Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
8/4/2019 1 Comment
Malaysians' right to freedom of assembly, although cemented in the Federal Constitution, is a qualified right which may be restricted by the Parliament. The Peaceful Assembly (Amendment) Bill 2019 represented an opportunity for the rakyat to be better protected and secured in exercising their right to assemble.
Malaysians’ right to freedom of assembly is cemented in Article 10(1)(b) of the Federal Constitution. Nevertheless, it is a qualified right whereby the supreme law of the land permits the Parliament to enact laws imposing restrictions on two permissible grounds—national security and public order. In 2012, the Peaceful Assembly Act 2012 (“PAA 2012”) was passed, seeking to assure an individual’s right to assemble peacefully as part of the right of expression enshrined in the Federal Constitution. However, this piece of legislation was criticised as a “flawed law that operates on a skewed premise”. Besides, the chorus of calls for major amendments or a total overhaul of the Act have been heard for some time, and some members of the public even advocated for the Act to be repealed altogether.
On 4 July 2019, the Peaceful Assembly (Amendment) Bill2019 (“Amendment Bill 2019”), tabled by Home Minister Tan Sri Muhyiddin Yassin, was passed by the Dewan Rakyat. Subsequently, on 24 July 2019, the Amendment Bill 2019 was passed by the Dewan Negara. The amendment represented an opportunity for the rakyat to be better protected and secured in exercising their right to peaceful assembly. Therefore, this article seeks to determine whether such chance is utilised or lost by evaluating the salient features of the Amendment Bill 2019.
II. KEY FEATURES OF THE AMENDMENT BILL 2019: OVERVIEW AND EVALUATION
A. Decriminalisation of Street Protest
The Amendment Bill 2019 effectively removed street protest as a criminal offence. Home Minister Tan Sri Dato’ Muhyiddin Yassin emphasised that the amendment is part of the government’s effort to uphold the freedom of assembly and expression as enshrined in the Federal Constitution.
1. Long-awaited Green Light to Street Protest
Prior to the amendment, the PAA 2012 imposed a blanket ban on “street protests”, defined in S.3 of the Act as “an open air assembly that 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”. The original S.4(1)(c) of PAA 2012 explicitly provided that the right to organise or participate in a peaceful assembly does not extend to a street protest, and further made it into an offence under S.4(2)(c) of the Act.
These two sections successfully eroded the right to peaceful assembly; such a right should not have been limited to only static protests, but instead extended to processions and other forms of moving” assemblies. Protests have often inspired positive social change and catalysed the improvement in the protection of human rights. They have become a platform for individuals and groups to express their dissent and grievances, share views and opinions, expose flaws in governance and publicly demand the authorities to be accountable for their actions. Thus, an absolute ban of all kinds of demonstrations and marches by the Parliament is, in the author’s view, an overreaching restriction on the right to peaceful assembly.
Emeritus Professor Datuk Dr Shad Saleem Faruqi, a renowned constitutional law expert in our country, had previously criticised that a total ban, without linking it to public order and national security, may well fall afoul of Article 10(2) of the Federal Constitution. However, in the 2013 case of Dato’ Seri Anwar bin Ibrahim v PP where the constitutionality of the ban on street protests was challenged, the High Court held that S.4(1)(c) and S.4(2)(c) did not contravene Article 10. Thus, the sections were held not unconstitutional. Kamardin Hashim J, in delivering the judgment, explained that the ban on street protest was necessary in a democratic society for the protection of morality, rights and freedom of others. His lordship then concluded that this prohibition imposed by the Parliament was reasonable in the interest of national security and public order.
However, with due respect, the decision of Dato’ Seri Anwar bin Ibrahim failed to appreciate the spirit of Article 10—that the Parliament should only impose reasonable regulations on the rakyat’s right to organise and participate in a peaceful assembly. Despite knowing that a street protest can be peacefully held, the court went on to categorise the nature of street protest by lumping together violent and non-violent forms of it and, consequently, affirmed the Parliament’s outright ban on street protests in our country. Although Kamardin Hashim J stated clearly that “street protest can be either non-violent or violent”, his lordship did not further analyse the nature of these protests, neither did his lordship consider the possibility that the concurrent ban on peaceful street protests may run afoul of Article 10(2) of the Federal Constitution.
Pursuant to the Amendment Bill 2019, the prohibitions on street protests are lifted and the organising and participating of such protests are no longer offences under the PAA 2012. The police force will also no longer have the power to disperse a street protest. Hence, street protest is now included in the spectrum of peaceful assemblies. The Bill explained that the proposed amendment came in the wake of a shift in government policy which views the right to assemble peacefully and without arms as including street protests, as long as they do not either pose a threat to public order or infringe the rights and freedom of other persons.
2. Vindicating Right to Street Protest: Fears of Lawlessness
It is true that street protests have the potential to disregard the element of peace which can jeopardise public safety and social economy. Allowing street protest will, to a certain extent, transgress the “rights and freedom of other persons”—defined under S.3 of PAA 2012 to include the right to peaceful enjoyment of one's possession, the right to freedom of movement, the right to enjoy the natural environment and the right to carry on business. However, a proper balance must be struck when restricting protests on the basis of protecting the rights of others, especially those who live, work or carry on business in the affected locality.
The balance should always fall in favour of those asserting the right to protest, as it is part and parcel to their freedom to assemble peacefully, unless there is strong evidence to justify the interference of that right. Mere inconvenience should not be the sole reason to restrict protests. Not to mention, existing laws are adequate to respond to street demonstrations and protest marches that are out of control, examples of these provisions are:
i. The Police Act 1967: S.26 of the Police Act empowers the police force to erect road barriers to prevent any person or vehicle from passing through for the maintenance and preservation of law and order.
ii. The Peaceful Assembly Act 2012: Although now the police no longer has the power to disperse a street protest, under S.21 of PAA 2012 they can still do so if any person at the protest does any act which promotes feelings of ill-will or hostility amongst the public or disturb public tranquillity, or if he commits an offence under any written law, or if he engages in unlawful or disorderly conduct or violence towards persons or property.
iii. The Penal Code: Its Chapter VIII (Offences Against the Public Tranquillity) deals with offences committed during a street protests that triggered violent crimes and public disorder, such as:
iv. The Criminal Procedure Code (“CPC”): The police force is also conferred by S.83 of the CPC the power to disperse an “unlawful assembly” as defined under S.141 of the Penal Code, or an assembly which is likely to cause a disturbance of the public peace. Further, S.84 of the CPC prescribes that if any unlawful assembly commanded to disperse does not disperse, police officer, armed forces or any other person acting in aid of them may do all things necessary for dispersing the persons and may use such force as is reasonably necessary for overcoming resistance, if any person makes resistance.
v. The Public Order (Preservation) Act 1958: Under S.3 of the Act, the Home Minister may proclaim an area to be in a “state of danger to public order” to maintain or restore public order, if that area is seriously disturbed or threatened. As long as the proclamation remains in force, the police force is accorded with considerable power, such as to control the use of roads, to disperse street protest, to erect barriers on roads and to arrest without warrant any person involving in a breach of the peace in the proclaimed area.
Undoubtedly, concerns will be raised that the amendment may lead to violent street demonstrations, similar to what has taken place in the recent Hong Kong anti-extradition bill protests. However, these are extreme cases and it is a fallacy to think that outlawing street protests will serve as the remedy. Whether or not street protests are banned, non-peaceful street protests still cannot be prevented altogether. It must be noted that most street protests alike, with proper supervision, can be and have been peaceful. Hence, one cannot point to extreme cases and circumstances as a means to justify the complete abolition of a fundamental right.
Peaceful street protests encourage the development of an engaged and informed citizenry and strengthen representative democracy by enabling direct participation in public affairs. Therefore, in decriminalising street protests in our country, the government seems to be indicating that it appreciates the distinction between a peaceful and a violent street protest and thus, recognising and respecting the rakyat’s right to the former. It represents a progressive interpretation of the right to peaceful assembly and the blossoming of human rights protection in Malaysia. In this instance, the government should indeed be complimented.
B. Shortening of the Notification Period of an Assembly
The Home Ministry, in March 2019, hinted that they will amend the 10-day notice under S.9(1) of the PAA 2012 that requires organisers to submit a notice to the police within the stipulated time before holding an assembly. The Amendment Bill 2019 initially proposed to reduce the 10 days prior notice to 7 days. Later, the Bill was passed with amendments at the committee level which includes shortening of the notification period of holding an assembly to 5 days.
1. History of the notification requirement
Historically, prior to the enactment of the PAA 2012, public assemblies were governed by the Police Act 1967. The catch-all S.27 of the Police Act obliged all assemblies to obtain a licence in advance from the Officer in Charge of a Police District (“OCPD”).
Later, the provision was repealed and replaced by the PAA 2012, which was enacted to govern and facilitate the right to assemble peaceably and without arms. There was no longer a requirement for a police permit and instead, an organiser merely has to give notification to the OCPD 10 days in advance, failure of which will constitute an offence. The notice should contain particulars such as the name and details of the organiser, the purpose of the assembly, the date, time and place of the assembly and also the expected number of participants. The notice information are required to enable the police to carry out necessary consultation with the relevant stakeholders in the proposed area of the assembly and to ensure that necessary security measures can be taken.
This was a commendable paradigm shift for previously, under the Police Act regime, the OCPD has the final say whether or not an assembly can be held. Thus, the police was made the arbiter of the rakyat’s exercise of their constitutional right to peaceful assembly. Further, an assembly held without police permit was deemed to be an unlawful assembly and anyone who attends or participates in the assembly will be guilty of an offence. The police could then stop such illegal assembly. This determining power no longer exists under the PAA 2012, and the police can only impose certain conditions and restrictions on the intended assembly for the purpose of security or public order, such as the date, time and duration of the assembly, the place of the assembly or the manner of the assembly.
2. Change Brought by the Amendment: The Elephant in the Room
Now, the Amendment Bill 2019 has shortened the notification period of holding an assembly from 10 days to 5 days. In responding to the calls to abolish the notification requirement altogether, Home Minister Tan Sri Dato’ Muhyiddin Yassin explained that the authorities need a reasonable period of time to make appropriate plans and preparation to ensure peace and security which includes deploying the required number of manpower for each assembly.
The change is a positive amendment, yet the fundamental issue still exists—the playing of the “no license, hence unlawful” card all the while to disincentivise lawful assemblies by the police. Gone are the days when S.27 of the Police Act was still good law—the police must now understand that they no longer have the authority to issue permits or render assemblies illegal. Yet, the police continue the talk of “not allowing” the holding of protests and rallies. They had been declaring assemblies as illegal for failing to apply for police permit, such as the #KitaLawan rally in 2015 and the recent International Women’s Day march. They have also been calling off assemblies for the same reason, such as the Youth and Employment in Sarawak: Opportunity or Challenge forum and the Chat with Rose Series No 1 public debate.
Police agencies by their nature are the ones who we think will abide by the law and, thus, it is dismaying that they have themselves turned a blind eye to it. The improvements made on the notification requirement will be rendered futile if the police continue to stand firm to the need of a police permit when it is no longer required. The Court of Appeal in PP v Yuneswaran a/l Ramaraj termed it precisely and concisely: “under the PAA, the police have ceased its function as a decision maker. Instead, they have assumed the role as a regulator and facilitator for peaceable assembly.” Thus, it is incumbent for the police to respect the black letter law in the PAA 2012 to give effect to the improvement flowing from the shortening of the notice period.
C. Power to Compound Offences: Insertion of Section 21A in the PAA 2012
The compounding of an offence, or composition, refers to the settlement of a charge. This avoids prosecution in a court of law in exchange for a payment of a fine to the authorities. Composition is becoming more important in the criminal justice system. An offence will normally be compoundable if it is relatively minor, provided that such composition will not be against public interest.
The newly added S.21A to the PAA 2012 confers on the OCPD, with the permission in writing from the Public Prosecutor, the power to compound offences falling under S.9 (failure to notify the police on a peaceful assembly) and S.15 (failure to comply with restrictions and conditions on an assembly issued by the OCPD). The OCPD, if he exercises such power, will then make an offer to the accused to compound the offence by a payment of money not exceeding RM5,000. S.21A(4) further stipulates that a compounded offence will prevent an accused from being prosecuted, and his property seized in connection with the offence may be released, subject to terms the OCPD thinks fit.
This amendment represents a positive change, as those who violate S.9 and S.15 of the PAA 2012 will be afforded an opportunity to reprieve from major legal consequences. The prosecution of any criminal offence will demand an accused to make an appearance in a criminal court for hearing and trial, thereby understandably taking a toll on his time, reputation, finance and effort. Thus, composition of the specified offences will relieve the defaulter of these painstaking formalities, acquitting him and prevent further penalties or prosecution.
Provisions under the PAA 2012 had been previously mauled for being misused to target and repress government critics in the country. Especially parliamentarians from the opposition bloc, the Act can be abused to disqualify them from standing for elections. If found guilty under S.9 or S.15 of PAA 2012, one may be fined up to RM10,000. Under the Federal Constitution, existing parliamentarians who are slapped with a fine amounting to more than RM2,000 may be disqualified from holding office and contesting in the next election. Hence, the Home Minister opined that with this amendment, Members of Parliament can be rest assured that violation of such provisions will not be classified as a crime. Thus, parliamentarians will not have to risk losing their seats or eligibility to contest in elections due to the offences in the amended PAA 2012.
The only flaw of this amendment is the vexed accumulation of power in the hands of a single person, that is, the Attorney-General cum Public Prosecutor. In our country, the Attorney-General is the principal legal adviser to the government and at the same time the Public Prosecutor with absolute discretion to initiate a prosecution. Since the compounding of offences under S.21A requires the consent in writing from the Public Prosecutor, the Public Prosecutor may still be influenced by the government in consenting it. Discretion of the Public Prosecutor can be potentially misused to refuse composition and to disrupt political opponents with the charges. Nevertheless, the addition of S.21A is still remarkable in effect and not completely overshadowed by this flaw.
III. CLOSING REMARK
The amendment marks a promising development in the right to peaceful assembly in our homeland. However, there are some significant blemishes that persist even after the amendment, among others:
The effort of the government to amend the PAA 2012 is indeed welcomed. It, at least, assures the rakyat that the government included in their agenda the protection of this fundamental pillar of democracy. Through peaceful assemblies, the rakyat is enabled to stand up for their civil, political, economic, cultural and social rights—to fight against repression, demand sustainable development and thereby, contributing towards the progress of the country. The current assembly law in our country is progressively improving, but the best is yet to come. All eyes are on the Pakatan Harapan government to revise and amend several harsh and controversial laws as promised in their manifesto, including the PAA 2012. The Amendment Bill 2019, despite noteworthy, should not be the full stop to reforms towards the PAA 2012. The author hopes that the government continues this momentum to carve a brighter future for our nation’s democracy.
Written by Benjamin Kho Jia Yuan, a final year law student of the Faculty of Law, University of Malaya.
Edited by Zafirah Jaya.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
 Federal Constitution, Article 10(2)(b).
 Peaceful Assembly Act 2012 (Act 736).
 SUARAM (Suara Rakyat Malaysia), Malaysia Human Rights Report 2012: Civil and Political RIghts, (Selangor: Suara Inisiatif Sdn Bhd, 2012), at 106.
 Peaceful Assembly (Amendment) Bill 2019.
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 ARTICLE 19, The Right to Protest: Principles on the protection of human rights in protests, (London: ARTICLE 19, 2016), at 2.
 Shad Saleem Faruqi, Our Constitution, (Selangor: Sweet & Maxwell, 2019), at 149.
 Dato’ Seri Anwar bin Ibrahim v PP  3 MLJ 103 (HC).
 See footnote 9 above, at 107.
 S.21(1)(b) of the Peaceful Assembly Act 2012, which granted the power to the police to disperse street protest, is now removed.
 Peaceful Assembly (Amendment) Bill 2019, Paragraph 3 of the Explanatory Statement.
 See footnote 7 above, at 13.
 Police Act 1967 (Act 344).
 Penal Code (Act 574).
 Criminal Procedure Code (Act 593).
 Public Order (Preservation) Act 1958 (Act 296).
 Public Order (Preservation) Act 1958, S.4.
 Public Order (Preservation) Act 1958, S.5.
 Public Order (Preservation) Act 1958, S.6.
 Public Order (Preservation) Act 1958, S.13.
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 See footnote 7 above.
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 Abdul Gani Patail, “Speech by Tan Sri Abdul Gani Patail, Attorney General of Malaysia, at the Opening of the Legal Year 2012 (14 January 2012)”,  1 Malayan Law Journal cxiii-cxxiii, at cxx,
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 Lim, Ryan David and Selene Yap, “Composition: Legal and Theoretical Foundations”, (2015) 27 Singapore Academy of Law Journal 462-479, at 465.
 Ram Anand, “Najib using courts to disqualify rivals before elections, says Bersih”, The Edge Markets, 12 Nov. 2015, 25 July 2019 <https://www.theedgemarkets.com/article/najib-using-courts-disqualify-rivals-elections-says-bersih>.
 Under Articles 47 and 48 of the Federal Constitution, a person is disqualified from contesting or can become disqualified after he is elected, inter alia, if he has been convicted of a criminal offence and sentenced to 1 year’s imprisonment or a fine of RM2000 or more.
 Syed Umar Ariff and Arfa Yunus, “Parliament decriminalises street protests”, New Straits Times, 4 July 2019, 25 July 2019 <https://www.nst.com.my/news/nation/2019/07/501559/parliament-decriminalises-street-protests>.
 Federal Constitution, Article 145(2).
 Criminal Procedure Code, S.376(1) read together with Federal Constitution, Article 145(3).
 R. Loheswar, “Hakam rights group urges Putrajaya to lift all curbs on public protests”, MalayMail, 2 July 2019, 26 July 2019 <https://www.malaymail.com/news/malaysia/2019/07/02/hakam-rights-group-urges-putrajaya-to-lift-all-curbs-on-public-protests/1767369>.
 Peaceful Assembly Act 2012, S.4.
 UN General Assembly, United Nations Convention on the Rights of the Child, opened for signature 20 Nov. 1989, UNTS (entered into force 2 Sep. 1990).
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 Peaceful Assembly Act 2012, S.9(2)(a).
 Fadzil Zainol, “Parlimen: Mansuh larangan protes jalanan”, Utusan Online, 4 July 2019, 11 July 2019 <http://www.utusan.com.my/berita/nasional/parlimen-mansuh-larangan-protes-jalanan-1.930235>.
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 See footnote 53 above.
 See footnote 7 above, at 4.