Written by Richard Wee and Ian Phua

The Previous Law

Section 27 of the Police Act 1967 confers the power to the Police to grant permits/license for assemblies & meetings. The Police must be satisfied that the proposed assembly/meeting is not likely to be prejudicial to the interest of the security of Malaysia or any part thereof or to excite a disturbance of the peace.The power to grant such permit/license is discretionary. If no licence were granted, the assembly would automatically become illegal and the police could arrest anyone present at such an “illegal assembly” without a warrant. Nevertheless, Section 27 of the Police Act was repealed in 2012.

The Current Law

The Peaceful Assembly Act 2012 (“PAA 2012”) now governs peaceful assemblies in Malaysia, it helps to facilitate the right to peaceful assembly. Previously, everything was prohibited unless permitted. Now everything is permitted unless prohibited. There is a significant shift in civil rights thinking.

According to Section 9(1) of the PAA 2012, organisers are required to inform the police about the assembly, via a Notice, at least 10 days before the assembly is held. Failure of giving such Notice constitutes an offence punishable with a fine of up to RM10,000 as provided in Section 9(5) of the PAA 2012. The Notice above mentioned in Section 9 of the PAA 2012 is not a permit or a licence, the police have no right to reject the Notice. To explain, the Notice is not given to request permission but just to inform the police that an assembly is going to be held.

Following Section 14(1) of the PAA 2012, the police must respond within a stated time limit of five days. If the police do not respond, then under Section 14(2) of the PAA 2012, silence is deemed as consent. But with or without their response, the assembly can proceed.

In light of the new Act, Section 15 of the PAA only permits the Officer in Charge of Police District (“OCPD”) to impose significant restrictions and conditions to limit the date, time and place of the assembly. However, there is no power to issue an outright “No” before the assembly takes place.

Under the governance of the PAA 2012, only persons causing the assembly to no longer be peaceful commit an offence and may be arrested. There is not a single mention of the word “permit” or “illegal” in the PAA. In short, no permit is required from the police, and no peaceful assembly in Malaysia can ever be “illegal” or “unlawful”.

The Peaceful Assembly Act 2012 should be interpreted in tandem with Article 10 of the Federal Constitution, and where there is inconsistency between the Federal Constitution & the Peaceful Assembly Act 2012, the former must prevail.

 

Published on 30 July 2020

Photo by mkjr_ on Unsplash

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