JURIST Guest Columnist Phil Robertson, Deputy Director of the Asia Division at Human Rights Watch, says that the Peaceful Assembly Bill is a betrayal of Malaysian Prime Minister Najib Razak's earlier promises to bolster civil society through broadening respect for individual rights and enhancing democratic practices...
No one has ever accused Malaysian Prime Minister Najib Razak of rhetorical reticence, especially when the political spotlight is shining intensely. The leader who coined the "1Malaysia" campaign, which has done surprisingly little to ease the concerns of the country's non-Malay minorities despite its snappy logo and full government backing, has now turned his attention to political reform.
In his Malaysia Day speech on September 15, Najib proclaimed that "The Malaysia which we dream of and one that we are currently building is the Malaysia which practices functional and inclusive democracy, where peace and public order are safeguarded in line with the supremacy of the Constitution, the rule of law and respect for basic human rights and individual rights." While activists held out hope for real reform, many political commentators viewed this as the opening salvo for possible early elections in 2012, which will be hotly contested between the government and a political opposition that made historic gains in the last election, held in 2008.
The reform effort started with the October repeal of the two infrequently used restrictive laws, the Restricted Residence Act [PDF] and the Banishment Act [PDF]. Pledges were also made to do away with infamous preventive detention laws like the Internal Security Act [PDF], to rescind emergency proclamations underpinning the Emergency Ordinance that permit detention for up to two years to protect public order, and easing restrictions on freedom of assembly and expression.
The promises included a review of Section 27 of the Police Act 1967 [PDF], which empowers the police "to regulate assemblies, meetings and processions" by requiring police permits. Najib stated that the review would take "into consideration Article 10 of the Federation Constitution [PDF] but with a principle that is strongly against street demonstrations." Nevertheless, he said, "the approval to assemble will be given ... after taking into consideration international norms." Optimists said so far, so good, since Article 10 clearly establishes the rights to freedom of speech and expression, peaceful assembly and association.
Fast forward two months and Najib's bold promises lie in tatters, largely discredited by the draconian Public Assembly Bill rushed through the lower house of Parliament on November 29. Demands by the Malaysian Bar Council and other leading civil society groups for continuing consultations were ignored. Malaysia's Senate will probably consider the bill soon and there is little hope that it will seriously reconsider the broader implications of the measure on fundamental freedoms in a country where such freedoms have long been trampled upon.
The draft law is a cruel joke on Malaysian civil society, which was hoping for genuine reforms. In a classic case of bait and switch, the bill does away with the formal need for a police permit but sets out a blanket ban on "assemblies in motion" such as marches and street protests and provides such wide discretion for police to prescribe unilaterally the conditions and circumstances for public assemblies that it ensures the right to assemble will be even more tightly restricted.
General principles of international human rights law provide that restrictions on peaceful assemblies must not only must be necessary for public order, but also proportionate to the circumstances. The requirement cannot be met by a wholesale ban, but requires a case-by-case analysis. The bill fails that test and is significantly more restrictive than the law it replaces.
In addition to the outright ban on marches, the Peaceful Assembly Bill gives district police chiefs broad discretionary powers to set the terms of any assembly, including establishing a balance between the interests of the assemblers and those who might be affected by the event and "any other matter ... necessary or expedient." Police may also use "all reasonable force" in dispersing an assembly, yet nowhere in the draft law is the term "reasonable" defined or specification made in what types of situations force would be considered legitimate.
The draft law also sets out that no one under age 21 may organize a protest. Those under 15 are even barred from taking part, silencing young voices and violating the right to participation under the Convention on the Rights of the Child, one of the few human rights treaties Malaysia has ratified.
Exploitative employers of the literally millions of foreign migrant workers in Malaysia can also breathe a sigh of relief since the law bars non-Malaysian citizens from organizing or participating in an assembly. If that were not enough, the bill includes an escape clause for the government to ensure quiescence by providing the home affairs minister unilateral power to give the thumbs up or down on an assembly a decision that should be reserved for the courts.
The draft law further prohibits assemblies at or within 50 meters (164 feet) of anywhere designated "a prohibited place." Prohibited places explicitly include gas stations, hospitals, fire stations, airports, railways, land public transport terminals on public land, ports, canals, docks, wharves, piers, bridges, marinas, places of worship, kindergartens and schools, dams, reservoirs and water catchments areas, water treatment plants and electricity stations. Try to find a spot within a modern city that is not within 50 meters of one of these places and it becomes clear that the intent is to make it virtually impossible to stage a protest in an urban area in Malaysia.
Evidently the Malaysian government has not learned that all-out attempts to stop citizen-organized marches can backfire badly. On July 9, the government was roundly condemned abroad for cracking down on a march in Kuala Lumpur by Bersih 2.0, a coalition of 62 organizations calling for clean and fair elections. Despite a ban on the march and a barrage of police warnings and threats of arrests, tens of thousands peacefully marched in the face of police tear gas and water cannons. The police arrested 1,667 people, at times using unnecessary force. Media accounts, supplemented by the rapid spread of private video and audio recordings through social media like Facebook, effectively discredited the police version of events. Perhaps recognizing that it cannot control or monopolize the images and messages coming out of such protests, the government has evidently now decided to prevent people from demonstrating in the first place.
Malaysian officials claim they have borrowed legal models for the Peaceful Assembly Bill from democratic countries, but clearly respect for the right of peaceful assembly was left out of the mix. Najib said on September 15 that it is time to rescind the three emergency ordinances on the books and "forge ahead with a new paradigm based on new hope and not be constrained by nostalgia for the past." He added the time was ripe for this move because the government was "realizing the changing realities, taking the pulse of the nation and feeling the restlessness of the people aspiring for a more open Malaysia with a dynamic democracy where the views, ideas and concerns of the masses are given greater attention so that our system would be comparable to the other democracies of the world that are based on the philosophy 'of the people, by the people, and for the people.'" So why then is he promoting a Peaceful Assembly Bill that sets out a new set of draconian restrictions on core human rights?
When he made his Malaysia Day speech, the prime minister drew the kind of global attention that Malaysia so rarely receives, accompanied by hope that his words would mark the start of long overdue, serious and significant legal reforms to broaden respect for rights and deepen democratic practices, yet with the world still watching, he has now stepped away from his pledges.
Najib should heed the call of the Malaysian Bar Council, pull the bill back, and send it to a Parliamentary Select Committee where all stakeholders can have their say and a better bill can be crafted. It is not too late for the government to reverse course, recognizing that bringing the existing draft of the Peaceful Assembly Bill into law will constitute a betrayal of the prime minister's lofty words.
Phil Robertson is the Deputy Director of the Asia Division at Human Rights Watch, where he oversees the organization's work throughout Asia, especially in Southeast Asia, North Korea and Japan. Prior to joining Human Rights Watch in 2009, he was the program manager of the UN Inter-Agency Project on Human Trafficking. He also spent time leading the Mainland Southeast Asia office of the AFL-CIO's Solidarity Center.
Suggested citation: Phil Robertson, Political Bait and Switch Trumps Rights Reform in Malaysia, JURIST - Hotline, Dec. 15, 2011, http://jurist.org/hotline/2011/12/phil-robertson-malaysia-reform.php.
This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org