Aug 21, 2015
In light of the upcoming Bersih rally, the Human Rights Commission of Malaysia (Suhakam) today emphasised that peaceful public assemblies cannot be banned.
This follows the repeal of Section 27 of the Police Act 1967, following which the concept of illegal assembly no longer exists, it said.
“As such, an assembly is to be considered peaceful if its organisers have clarified that its intentions are peaceful and have duly conveyed them to the authorities,” said Suhakam chairperson Hasmy Agam in a statement.
Suhakam’s reminder comes after Deputy Home Minister Nur Jazlan Mohamed said police were right to ban the Bersih 4 rally scheduled for Aug 29 and 30.
“Consequently, the authorities not only have an obligation to protect peaceful assemblies, but should also take measures to facilitate them, and to comply with the many international human rights standards on freedom of assembly as this right is protected constitutionally in Article 10 of our Federal Constitution.”
Hasmy stressed that the police must not prevent, hinder, or restrict a peaceful assembly, except to the extent allowed by the Peaceful Assembly Act 2012 (PAA).
“The commission reiterates that any restriction must be lawful and in pursuit of a legitimate aim, such as in the interest of the security of the country or the protection of the rights and freedoms of others.
The burden is on the authorities, however, to provide convincing and compelling reasons to justify an interference with this right and to demonstrate that any interference would be proportionate, said Hasmy.
Protect all participants
Suhakam’s public assembly recommendations for the consideration of the authorities, in particular the police, are as follows:
(i) To recognise that an assembly is to be considered peaceful if its organisers have peaceful intentions. The Royal Malaysian Police (PDRM) shall therefore, prior to the assembly, ascertain the intentions of the organisers through effective dialogue.
(ii) To adequately understand their powers and duties, in particular section 9 of the PAA. Regrettably, said the commission, PDRM continues to justify the requirement to seek permission from the police prior to an assembly, though it is now a bad law.
(iii) To respect the Court of Appeal decision in the case of Nik Nazmi Nik Ahmad v. PP. The commission emphasised that under the PAA, the assembly organisers are only required to give advance notification to the officer in charge of the police district in which the assembly is to be held (section 9(1).
In this regard, the commission highlighted that the UN Special Rapporteur on the right to freedom of peaceful assembly and of association holds as best practice legislation allowing the holding of spontaneous assemblies, which should be exempted from prior notification.
(iv) To refrain from preventing, hindering or applying unreasonable indirect restrictions upon the right to peaceful assembly.
(v) To protect all participants from individuals or groups of individuals, including agent provocateurs and counter-demonstrators, who aim at disrupting or dispersing the assembly. The commission emphasised that such an obligation does not rest on the organisers.
(vi) To respect the right to life, as enshrined in Article 3 of the UDHR and the right to be free from torture or cruel, inhuman or degrading treatment or punishment (Article 5 of the UDHR). These shall be the overarching principles governing the policing of public assemblies.
(vi) To understand that ‘the free flow of traffic’ should not automatically take precedence over the freedom of peaceful assembly.
Accordingly, the authorities have a duty to design operating plans that will facilitate the exercise of the right of assembly which may include re-routing pedestrian and vehicular traffic in the areas.
(vii) To make public the police’s Standard Operating Procedure relating to the control and management of public assemblies, in the interest of transparency, so that the public understands and appreciates the actions taken by them.
Suhakam to monitor
As for the commission’s advise to the members of the public and participants of the peaceful assembly:
(i) Refrain from taking the law into your own hands and respect – at all times – that the police have their role and responsibilities in maintaining and preserving the security, peace, and order of the country.
(ii) Refrain from disrupting or preventing the assembly.
(iii) Refrain from causing damage to property, among others.
(iv) Conducting themselves in an exemplary manner throughout the assembly.
“The commission also calls on the organisers of the peaceful assembly to fully cooperate with the authorities, in particular – the police – to ensure that the participants in the assembly comply with the law and the terms of the submitted notification.
“In addition, the organisers are urged to discuss and agree on the security and public safety measures that will be put in place prior to and during the event.”
Hasmy also confirmed that the commission will be monitoring the planned Bersih 4 rally to determine whether the authorities fulfil their positive obligations to uphold the right to freedom of peaceful assembly,
And also whether the parties adhere to any agreements reached as to the conditions for the assembly, and the conduct of the participants.
“It is hoped that the commission’s findings will identify patterns of good practice, as well as any shortcomings that require improvement.”
Come Aug 29 and 30, Bersih will hold an overnight rally, which among others, is to call for the resignation of Prime Minister Najib Abdul Razak.