According to the Federal Constitution, the right to assembly peacefully may be restricted by Parliament. Parliament enacts laws that impose restrictions, as Parliament deems necessary or expedient in the interest of the security of the Federation or public order.
However, whatever restrictions imposed by Parliament must be reasonable as well as proportionate to the purpose the restriction was imposed in the first place.
There must be a nexus between the restriction and national security or public order. It also follows that arguments that peaceful assembly should not be allowed because it will inconvenience others is not a good reason to restrict freedom of assembly.
Previously under Section 27 of the Police Act, the organiser of an assembly must first obtain a license or ‘permit’ from the Officer in Charge of a Police District (OCPD) of that district before holding an assembly.
If an assembly is held without first obtaining the said permit, then the assembly is deemed to be an unlawful assembly and anyone who attends or participates in the assembly would have committed an offence under the Act.
In effect, under the Police Act, no assembly may be held without first obtaining permission from the police. This regime renders the right to peaceful assembly illusory and ineffective.
Section 27 of the Police Act has been repealed. It no longer has force of law. In its place, Parliament enacted the Peaceful Assembly Act (“PAA”). The Peaceful Assembly Act was enacted to facilitate the right of citizens to assembly peacefully without arms.
Under the PAA, there is no longer a requirement to obtain a permit. Instead, an organiser of an assembly has an obligation to give notification to the OCPD 10 days before an assembly is to be held.
Once notification is given, the OCPD can impose certain conditions and restrictions to the intended assembly, but it has no power to completely prohibit or prevent the holding of that assembly.
It must also be emphasised that an assembly without the pre-requisite notification is not an unlawful assembly. The organisers would have committed an offence under the Act, but the police cannot deny the holding of that assembly merely because notification is not given.
In the landmark case of Nik Nazmi Nik Ahmad v Public Prosecutor, the Court of Appeal held that the provision, which criminalises the organiser of an assembly for not complying with the notification requirement, is unconstitutional.
As such, the law as its stands that while the organisers of an assembly is still required to inform the OCPD of an assembly, the failure of the organiser to do so pursuant to the Act will not attract criminal sanctions. It is more of a civic duty that must be complied with by the organisers as responsible citizens.
Unfortunately, the police seem to think that they still have the power to give or deny permission to hold a peaceful assembly.
The police continue to talk of ‘not allowing’ the holding of protests and rallies, when in actual fact under the Peaceful Assembly Act all they can do is to impose conditions and restrictions, not to deny outright.
The police also seem to think that the lack of proper notification under the Act is a ground to allow the police to stop the protest or rally.
In fact, until very recently, the police seem to have ignored the decision in Nik Nazmi Nik Ahmad v Public Prosecutor and continued to arrest and detain people allegedly for not giving the requisite notification or being involved in an assembly without permit.
The police may obtain an order from the Magistrate Court to stop an assembly under the Criminal Procedure Code. However, there must be grounds to make such an application.
The Magistrate Court should not grant the order if there are no grounds to support the application. Grounds for such an application include preventing injury to any persons lawfully employed or danger to human life, health and safety or to prevent a riot or affray.
Merely saying that these grounds exist would not be enough; the police must show that these grounds exist.
A distinction must be made between peaceful assemblies and riots or assemblies that are not peaceful. For assemblies, which are not peaceful, the police do have powers to take action under the existing laws such as the Penal Code.
Any attempt by the police to deny citizens the right to assemble peacefully and without arms would amount to the police overstepping their legal boundaries and is tantamount to a violation of the citizens’ rights under the Federal Constitution.Syahredzan Johan The STAR Home News Opinion August 24, 2015