Saturday, June 14, 2008

Public Assembly and Procession in Protest of Oil Hike

It has been quite a number of days that an application has been submitted to the Officer-In-Charge (“OCPD”) of Kuching Police District for the issue of a police permit or licence, but, there still is no news about it. Under the law, such an application has to be made to the OCPD under section 27(2) of the Police Act 1967. Prima facie, the OCPD must issue the licence applied for. The OCPD could not in law, simply refuse such an application without assessing the security situation of the District under his control. He could, however, refuse to issue such a licence after he is satisfied with security assessment made from his sources, especially, the Special Branch and the Criminal Investigation Branch under this command, that the procession or assembly would be prejudicial to public security or that the assembly could incite a disturbance of the peace.

Meaning that, the OCPD could not refuse the issue of the licence without, first, make any security assessment at all.

The OCPD also could not simply refuse to issue the licence based on the directives from the top. This is because it is for the OCPD to exercise the power based on OCPD’s own assessment of the security situation. The OCPD could not simply listen to the directive from the top. He is expected to exercise an independent mind, without, any interference of any person in the exercise of this power.

Administratively, the OCPD requires at least a few days be given to him to assess the security situation and since time has been given, the OCPD is expected to issue the licence in soonest possible so that the organizers will have ample time to organize the assembly and to comply with the conditions set in the licence.

The OCPD could not also refuse to issue the licence if the report shows that the assembly would not give rise to security threat or disturbance of public peace. The OCPD could not be seen to unreasonably refuse the permit or licence applied for.

If he refuses the application for the licence, the OCPD should in soonest possible, communicate his refusal to the applicant. Such communication should not be made through the newspapers. If the applicant is informed of the refusal, the applicant can appeal against such refusal to the Commissioner of Police (“CP”) as the Commissioner of Police is the overall officer-in-charge of security situation in the State. The right of appeal to the Commissioner of Police of the State is allowed under section 27(7) of the Police Act 1967 and the appeal must be made within 48 hours of such refusal.

If no appeal made within the framed period, the Applicant is deemed to have withdrawn his interest in pursing a licence for the assembly.

In the event the OCPD remains silent, neglects or refuses to issue the licence, this could be deemed that there is an implied permission to hold the assembly although no licence has been issued. This is because this involves legal power and right of assembly and the OCPD should not leave the applicant in suspense. At the same time, under section 27(7) of the Police Act, 1967 the OCPD is required to state his stand on the application made by the Applicant and the refusal must be communicated to the Applicant. The OCPD is therefore, under a duty to make a decision and this is especially important as it involves public right to assembly under Article 10(2) of the Federal Constitution which gives citizens a right to assemble peacefully and without arms.

With this mind, I hope the OCPD will give his answer soon to the Applicant or organizer so that if a refusal be made, an appeal could be made to the State Commissioner of Police.

However, with or without permit, when ordered by the police officers to disperse, the members of the public are expected to disperse. Failure to disperse could make any members of the public who participated or took part in the assembly liable to arrest. At the same time, although the police has wide powers of arrest under security situation, but, they could not also abuse their power and begun to conduct unlawful arrests. Meaning that, the police are not expected to arrest an innocent bystander or an innocent person who happened to be found present in the assembly and who had no knowledge of the unlawful assembly.

If the police officer concerned could not justify the arrest, the person arrested seeking redress in court could claim damages in court for unlawful arrest, assault and detention.

Therefore, in such a situation there are competing powers or interests involving the keeping of public peace security by the police the public legal right to free movement and assembly without arms as provided by the Federal Constitution.

As far as Kuching City is concerned, the police are aware that Kuching people are peace loving people and so far in the history of Kuching we are yet in recent years heard any breaches of the peace in any assembly. With this, it is hoped that the police would grant a permit to the organizers soon.

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