Is Freedom truly free?

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.

Trampling on our rights

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, Raja Petra Kamarudin and 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 represents a disproportionate response to the actual situation. This leads to awkward explanations afterwards which include the "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 government has a history of abusing their powers under the law in order to preserve their own affair. However, by branding their discretion at making these arrests "to protect national interest and public property", many people as members of the public are led to believe by the Mainstream Media that the response was correct and proportionate.

Bersih 2.0

The rally that truly triggered the necessity to call into question the Police Act provision on illegal assemblies was indeed Bersih 2.0.

The 9th July 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 tear gas. Retreating into Tung Shin Hospital provided no respite when the Federal Reserve Unit decided to shoot the water into the compound.

A rally to call for Free and Fair elections, which was entirely peaceful, was turned violent by police manhandling 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 in amongst the crowds, I believe how the FRU and police responded 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 actual FRU and police crackdown, was the complete cover up of the Mainstream Media. The government went all out to deny the public the truth, and published their 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 to ponder is that, despite promised reforms in the law, including the repeal of the ISA and introduction of the Peaceful Assembly Bill, what is the check and balance to prevent Ministers from abusing their discretion under the Acts or issuing extra-judicial proclamations?

Section 27 of the Police Act

The law causing the most amount of controversy is section 27 of the Police Act 1967 which deals specifically with illegal assembly. Under the draconian law, it was seen as a serious inhibition of any kind public assembly and gave the police the power to detain persons involved without a warrant (s27(6)).

Holding a demonstration requires a police permit, and the senior district police officer has 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 for 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 a huge amount of pressure, the BN government appeared to relent by tabling the Peaceful Assembly Act.

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 5 day notice period 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 fines of RM10,000 for participation in what is deemed as an illegal assembly, the prohibition of children at gatherings, limits in proximity to public places, places a complete ban on street demonstrations and the same scope of power 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 under Article 10 of the Federal Constitution.

Firstly, the fine of RM10,000 is clearly to deter anyone from coming to a protest or demonstration. Who can afford to be RM10,000 out of pocket? 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 alone 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 the children up 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.

No to Street Demos

However, the one thing that riles up opposition MPs more than anything else, is the prohibition of street demonstrations, and that police are afforded the same scope of powers under the Bill. This would mean that Bersih 2.0 would be handled in exactly the same way under the new law as the old. For many, this is unacceptable.

Not everyone agrees with street marches, demonstrations or protests, but to place a complete ban on it would contravene the spirit of Article 10 of the Federal Constitution. Even our courts agree, as found in Cheah Beng Poh & Ors v Pendakwa Raya [1983] 1 LNS 65. The High Court Judge Hashim Yeop A Sani opined the following:

“The court as guardian of the rights and liberties enshrined in the Constitution is always jealous of any attempt to tamper with rights and liberties. But the right in issue here i.e. the right to assemble peaceably without arms is not absolute for the Constitution allows Parliament to impose by law such restrictions as it deems necessary in the interest of security and public order. In my view, what the court must ensure is only that any such restrictions may not amount to a total prohibition of the basic right so as to nullify or render meaningless the right guaranteed by the Constitution.”

In the case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507, Federal Court Gopal Sri Ram opined the following:

“Now although the article says ‘restrictions’, the word ‘reasonable’ should be read into the provision to qualify the width of the proviso… The correct position is that when reliance is placed by the State to justify under one or more of the provisions of Article 10(2) of the Federal Constitution, the question for determination is whether the restriction that the particular statute imposes is reasonably necessary and expedient for one or more of the purposes specified in that article.”

Therefore the BN government cannot impose a complete ban on street protests unless they are willing to run afoul of the constitution.

Law vs Freedom

So is there a need for a law to govern Article 10, or shall we just leave the law as it is? I believe that we certainly have a need for a law to govern this. However, does making a law impinge on our ability to exercise our rights as per the constitution?

The issue of peaceful assemblies has certainly been a contentious one in our country, and most recently we saw 300 people gathering in KLCC park in protest of this very bill. But is it correct to allow an absolute freedom? Some argue that societies with sufficient maturity should not have their rights infringed upon by legislation.

However, I would liken this to removing all the lines, traffic lights, zebra crossings and speed limits on our roads. Now people are truly free to drive on the road, but would you dare? True freedom has boundaries. That way, we know the parameters to operate within.

Therefore, a Peaceful Assembly Bill is certainly essential. However, does the current piece of proposed legislation do us justice? I would submit that it does not. Laws must give space and act as guidelines, but not to the extent that it is stifling.

What are the main issues? One is public security, and the concern that a protest may turn violent. Where this is indeed the case, the burden of responsibility should lie on the shoulders of the culprits and the organisers. What this would do is that protestors would be able to self-police in order to avoid such incidents from occurring.

How about public order? This is where the police come in. If it is indeed a street protest, the police can cordon off the route and ensure that order is kept by escorting the procession to their final destination. This would ensure that there is no damage done, and the peace is kept. Traders along the way may experience a small interruption, but a business blackout like during Bersih 2.0 would not occur.

I believe that our Prime Minister is serious about making Malaysia “the world’s best democracy”. However, Malaysia as a member of the United Nations Human Rights council should surely be held to a higher standard.

On Tuesday, lawyers from the Bar Council and others will march to parliament. Najib has a golden opportunity to do the right thing. Heed the voice of the people and make the appropriate amendments.

Douglas Tan is a DAP member and a columnist for Malaysia Chronicle