Episode 23: The Reality of Freedom of Assembly in Malaysia

In May's law series, the Consti Team examines the constitutional right to freedom of assembly. A fundamental provision, the right to assemble is alleged to be stifled by the Executive powers through legislative acts that is labelled as unconstitutional by its detractors. However in recent years, there is notable progress in an effort to allow for the people to participate in peaceful demonstrations, albeit with some controversies. In light of the above, this edition of the Law Series critically examined the laws regarding this constitutional provision, recent issues surrounding it and recommendations for law reforms.

1.0 INTRODUCTION

Freedom of assembly is often said to form a part of the broader mosaic of freedom of speech and expression. It is something that is guaranteed under our Federal Constitution, but often subjected to several limitations. [1] Safe to say there is no nation which presents an unfettered right to freedom of speech, expression, and assembly without any form of restriction. For freedom of speech in particular, it is a known fact that words carry weight and thus it does not exist freely in any nation. For example, it is often subjected to the laws of libel, slander and even incitement to commit crimes. [2] The same concept can be seen to be applied for freedom of assembly.

Hence, in our Malaysian context, this right may be curtailed on the constitutional grounds of national security, public disorder, or morality. [3] In simple words, freedom of assembly is not enshrined as an absolute right. Akin to the right to speech and expression which is curtailed by the express restrictions enumerated under Article 10(2) to ensure that it is kept under check by various legislations such as the Sedition Act, Official Secrets Act or even the Printing Presses and Publication Act, the right to assembly is currently regulated by the Peaceful Assembly Act (PAA). Even if many would contend that the PPA is more lenient than its predecessor, the Police Act, there are several concerning restrictions. The central premise on permitting these restrictions often falls back to the need to balance the rights of an individual and the public as a whole. The main argument often raised is the notion that mass assemblies have a tendency to often get too rowdy and hostile. [4] Thus, as of now the issue is on finding a necessary balance for society’s rights to assemble and at the same time to ensure public safety is maintained whilst bearing in mind that the restriction ought not to be unconstitutional and arbitrary.

2.0 FREEDOM OF ASSEMBLY ACCORDING TO THE CONSTITUTION

Article 10(1)(b) [5] guarantees that all citizens have the right to assemble peaceably and without arms, subject to Art.10(2)(b),[6] whereby Parliament has the power to restrict the right as it deems necessary or expedient for the interest of the security of the nation. It would seem that the freedom of assembly is not absolute and entrenched in the Constitution unlike other countries such as the United States which gives absolute freedom of assembly to their citizens vis-a-vis the First Amendment. [7]

Such examples of legislations that restrict the freedom of assembly can be seen in the Penal Code, [8] which provides for the offence of unlawful assembly, the Societies Act 1966 [9] which renders a meeting of an unlawful society to be an offence, s.9 of the Peaceful Assembly Act 2012 [10] which requires an organiser of a peaceful assembly to give notice to the Officer in Charge of the Police District in which the assembly was to be held. Likewise, the Public Order (Preservation) Act [11] allows an area to be declared a ‘proclaimed area’ and gives the executive powers to disperse assemblies therein.

As one can see, it would seem that the freedom of assembly, just like the freedom of speech, is not an absolute right but instead, a qualified right. A pertinent case that can highlight the restriction of freedom of assembly is the case of Nik Nazmi Nik Ahmad v Public Prosecutor [12] In this case, the appellant was charged with organising an indoor public assembly without notifying the Officer-in-Charge of the Police District (OCPD) of the event at least 10 days before the event as required under s.9(1) of the Peaceful Assembly Act 2012.

In the aforementioned case, the Court of Appeal held that the purpose of the PAA can be found within S.2 of the PAA which is as far as appropriate to do so, that citizens have the right to organise assemblies or participate in assemblies, peaceably and without arms; and the exercise of the right is subject to restrictions deemed necessary or expedient in a democratic society in the interest of the security of the nation.

Furthermore, there is no provision in the PAA which stipulates that an assembly held without the requisite prior notice is per se unlawful. At most, sections 10, 14, 15, 20 and 21 relate to matters on restriction and conditions which may be imposed by the officer in charge of the Police District along with the effects of restrictions and conditions and enforcement powers generally. In the words of former premier Najib Abdul Razak himself when tabling 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”. [13]

The Court of Appeal found S.9(5) of the PAA to be unconstitutional and invalid as there is no rational and proportionate connection between the legislative measure and objective of holding an organiser criminally liable even though the assembly was peaceful or there was full compliance to the terms and conditions imposed.

3.0 PEACEFUL ASSEMBLY ACT AND THE CRITICISM AROUND IT

3.1 Peaceful Assembly Act 2012

Malaysia has made significant progress in its treatment of peaceful protest since the Bersih rallies calling for free and fair elections. The Bersih rally, which was ostensibly all about pressuring the matter of electoral reform, has flourished in the creation of the Peaceful Assembly Act 2012 (PAA). The Peaceful Assembly Act 2012, also known as the Akta Perhimpunan Aman 2012, is the Malaysian law that governs public protests. The aforementioned act was drafted in lieu of the administration of the Barisan Nasional. This bill was introduced by Datuk Seri Mohamed Nazri Aziz, Minister in the Prime Minister's Department, as part of the government's attempts to alter the existing legal framework in regard to individuals' constitutional rights to assemble. [14]

The act was claimed to permit citizens to organise and participate in peaceful meetings without the use of weapons, subject to limits considered appropriate and in the interest of public order and security. The said act stipulates that the organiser of an assembly must ensure the assembly is in compliance with the law and does not commit any act or make any statement that could promote ill-feeling, discontent, or hostility among the public nor disturb the public tranquillity, while a participant should adhere to the orders given by the police or organise to conduct the assembly in order. [15] Clause 8 of the Bill also sets out the responsibilities of the police, where a police officer may take measures deemed necessary to endure orderly conduct of the assembly, in accordance with any other written law. [16]

3.2 Criticism on the Peaceful Assembly Act

Even though the PAA was intended to defend the rights of laypeople, the PAA has been heavily criticised by the opposition, which claims that if implemented, the new law will restrict the freedom to protest rather than protect. In a challenge to the law brought by the Selangor State Legislative Assembly, a three-judge panel of the COA has strongly criticised Section 9(5) of the statute, declaring it unconstitutional. [17] In this case, the plaintiff faced RM 1000 fine under s.9(5), which provides for criminal prosecution of assembly organisers who fail to submit 10 days' notice. Only S.9(5), which punishes peaceful assembly, was deemed illegal by two of three judges. This is due to the fact that the right to peaceful assembly is guaranteed under Article 10(1)(b) of the Federal Constitution and so cannot be criminalised. It was thought that Section 9(5) made a mockery of the right to free assembly. [18]

In addition, during 2011, opposition leaders branded the PAA "undemocratic" and demanded that it be repealed. Anwar Ibrahim, the leader of the opposition at the time, claimed that the Bill grants the police total power rather than defending the people. Furthermore, former Bar Council President Lim Chee Wee remarked that the new legislation is more stringent than the current one. Speaking on behalf of the people, the leader of Bersih 2.0 has also expressed her objection to the PAA, stating that this bill restricts the rights of the people as much as possible by giving the minister and the police unrestricted authority to further restrict the freedom to assemble. It inherently restricts free expression and stifles legitimate opposition in Malaysia.

This criticism, however, has gracefully brought change to Malaysia as the government has tabled the amendment of the said act.

4.0 CURRENT ISSUE: POLICE INVESTIGATION ON WOMEN’S MARCH

On the 12th of March, a march in commemoration of Women’s Day was held outside the Sogo Mall on Jalan Tuanku Abdul Rahman, headed towards Dataran Merdeka. [19] Attracting a moderate crowd of about 300, the march was joined by people of various backgrounds, including human rights activists, university students, and members of political parties. [20]

Women’s March Malaysia was not a mere symbolic commemoration of Women’s Day however, as participants saw this as an opportunity to highlight many gender-based issues in the country, the unfortunate discrimination women continue to face on the daily and the need for policy change and legal reform. Armed with placards as they marched, participants demanded, inter alia, equal pay between women and men, a ban on child marriage and a social protection system for “all oppressed genders”. [21] Every step of the way, police officers kept a close eye on the march as flood alarms seemed to drown out the voices of the marchers as they addressed onlookers. [22] Despite this, the march went on peacefully.

However, after it had concluded it was reported that the Dang Wangi district police headquarters Criminal Investigation Division has opened an investigation paper under S. 9(5) of the Peaceful Assembly Act 2012 and Section 14 of the Minor Offences Act 1995 in relation to the organising of the assembly of participants and subsequent march. [23] The police noted that they were in the process of identifying all the individuals involved and would summon them to record their statements under Section 111 of the Criminal Procedure Code. [24] The investigation paper, once concluded, was to be handed over to the deputy public prosecutor for further action. [25]

Condemning this response from the police, organisers of Women’s March Malaysia expressed their disappointment at the actions being taken against them for exercising their democratic rights of criticising the status quo and demanding change. [26] The organisers highlighted that the right of every citizen to freedom of speech and expression and the right to assemble peaceably and without arms is clearly provided for under Article 10 of the Federal Constitution. [27] Furthermore, they noted that all necessary steps to inform relevant authorities and follow the rules and regulations had been taken prior to the march. [28] In light of Malaysia being a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the organisers also argued that Malaysia is obligated to protect the rights of women, and that the police should refrain from investigating and charging anyone merely for exercising the fundamental right to peacefully assemble and instead prioritise the demands raised during the march. [29]

Echoing the same sentiment, the Kuala Lumpur Bar voiced its disagreement with the actions of the police. It reiterated the right of all Malaysians under Article 10(1)(b) of the Constitution to assemble peaceably and without arms, and that such right was subject to the limited restrictions under Article 10(2)(b). [30] Additionally, it noted that the Peaceful Assembly Act 2012 (PAA) was enacted with the objective of ensuring the right of all citizens to organise and participate in peaceful assemblies in order to “spotlight their position on current and/or pertinent issues requiring the Government’s attention”, which, it viewed, was the objective of Women’s March Malaysia. [31] The Kuala Lumpur Bar viewed that taking into account the fact that the march was held in compliance of all necessary requirements beforehand and in a peaceful manner, the interference of the police was therefore unwarranted and a blow to the freedoms of speech, expression and assembly afforded to all citizens under the Constitution and PAA. [32]

5.0 SUGGESTION FOR REFORMATION ON THE PROTEST LAW

5.1 Revising the Peaceful Assembly Act 2012

While it must be commended that the PAA has been enacted after Section 27 of the Police Act has been repealed, there are still disproportionate restrictions. For instance, Section 9(1) merely requires organisers to inform the police of the assembly, via a notice, at least five days before the assembly is held. But 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. The issue here is whether such fines are constitutional. Though the courts have different interpretations regarding its constitutionality, ultimately the criminalisation of Section 9(5) should be amended. [33]

This is because the 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. Therefore, amendments should be made to reduce the harshness of the provision.

It is essential to emphasise that any such restriction must align with the interests mentioned in Article 10(2)(b) of the Federal Constitution.

5.2 Increasing consideration for safety during demonstrations and assemblies

The authority of the police in respect to demonstrations and assemblies is to issue guidelines and conditions, and failure for the organisers to comply will result in an imposition of a fine not exceeding RM10,000. It is to be noted that this is for the purpose of security and public order, including the protection of rights and freedom of individuals.

Therefore, the police should have an understanding that their role is not to impose control, but to facilitate the rights and safety of the public. The police have no authority to disperse a lawful assembly or apprehend those participating in such. It is important to acknowledge that not all individuals participating in a peaceful assembly are engaged in any unlawful activities. Offences only arise when certain individuals disrupt the peaceful nature of the assembly. In such cases, the police have the authority to make arrests. However, it is crucial to note that before resorting to arrests, law enforcement should prioritise taking appropriate measures to encourage voluntary compliance from those individuals who may be causing disruptions or engaging in unlawful behaviour.

5.3 Increasing education and training for the police

It is essential to provide training and education to the public, police, and other stakeholders on issues related to freedom of assembly. Training programs organised by SUHAKAM (Human Rights Commission of Malaysia) or non-governmental organisations (NGOs) should be attended by police personnel, decision-makers, and policymakers at all levels to develop a better understanding of matters pertaining to freedom of assembly. [34]

Enhanced training is necessary to educate police officers about the Peaceful Assembly Act and its implications. It is crucial for them to understand that they cannot outright reject a notice for an assembly, as we are no longer operating under the constraints of the previous Police Act.

Additionally, the police should be trained to ensure that the public’s right be protected when enforcing their authority. For instance, prior to making any arrests, it is essential for the police to take all possible measures to encourage voluntary compliance from individuals responsible in making an assembly unlawful.

6.0 CONCLUSION

As of now, the restrictions are considerably overwhelming in contrast to the need for it given that we may have allowed article 10(2) to somewhat eclipse article 10(1) under the notion of need for national security, public order, and morality. Hence why it is often raised by Non-Government Organisations on the need to bring alteration to laws which function as adversities to the right to assembly. SUHAKAM has been vocal on the matter where they were welcoming the removal of the phrase “street protest” in section 3, 4 and 21 of the PAA to not be limited to stationery protest but to be viewed broader. [35] Clearly NGOs are pushing hard to ensure what is enshrined in our constitution as a right does not become something more than that for citizens to practise. Hence the issue remains persistent where rights and safety remain as a seesaw that needs to find a proper balance.

REFERENCES

[1] Federal Constitution (Malaysia), Article 10(1)

[2] Federal Constitution (Malaysia), Article 10(2)

[3] Awang Armadajaya Awang Mahmud & Ashgar Ali Ali Mohamed, (2022). Constitutional Validity of Statute: Sedition Act 1948. Malayan Law Journal Articles. 5, 203. 28. Retrieved from <https://advance.lexis.com/document/?pdmfid=1522468&crid=0a69a6eb-d0b6-4e2e-9ba9-198c0261ec16&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-my%2Furn%3AcontentItem%3A672Y-6S01-F361-M19X-00000-00&pdcontentcomponentid=235220&pddoctitle=Constitutional+Validity+of+Statute%3A+Sedition+Act+1948+%E2%80%94+%5B2022%5D+4+MLJ+cciii&pdteaserkey=sr0&pdicsfeatureid=1521734&pditab=allpods&ecomp=kwsrk&earg=sr0&prid=3a6702c6-5c06-49a5-96b8-b3848690ec8f>. Site accessed on 18 May 2023.

[4] The Athira Yusof. (2019, July 1). Views were sought over amendment to Peaceful Assembly Act: Muhyiddin. New Straits Times. Retrieved from <https://www.nst.com.my/news/government-public-policy/2019/07/500647/views-were-sought-over-amendment-peaceful-assembly-act>. Site accessed on 17 May 2023

[5] Federal Constitution (Malaysia), Article 10(1)(b).

[6] Federal Constitution (Malaysia), Article 10(2)(b).

[7] United States Constitution amendment I

[8] Penal Code. (Act 574). (Malaysia). S.141-160.

[9] Societies Act 1966. (Act 335). (Malaysia).

[10] Peaceful Assembly Act 2012. (Act 736). (Malaysia). s.9.

[11] Public Order (Preservation) Act 1958. (Act 296 Rev. 1983). (Malaysia).

[12] [2014] 4 MLJ 157.

[13] Hansard (Nov 24, 2011), page 117.

[14] The Borneo Post (2011, November 23). Peaceful Assembly Bill 2011 tabled For First Reading. The Borneo Post. Retrieved from <http://www.theborneopost.com/2011/11/23/peaceful-assembly-bill-2011-tabled-for-first-reading/> Site accessed on 17 May 2023.

[15] Peaceful Assembly Act 2012 (Act 736) (Malaysia) s. 6.

[16] Peaceful Assembly Act 2012 (Act 736) (Malaysia) s. 8.

[17] [2014] 4 MLJ 157.

[18] __(2014, April 25). Punishment for 10 days’ notice ‘unconstitutional’. MalaysiaKini. Retrieved from <https://www.malaysiakini.com/news/260989>. Site accessed on 18 May 2023.

[19] Ayamany, K. (2023, March 12). For 2023, Women's March Malaysia calls for equal pay and immediate end to child marriages. Malay Mail. Retrieved from <https://www.malaymail.com/news/malaysia/2023/03/12/for-2023-womens-march-malaysia-calls-for-equal-pay-and-immediate-end-to-child-marriages/59240>. Site accessed on 9 April 2023.

[20] __(2023, March 12). Police open investigation paper on Women’s March over alleged illegal assembly. Malay Mail. Retrieved from <https://www.malaymail.com/news/malaysia/2023/03/12/police-open-investigation-paper-on-womens-march-over-alleged-illegal-assembly/59284>. Site accessed on 9 April 2023.

[21] See footnote 1 above.

[22] See footnote 1 above.

[23] See footnote 2 above.

[24] See footnote 2 above.

[25] See footnote 2 above.

[26] Austin Camoens. (2023, March 13). Women's March organisers criticise cops for heavy-handed response. The Star. Retrieved from <https://www.thestar.com.my/news/nation/2023/03/13/women039s-march-organisers-slam-cops-for-heavy-handed-response> . Site accessed on 9 April 2023.

[27] See footnote 8 above.

[28] See footnote 8 above.

[29] See footnote 8 above.

[30] The Kuala Lumpur Bar. (2023, March 15). Press Release Respect And Facilitate — And Not Deter — The Right To Assemble For The Women’s March Malaysia 2023. The Kuala Lumpur Bar. Retrieved from <https://klbar.org.my/press-release-respect-and-facilitate-and-not-deter-the-right-to-assemble-for-the-womens-march-malaysia-2023/> . Site accessed on 9 April 2023.

[31] See footnote 12 above.

[32] See footnote 12 above.

[33] Ahmad Masum, 2010. Freedom of Assembly-Is it a Question of Right or Privilege in Malaysia? Malayan Law Journal Articles. 5, 54, 59.

[34] Refer to footnote 33 above.

[35] (2019, July 4). We welcome the decision to amend the Peaceful Assembly Act 2012 — Suhakam. MalayMail. https://www.malaymail.com/news/what-you-think/2019/07/04/we-welcome-the-decision-to-amend-the-peaceful-assembly-act-2012-suhakam/1768410