KUALA LUMPUR, April 15 — Although Section 9 of the Peaceful Assemblies Act (PAA) 2012 only sets out that a notification to the police is needed to hold public assemblies, legal experts have said that the process is more complicated than it seems.
A public space, such as Dataran Merdeka, is owned by the Kuala Lumpur City Hall (DBKL) and holding rallies in a place owned by DBKL would require its consent beforehand.
“Under the law, DBKL is considered as the owner or occupier of Dataran (Merdeka).
“The provision prohibits anyone from holding any assembly at Dataran Merdeka without a permit from DBKL,” said public interest litigator Alliff Benjamin Suhaimi, referring to Section 8 of the Local Government (Federal Territory of Kuala Lumpur) By-laws 1992.
Section 11 of the PAA requires organisers to obtain the consent of the owner or occupier of the place of assembly for it to be used for a rally.
Senior lawyer and Human Rights Commission of Malaysia (Suhakam) commissioner Ragunath Kesavan concurred, “Although it is a public space, ownership of the land and property is DBKL.”
The commissioner also elaborated that the police may ask organisers to seek permission from DBKL before assembling in Dataran Merdeka.
However, for other public places such as roads, or a place that is open to or used by the public as of right, or for the time being, DBKL still has jurisdiction regardless of its ownership status.
“If DBKL is the owner of the public places, then it could be construed as a person who has an interest under the (Peaceful Assemblies) Act. Thus, their consent should be sought in the manner stipulated in the Act.
“If the public places do not belong to DBKL, the Act imposes an organiser should cooperate with DBKL as stipulated in Section 6,” International Islamic University of Malaysia associate professor Datuk Wan Ahmad Fauzi Hashim explained, before adding that common areas do not necessarily belong to DBKL.
Section 6 of the PAA lists the responsibility of the organisers, participants and police.
Benjamin further explained that under Section 15 of the PAA, the police have the power to impose conditions on the organiser of an assembly.
“This can include an organiser to obtain consent, although consent from the occupier or owner is not expressly stated in Section 15. However, going by the answer above — the police don’t have to actually impose such a condition, but it is mandatory under the By-Laws (for Dataran Merdeka),” he clarified.
For private properties, if the area of assembly is within the vicinity of the property, consent of the owner is needed, Wan Ahmad Fauzi said.
“As long as it is private property, consent from the owner is required under the law. A simple example would be any companies doing a product launch or exhibition in a mall,” Benjamin agreed.
However, there is a grey area for protests in front of private property or blocking its entrance.
The Suhakam commissioner said that assemblies on the pavement do not require the consent of the owner of private properties, and the public interest litigator asserted that if the entrance is on public land, then consent may not be necessary.
Benjamin, however, acknowledged that the current state of affairs can hinder freedom of assembly, saying “it is further red tape which may cause further inconvenience for organisers. You can say such conditions imposed by the police may go against the freedom to assemble. However, such freedom is never absolute and is always subject to the law or matters such as public security, et cetera.”
Wan Ahmad Fauzi also said that the law should be able to balance the need to maintain public safety and the right to assembly.
“The law is regulated for its purpose, and at the same time, it should provide a practical solution to a problem in question.
“In this premise, the government should assign a place for peaceful assembly to be held,” the associate professor proposed, without having to amend the law.
Agreeing partially, Benjamin said that an amendment and assigning a location is needed to ensure this constitutional right is further empowered.
“The law has to be amended to reduce the powers of the police to impose conditions.
“It will also be good if the Act sets out a list of places where public assemblies can be held. It would ensure a higher degree of certainty and transparency,” Benjamin said.
The Suhakam commissioner also said that Malaysia can make way for more assemblies as there is more space now compared to 10 years ago.
“We need to allow space for peaceful assembly,” Ragunath said.
Last month, human rights watchdog Suara Rakyat Malaysia (Suaram) released its 2024 Human Rights report revealing that the police asked the organisers of the Women’s March to obtain consent from DBKL before rallying in Dataran Merdeka and asserted that the request by the police was unfounded because DBKL was not the owner or occupier of the public space.
