Malaysia – Assembling the Peaceful Assembly Act

Amanda Whiting, New Mandala

The process of enacting the Peaceful Assembly Bill 2011 and the public debate and disappointment this has engendered illustrate some of the worst, and yet also some of the most encouraging, aspects of the law and legal culture in Malaysia.

When Prime Minister Najib Razak announced on Malaysia Day this year his government’s plan to annul three of the four Proclamations of Emergency (those of  1966, 1969 and 1977) and the Emergency Ordinances made under them, replace the Internal Security Act 1960 with a more enlightened anti-terrorism law, and review or abolish laws inconsistent with the constitutional right to freedom of speech, assembly and association, many people dared to hope that his UMNO-led Barisan Nasional government had finally appreciated the magnitude of public disapproval, manifest in the reduced majority for UMNO in the March 2008 election, and the massive assembly of citizens rallying on July 9 this year to support Bersih 2.0’s campaign for clean and fair elections, to choose but two of many examples.

Hearing or reading his speech, and in the aftermath, as the Attorney-General’s Chambers began low-key and invitation-only consultations on law reform, people indeed allowed themselves to hope that UMNO really meant that it would work towards “creating […]a Malaysia that practices a functional and inclusive democracy where public peace and prosperity is preserved in accordance with the supremacy of the constitution, rule of law and respect for basic human rights and individual rights”.[1]

Yet when the Peaceful Assembly Bill was tabled in Parliament on 22 November 2011, that hope was replaced by bitter disappointment or outright cynicism, since it was apparent that the new law was in many ways worse than the old, despite the fact that it is modelled closely – but with telling differences – upon Queensland’s relatively progressive Peaceful Assembly Act 1992.

Under the previous law regulating assemblies, which is currently being repealed (sections 27-27C of the Police Act 1967), any rally or march that took place without a police permit was unlawful, and organisers of, and participants in, an unlawful assembly, or people who disobeyed police directions in relation to the gathering, could be fined between 2,000-10,000 ringgit (approximately AUD $626 – $3,130), and jailed for up to one year.

Police discretion to refuse a permit was more or less unfettered (the “security of Malaysia” and “disturbance of the peace” often being generously construed by the police), and there were no limitations upon the conditions police could place on a permit once granted.

In other words, the freedom of assembly guaranteed in article 10 of the Federal Constitution has long been severely curtailed by a statute that was arguably unconstitutional because it all but negated the right it purported to regulate, as critics such as human rights NGOs Suaram and Aliran, and the National Human Rights Commission (Suhakam) have repeatedly pointed out.

The Peaceful Assembly Bill, once it comes into force, will replace these sections of the Police Act with a more detailed, but even more restrictive, set of provisions. It might more aptly be called the Prevention of Assembly Bill. For example, only Malaysian citizens – and so not the more than 2 million foreign workers, refugees and asylum seekers currently resident in the country – can participate in an assembly.

Moreover, organisers must be at least 21 years of age, and participants 15 years of age or older. No such restrictions existed in the Police Act. Moreover this age restriction sits oddly alongside the noises the government is making about winding back the constraints the University and University Colleges Act 1971 places upon students participating in politics.

Street protests, defined as marches or rallies to advance a cause, rather than static gatherings, are now prohibited (although, confusingly, processions are allowed), whereas previously they were permissible. Section 4, which purports to set out the right to organise and participate in an assembly, in fact itemizes restrictions and completely fails to refer to, or in any way recognise, the entrenched constitutional basis of the right, or the purpose of the Act to further and protect, rather than diminish, the right.

This is in stark contrast with the Queensland law, which commences the parallel section (section 5) with a clear recognition that ‘a person has the right to assemble peacefully with others in a public place’ and that ‘the right is subject only to such restrictions as are necessary and reasonable in a democratic society’ and in the interests of public order, safety, and protection of the rights and freedoms of others.

In place of the application for a permit required by the Police Act, the Peaceful Assembly Bill requires advance written notice of the intended assembly to be given to the police, including precise information about time, duration, location, purpose, and identity of the organisers and all speakers, and the police have an almost unlimited discretion to impose conditions and restrictions.

The PM’s assertion that the Bill abolishes the requirement for prior police permission is thus not accurate – it only does so for gatherings that are already ‘private’ such as weddings, funerals, family occasions and the general meetings of societies (Schedule 3), or those to be held at places designated by the Minister. If the police do not impose conditions in response to the notification, it would appear that the assembly is deemed to be authorised. This is one of the few positive aspects of the Bill. Amongst the factors that the police may consider are ‘cultural or religious sensitivity’ and ‘the concerns and objections of persons who have interests’ (defined to mean people who own property, live, work or carry on a business in the vicinity of the proposed assembly).

While the list of factors is mostly based on section 11 of the fairly benign Queensland Act, one difference in application between the two is likely to be grounded in the lamentable and well-documented readiness of the Malaysian police to entertain the complaints and often outlandish allegations of right-wing pressure groups, such as Perkasa and similar ethno-supremacist organizations, that their religious or race ‘sensitivities’ are offended by the expression of alternative views.  Police refusal to allow Seksualiti Merdeka to hold its annual gathering is a recent case in point.

Another significant difference is with the role of the courts. Whereas aggrieved Queenslanders may apply to a Magistrates Court to expedite an application, and the police must seek a court order to prohibit an assembly – thus interposing an independent layer of review between citizens and the executive – Malaysians are directed to appeal from the police to the relevant Minister, in other words from the executive to the executive, without any court oversight. (It may, however, be possible to seek judicial review of the Minister’s decision, since, unusually for a Malaysian statute, the Peaceful Assembly Bill does not oust the jurisdiction of the court.)

Apart from the prohibition on street marches, the Peaceful Assembly Bill also forbids public assemblies within 50 meters of a ‘prohibited place,’ itemized in the First Schedule to include utilities and petrol stations, fire stations, hospitals, schools, places of worship, airports, docks, bridges and piers,  and railways. Furthermore the Minister may gazette additional places, thereby extending the prohibition. Likewise, the Minister may gazette certain areas as ‘designated assembly places’, a provision presumably designed to corral protestors into out-of-the-way sporting arenas or similar venues.   Obvious anomalies aside, such as the apparent prohibition on members of a faith group holding an assembly in the vicinity of their own place of worship, it would appear from the extensive list of prohibited sites that it will be extremely difficult to hold a public assembly in an urban area.

Organizers and participants have extensive responsibilities to abide by all these requirements, and are liable for penalties of up to 20,000 ringgit (approximately AUD $6, 260) for non-compliance, double the Police Act penalties (although it seems that imprisonment has been dropped). Furthermore, the police may without warrant arrest any person failing to comply with a restriction or condition, and may also order the assembly to disperse if it becomes a street protest, encroaches on a prohibited area, or the participants fail to comply with stated conditions. In doing this, police may ‘use all reasonable force.’ In sum, the Bill does nothing to curtail the potential for arbitrary exercise of police powers, but much to enable it.

Aside from the obvious defects in the text of the Bill, what does this law ‘reform’ exercise, and the reactions it provoked, reveal about law and law-making in Malaysia? In the deficit column, we can place the irresolution, amounting to double-speak, of the government. Prime Minister Najib promised better alignment of Malaysian laws with both Malaysian constitutional foundations and international human rights principles (although, as lawyer Eric Choo pointed out, there are important discrepancies between the undertakings PM Najib made in the official Bahasa Malaysia text of his Malaysia Day speech and the English translation authorised by the PM’s office[2]), and yet the Bill manifestly does no such thing, as local commentators (such as Bersih 2.0,[3] Aliran,[4] The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST)[5] and the Bar Council[6]) and international observers (such as LawAsia[7] and the Asian Human Rights Commission[8]) observed.

There is simply no reference to, or recognition of, human rights standards and principles for freedom of speech, assembly and association, either as they are expressed in article 10 of the Malaysian Constitution or in international instruments, let alone a harmonization of Malaysian law with constitutional and human rights principles.  Indeed, as Opposition leader Anwar Ibrahim stated in Parliament during the brief debate on the Bill,[9] citizens of Zimbabwe and Myanmar currently have greater protection of their freedom of assembly than do Malaysians.

The PM promised a ‘functional and inclusive democracy’, but the government did not undertake meaningful consultation before the Bill was first tabled (the Bar Council, which was consulted, was appalled at how few of its recommendations were incorporated); and, despite howls of public protest once the content of the Bill was first revealed, the government refused to establish a parliamentary select committee to consider amendments,  but rather bulldozed the legislation through the lower house 7 days after it was first introduced, and with only minor tinkering to shorten some of the notification and response timelines. The Bill was passed in the absence of the opposition MPs who had walked out in protest at the limited time allowed them to debate the amendments. This haste, too, is not uncommon in Malaysian law-making.