How did the Royal Malaysian Police Force screw up when they arrested the 5 lawyers on 7 May 2009? Royally.
There was a curious report on 21 December 2009 in The Star (Nation Section, page 20, right column). Investigating Officer Assistant Superintendent Hoo Chang Hook explained to the Malaysian Human Rights Commission that after the investigating papers were sent to the Attorney General Chambers, the police were told by DPP Tun Abdul Majid that ‘there was no case to bring to court because there was no element of violence or force.’ The DPP also reportedly ‘advised the police to be careful not to use Section 28A of the Criminal Procedure Code (CPC) indiscriminately to deny an arrested person the right to a legal counsel’. What he really meant was Section 28A(8) that allows the police to deny your right to legal counsel in certain circumstances that would facilitate abetment or escape of accomplices, or destruction of evidence.
Tun Abdul Majid’s caution was also spot on because that is precisely what the Royal Malaysian Police Force did that evening. They violated both the lawyers and their client’s constitutional rights. Not only did they prevent the lawyers from seeing their clients, they arrested them and locked them up overnight. That is how much the police respect the law and how much less they respect lawyers. In typical twisted Malaysian justice, the police broke the law but the lawyers were behind bars.
So while the caution was correct, I confess an initial surprise at the opinion of law purportedly expressed by Tun Abdul Majid that the offence of unlawful assembly operates only when an element of violence or force is present. Let us consider his opinion more closely. From them we know that Tun Abdul Majid was speaking about unlawful assembly pursuant to section 141 of the Penal Code which provides as follows:
An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is-
First – To overawe by criminal force, or show of criminal force, the Legislative or Executive Government of Malaysia or any State, or any public servant in the exercise of the lawful power of such public servant; or
Second- To resist the execution of any law, or of any legal process; or
Third – To commit any mischief or criminal trespass, or other offence; or
Fourth- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or
Fifth – By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation – An assembly which was not unlawful when it assembled may subsequently become an unlawful assembly.
But that is not the only provision that relates to unlawful assembly. The provision most commonly used to charge for a crime of unlawful assembly is that contained in Section 27 and 27A of the Police Act because these provisions are the ones that require us to obtain a police permit to hold a public gathering of more than 3 people. Section 27(5) of the Act provides as follows:
(5) Any assembly, meeting or procession-
(a) which takes place without a licence issued under subsection (2); or
(b) in which three or more persons taking part neglect or refuse to obey any order given under the provisions of subsection (1) or subsection (3),
shall be deemed to be an unlawful assembly, and all persons attending, found at or taking part in such assembly, meeting or procession and, in the case of an assembly, meeting or procession for which no licence has been issued, all persons taking part or concerned in convening, collecting or directing such assembly, meeting or procession, shall be guilty of an offence.
So to qualify unlawful assembly under section 27 of the Act there is no need for violence. All that is required is (i) an absence of police permit and (ii) more than 3 people gathering. But can the police use this provision then?
The answer would still be no, because of section 27(2) of the Act which provides the following:
(2) Any person intending to convene or collect any assembly or meeting or to form a procession in any public place aforesaid, shall before convening, collecting or forming such assembly, meeting or procession make to the Officer-in-Charge of the Police District in which such assembly, meeting or procession is to be held an application for a licence in that behalf, and if such police officer is satisfied that the assembly, meeting or procession is not likely to be prejudicial to the interest of the security of Malaysia or any part thereof or to excite a disturbance of the peace, he shall issue a licence in such form as may be prescribed specifying the name of the licensee and defining the conditions upon which such assembly, meeting or procession is permitted:
Section 27 therefore operates when ‘any person intending to convene or collect any assembly or meeting or to form a procession in any public place’. The Federal Court in Siva Segara Kanapahti Pillay v Public Prosecutor  1 CLJ (Rep) 353 has decided that knowledge and intention are essential ingredients that must be established before a finding of guilt can be made under section 27(5)(a) of the Act. There was no such intention present in the 5 arrested lawyers. They were there to see their clients and happen to assemble in front of the gate because it was convenient to do so.
There is a moment of great irony at the end of the report when a Commissioner asks Assistant Superintendent Hoo why the statement of the 5 lawyers arrested could not have been put on police bail and requested to come back the next day to give their statements. His reply was that ‘under the Lock-up Regulations 1953 suspects could not be questioned between 6.30 pm and 6.30am’. This is an evasive answer because it avoids the crux of the question i.e. what couldn’t you have been reasonable about the arrest of the lawyers? It is evasive because the arrest was purely done to teach lawyers a lesson that you do not mess with the police. If you do, we will teach you a lesson. Arrest you and put you in lock up. See how you like it. It doesn’t matter if there was no crime or not, we will do it because we can.
There are a few significant things to note from this incident. Firstly, our police do not understand our laws. This suggests a low level of intellectual and moral operation. How can they police when they don’t know the law? Secondly, our police are unable to apply the laws correctly. Does we know the mean level of education in our police force? How many are SPM dropouts who never made cut it anywhere else? Thirdly, our police do not bother to take legal advice on the correctness of their actions. This implies that they do not conduct their work bona fide. Fourthly, our police see lawyers as a hindrance to their work. They do not respect lawyers, their work or role in the law. Fifthly, such actions are rewarded by our government instead of discouraged. Nobody will be made take responsibility for that flagrant display of abuse of power simply. They just commit to many with the tacit consent of their political masters.
So nobody will.