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Tuesday, November 29, 2011

Bar Council's Alternative Assembly Bill

The Bar Council has proposed a Peaceful Assembly Act 2011 (“the proposed Act’), which it says takes a significantly different approaches from the Bill drafted by the government.

According to the council, the differences in the policies and principles include:

The government’s Bill approaches the right of peaceful assembly from a very limited and restrictive stand point that does not accord with international norms, the current rapid developments around the world on such fundamental rights, as well as the aspirations of the Malaysians.

klcc walk for freedom of assembly crowdOn the other hand, the Bar Council’s draft Bill approaches the matter with an understanding of the urgent need to change the mindset of how such matter has been dealt with by the authorities in the past half a century, and the democratic necessity to fulfill the Rakyat’s growing expectations of greater fundamental liberties in line with international practices and developments.

NONEThe Bar Council’s draft Bill is intended to promote and facilitiate the freedom of the right of peaceful assembly, whereas the government’s Bill, while providing small improvements in certain limited aspects, continues to constrict the space for freedom of peaceful assembly that the people ought to have.

In some aspects, such as the total prohibition of street protest, the government’s Bill contains conditions or restrictions which are not currently expressly provided for.

The Bar Council’s draft Bill complies with international conventions and norms, whereas the government’s Bill does not.

For instance, the government’s Bill prohibits assemblies in motion (processions or street protests) which no other progressive jurisdiction does.

NONEThe governement’s Bill vests excessive powers and control with the police whilst imposing onerous duties and responsibilities on organisers and participants of public assemblies.

The Bar Council’s draft Bill takes into account the internationally accepted principle that the exercise of the right of peaceful assembly is part of “public order”, whereas the government’s Bill appears to view such exercise of fundamental right as antagonistic to public order.

The government’s Bill continues to retain the unacceptable practice of allowing the police to be its own judge and jury on matters relating to freedom of assembly. On the other hand, the Bar Council’s draft Bill has removed this unacceptable practice, by the creation of an independant Peaceful Assembly Board.

Extracts of the Bar Council’s Alternative Peaceful Assembly Bill

An Act relating to the promotion and facilitation of the right to assemble peaceably and without arms, to provide necessary and reasonable conditions relating to such right in the interest of public safety or public order, including giving due regard to the rights and freedoms of other persons, and to provide for related matters.

Objects

2. The objects of this Act are –

bersih rally petaling street 090711(a) to reaffirm, promote and facilitate the right of peaceful assembly for all persons; and
(b) to ensure that persons may exercise the right to participate in public assemblies free from unnecessary or unreasonable conditions, restrictions or hindrance; and
(c) to ensure that the exercise of the right to participate in public assemblies is subject only to such restrictions as are necessary and reasonable in a democratic society in the interests of –
(i) public safety; or
(ii) public order; or
(iii) the giving of due regard to the rights and freedoms of other persons; and
(d) to ensure that the right of persons to participate in public assemblies may be exercised without payment of a fee, charge or other amount for a licence, permit or other authorisation.

Right to organise and participate in public assembly

5. (1) Everyone has the right to organise a public assembly, and the right to participate in a public assembly peaceably and without arms; provided that the right to organise a public assembly shall not extend to a person below the age of 18 years unless it is a religious, social, educational, family or cultural assembly.

NONE(2) The right to organise a public assembly and the right to participate in a public assembly peaceably and without arms are subject only to such conditions and restrictions as are necessary and reasonable in a democratic society in the interest of –
(a) public safety; or
(b) public order; or
(c) the giving of due regard to the rights and freedoms of other persons.

Legal immunity for participant in public assembly

6. A person who participates in a public assembly does not, merely because of his peaceful participation, incur any civil or criminal liability.

Assembly notice

7. (1) When a public assembly is to be held, the organiser shall notify the OCPD of the same in writing at least 5 days before the assembly.

(2) No assembly notice is required to be given for a public assembly where it is not possible or reasonably practical to do so, or in respect of an election campaign.

(3) Where an assembly notice is to be given to the OCPD, it may be done by leaving it at, or by delivering it to, the appropriate police station. Any police officer receiving an assembly notice shall state on the organiser’s copy of the assembly notice the date and time of receipt of such notice, failing which the organiser or the person serving the notice shall be entitled to state the same.

Formalities and contents of assembly notice

bersih rally petaling street 0907118. (1) An assembly notice must –
(a) be in writing; and
(b) be addressed to the OCPD; and
(c) be signed by the organiser or a representative of the organiser.
(2) Where an assembly notice is required to be given, it must contain the following particulars –
(a) the name and address of the organiser and his representative or representatives who must be reachable in the communication of all matters relating to the public assembly; and
(b) the local address for service, e-mail address and mobile telephone number of the organiser and his representative or representatives; and
(c) the day on which the public assembly is to be held; and
(d) the place at which the public assembly is to be held; and
(e) the time at which the participants are likely to assemble to participate in the public assembly; and
(f) the times at which the public assembly will likely commence and end; and
(g) if the public assembly is a procession –
(i) the proposed route of the procession; and
(ii) any place at which the procession is likely to stop; and
(iii) the length of time the procession is likely to remain at each such place; and
(h) the expected number of participants; and
(i) the purpose of the public assembly; and
(j) the expected number of persons to be appointed by the organiser to assist in maintaining order in the public assembly; and
(k) a description of any sound amplification or audio visual equipment proposed to be used by the organiser during the public assembly.

Procedural compliance

9. (1) Where an assembly notice is required to be given, a public assembly is taken to have complied with the requirements under this Act if, after the giving of the assembly notice –
(a) an acknowledgement notice of the public assembly is received by the organiser of the public assembly from the OCPD or his representative; or
(b) no acknowledgment notice of the public assembly is received by the organiser, and no order of the Board made under section 18 prohibiting the holding of the public assembly is received by or communicated to the organiser, before the holding of the public assembly.

NONE(2) No assembly notice is required to be given in respect of any of the following –
(a) a private assembly; or
(b) a public assembly falling under section 7(2); or
(c) an election campaign; or
(d) a public assembly falling under the First Schedule.

Acknowledgment notice may specify certain conditions

11. (1) The OCPD may, in an acknowledgment notice given under section 9(1)(a), specify conditions relating to the holding of the public assembly. An acknowledgment notice containing conditions must be served on the organiser or his representative within 48 hours of the receipt by the OCPD of the assembly notice, at the address for service stated in the assembly notice.

NONE(2) Except where the organiser has (through consultation or negotiation) agreed in writing to a condition, a condition may not be specified by the OCPD unless –

(a) it is consistent with the objects and spirit of this Act; and
(b) it concerns one of the matters stipulated in subsection (3); and
(c) it is non-arbitrary and does not give rise to any unequal treatment between different organisers or groups of organisers; and
(d) the negotiations required by subsection (4) have been held.

(3) A condition specified by the OCPD must necessarily and reasonably relate to a significant matter concerning –
(a) public safety; or
(b) public order; or
(c) the giving of due regard to the rights and freedoms of other persons.

(4) For the purposes of subsection (2)(d), the OCPD shall forthwith and expeditiously negotiate with the organiser to reach an agreement, where possible, before specifying any condition.

(5) For the purposes of this Act, the expression “public order” relates to the sum of rules which ensure the functioning of a democratic society, and the set of fundamental principles on which a democratic society is founded. Respect for human rights and constitutional rights, including the right of freedom of expression and the right to assemble peaceably, is a part of public order.

(6) For the purposes of this Act, “public safety” relates to protection
against danger to the safety of persons, or against serious damage to their property.

(7) Any organiser dissatisfied with a condition specified by the OCPD may forthwith make an application in writing to the Board to revoke or vary such condition.

Application to prohibit public assembly

12. If an assembly notice is given to the OCPD in accordance with the provisions of this Act, the OCPD may apply in writing, within 48 hours of the receipt of the assembly notice, to the Board for an order that the proposed public assembly be prohibited, stating in sufficient detail the reasons for his application; and shall forthwith notify the organiser regarding such application.

Restrictions affecting application to prohibit public assembly

13. The OCPD is not entitled to apply under section 12 for an order from the Board unless –

NONE(1) the OCPD has in good faith given due regard to the objects and spirit of this Act; and

(2) the OCPD has formed the opinion, on reasonable and disclosed written grounds, that if the public assembly were to be held –
(a) there will be real and serious risk to public safety; or
(b) serious public disorder will likely happen; or
(c) there will likely be excessive and prolonged interference with the rights or freedoms of other persons; and

(3) the OCPD has negotiated with the organiser, but failed to achieve an agreement on the matter.

Simultaneous assemblies

14. (1) If two public assemblies are notified to be held in the same place at the same time and date (or approximately the same time and date), and their simultaneous arrangement is not possible, the organiser who first submitted his assembly notice shall have precedence, unless the place of assembly is traditionally to be used by the other organiser on that date. In this event, the OCPD shall, after consulting with the other organiser, move the other public assembly to be held at another time or to another place that is suitable having regard to the purpose of the other public assembly.

(2) If more than two public assemblies are notified to be held in the same place at the same time and date (or approximately the same time and date), the foregoing provisions shall apply mutatis mutandis.

Counter assemblies

15. If, after receiving an assembly notice for a public assembly, the OCPD receives an assembly notice for a counter public assembly, and it is evident that the counter public assembly will result in conflict between the participants of the two public assemblies at the place of assembly (of a nature that is likely to disrupt public order or endanger public safety), the OCPD shall propose an alternative for the counter public assembly to be organised at another time, date or place.

Establishment of a Peaceful Assembly Board

16. (1) There shall be established a body to be known as the Peaceful Assembly Board (in this Act referred to as “the Board”).

(2) It shall be the duty of the Board –
(a) to hear any application from the OCPD or the organiser; and
(b) to promote greater understanding by the general public of issues concerning peaceful public assembly; and
(c) to ensure uniformity of treatment of different organisers or different groups of organisers; and
(d) to keep itself generally informed as to the conduct of public
assemblies.

(3) The Board shall comprise a Chairman, a Deputy Chairman and 23 other members. The 25 members of the Board shall be appointed as follows –
(a) 5 members by the Prime Minister; and
(b) 5 members by the Leader of the Opposition in Parliament; and
(c) 5 members by SUHAKAM; and
(d) 5 members by the Chief Justice of Malaysia; and
(e) 5 members by the President of the Malaysian Bar.

(4) The term of each member of the Board shall be for a period of 2 years but he or she may be reappointed.

(5) No member of the Board shall be appointed from the public service or the judiciary.

(6) Any vacancy on the Board howsoever arising shall be filled by a person appointed by the same appointing body or person specified in subsection (3) who had made the earlier appointment in respect of which the vacancy has arisen.

Duties of the police at a public assembly

19. A police officer on duty at a public assembly –
(1) shall have a duty to take appropriate measures to enable the public assembly to take place and conclude peacefully, and at all times uphold the objects and spirit of this Act; and

(2) shall be uniformed; and

(3) may only issue an order to disperse if there are reasonable grounds to believe that there is real and imminent danger to public safety, or significant and prolonged interference with public order; and

(4) in exercising the power to disperse a public assembly, may only use reasonable and proportionate force and may do so only after reasonable and sufficient time and opportunity have been given to the participants to disperse voluntarily and peaceably; and

(5) may make any form of audio or visual recording of a public assembly, and shall not prevent, obstruct or restrict any other person from doing the same.

Presence of police at private assemblies

20. No police officer (whether uniformed or otherwise) shall be present at, attend, observe or participate in a private assembly, meeting or event, unless invited or allowed to do so by the organiser of such private assembly, meeting or event.

Role of the media

21. The police in discharging their duties in relation to a public assembly shall at all times facilitate the performance by all members of the media of their duties and functions.

Offences

22. (1) An organiser who has wilfully breached a condition lawfully imposed under this Act on a public assembly, or caused another to breach the same, shall be guilty of an offence and shall upon conviction be liable to a fine not exceeding RM5,000.00. It is a valid defence under this subsection if the organiser is able to show that he has taken all reasonable and available steps to prevent the commission of the breach, or that the occurrence of the breach was beyond his reasonable control.

(2) A police officer who has wilfully breached a provision of this Act, or a duty imposed on him under this Act, shall be guilty of an offence and shall upon conviction be liable to a fine not exceeding RM5,000.00. It is a valid defence under this subsection if the police officer is able to show that he has done everything in his power to prevent the commission of the breach, or that the occurence of the breach was beyond his reasonable control.

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