Freedom of Assembly

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Freedom oMalaysia – Assembling the Peaceful Assembly Act — Amanda Whiting APRIL 4 — 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”. 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 Under the previous law regulating assemblies, which is currently being repealed (sections 27-27C of the Police Act 1967), any rally or march that took place without a police permit was unlawful, and organisers of, and participants in, an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...
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