Assembly Law More ‘Restrictive’, Say Lawyers

Calling it “restrictive” and “financially oppressive”, lawyers have questioned Putrajaya’s unprecedented move to initiate a civil suit against Datuk Ambiga Sreenevasan and nine other Bersih leaders for damages sustained during the April 28 rally less than a month under a newly-enforced law allowing public gatherings.

The lawyers contacted by The Malaysian Insider suggested the ruling Barisan Nasional (BN) government was sowing the seeds of “legal fear” among demonstrators to head off future public expressions of dissent, which they noted ran counter to the constitutional rights of freedom of speech and association.

“The whole idea of the (Peaceful Assembly) Act is questionable. In practice, it seems to be more restrictive. It limits the constitutional rights of the individual to freedom of expression and curtails their right to assemble,” said Joy Appukuttan, president of the Catholic Lawyers’ Society.

“We are moving into unchartered waters. The action by the government has created legal fear,” he added.

Appukuttan pointed out that similar rallies had taken place elsewhere around the country and abroad on April 28 without incident and questioned the government’s extraordinary legal suit.

He also noted that the government had said it would set up a panel to investigate complaints of police brutality against demonstrators during the April 28 rally in the capital city.

“What is the objective of the government in starting legal action before investigating the truth behind the entire rally. They should have waited for the inquiry to complete before taking legal action,” he said.

Another lawyer, Syahredzan Johan, said the government was setting “a very bad precedent” by initiating the civil suit because it does not have the moral authority to use these rights to bring such civil suits against its own citizens.

“It means that a citizen who wants to exercise his or her constitutionally guaranteed rights will now expose himself or herself to the threat of a civil suit by the government, on top of the criminal sanctions provided for under the Peaceful Assembly Act and other laws,” he told The Malaysian Insider in an emailed response.

He explained: “A government does owe a duty of care to its citizens, but you would be hard-pressed to argue that citizens owe a duty of care to its government.

“Contrast a civil suit with criminal proceedings; a government has the moral authority to prosecute because it has the responsibility to do so, bestowed upon it by the people in return for security.”

Syahredzan noted that the government’s action gave the impression it was motivated by “political reasons”.

The young lawyer noted that the civil suit raised other practical concerns — that the police had also failed to adhere to the peaceful assembly law based on widespread reports and video evidence of officers’ harsh actions against demonstrators.

“What is the point of having this Act if we cannot expect the authorities to follow it?” he said.

Senior lawyer Sankara Nair said with the suit, the government now had to prove the losses it suffered were caused by Ambiga and her team “because there are issues of provocation of the crowd and the consequences of that provocation. These things have to be considered.

“The previous law was more restrictive on the face of it, but in the light of the government’s suit against the rally organisers, it has become financially-oppressive,” he said.

“This case is extraordinary. They are opening themselves up to a plethora of arguments,” he said.

We are moving into unchartered waters. The action by the government has created legal fear. — Joy Appukuttan

Sankara noted that the government had been careless in naming individuals who were no longer part of Bersih 3.0’s steering committee, citing as example Haris Fathillah Mohamed @ Haris Fathillah Sam Sathiasingam).

“Haris is not on the steering committee. He has resigned,” the lawyer said.

But he stopped short of calling the action “selective prosecution”, saying instead it reflected the government’s “tardiness” in keeping up-to-date on changes to organisations and events.

“They should have been very careful in naming the individuals in the suits,” he added.

The Peaceful Assembly Act (PAA) was passed in Parliament last year to replace Section 27 of the Police Act, which had been criticised for being oppressive as it gave the home minister full powers in granting permission for public rallies.

Yesterday, 10 Bersih 3.0 steering committee members, including Ambiga, became the first persons to be sued in a civil action under the PAA, introduced just days before the April 28 demonstration for free and fair elections.

The writ of summons states: “The plaintiff charges that the defendants failed to carry out their statutory responsibility when the assembly went out of control and turned into a riot, causing damage to vehicles owned by the plaintiff.”

The government is claiming RM122,000 to compensate for alleged damage to 15 government-owned vehicles.

The action comes after PKR de facto leader Datuk Seri Anwar Ibrahim, deputy president Azmin Ali and Rembau chief Badrul Hisham Shaharin were charged with taking part in the April 28 Bersih 3.0 rally under section 4(2)(c) of the Peaceful Assembly Act.

Prime Minister Datuk Seri Najib Razak had said when tabling the law in Parliament last year that it would be “revolutionary” and would allow Malaysians to participate in public gatherings “in accordance with international norms.”

The case is set for mention on June 13 before Kuala Lumpur High Court judge Justice Prasad Sandosham Abraham.

The April 28 rally that saw tens of thousands gather at six different locations before heading to Dataran Merdeka was peaceful until about 2.30pm when Ambiga asked the crowd to disperse.

But her announcement was not heard by most of the crowd who persisted to linger around the historic square which the court had already barred to the public over the weekend.

Just before 3pm, some protestors breached the barricade surrounding the landmark, leading police to disperse the crowd with tear gas and water cannons.

Police then continued to pursue rally-goers down several streets amid chaotic scenes which saw violence from both sides over the next four hours.

Several dozen demonstrators have claimed that they were assaulted by groups of over 10 policemen at a time and visual evidence appears to back their claim but police also point to violence from rally-goers who also attacked a police car.

The police car then crashed into a building before some protestors flipped it on its side.