My article which appeared on LoyarBurok, The Malaysian Insider and Malaysiakini earlier.
The Peaceful Assembly Bill ("the Bill") which was recently tabled in the Parliament has attracted many criticisms. More so, this was due to the fact that the Bill was, and still is, supposed to be a fulfilment of one of the many promises made by the Honourable Prime Minister's on Malaysia Day 2011. Critics, most notably the Bar Council, however, have accused the Honourable Prime Minister of not living up to his promises and has broken his promises made on Malaysia Day 2011 (for instance, here). But is this really the case?
Due to my background as a member of MCA, I will be deemed to be far from neutral when I attempt to voice my views on this. The current political situation, it seems, has been shaped in such a way that few, if any, are seen to be able to be objective when dealing with issues surrounding us. Truth is, there are many who are apolitical and neutral when they look at the issues revolving around us. I am not saying that I am one, but there are some who would not just toe by their party lines, and there are also many who would not put on the partisan lenses when looking at those issues, whether or not they are members of any political party.
With that record set straight, I now wish to propose my contention that the Honourable Prime Minister did not break his promise made on Malaysia Day 2011 and I shall put forth my justification below.
To my mind, the crux of the Bar Council’s contention that the Honourable Prime Minister has reneged on his promises was based on a part of the Honourable Prime Minister’s speech made on Malaysia Day 2011. Through its Press Release dated 24th November, 2011, the Bar Council has quoted the Honourable Prime Minister at great length. One of the most important part, which appears at paragraph 4 of the said Press Release, reads as follows:-
"The Government will also review section 27 of the Police Act 1967, taking into consideration Article 10 of the Federal Constitution regarding freedom of assembly and so as to be in line with international norms on the same matter... (emphasis added)"
It is my honest believe, however, that this was not the promise made by the Honourable Prime Minister on Malaysia Day 2011. Before I move on to why, I wish to emphasise that I am not accusing the Bar Council, or any other person or organisation who has adopted the same part of the speech, of manipulating the words of the Honourable Prime Minister. Rather, I believe that there was a mistake on the website of the Prime Minister’s Office.
Those who have sat in front of the televisions or by the radios on that historical day would recall that the Honourable Prime Minister had actually spoke on Malaysia Day 2011 in Bahasa Malaysia. As such, the promises made by the Honourable Prime Minister on Malaysia Day 2011 must, as a matter of fact, have been made through Bahasa Malaysia, as opposed to English. In the same vein, if there is any conflict as to the transcript of the Honourable Prime Minister’s speech in Bahasa Malaysia and that in English, the transcript in Bahasa Malaysia shall prevail.
I do not have a single doubt that the part quoted by the Bar Council was in fact taken from one of the transcripts of the Honourable Prime Minister’s speech on Malaysia Day 2011. In fact, it appears on the website of the Prime Minister's Office. However, it differs from the actual speech made by the Honourable Prime Minister, which was made in Bahasa Malaysia.
For ease of reference, I wish to reproduce that part of the Prime Minister's speech on Malaysia Day 2011 in Bahasa Malaysia (and my translation of it in English), which corresponds with that quoted by the Bar Council above and reads, at paragraph 28 of the transcript, as follows:-
"Kerajaan juga akan mengkaji semula seksyen 27 Akta Polis 1967 dengan mengambil kira peruntukan Perkara 10 Perlembagaan Persekutuan tentang kebebasan berhimpun dengan prinsip menentang sekeras-kerasnya demonstrasi jalanan. Namun, kebenaran berhimpun diberi selaras dengan kaedah-kaedah yang akan ditetapkan kelak di samping mengambil kira norma-norma di peringkat antarabangsa." (my emphasis added)
When translated into English, the same part of the transcript should read as follows:-
"The government will also review Section 27 of the Police Act 1967 by taking into consideration the provision under Article 10 of the Federal Constitution on freedom of assembly, but with a principle that is strongly against street demonstration. Nevertheless, the approval to assemble will be given in accordance with methods that will be outlined later while taking into consideration international norms." (my emphasis added)
Based on the above, it is my honest belief that the accusation against the Honourable Prime Minister of breaking his promises made on Malaysia Day 2011 was mistaken, and premised on a flawed basis. Given the high standing of the Bar Council, a body highly regarded for its credibility and impartiality, I verily believe that the Bar Council would reconsider its view formed against the Honourable Prime Minister as stated in its Press Release dated 24th November, 2011. This, again to my honest belief, would be in line with the Bar Council’s objective of upholding the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour.
That aside, what is more important at hand is the contents of the Bill, which will, if passed, significantly affects the rights and freedom of many Malaysians. In this respect, I share many of the ideals of the Bar Council which are contained in its memorandum.
Firstly, considering the importance and significance of the Bill, it would be farcical if the passing of the Bill would be rushed through. From what it appears on the papers, it is hard to believe how the Bill is already going through its second reading when it was only tabled two days ago. Any sensible mind would tell you that something is amiss, given how long it took the Government to review section 27 of the Police Act 1967 which requires a permit for assembly to be held. Surely, we would not want our children and grandchildren to be bogged down by a piece of legislation which is not properly considered. As such, I agree with the Bar Council’s recommendation that the Bill be referred to a Parliamentary Select Committee which would engage in a public consultation process.
Secondly, one of the most controversial parts of the Bill is the outright, total prohibition of street protest. To set the record straight, I am not a firm supporter of street protest. It is my belief that the right and freedom to assemble, including that of street protest, must be balanced against the rights and freedoms of those who will be affected. It is simply because of this I believe the Government has, through its draftspersons, formulated sections 5 and 12 of the Bill to take into consideration the objection of those who will be affected. A total prohibition of street protest, however, is not a balance between the right and freedom of those to assemble and the right and freedom of those who will be affected. Rather, it is overly in favour of the right and freedom of those who will be affected. This is probably the reason why many civil society activists argue that the Bill is unconstitutional.
Support for the arguments that the Bill is unconstitutional, strictly based on section 4 of the Bill which prohibits street protest, can be found from the cases of Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 and Cheah Beng Poh & Ors v Pendakwa Raya [1983] 1 LNS 65.
In the Cheah Beng Poh case, Hashim Yeop A Sani FJ held at the Kuala Lumpur High Court as follows:-
“The court as guardian of the rights and liberties enshrined in the Constitution is always jealous of any attempt to tamper with rights and liberties. But the right in issue here i.e. the right to assemble peaceably without arms is not absolute for the Constitution allows Parliament to impose by law such restrictions as it deems necessary in the interest of security and public order. In my view, what the court must ensure is only that any such restrictions may not amount to a total prohibition of the basic right so as to nullify or render meaningless the right guaranteed by the Constitution.” (my emphasis added)
This was supported by the Federal Court in the case of Sivarasa Rasiah where the Federal Court, speaking through Gopal Sri Ram FCJ, held as follows:-
“Now although the article says ‘restrictions’, the word ‘reasonable’ should be read into the provision to qualify the width of the proviso… The correct position is that when reliance is placed by the State to justify under one or more of the provisions of Article 10(2) of the Federal Constitution, the question for determination is whether the restriction that the particular statute imposes is reasonably necessary and expedient for one or more of the purposes specified in that article.” (my emphasis added)
It is thus my considered view that the Government should not and cannot impose a total prohibition against street protest. In order to achieve the balance I have mentioned earlier, it is my humble suggestion that the Government should add to the restrictions and conditions, under Section 15(2) of the Bill, the following clause or clause(s) to the following effect:-
“In respect of street protest, it shall not take place within the radius of 1 kilometre from hospitals, fire stations and, if there is objection from person who has interests, such streets that would severely affect their trade activities and businesses.”
Thirdly, the prohibition of children from assembly and the definition of “child” under the Bill. As the Bar Council has correctly pointed out, under Articles 1, 13 and 15 of the Convention of the Rights of the Child (“CRC”), which Malaysia withdrew its reservations on 6th June, 2010, children are entitled to “the freedom to have their say, and the right to form associations and assemble peacefully”. However, it is my humble belief that these Articles of the CRC should also be read together with Art. 12 of the CRC which states that “State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely…”.
As I have written on the need to strike the right balance earlier, I believe that the prohibition against the participation of children from assembly should not apply to those who are able to form their own views. In this respect, there is no doubt that the maturity and ability of each and every child differ from one another. It is thus difficult for the Government to set an age limit. However, I strongly believe that most children of 15 years old today are sufficiently matured and able to form their own views. As an example, I recently discovered a Facebook group created by these young children where I was taken by surprise by how they have articulated and reasoned their views for and against the abolition of PPSMI in stages. As such, while seeking to strike the right balance, I propose that the definition of “child” under the Bill should be amended to apply only on children who are of the age of 12 and below.
Similarly, set at the minimum age of 21 years old, the restriction as to who can organise an assembly is unnecessarily restrictive. I strongly believe that the Government should have in mind that when we speak of assembly, it is not only limited to assembly for political causes. There are, often, other causes where people assemble. For instance, there may be young children who wish to hold a peaceful assembly to raise awareness of cervical cancer.
Further, the Government should also take into consideration that education for our young children do not, and should not, depend solely the education system. Organisational skill is one of those skills which they will need to succeed in their lives in the future. Stopping from them learning, practising and sharpening such skill outside school will only impede the healthy development of their minds and thoughts. Ideally, therefore, the age limit should be set at the age of 15 instead of 21, allowing the young children a buffer zone of 3 years to participate in any assembly, and observe and learn the skills of organising it, if they so wishes to.
Fourthly, the powers given the police under the Bill is too wide where the police “may take such measures as he deems necessary” and impose such restrictions and conditions as he “deems necessary or expedient”. Whilst the Bar Council has referred to several models of other jurisdictions to replace this, I personally prefer the British model. Therefore, it is my humble proposal that Sections 8 and 15 of the Bill should be amended in such a way that the police can only take such measures or impose such restrictions and conditions “to prevent serious public disorder, serious criminal damage or serious disruption to the life of the community”.
Fifthly, the notification of the planned assembly. Due to the choice of words used in both the Bahasa Malaysia and English versions of the Bill, there are confusions as to whether notifications are to be given at any time within 30 days before the proposed assembly, or at least 30 days before the proposed assembly. Section 9(1) of the Bill was very vague where it only states “within” or, in Bahasa Malaysia, “dalam tempoh”. If at all the word “within” could be interpreted to mean “at least”, like how it has been interpreted by some of the Opposition members and even senior lawyers, I am of the opinion that this will set a bad precedent which will severely prejudice the commercial contracts in this country which could be worth billions of dollars. For instance, to put things in perspective, under a standard Sale and Purchase Agreement for a property, the purchaser will usually have to pay to the vendor the balance purchase price “within” 3 months from the execution of the agreement. If, and only if, “within” could mean “at least”, would that not mean that the purchaser is supposed to pay the balance purchase price at least 3 months before the completion date? Nonetheless, given such confusion, I believe that the Government should amend the said provision so as to mean “at any time within 30 days before the proposed assembly”.
Whilst we are at this, the requirement of notification to replace the initial requirement of permit by the police is probably one of the biggest steps the Government has taken to march closer to greater, better democracy. The Bill as it is allows the organiser to organise an assembly at any time as long as it was notified to the police in the prescribed form. The police, under section 14 of the Bill, must respond to the notification within 12 days of the receipt of the notification where they can impose the restrictions and conditions under section 15, if any. However, if the police do not respond, section 14(2) of the Bill allows the assembly to proceed as proposed in the notification.
For the purpose of illustration, if the Bar Council plans to hold a candlelight vigil at Dataran Merdeka on 29th November, 2011, at 8 p.m., they only need to notify the police at 7.30 p.m. using the prescribed form under the 4th Schedule of the Bill. By 8 p.m., if the police fails to respond to the said notification, the candlelight vigil can proceed as planned.
That, I believe, is probably one of the best things under the Bill. If the Government is willing to take another step closer to greater democracy in such method as suggested above, the Bill will certainly be a much greater reflection of the want and efforts of the Honourable Prime Minister to transform the political landscape of this country. It is in such belief for the better growth and development of our beloved country that I pray that the Honourable Prime Minister and his Cabinet members will refer to the Parliamentary Select Committee, consult and adopt the public’s views on the provisions in the Bill.
