You know that a piece of proposed law is in trouble when as soon as it has been tabled in Parliament, it was almost immediately attacked. Even before full details of the Peaceful Assembly Bill 2011 (“PA2011”) were available, the Malaysian Twitter community (better known as “Twitterjaya”) was already abuzz with criticisms.
Soon after, the actual Bill was made available to public. Interested persons began trawling through the Bill. Thankfully, the Bill is not very long, there are only about 27 sections and 4 short schedules. Before long, concrete views about the Bill began to emerge as the media scrambled for analysis on the Bill.
My initial view of it was actually not as bad as some other early opinions of the Bill. Compared to the repressive (and unconstitutional) regime regulating public assemblies under Section 27 of the Police Act, the Bill looked like a step in the right direction. After all, the main selling point of the Bill is the fact that you would no longer need a police permit to hold a public assembly. Under PA2011, you only need to notify the police of the intended assembly. As the requirement of notification is an international norm, the movement from permit to notification would bring the country closer to international standards relating to public assemblies.
PA2011 is one of those laws that on the face of it looks progressive. For the less discerning, there would not be much that is wrong with the Bill. Yet, spend a bit more time with it and its many flaws will soon be apparent, so much so that taken as a whole, it would actually be more regressive than the current legislation.
The biggest (and some say most insidious) weakness of PA2011 is the outright ban against what is termed as ‘street protest’ under the Bill. This has been justified in order to ‘protect the interests of other people who are affected by street protests’, such as small business and motorists.
Yet, ‘street protest’ has been defined as ‘an open air assembly which begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes’. Effectively, this would potentially cover all forms of moving assemblies or processions, from the Bersih-type rallies to Maulidur Rasul or Thaipussam processions. An organiser or participant of such ‘street protests’ will be liable to a maximum fine of RM10,000.00. Under the current scheme in Section 27 of the Police Act, it is possible to hold a ‘street protest’ as defined by PA2011, subject to the issuance of a permit from the police. The banning of a ‘street protest’ is thus a clear step backwards for freedom of assembly. In addition, this outright prohibition would also be unconstitutional. Although the Federal Constitution allows for restrictions to be placed on freedom of assembly for certain specified purposes such as public order, such restrictions cannot amount to a total prohibition against the exercise of that right to freedom of assembly.
The outright prohibition against public assemblies at ‘prohibited places’ also attracted the same criticisms. Under the Bill, a public assembly cannot be held at such places or within 50 meters from the limit of such places. The Bill lists places such as schools, kindergartens, places of worship, hospitals, land public transport terminals, petrol stations, hospitals, railways, bridges and many other places as ‘prohibited places’.
The list of prohibited places severely limits the areas in which a public assembly may be held, especially if it is in urban centers such as the Klang Valley. It would be difficult to find a place that is not within 50 meters of a petrol station, school, land public transport terminal or a place or worship in the Klang Valley. Many public events are held in places like the Bar Council or the PWTC yet these places because of their proximity to prohibited places can no longer host such events.
This also means that mundane, everyday activities can no longer take place in such prohibited places. An assembly as defined in the Bill is a means an ‘intentional and temporary assembly of a number of persons in a public place, whether or not the assembly is at a particular place or moving’. Under PA2011, an assembly such as a school assembly, a church mass or Friday prayers can no longer be held as they would be held at a school or a place of worship. Remember, this would be an outright prohibition. Not even the police can grant permission to assemble in such prohibited places.
Surely this cannot be the intention of the government in drafting the Bill. Surely such jarring flaws merit a more thorough review of the proposed law.
Instead, for no rhyme or reason, the bill was approved. It was first tabled on 22 November 2011 and by 29 November 2011, it was passed by the Dewan Rakyat with amendments. Demands and pleas for the Bill to be referred to a Parliamentary select committee failed. It would appear that Malaysian must accept this Bill.
It is upon this backdrop that the Bar marched to Parliament on 29 November 2011 to present an alternative Peaceful Assembly Bill to the government. The alternative Bill was drafted by a team assembled by the Bar Council and lead by former Bar president Datuk Yeo Yang Poh. The team drafted the alternative bill in three days yet the product was superior to PA2011. It only took that many days because there is a raft of legislation in other jurisdictions to emulate. The drafters of PA2011 also took from these other jurisdiction, but instead of taking the best out of those other legislation, it would appear that it has been pieced together into a contradictory, regressive and ultimately flawed bill which does not give justice to the government’s promise of democratic transformation.
*this article was first published on 15 December 2011 in The Star’s iPad application for my column, A Humble Submission.
