Human Rights Watch by Phil Robertson
Published in:
Jurist
DECEMBER 16, 2011
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.
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