Friday, 30 July 2010

The Right to Assemble, the Police Act and the Constitution

The Right to Assemble, the Police Act and the Constitution

(Azmi Sharom)

(This article is prepared for and presented at the forum " Police Power Abuse and Barisan Nasional Government" which organized by Suara Rakyat Malaysia (SUARAM) held on 27th July 2010 at Persatuan Bekas Penuntut Taiwan.)

The Federal Constitution says in Article 10 that people have the right to assemble peacefully and without arms. This right is however limited as parliament can make laws that control the right to assemble if it is in the interest of the security of the federation and public order.

Because Parliament has this power, the Police Act 1967 gives the police the authority to control assemblies. According to the Act, in order to organise a gathering, a person needs to obtain a license from the police.

According to the Police Act any gathering of three people is a public assembly and requires a license [section 27(5)].

Also according to the Act, a group which is not a registered society cannot apply for a licence [section 27(2D)].

Here we can see that the law is very restrictive. The small number (3) of people that will constitute an ‘assembly” is open to all sorts of abuse as the police can declare even a small group as an illegal assembly.

Furthermore, there should be no restrictions on who can apply for a license. The right to assemble is open to everyone. It should not be limited to “registered organisation”

However, one point that I would like to stress here is that is section 27(2) it says:

“....if such police officer is satisfied that the assembly, meeting or procession is not likely to be prejudicial to the interest of the security of Malaysia or any part thereof or to excite a disturbance of the peace, he shall issue a licence in such form as may be prescribed specifying the name of the licensee and defining the conditions upon which such assembly, meeting or procession is permitted...”

From here we can see that the ONLY reason that the police can deny a license is if it is “prejudicial to the interest of the security of Malaysia or any part thereof or to excite a disturbance of the peace”. In other words, if an assembly is peaceful and not a threat to the country, the police HAS to give a license. This appears to be in line with the Constitution.

However if we look at all the examples of peaceful assemblies which did not get a license and which have been broken up by the police due to a lack of license, it is doubtful that the police truly take the Act seriously. For example, how can a peaceful gathering opposing the ISA be a threat to national security or public order?

Furthermore, any conditions placed in a license for a gathering must be in line with the Constitutional right of free speech. The police should not be putting restrictions on what can be said in a gathering except perhaps to say that the laws of the country has to be obeyed in the content of the speech (for example seditious statements should not be made). And even if “seditious” statements are made, then it should be up to the court to decide whether the statements were indeed seditious. The police should not have such wide discretionary powers to stop an assembly based on what they THINK is sedition.

I submit that the Police Act gives far too much power to the Police. But perhaps more importantly is that the Act is not being enforced in the spirit of the Constitution which basically is the ideal that we have a RIGHT to assemble, we have a RIGHT to express ourselves and only if we are a threat to national security and public order can any restrictions be placed on us. If we are not doing those things, we should be completely free to assemble.

0 comments:

通告 Notification




Malaysia Time (GMT+8)