Why is it always the box which the Malaysian government, in the guise of improving the freedoms of the citizen, enacts laws which essentially eat away liberties?
Since 1960 when the Emergency was revoked, only to be immediately transposed by the dreaded Internal Security Act, 1960 ("ISA"), unbroken governments have taken state movement to the wreckage of the people. The Peaceful Assembly Bill, 2011, which had the initial reading in the Federal Parliament yesterday, is an additional e.g. of such retrograde law making.
I cannot hold which after 54 years of Merdeka in the 11th year of the ! 21st cen tury, the Executive has the insolence to present the Bill, which, in the own Explanatory Statement, describes it as "one of the efforts instituted by the supervision to commence the mutation of the existent authorised framework in relation to the inherent rights of adults to assemble".
Fundamental liberties have been enshrined in Part II of the Federal Constitution, the supreme law of the land. Article 10(1)(b) of the Federal Constitution provides which "all adults have the right to arrange peacefully as well as without arms".
Freedom to arrange is not absolute; thus, the Federal Parliament might enact laws which have the outcome of restricting such leisure in the interest of "security" or "public order". Case law has established which such Parliamentary limitation must be "reasonable" by objective standards.
Thus, Parliament cannot suffocate the enjoyment of such liberties. Freedom of public is invariably exercised together with alternative elemental liberties similar to personal liberty (Article 5 (1)); leisure of transformation (Article 9(2)); leisure of countenance (Article 10(1)(a); leisure of association (Article 10(1)(c); leisure of sacrament (Article 11) as well as so forth.
In maybe the most important inherent box in the history, the five-member Federal Court ! in 1992 in the Nordin Salleh case, hold which any state movement which would describe illusory or incomprehensible the practice of any elemental liberty is unconstitutional. Hence, the Court looks during the outcome or effect of state action.
It is opposite this credentials of constitutionalism, which the Peaceful Assembly Bill, 2011 must be scrutinised.
My initial reservation is philosophical. The Bill introduces the concept of "interests, rights as well as freedoms of alternative persons", with the military having to import such interests, rights as well as freedoms with which of the persons who wish to assemble.
Hence, the elemental strife in between Executive as well as adult which characterises the almighty struggle for polite liberty has been lengthened to embody the rights of alternative people the classic prolongation of the single of the oldest doctrines in governing body : sequence as well as rule.
In my opinion, the law which is dictated to foster the practice by adult A as well as his friends of their right to arrange should not in any approach be dependent upon the right of adult X as well as his friends to intent or halt the former's right to assemble.
The elemental freedoms underneath Part II of the Constitution do not contemplate such clashes in between different groups of adults which would unavoidable rise into the competition in between majority as well as minority, with the minority always being the casualty.
Accordingly, all references to "the interests, rights as well as freedoms of alternative persons" in the Bill are, in my opinion, without any inherent basis. The same indicate can be made about the make use of of brand new expressions similar to "counter assembly" as well as "simultaneous assemblies".
Hence, the Parliamentary draftsman is deliberately giving energy to the military to impose difficult restrictions as well as conditions underneath Paragraph 15 of the Bill which would have the outcome of completely nullifying any leisure to ass! emble.
The Bill introduces the brand new type of public which I hold is rare underneath the law, viz "street protest", which is tangible in Paragraph 3 to mean: "an open air public which starts with the meeting during the specified place as well as consists of upon foot in the mass march or convene for the role of objecting to or advancing the sold means or causes".
Paragraph 4(1) of the Bill imposes an outright ban upon street protests. The current position is which if the military emanate the license underneath Section twenty-seven (2) of the Police Act, 1967, the "street protest" is permitted. Hence, the brand new provision in this "reforming" Bill make it worse by all banning such types of assemblies.
This would be unconstitutional. Does this mean that, underneath this Bill! , only the ssemblies which have been not "street protest" have been permitted? Yes.
What then have been the facilities of such the available or sanitised form of "assembly"?
Part IV contains 11 separate supplies which mention the mandate prior to the military would authorize the land of such an assembly.
To start off, created notice of during slightest 30 days must be since to the police. Hence, spontaneous gatherings have been not permitted. The First Schedule to the Bill contains 12 categories of "prohibited places", 50 meters from where assemblies cannot be held.
The Bill is so extensive in the reach, indeed, of Orwellian proportions, which every day trusting activities similar to funerals, weddings, family gatherings as well as meetings of associations have to be expressly excluded! The most appropriate approach to exam the efficiency of the Bill is to ask whether the assemblies organised by Bersih (1) or Hindraf prior to the General Election of 2008 would be available underneath the Bill.
The answer is obviously in the negative since they would be deemed "street protest", as well as as the result banned. Likewise, the lawyers march to Putrajaya in 2007 to criticism opposite ! the VK L ingam tape. Finally, Bersih (2) in Jul 2011 would additionally not be permitted.
And, yet, this Bill is presented by the supervision as the piece of reforming law to enhance political space! Try as the single may, the single cannot find any redeeming facilities in the Bill. ! On the c ontrary, the supplies have been offensive, as well as will certainly not pass muster.
How in the name of "security" as well as "public order" this Bill can be enacted by Parliament is positively baffling. Are the leaders so out of touch? Can they ever discuss it the truth?
Are they wakeful of "Occupy Wall Street" as the global criticism movement? What about the Arab Spring? Even sleepy, lifeless Singapore has had the little kind of political awakening this year.
But let me conclude with the own e.g. from history. Some 65 years ago, only the year after the Second World War had ended, as well as the British colonial energy had returned to Malaya, they had the temerity to deliver the Malayan Union plan i! n 1946.
"Street protests" as tangible in Paragraph 3 of the Peaceful Assembly Bill, 2011, became the sequence of the day. Indeed, Umno was founded by Onn Jaafar to lead the protests opposite Malayan Union.
The supremely ironic question is, if Hishammuddin Hussein had been in assign of such matters in 1946, would Umno have been founded, as well as his grandfather authorised to denote as well as protest?
I call upon all freedom-loving Malaysians to immediately contact their Members of Parliament to opinion opposite this terrible Bill. Indeed, the supervision should repel it.
I would expect the Malaysian Bar to lead the opposition to this poorly designed law which is not only an insult to the inherent rights, though additionally to the intelligence.
* Tommy Thomas is the comparison lawyer of the Malaysian Bar. - Malaysian Insider
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