Tuesday, October 1, 2013

Peaceful assembly: Time to review the 10-day notice

Peaceful assembly: Time to review the 10-day notice

October 1, 2013
Is Section 9 of the Peaceful Assembly Act 2012 unconstitutional?
By JoFan Pang
Of late, especially post-GE, we have seen so many rallies, protests, flashmobs and candlelight vigils happening that even I have personally lost count of the number of such gatherings in the past few months.

Who would have thought five years ago that rallies and protest would be such a norm in Malaysia? Especially since the enactment of the Peaceful Assembly Act 2012, even though the provisions in it are disagreed by many, the police have been slightly more lenient towards protestors than they were before.

Credit has to be given where credit is due, but the same would apply to criticism.
It is one matter that there are now statutory provisions that regulate public assemblies, but it is another matter altogether on whether the provisions actually uphold our constitutional right to assemble under Article 10(1)(b) of the Federal Constitution (“the Constitution”).

It would be a huge task to talk about all the different inconsistencies in the wording and application of the Peaceful Assembly Act and as such I would be writing on only one particular provision under the Act that is in my view probably the one section that has been consistently used by the police against organizers and protestors so far, Section 9 of the Peaceful Assembly Act 2012.

Section 9(1) of the Peaceful Assembly Act provides that “An organizer shall, 10 days before an assembly, notify the Officer in Charge of the Police District in which the assembly is to be held”.
Section 9(5) then states that “A person who contravenes (1) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit”.

Sounds familiar I’m sure. In the past few months, activists, politicians as well as concerned citizens have been continuously charged and arrested under this section for the many gatherings that have taken place.

There are cases where police have investigated, charged and even arrested people under this section. That being said, it should also be noted that this provision only creates an offence and does not give power to the police to arrest.

Powers of arrest are provided under Section 20 which laid down the conditions in which the police can make arrests, essentially making these arrests under Section 9 illegal. However, that is not the focus of this article today.

The Constitution, under Article 10(1)(b), has provided that, “All citizens have the right to assemble without arms.” Now the question we should ask ourselves is this: Has Section 9 violated Article 10(1)(b) of the Constitution? In other words, is Section 9 of the Peaceful Assembly Act 2012 unconstitutional?

The situation elsewhere
Before we answer that question, let us have a look at how other countries deal with notifications of assemblies:
i) United Kingdom
The UK doesn’t require notification for an (static) assembly. Organisers are only required to give a notice not less than 6 days prior to a procession (a moving assembly/street protest). This is provided under Section 11 of the Public Order Act 1986. And under Section 11(1)(c) of the Public Order Act 1986, it is provided that a notice is required “unless it is not reasonably practicable to do so”, creating an exception that allows for flexibility to the enforcement of the notification requirement particularly where urgent human rights causes are concerned.

The case of Kay v Commissioner of Police of the Metropolis [2008] is one such example where the courts have decided that notification is of value to the police in order for them to make the appropriate preparations. However in this case the police knew where and when the assembly took place and was able to conduct policing duties without difficulties, as such the exception were allowed.

Also, the UK courts are required to interpret all legislation (especially implicit ones) in line with the Human Rights Act 1998. Given this, I see no reason why courts in Malaysia should not interpret legislations in light of the Constitution.

ii) New South Wales, Australia
Section 23(1)(f)(i) of the Summary Offences Act 1988 (NSW) provides that although notice must be given at least 7 days before the event, organisers are by convention allowed to negotiate with the police and if there are disagreements which cannot be resolved, the organisers are allowed to apply to the court for the event to be allowed under Section 23(1)(f)(ii) of the Summary Offences Act 1988.

The judge in the New South Wales Supreme Court case of Commissioner of Police v Langosch [2012], a case regarding non-notification, went even further when it held that: “Were I to have made the order sought by the plaintiff (the police), I would be inhibiting, albeit in a small way, the right to freedom of expression and assembly”. Both the law and the judge allowed space for human rights considerations.

iii) Hong Kong
Under Section 8 of the Public Order Ordinance 1997, although a 7 day notice is required, the Police Commissioner can accept late notices if he deems that it is reasonably practicable to do so. Under Section 9 the Police Commissioner has the power to prohibit any notification if he considers it to be a threat to national security and public safety.

However such a decision can be appealed to the Appeal Board on Public Meetings and Processions which is headed by an experienced retired judge.

iv) South Africa
Under Section 4(4) of the Regulations of Gatherings Act 1993, the organiser of a gathering must give at least 7 days notice to a responsible officer of the municipal authorities of any intended gathering. If the police raise any concerns, then the responsible officer must call a meeting of the organisers, the police and any other relevant groups to try to reach an agreement over any changes that are proposed. If no meeting is called within 24 hours, then the organiser can assume that the gathering can take place as planned. Such cases are not treated as criminal cases.

I have actually conducted research on other jurisdictions such as the USA, Finland, Norway, Hungary and Queensland, Australia. However, the jurisdictions listed above is sufficient to make my point.

Best practices
These four different countries happen to have four things in common, which Malaysia should adopt:
1. Exceptions in law
In the UK and Hong Kong, it is stated in the law that late notifications or notifications given beyond the timeline prescribed by the law are acceptable where it is not reasonably practicable to notify within the prescribed days. In South Africa, it is stated that disagreements can be worked out between the organisers and the authorities, while in New South Wales it is a convention that negotiations can be done between the organisers and the authorities.

These are obviously included to adhere to the basic tenets of human rights. Unfortunately, in Section 9 of our Peaceful Assembly Act 2012, I see no effort towards such adherence as no exceptions whatsoever are included to safeguard our constitutional right to assemble peacefully without arms.

2. Exceptions by court
As seen in the English and Australian cases stated above, the judges interpret the law in a liberal manner so as to give meaning to the right to assembly instead of curtailing it.

3. Option to Appeal
The public assembly laws of the countries that I have covered in my research include a mechanism for the participants and the organisers to appeal should the they be charged for violating any of the provisions therein..
However, in our Section 9 of the Peaceful Assembly Act 2012, one can be said to commit an offence the moment one does not notify the police within 10 days, regardless of the justification or reason, thereby creating a strict liability offence. This directly contravenes the basic principles of human rights especially when the right to assemble is exercised in a peaceful and orderly manner.
In my opinion, this is the primary reason that Section 9 can be deemed unconstitutional.

4. Not seen as a high degree criminal offence
In all of the countries researched and discussed above, it has been made clear that notifications are needed for facilitative and logistic purposes; so that an assembly can go on peacefully without affecting the lives of others around.

Unless violence is involved, the authorities in those countries are always open for negotiations and discussions. Even if one fails to comply with the law on notification, one has the option to appeal and is not subjected to criminal treatment.
The four points listed above are essentially the core of what notifications of assemblies should really be about.

Open to abuse
However, in making it a strict liability offence, Section 9 of the Peaceful Assembly Act 2012 has failed in upholding the principles of our Federal Constitution as well as international human rights norms.
It is therefore open to abuse and selective prosecution by the authorities, the consequence of which is the repression of the people’s right to voice dissent albeit in a peaceful manner.

This poses a threat, not just to protestors or political activists alone, but also the state of Malaysia as a democratic country which is said to uphold constitutional supremacy.

As Parliament convenes, a review should be done on this section of the Peaceful Assembly Act, as the constitutionality of the section is questioned by many.

The Constitution is the supreme law of the land and all laws must comply with the Constitution.
JoFan Pang is a law student passionate about human rights, specifically in Malaysia. Tweeting at @jofanpang, he moves with @UndiMsia, lives with @LoyarBurok as he upholds @MyConsti.

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