The Book of Prof Shad.docx

72 7 peaceful assembly act 2012 reflecting on the law

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7. PEACEFUL ASSEMBLY ACT 2012 - REFLECTING ON THE LAW INTRODUCTION Previously, everything was prohibited unless permitted. Now everything is permitted unless prohibited. This is a significant shift in civil rights thinking. In early legal systems, the primary end of the law was to keep the peace. In modern legal orders, a just balance between the might of the state and the rights of the citizens is attempted. No field better exemplifies the difficulty of achieving this fair balance than Malaysia’s law relating to assembly and procession. The recently enacted Peaceful Assembly Act 2012 has received much criticism in the media and deserves scrutiny of its high and low points. Police permit : Previously under Sections 27(2) and (5) of the Police Act 1967, citizens had to apply for a police permit for gatherings or processions of more than three people. This permit requirement (a prior restraint) has been held by the Court of Appeal to be allowed by the Constitution. In the case Nik Noorhafizi Nik Ibrahim v PP [2014] 2 CLJ 273 CA involving five students who took part in an assembly in front of the National Mosque on June 8, 2001, the court held that the requirement of a prior permit for public assemblies was not unreasonable and therefore the provisions of the Police Act were not unconstitutional. There was a powerful dissent from Justice Hamid Sultan who invoked Article 8 as well as Article 10 to hold that while reasonable conditions may be imposed by the police, a permit should not be refused and should be given in each and every case. 10-day Notice : Under the new Act, there is no requirement for a police permit, but organisers of assemblies must notify the authorities 10 days in advance under Section 9(1) and 9(5). No notice is required for meetings in designated places or if the assembly is an exempted assembly. If in response to a notification the police do nothing, then under Section 14(2) silence is deemed as consent. Previously, everything was prohibited unless permitted. Now everything is permitted unless prohibited. This is a significant shift in civil rights thinking. The 10-day notice rule was challenged in the courts in Nik Nazmi Nik Ahmad v PP [2014] CLJ JT(4). The case in April 2014 was about a peaceful assembly held at a stadium in Kelana Jaya. The Court of Appeal held that the 10-day requirement was unreasonable and unconstitutional on several grounds. (i) Under the Constitution as well as the Peaceful Assemblies Act, assemblies can be regulated but not prohibited. (ii) Section 9(1) and 9(5) is an effective and total prohibition against urgent and spontaneous assemblies which are a constitutional right. (iii) It is irrational to require a 10-day notice for an urgent and spontaneous gathering for which such a notice is impossible (iv) It is irrational that a participant in a peaceful assembly held without a 10-day notice commits no wrong whereas the organiser will be held criminally liable under section 9(5) for not giving the notice even though the assembly was peaceful.
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