Malaysian Criminal Law

1. 1
1.0 INTRODUCTION
Lately in Malaysia, we frequently heard about demonstrations made by citizens which
most of it, are made when people feel their certain rights have been deprived. They will
gather in certain places, and in a large number of people to express their thoughts about
certain matters. It must be noted that in most democracy countries, having an assembly or
protest demonstrations is common since the power of government are in the hands of
citizens. Patricia Hewitt stated that the characterisation of demonstrations and other forms
of public protest becomes a threat to normal community living obscures the basic fact that
protest is part of normal community life and serves a vital function in a democratic system of
government1
.
Here it can be seen that the right to assemble peaceably is a fundamental right and it
is linked to other rights such as freedom of speech and freedom of religion. This right is
called ‘freedom of assembly’ which is a vital right for citizens to gather in a peaceful manner
and express their rights. This kind of freedom also have been recognized at the international
level and provided under Article 20(1) of the Universal Declaration of Human Rights
(UDHR) and Article 21 of the International Covenant on Civil and Political Rights
(ICCPR). This is in the sense that generally people agreed of having freedom in assembly
are prevalent among citizens and it became the reason for Malaysian to use their rights of
assembly to gather in certain places to express their rights in certain matters. This kind of
rights has been ensured in Article 10(b) of Federal Constitution of Malaysia for citizens to
assemble peaceably without arms and it is among fundamental rights given to each citizen
which is should not be infringed by anyone even the government itself.
However, even the aim of such congregate is to retrieve the own rights, sometimes it
may results to chaos, financial loss, and in serious cases, may inflict injuries to the
innocence, apart from countless other detriment faced by many parties. In short, it could be
a threat to government in exercising their duties and also to public at large. One must bear in
mind that by giving such absolute rights to citizens, it will then bring pandemonium to the
nation especially when the purpose of the assembly itself is related to sensitive matters such
as religion, race and language. This become the main reason for parliament to impose
certain restrictions to control citizen in exercising their freedom of assembly based on
fourteen constitutionally permissible grounds which relate to national security and public
order as already stated in Article 10(2), (3) and 149 of Federal Constitutions.
1 Patricia HopeHewitt is a British Labour Party politician,who served in the Cabinet until 2007,most recently
as Secretary of State for Health. Retrieved from http://aimalaysia.org/promote-freedom-association-assembly
on 2nd of April 2015.

2. 2
Thus, it is clear that every citizen has rights to assemble peaceably even though we
are subject to certain restraints given under certain laws. Apart from that, we must aware
that some lawful assembly may become unlawful if some of the conditions given under
certain acts are not being followed. It may also became unlawful from the start if the intention
itself for bad purposes. Before going through in detail about ‘unlawful assembly’, one must
define the meaning first. ‘Unlawful Assembly’ generally means a meeting of three or more
people likely to cause breach of peace or to endanger the public. It is also a legal term used
to describe a group of people with the mutual intent of deliberate disturbance of the peace. If
the group are about to start the act of disturbance, it is termed a rout, and if the disturbance
is commenced, it is then termed riot2
. Meanwhile, according to Lord Hawkins, unlawful
assembly is not only an assembly to do an act, which is if done, would make turbulence, but
it is the meeting of many people which would endanger the public peace in order to recover
their interests3
. Meanwhile in legal term, definition of ‘unlawful assembly’ has been stated
clearly under Section 141 of Penal Code which states that an assembly of five or more
persons is designated as ‘unlawful assembly’, if the common object of the persons
composing that assembly is;
(a) To restrain by criminal force, or show of criminal force, the Legislative or
Executive Government of Malaysia or any State, or any public servant in
the exercise of the lawful power of such public servant;
(b) To resist the execution of any law, or of any legal process;
(c) To commit any mischief or criminal trespass, or other offence;
(d) By means of criminal force, to any person, to take or obtain possession of
any property, or to deprive any person of the enjoyment of a right of way,
or of use of water or other incorporeal right of which he is in possession or
enjoyment, or to enforce any right or supposed right; or
2 Duhaimie’s Law Dictionary.(n.d.). Unlawful Assembly Definition. Retrieved from
http://www.duhaime.org/LegalDictionary/U/UnlawfulAssembly.aspx on 20th April 2015.
3 Henry, G.
https://books.google.com.my/books?id=xWcUAAAAQAAJ&pg=PA96&lpg=PA96&dq=lord+said+about+unlawfu
l+assembly&source=bl&ots=V-el4t4jDS&sig=T1W1fAMB-
dl5K9dxsYh8pYkUAd8&hl=en&sa=X&ei=LcIYVYXeKMeyuQTZwoDIDg&ved=0CC0Q6AEwBA#v=onepage&q=lord
%20said%20about%20unlawful%20assembly&f=false

3. 3
(e) By means of criminal force, or show of criminal force, to compel any
person to do what he is not legally bound to do, or to omit to do what he is
legally entitled to do.
In short, under Section 141 Penal Code, an assembly would be considered as unlawful
when there are assembly of five or more person and the common object of these persons
themselves are unlawful.
So, in this research, the ‘unlawful assembly’ will be the main topic and we are going
to discuss critically about how lawful assembly may become unlawful and how the
government will handle this issue. In addition to that, we are also going to define on how the
government will use certain acts to control freedom of assembly in Malaysia. This includes
by using Federal Constitution, Penal Code, Criminal Procedure Code, Police Act 1967, and
also Peaceful Assembly Act 2012. These acts especially Peaceful Assembly Act 2012 has
becoming a controversial law and thus, through this research, we are going to examine
completely the laws enacted for ‘unlawful assembly’ before year 2012 until now. There are
also few debates and critics on some of the laws especially on Peaceful Assembly Act 2012
which we are going to disclose later. Apart from that, to learn further, we also will go into
detail and make some comparisons for law on freedom of assembly in Malaysia and another
country which is Myanmar that also practicing democracy as in Malaysia for comparison.
2.0 APPLICATION OF LAW OF UNLAWFUL ASSEMBLY BEFORE 2012
2.1 FEDERAL CONSTITUTION
Freedom of assembly is broadly recoqnized as part of the freedom of speech and
expression. It is also an integral part of the right to practise and propogate one’s religion.
Right to freedom of assembly also has been stated clearly under Article 10(1)(b) of Federal
Constitution as part of fundamental rights given to citizens of Malaysia. Article 10 of
Federal Constitution stated that;
(1) Subject to Clauses (2), (3) and (4) –
(a) every citizen has the right to freedom of speech and expression;
(b) all citizens have the right to assemble peaceably and without arms;
(c) all citizens have the right to form associations.
(2) Parliament may by law impose –

4. 4
(a) on the rights conferred by paragraph (a) of Clause (1), such restrictions as it
deems necessary or expedient in the interest of the security of the Federation or any
part thereof, friendly relations with other countries, public order or morality and
restrictions designed to protect the privileges of Parliament or of any Legislative
Assembly or to provide against contempt of court, defamation, or incitement to any
offence;
(b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it
deems necessary or expedient in the interest of the security of the Federation or any
part thereof, or public order;
(c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems
necessary or expedient in the interest of the security of the Federation or any part
thereof, public order or morality.
(3) Restrictions on the right to form associations conferred by paragraph (c) of
Clause (1) may also be imposed by any lawrelating to labour or education.
(4) In imposing restrictions in the interest of the security of the Federation or any part
thereof or public order under Clause (2) (a), Parliament may pass law prohibiting the
questioning of any matter, right, status, position, privilege, sovereignty or prerogative
established or protected by the provisions of Part III, article 152, 153 or 181
otherwise than in relation to the implementation thereof as may be specified in such
law.
According to the said provision, the right to exercise freedom of speech and
expression, assembly and association are only available to citizens. Thus, non-citizens in
Malaysia could be said to be denied of this fundamental rights. In Article 10(1)(b), the
Federal Constitution provides that all citizens have the right to assemble peaceably and
without arms and there is no mention about processions and pickets. Presumably, these
freedoms are included in the constitutional right of assembly because a procession is an
assembly in motion. The assertion of the right to assembly however, goes hand in hand with
the realisation that as well as powers have to be surrounded by restraints, rights also must
be qualified by some restrictions. This is under the principle that human beings are not
always right in the use of their rights.
Thus, it must be noted that although the article gives freedom to the citizen in
assembly, but it also provides some other limitations as stipulated in clause (2) where the
parliament may impose law in order to give restriction as it deems necessary or expedient in

5. 5
the interest of the security of the Federation or any part thereof, friendly relations with other
countries, public order or morality and restriction designed to protect the privileges of
parliament or of any legislative assembly or to provide against contempt of court, defamation
or incitement of any offence. So, it clearly shows that this article not merely contains the right
of the citizen but more on the obligation of the citizen since there are many limitation
provided. For instance, a person cannot assemble in a large group for any purpose, anytime
and anywhere that he wants because his right to assembly is subject to clause (2). This can
be seen in the case of Cheah Beng Poh v Public Prosecutor4
. In this case, 42 lawyers
were charged for taking part in unlawful assembly. The High Court held that in public
meetings or processions, even they are spontaneous, it still would be considered as unlawful
since there was no police permit given. It was strongly alleged by the accused persons that
their arrestment was unlawful because it inconsistent with Federal Constitution as a supreme
law of the land giving rights to assemble peaceably. However, for public security purpose,
the acts of police under Section 27 of Police Act 1967 are not considered as inconsistent.
Article 10(2)(b) clearly stated that, in order to preserve peace, the Federal Constitution
permits Parliament to impose restrictions on freedom of assembly on grounds of security
and public order even it violated certain individual rights as stated under Article 149 of
Federal Constitution. This provision gave permission to the parliament to deny any
fundamental rights stated under Article 5, 9, 10 or 13 to make or allow any laws against
subversion and any act considered as prejudicial to public order such as Internal Security
Act 1960. So, whether the resulting law is actually necessary or not is a question that is
unreviewable in the courts. It is notable that the power to restrict fundamental rights vests in
the federal Parliament, not the State legislatures5
.
However, this seems contrary to the draft of constitution contained in Reid
Commission Report where it put the duty on courts to protect fundamental liberties provision
by taking a critical view of the law restricting fundamental liberties and not just to put into
effect any law passed by parliament. This can be seen in the case of Nik Noorhafizi bin Nik
Ibrahim & Ors v Public Prosecutor6
. The main issue in this case is whether Section 27 of
Police Act 1967 inconsistent with Article 10 of Federal Constitution. Here, the appellants
were found in an assembly in a public place in respect of which a police licence had not
been issued under Section 27(2) of the Police Act 1967. After a full trial before the
magistrate they were convicted under Section 27(5) of the Act and sentenced to a fine of
RM3,900 each. The appellants paid the fines and appealed to the High Court to set aside
4 [1984] 2 MLJ 225
5 Wan, N. (2009).Article10 of Federal Constitution,blog. Retrieved from http://laws-
wanziey.blogspot.com/2009/06/article-10-of-federal-constitution.html on 29th of April 2015.
6 [2013] 6 MLJ 660

6. 6
their convictions and sentence on the grounds that the law used to prosecute them was
unconstitutional. It was the appellants argument that both Section 27(2) and (5) of the Act
contravened art 10(1)(b) of the Federal Constitution, which guaranteed the primary right of
freedom to assemble.
The High Court then held that Section 27(5) of the Act read together with Section
27(2) of the Act did not contravene the Constitution and that provision of the Act was valid
and constitutional. It is clear that even though citizens have right to assemble peaceably, but
they are still subject to the Article 10(2), (4) and also Article 149 of the Federal Constitution
which give parliament power to enact law for security and public order. Thus, render the
Section 27 of Police Act 1967 as constitutional and valid.
So, one must bear in mind that notion of this ‘freedom’ is actually not a question of
right but rather of privilege in nature. For instance, from Article 10(2)(b), 149 and 150, these
provisions may set aside the constitutional safeguard for freedom of assembly. That is why
many laws relating to ‘unlawful assembly’ has been amended like under Section 141 and
149 of the Penal Code, Section 83 and 84 of Criminal Procedure Code, Section 27 of Police
Act 1967, and lately, new act just has been amended by parliament and become
controversial recently which is Peaceful Assembly Act 2012.
2.2 PENAL CODE
The Penal Code7
covers the crime of unlawful assembly in chapter VIII for the
offences against the public tranquility. Section 141 of the Penal Code8
defined an unlawful
assembly as an assembly of five or more person with a common objective which includes:-
(a) To overawe by criminal force, or show of criminal force, the legislative or executive
government of Malaysia or any state, or any public servant in the exercise of the
lawful power of such public servant ;
(b) To resist the execution of any law, or of any legal process;
(c) To commit any mischief or criminal trespass, or other offence;
(d) By means of criminal force, or to show of criminal force, to any person, to take or
obtain possession of any property, or to deprive any person of the enjoyment of a of
way, or of use of water or other incorporeal right of which he is in possession or
enjoyment, or to enforce any right or supposed right; or
7 Act 574
8 Section 141 of the Penal Code

7. 7
(e) By means of criminal force, or show of criminal force, to compel any person to do
what he is not legally bound to do, or to omit to do what he is legally entitled to do.
The above provision stated that an assembly which was not unlawful when it
assembled may subsequently become an unlawful. This means that, an assembly may be
lawful at the beginning of the assembling but may become unlawful because of the people
assembled had committed an act which defined in the section. The member of lawful
assembly who knows that the assembly had become unlawful intentionally still continuing
assembling will be regarded as a member of an unlawful assembly as according to Section
142 of the Penal Code. In addition, the punishment for member of unlawful assembly is
stipulated under Section 143 of the Penal Code which includes imprisonment up to six
months or fine or both.
In the case of Fam Meng Siong & Anor v Public Prosecutor (2012) 5 MLJ 4649
,
the appellants with two other accused has been charged under Section 149 of the Penal
Code which read together with Section 302 of the same act. The gathering for purposes as
stated under Section 141 of the Penal Code make the assembly unlawful therefore all
members of the unlawful assembly was convicted for murder. The appellants had
participated in the unlawful assembly with the common object of causing the death of the
deceased and that being members of the unlawful assembly, they knew that the said offence
would be likely to be committed in the prosecution of that common object. One must bear in
mind that whoever who is said to have known or intentionally that he was participating in an
unlawful assembly will regarded as the members of that unlawful assembly as provided in
Section 142 of the Penal Code. This can be seen in the case of Public Prosecutor v
Muhamad bin Atan & Others10
that the liability under Section 149 of the code is such that a
person may be held vicariously liable for acts of others. The vicarious liability of the
members of the unlawful assembly will extend only if the acts were done in pursuance of the
common object of the unlawful assembly, and such offences as the members of the unlawful
assembly knew to be likely to be committed in prosecution of that object.
In addition, in order to assemble in a lawful manner, there shall be no weapon during
the assembly. Possession of weapons or missiles at unlawful assembly which if liable, ones
will be punish with imprisonment for a term which may extended to two years, or fine, or with
both punishments11
. In the case of Periasamy & Anor v Public Prosecutor12
, the appellant
had joined a riot and used a weapon which later on leads to a murder. He then was liable
9 (2012) 5 MLJ 464
10 [2009] MLJU 586
11 Section 144 of the Penal Code
12 (1993) 2 MLJ 551

8. 8
under Section 144 of the code for possessing a weapon in an unlawful assembly which
would be likely to cause death in a riot.
Section 149 of Penal Code stated that if an offence is committed by any member of
an unlawful assembly in prosecution of the common object of the assembly, or such as the
members of the assembly knew to be likely to be committed in prosecution of that object,
every person who, at the time of the committing of that offence, is a member of the same
assembly would be guilty of that offence. In short, the members who would likely to have the
common objective during the assembly would be jointly liable for the offence committed. In
the case of Mohd Haikal bin Mohd Khatib Saddaly & Ors v Public Prosecutor13
,
appellants killed a member in their school during a fight. The deceased was not even
retaliating. It was not sure who gave the fatal blow to the deceased. The court then held that
it was a joint liability as stated under Section 149 of the Penal Code because they had
common object of causing grievous hurt that would likely lead to death.
Next, according to Section 151 of the Penal Code, a person may be punished with
imprisonment up to six months or fine or with both punishments if he knowingly joining or
continue to assemble after it has been commanded to disperse.
In conclusion, this act provided the definition or the way for a person to be convicted
for an offence of unlawful assembly. Generally, if there is a gathering of five or more person
with common objective which laid down in Section 141 of the Penal Code, they will be liable
for an offence of unlawful assembly.
2.3 CRIMINAL PROCEDURE CODE
This code14
describes about the procedure in an unlawful assembly in chapter VIII. It
gives a power to the magistrate, gazette police officer not below the rank of Inspector or
officer in charge of a police station to disperse an unlawful assembly and it is the duty of the
assembly member to disperse accordingly as stipulated under Section 83 of Criminal
Procedure Code.
Next, Section 84 of the Criminal Procedure Code provided that if members of
unlawful assembly resist to disperse accordingly to the command of person in power to give
command to disperse, the armed force may do all things necessary to disperse the
assembly. The procedure to disperse the unlawful assembly may extend to cause harm,
13 (2009) 4 MLJ 305
14 Act 593

9. 9
death or damage to property if necessary and the armed force would be immune in this
matter from criminal or civil proceedings. There also will be no prosecution as provided in
Section 88 of the Act 593 against any Magistrate, police officer or member of the armed
forces for any act purporting to be done under this Chapter shall be instituted in any Court
except with the sanction in writing of the Public Prosecutor personally or, in Sabah or
Sarawak, of the Director of Public Prosecutions.
In the case of Siva Segara v Public Prosecutor15
, a group of lawyers has been held
guilty for unlawful assembly even after the commission for the rally to be dispersed has been
given. They were guilty of not to disperse under Section 84 of the Act 593 even after a
command to disperse by the authority under Section 83 of the Criminal Procedure Code had
been given. The act was aiming to avoid public riot and to keep peace. Federal Court in this
case held that the underlying object of all these provisions which is the Penal Code, the
Criminal Procedure Code and also the Police Act clearly was to uphold public order and to
protect the public generally against lawlessness and disorder.
For a conclusion, this code described about the procedure which will be taken when
there is an unlawful assembly and the consequences if the members of unlawful assembly
did not disperse accordingly. The procedure involves the authority such as the magistrate
and the police officer to command to disperse the unlawful assembly.
2.4 POLICE ACT 1967
The Police Act 196716
is an act of parliament that governing constitution, control,
employment, recruitment, funds, discipline, duties, and powers of the Royal Police of
Malaysia including Royal Malaysia Police Reserve and the Royal Malaysia Police Cadet
Corps. A police with the authority prescribed in this act has the power in dispersing or to
detent the member of an unlawful assembly.
Section 27(1) of Act 344 prescribed the authority or the power to regulate an
assembly to the police officer in charge of police district. According to this section, any officer
in charge of a Police District or any police officer duly authorized in writing by him may direct,
in such manner that he thinks fit, the conduct in public places in such Police District of all
assemblies, meetings and processions, whether of persons or vehicles and may prescribe
15 [1984] 2 MLJ 212
16 (Revised 1988) Act 344

10. 10
the route by, and the time at, which such assemblies or meetings may be held or such
procession may pass.
Next, the police have the power to issue a license for an assembly according to
Section 27(2) of the Police Act 1967. It is prescribed in this section that;
“Any person intending to convene or collect any assembly or meeting or to form a
procession in any public place aforesaid, shall before convening, collecting or forming such
assembly, meeting or procession make to the Officer-in-Charge of the Police District in
which such assembly, meeting or procession is to be held an application for a license in that
behalf, and if such police officer is satisfied that the assembly, meeting or procession is not
likely to be prejudicial to the interest of the security of Malaysia or any part thereof or to
excite a disturbance of the peace, he shall issue a license in such form as may be
prescribed specifying the name of the licensee and defining the conditions upon which such
assembly, meeting or procession is permitted: Provided that such police officer may at any
time on any ground for which the issue of a license under this subsection may be refused,
cancel such license.”
This section also prescribed the regulation in applying a license for an assembly. For
instance, in Section 27(2A) of the Police Act 1967 stated that a license to make an
assembly shall be made by an organization or jointly by three individuals. Meanwhile
Section 27(2B) further stated that, where an application is made jointly by three individuals,
the police officer to whom the application is made shall refuse the application if he is
satisfied that the assembly, meeting or procession for which a license is applied is in actual
fact intended to be convened, collected or formed by an organization. The police must also
specify in the license, the name of those jointly three persons as licensees as prescribed in
Section 27(2C) of the act. An organization which is not registered or recognized by any law
of the Malaysia shall not get any license under this act according to Section 27(2D) of the
Police Act.
Apart from that, Section 27(5) of the Police Act described how an assembly
becomes unlawful and the members of that assembly are liable for an offence for the reason
no license was issued for that assembly and the assembly does not obey any order given
under the provision of subsection (1). This is prescribed in Section 27(5) (a) and (b) of the
said act. Subsection 5A, 5B and 5C prescribed about the defense against the unlawful
assembly and the parties which will be vicariously liable of the offence under this section.
According to Section 27 (5A) of the Police act 1967;

11. 11
“In any prosecution for an offence under subsection (5) of attending, being found at
or taking part in an assembly, meeting or procession which is an unlawful assembly, it shall
not be a defense that the person charged did not know that the assembly, meeting or
procession was an unlawful assembly or did not know of the facts or circumstances which
made the assembly, meeting or procession an unlawful assembly”
The above provision is in the meaning that not knowing the assembly was unlawful or
has been unlawful would not be an excuse or defense. However, Section 27 (5B) stated
that any person who was being found in unlawful assembly who was only spectators or does
not has intention to join the assembly, must prove that he had no intention to join the said
assembly as defense.
In other hand, Section 27(6) of the Police Act gives the power to the police officer
to arrest without warrant any member of an unlawful assembly. According to Section 27 (7)
of the act, any person aggrieved by the refusal of the Officer-in-Charge of a Police District to
issue a license under subsection (2) may within forty-eight hours of such refusal appeal in
writing to the Commissioner or Chief Police Officer, and the decision of the said
Commissioner or Chief Police Officer thereon shall be final. Lastly, under Section 27(8)
stated that any person who is guilty of an offence under this Police Act 1967 shall be liable
on conviction to a fine of not less than two thousand ringgit and not more than ten thousand
ringgit and also with imprisonment for a term not exceeding one year.
The case closely related to this provision is the case of Murugan A/L Muniandy V
Public Prosecutor17
. The appellant was charged with an offence under Section 27(5)(a) of
the Police Act 1967 for being in an unlawful assembly in a public place for which no license
had been issued. An application for a license had been made to hold an assembly in front of
the British High Commission. The police in charge had refused the issue of such license.
Nevertheless, a group of about 600 Indians had and headed towards the British High
Commission. The group had failed to disperse despite warnings from the police.
The appellant's defense was that he was present at the assembly in innocent
circumstances. The appellant was found guilty and was convicted. The appellant was
sentenced to 14 days imprisonment with effect from the date of sentence and a fine of
RM2000, in default to 30 days imprisonment. The appellant appealed against his conviction
and sentence, inter alia, on the ground that the prosecution did not call the investigating
officer ('IO') as a witness. It was submitted that the IO's presence was necessary to explain
the investigations that were carried out by him to prove the charge against the appellant. The
17 [2014] 11 MLJ 161

12. 12
appellant also claimed that the learned trial judge had failed to consider the appellant's plea
in mitigation that he was a first offender with no previous conviction record. The court
dismisses the appeal. For an offence under Section 27(5) of the Act, the prosecution would
have to prove that there was an unlawful assembly and the appellant was found in the
unlawful assembly.
The prosecution had adduced evidence through PW13 that no license was issued to
the applicant, for holding an assembly in front of the British High Commission. The decision
not to issue the license was duly informed to the applicant. The prosecution had established
that the HINDRAF assembly on 25 November 2007 was an illegal assembly and also that
the information about the proposed assembly or rally not having been issued with a license
had been duly disseminated to the public at large. There are evidences produced to clearly
establish the presence of the appellant at the unlawful assembly. Taking into account the
nature of the charge against the appellant and the nature of the evidence adduced by the
prosecution in this case, in the circumstances of this case, the failure to call the IO was not
fatal to the prosecution case.
Apart from that, the Police Act 1967 also allows the police force to regulate public
meetings and processions in public places, allows an area to be declared a ‘proclaimed
area’ and gives the executive powers to disperse assemblies therein18
. Despite the clear
provision in the Federal Constitution to enjoy freedom of assembly, the Police Act 1967
circumvents this right and confers wide discretionary powers to the police to regulate
assemblies, meetings and processions in public and private places.
The Police Act requires a permit to be obtained from the police for any public
assemblies, meetings and processions, and further requires that these gatherings are not
likely to be ‘prejudicial to the interest of the security of Malaysia or any part thereof to excite
a disturbance of the peace’. The application for the permit can be refused, but if a license is
issued, it can be imposed with conditions or cancelled by the police at any time. Without
such a license, or upon breach of the conditions attached to the license, the police can stop
the assembly, meeting or procession and order its dispersal. Under Section 27(2) of the
Police Act 1967, all assemblies, meetings and processions of more than three persons in
any public place require a prior police license from the officer in charge of a police district
(‘OCPD’). The license must be applied for by a registered organization or by three
organizers jointly. An application must be made 14 days in advance. The licensee must
assume responsibility for the entire conduct of the rally and its component members.
18 18 [2010] 5 MLJ iiv Malayan LawJournal Articles 2010

13. 13
According to Section 27(5) of the Act, if three or more participants of an assembly or
procession disobey any police order, the entire assembly shall be deemed to be an unlawful
assembly and all persons taking part knowingly in the assembly shall be guilty of a criminal
offence. It would appear that one of the biggest obstacles to Malaysians in being able to
enjoy their right to freedom of assembly is that the provisions under the ‘catch-all’ Section 27
of the act are subject to interpretation and manipulation.
In conclusion, the Police Act 1967 gives the vast power to the police in allowing an
assembly to be made by issuing a license. It also gives the power to the police to arrest
without warrant a member of an unlawful assembly.
3.0 APPLICATION OF LAW OF UNLAWFUL ASSEMBLY AFTER 2012
3.1 PEACEFUL ASSEMBLY ACT 2012
The Peaceful Assembly Act was enacted to provide a guideline to the people in
organizing or attending an assembly. This is important because there should be a fine line
drawn so that the people will know what is wrong from right in being a part of an assembly.
Furthermore, it functions to fulfill the right and needs of the public in general. According to
Section 2 of the Peaceful Assembly Act (PAA), the act was made to provide the people
with a legal channel to organize and participate in such assembly that is hold in a
harmonious manner, of course, without involving any armaments. This is one of the
precautionary measures taken in order to safeguard the safety of the public, in case if the
event goes out of hand. The interpretation section in the PAA explained the word ‘arms’ as
any kind of weapon, substance or object that by its nature, can be used to cause fear injury
to persons, or damage to property. Section 2 of the act further stated that such assembly
shall be subjected to certain restrictions.
The Prime Minister, in reviewing this act, stated that it is only right to introduce a less-
stringent law in repealing the previous act (Police Act) which governs the issues faced
regarding assemblies. This kind of bill is a more people-friendly law because it allows the
expressions of people’s mind via public assembly in a regulated manner. The construction of
the act marks the starting of a more accepting approach by the government towards public
assembly.19
19 http://www2.nst.com.my/opinion/editorial/gathering-in-peace-1.9695

14. 14
The Public Assembly Act, as it is a novice to the previous act that deals with illegal
assembly which is the police act, can be said as a better version the Police Act. Some of the
contents of the Act, which goes in the opposite way to the people’s preference, had been
modified especially in terms the procedure. The former Prime Minister, Tun Mahathir
Mohammad, in commenting on the construction of this act, said that it is a good way to give
the people their right without gambling the safety of the civilians.20
Apart from that, this currently prevalent act had mitigated the power given to the
police when dealing with an assembly. The commander of the Federal Reserved Unit (FRU),
Datuk Abdul Hamid Mohd Ali stated that Section 27 of the Police Act had awarded carte
blanche to the police in giving out permit to hold any assembly. The Peaceful Assembly Act
however had limited the power of police, who will only serve as the regulator and observer of
the event. Nonetheless, the police may take action to those who go against the law in the
assembly by the virtue of the Penal Code and the Criminal Procedure Code.21
Besides, before the establishment of the Peaceful Assembly Act, there was no
specific law regulates on the rules and regulations in organizing and joining an assembly.
Section 27 of the Police Act does not seem to be adequate in covering all the possibility that
may happen in an assembly. Moreover, looking at the current situation, there were quite a
number of assemblies took place recently and this urge for an act to be enacted, focusing on
this matter. At the first look, this may seems to be nothing but another restriction on the
people’s rights set in lawful manner as it opens for more rooms to handicap the people’s
action during an assembly. But, to be seen at its bright side, such law also benefits the
people when it provides the organizer with a proper guideline to organize a lawful assembly.
Therefore, it can be said that this new law is aimed to rectify the previous law which is more
onerous and at the same time, it fills up the loopholes in the Police Act.
3.2 CONTENT OF THE PEACEFUL ASSEMBLY ACT 2012
Part I PRELIMINARY
1. Short title, commencement and non-application
Section 1 of the Peaceful Assembly Act discussed on the title, date the law takes
effect, and the situations that rendered the act ineffective. The act, published as the Peaceful
Assembly Act 2012, was commenced on 23 April 2012. This act shall not be in application
should the assembly cover under the Election Offences Act 1954, the Industrial Relations
Act 1967 or the Trade Unions Act 1959.
20 http://www.thestar.com.my/story/?file=%2f2011%2f11%2f23%2fnation%2f20111123185345&sec=nation
21 http://www.malaysiakini.com/news/294162

15. 15
2. Objects
This section explains on the objective of the construction of the act. Basically, this act
touched on the right of people to organize or to join an assembly, which to be held in a safe
manner. This right is subjected to some limitations to ensure the security of the Federation
and to protect the public interest.
3. Interpretation
The section shall be referred in explaining the various terminologies used in the act in
order to avoid misinterpretation of the act, except when it mentions otherwise.
Part II RIGHT TO ASSEMBLE PEACEABLY AND WITHOUT ARMS
4. Right to organize assembly or participate in assembly
This section contains four subsections. Here, it stated that an assembly, held without
arms shall not be organized or participated by a non-citizen, within the area of prohibited
place, street protest, not organized by a person below twenty-one years old and not
participated by a child. If such restrictions are not followed, the person is said to be
committing an offence and therefore is liable for a fine up to ten thousand ringgit. Any person
who brings or allowed children to join such illegal assembly can be convicted and thus, liable
to be fine up to twenty thousand ringgit.
5. Right of person who has interests
This provision stated that the person in-charge should be informed on the details of
the assembly, as accordance to the manner explained in section 12, for him to put the
assembly into consideration.
Part III RESPONSIBILITIES OF ORGANIZERS, PARTICIPANTS AND POLICE
6. Responsibilities of organizers
This section stated that the organizers should keep the assembly in parallel with the
law and no act or statement made during the assembly that promote ill-will or may disturb
the public peace. The organizer should make sure that the organization and the assembly
carried out according to the notification given to the person in- charge and that the assembly
is stick to the ruled down restrictions and conditions. He should appoint some people to be

16. 16
in- charge on the assembly and he is to make sure that that the assembly will not endanger
health or cause damage to property or the environment. In addition, the organizer is to
ensure that the assembly will not cause any inconvenience to the public and he has to
ensure the cleanliness of the venue where the event take place. Where there are two or
more assemblies will be held simultaneously, the respective organizers are responsible to
make sure that there are no conflict arises between the participants of the assemblies.
7. Responsibilities of participants
This section mentioned about the prohibition on the participants from disrupting or
preventing any assembly, behaving offensively towards any person; doing any act or making
any statement which has a tendency to promote feelings of ill-will or doing anything which
will disturb public tranquility, committing any offence at any assembly, and causing damage
to property, and follows the order from the person in charge of the orderly conduct of the
assembly.
8. Responsibilities of police
This section awarded the police officers with power to practice any relevant action to
make sure that the assembly is carried out according to the law.
Part IV REQUIREMENTS ON ORGANIZING OF ASSEMBLY
9. Notification of assembly
This section deals with the procedures that need to be followed in organizing a
peaceful assembly. The organizer should inform the Officer in Charge of the Police District in
which the assembly is to be held about the assembly ten day prior the event takes place.
However, this is not the deal if the assembly is to be held in designated place of assembly or
other assembly defined in the Third Schedule. For assembly related to religious or funeral
procession, the organizer may request for assistance to maintain traffic or crowd control.
Those who failed to comply with this section shall be fined up to ten thousand ringgit.
10. Requirements regarding notification of assembly
This section explains in further details on the technical procedures in preparing a
notification to organize an assembly, which need to be given to the Officer in Charge of the
Police District.

17. 17
11. Consent of owner or occupier of place of assembly
This section stated that, except to the conditions laid out in section 9(2), the
organizer should obtain the consent of the owner or occupier of the place of assembly for it
to be used for the purpose of the assembly.
12. Requirement to inform persons who have interests
This section mentions the duty of the Officer in Charge of the Police District to inform
the persons who have interest about the assembly in twenty-four hours after he received the
notification. Within forty-eight hours after he received the information on the assembly, the
person who has interest should informs his concerns or objections to the assembly together
with his reasons to the Officer in Charge of the Police District. The response from the person
who has interest will be counted in making restrictions and conditions under section 15.
13. Meeting with organizer
The Officer in Charge of the Police District may call the organizer for a meeting to
advise the organizer on the assembly.
14. Response to notification of assembly
This provision stated that the Officer in Charge of the Police District should respond
to the notification by the organizer within five days of the notification and inform the organizer
of the restrictions and conditions imposed under section 15. If no respond from the Officer in
Charge of the Police District to the notification, the assembly may proceed as proposed in
the notification.
15. Restrictions and conditions
This provision stated that the Officer in Charge of the Police District can impose
restrictions and conditions on an assembly for the purpose of security or public order. Any
person who contravenes any restrictions and conditions under this section commits an
offence and shall be liable to a fine not exceeding ten thousand ringgit.
16. Appeal on restrictions and conditions
This provision stated that if the organizer did not agreed with the restrictions and
conditions imposed, he may appeal to the minister within forty-eight hours and the minister,
upon hearing the grievance of the organizer should deliver his decision within forty-eight
hours.

18. 18
17. Simultaneous assemblies
This provision stated that if the Officer in Charge of a Police District receives
notifications that two or more assemblies to be organized, and the assemblies are proposed
to be held at the same time, date and place, the assemblies may, subject to restrictions and
conditions imposed under section 15, be held simultaneously.
18. Counter assembly
This section the power of Officer in Charge of the Police District to give an alternative
time, date and place for the counter assembly if it is believed that there will be problems
arise between the participants of the assembly if both assembly is to be held simultaneously.
19. Presumption as to organizer
This provision defines the meaning of organizer as any person who initiates, leads,
promotes, sponsors, holds or supervises the assembly, or invites or recruits participants or
speakers for the assembly.
Part V ENFORCEMENT
20. Power of arrest
This provision stated that a police officer may arrest without warrant, any organizer or
participant who refuses or fails to comply with any restrictions and conditions under section
15. Or bringing arms, or child to an assembly other than an assembly specified in the
Second Schedule. The police officer may take necessary measures to ensure voluntary
compliance by the organizer or participant.
21. Power to disperse assembly
This section lined up the circumstances in which a police officer may issue an order
to disperse .In order disperse an assembly, the police officer may use all reasonable force.
Any person who fails to comply with the order issued shall be liable to a fine not exceeding
twenty thousand ringgit.
Part VI MISCELLANEOUS
22. Maintenance of register

19. 19
The provision stated that the Officer in Charge of a Police District shall maintain a
register containing the record of notifications received.
23. Recordings
This provision stated that a police officer may make any form of recording of an
assembly.
24. Media access
This provision stated that any media representative is given the access to the place
of assembly and uses any equipment to report on the assembly.
25. Designated place of assembly
This provision stated that The Minister may designate any place to be a designated
place of assembly. Any person who organizes or participates in an assembly held at a
designated place of assembly shall have the same responsibilities as an organizer and a
participant under sections 6 and 7.
26. Power to amend Schedules
This provision stated that the Minister may, by order published in the Gazette, amend
the Schedules.
27. Regulations
This provision stated that the Minister may make regulations for the better carrying
out of the provisions of this Act.
FIRST SCHEDULE [Section 3]
PROHIBITED PLACES
Section 3 of the first schedule in the PAA listed several places that are prohibited to
hold an assembly:
o Dams, reservoirs and water catchment areas
o Water treatment plants
o Electricity generating stations
o Petrol stations
o Hospitals

20. 20
o Fire stations
o Airports
o Railways
o Land public transport terminals
o Ports, canals, docks, wharves, piers, bridges and marinas
o Places of worship
o Kindergartens and schools

21. 21
SECOND SCHEDULE [Paragraph 4(1)(e)]
ASSEMBLIES IN WHICH A CHILD MAY PARTICIPATE
This section mentioned 4 types of assemblies that can be joined by children, which
are religious assemblies, funeral processions, assemblies related to custom and assemblies
approved by the Minister.
THIRD SCHEDULE [Paragraph 9(2)(b)]
ASSEMBLIES FOR WHICH NOTIFICATION IS NOT REQUIRED
This section listed out several occasions where the notification is not compulsory.
FOURTH SCHEDULE [Section 10]
FORM NOTIFICATION UNDER SUBSECTION 9(1)
The fourth schedule laid out the sample of notification form for assemblies which are
religious assemblies, funeral processions, wedding receptions, open houses during
festivities and a few others.
3.3 HOW THIS ACT FUNCTIONS
In general, this Act states the limitations of the Freedom of Peaceful Assembly Act
empowered by Article 10, of the Constitution which is the freedom of speech, assembly and
association. In the Federal Constitution of Malaysia, specifically, this article 10(1)(b) in the
Federal Constitution explains about the importance of freedom of assembly. Also, this Article
10(1)(b) provides that all citizens have the right to assemble peaceably and without arms.22
There is no mention about processions and pickets. Presumably, these freedoms are
included in the constitutional right of assembly because a procession is an assembly in
motion. The affirmation of the right to assembly, however, goes hand in hand with the
realisation that just as powers has to be surrounded by restraints; rights too must be
qualified by restrictions. Human beings are not always right in the use of their rights. Also, to
preserve peace, the Federal Constitution permits Parliament to impose restrictions on
freedom of assembly on the grounds of security and public order. Whether the resulting law
22 Article 10 Federal Constitution

22. 22
is actually necessary or not is a question that is unreviewable in the courts. It is noteworthy
that the power to restrict fundamental rights vests with the federal Parliament, not the State
legislatures.23
The right to Peaceful Assembly was effectively further explained by the Peaceful
Assembly Act 2012. Basically, the scope of the Peaceful Assembly Act is about the right to
assemble peaceably without arms, the responsibilities of organisers, participants and police,
the requirements on organizing of assembly, and the enforcement regarding assemblies.
The Act was drafted four months after the Bersih 2.0 rally and two months after the
government announced to replace Section 27 of the Police Act, meaning that, permits from
police to organise an assembly will be no longer required.24
The new procedure is that the
organisers must notify the officer in charge of the police district within 10 days before the
gathering date and they will respond to the notification within five days, outlining the
restrictions and conditions imposed. It was discussed in Parliament on 22 November 2011,
later passed by the House of Representatives on 29 November 2011, and approved by the
Senate on 20 December 2011. The function of this Peaceful Assembly Act 201225
is to
reaffirm, promote and facilitate the right of peaceful assembly for all persons.
Moreover, this act is also to ensure that a person may exercise the right to participate
in public assemblies free from unnecessary or unreasonable conditions, restrictions or
hindrance and thirdly is to ensure that the exercise of the right to participate in public
assemblies is subject only to such restrictions as are necessary and reasonable in a
democratic society in the interests of public safety and to ensure that the right of persons to
participate in public assemblies may be exercised without payment of a fee, charge or other
amount for a licence, permit or other authorisation.
Furthermore, the function of the Peaceful Assembly Act is about the right to
assemble peacefully without arms, and to provide restrictions deemed necessary or
expedient relating to such right in the interest of the security of the Federation or any part
thereof or public order, including the protection of the rights and freedoms of other persons,
and to provide related matters.26
The objectives of this Act are to ensure that all citizens
have the right to organise assemblies or to participate in assemblies peaceably without
arms.27
This Peaceful Assembly Act provides specifically about the right to assemble
23 Document of Destiny pg. 318
24 "Gathering in peace". New Straits Times. 23 November 2011.
25 Act 736
26 Section 2(b) [Act 736]
27 Section 2(a) [Act 736]

23. 23
peaceably and without arms by which the organisers and participants of the assembly must
be a citizen of the Federation,28
the assembly shall be held not in a prohibited area,29
the
assembly must not a street protest,30
and both organisers and participants must be twenty-
one years old and above.31
The prohibited places according to the third schedule under Section 3 of the
Peaceful Assembly Act 2012 are as follows:
 Dams, reservoirs and water catchments areas.
 Water treatment plants.
 Electricity generating stations.
 Petrol stations.
 Hospitals.
 Fire stations.
 Airports.
 Railways.
 Land public transport terminals.
 Ports, canals, docks, wharves, piers, bridges and marinas.
 Places of worship.
 Kindergartens and schools.
When it comes to the organizer of the assembly, this Act provides that whoever
wants to organise an assembly, they have to ensure that the assembly is in compliance with
the Peaceful Assembly Act.32
Other than that, this act also functioned to control the
behaviour of the participants33
. It is also for the police officer to take measures to make the
assembly accordance with the law.34
Apart from that, this Peaceful Assembly Act also provides the requirements on
organising an assembly by which whoever wants to organise an assembly must notify the
officer of the Police District ten days before the assembly.35
Whoever contravened, they will
28 Section 4(1)(a) [Act 736]
29 Section 4(1)(b) [Act 736]
30 Section 4(1)(c) [Act 736]
31 Section 4(1)(d) [Act 736]
32 Section 6 [Act 736]
33 Section 7 [Act 736]
34 Section 8 [Act 736]
35 Section 9 [Act 736]

24. 24
be liable to a fine not more than RM10000.36
Then, the officer in charge of the Police District
may impose restriction for the purpose of security and public order and the protections of the
rights and freedom of other persons37
and the organiser may appeal the restrictions within
forty-eight hours after the announcement of restrictions to the Minister.38
Next, this Act also functioned where the owner of the place where the assembly will
be held must first get consented.39
According to this Act, the police office must notify the
organiser about the assembly within 24 hours40
and meet the organizer about the procedure
of the assembly.41
Plus, the approval of the assembly must be informed to the organiser
within five days after the notification.42
This Act also said that assembly cannot be held
simultaneously43
and if the Officer in Charge of a Police District receives notification of
counter assembly that will cause conflict between two organizers; the Officer in Charge shall
set another time or place for the other assembly.44
This Peaceful Assembly Act [Act 736] also
provides the enforcement by which the power to arrest by the police without warrant to arrest
organisers or participants.45
Also, the police also have the power to disperse the assembly if
it is opposing the law in the Peaceful Assembly Act. 46
3.4 CRITICISMS ABOUT THE PEACEFUL ASSEMBLY ACT
The Peaceful Assembly Act 2012 (PAA) was passed despite much criticism. There
are so many strong criticisms about the implementation of the Peaceful Assembly Act 2012
especially from the opposition, which says that the new law if passed will crackdown on the
right to protest instead of safeguarding it.47
For example, the police have the power to
immediately stop the assembly if they think that assembly will bring harm to the nation.
The Bar Council and various civil society leaders have also spoken out against the Act48
because they will not have absolute freedom when conducting or participating in an
assembly.
36 Section 9(5) [Act 736]
37 Section 15 [Act 736]
38 Section 16 [Act 736]
39 Section 11 [Act 736]
40 Section 12 [Act 736]
41 Section 13 [Act 736]
42 Section 14 [Act 736]
43 Section 17 [Act 736]
44 Section 18 [Act 736]
45 Section 20 [Act 736]
46 Section 21 [Act 736]
47 "Outrage over new Malaysian protest law". AFP. 23 November 2011.
48 "Civil society unhappy with bill". The Sun. Retrieved 23 November 2011.

25. 25
Next, there are also criticisms saying that this Act will deter the freedom of assembly
as stated in Article 10 of the Federal Constitution, As what Bersih 2.0 leader Ambiga
Sreenevasan have said, "This Bill restricts our rights as much as possible. It gives unfettered
powers to the minister and the police to further restrict the freedom to assemble. It impinges
on free speech. In short, it will stymie legitimate dissent in our country."49
Meaning that, the
government limits their freedom of assembly. There are lots of restrictions provided in
organizing or participating in an assembly. Next, one of the criticism is that this Act50
will give
absolute powers to the Police and not democratic.51
The police can do whatever they want if
they are not satisfied with the assembly especially when an assembly is organized by the
opposition. For example, even the assembly does not bring any harm, and the police still not
satisfy with it, they have absolute power to stop the assembly immediately. Also, the
Democratic Action Party (DAP) leader, Mr. Lim Kit Siang said that the Act is passed forcibly
through the Parliament without public consultation.52
Meaning that, the Act was easily
passed without consent of people in the Parliament.
Also, the Bar Council president said that the new Act is more restrictive compared to
Section 27 of the Police Act53
by which there are many restrictions that must be followed
when organising or participating in certain assemblies. Furthermore, the other criticisms
about this Peaceful Assembly Act 2012 is that Section 9(5) of the Act was not consistent with
the freedom of assembly as stated under the Federal Constitution because it rundown
certain sections of people access to such rights.54
As in, the new Act is not in par with the
Federal Constitution. Other criticism is that Under Section 9(2) of the Peaceful Assembly
Act 2012, it explains about ten days’ notice about the assembly.55
There is no need to give a
ten day notice if the place is a ‘designated place of assembly’. But, there is no ‘designated
place of assembly’ in Malaysia and the exceptions under Section 9(2) of this Act regarding
the 10 days’ notice are not practical at all.
Moreover, the other criticism is that Section 9 of the Peaceful Assembly Act 2012 has
failed in protecting the principles of the Federal Constitution as well as human rights.
Otherwise, the present legislation is abused by the authorities. They do not have an absolute
freedom of assembly anymore. Because of this Act is questioned by many, a review should
49 "New assembly law undermines Constitution, says Ambiga". The Malaysian Insider. 23 November 2011.
50 Act 736
51 "Pakatan wants assembly law withdrawn". The Malaysian Insider. 23 November 2011.
52 "Kit Siang warns of‘disaster’ ifassembly law passed". The Malaysian Insider. Retrieved 29 November 2011.
53 "Outrage over new Malaysian protest law". AFP. 23 November 2011. Retrieved 23 November 2011.
54 JusticeDatuk Mah Weng Kwai,http://www.themalaymailonline.com/malaysia/article/assembly-law-cannot-criminalise-public-
gatherings-court-rules#sthash.5naRWPFC.dpuf
55 http://www.loyarburok.com/2013/05/23/assemble-peaceful-assembly-act-2012/

26. 26
be done on this section of the Peaceful Assembly Act.56
In addition, the freedom of
assembly guaranteed in article 10 of the Federal Constitution has long been severely
curtailed by a statute that was arguably unconstitutional because it all but negated the right it
purported to regulate, as critics such as human rights NGOs Suaram and Aliran, and the
National Human Rights Commission (Suhakam) have repeatedly pointed out.
Besides, with the existence of the Peaceful Assembly Act 2012, street protests,
marches and rallies are now prohibited, whereas previously they were permissible. Section
4 of Act 736, which signifies to set out the right to organise and participate in an assembly
is, actually specifies restrictions regarding the assemblies rather than diminishing the
restrictions.57
4.0 ANALYSIS OF UNLAWFUL ASSEMBLY LAW IN MALAYSIA
Malaysia is a democratic country. Despite of so many criticisms lay down upon us,
yet we still claim that we have the privileged, “so-called” freedom especially in relation to the
right of assembly. As we know, freedom to assemble is an essential feature of a liberal
democratic set-up which then defines a free society. We have discussed earlier throughout
this research paper that in Malaysia, we partially practice this due to law restrictions that
intended to protect public safety. Even though the existence of a law is basically to maintain
the order of society, however in this sense, it also brings flaws to the society as well. People
are afraid to stand up for what they believe and may have thought of themselves as
protesters are not into action to protect a precious freedom or right that actually theirs. The
question is until when only we can form a matured society then? It means for us to form a
society that open to criticism and welcome for improvement and revolution. Therefore in this
part, we are now going to compare and contrast the practice of Malaysian law on freedom of
assembly with United States and Canada.
First and foremost, looking into the U. S. Constitution, the first amendment made
quoted that “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the Government for a redress
of grievances”. Both the California Constitution and the First Amendment to the United
States Constitution protect people’s right to free expression. There are three principles to be
56 http://www.freemalaysiatoday.com/category/opinion/2013/10/01/peaceful-assembly-time-to-review-the-10-day-notice/
57 http://asiapacific.anu.edu.au/newmandala/2011/12/06/malaysia-assembling-the-peaceful-assembly-act/

27. 27
noted with regards to this law. They are the conduct must be observed, free speech is for
everyone and lastly when, where and how the assembly will be held.
One’s right is guaranteed on the content of the speech or matter but not the improper
conduct that be done in performing the assembly. Therefore, nobody can restrict a person’s
right simply because others do not like what he says. However, if you organize a protest that
causes serious disruption, the government may be able to intervene. Besides that, free
speech is for everyone; young or old; anarchist or evangelical; pacifist or hawk; Mormon or
Muslim; these rights apply to all. Next is when, where and how the assembly will be held. If
you organize a rally that causes violence or unnecessary disruption, your event may be
disbanded. Same as Malaysian law, reasonable regulations on time, place, and manner
when exercising the rights to demonstrate and protest must be observed.
Permit Ordinances requires one to check on permit before marching. The
government cannot prohibit marches on public sidewalks or streets, or rallies in most public
parks or plazas. But it can often require a permit to regulate competing uses of the area and
to ensure one respects reasonable time, place and manner restrictions. In addition, one
should not need a permit for demonstrations that do not “realistically present serious traffic,
safety, and competing-use concerns beyond those presented on a daily basis by ordinary
use of the streets and sidewalks.”58
Most permit ordinances require that an application be
submitted a few days in advance, so be sure to give officials sufficient notice. But advance
notice periods should be days, not weeks, and there should be an exception to allow
demonstrations in response to breaking news. On the other hand, in Malaysia, Section 27(2)
of the Police Act 1967 provides that all assemblies, meetings and processions of more than
three persons in any public place require a prior police license from the officer in charge of a
police district (‘OCPD’). The license must be applied for by a registered organization or by
three organizers jointly. An application must be made 14 days in advance. The licensee
must assume responsibility for the entire conduct of the rally and its component members.
However, the new procedure in accordance with the Peaceful Assembly Act 2012 [Act 736]
is that the organizers must notify the officer in charge of the police district within 10 days
before the gathering date and they will respond to the notification within five days, outlining
the restrictions and conditions imposed.
Besides that, the First Amendment protects one’s right to express opinion, even if it is
unpopular. Critics on the President, the Congress, or the chief of police are allowed without
58 Michael Risher,Alan Schlosser and Rachel Swain, KnowYour Rights Free Speech, Protests & Demonstrations
In California, ebook, 1sted. (Southern California:the ACLU of Northern California,2010),accessed April 23,
2015,https://www.aclunc.org/sites/default/files/know_your_rights_free_speech.pdf.

28. 28
fear of retaliation. However, this right does not extend to libel, slander, obscenity,“true
threats,” or speech that incites imminent violence or law-breaking. Also, the government
cannot stop you from talking generally about ideas or future events. But it may ban speech
that’s “directed to inciting or producing imminent lawless action and is likely to incite or
produce such action.” However, the latest law amendment dictates that Malaysia’s freedom
of expression is increasingly under threat. The Sedition Act amendment makes it illegal not
only to incite religious hatred but also now allow authorities to ban and block online media
deemed to be seditious in the eyes of the government. On April 3, cartoonist Zulfiki ‘Zunar’
Anwar Uljaqur was charged with nine counts of sedition following his arrest on February 10
for tweets and cartoons he published following the sodomy case against Anwar Ibrahim.
Zunar is currently in jail, with bail set at 13,500 RM (USD 6,207) and could face 43 years
imprisonment if found guilty. This is the second time Zunar has been charged under the
Sedition Act, after he was charged in 2010.59
Furthermore, one cannot be held responsible for the way that counter-demonstrators
or your own supporters react, as long as your words do not directly incite violence or law-
breaking. This is because according to their law, it is the responsibility of the police to control
the crowd. This ultimately contradict to Malaysian law as for the purpose of security or public
order, any person who contravenes any restrictions and conditions of police commits an
offence and shall be liable to a fine not exceeding ten thousand ringgit.60
Throughout this research, we manage to identify that there is still ambiguity and
loopholes in the Peaceful Assembly Act. Firstly, we can see that although its main purpose is
to replace Section 27 of the Police Act 1967, there is not much different in term of application
of the law itself. Section 27(2) of the Police Act 1967 provides that the license must be
applied for all assemblies, meetings and processions of more than three persons in any
public place require a from the officer in charge of a police district (‘OCPD’) 14 days in
advance. On the other hand, the organisers must notify the officer in charge of the police
district within 10 days before the gathering date according to the Peaceful Assembly Act
2012. They will respond to the notification within five days, outlining the restrictions and
conditions imposed. In conclusion, informing the police is crucial before any assembly can
be performed.
Next, the PAA give is not democratic. It supposed to be drafted in favour of the
“rakyat” instead. The powers of police are too vast and thus, give them absolute powers
59 Megan Stafford, 'Black Day For Democracy As Malaysia Extends Sedition Law Online',Blog,
Http://Www.Walkleys.Com/, 2015,accessed April 23,2015, http://www.walkleys.com/black-day-for-
democracy-as-malaysia-extends-sedition-law-online/.
60 Section 15 [Act 736]

29. 29
upon the people. For instance, the Police Act requires a permit to be obtained from the
police for any public assemblies, meetings and processions, and further requires that these
gatherings are not likely to be ‘prejudicial to the interest of the security of Malaysia or any
part thereof to excite a disturbance of the peace’. The application for the permit can be
refused, but if a license is issued, it can be imposed with conditions or cancelled by the
police at any time.61
On the other hand, Section 8 of the Peaceful Assembly Act [Act 736]
awarded the police officers with power to practice any relevant action to make sure that the
assembly is carried out according to the law.
Next, prior to the limitless power given to the police, we are in the opinion that a free
body should be introduced by the government to allow for a complete administrative review
with regards to this matter. By this, there will be no abuse or overuse of power by authorities
towards the people to use their freedom of assembly to voice out their opinions or
dissatisfactions. Thus, justice and fairness can be attained. Other than that, we are well-
informed that any gathering should not likely to be ‘prejudicial to the interest of the security of
Malaysia or any part thereof to excite a disturbance of the peace’. Therefore, it is advisable
for Minister to make clear guidelines on what constitutes threaten to the interest of the
security of the nation and to what extend it may apply.
Lastly, our recommendation would be on the definition of unlawful assembly in the
statute. Under Section 141 of Penal Code which states that an assembly of five or more
persons is designated as ‘unlawful assembly’. In our opinion, the minimum number of people
that are allowed for any gathering should be reviewed as five people is too minute for any
unlawful assembly to be performed as Article 10(1)(b) of the Federal Constitution which
provides that all citizens have the right to assemble peaceably and without arms. This is
because we can say that nothing much can be done by a group of five people in order for
them to threaten the security of the country. Plus, any assembly with arms is strictly
prohibited though. Hence, we presume that the number of people should be increase to
fifteen and above.
61 Section 27(1) of Act 344

30. 30
5.0 CONCLUSION
In conclusion, people shall be given certain rights to exercise their right to assemble
peaceably since this right has been stipulated clearly under Article 10(1)(b) of Federal
Constitution. However, this kind of right still must be restricted to certain provision to ensure
public safety like has been stated under Penal Code, Criminal Procedure Code, Police Act
1967 and also Peaceful Assembly Act 2012. There also shall be a fine line between power of
government in restricting freedom of assembly and how much right of citizens to assemble
shall be given. This is based in the principle that, people cannot be given absolute right and
at the same time, there shall be no vast powers given to authority in restricting it.
In this case, right of freedom to assemble peaceably has been put under certain
restriction, however, in our opinion, the power given to police in handling assembly are too
vast. This is in the sense that, police may act depends on his opinion alone where he thinks
fit to disperse or as long as for public security, people shall not be given such rights. This
can be seen clearly under Anti-GST demonstration that has been held during 23th of March
2015 at Petaling Jaya. In this protest, people have been given rights to assemble peaceably
to voice their points of view in the new tax called Goods and Services Tax which being
controversial lately. Meaning that, they are being in a lawful assembly. However, this
assembly has been declared to disperse by police after office hour. People who still refused
to leave will be considered as joining unlawful assembly and at the end, 79 members of Anti-
GST demonstration has been captured for making such offense just because the police have
declared people to disperse after office hour62
. So, here, is protest after office hour
considered as threat to public? And where are the people’s right to assemble peaceably in
democratic country when power of police seems too vast? Police has been given rights to
give permission to assembly and also have the right to declare a lawful assembly as
unlawful based on his own thinking for public security purpose. However, this kind of power
may be abused since the police himself might act under arbitrary power not on their
discretionary power based on rule of law. This is why there are still lot criticizes toward
Peaceful Assembly Act 2012 and the power given to police shall be reviewed.
Apart from that, one must bear in mind that when permit has been given to citizens to
exercise their right to assemble in lawful manner, this is of course without arms and any
weapons shall not give any harm towards public at large since there also has been a
62 Diyana,I.(2015). The Malaysian Insider: 79 Peserta Bantah GST Ditangkap Polis. Retrieved from
http://www.themalaysianinsider.com/bahasa/article/selepas-bergelut-polis-mula-tangkap-peserta-
demostrasi-bantah-gston 29th April 2015.

31. 31
designated place given to do the assembly. Lot people criticized that in what sense these
people under lawful assembly will give certain harm towards public to give right to police to
declare any lawful assembly as unlawful? This kind of concern also has been expressed by
Malaysian former Prime Minister, Tun Mahathir Mohamad that worried Malaysia might be a
‘Police Nation’ instead of democratic country because of the huge power given to police63
.
Thus, power of police shall also be restricted same as the power of people to
assemble peaceably being restricted and there shall be a good balance between these two
to achieve a standard of true democratic nation. This is in the reason that if such huge power
keeps on being given to police, individual will feel insecure to join any assembly and to
express their right in the future. So, Peaceful Assembly Act 2012 shall be amended and
power given to police shall also be reviewed by court to ensure that police act based on rule
of law and people can exercise their right to freedom of assembly without any fear.
63 Malaysiakini.(2015). Mahathir bimbang Malaysia jadi Negara Polis. Retrieved from
http://www.malaysiakini.com/news/295214 on 29th April 2015.