With the recent unrest on the alleged corruption by the Chief Commissioner of the Malaysian Anti-Corruption Commission (MACC), Azam Baki, the Rakyat have decided to take the matters to the street. Posters with the hashtag #tangkapAzamBaki were being spread all over social media calling for a rally at Dataran Merdeka (which was later changed to Bangsar LRT due to roadblocks). Question arises, is holding a rally in Malaysia legal. Here is everything you need to know before attending a rally in Malaysia.
Brief overview of the allegations against Azam Baki
In October 2021, Azam Baki was named amongst others as being involved in purchases of company shares worth millions. The question arises, how can a civil servant be able to afford such large numbers of shares.
Subsequently, an article by Lalitha Kunaratnam on the Independent News Service (INS) website titled ‘Business Ties Among MACC Leadership: How Deep Does Go?’ supporting the above claim by the now-suspended Twitter account called Edisi Siasat (they have created a new Twitter account under the Twitter handle, Edisi Khas).
After staying silent for more than two months, Azam Baki finally responded to the allegations by stating that the transactions were made by his brother, using Azam Baki’s bank account. He stands by the claim that he did no wrong and that the “claims of conflict of interest in his (my) part are baseless.”
The aftermath that followed with allegations that the rule of law (separation of powers) is not being followed by the executives in Malaysia led to the #tangkapAzamBaki movement.
Are rallies in Malaysia legal?
Before attending a rally in Malaysia, note that Section 9 of the Peaceful Assembly Act 2021 (PAA 2012) requires the organiser of the rally to notify the Officer in Charge of the Police District (OCPD) 5 days before the rally is to be held (previously, a notification period of 10 days was required before the Peaceful Assembly (Amendment) Act 2019 came into effect).
Article 10 of the Federal Constitution (FC) states that ‘all citizens have the right to assemble peaceably and without arms..’.
For those of you who did not read law, you must know that (almost) every word in a legal context needs to be defined or it can be loosely translated leading to a floodgate of cases.
Related read: 5 Rights Given to You under the Federal Constitution
Based on the Article above, what does ‘assemble’ mean, legally?
Section 3 of the Peaceful Assembly Act 2012 (PAA 2012) defines ‘assembly’ as ‘an intentional and temporary assembly of a number of persons in a public place, whether or not the assembly is at a particular place or moving”, in laymen terms, a rally (without weapons).
Therefore, can we conclude that rallies, as long as they’re peaceful, are allowed in Malaysia?
Can the police stop someone from holding a rally?
We spoke to lawyer Shugan Raman, the Chairperson of the KL Young Lawyers Committee and the Founder of Shugan & Co, on this.
According to him, there are conflicting views on s.9 of the PAA 2012 as this may contradict Article 10 of the FC. The Court of Appeal (COA) cases of Nik Nazmi Nik Ahman v PP (2014) 4 CLJ 944 and PP v Yuneswaran Ramaraj (2015) 9 CLJ 873 had contrasting decisions on this matter. In the former case, the COA held that s.9 of the PAA 2012 is in contravention with Article 10 of the FC; however, in the latter case, the COA held that there is no contravention.
“I am of the opinion that the police cannot stop someone from the guaranteed rights of citizens to assemble peacefully under Article 10 (of the FC). We have seen the attempts by the police to use Covid and its related regulations to stop people from any form of assembly, but I am of the view that the Federal Constitution, being the supreme law of (the) nation, trumps all other laws and regulations.’ He said.
However, there is a chance that the police may use S. 98 of the Criminal Procedure Code (CPC) to stop an assembly. The police used this to get the Magistrate’s Order prior to the #tangkapAzamBaki protest to stop it from happening. S. 98 of the CPC was also used to stop the #LAWAN protest from happening.
Can a person be charged for attending a rally in Malaysia?
According to Mr. Shugan Raman, who has in the past provided legal aid to people attending a rally in Malaysia, some of the common laws used to investigate, detain and/or arrest rally participants were s. 124B and s. 124C of the Penal Code and the PAA 2012. However, in recent times, the police have been mainly using the Prevention and Control of Infectious Disease (Measures Within Infected Local Areas) (National Recovery Plan) Regulations 2021 and Prevention and Control of Infectious Disease Act along with the PAA 2012 to carry out investigation against those attending a rally.
If someone gets arrested, what are the next steps to take?
It must be noted that an arrest can only be lawful if satisfies the requirements under S. 15 of the Criminal Procedure Code (CPC) as well as the case of Chong Fook Kam & Anor v Shaaban & Ors (1968) 2 MLK 50. The requirements are as follows:
- The arresting officer is required to take you to the nearest police station.
- Art 5(3) of the FC and S. 28A of CPC provides you with the rights to call a family member or friend and a lawyer. You are entitled to legal representation.
If you do not have a lawyer in your contact list, you may contact the Legal Aid Centre.
When the police takes your statement under S. 122 of CPC, you are only obliged to give your personal particulars (Full name, age, address and occupation). You may simply inform the police that you will be answering the rest in the Court if you are charged.
- You may be detained for only up to 24 hours for the investigation, upon which, the police are required to either charge you at the Court or release you.
- In the event the police require more than 24 hours for the investigation, they must bring you for a remand order to extend your detention before a Magistrate. If you do not have a lawyer by this time, you may inform the Magistrate that you want a legal representation.
Note: This rule applies to all forms of arrest, not just from rally.
General advice to fellow activists for future rallies
We also spoke to Dr. Mathen Nair, Co-founder of MUDA, who shared his experiences with us as an activist and provided some useful advice to future rally-goers.
A peaceful rally is a process of democracy for our voice to be heard. Malaysians should unite to show our displeasure, if any, through ‘solidariti jalanan’. It’s a process of check and balance, those who govern need to know that we have a way to show dissatisfaction.
For future rallies, just note that as long as you’re there in peace, you will not face trouble. The police are there to do their duty to maintain peace and order. Our fight is against the system. Always remember that. If you get into trouble with any of the officers, do cooperate.
Before attending the rally, save the number of lawyers providing legal aid. This can usually be found on social media, or from the medium you found out about the rally. If you don’t have this information, ask around, and have it written down.
That said, it is safe to conclude that attending a rally in Malaysia is legal. If you intend to attend rallies in the future, bear in mind your rights as a Malaysian. You have the right to assemble (subject to S. 9 PAA 2012). You have to right to stay silent (subject to S. 122 of CPC).
What’s right Malaysia? You decide.