The Malaysian Insider
Why is it always the case that the Malaysian government, in the guise of improving the freedoms of its citizen, enacts laws that actually erode liberties?
Since 1960 when the Emergency was revoked, only to be immediately replaced by the dreaded Internal Security Act, 1960 ("ISA"), successive governments have taken state action to the detriment of its people. The Peaceful Assembly Bill, 2011, which had its first reading in the Federal Parliament yesterday, is another example of such retrograde law making.
I cannot believe that after 54 years of Merdeka in the 11th year of the 21st century, the Executive has the audacity to present a Bill, which, in its own Explanatory Statement, describes it as "one of the efforts initiated by the government to undertake the transformation of the existing legal framework in relation to the constitutional rights of citizens to assemble".
Fundamental liberties are enshrined in Part II of the Federal Constitution, the supreme law of the land. Article 10(1)(b) of the Federal Constitution provides that "all citizens have the right to assemble peacefully and without arms".
Freedom to assemble is not absolute; thus, the Federal Parliament may enact laws that have the effect of restricting such freedom in the interest of "security" or "public order". Case law has established that such Parliamentary restriction must be "reasonable" by objective standards.
Thus, Parliament cannot suffocate the enjoyment of such liberties. Freedom of assembly is invariably exercised together with other fundamental liberties like personal liberty (Article 5 (1)); freedom of movement (Article 9(2)); freedom of expression (Article 10(1)(a); freedom of association (Article 10(1)(c); freedom of religion (Article 11) and so forth.
In perhaps the most important constitutional case in our history, a five-member Federal Court in 1992 in the Nordin Salleh case, held that any state action that would render illusory or meaningless the exercise of any fundamental liberty is unconstitutional. Hence, the Court looks at the effect or consequence of state action.
It is against this background of constitutionalism, that the Peaceful Assembly Bill, 2011 must be scrutinised.
My first reservation is philosophical. The Bill introduces the concept of "interests, rights and freedoms of other persons", with the police having to weigh such interests, rights and freedoms with that of the persons who wish to assemble.
Hence, the inherent clash between Executive and citizen which characterises the eternal struggle for civil liberty has been extended to include the rights of other people — a classic extension of one of the oldest doctrines in politics : divide and rule.
In my opinion, a law that is intended to promote the exercise by citizen A and his friends of their right to assemble should not in any way be dependent on the right of citizen X and his friends to object or veto the former's right to assemble.
The fundamental freedoms under Part II of our Constitution do not contemplate such clashes between different groups of citizens which would inevitable develop into a contest between majority and minority, with the minority always being the casualty.
Accordingly, all references to "the interests, rights and freedoms of other persons" in the Bill are, in my opinion, without any constitutional basis. The same point can be made about the use of new expressions like "counter assembly" and "simultaneous assemblies".
Hence, the Parliamentary draftsman is deliberately giving power to the police to impose stringent restrictions and conditions under Paragraph 15 of the Bill that would have the effect of completely nullifying any freedom to assemble.
The Bill introduces a new type of assembly that I believe is unprecedented under our law, viz "street protest", which is defined in Paragraph 3 to mean: "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".
Paragraph 4(1) of the Bill imposes an outright ban on street protests. The current position is that if the police issue a license under Section 27 (2) of the Police Act, 1967, a "street protest" is permitted. Hence, the new provision in this "reforming" Bill make it worse by totally banning such types of assemblies.
This would be unconstitutional. Does this mean that, under this Bill, only assemblies that are not "street protest" are permitted? Yes.
What then are the features of such a permitted or sanitised form of "assembly"?
Part IV contains 11 separate provisions that specify the requirements before the police would approve the holding of such an assembly.
To start off, written notice of at least 30 days must be given to the police. Hence, spontaneous gatherings are not permitted. The First Schedule to the Bill contains 12 categories of "prohibited places", 50 meters from where assemblies cannot be held.
The Bill is so extensive in its reach, indeed, of Orwellian proportions, that daily innocent activities like funerals, weddings, family gatherings and meetings of associations have to be expressly excluded! The best way to test the efficacy of the Bill is to ask whether the assemblies organised by Bersih (1) or Hindraf before the General Election of 2008 would be permitted under the Bill.
The answer is clearly in the negative because they would be deemed "street protest", and hence banned. Likewise, the lawyers march to Putrajaya in 2007 to protest against the VK Lingam tape. Finally, Bersih (2) in July 2011 would also not be permitted.
And, yet, this Bill is presented by the government as a piece of reforming law to enhance political space! Try as one may, one cannot find any redeeming features in the Bill. On the contrary, the provisions are offensive, and will certainly not pass muster.
How in the name of "security" and "public order" this Bill can be enacted by Parliament is absolutely baffling. Are our leaders so out of touch? Can they ever tell the truth?
Are they aware of "Occupy Wall Street" as a global protest movement? What about the Arab Spring? Even sleepy, dull Singapore has had some kind of political awakening this year.
But let me conclude with our own example from history. Some 65 years ago, just a year after the Second World War had ended, and the British colonial power had returned to Malaya, they had the temerity to introduce the Malayan Union plan in 1946.
"Street protests" as defined in Paragraph 3 of the Peaceful Assembly Bill, 2011, became the order of the day. Indeed, Umno was founded by Onn Jaafar to lead the protests against Malayan Union.
The supremely ironic question is, if Hishammuddin Hussein had been in charge of such matters in 1946, would Umno have been founded, and his grandfather allowed to demonstrate and protest?
I call on all freedom-loving Malaysians to immediately contact their Members of Parliament to vote against this terrible Bill. Indeed, the government should withdraw it.
I would expect the Malaysian Bar to lead the opposition to this poorly designed law that is not only an insult to our constitutional rights, but also to our intelligence.
* Tommy Thomas is a senior lawyer of the Malaysian Bar.
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