Assembly law more ‘restrictive’, say lawyers
(The Malaysian Insider) – Calling it “restrictive” and “financially oppressive”, lawyers have questioned Putrajaya’s unprecedented move to initiate a civil suit against Datuk Ambiga Sreenevasan and nine other Bersih 3.0 leaders for damages sustained during the April 28 rally less than a month under a newly-enforced law allowing public gatherings.
The lawyers contacted by The Malaysian Insider suggested the ruling Barisan Nasional (BN) government was sowing the seeds of “legal fear” among demonstrators to head off future public expressions of dissent, which they noted ran counter to the constitutional rights of freedom of speech and association.
“The whole idea of the (Peaceful Assembly) Act is questionable. In practice, it seems to be more restrictive. It limits the constitutional rights of the individual to freedom of expression and curtails their right to assemble,” said Joy Appukuttan, president of the Catholic Lawyers’ Society.
“We are moving into unchartered waters. The action by the government has created legal fear,” he added.
Appukuttan pointed out that similar rallies had taken place elsewhere around the country and abroad on April 28 without incident and questioned the government’s extraordinary legal suit.
He also noted that the government had said it would set up a panel to investigate complaints of police brutality against demonstrators during the April 28 rally in the capital city.
“What is the objective of the government in starting legal action before investigating the truth behind the entire rally. They should have waited for the inquiry to complete before taking legal action,” he said.
Another lawyer, Syahredzan Johan, said the government was setting “a very bad precedent” by initiating the civil suit because it does not have the moral authority to use these rights to bring such civil suits against its own citizens.
“It means that a citizen who wants to exercise his or her constitutionally guaranteed rights will now expose himself or herself to the threat of a civil suit by the government, on top of the criminal sanctions provided for under the Peaceful Assembly Act and other laws,” he told The Malaysian Insider in an emailed response.
He explained: “A government does owe a duty of care to its citizens, but you would be hard-pressed to argue that citizens owe a duty of care to its government.
“Contrast a civil suit with criminal proceedings; a government has the moral authority to prosecute because it has the responsibility to do so, bestowed upon it by the people in return for security.”
Syahredzan noted that the government’s action gave the impression it was motivated by “political reasons”.
The young lawyer noted that the civil suit raised other practical concerns — that the police had also failed to adhere to the peaceful assembly law based on widespread reports and video evidence of officers’ harsh actions against demonstrators.
“What is the point of having this Act if we cannot expect the authorities to follow it?” he said.
Senior lawyer Sankara Nair said with the suit, the government now had to prove the losses it suffered were caused by Ambiga and her team “because there are issues of provocation of the crowd and the consequences of that provocation. These things have to be considered.
“The previous law was more restrictive on the face of it, but in the light of the government’s suit against the rally organisers, it has become financially-oppressive,” he said.
“This case is extraordinary. They are opening themselves up to a plethora of arguments,” he said.
