BY SYAHREDZAN JOHAN
Unlike the Police Act before this, the Peaceful Assembly Act allows assemblies without prior notification.
IN Malaysia, freedom of assembly is a right that is protected by the Federal Constitution. All citizens have the right to assemble peacefully without arms.
However, the right to peaceful assembly is not absolute. Under the Federal Constitution, the right to peaceful assembly may be restricted by Parliament.
Parliament may enact laws that impose restrictions as Parliament deems necessary or expedient in the interest of the security of the Federation or public order. However, whatever restrictions imposed by Parliament must be proportionate to the purpose for which the restriction was imposed in the first place.
The Peaceful Assembly Act (PAA) is the primary law that governs peaceful assemblies in Malaysia. It must first be borne in mind that the Act only facilitates peaceful assemblies without arms, not violent protests, riots and the like.
So if there is a protest where the protesters threaten harm to persons or damage to property, then it is not a peaceful assembly and should be dealt with as a crime under the Penal Code.
Previously, under Section 27 of the Police Act, the organiser of an assembly must first obtain a permit from the Officer in Charge of a Police District (OCPD) before holding an assembly. If an assembly is held without a permit, then the assembly is deemed to be an unlawful assembly and anyone who attends or participates in the assembly would commit an offence.
Section 27 of the Police Act has been repealed and replaced with the PAA. Under the PAA, there is no longer a requirement to obtain a permit.
Instead, the organiser of an assembly must give notification to the OCPD at least 10 days before the assembly. Once a notification is given, the OCPD can impose certain conditions and restrictions on the intended assembly, but he has no power to completely prohibit or prevent the holding of that assembly.
However, unlike the Police Act before this, an assembly without the pre-requisite notification is not an unlawful assembly. The organisers would still have committed an offence under the Act and are liable to be charged, but the police cannot prohibit that assembly merely because notification is not given.
Of course, this is not to say that the police have no powers over an assembly. In fact, it is the role of the police to facilitate the assembly.
If the assembly turns into a riot, or if a crime is committed by members of that assembly, then the police have the power to stop the assembly and disperse the crowd.
What about the right to a counter assembly? This is also allowed by law, but only in so far as its objective is not to stop the other assembly from happening. One cannot rely on a constitutional right in order to deny others their constitutional rights.
The exercise of freedom of assembly has come a long way over the past few years in Malaysia. It appears that the authorities are more willing to facilitate peaceful assemblies compared to before, although there is certainly a lot of room for improvements.
Citizens are also more aware of their rights in this regard.
This is important. The right to protest and demonstrate is a crucial element in any democratic state.
A citizen must be allowed to assemble peacefully to express himself or herself for a particular purpose, free from unreasonable restrictions, harassment or intimidation.
> Syahredzan Johan is a partner of a legal firm in Kuala Lumpur with an interest in the laws that shape our country. He can be reached at email@example.com.
Article in Bahasa Malaysia
- Hak untuk berhimpun dengan aman — Syahredzan Johan [14 Nov 2016]