Real legal reform needs free expression and public participation

On 29 November 2011, over a thousand lawyers and human rights activists marched through the streets of Malaysia’s capital in an affirmation of their right to assemble. Later that day, and in spite of persistent and vocal criticism of the legislation, the lower house of Parliament voted to approve a bill which will effectively deny the people that right, and which is now known as the Peaceful Assembly Act (PAA).

In September of this year, Prime Minister Najib Razak announced a raft of legal reforms, most notably the repeal of the Internal Security Act. The proposed agenda of social and civil adjustments was met with cautious optimism by international observers. Despite that, the Prime Minister’s gesture included only minimal concessions for press freedom, and critics claimed that the absence of proposed amendments to the Penal Code and the Sedition Act meant the government’s so-called ‘reforms’ were insubstantial.

The government’s most recent move, as well as its inability to carry out its promises, clearly demonstrates their lack of commitment to the process of democratisation. With elections expected in 2012, Malaysians, as well as the Southeast Asian community, must seriously consider whether or not the government intends to enact real change.

Tightening restrictions on peaceful assembly

Rights groups have accused the government of bulldozing the controversial legislation, which was introduced into Parliament merely a week before the lower house vote. The prime minister’s office stated that the new law – expected to be enacted as early as December – “makes it easier for Malaysians to express their views without putting public order at risk” and represents the latest stage of Najib’s “progressive package of social and political reforms.” In fact, the law threatens freedom of expression by expressly prohibiting statements that “promote feelings of ill will” during assemblies.

Rather than safeguarding the right to assemble, the Peaceful Assembly Act will greatly diminish the people’s ability to express their political opinion. Although the government claims that the act brings Malaysia in line with European legislation, opposition leader Anwar Ibrahim described it as ‘more draconian’ than Burma’s or Zimbabwe’s assembly laws. The law has also come under fire from legal experts who insist that it violates Article 10 of the constitution, which guarantees the right to freedom of assembly.

Under Section 27 of the Police Act, which was repealed to make way for the new law, Malaysians had to apply for a police permit for a gathering of more than five people. No permit is required under the PAA but organisers must notify the relevant police chief 10 days in advance.

The act grants alarming discretion to the police chief, who may impose any and all restrictions that he considers appropriate. This includes dictating the time, date, and duration of the gathering, or ‘any other matter that he deems necessary or expedient in relation to the assembly’.

Effectively, this allows the government to decide any and all circumstances under which people may legally protest. Persons found guilty of violating the restrictions imposed on a gathering may be fined up to RM10,000, over USD3,000, and organisers are subject to fines of up to RM20,000 – close to USD7,000. Any appeal against these restrictions will be directed to the Ministry of Home Affairs, at the Ministry’s discretion and without recourse to an independent legal authority.

In an effort to banish all protest from an urban setting, the act forbids assemblies from being held at or within 50 metres of a ‘prohibited place’; this list includes schools, hospitals, places of worship, airports and petrol stations. And while the act provides for assemblies in ‘designated places’ these have not as yet been determined.

UN Special Rapporteur on Human Rights Defenders Margaret Sekaggya said she was particularly alarmed by the provision prohibiting citizens below 21 years of age to assemble. “Political and social participation through peaceful protests are not only an educational experience for children, youth and students but also an investment for society as a whole,” she stated.

The new law reflects deep-seated concerns on the part of the government over increasing political participation and assembly, particularly by Malaysia’s youth. The day after the bill’s passage through the lower house, the ruling coalition, Barisan Nasional, accused the opposition of “trying hard to manufacture panic and disorder” in an effort to create an Arab-Spring style uprising in Malaysia.

UN Special Rapporteur for the Promotion of Freedom of Opinion and Expression Frank La Rue warned that the ability of all individuals to express themselves freely – including in the form of peaceful assemblies – is “a litmus test for the level of democracy in any country.”

Despite heavy security measures, July’s Bersih 2.0 rally saw an unprecedented turnout of over 20,000 participants in Kuala Lumpur. The rally, which called for free and fair elections and the lifting of strict media controls, resulted in 1,667 arrests and a brutal response by police forces. The introduction of repressive legislation like the Peaceful Assembly Act shows the government’s unwillingness to carry out real reform, despite the will of the people and its own promises of liberalisation.

Government persists with ISA despite reform promises

The repeal of the Internal Security Act was a key part of Prime Minister Razak’s proposed agenda of legal reform. Announced on Malaysia Day of this year, the ISA is scheduled for repeal in March 2012, to be replaced with two pieces of legislation aimed at “preventing subversive activities, organised terrorism and crime to maintain peace and public order”.

Since the enactment of the ISA in 1960, the law has been used to detain thousands of political dissidents and human rights defenders. The act grants the authorities power to detain citizens for up to two years without charge or trial but the period can be renewed indefinitely. Emergency ordinances which grant the government similar powers of detention were repealed earlier this year, but critics say the gesture does not go far enough toward preventing unlawful detention.

As recently as July of this year, six members of the Socialist Party of Malaysia, including Dr Jeyakumar Devaraj, a member of Parliament, were detained for 28 days without charge. The six were accused of, among other things, ‘waging war against the King’ and playing a role in organising the Bersih 2.0 protests, but were released after a sustained campaign against their detention.

The government has also been accused of using allegations of terrorism to justify arbitrary arrests. In November, 13 people including six Indonesians were detained in Sabah (a state in Northern Borneo) under the ISA, sparking claims that the arrests made a mockery of the PM’s promise to abolish the law. 

On 21 November, Home Minister Hishamuddin Hussein said that the new legislation will continue to allow detention without trial, citing similar anti-terror laws in the US, the UK, and Australia. Though the full scope of the laws remains unclear, commentators have speculated that the laws will grant the government similar if not wider powers, pointing out that the penal code was amended to deal with terrorism three years ago.

As a gesture of reform, Parliament voted in October to repeal the Restricted Residences Act and the Banishment Act. The government has also tabled a motion to amend Section 15 of the Universities and University Colleges Act, allowing students over 21 to join political parties. But it has yet to deliver on its other promises of legal reform, which include abolishing the yearly renewal of licensing requirements under the Printing Presses and Publications Act (PPPA), and critics remain skeptical that these reforms will have a significant or lasting impact on the political climate.

While government stalls, opposition states move toward freedom of information

While the federal government refuses to enact popular legal reform proposals, on 4 November 2011 Penang became the second Malaysian state to enact freedom of information legislation. The move was welcomed by civil society groups and international observers, and followed similar legislation enacted by Selangor on 1 April of this year. Before then, laws which gave the public a right to access government information were unprecedented in Malaysia.

Both Penang and Selangor are governed by coalitions of the Federal opposition parties. 

In consultation with civil society groups, including the Centre for Independent Journalism (CIJ), the Penang legislation has made some improvements to the enactment, which includes the affirmation of access to information as a right, rather than an opportunity. Applicants are no longer required to justify the request of documents, and the documents that can be requested were expanded to include those held by state statutory bodies and state local authorities.

The Selangor FOI law also made similar progress from its original form to one more in line with international standards. However, both laws have serious shortcomings, most notably the failure to entrench the idea of the public’s right to information itself, rather than the right to access information. This was noted in the Selangor preamble, and is clearly visible in the failure of both laws to mandate the routine publication of documents. Routine publication makes the public aware of the types of documents that exists and removes the burden of making a formal request for information.

Both states have failed to provide for transparent and accountable appointments to the appeals board or, in the case of Selangor, the State Information Board which fulfils this role. While appointments to the Penang Appeals board are made accountable by law to the Legislative Assembly, the process must be made open to the public in order for the people to have full faith in their ability and impartiality.

The Penang Freedom of Information Enactment has also been gravely weakened by the removal of a proposed provision to prevent abuses of power by making it an offence to unlawfully restrict or deny access to information. Both the Selangor legislation and international standards include this clause, and although both state laws provide for the protection from prosecution of Information Officers who disclose information in good faith, the removal of this clause makes the state more vulnerable to corrupt practices.

Civil society groups have also criticised the Penang law for granting too much power to the executive. According to Section 11(2), the declassification of information which is in the public interest but which is confidential or exempt from access to information laws is done at the discretion of the State Authority. In previous versions of the law, the choice was to be made based on whether the public interest outweighed the need for confidentiality. The Penang law also excludes the deliberations of the State Executive Council from public release, which ought to be considered of the highest public importance.

Although the state-by-state enactment of FOI legislation represents a big step forward for Malaysians, only a federally mandated law can guarantee fair and consistent access to information, often referred to as the ‘oxygen of democracy’. In the meantime, it remains to be seen whether the other two opposition-led states of Kelantan and Kedah will enact similar legislation. Any future enactment of freedom of information laws must take these considerations and the recommendations of civil society into account if they are to effectively guarantee the public the access to information that is theirs by right.

Strengthening public participation for a more just society

Consultation with civil society and awareness of public sentiment is a crucial part of any legal reform process. While Penang and Selangor have moved one step further in the process to ensure freedom of information, they must continue to do so in conjunction with the public to strengthen both their legislation and their democracy.

Meanwhile, the Malaysian government’s feeble followthrough on legal reform will do little to garner approval, particularly in the lead up to a potential 2012 election. By reneging on his promise to make Malaysian society more open and just, this government has invited its citizens to once again publicly demonstrate their desire for change.

As the election draws closer, it is in the interests of ASEAN and the international community to watch closely and act decisively; to ensure that the right of Malaysia’s citizens to freedom of assembly is not infringed upon, and that the space for freedom of expression does not further diminish.


About SEAPA

SEAPA ( http://www.seapabkk.org/ ) is the only regional organization with the  specific mandate of promoting and protecting press freedom in Southeast Asia. It is composed of the Jakarta-based Alliance of Independent Journalists (AJI) and the Institute for Studies on the Free Flow of Information (ISAI); the Manila-based Center for Media Freedom and Responsibility (CMFR) and Philippine Center for Investigative Journalism (PCIJ); the Bangkok-based Thai Journalists Association (TJA); and the network’s Kuala Lumpur-based associate member, the Centre for Independent Journalism (CIJ). SEAPA also has partners in Cambodia, East Timor, and exiled Burmese media, and undertakes projects and programs for press freedom throughout the region.

For inquiries, please contact us at: seapa [at] seapa [dot] org or call +662 243 5579.

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