— Maha Balakrishnan
The Malaysian Insider
May 12, 2012

MAY 12 — At a press conference on April 29 and in reference to the Bersih 3.0 rally the day before, the prime minister was reported to have stated that “the rally was the first test for the police in translating the action stipulated under the new legislation following the political transformation implemented by the government, including….. introducing the Peaceful Assembly Act 2012”.

The Peaceful Assembly Act (PAA) came into force on April 23. The prime minister therefore had basis for saying that Bersih 3.0 was the first test for the police in translating the action stipulated under the PAA.

The question is: did the police pass or fail that test?

In my view, they failed. Here’s why:

What powers do the police have under the PAA?

During the second reading of the Peaceful Assembly Bill 2012 in the Dewan Rakyat, the prime minister was reported to have said that in comparison to the situation existing at the time, under the PAA “the role of the police would change from granting permission to safeguarding the law and being facilitators with a clearer framework for accountability”.

True enough, under sub-section 14(1) and section 15 of the PAA, all the police can now do when they receive a notification of an assembly is to impose restrictions and conditions on matters such as the date, time, duration, place and manner of the assembly. In other words, the police have no power under the PAA to approve or reject the holding of an assembly.

What did the police do with regard to Bersih 3.0?

Around April 5, Bersih 2.0’s steering committee made a public announcement that they would be holding a sit-in rally (Duduk Bantah) between 2pm and 4pm on April 28 at Dataran Merdeka. The announcement was carried in most mainstream and online media at about the same time.

On April 16, the organisers of Bersih 3.0 wrote a letter to the Dang Wangi district police headquarters informing them of their intention to hold the rally at Dataran Merdeka on April 28 between 2pm and 4pm.

On April 23, the police responded in a letter stating that they did not approve the “application” apparently on “security” grounds. The exact words in their letter were “…Dukacita dimaklumkan setelah membuat penelitian, saya selaku Ketua Polis Daerah Dang Wangi tidak meluluskan di atas keselamatan permohonan puan untuk menganjurkan acara sepertimana yang dipohon.”

In a nutshell, on receiving a notification of the Bersih 3.0 rally at Dataran Merdeka, the police rejected or refused permission for the rally, when they in fact did not have the power to do so under the PAA. All the police can do under sub-section 14(1) of the PAA is to impose any restrictions or conditions on the rally. No such restrictions or conditions were included in the letter dated April 23.

What then was the status of the Bersih 3.0 rally?

Here’s the irony — because the police did not do the only thing that they were allowed to do under sub-section 14(1) of the PAA, which was to impose restrictions or conditions, then arguably under sub-section 14(2) of the PAA, Bersih 3.0 was entitled to proceed as the organisers intended, i.e. as a sit-in rally in Dataran Merdeka on April 28.

What of the court order that the police obtained on April 26?

The PAA does not give the police powers to apply for court orders to restrain the conduct of assemblies. The court order that the police obtained on April 26 was not under the PAA, but under the Criminal Procedure Code.

A mockery of the PAA and of the PM’s promise to Malaysians

So there you have it, faced with their “first test” under the PAA, the police resoundingly failed. They not only acted in a manner they were not allowed to under the PAA, they also resorted to other laws to try to prevent the rally from proceeding.

The conduct of the police begs the following questions — the PAA is supposed to form the rules of engagement between the police on the one hand, and organisers and participants of assemblies on the other. Why then are the police still using other laws to stop or control the conduct of public assemblies? If the PAA no longer gives the police power to reject a rally, surely the police cannot be allowed to circumvent the limits on their powers by resorting to other laws? Doesn’t the conduct of the police make a mockery of the PAA and of the prime minister’s promise to Malaysians?

The PAA was hailed by the prime minister as revolutionary. While there are many critics of the Act, there are many who praised it and saw it as a step towards taking our constitutional democracy to a higher and more mature plane. However, this first test under the PAA shows that the accolades the Act drew were premature at best. Far more worrying is the impression that the PAA is merely window-dressing, enacted by the administration to tout as evidence of its transformist credentials. When faced with a real situation however, both the police and the administration seemed to have reverted to type, and refused to abide by their own self-imposed limits.

On that note, I’ll leave you with one other example of how police action in Bersih 3.0 breached the PAA. Section 24 of the Act says this: “Any media representative may have reasonable access to a place of assembly and use any equipment to report on the assembly.”

So much for seizure of camera equipment by police being standard operating procedure, Home Minister.