.
That is, however, in theory.
Sweet words are always embodied in theory. What matters is the practice. Practically speaking as far as the right to assemble peacefully in any part of this country, the assurance in the constitution is nothing.
Yes, nothing. What we have, in practical terms, is the supremacy of the police. The police supremacy reigns in the realm of public assembly in this country.
How did that happen?
Part of the blame must surely go to the framers of the constitution. Despite guaranteeing the people's right to freedom of assembly, the framers saw it fit to give the Parliament enormous power to restrict such a fundamental right.
Perhaps, the framers were too naïve. They, presumably, did not know the true colour of BN leaders who have been in command of Parliament since the first General Election.
As BN has been controlling the Parliament, it used or rather misused the proviso of Article 10 of the constitution to legislate the law on freedom of assembly.
The Police Act 1967 was thus born from this proviso.
Section 27 of the Act was inserted therein not to restrict the right to assembly but to "kill" it once and for all.
Thanks to BN supremacy in Parliament, the Malaysians' right to freedom of assembly is solely at the untrammelled discretion of the Officer in Charge of the Police District ( OCPD ).
Malaysians are at the mercy of the OCPD when they want to assemble. Yes, you can use the word OCPD and the proxy of BN interchangeably. They are different sides of the same coin.
There are two forms of assembly known under the Police Act namely, an assembly in a public place and an assembly in a private place.
The former requires a prior licence from the OCPD and is governed by section 27 of the Police Act. The latter requires no licence and is governed by section 27A of the Police Act.
In many circumstances, the police especially the OCPDs seem to form a view that this obnoxious Act gives them a carte blanche power to allow or deny the peoples' right to assemble.
To cite one example – when the organizers of BERSIH planned to organize a big gathering in the city prior to the last General Election, the OCPD made a public statement that such a gathering would not be allowed and stern action would be taken against the organizers and the attendees respectively if it was to be carried out.
Such a statement was clearly an erroneous one simply because at that time the organisers had yet to submit their application for a licence.
As the application for a licence was to be submitted to the OCPD under section 27, he , being the decision maker, should have refrained from making any statement let alone a statement prohibiting the assembly.
By making such an irresponsible statement it implied that he had already made up his mind on the application.
But the statement needed to be made because his political masters had already given a warning to the organizers.
He had to join the bandwagon of his political masters ( read political clowns ).
Now the history repeats itself.
The IGP, without any legal justification issued a total ban on public assembly in Perak. This would certainly put all the OCPD in Perak in a predicament.
The Police Act gives them discretion to process any application for a permit of any assembly in a public place. As the law confers them a power to deal with application for a permit the must, under the law, process it on case by case basis.
They may refuse a permit in Ipoh and not in Kuala Kangsar
But when the IGP has spoken as far as the OCPD in Perak are concerned they have no other choice but to say this mantra : Sorry , no permit in Perak !!!
Mohamed Hanipa Maidin sits on the Pas central committee and is the Pas legal adviser. He is also a lawyer who blogs at peguampas.blogspot.com
