Peaceful Assembly Bill: Najib Not Breaking Any Promises

The Peaceful Assembly Bill (“the Bill”) which was recently tabled in Parliament has attracted much criticism. 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 on the eve of Malaysia Day 2011. Critics, most notably the Bar Council, however, have accused the Honourable Prime Minister of not living up to his promises, and claim that he 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. The 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 their party lines, and there are also many who would not put on 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. 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 24 November, 2011, the Bar Council has quoted the Honourable Prime Minister at great length. One of the most important parts, 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 belief, 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 sat in front of their televisions or by their radios on that historic 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 24 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 in 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 protests. 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 6 June2010, 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 mature 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 wish.

Fourthly, the powers given to 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 is confusion 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 29 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.

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Posts by Eric Choo

Eric Choo is a young lawyer practising in Melaka and the current Legal Bureau Chief of MCA Jasin, Melaka. He tweets at @choows and describes himself as an idealist who wish to see his country progress as one without being divided by ethnicity, race or religion. He believes and hopes that such change can come from MCA. He encourages young men and women who thinks alike to come on board to this journey of political transformation, regardless of your political inclination.

Posted on 25 November 2011. You can follow any responses to this entry through the RSS 2.0.

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20 Responses to Peaceful Assembly Bill: Najib Not Breaking Any Promises

  1. I do agree with all the ideas you have presented in your post. They're very convincing and will certainly work. Still, the posts are too short for newbies. Could you please extend them a bit from next time? Thanks for the post.

  2. "Too early to tell. More amendments r coming, the intention is definitely good. Otherwise, police's discretion under S27 police act is tooo wide."

    Time will tell us, but I am not optimistic at all, after seeing what has hapened on the past on similar situations.

    Ming Vonsalis

  3. "Too early to tell. More amendments r coming, the intention is definitely good. Otherwise, police's discretion under S27 police act is tooo wide."

    Time will tell us, but I am not optimistic at all, after seeing what has hapened on the past on similar situations.

    Ming Vonsalis

  4. Nicholas Wong

    I find that you make your stand rather well, and despite whatever issues people may bring up about your membership in the MCA, I think you deserve the benefit of the doubt – so political affiliations should not be the issue of contention here.

    What I contend is that disputing what Najib purportedly promised the rakyat during his speech is more a technical issue. And while I must commend your well-reasoned arguments – taking a look at the original Malay transcript of his speech was a good thought – I think that the reason for the backlash against the proposed Bill is that Najib in essence was appearing to promise reforms and advancements, not restrictions, on human rights. Why debate whether or not Najib broke promises when the new laws he is trying to enact are, plainly, more restrictive than what we already have?

  5. seriously, I am just a rakyat that try to make my living. Both side has ask for my vote and I only see both sides keep stabbing each other. Look at our Malaysia work force competitiveness today in Asia region, look at crime rate, look at inflation, are they all have nothing better to do?

  6. Lua Bo Feng

    Dear Choows, Thank you for providing an alternative view on PA2011, as this is what democracy is about – disagreements and respect for disagreements.

    I find your article most enlightening, but I believe the comparison between Cheah Beng Poh case and Sivarasa Rasiah case is mistaken.

    In Cheah Beng Poh (as highlighted by you) , the Q is whether restrictions imposed amounted to a TOTAL PROHIBITION.

    In Sivarasa Rasiah (as highlighted by you), the Q is whether restriction is REASONABLY NECESSARY

    The threshold for both cases differs:
    Cheah Beng Poh imposes a standard where ALL RESTRICTION OK unless amounts to total prohibition
    Sivarasa on the other hand will find restriction to be disproportionate if NOT REASONABLY NECESSARY

    Mistaking this two test is highly dangerous as it is misleading to lay persons.

    I do not believe that a lawyer will say that both tests is the same consciously. As such, I think you may have overlooked this vital distinction.

    • Tai Zee Kin

      In cheah beng poh's test for total prohibition, Eric was refering it to explain s4(c) of the bill, which is a total prohibition of street protest.

      Where restrictions is concerned under sivarasah case, its more on s(12) of the bill, which spells out what kind if restrictions police 'may' impose pertaining a notification for peaceful assembly

  7. Long Live Bersih

    Quote: The truth is, there are many who are apolitical and neutral when they look at the issues revolving around us. End of Quote.

    Eric Choo's arguement what the PM promised is fundamentally flawed and in any case wWe Malaysian must not be burdened with a restrictive law that put more power into the police and Home Minister. Recent events had shown how the police and the GOM robbed the people of the rights to peaceful assembly. And from the recent cout rulings and conduct in the Perak Fiasco, the Rakyat take even less comfort in the judiciary to be independent and be the check and balance to executive excesses.

    • Tai Zee Kin

      Fundamentally flaw? Do explain how so, best if u have reference to rule of law n international norms and comvetions instead pf mere rhetorics and anecdotes.

  8. vincent

    Many readers above appeared to be blind–being led by the blind….
    The learned Eric Choo merely attempted to explain that PM NTR did not promise us anything on the freedom of "street demo". (Street dancing is certainly no problem. Jom to Pavilion to see the shows.)
    It was of course unfortunate that those loyar pandai who accused PM of lying did not read the BM text….
    Well done, my learned friend Eric.

    Advice: Next time you just write and publish your opinions. Let readers judge you by your arguments. There is no need to tell the world that you are a youth member of that party now presided by a sinner CSL. This is because "establishmentarians" nowadays are the underdogs/ "the mouses which are crossing the street, which everybody wants to bash" (Chinese proverb).

  9. Arunzab

    That any good will come from a party that you belong to which is led by a tainted leader makes me want to laugh.Let's see if you still have a party to belong to after the next elections.

  10. Lone

    Join Bn and also surrender your brain too, even if it happens to be one-celled.

    • Tai zee kin

      Rather , lets join PR and go on with personal atacks. Very mature indeed to habe undermined the whole argument with 'surrender your brain' . Well done in keeping urs.

  11. lizzie

    So within 30 days means can be just 1 day? Does the writer think the police will interprete it as such? After all, if the police 'boh-song' the assembly cannot jalan. Right? Anyway, if I am unhappy about something, why would I want to scream my lungs out in my bathroom? The point is about making the issues known to the masses so that I can either, alert them of the impending evil, or win them to my side. Right? This bill is banishing protesters to a quiet corner, and is against my freedom of expression. I think, when a person joins the BN, they also surrender their heart and soul….

  12. Lone

    My god, herer comes another "sum sook". Please to continue. Another 'Boh Hoot".

  13. Dinozilla

    So yea….He not breaking any "Promise"….is that a justification for a more suppresive law???
    you are "qualified" lawyer…you tell me…

    As a law student before, you tell me what you studied in law school, and how it is justified for a law to be implemented in a society.
    What John Rawls taught us…

    You may be able to justify he is not breaking promise, but wonder how you justify this tabling law is a "good" law.

    • Tai zee kin

      Too early to tell. More amendments r coming, the intention is definitely good. Otherwise, police's discretion under S27 police act is tooo wide.

  14. K. P. VARAN

    "The fault Dear Brutus lies not in our stars but in ourselves…." Cassius in Shakespeare's Julius Caesar. Accordingly, the fault Dear Malaysians lies mot in th Stars but in ourselves for the brazen stupidity in electing clowns and nin compoops to high office. Given a few Rinngit and some perks during Election time, most of us swing and vote for the clown. Rhetorics and false promises and lies are what these inpower now live on while looting the Nation of its wealth. No one seem to bother that all these will affect our future generations in terrible ways.

    Like Zimbabwe we may be having Trillionaires instead of Billianaires with the Trillion Rinngit notes in the pocket. Or like Greece face the possibility of mass downsizing of the Civil service, reduction in ranks and a massive cut in the Pensions.

    Even Burma is getting out of the rut. It looks like Asean meetings in future would have to transfer the positionof Burma to Malaysia and look towards interceding in the decline of law and morality in Malaysia.

    It is now up to the Rakyat to SAVE OUR BELOVED MALAYSIA from the ghouls from hell hole who have crept into power.

  15. charleskiwi

    I am surprised that you are a lawyer but again not surprised that you are of the opinion that the P.M. has not broken his promises like all the lackeys in MCA. Perhaps you can tell me if for example when he promised to give scholarships to all the top students, regardless of their races. At the end when the scholarships were given why was it that only the Malays or to be precise the NEM (Never Enough Money) Malay students were sent to further their studies abroad as their scholarship when the top non Malay students were sent to the near empty local varsities, of high school standards which was clearly not good enough for the NEM Malay students. Is this the kind of empty promise he kept ? Didn't he promise the organizers of Bersih 2 that they can hold their rally and then turned back not only to ban them from the rally he even made it illegal for anyone to attend it and had the police out to impede the rally for a clean and peaceful one.
    Or should I list herein more of the kind of promises he kept ?

    • Tai zee kin

      Eric was making a specific reference to the bar council’s accusation of PM breaking his promise made during malaysian day in respect to the freedom of assembly. Would appreciate if one could focus on the issue in their comments, and prevent from digressing to irrelevant points, which shoukd be voiced at the appriorite online forum.