In our Selected Exhortations category, we republish interesting stuff such as must-read articles and essays not originally written exclusively for the blawg, and which have come to our attention. Please feel free to email [email protected] if you would like to reproduce your writing, but first follow our Writer’s Guide here.
This piece is by Amanda Whiting is Associate Director (Malaysia) Asian Law Centre, The University of Melbourne, who is currently writing a history of the Malaysian Bar. It was previously published on New Mandala. The footnotes in the original post have been incorporated into the body of this reproduction.
The process of enacting the Peaceful Assembly Bill 2011 and the public debate and disappointment this has engendered illustrate some of the worst, and yet also some of the most encouraging, aspects of the law and legal culture in Malaysia.
When Prime Minister Najib Razak announced on Malaysia Day this year his government’s plan to annul three of the four Proclamations of Emergency (those of 1966, 1969 and 1977) and the Emergency Ordinances made under them, replace the Internal Security Act 1960 with a more enlightened anti-terrorism law, and review or abolish laws inconsistent with the constitutional right to freedom of speech, assembly and association, many people dared to hope that his UMNO-led Barisan Nasional government had finally appreciated the magnitude of public disapproval, manifest in the reduced majority for UMNO in the March 2008 election, and the massive assembly of citizens rallying on July 9 this year to support Bersih 2.0’s campaign for clean and fair elections, to choose but two of many examples.
Hearing or reading his speech, and in the aftermath, as the Attorney-General’s Chambers began low-key and invitation-only consultations on law reform, people indeed allowed themselves to hope that UMNO really meant that it would work towards “creating […]a Malaysia that practices a functional and inclusive democracy where public peace and prosperity is preserved in accordance with the supremacy of the constitution, rule of law and respect for basic human rights and individual rights”. [Prime Minister’s Malaysia Day Speech, 15 September 2011]
Yet when the Peaceful Assembly Bill was tabled in Parliament on 22 November 2011, that hope was replaced by bitter disappointment or outright cynicism, since it was apparent that the new law was in many ways worse than the old, despite the fact that it is modelled closely – but with telling differences – upon Queensland’s relatively progressive Peaceful Assembly Act 1992.
Under the previous law regulating assemblies, which is currently being repealed (sections 27-27C of the Police Act 1967), any rally or march that took place without a police permit was unlawful, and organisers of, and participants in, an unlawful assembly, or people who disobeyed police directions in relation to the gathering, could be fined between 2,000-10,000 ringgit (approximately AUD $626 – $3,130), and jailed for up to one year.
Police discretion to refuse a permit was more or less unfettered (the “security of Malaysia” and “disturbance of the peace” often being generously construed by the police), and there were no limitations upon the conditions police could place on a permit once granted.
In other words, the freedom of assembly guaranteed in article 10 of the Federal Constitution has long been severely curtailed by a statute that was arguably unconstitutional because it all but negated the right it purported to regulate, as critics such as human rights NGOs Suaram and Aliran, and the National Human Rights Commission (Suhakam) have repeatedly pointed out.
The Peaceful Assembly Bill, once it comes into force, will replace these sections of the Police Act with a more detailed, but even more restrictive, set of provisions. It might more aptly be called the Prevention of Assembly Bill. For example, only Malaysian citizens – and so not the more than 2 million foreign workers, refugees and asylum seekers currently resident in the country – can participate in an assembly.
Moreover, organisers must be at least 21 years of age, and participants 15 years of age or older. No such restrictions existed in the Police Act. Moreover this age restriction sits oddly alongside the noises the government is making about winding back the constraints the University and University Colleges Act 1971 places upon students participating in politics.
Street protests, defined as marches or rallies to advance a cause, rather than static gatherings, are now prohibited (although, confusingly, processions are allowed), whereas previously they were permissible. Section 4, which purports to set out the right to organise and participate in an assembly, in fact itemizes restrictions and completely fails to refer to, or in any way recognise, the entrenched constitutional basis of the right, or the purpose of the Act to further and protect, rather than diminish, the right.
This is in stark contrast with the Queensland law, which commences the parallel section (section 5) with a clear recognition that ‘a person has the right to assemble peacefully with others in a public place’ and that ‘the right is subject only to such restrictions as are necessary and reasonable in a democratic society’ and in the interests of public order, safety, and protection of the rights and freedoms of others.
In place of the application for a permit required by the Police Act, the Peaceful Assembly Bill requires advance written notice of the intended assembly to be given to the police, including precise information about time, duration, location, purpose, and identity of the organisers and all speakers, and the police have an almost unlimited discretion to impose conditions and restrictions.
The PM’s assertion that the Bill abolishes the requirement for prior police permission is thus not accurate – it only does so for gatherings that are already ‘private’ such as weddings, funerals, family occasions and the general meetings of societies (Schedule 3), or those to be held at places designated by the Minister. If the police do not impose conditions in response to the notification, it would appear that the assembly is deemed to be authorised. This is one of the few positive aspects of the Bill. Amongst the factors that the police may consider are ‘cultural or religious sensitivity’ and ‘the concerns and objections of persons who have interests’ (defined to mean people who own property, live, work or carry on a business in the vicinity of the proposed assembly).
While the list of factors is mostly based on section 11 of the fairly benign Queensland Act, one difference in application between the two is likely to be grounded in the lamentable and well-documented readiness of the Malaysian police to entertain the complaints and often outlandish allegations of right-wing pressure groups, such as Perkasa and similar ethno-supremacist organizations, that their religious or race ‘sensitivities’ are offended by the expression of alternative views. Police refusal to allow Seksualiti Merdeka to hold its annual gathering is a recent case in point.
Another significant difference is with the role of the courts. Whereas aggrieved Queenslanders may apply to a Magistrates Court to expedite an application, and the police must seek a court order to prohibit an assembly – thus interposing an independent layer of review between citizens and the executive – Malaysians are directed to appeal from the police to the relevant Minister, in other words from the executive to the executive, without any court oversight. (It may, however, be possible to seek judicial review of the Minister’s decision, since, unusually for a Malaysian statute, the Peaceful Assembly Bill does not oust the jurisdiction of the court.)
Apart from the prohibition on street marches, the Peaceful Assembly Bill also forbids public assemblies within 50 meters of a ‘prohibited place,’ itemized in the First Schedule to include utilities and petrol stations, fire stations, hospitals, schools, places of worship, airports, docks, bridges and piers, and railways. Furthermore the Minister may gazette additional places, thereby extending the prohibition. Likewise, the Minister may gazette certain areas as ‘designated assembly places’, a provision presumably designed to corral protestors into out-of-the-way sporting arenas or similar venues. Obvious anomalies aside, such as the apparent prohibition on members of a faith group holding an assembly in the vicinity of their own place of worship, it would appear from the extensive list of prohibited sites that it will be extremely difficult to hold a public assembly in an urban area.
Organizers and participants have extensive responsibilities to abide by all these requirements, and are liable for penalties of up to 20,000 ringgit (approximately AUD $6, 260) for non-compliance, double the Police Actpenalties (although it seems that imprisonment has been dropped). Furthermore, the police may without warrant arrest any person failing to comply with a restriction or condition, and may also order the assembly to disperse if it becomes a street protest, encroaches on a prohibited area, or the participants fail to comply with stated conditions. In doing this, police may ‘use all reasonable force.’ In sum, the Bill does nothing to curtail the potential for arbitrary exercise of police powers, but much to enable it.
Aside from the obvious defects in the text of the Bill, what does this law ‘reform’ exercise, and the reactions it provoked, reveal about law and law-making in Malaysia? In the deficit column, we can place the irresolution, amounting to double-speak, of the government. Prime Minister Najib promised better alignment of Malaysian laws with both Malaysian constitutional foundations and international human rights principles (although, as lawyer Eric Choo pointed out, there are important discrepancies between the undertakings PM Najib made in the official Bahasa Malaysia text of his Malaysia Day speech and the English translation authorised by the PM’s office [Eric Choo, ‘Peaceful Assembly Bill: Najib not Breaking any Promises’ LoyarBurok 25 November 2011]), and yet the Bill manifestly does no such thing, as local commentators (such as Bersih 2.0 [‘Bersih: Assembly law changes another Najib “flip-flop”’ The Malaysian Insider, 26 November 2011.], Aliran [Aliran Press Statement, ‘Najib has taken the Rakyat for a Ride’ 28 November 2011 and Press Statement, ‘Withdraw the Draconian Peaceful Assembly Bill’ 24 November 2011], The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) [MCCBCHST, ‘BN, withdraw Assembly Bill if you respect rakyat’ Letter to Malaysiakini 2 December 2011] and the Bar Council [Bar Council: Open letter from Lim Chee Wee, President of the Malaysian Bar to Wakil Rakyat on Peaceful Assembly Bill 42/2011 (28 November 2011)]) and international observers (such as LawAsia [LawAsia statement ‘Concern at Malaysian Peaceful Assembly Bill’ 30 November 2011 (reproduced here)] and the Asian Human Rights Commission [Asian Human Rights Commission Statement, MALAYSIA: ‘Peaceful Assembly Bill serious regression of the right to peaceful assembly’ 2 December 2011]) observed.
There is simply no reference to, or recognition of, human rights standards and principles for freedom of speech, assembly and association, either as they are expressed in article 10 of the Malaysian Constitution or in international instruments, let alone a harmonization of Malaysian law with constitutional and human rights principles. Indeed, as Opposition leader Anwar Ibrahim stated in Parliament during the brief debate on the Bill, [Hansard, Dewan Rakyat, 29 November 2011, pp 27-29] citizens of Zimbabwe and Myanmar currently have greater protection of their freedom of assembly than do Malaysians.
The PM promised a ‘functional and inclusive democracy’, but the government did not undertake meaningful consultation before the Bill was first tabled (the Bar Council, which was consulted, was appalled at how few of its recommendations were incorporated); and, despite howls of public protest once the content of the Bill was first revealed, the government refused to establish a parliamentary select committee to consider amendments, but rather bulldozed the legislation through the lower house 7 days after it was first introduced, and with only minor tinkering to shorten some of the notification and response timelines. The Bill was passed in the absence of the opposition MPs who had walked out in protest at the limited time allowed them to debate the amendments. This haste, too, is not uncommon in Malaysian law-making.
The legal illiteracy of lawmakers on the government side was not an edifying spectacle either, from inaccurate claims by UMNO politicians such as de facto Law Minister Nazri Aziz that the Peaceful Assembly Bill advanced the human rights of Malaysians to the buffoonery of Perkasa president Ibrahim Ali and his Jo Bielke-Peterson style populist quips during the debate following the Second Reading Speech that his learning at Holiday Inn was preferable and more authoritative than what could be obtained at the Inns of Court, or the ominous warnings of former opposition MP turned ‘independent’ Zulkifli Noordin that freedom of assembly was linked with both the race riots of May 1969 and apostasy from Islam. [All to be found in Hansard, Dewan Rakyat, 29 November 2011.]
To my mind, however, the legal tactics of opposition party PAS are also cause for concern. After the Bill was rammed through the lower house, PAS leaders announced that they would apply to the High Court in Kuala Lumpur for a declaration that the government had abused its power by tabling the Bill in the lower house, and also an order to compel the government to withdraw the bill from the Senate, or, in the alternative, to compel it to table amendments. [See the reports in Malaysiakini : ‘PAS seeks judicial review on Assembly Law’ Malaysiakini 2 December 2011 and ‘PAS takes gov’t to court over assembly law’ Malaysiakini 2 December 2011]
While PAS is clearly correct that the provisions of the Bill ought ultimately be found to be unconstitutional because they exceed the legislature’s capacity to derogate from the article 10 guarantee of free assembly, I doubt this High Court application will succeed, and I believe there are fundamental democratic reasons why it should not. Asking the unelected judicial branch to restrain the parliament from exercise of its legislative function is a profound breach of the separation of powers (and not one the opposition parties would accept if the situation were reversed).
To ask the judiciary to take on this role is to further politicise courts that are struggling to regain credibility after the corruption and abuse scandals of the 1990s documented in the 2008 Royal Commission of Inquiry, as well as those associated with the prosecutions of former Deputy Prime Minister Anwar Ibrahim. Malaysian courts have undoubted jurisdictional competence to declare legislation or sections thereof invalid on constitution grounds, as the Court of Appeal did in October this year when it ruled s 15 of the University and University Colleges Act invalid because it infringed students’ right to free expression under article 10 of the Federal Constitution. The appropriate time to do this is when there is a statute to evaluate against the constitutional standard, in the proper exercise of the court’s function as guardian of constitutionality; not when parliament is still deliberating upon a Bill (however foregone the conclusion of those deliberations may appear).
More hopefully, this still unfolding episode has demonstrated the resilience of the Malaysian public, non-government organisations, and particularly the Malaysian Bar and its governing body, the Malaysian Bar Council, and their capacity to organise to defend and extend democratic values. When the Bill was first tabled, critics were able to air their views in the alternative, digital media such as Malaysiakini and Malaysian Insider, as well as via websites of their own organisations, and trenchant evaluations of the proposed law quickly circulated in the public sphere. An online petition was organised, along with a Facebook page. Within a few days, a public protest involving around 400 people took place in a park in the centre of Kuala Lumpur – an assembly that would be illegal under both the Police Act and the proposed Peaceful Assembly law, although the organisers kept breaking the gathering into smaller ‘private’ groupings like picnics and social outings to thwart security personnel. The group reassembled a week later, after the passage of the Bill through the lower house, and organisers announced that they would gather weekly until the law was satisfactorily amended. On this occasion the gathering was treated to poetry readings by national poet laureate A. Samad Said, whose support for the July 9 Bersih 2.0 rally is well known. A candle lit vigil in support of freedom of assembly – itself of course an assembly – was held outside the Bar Council Building on the evening of 27th November (the Malaysiakini TV video can be viewed HERE).
The largest public gathering so far has been the Bar Council’s Walk for the Freedom to Walk protest on 29 November. [There are several publicly available videos of the event, for example here and here.] This public –and strictly illegal, because unauthorised – march and the Bar’s various public appeals to the government and to MPs to revise the Bill in line with internationally accepted standards for freedom of assembly and expression [Such as the Bar Council President’s press statements on 22 and 24 November; the open letter to MPs on 28 November, and the call on 25 November to members of the legal profession to join in the protest march, all of which are accessible from the Bar’s webpage.] (which standards the Bar’s own alternative Peaceful Assembly Bill modelled [Bar Council, Memorandum on the Draft Bill dated 24th November and the text of its own alternative Peaceful Assembly Bill, accessible from the Bar’s webpage — a direct link to download the alternative Bill is here]), placed the Malaysian Bar, once again, in the forefront of popular and public campaigns to defend democratic space and constitutional government from erosion by the authoritarian state.
When Bar Council President Lim Chee Wee called upon his colleagues in the profession to join the Walk, he began the appeal by inviting them to imagine themselves in the lineage of Dr Martin Luther King, daring to stand up for their principles. On the day of the march, as more than 1,000 lawyers and supporters gathered at the entrance to the private Lake Club to walk to Parliament with their memorandum, he placed their actions within the national and nationalist lineage of heroic resistance to colonialism, by reminding the gathering that the governing party itself was founded through UMNO leader Dato’ Onn Jaafar’s 1946 procession to protest the Malayan Union scheme of the British, thus highlighting the indigenous, rather than international, significance, not to say sacredness, of the right to assemble and march for a public cause, while also emphasising that such street demonstrations could demand, and achieve, social and political change by peaceful means.
Civil society groups and the alternative media drew parallels with the Bar’s own famous Walk for Justice in September 2007, when the lawyers effectively compelled the government to make proper inquiry into the evidence of judicial corruption revealed in the ‘Lingam Tapes’ (leading, eventually, to a Royal Commission of Inquiry and a permanent Judicial Appointments Commission). Commentators also drew parallels with the ‘people power’ displayed in the July 9 Bersih 2.0 rally for clean and fair elections, when perhaps 50,000 Malaysians, led by former Bar Council President Dato’ Ambiga Sreenevasan, braved tear gas and chemical-laced water canon to express their outrage at both the corruption of the electoral processes and the government’s refusal to let them assemble to articulate this grievance.
These contemporary and historical parallels and ancestries all clearly have important resonance for the Bar and others who joined them. Another protest precedent, perhaps only properly remembered by older members of the legal profession, took place in 1981. It, too, commenced at the Lake Club and ended at the Parliament, which is perhaps one of the reasons why this route was again chosen. On the earlier occasion, lawyers and others marched to protest the enactment of amendments to the Societies Act 1966 which, like the Peaceful Assembly Bill 2011 thirty years later, were being rushed through the legislature with little consultation or reflection, and which were designed to curtail, rather than enhance, freedom of expression, assembly and association. Forty-two of the lawyers who participated in the 1981 Lake Club march were prosecuted under section 27 of the Police Act, and the reported decision (Public Prosecutor v Cheah Beng Poh & Ors  2 CLJ 383) is still considered an important case on freedom of assembly. The lawyer-defendants enjoyed their time in the dock, considering it a badge of professional pride and achievement to be prosecuted for insisting upon constitutional liberties in the face of unconstitutional statutes.
Although this episode in the history of the Bar has not featured amongst the precedents and exemplars for legitimate and necessary public protest that are currently circulating to embolden lawyers and other Malaysians, nevertheless I think it is important (and I would be surprised if it were not being fondly recalled just now by those who participated in it). It demonstrates the important role that the organised Bar has long played in pressing for democratic rights and freedoms, and the importance, too, of the continuities between previous and present forms of action, even if those connections are not fully articulated.
So, to conclude on a positive note, creative, eloquent, rapid and well-organised responses to the Bill are an indication of the strength of civil society in Malaysia. They are also an indication of the important role that the Bar Council has long played, and continues to play, in defending democracy and human rights.