Transmenu powered by JoomlArt.com - Mambo Joomla Professional Templates Club

Contributed by the Human Rights Committee

The Committee refers to the report by The Star on 15 October 2008 regarding the convictions of Shahul Hamid M.P.H. Seeni, Mohammed Hafiz Mohamed Nordin and Rahim Ismail under section 27(5) of the Police Act 1967 for taking part in an unlawful assembly in 2006 for the protest against Article 11’s forum in Penang.

The right of all citizens “to assemble peaceably and without arms” is guaranteed by Article 10(1)(b) of the Federal Constitution. Restrictions on this right may be imposed by Parliament as is “necessary and expedient in the interest of the security of the Federation or any part thereof or public order”.

It is the position of the Committee that the said restrictions must however not amount to a total prohibition or deprivation of the fundamental right of peaceful assembly. The restrictions must:

• be enacted as part of our law;

• be specific and unambiguous leaving little room for its subjective application according to the whims of the police or other authorities;

• be considered necessary in a democratic society;

• meet the stated aim of “protecting the security of the Federation or any part thereof or public order”; and,

• be proportional to this stated aim.

The “Licensing Model” of restricting public assemblies based in section 27 of the Police Act 1967 has been heavily criticised as violating basic principles of international human rights law and the Constitution. In practice, the selective interpretation and enforcement of the law by the authorities is also problematic. On many occasions, the invocation of the “deeming provision” in section 27(5) has led to a total prohibition or deprivation of the right of peaceful assembly so as to render it meaningless. Legitimate group and public expressions of dissent have been curtailed.

Nevertheless, an assembly which threatens violence and incites hate is not a peaceful one. The Committee notes that Article 20(2) of the International Covenant of Civil and Political Rights 1966 prohibits any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

Action taken by citizens ostensibly in exercise of their right of peaceful assembly, but which is in reality an attempt to deny the right of their fellow citizens their freedom of speech and expression, is not protected by international human rights principles nor our Constitution, and cannot be condoned.

Chapter VIII (sections 141-160) of the Penal Code on offences against public tranquility is replete with prohibitions against persons assembling for the common object of, among others, committing mischief, criminal trespass or any other offence. It is also an offence for persons to assemble for the common object of forcing a person to do something she/he is not legally required to do, or forcing a person not to do something she/he is legally entitled to do.

The genre of the said Penal Code offences is criminalised not by a “deeming provision”, but rather by proof of an unlawful common object of those persons assembled. These ingredients, once proved beyond a reasonable doubt, remove such an assembly from the constitutional protection of the right to assemble peaceably.

Thus, threatening to use force to storm a building in order to stop a forum where persons are exercising their right of freedom of speech and expression is an offence under the Penal Code.

Further, Chapter XXII (sections 503-510) of the Penal Code on offences of criminal intimidation, insult and annoyance sets out prohibitions against, among others, the making of any statement to cause fear or alarm to the public, or to incite any class or community of persons to commit any offence against any other class or community of persons.
The Committee states that the incident in Penang highlighted the opposing interests of two groups, namely the right of the group gathered in the hotel to attend a forum, and the right of the protestors gathered outside to demonstrate against the forum.
Rather disappointingly, the protestors attempted to disrupt and stop the forum. Intemperate language was used to incite the protestors and intimidate the group at the forum. Expressions of threatening behaviour and the use of force were witnessed.
Instead of protecting the right of speech, expression and assembly of the forum speakers and participants, the police unfortunately insisted that the forum be stopped. The justification that the police were unable to guarantee the safety of the speakers and participants cannot, logically, be accepted.

This scenario replicated itself at another forum by Article 11 in Johor Bahru in 2006, and more recently at the Bar Council on 9 August 2008. It is most disheartening to note that the police, entrusted by law with the duty to safeguard public order, consistently succumbed to the excessive and illegitimate pressure of the protestors.

The Committee notes that the law in section 27(5) suffers from a “legitimacy deficit”. Invoking section 27(5) will not win or attract public support and confidence, elements which are imperative in any proper criminal justice system.

Instead, should there have been sufficient evidence substantiating the Penal Code offences against the protestors, charges could have been brought against them under the Code. This would have been the preferred route.

Notwithstanding the above, we reiterate that the time is ripe for the Government to repeal the “Licensing Model” in favour of a “Co-operative Model” in the regulation of public assemblies as advocated by the Bar Council and highlighted by SUHAKAM in its “Report on the Public Inquiry into the Incident at KLCC” on 28 May 2006. Our country deserves no less.

Dated this 18th day of October 2008
Human Rights Committee
Bar Council

Comments (0)

Subscribe to this comment's feed