Peaceful protests legal but cops abusing law against pro-Anwar rallies, say lawyers

The police have been cracking down on protesters taking part in rallies in support of Datuk Seri Anwar Ibrahim's sodomy conviction. – The Malaysian Insider file pic, February 28, 2015.

Lawyers are warning that police may use the Penal Code against peaceful protesters since another law which regulates street demonstrations, the Peaceful Assembly Act, does not criminalise protest rallies.

As PKR Youth under the #KitaLawan banner prepare to march this afternoon in Kuala Lumpur and to hold a mega rally on March 7 to free Datuk Seri Anwar Ibrahim from jail, lawyers say police have shown disregard for citizens' rights to assemble peacefully following last weekend's arrests and investigation against a politician and two activists under the Penal Code.

The police, which is an executive arm of the government, must learn to respect the verdict of the Court of Appeal which last year held that organisers and rally goers should not be punished, provided they participated in peaceful assemblies.

Lawyer N. Surendran said the police was employing a new tactic to curb dissent by wrongly relying on Section 143 of the Penal Code for participating in an unlawful assembly.

"This provision only comes into play when one uses criminal force. Surely, this is not the case when an individual wants to participate in a peaceful gathering," he said, adding that the action of police was pure harassment.

A provision in the Police Act requiring a permit for people to assembly has been repealed, and the Peaceful Assembly Act was introduced in 2012 to allow gatherings to proceed without the need for a permit, although rally organisers must notify the police.

But Surendran said it appeared that police were using "underhanded tactics", despite the Peaceful Assembly Act.

Surendran said this in response to the recent arrests of PKR Youth chief Nik Nazmi Nik Ahmad, student activist Adam Adli Abd Halim and PKR Jingga 13 movement leader Fariz Musa at a rally outside Sogo in Kuala Lumpur last weekend, held in support of the jailed Anwar.

Lawyer Fahri Azzat said the provision under the Penal Code was a valid law but he was perplexed as to why it was applied against those whose intention was to gather without acts of violence and to destroy public property.

"There are only being investigated now. I believe they will challenge the constitutionality of the law if charges are framed against them," he added.

Fahri said it was disturbing for the police under the present Inspector-General of Police Tan Sri Khalid Abu Bakar to be restrictive by claiming that those who wanted to gather were out to create trouble.

"Does he have any statistics to back up his claim?" he asked, adding that the law enforcement agency was becoming overzealous.

Lawyer M. Visvanathan said it was illogical for the police to rely on the Penal Code provision as the burden of proof was higher.

"Since they could no longer rely on the PAA, the police and public prosecutor are depending on the criminal code to frame charges and secure convictions."

He said the police action only showed that they wanted to intimidate the public from participating at outdoor rallies.

Lawyers for Liberty executive director Eric Paulsen said the law was used as an excuse to arrest and harass key participants.

"It is clear that police had mala fide (bad intention) to misinterpret the provision when it was a peaceful gathering," he said of the arrests last weekend.

Paulsen said the law was designed to be used against rioters or groups out to create public disorder, citing that this provision could be used against football hooligans out to cause trouble.

Paulsen said in the landmark Court of Appeal ruling, the three judges reaffirmed the fundamental rights of Malaysians to assemble peacefully and not to criminalise the offence.

"In the latest case, those who assembled at a shopping centre in Kuala Lumpur did not breach the law. In fact, the police should have facilitated the protest," he added.

He said the demonstration also ended peacefully and there was no reason for the police launch a crackdown.

Last year, the Court of Appeal ruled that it was unconstitutional to criminalise public assemblies, even spontaneous ones, under the PPA. The court had also acquitted Nik Nazmi of a charge of failing to notify the police of the Blackout 505 rally at the Kelana Jaya Stadium on May 8 last year.

In total, Nik Nazmi was acquitted of the same charge four times after the public prosecutor attempted to have him re-charged more than once.

- TMI