MALAYSIA Tanah Tumpah Darahku


Wednesday, November 30, 2011

Peaceful Assembly: The BN Government's Misinformation

By Kua Kia Soong, Director of SUARAM

In justifying the bulldozing of the Peaceful Assembly Bill yesterday, the BN government has said that it is in line with similar laws in the European countries which respect democracy. This is a devious attempt at misinformation which must be debunked.

Debasement of our Constitutional Right

Firstly, Malaysians should realise how much the BN has debased our fundamental liberties since Independence in 1957. Our federal constitution, by the way, was crafted by the Reid Commission set up by our former colonial master and our fundamental liberties enshrined in it were based on international human rights already existing at the time.

Our right to assemble peaceably under Article 10 was severely circumscribed by the Police Act 1967, giving the police wide discretionary powers to the police to regulate assemblies, meetings and processions by requiring a licence to be obtained for peaceful assemblies.

Amendments to the Act in 1987 further extended police powers to stopping and dispersing activities in private places. It also provided the police with power to use force against participants when closing down events, whether in public or private places. This was exactly what the police did in 1996 when they dispersed, arrested and detained NGO activists at the Asia-Pacific conference on East Timor (APCET). I was one of the unfortunate victims of this law.

Since 2007, section 98 of the Criminal Procedure Code allows the government to use court orders to stop public assemblies. The police have the power to arrest individuals named in court orders if they enter the identified areas of planned assemblies.

Through the years, the police have used these powers to selectively arrest human rights defenders while letting off far-right mobsters such as we saw at APCET in 1996, Suqiu in 2000, Kampung Medan in 2001, the Article 11 fora in 2006, the cow-head fracas in 2010, to name but the most salient examples of double standards by the police.

SUHAKAM in its 2007 public inquiry report reiterated the constitutional provision that “peaceful assemblies should be allowed to proceed without a licence.”

Use European Convention on Human Rights Model

Whichever European country’s model the government is supposed to have followed in drafting the Peaceful Assembly Bill, the European Convention on Human Rights (ECHR) is ultimately the authority on this fundamental liberty.

The right to peaceful protest is enshrined in the ECHR. The police do not need notification of the protest. As long as the public highway is not blocked off completely and there is no threat of violence, there will be no criminal offence. If the police do require conditions, they are obliged to give reasons for the conditions. If they have acted unlawfully, the police can be sued under the Human Rights Act.

As long as the organisers’ intention is for peaceful assembly, the possibility of violent counter-demonstrations is not a reason for prohibiting processions. The state is expected to protect peaceful protestors and to take reasonable and appropriate means to enable lawful peaceful assemblies.

Notification only for Police Protection

It is only right that the police should be notified if there is to be a peaceful assembly since they are the keepers of the peace and the far-right are the main threats to democracy today. However, it is unconstitutional to criminalise a peaceful assembly or procession simply on the ground that the organisers had failed to give notice to the police.

The Peaceful Assembly Bill is thus an unnecessary restriction on our right to assemble peaceably and out of step with modern democratic societies. Important events are forever breaking out which spur people to protest over particular issues and peaceful protests provide a forum for the peoples’ voices to be heard.

There should be a notice period of 48 hours if only for administrative purposes with provision for waiver in spontaneous demonstrations. Fundamentally, the spirit of Article 10 of our constitution demands that the police should not be given the power to prohibit any peaceful assembly or procession.

Kill the Bill

Under the guise of “reform”, the BN government is attempting to pull the wool over our eyes by introducing old poison in new bottles. Mark my words – they will do the same with the ISA with their new Act “against terrorism”. As for reforming our political institutions to honour the right to peaceful assembly, the government should simply amend the existing Police Act and other laws to be in line with Article 10 of the Constitution. As the perceptive philosopher Uma Thurman coolly put it: “Kill Bill…”

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