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Wednesday, July 31, 2019

Amend Peaceful Assembly Act but don’t repeal it

The amendments to the Peaceful Assembly Act 2012 (PAA) recently passed in Parliament have given a new dimension to democracy in the country. Certain provisions in the law prior to this appeared to limit the right of the people to assemble peacefully, whether publicly or privately, and to collectively express, promote, pursue and defend their common interests which is a fundamental human right.
Notably, street demonstrations and protest marches will no longer be a crime under the newly amended act. The proposed amendments come in the wake of a shift in government policy that says the right to assemble peacefully and without arms should also include street protests as long as they do not pose a threat to or affect public order and security.
With these changes to the act, there will be no more distinction between peaceful and street protests, in line with the aspiration of the people who cherish more freedom in exercising their right to express their dissatisfaction over issues they are not happy with.
Interestingly, the compound for both offences now is not more than RM5,000. So politicians or lawmakers need not worry as offences under this act are considered minor and not felonious offences which would cause them to lose their qualification as lawmakers or bar them from contesting in the following general election.
The right to freedom of association is recognised as a human right, a political right and a civil liberty. Article 11 of the European Convention on Human Rights protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions in accordance with law and necessary in a democratic society.
Democratic countries are cognisant of the fact that freedom of assembly is an important means through which the public can express their views to their leaders and to other members of society. It promotes public discourse and diversity, and it is also a proper tool to achieve change in society. There is no doubt that peaceful assembly is an inherent and inalienable part of the freedom under Article 10 of the Federal Constitution, and it has been an effective tool for citizens to express their concerns over issues they are not happy with.
However, in most cases permission needs to be granted by governmental agencies for a protest or demonstration to be held at a particular venue at a particular time. Failure to obtain a permit may lead to charges of having an assembly without a permit. Permits can be denied on grounds that the protest will create security risks, especially so in a multiracial and multi-religious society. Citizens ought to be cognisant of this constraint.
The UN Human Rights Committee held that “a requirement to notify the police of an intended demonstration in a public place six hours before its commencement may be compatible with the permitted limitations laid down in Article 21 of the International Covenant on Civil and Political Rights. Countries such as France require only a notification period of three days whereas Sweden requires notification only depending on the type of assembly”.
In Moldova and Poland, small assemblies do not require any notification whatsoever as such notifications may nullify the possibility of holding spontaneous and urgent assemblies, which can be at odds with the right to freedom of assembly as guaranteed in Article 10 (1)(a) of the Federal Constitution of Malaysia.
Nevertheless, in the Malaysian context the government has to be more practical and cautious as race and religion can be exploited by irresponsible elements to gain political mileage and cause upheaval in society. The amendment to Section 9 of the act to shorten the notification period for an assembly from 10 days to five before the date of the assembly is judicious enough for a country like Malaysia.
Internationally, the UN special rapporteur on the rights to peaceful assembly and of association finds that states should not impose authorisation requirements on organisers as such requirements turn the right into a privilege. However, in our context we accept in principle that this notification requirement as proposed in the new act is to enable the authorities to meet their duty to facilitate the assembly, to protect public safety, to prevent any possible disorder or crime and to reroute traffic if necessary.
Under the existing provisions of the PAA, children under the age of 15 are prohibited from participating in peaceful assemblies, and those under the age of 21 are barred from organising them. This is at odds with Article 15 of the Convention on the Rights of the Child of which Malaysia is a signatory, whereby children have the right to freedom of assembly, expression and association. Children, regardless of age, must also be allowed to freely express their grievances and they should not be prohibited from organising or participating in protests or demonstrations, if such assemblies directly affect their interests.
The social climate will determine the country’s economy. There are also concerns that amendments to the existing act may lead to violent street demonstrations, similar to those which have taken place in some countries. However, if there are protests which can cause disturbances, violence or loss of peace, action can be taken under the Penal Code against the offenders. The country’s security is paramount. Street assemblies can sometimes turn disruptive and affect businesses and cause anxiety among investors. State governments and local councils should identify designated areas outside of cities for peaceful assemblies to take place.
The PAA cannot be repealed altogether as proposed by some, as the act is necessary to ensure peace and security. We cannot afford a “free-for-all” or absolute democracy in a multiracial and multi-religious country like Malaysia. Repealing the act could lead to untoward consequences to the security of the nation.
Moaz Nair is an FMT reader.

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