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Illusory freedom of assembly

THE police broke up two “illegal” gatherings recently, threatening once again citizens’ constitutional right to peaceably assemble. On 6 Mar 2010, police clambered onstage at a DAP-organised dinner to announce that the “ceramah” was over, as no permit had been given for speeches. On 8 Mar 2010, they stopped a Pakatan Rakyat event midway at Sultan Sulaiman Club in Kampung Baru for the same reason.

This is not a new story. Tear gas, road blocks, water cannons, mass arrests and massive police presence to deter protests and gatherings have become commonplace. The justification for police heavy-handedness usually goes like this: The protesters had no permit to gather, required under the Police Act 1967. Without a permit, the demonstration becomes illegal, so police can take the necessary measures to stop these illegal activities which may threaten national security and public order.

Tear gas and water cannons being fired during an anti-ISA rally on 1 Aug 2009 (Pic by Gan Pei Ling)

But what about the constitutional guarantee that citizens may assemble peacefully without arms? Does this mean anything if the police can roll out the FRU trucks or arrest protesters every time there’s a candlelight vigil? Can it be called a fundamental liberty if you need a permit to exercise it?

Although the constitution says lawful restrictions can be passed on these liberties, does that mean the government can allow the police to arbitrarily disallow peaceful gatherings? As one litigation lawyer wrote in The Malay Mail in 2009, is it as simple as “no permit, no demo”?

Broad liberties, narrow restrictions

The apex Malaysian court, the Federal Court, has declared no, it’s not that simple. In a November 2009 judgement involving the limits that may be placed on the freedom of association, the court said any restrictions imposed have to be “reasonable” and “proportionate”.

If the restriction was such as to render the fundamental liberty “illusory”, then that restriction was unconstitutional. For what’s the point of having a fundamental liberty guaranteed in the constitution, only for Parliament to remove it by passing laws that contradict that liberty?

“[T]he provisions of the constitution, in particular the fundamental liberties guaranteed under Part II, must be generously interpreted,” the court held. “Provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively.”

The court also rejected an earlier High Court judgement in the case of Nordin bin Salleh v Dewan Undangan Negeri Kelantan, which denied the need for reasonableness in imposing restrictions, stating that it was “clearly an error”.

Narrow liberties, broad restrictions

Far from adopting the Federal Court’s approach, the police seem to have been doing the opposite. Fundamental liberties such as freedom of speech and assembly have been narrowly interpreted, if considered at all. Restrictions, on the other hand, such as those in the Police Act requiring permits for public gatherings, have been followed and enforced with excessive zeal.

Police going up against protesters during the GMP rally on 7 March 2009

Take the Kesas highway incident in November 2000, which became the subject of a Malaysian Human Rights Commission (Suhakam) inquiry in 2001. Police refused a permit for the then Barisan Alternatif rally, even though it was to be held on private property in Jalan Kebun, near Shah Alam. Police cordoned off the highway leading to the area, causing a traffic jam so massive that cars began parking along the highway.

At the rally, immediately after the speeches were concluded, tear gas and water cannons were fired into the crowd, causing them to run away. The Suhakam inquiry found that insufficient warnings to disperse had been given to the crowd, if at all. It found that the police had, in fact, chased persons who were trying to run, caught and assaulted them. Excessive force had also been used in making arrests.

It concluded that the rally had been peaceful, and that “speeches and shouting do not render a gathering ‘not peaceful'”. It also blamed the police for some stone-throwing by the crowd, saying that if the police had exercised restraint in crowd control, the crowd would have dispersed peacefully.

The panel made several useful recommendations, such as:

The law relating to assemblies should be equally applied without discrimination.

Roadblocks should not be used to prevent assemblies from taking place.

Warnings to disperse should be given clearly, three times at 10-minute intervals, and sufficient time given to disperse.

Restraint should be exercised when dispersing assemblies, especially in the use of canes, batons, tear gas and water cannons.

People who do try to disperse should be allowed to do so instead of being chased and assaulted.

No change

Five years from the Suhakam findings, there was still no change. In May 2006, protesters of the petrol price hike who gathered at KLCC were also given insufficient time to disperse, and were chased and assaulted while trying to leave the area. The incident has been dubbed “Bloody Sunday” and was subject to a Suhakam inquiry, in which criticisms were levelled against the force.

Wong Chin Huat

In May 2009, police arrested 15 persons holding a candlelight vigil outside the Brickfields police station in support of academic Wong Chin Huat, who had been arrested for sedition. Police went on to arrest five lawyers who had come to the station to provide legal representation for those detained.

How it works

In looking at these accounts, it appears that the police do not appreciate what constitutes “reasonable”, “proportionate” and “narrow” restrictions to our fundamental liberties. Why our police still fail to grasp the concept despite Suhakam’s, and now the Federal Court’s, findings and recommendations puzzles me.

It’s really not that difficult to figure out. Rightfully, protesters shouldn’t even have to apply for a permit. At the very most, they should only be required to notify the police of their intention to hold a peaceful demonstration. The police should cooperate with the protesters and meet with them beforehand to see how they can assist. Yes, assist, not obstruct.

If the protest involves a procession, the police can provide an escort to minimise traffic disruption. During planning meetings, there can be discussions on the best route to fulfil the protesters’ objectives for voicing their views, and police objectives of maintaining order.

On the day of the rally or procession, the police should be present to help. If there is a genuine threat of violence  — which does not include speeches or shouting — then action can be taken to disperse the crowd. This should be done following proper guidelines, such as giving adequate warnings to disperse, and exercising restraint in ensuring dispersal. All this has already been recommended by Suhakam in 2007.

So what are the police waiting for?

Ding Jo-Ann figures that if you have to ask for permission each time, then you’re not really free.

Read previous Holding Court columns

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One Response to “Illusory freedom of assembly”

  1. Neptunian says:

    Hai Ding,

    In my dreams, I sometimes live in a Malaysia that listens to reason. Sadly, when I wake up, I realise we have been living in a Police state since March 2008. Your appeal for reason only works with reasonable people. It simply is not the case in Malaysia right now. If it is, then you wouldn’t need to make the appeal in the first place.

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