Wake up PDRM: 'Permits' for peaceful assemblies don't exist

The Women’s March 2019 was held on Saturday in Kuala Lumpur. Women, members of the LGBT community – and even men – from all walks of life took to the streets and rallied for a wide and inclusive variety of demands. 

These ranged from better gender equality, ending child marriages in Malaysia, to fair and equal treatment for all members of the LGBT community. It reflected a truly vibrant and alive democracy in Malaysia.

From reports, the police too, facilitated the march excellently. They were said to have been friendly, and no attempts were made to halt the march. But this very, unfortunately, took a sour turn later into the day. With police later on saying the march “had no permit” and that the organisers would be called up and investigated. Very disappointing. But not one bit surprising.

The police have turned to this “no permit, thus illegal” card, time and over again. From the Bersih 4.0, Bersih 5.0 to the #TANGKAPMO1 rallies, and every other rally therebetween; this has remained their go-to verse. Hence why it is unsurprising. But do the police know what they are talking about? Let us see what the law has to say:

What was the law previously, and what did it say?

Section 27 of the Police Act 1967 dealt with peaceful assemblies. It required a licence (permit) from the police to organise any assembly. And the police had discretion as to whether or not they wanted to grant this licence. Most times, they did. But at the eleventh hour, they revoked it arbitrarily (as they could) resulting in massive losses to organisers.

The requirement of the licence thus rendered police the arbiter of whether people could exercise their constitutional right to assemble. If no licence were granted, the assembly would automatically become illegal and police could, without a warrant, arrest anyone present at such an "illegal assembly", as by merely being present there – they would automatically be committing an offence. 

Additionally, police could also stop any assembly held without a license. Police therefore had large powers in governing peaceful assemblies.

However, Section 27 of the Police Act was repealed in 2012. It no longer exists.

What is the law today, and what does it say?

The Peaceful Assembly Act 2012 (PAA) governs peaceful assemblies in Malaysia. It came into existence in 2012, after Section 27 of the Police Act was repealed. The PAA seeks to facilitate the right to peaceful assembly, whilst its predecessor (Section 27), sought to restrict it.

According to parliamentary Hansard (Nov 24 2011, page 117), former prime minister Najib Abdul Razak himself when tabling the PAA said that under the PAA, “the police have ceased its function as a decision maker as they did under Section 27 of the Police Act, and have instead, assumed the role as a regular and facilitator for peaceable assembly”.

And in PP v R Yuneswaran [2015], the Court of Appeal opined that the PAA is procedural in nature and merely sets out a series of procedural steps to ensure and facilitate the exercise of a constitutional right to assemble. Whereas, Section 27 of the Police Act appeared to be restrictive in nature on the right to peaceful assembly as it contained many restrictive provisions.

There are, therefore, major differences in the two laws. As it will be seen below, the PAA as it stands today has certainly cast away the age-old shackles placed on the right to peaceful assembly in Malaysia. It has allowed the constitutional right to assemble to breathe a clean slate of air, infused in the refreshing spirit of constitutionalism.

What then does the actually PAA say? Is a permit needed?

Under the PAA, Section 9(1) merely requires organisers to inform the police of the assembly, via a notice, at least 10 days before the assembly is held. Section 9(5) then goes on to say that if organisers fail to give this notice, it is an offence punishable with a fine of up to RM10,000.

This notice is not a permit or a licence. Unlike under the Police Act, this notice is not to request permission from the police to hold the assembly – it is to inform them that it is going to be held. Police have no right to reject the notice. And they have no power to stop the assembly. Even if the said notice is not given, the organisers may be slapped with a fine, but the assembly nevertheless cannot be stopped.

In fact, there is even highly contentious debate as to whether the organisers can be fined for failing to give the 10-day notice to inform.

In PP v Nik Nazmi [2014], the Court of Appeal held that to criminalise any failure to deliver the notice to inform is unconstitutional. Because, among other reasons, it is illogical to have people wait for up to 10 days to assemble about something. The appellate court held that the rakyat has an immediate right to assemble.

In PP v R Yuneswaran [2015], however, the Court of Appeal departed from Nik Nazmi case and held that to punish for failure to deliver the notice, is constitutional. The appellate court opined that to criminalise failure to deliver the notice is not restrictive of the people’s right to assemble, but is in fact needed to regulate that right.

Hence in light of these conflicting decisions, it remains unclear if organisers may be fined for failing to give the 10-day notice to police. Be that as it may, what both of the decisions above did say in common was that: there is no need from any licence or permit from the police to assemble peacefully. What remains contentious is only whether the organisers may be fined for failing to inform police at least 10-days before the assembly.

To add, some additional features of the PAA are as follow:

1. Not everyone who attends a peaceful assembly commits an offence, only persons causing the assembly to no longer be peaceful commit an offence and may be arrested; But even before arresting anyone, police must first take all necessary measures to ensure voluntary compliance by those person(s). 
   
2. Police must respond to the 10-day notice within five days of the notice being sent to them. But with or without their response, the assembly can proceed.
   
3. There is not a single mention of the word “permit” or “illegal” in the PAA. Making it therefore only all the more clear that no permit is required from the police, and no peaceful assembly in Malaysia can ever be “illegal” or "unlawful”.
   
4. To end, the police seem to still be living in the days of Section 27 Police Act – where they could issue permits and render assemblies illegal. That is no longer the case today and the police must stop this intimidation against organisers of peaceful assemblies at once. They must also stop misleading the public as to the requirement of any “permit under the PAA”, as there is none.

The Pakatan Harapan government must also start acting on its promise of reform and immediately repeal Section 9(5) PAA that criminalises any failure to deliver the 10-day prior notice to inform. 

It makes absolutely no sense for the rakyat to have to wait 10 days to rally, more so if the subject of the rally ever happens to be any matter of pressing importance, requiring an urgent public response.

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HARINDER SINGH is a final year law student at Multimedia University. - Mkini