(1.0) Introduction
Recently, the Dang Wangi police repressed a demonstration that had 20 participants from the Sekretariat Solidariti Rakyat (SSR) at Dataran Merdeka. They wore in black and carried imitations of corpses in their arms and also brought black flags.
They even brought banners which bore the words, "kita mati dalam derhaka" and also "keluar dan lawan" as a sign and movement to express their discontentment with the government, due to their alleged malversation in handling the covid-19 pandemic.
According to the Dang Wangi police Chief Assistant Commissioner Mohamd Zainal Abdullah (Zainal), SSR was a coalition of political parties including the Malaysian United Democratic Alliance (MUDA), Parti Pejuang Tanah Air (PEJUANG), Parti Amanah Negara (AMANAH) and Parti Keadilan Rakyat (PKR).
They gathered on that day at 2.55pm in front of the historical Sultan Abdul Samad building, which they chanted anti-governmental slogans while carrying the said corpse effigies. Then directly at 3pm, officers from Dang Wangi rushed to the scene and ordered them to disperse at once.
However, the participants recited a 'puisi darurat' despite given the orders. Though, they dispersed without any violence or conflict at around 3.10pm. Zainal managed to identify three individuals who are the mastermind of the protest.
(1.1) Purpose of protest
They gather with all their props and gigs, not just to express their discontentment, but they also carry messages that the government should adhere to. Even before the protest, they encouraged the public to wave black flags since 3rd July.
On social media, they advocate for people to use the hashtags #BenderaHitam, #Lawan and #KerajaanGagal. Among the message or claims made are that, the current Prime Minsiter should resign with effect, Parliament to reconvene and that the proclamation of emergency ceases.
Their disgruntlement also derives from the lack of initiatives or action taken to cater to the issues of unemployment and job losses in Malaysia. The country's economy is gradually plummeting. In the meantime, there is also the white flag campaign to be raised for those who are experiencing hardship for limited basic needs can appeal for help from others.
(2.0) What laws would be used for investigation?
According to Zainal, all of the participants would be compounded for breaching section 10 of the MCO regulations, which is the Regulations and Control of Infectious Diseases (Measures in Local Areas of Infection) (National Recovery Plan) 2021.
That provision prohibits assemblies. Though, section 10 has been conclusively applied and investigation is not pursued based on that, the police still went ahead and looked at another law to investigate the scene.
For the black flag issue, the police is under investigation to determine what type of offence that would be. However, they have not provided what are the possible charges or offences in any written law as of yet.
According to Director of the Criminal Investigation Department of Bukit Aman, Datuk Seri Abd. Jalil Hassan commented that there has not been any individuals called to testify, since the police are still tracking down people involved in this black flag movement.
Though, Zainal did mention that this incident will be investigated under section 9(5) of the Peaceful Assembly Act 2012 for assembling without notice to the police. This provision on the contrary, has already been declared unconstitutional and then constitutional again by our courts.
(2.1) Case laws
(2.1.1) Nik Nazmi nik Ahmad v PP [2014] 4 CLJ 944
In the Court of Appeal, the appellant who was the opposition member in the State Assembly was charged in the Sessions Court for organising a public assembly at an indoor stadium without notifying the Officer in Charge of the Police District (OCPD).
He had to submit the 10-day notice as provided under section 9(1) of the Peaceful Assembly Act 2012 (the Act). If he did not comply with this, he would be punished under section 9(5) of the Act with a fine not exceeding RM10,000.
However, the organiser only informed the OCPD about the assembly on the day it was hosted. The appellant therefore, challenged both provisions of sections 9(1) and (5) as being unconstitutional, null and void.
The court held per Mohammad Ariff Yusof JCA, that the Act that an assembly without prior notice is not a crime. That would only be an administrative failure or omission. His lordship maintained that section 9(1) was constitutional however.
Concurring with him was Mah Weng Kwai JCA, but he argued that section 9(5) of the Act was ultra vires article 10 of the Federal Constitution. The term 'restriction' used would not give rise to criminal prosecution or sanction for breaching any provision.
This is because, even if they are argued to be reasonable restrictions, the court found that it was not. Article 10(2)(b) of the Federal Constitution must have a reasonable nexus with the 10-day notice. The respondent did not show how the failure of 1 day notice would cause threat to national security or public order.
It was also unconstitutional as it outright disbars urgent and spontaneous assemblies. Therefore, it is impossible to host assemblies due to persecution. Section 9(5) must be severed from section 9(1) and declared unconstitutional.
Lastly, Hamid Sultan Abu Backer JCA, also concurred that, the Act allows everyone to assemble with or without a notice. Criminalising people without giving notice has no nexus to public order or interest of the security of the Federation, unless the assembly itself was not peaceful.
Section 9(5) did not fulfill the 'reasonable and proportionality test' as within the parameters of article 10(2) of the Federal Constitution. Restrictions in the constitution is only for procedural or administrative matters. Only Penal laws were the ones to prosecute toward public order and the security of the Federation.
(2.1.2) PP v Yuneswaran Ramaraj [2015] 9 CLJ 873
This subsequent case departed radically from Nik Nazmi entirely and I have to agree with the Yuneswran case. The Nik Nazmi case decision was so absurd. Here are the following legal points in Yuneswaran;
In the appeal to the Court of Appeal, the executive secretary of PKR Johor Bahru (respondent) was charged in the Sessions Court in his capacity as an organiser of an assembly at the office of Parti Keadlian Rakyat (PKR).
Again, he committed the offence under section 9(1) of the Peaceful Assembly Act 2012 (the Act) which is punishable under section 9(5) of the Act. This is because, he failed to notify the OCPD within 10 days.
The court held that the Act was to facilitate the right to assembly as under article 10(2)(b) of the Federal Constitution. The Act was only procedural in nature as there is no substantive right to assemble peacefully. Therefore, section 9(1) is not a restriction.
However, the court disagreed with the Nik Nazmi decision where there is no criminal sanctions from the words 'restrictions' under article 10(2) of the Federal Constitution. This is because, the correct approach is when Parliament has the power to criminalise anything in accordance with article 74 of the Federal Constitution.
That power is sourced from List I, Item 3 of the 9th Schedule of the Federal Constitution for internal security and public order. When also reading section 40(1) of the Interpretations Act 1948 and 1967, Parliament may criminalise any act, including the failure to notify within 10 days.
I agree with this, because if not, all other laws such as the Sedition Act, Official Secrets Act, Communications and Multimedia Act, Printing Presses and Publications Act and more regulating freedom of speech would not have any criminal provisions anymore for procedures.
The court states that the 10 day notice is reasonable as it is in accordance with international norms. Guidelines from the Organization for Security and Cooperation in Europe (OSCE) which were studied and was affirmed in the parliamentary Hansard for the Act's bill in 2011.
Profoundly, UNHCR court cases at paragraph 43, such as Kivenmaa v. Finland, Comm. and article 21 of the International Covenant on Civil and Political Rights (ICCPR) were referred to. Paragraphs 44 until 52 gave bountiful of foreign laws which support that a timeframe to notify an assembly is reasonable.
(3.0) General opinions
Since section 9(1) and (5) of the Act is still constitutional and not ultra vires, the 20 participants may face deadly repercussions, added that they have to pay the compound. During this pandemic, our country is suffering from financial and economic sustenance from all backgrounds of society.
It is difficult to assess how would these 20 participants make it or survive. They must have their own peculiarities or own personal problems now added with these legal measures to be taken. Overall, personally I believe that due to the scenario and circumstances of the assembly, there should be a NFA (no further action).
If there were to be a court case, then it should be transparent and subjective as possible, looking at all the surrounding facts and situation. Since the news provided limited facts, I would reserve my theory or hypothesis if there were one court case to begin with.
With parliament reconvening soon, the political instability and the incompetency displayed by the government, the Rakayt has all the rights to express their discontentment. Punishing them and taking action would aggravate the situation, and who knows that from 20 participants, it may grow to hundreds or even thousands due to any draconian or counter-productive legal actions
Take close observation at our neighbours, such as Myanmar and Thailand. Are we prepared or ready to face such challenges as they are of now?
(4.0) References;
Bernama (July, 2021) Police to compound organisers, participants of SSR protest. Retrieved from, https://www.astroawani.com/berita-malaysia/police-compound-organisers-participants-ssr-protest-308956
Daniyal Cheah (July, 2021) Operation Black Flag – Netizens Dissatisfied With Government. Retrieved from, https://www.therakyatpost.com/2021/07/03/operation-black-flag-netizens-dissatisfied-with-government/
Perimbanayagam, K. (July, 2021) Cops bring swift end to SSR demo. Retrieved from, https://www.nst.com.my/news/nation/2021/07/709305/cops-bring-swift-end-ssr-demo
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