Sara Lau dissects the Peaceful Assembly Act 2012 and takes a look at its many loopholes.
The Peaceful Assembly Act 2012 (PAA) was passed despite much criticism. The Malaysian Bar valiantly marched to Parliament to oppose the Bill. Experts criticised. Yet despite all this furore, it was argued that the new PAA was meant to faciliate a more peaceful assembly process after Bersih 2.0.
The opposition of the PAA is becoming fresh again in the wake of the #Black505 movement, where newly elected representative of DUN Seri Setia’s Nik Nazmi has been charged under section 9(1) of the PAA. Since then, another opposition leader, Tian Chua, and political activist Haris Ibrahim have been arrested. Further, the newly retired Inspector-General of Police had earlier expressed his thoughts that the #Black505 rally is legal if it is “peaceful”. Could that be perceived as a green light? Various leaders have argued that such a rally and other subsequent rallies are legal, while many others differ.
So the question now is – What really does the PAA say about assemblies? Under the PAA, section 9(1) states that in order to hold an assembly or gathering, one is required to give 10 days’ advance notice to the police.
However, under section 9(2), there is no need to give a 10-day notice if the place is a “designated place of assembly”. Under section 3, a designated place of assembly is defined as that under section 25, that is, any place designated by the Minister of Home Affairs as a place of assembly in the Government Gazette. However, at the time of writing, no place has been designated as such. What this effectively means is that there is no “designated place of assembly” in Malaysia and for all intents and purposes, one would need to inform the police 10 days in advance in order to hold an assembly. Hence, there is so far no practical exception to this requirement as advocated by section 9(2).
Other exceptions to the requirement of the 10-day notice is contained in Schedule 3 and includes the following:-
- religious assemblies
- funeral processions
- wedding receptions
- open houses during festivities
- family gatherings
- family day held by an employer for the benefit of his employees and their families
- general meetings of societies or association.
Under the new PAA, only a 10-day notice requirement is required. It is also to be noted that the 10-day notice is not permission nor permit by the police. As far as the organisers are concerned, the requirement is only to notify or inform the police of an intended assembly. The police have no power or authority under the PAA to refuse the assembly at the public place.
Under section 14(1), the police are required to respond within five days of the receipt of notification and inform the organiser of the restrictions and conditions imposed under section 15, if at all. If the police does not respond within five days, the assembly can go on as per the notification.
Upon examination at face value, it is observed that in order to hold an assembly, the requirement under the PAA is less onerous than under the Police Act 1967 (PA), section 27. The PA stipulated that a license is required to hold an assembly, for which the police had power to permit or reject such an application. Under the PAA, only a notification is required, and even then the police has no power to refuse the holding of an assembly. Instead, any assembly held in contravention of the PAA would be deemed an illegal rally.
However, it is to be noted that the conditions that can be imposed on the assembly is arguably unfettered. Under section 15 of the PAA, the police are able to give restrictions and conditions as follows:
(a) the date, time and duration of assembly
(b) the place of assembly
(c) the manner of the assembly
(d) the conduct of participants during the assembly
(e) the payment of clean-up costs arising out of the holding of the assembly
(f) any inherent environmental factor, cultural or religious sensitivity and historical significance of the place of assembly
(g) the concerns and objections of persons who have interests, or
(h) any other matters the Officer in Charge of a Police District deems necessary or expedient in relation to the assembly.
Effectively, the police are able to control the whole nature of the assembly and a right to assemble under the PAA! Imagine if the police said,
“You can only have five people at your assembly.”
“You are only allowed to assemble from 8 to 8.15 pm.”
“You are only allowed to squat during the assembly.”
“You are not allowed to shout or cheer during the assembly.”
“You are only allowed to use 10 square metres of the field.”
As such, these requirements are allowed to be made by the police in accordance with section 15. One observes how these requirements can be easily manipulated to completely cripple and disrupt the assembly with the effect of diluting the purpose of the assembly in the first place. Further, the police are able to make conditions or restrictions pertaining to “any matter that they deem necessary or expedient”, the PAA being silent on the extent to which this applicable. Any disobedience to the conditions or restrictions is tantamount to an offence.
While section 15 has yet to be interpreted by the courts, the extent to which the police are able to impose such conditions and restrictions are clearly a cause for concern. It is the author’s view that any indulgence provided by a lower requirement of a mere notification is impaired by the power accorded in section 15.
Further, section 4(1) states that the right to assemble does not encompass a “street protest” and that effectively, a “street protest” is illegal. However, the definition of “street protest” is unduly broad and unreasonable. Under section 3, a street protest is an open air assembly which begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes. This is why the PAA has various times been argued to be unconstitutional vis-a-vis Article 10 of the Federal Constitution.
An assembly is defined under the PAA as an intentional and temporary assembly of a number of persons in a “public place”, whether or not the assembly is at a particular place or moving. Therefore, it is also necessary to consider whether the venue at which the assembly is being held at is a public place. Under section 3, a public place is defined as follows:
(a) a road
(b) a place open to or used by the public as of right, or
(c) a place for the time being open to or used by the public, whether or not-
(i) the place is ordinarily open to or used by the public
(i) the place is ordinarily open to or used by the public
(ii) by the express or implied consent of the owner or occupier, or
(iii) on payment of money.
What this section effectively advocates is a broad concept of what constitutes public place, especially paragraph (c) which states that a place for the time being open to the public – even when it is not ordinarily so – is deemed to be a public place. The practical effect of this is that it is more likely than not that the assembly is held at a public place, and until and unless that place is a designated place of assembly under the PAA, the 10-day notice is required.
It is noted that the PAA does not provide an interpretation for an assembly that is regarded as “illegal”. However, if the lawful requirements are not met (i.e. as in section 9(1)) or conditions are not followed (i.e. as provided in section 15), then the assembly may be considered “unlawful” and therefore “illegal”.
The police have powers under section 20 of the PAA to arrest both the organiser and the participants of the assembly. A participant is a person who is voluntarily or intentionally present at the assembly. The powers of arrest at the assembly are as follows:
A police officer may, without warrant, arrest any organizer or participant:
(a) who, during an assembly, refuses or fails to comply with any restrictions and conditions under section 15
(b) who, during an assembly, has in his possession any arms, or
(c) who recruits or brings a child to an assembly other than an assembly specified in the second schedule.
However, before arresting, the police also have an obligation under section 20(2) to take necessary measures to ensure voluntary compliance by the organiser or participant.
It is to be noted that the power of arrest in the circumstances stated in section 20 pertains to conduct during the assembly. Where notice of an assembly is not given under section 9(1) of the PAA, the participants are not liable to arrest and conviction, but the organisers are. On conviction, the organiser may be liable to a fine not exceeding RM10,000.
Although participants are not liable to be arrested under the PAA for attending an “unlawful/ illegal” rally, there is a fall-back on the Penal Code. Under Article 141, an assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is:
i) 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
ii) To resist the execution of any law, or of any legal process, or
iii) To commit any mischief or criminal trespass, or other offence, or
iv) 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
v) 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.
Further, an assembly that was not “unlawful” to begin with can subsequently become as so.
Under Article 143, whoever is a member of an unlawful assembly shall be punished with imprisonment for a term which may extend to six months, or with fine, or with both.
Interestingly, a “member” (see Article 142 Penal Code) may be liable for a heavier punishment (imprisonment or fine, or both) as compared to the PAA (fine of maximum RM 10,000. The Penal Code has further offences relating to “Offences against the public” laid down in Articles 141 to 160 which provides for various situations that may occur during an “unlawful assembly” as defined in Article 141.
The PAA also does not confer any powers on the police to waive the requirement for the 10-day notice. It is therefore not within the powers of the police to give a waiver of such notification. In fact, the only provision contained is that the notification must be provided to them. Therefore, no matter what the newly retired IGP’s comments were on the #Black505 rally, it may not come to any legal significance where the interpretation of PAA is concerned. Either way, the courts are the final arbiter of this, and not the police force.