Do you need a permit to hold a rally? Things to know about the right to peaceful assembly in Malaysia
Over the past 4 months or so, public rallies or assemblies have been a matter of debate among Malaysians thanks to several noteworthy rallies that made national headlines. Back in October, a public gathering near the vicinity of Menara Condong in Teluk Intan, Perak, sparked controversy as its participants were seen waving flags of the People’s Republic of China, which sparked a counter-rally not approved by the Royal Malaysia Police (PDRM) afterwards by Malaysians who gathered and waved the Jalur Gemilang.
Meanwhile, a planned rally in support of former Prime Minister Datuk Seri Najib Razak on 6 January in front of the Palace of Justice, Putrajaya, was scrapped by UMNO. However, as Daily Express reported, several NGOs held their own gathering in solidarity with Najib, despite PDRM not giving the green light.
Furthermore, after much controversy, the ‘Himpunan Rakyat Benci Rasuah’ rally marched from Sogo to Dataran Merdeka in Kuala Lumpur on 25 January peacefully to protest the alleged corruption in Malaysia. According to Malay Mail, the rally seemed to be a continuation of the one held in Sabah to protest the appointment of Tun Musa Aman as Governor and alleged corruption scandals involving Sabah leaders.
With that in mind, what exactly are the laws on peaceful assemblies in Malaysia? Do organisers need to get a permit from the authorities to hold one? Isn’t the right to assembly enshrined in the Federal Constitution?
Well, join us as we delve into the subject matter below.
Article 10 of the Federal Constitution
While Malaysia is not a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR), the right to peaceful assemblies is enshrined under Article 10 of the Federal Constitution below:
Specifically, Article 10(1)(b) prescribes that every Malaysian citizen has the right to assemble peaceably and without arms. However, the right is subject to Article 10(2)(b), whereby necessary and expedient restrictions are in place in the interest of national security and public order.
In Malaysia, these restrictions are primarily governed under the Peaceful Assembly Act 2012. However, do note that the Act doesn’t apply to an assembly which is an election campaign under the Election Offences Act 1954 and an assembly which is a strike, lock-out or picket under the Industrial Relations Act 1967 and the Trade Unions Act 1959.
Peaceful Assembly Act 2012
Introduced in 2012, this Act was meant to replace Section 27 of the Police Act 1967. Notably, this Act was amended in 2019, which put in place several changes and has been this way since then.
As for what exactly is meant by “assembly”, Section 3 of the Act defines it as an intentional and temporary assembly of several persons in a public place, whether or not the assembly is at a particular place or moving. Meanwhile, a “counter assembly” means an assembly organized to convey disagreement with the purpose for which another assembly is organized, and held at the same time, date and place or approximately at the same time, date and place as the other assembly.
In relation to the above, Section 4(1) of the Act below prescribes the right to organise an assembly or participate in an assembly in Malaysia:
Meanwhile, Sections 4(2), 4(3) and 4(4) below establish the offences under the Act and their respective punishments:
You don’t need a permit to hold a peaceful assembly in Malaysia
In Malaysia, you don’t need to get a permit to organise an assembly. Instead, depending on the type of assembly that’s being held, an organiser is required to notify the Officer in Charge of the Police in which the assembly is to be held regarding the assembly.
This is governed under Section 9(1) of the Act below, which prescribes that the notice be sent at least 5 days before the date of assembly:
Meanwhile, Section 9(3) establishes that if the assembly is a religious assembly or a funeral procession, the organiser may inform the Officer in Charge of the Police District in which the assembly or procession is to be held and may, if assistance is needed to maintain traffic or crowd control, request for such assistance. Furthermore, Section 9(4) requires the notification to be sent via A.R. registered post or courier or by hand.
Failure to provide notification is considered an offence under Section 9(5) below, with those convicted may face up to a RM10,000 fine.
After submitting the notice, Section 14 of the Act below requires the Officer in Charge to respond to the notification within 3 days of receipt.
Moreover, the Officer in Charge must also inform the organiser in their response to the restrictions and conditions imposed, if any. Should the Officer in Charge not respond, the assembly is allowed to proceed as proposed in the notification.
You may face up to an RM10,000 fine for not adhering to restrictions imposed by the authorities
As for the restrictions and conditions that may be imposed on the assembly, Section 15 of the Act prescribes the matter in depth below:
Should the organiser disagree with the restrictions or conditions, Section 16 of the Act prescribes that they may appeal within 24 hours of being informed of them to the Home Minister. Accordingly, the Home Minister shall give his decision on the appeal within 24 hours of receiving it.
Should an organiser fail to comply with the restrictions or conditions, they may face up to an RM10,000 fine if convicted, as per Section 15(3) of the Act here:
Assemblies that require notification to the police and those that don’t
However, not all assemblies require a notice, as specified under Section 9(2) below:
As for designated places of assembly, Section 25 of the Act below expands on it, prescribing that the Home Minister may designate any place to be a designated place of assembly by notification in the Gazette.
Meanwhile, the Act’s Third Schedule below prescribes assemblies for which notification is not required:
Where you can’t hold assemblies
Besides that, the Act’s First Schedule below prescribes places where it is prohibited to hold assemblies in Malaysia:
Furthermore, Section 11 of the Act below requires an organiser to get the consent of the owner or occupier of the place of assembly, unless it’s a religious assembly, a funeral procession, or an assembly held at a designated place of assembly:
The police can arrest without warrant any organiser or participant, and disperse the assembly
Under Section 20 of the Act, the police are given the authority to arrest without warrant any organiser or participant under these conditions:
Furthermore, under Section 21 of the Act, the police are also given the power to disperse an assembly under these circumstances:
Should an individual fail to comply with the order issued, they may face up to an RM20,000 fine if convicted, as per Section 21(3) of the Act below:
Court of Appeal’s conflicting decisions on the constitutionality of Section 9(5) of the Act
There have been many controversies regarding the Peaceful Assembly Act 2012 over the years, with one of the most notable ones being the constitutionality of Section 9(5) of the Act, which prescribed punishment of a fine of up to RM10,000 to those who contravene Section 9(1). As a refresher, Section 9(1) established that an organiser shall notify the Officer in Charge of the Police District in which the assembly is to be held 5 days before the assembly date.
Notably, there are two conflicting decisions by the Court of Appeal on whether the provision is inconsistent with the Federal Constitution, and according to its Article 4(1), any law passed after Merdeka Day which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void. In Nik Nazmi bin Nik Ahmad v Public Prosecutor [2014] 4 MLJ 157, the Appellate Court found that Section 9(5) of the Peaceful Assembly Act 2012 was unconstitutional, though do note that it was for the said Act before the amendment that changed the notice requirement from 10 days to 5 days.
Meanwhile, in Public Prosecutor v Yuneswaran a/l Ramaraj [2015] MLJU 521, the Appellate Court ruled that the same provision is “entirely constitutional, valid and enforceable”. The question of law on these two conflicting decisions has yet to be resolved, as given that both were made at the same court level, there are varying views as to whether the more recent judgment overruled the prior one.
On the one hand, only the Federal Court, the court that presides above the Court of Appeal, can overrule a decision by the latter, hence, both the 2014 and 2015 rulings remain valid and enforceable. On the other hand, the principles in the Federal Court decision of Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1 established that when two decisions of the same court conflict on a point of law, the later decision prevails over the earlier decision, should the court be the highest court to determine any appeals arising thereof.
For context, the Court of Appeal is the highest court to determine both Public Prosecutor v Yuneswaran a/l Ramaraj [2015] and Nik Nazmi bin Nik Ahmad v Public Prosecutor [2014], as both originated in the subordinate court. Only criminal cases that started in the High Court can be appealed up to the Federal Court.
While there may not be any finality on this, one thing that may change soon is the Peaceful Assembly Act 2012 itself, as Home Minister Datuk Seri Saifuddin Nasution recently touted amendments to the Act to ease the process for peaceful rallies. These include potentially making do with getting the approval process if a specific area has already been designated as a place for assemblies.
With all of the above established, it’s important for everyone to adhere to the set conditions and cooperate with the authorities so that no unwanted incidents take place during an assembly.
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