UN special rapporteur on the rights of freedom of peaceful assembly and of association Maina Kiai is in the process of preparing its report to the UN General Assembly at the end of October 2014. His mandate is to review if states have fulfilled their obligation to provide enabling environment for civil society’s voice and involvement.

His report will identify whether restrictive practices and policies have led to “violations (or create environments where such violations are likely to occur).”

In his previous report to the United Nations Human Rights Council on April 24, 2013, he made a few observations on the rights to peaceful assembly and of association and references were made to Malaysia. In this report he dealt with key issues on the relevance of peaceful assembly, legal framework, state obligation to promote and protect these rights as well as to seek alternative approaches to improve the effective enjoyment of human rights and fundamental freedoms.

In his view , the ability to hold peaceful assembly is important as it allow the voices of civil society to realise their social, political and economic rights. In particular, it is of significance and relevance to marginalised groups and those who are at risk of violation and discrimination, e.g. women, disabled and so forth.

This perspective was repeatedly stressed by the Human Rights Council where it pointed out that “peaceful protests should not be viewed as a threat, and therefore encourage[s] all States to engage in an open, inclusive and meaningful dialogue when dealing with peaceful protests and their causes”.

Special rapporteur Maina Kiai ( left ) has raised criticisms against Malaysia’s handling of its peaceful assemblies in 2011 where the government had suppressed the protesters with excessive use of tear gas as well as chemical laced water. Laws such as the Peaceful Assembly Act (PAA), 2012 were enacted to forbid street protests. The Act also widens its definition of ‘organisers’ to include individuals who post on social media and can be charged under the PAA.

The PAA, in short, prohibits street protests, which it defined as “open air assembly which begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes”. This limit all rallies and assemblies into confined and closed premises.

The special rapporteur is of the opinion that “organisers of peaceful assemblies should never be held liable for the unlawful behaviour of others. The principle of individual liability of participants should be upheld, notably due to the presumption of peacefulness of the assembly.

“The special rapporteur is concerned that organisers have sometimes been brought to court for the violent behaviour of others, as in Malaysia.” He also raised concern “about legal provisions criminalising organisers for the violent conduct of others.”

Here is the reality check.

Since the enactment of the PAA we have had a series of cases brought to court on alleged charges of illegal assemblies. The application of the PAA has led to abuses and wide interpretation of what constitutes ‘illegal assemblies’ and the eventual shrinking of citizens’ right to assembly.

Sessions Court in defiance of High Court decision

Nik Nazmi Nik Ahmad was charged with not giving sufficient notice to the police prior to the Black 505 rally at Kelana Jaya. On April 25, the Court of Appeal struck out the charge against Nik Nazmi under Section 9(1) of the PAA.

The Court actually ruled that Section 9 (5) of the PAA - which provides for punishment for failure to give a 10-day notice to the authorities before a protest - as unconstitutional. Therefore, the police cannot impose restriction on the organisers and participants.

Nik Nazmi ( right ) was re-charged under Section 9 (1) of the PAA by the Petaling Jaya Sessions Court, i.e., for his involvement in the Black 505 rally. After much tussle, the Sessions Court discharged Nik Nazmi but stressed that it did not amount to an acquittal. So now so-called offenders can be re-charged at the Sessions Court despite the High Court’s decisions?

Shockingly, the attorney-general, instead of rapping the Sessions Court, is now applying to bring the case to the Federal Court to decide whether a key part of the Peaceful Assembly Act (PAA) 2012 is constitutional.

Such a court decision must mean that subsequent cases should be declared null and void and there is no need to continue with any more court hearings. This is not so for the Johor case.

Waiting by the petrol station is ‘illegal assembly’

From Oct 8-9, 2014, Mohd Salleh Ahmad and Koh Jit Huat from Engage Johor, Bersih 2.0 south vice-chair Thomas Fann and Johor PKR deputy secretary Steven Chong are on a two-day court trial in Johor Baru. Their charges, under the Peaceful Assembly Act, 2012, are as follows:

1) PAA 2012/Sec4(2)(b) for gathering at a restricted area (a petrol station).

2) PAA 2012/Sec9(1) for not giving the police 10 days notice as organisers.

They were waiting at a petrol station with the intention to later join a candlelight vigil held in May 2013 for activist Adam Adli, who was then detained under the Sedition Act. In March 2014, the court discharged them, but this did not amount to an accquital because the policie did not observe proper process by not issuing a summon or warrant of arrest. The present court trial is on and it will determine if they have indeed violated the PAA.

The Johor case is a clear example of the PAA giving wide powers to the police to arrest anyone whom they deem to be violating the restricted area. The trial is on regardless of the judgment on Nik Nazmi and it only further reinforces the fact that the PAA is used for persecution of activists and political dissents rather than to promote peaceful assembly.

Civil society has always promote the values of freedom and respect for human rights and reminded our government that these rights are enshrined in international instruments and being articulated in various platforms as well as mandate holders such as special rapporteur Maina Kiai. But what do international human rights instruments mean when the government of Malaysia does not adhere to them?

At the United Nations General Assembly, Prime Minister Najib Abdul Razak has urged moderation that “can be practiced at the national level, as is the case in Malaysia, by choosing mutual respect and inclusivity, and strengthening the bonds between different communities and faiths. ( Full text of Najib's speech at UN General Assembly - Business Times - New Straits Times)

Seriously, the government’s commitment to transform and nurture Malaysia into a ‘first class mentality’ is taking on a Jekyll and Hyde character - saint in the international arena but devilish at home. Citizens must have full confidence that when they are involved and voice their ideas, there must not be reprisals, violence or repressive laws to silence them.

The existence of the PAA and other draconian laws certainly debunk any intention of promoting mutual respect and inclusivity.

The lack of understanding why citizens’ rights need to be promoted and protected is well expressed by a comment made by the Domestic Trade, Cooperative and Consumerism Minister Hasan Malek who wants “Malaysians to change their culture from protesting to being respectful and grateful.”

He failed to understand that the federal constitution guarantees freedom of expression and right to assembly is part of citizens’ right to be heard. And, street protests are part of citizens’ right to expression.

MARIA CHIN ABDULLAH is the chairperson for the Coalition for Clean and Fair Elections 2.0 ( Bersih 2.0 ) and the executive director of Empower . She believes politicians are bad masters if not made good servants through free, fair and competitive elections.