Same shit different days

Note one thing: Malaysia imposes rule by law, not rule of law. Hence laws can be passed to curtail your civil rights and fundamental liberties and make illegal what is legal. Against this backdrop, the Bersih rally, march, walk, sit-down, sit-in, protest, demonstration, or whatever, is an illegal assembly according to the laws of Malaysia. There are no two ways about it.

NO HOLDS BARRED

Raja Petra Kamarudin

For 14 years since 1998 it is the same old story. The organisers and the government would call each other liars.

The organisers would claim that the protest demonstration was a roaring success and that as many as 50,000 people or 100,000 people or 200,000 people turned out. 

The government would claim that the demonstration was a failure and that only 10% of that figure turned out.

The government would claim that the demonstration is an illegal assembly and that the organisers and participants broke the law.

The organisers would claim that they are just exercising their democratic right of freedom of peaceful assembly and that the government is denying Malaysians their civil rights.

The organisers would claim that the police acted violently and brutally against the demonstrators.

The government would claim that the demonstrators were unruly and had refused to comply with the order to disperse.

The organisers would claim that no order to disperse was issued and that the police started shooting tear gas and the water cannons without warning.

The organisers would claim that the police started the violence.

The government would claim that the demonstrators started the violence.

The organisers would claim that the people have spoken and that the government should listen to the voice of the people. 

The government would claim that the opposition politicians had hijacked the demonstration and that this was not about the people’s voice but about the opposition’s plan to grab power.

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I would have imagined that by now we would have known better and would have learned the modus operandi of the powers-that-be.

Article 10(1)(a) of the Federal Constitution of Malaysia says: all citizens have the right to assemble peaceably and without arms.

Then, Article 10(2)(a) of the Federal Constitution of Malaysia says: Parliament may by law impose on the rights conferred by paragraph (a) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence.

In other words, Article 10(2)(a) cancels Article 10(1)(a) of the Federal Constitution of Malaysia. Hence what is legal can be made illegal by law if the Minister says so.

Laws on Freedom of Assembly

Under the Public Order (Preservation) Act 1958, the relevant Minister may temporarily declare any area where public order is seriously disturbed or seriously threatened to be a “proclaimed area” for a period of up to one month.

The Police has extensive powers under the Act to maintain public order in proclaimed areas. These include the power to close roads, erect barriers, impose curfews, and to prohibit or regulate processions, meetings or assemblies of five persons or more.

General offences under the Act are punishable by imprisonment for a term not exceeding six months; but for more serious offences the maximum prison sentence is higher (e.g. 10 years for using offensive weapons or explosives) and sentences may include whipping. 

Another law, which previously curtailed the freedoms of Article 10, is the Police Act 1967, which criminalised the gathering of three or more people in a public place without a licence. However the relevant sections of the Police Act dealing with such gatherings have been repealed by the Police (Amendment) Act 2012, which came into operation on 23 April 2012.

The Peaceful Assembly Act 2012, which came into operation on the same day, replaced the Police Act as the principal legislation dealing with public gatherings.

Peaceful Assembly Act 2012

The Peaceful Assembly Act gives citizens the right to organise and participate in peaceful assemblies subject to the restrictions under the Act. Under the law, citizens are allowed to hold assemblies, which include processions (see the definition of "assembly" and "place of assembly" in section 3 of the Act), upon giving 10 days notice to the police (section 9(1) of the Act).

However no notification is required for certain types of assemblies, such as wedding receptions, funeral processions, open houses during festivals, family gatherings, religious assemblies and assemblies at designated places of assembly (see section 9(2) and the Third Schedule of the Act).

However, street protests, which consist of "mass" marches or rallies, are not permitted (See section 4(1)(c) of the Act).

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Note one thing: Malaysia imposes rule by law, not rule of law. Hence laws can be passed to curtail your civil rights and fundamental liberties and make illegal what is legal. Against this backdrop, the Bersih rally, march, walk, sit-down, sit-in, protest, demonstration, or whatever, is an illegal assembly according to the laws of Malaysia. There are no two ways about it.

Now, whether this is a bad law and a law that violates our civil rights and fundamental liberties is another matter. The fact remains that, whether we like it or not, these are the laws of Malaysia and any action to ignore or violate these laws would be deemed a criminal act and therefore subject to police action. 

For 14 years since 1998 we have been faced with the same dilemma -- in that Malaysia’s laws violate our civil rights and fundamental liberties. While the Federal Constitution of Malaysia guarantees us our civil rights and fundamental liberties, there are certain Articles in the Constitution that violates and takes away our civil rights and fundamental liberties.

In other words, what is allowed can be forbidden if the government says so. Hence this gives the government acarte blanche to whack the demonstrators in the interest of ‘maintaining law and order’. And knowing that, why were the organisers not prepared last Saturday? Did they really think that the government would allow the event to be peaceful? Did the organisers not know that agent provocateurs would not be used to turn what was supposed to be a peaceful assembly into a violent event?

This has been a 14-year old story since 1998. Every time it is the same old story. And every time we get caught with our pants down. And then we get our knickers all twisted into knots.

Planning a protest demonstration needs skill and experience. You need to beat the government at its own game. There are going to be traps laid and you must be clever enough not to walk into these traps.

What was the purpose of the demonstration in the first place? Did you really think that when you take to the streets this would trigger reforms and bring about changes? If you did then you are more naïve that I imagined.

A demonstration, in particular if it is a peaceful demonstration, is a show of force. It is as good as a public relations (PR) exercise. Hence, we need to win the PR exercise. The government will go all out to prove that the opposition supporters are violent and do not respect the law even if they need to use agent provocateurs to achieve this.

And they have been using agent provocateurs since 14 years ago in 1998. And it works every time. And it worked this time as well. And this time as well, just like over the last 14 years, the organisers were caught with their pants down. Where were the video people recording the acts of these agent provocateurs?

Do you know that even in 1998 and 1999 we had violent demonstrators who ‘led’ the crowd? The crowd was instigated and was worked up into a frenzy and they followed these ‘leaders’ to do unruly things. Then later, when we got arrested and spent the night in the lockup, we discovered that these people who were leading the violent mob were actually police officers.

So, remember this always: when we take to the streets we are breaking the law. And that allows the government to do whatever it wants to us. After all, we are criminals who are disturbing the peace. So we need to be very clever. And the only way this can change would be if Parliament abrogates these laws. And for that to happen we need a new government. Kapish?