This is a reproduction of an overview by Professor Shad Faruqi,
one of the leading academics in the area of Malaysian Constitutional
Law. He happened to be one of my lecturers during my days in law school
as well.
And here is the brief overview for an understanding of the Peaceful Assembly Act 2012.
The link to the article as published in the Star today, 27 June 2012 is here.
Previously, everything was prohibited unless permitted. Now
everything is permitted unless prohibited. This is a significant shift
in civil rights thinking.
IN early legal systems, the
primary end of the law was to keep the peace. In modern legal orders, a
just balance between the might of the state and the rights of the
citizens is attempted. No field better exemplifies the difficulty of
achieving this fair balance than Malaysia’s law relating to assembly and
procession.
The recently enacted Peaceful Assembly Act 2012 has
received much criticism in the media and deserves scrutiny of its high
and low points.
Police permit: Previously under Sections
27 of the Police Act, citizens had to apply for a police permit for
gatherings or processions of more than three people.
Under the
new Act, there is no requirement for a police permit, but organisers of
assemblies must notify the authorities 10 days in advance under Section
9(1). No notice is required for meetings in designated places or if the
assembly is an exempted assembly.
If in response to a notification the police do nothing, then under Section 14(2) silence is deemed as consent.
Previously,
everything was prohibited unless permitted. Now everything is permitted
unless prohibited. This is a significant shift in civil rights
thinking.
No power to ban: Under the Police Act, assemblies and processions could be prohibited outright or conditions imposed.
The
new Act in Section 15 permits the OCPD to impose significant
restrictions and conditions including the date, time and place of the
assembly. However, there is no power to issue an outright “No” before
the assembly takes place.
Time limits: Just as citizens
are required to give advance notification of 10 days, the police
response must also be communicated within a stated time limit of five
days: Section 14(1). An appeal to the Home Minister must be decided
within 48 hours: Section 16(2).
Designated places: The Act
permits the minister to designate places where assemblies may be held
without notification to the police. Critics have charged that this is an
attempt to isolate Opposition gatherings in distant and low-impact
places.
This is an overly cynical view. Actually it is a good
idea to designate some fields, stadiums and Speakers’ Corners for public
assemblies.
What would be improper is if the owners of
designated places indulged in the selective granting or refusal of
permission. If this happens, judicial review is likely on the (Article
8) principle of equality or the administrative law principles of
reasonableness, irrationality or abuse of power.
Exempted assemblies:
This Act does not apply to election campaigns, strikes, lock-outs and
pickets under the Industrial Relations Act and the Trade Union Act:
Section 1(3).
It is also inapplicable to religious assemblies,
funeral processions, weddings, open houses, family get-togethers, family
days and meetings of societies or associations: Third Schedule
Paragraph 9(2)(b).
The words “meetings of societies and associations” are very broad and permit vast possibilities.
Right to object:
All persons likely to be affected by a proposed assembly have a right
to be informed and to raise objections. In principle this is acceptable.
However,
there is a perception that the police may pander to extremist groups;
subordinate minority rights to majority concerns, and discourage lawful
but unpopular assemblies. This perception needs to be proved wrong.
Judicial review: Mercifully, the Act has no ouster clauses for excluding judicial review.
Counter-assemblies:
The Act takes admirable note of counter- and simultaneous assemblies,
and seeks to regulate them by giving preference to the assembly first in
place. It also provides for alternative sites, times and dates for the
counter- or simultaneous assembly or assemblies.
Spontaneous gatherings: These are not contemplated by the law and are presumably not illegal.
Involuntary presence:
The definition of “participant” leaves out anyone who is
unintentionally or involuntarily present at an assembly. This will be a
useful defence to a citizen who is the subject of a prosecution.
Despite the above wholesome features, the reformed law still bristles with some controversial provisions.
Street protests:
These are a form of assembly in motion, a procession or a
demonstration. They were permitted (within limits) subject to regulation
under Section 27 of the Police Act, but are now absolutely banned.
Other
ambiguous aspects of the law are that a street protest by definition
involves “walking in a mass march or rally.” So if there is no walking
but a motorcade of cars or bikes, that will not be caught by this law
and the authorities may have to use Section 268 of the Penal Code or
some provision in the Road Traffic Act 1987.
Further, although
“street protests” are banned, the Act refers here and there to
“processions” and “assemblies in motion.” One has to struggle to
understand the distinction between a lawful procession and an unlawful
street protest.
Police discretion: Under the Police Act,
police discretion to grant or withhold a permit was more or less
unfettered and the power to impose conditions was very wide, although
subject to occasional judicial review as in Chai Choon Hon v Ketua Polis Kampar (1986) and Patto v CPO Perak (1986).
Similar
to the Police Act, the new law in Section 15 still confers on the men
in blue very wide discretion to impose “restrictions and conditions,”
arrest without a warrant any person failing to comply with a restriction
or condition, or order the assembly to disperse.
It must be
acknowledged, however, that such wide discretion is known in other
jurisdictions like Britain, Finland and the state of Queensland in
Australia, but subject to external review.
External control:
Unlike the recent Security Offences (Special Measures) Act which
subjected the powers of the police and the Minister to judicial control,
this Act makes no effort to subject police discretion to external,
non-executive control.
An appeal lies with the minister, which basically means there is an appeal from the executive to the executive.
Fortunately,
however, there is no ouster clause, and judicial review on the first
principles of administrative law is a possibility.
Public places:
These are defined too broadly, so they include private places open to
or used by the public by the express or implied consent of the owner or
on payment of money. This means that private premises, hotels and halls
to which members of the public are invited or permitted are deemed
public places!
Constitutionality: It remains to be seen
whether the courts will review the constitutionality of some parts of
this law. Issues germane for discussion are:
> The total ban
of street protests without linking it to public order and national
security may well fall foul of Article 10(2).
> The ban on
people under 21 organising an assembly may be challenged as a violation
of Article 10 (free speech) and Article 8 (equality). It is noteworthy
that case law has established that parliamentary restrictions on human
rights must be reasonable by objective standards (Hilman Idham).
>
One of the grounds on which the police may exercise the power to
regulate assemblies is “the protection of the rights and freedom of
other persons” (sections 2, 3 and 15). These words of limitation do not
occur in Article 10(2), and may therefore be seen as an extra
constitutional limitation.
In most countries including the US and
Malaysia, courts have accepted implied limits on human freedoms and
have often carved out common law restrictions on fundamental freedoms.
In
sum, the Act has many wholesome features. But it is defective in that
it imposes no objective restraints on the police and ministerial
discretion.
Nevertheless, as judicial review is not excluded,
courts may provide a proper balance between police powers and
fundamental freedoms. Whether the courts will play such a balancing role
remains to be seen.
- Shad Saleem Faruqi is Emeritus Professor of Law at UiTM.
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