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.
REFLECTING ON THE LAW By SHAD SALEEM FARUQI
> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM.
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