Is freedom truly free?
The government cannot impose a complete ban on street protests unless they are willing to run afoul of the Federal Constitution.
A rally to call for free and fair elections, which was entirely peaceful, was turned violent by police manhandling the protesters. Protesters forced to disperse by violent means could have potentially created a stampede and it is only by the grace of God that there were not more casualties.
Douglas Tan, Free Malaysia Today
After reading so many reports and articles on the Peaceful Assembly Bill especially with accusations being cast on both sides of the political divide, I believe that we have to go back to the root cause of the issue and examine it in a holistic and pragmatic manner.
First, we must go back to the fundamental question as to whether the law, specifically Malaysian law, really stifles dissent and tramples on human rights.
Indeed, we have examples of ministers using their discretionary authority under the law in cases where there is no probable cause. Therefore that would lead us to believe that power was abused.
Examples include the detention of a reporter, blogger Raja Petra Kamarudin and state assemblywoman Teresa Kok under the draconian Internal Security Act, as well as the extra-judicial declaration that “Bersih” T-shirts are illegal as they represent an illegal organisation.
I would submit that the examples I cited above represent a disproportionate response to the actual situation.
This leads to awkward explanations which include “she was detained for her own protection” and “because it represents an illegal activity” type of reasoning. Hardly impressive.
There is no doubt that the current Barisan Nasional (BN) government has a history of abusing its powers under the law in order to preserve its own affair.
However, by saying these arrests were made “to protect national interest and public property”, many people are led to believe by the mainstream media that the response was correct and proportionate.
Bersih 2.0
The rally that truly called into question the Police Act on illegal assemblies was indeed Bersih 2.0.
That day – July 9, 2011 – is a day which would truly go down in infamy. Dubbed “709″, we witnessed how the police doused the public with chemical-laced water and fired tear gas.
Retreating into Tung Shin Hospital gave no respite to the protesters when the Federal Reserve Unit personnel decided to fire tear gas and water cannons into the hospital compound.
A rally to call for free and fair elections, which was entirely peaceful, was turned violent by police manhandling the protesters. Protesters forced to disperse by violent means could have potentially created a stampede and it is only by the grace of God that there were not more casualties.
Being among the crowds, I believe that the response of the FRU personnel and police was truly disproportionate, although many quarters claimed they exercised a considerable amount of restraint. As a person who ingested tear gas into my system, I would beg to differ.
But what was worse than the police crackdown was the complete cover-up by the mainstream media. The government went all out to deny the truth, and published its own version of events. This is despite an enormous amount of photographic and video evidence, which were posted in real time as the event occurred.
So perhaps the true question that arises is: despite promised reforms, including the repeal of the Internal Security Act (ISA) and introduction of the Peaceful Assembly Bill, where is the check and balance to prevent ministers from abusing their discretion under the laws or issuing extra-judicial proclamations?
Section 27 of the Police Act
The law that is causing the most controversy is Section 27 of the Police Act 1967, which deals specifically with illegal assembly.
The draconian law prohibits any kind of public assembly and gave the police the power to detain persons involved without a warrant.
Holding a demonstration requires a police permit, and senior district police officers have the absolute discretion to approve or deny the permit. Additionally, under subsection 2, they can cancel the permit at any time.
Police also “may do all things necessary for dispersing them and arresting them”. The scope of this provision is massive, which would protect the police from any allegation of brutality.
There is no doubt that this section has to be abolished. It is fundamentally unconstitutional as it contravenes Article 10 of the Federal Constitution, which guarantees the right to assemble peaceably.
After tremendous pressure, the BN government appeared to relent by tabling the Peaceful Assembly Bill.
Truly a reform?
After a lot of condemnation from the Bar Council and opposition MPs, we have to examine whether or not it should be called the “Anti-Assembly Bill” or “Illegal Assembly Bill” as proposed by some quarters.
Notice of the assembly was proposed to be 30 days, which has since been revised to 10 days, after Myanmar’s assembly bill which specified a five-day notice put us to shame.
Under the Police Act, no time period is specified. However, the need for a police permit is eliminated. I would take this development to be a good thing.
However, let’s look into the more contentious part of the Bill. The RM10,000 fine for participation in what is deemed as an illegal assembly, the prohibition of children at gatherings, barring an assembly from a prohibited place – all these place a complete ban on street demonstrations. Moreover, the same scope of power is given to the police as under Section 27 of the Police Act.
This throws up a lot of issues which would potentially cripple the freedom to assemble as enshrined in Article 10 of the Federal Constitution.
Firstly, the fine of RM10,000 is clearly to deter anyone from coming to a demonstration. Who can afford to pay RM10,000? So, even if the cause is legitimate and of national concern, if the police use their discretion to prohibit the assembly, the citizen is penalised heavily as a result.
The prohibition of children is contentious as gatherings are supposed to be peaceful, and families would bring their children along with them.
Penalising the parents for bringing their children along, rather than leaving them at home, would be another reason for people to avoid protests.
Additionally, there is the question of enforcement. When tear gas and chemical-laced water are fired, would the police round up the children first? Unthinkable.
With the list of restricted places so extensive, it appears that protest cannot happen unless you are out in the countryside! The government would say that this is to protect the interests of the people, but basically it is to give the police an excuse to accuse the group of being in a prohibited area, and thus have the authority to disperse the assembly.
This would be especially true of any ceramahs held by the opposition parties, and would affect whoever is in opposition in future.
