Tuesday, May 12, 2009

Laws on Assembly, Meeting & Association, unconstitutional


Freedom of association and assembly is one of the most important fundamental rights of human beings. It was a right given to us by God. When God made man, God didn’t want man to be lonely, so God created a woman for him and with the warmth of the woman, they bore many children. God gave them the power of speech and the ability to speak and understand each other and with this lie the right to association and meetings. The world was for them and their children to live and move around and God never imposed any condition on their movement and association. But in Malaysia, we have laws that went against God’s will that took or curtailed our God given right of freedom of association, assembly and meeting.

We need what God gave us, that is, free movement and also the right to speak and meet with each other in public, but, in Malaysia, our movements, assemblies, associations and meetings are regulated by the Police Act 1967, the Penal Code and the Criminal Procedure Code.

Although Article 10(1)(b) of the Federal Constitution, protects the right to peaceful assembly without arms, but, under section 27(5) of Police Act 1967, peaceful assembly must also be with licence. In Malaysia, laws on assembly, meetings and procession have always been harsh on politicians and political organizations. Therefore, the rule of equality before the law as provided under Article 8(1) of the Federal Constitution seems has no application when politicians are involved. Whether politicians could get fair justice and fair trial in courts is also another matter.

Under the Federal Constitution, the judges were all appointed by the King, but, upon the advice of the Prime Minister. Being appointed upon advice of the Prime Minister, how independent could our judges be from political influence when judging cases involving politicians? There had been much talk by the people in the street and this had easily aroused suspicion.

Article 10 of the Federal Constitution does not talk about licence for assembly or meeting. Here, it gives the judge a choice, that is, whether to enforce the spirit of the Constitution or the letter of the law. If the spirit of the Constitution which allows peaceful assembly without arms be followed, then, the issue of licence does not arise, but, if the particular judge looks at the letter of the law, then, licence under section 27(2) of the Police Act 1967 has to be required before you can get involved in any assembly, meeting or procession.

Under the Police Act 1967 when two persons assemble or meet even for food, driving in a car in public road or standing on the roadside in public without licence issued by the police as required under section 27(2) they could be arrested. This is provided under section 27(5)(a) of the Act itself. The law is clear because it only take two persons for an assembly, meeting or procession.

Section 27(5) of the Police Act 1967 has two limbs which read:-

“Any assembly, meeting or procession –
(a) which takes place without a licence issued under subsection (2); or,

(b) in which three or more persons taking part neglect or refuse to obey any order given under the provisions of subsection (1) or subsection (3),

shall be deemed to be an unlawful assembly, and all persons attending, found at or taking part in such assembly, meeting or procession and, in the case of an assembly, meeting or procession for which no licence has been issued, all persons taking part or concerned in convening, collecting or directing such assembly, meeting or procession, shall be guilty of an offence.”

This provision of section 27 of the Police Act 1967 gives much arbitrary power to the police to arrest any person they wanted. It seems that read literally law enforcement officers themselves, including the police can also easily commit an offence under this proviso, but, so far no reports had been made against the police for assembly without licence when themselves were in the assembly or when enforcing law and order. The law does not exempt police officers from committing an offence. This is also on the premise that no one is above the law, not even law enforcement officers.

If the Barisan Nasional government says that there was no discrimination in the enforcement of laws in the country, then, unless they have licence to assemble issued under section 27(2) of the Police Act 1967, all the Barisan Nasional and Pakatan Rakyat assemblymen in Perak including all dignitaries and people who assembled at the roadside and building of the Legislative Assembly in the last few months should be charged in court under section 27(5)(a) the Police Act 1967 and see how the judges chosen by Barisan Nasional government going to judge the case. This will settle once and for all the allegation of selective prosecution and the issue of equality before the law.

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