4 days ago
Striking a proper legal balance
PETALING JAYA: Significant changes to the Peaceful Assembly Act 2012 (Act 736) will mark a key test of the government's commitment to upholding civil liberties, say legal experts.
With that in mind, some have urged the government to strike a proper balance between the people's right to hold peaceful protests and the authorities' need to maintain public order.
All eyes will be on proposed amendments to the Act during the current parliamentary session, with the government having pledged to remove impediments towards the right to peaceful assembly.
Act 736 regulates public assemblies, including protests, and outlines the right to assemble peacefully and without arms, while also establishing restrictions deemed necessary for public order and security.
Key aspects have included a requirement for organisers to notify the police of an intended assembly, restrictions on street protests and specific rules regarding prohibited places.
Lawyer Kokila Vaani Vadiveloo welcomed the proposed removal of Section 11, which requires protest organisers to obtain the consent of the venue owner.
She said this is in line with the recent Federal Court ruling that struck down the requirement which penalised organisers who failed to give five days' notice, with the apex court ruling it as unconstitutional.
While police notification under Section 9(1) remains a requirement, Kokila said the court ruling makes it no longer criminally enforceable.
'This does not weaken public order. The court acknowledged public order as a legitimate concern but found Section 9(5) to be disproportionate,' said the former Selangor Bar chairman.
Kokila said the authorities still hold powers under other parts of the Act and the Penal Code to manage assemblies.
'Public safety can be maintained without criminalising peaceful conduct,' she added.
Kokila proposed reframing Section 9(1) as a recommended, not mandatory, requirement and removing Section 11 or replacing it with a presumptive right to public space with limited exceptions.
She said the proposed removal of Section 11 does not mean anyone could protest anywhere without permission as it only applies to public spaces, not private property.
'Private venue owners still have the full legal right to deny access to their premises.
'If someone were to hold a protest on private land without the owner's consent, it could amount to trespass and the owner may seek legal remedies, including injunction or removal,' she added.
If properly implemented, Kokila said the reforms would better align the country's public law with democratic norms and affirm the judiciary's role in safeguarding rights.
Echoing this view, lawyer Lim Wei Jiet said the amendments should move Malaysia away from a system based on 'permission' towards one which facilitates peaceful assemblies.
'We have yet to see the draft, so the devil is in the details,' he added.
Senior lawyer Mohamed Haniff Khatri Abdulla, however, cautioned that eliminating the need to notify the police could complicate rally management.
He said assemblies held in public spaces still require traffic control and crowd management and without notice, the police will not be able to prepare or even inform the public.
He also noted that having a police presence will help assure both rally participants and the public.
'Although the proposed amendments are welcomed, is it not wise for the organisers to still notify the police in advance to ensure the safety and security of those who turn up for the assembly and also bystanders?
'I believe the general public will also want to know earlier as they may have plans to pass by the area or attend an event there,' he said, adding that he agreed with Home Minister Datuk Seri Saifuddin Nasution Ismail, who had raised these concerns.
Mohamed Haniff said police could still seek a court injunction to stop a protest if there are substantial concerns about public safety.
Beyond Section 11, several lawyers have called for other changes.
Lawyer Andrew Khoo pointed out that since the Act's introduction in 2012, only one designated protest site has been gazetted – Darul Makmur Stadium in Kuantan – under Section 25.
'Every town and city should have such designated places, and a city should have more than one spot where people can gather for peaceful assembly,' he said.
Khoo called for the removal of restrictions in Section 4, which bars non-citizens, those under 21 years of age and children from participating in assemblies.
'The age limit is inconsistent with Malaysia's commitments under the United Nations Convention on the Rights of the Child,' he said.
Khoo added that Sections 5 and 12, which allow third parties to object to a protest, could unfairly undermine the right to assemble.
Association of Women Lawyers vice-president Denise Lim said the recent Federal Court ruling and moratorium on Section 11 investigations are positive developments, but urged close scrutiny on fresh amendments.
'The key is whether other restrictive provisions remain or whether new forms of regulations might replace repealed ones.'Transparency, meaningful stakeholder engagement and rights-based drafting should be made central to this process,' she said.
Lim added that legal reforms should be consistently and fairly implemented, as whether an individual is truly able to exercise his or her rights depends on the law being implemented proportionately without fear of retaliation or creating excessive hurdles.
