|Press Release | Police Must Respect Constitutional Rights and Uphold the Rule of Law|
|Sunday, 22 March 2015 10:39am|
The Malaysian Bar is aghast at the spate of arrests and detentions in the wake of various public rallies held in Kuala Lumpur over the past two weeks.
The arrests and detentions were reported to have been made pursuant to Section 9(5) of the Peaceful Assembly Act 2012, which penalises the organisers of peaceful assemblies with a fine of up to RM10,000 if they fail to provide the specified 10 days’ notice; and Section 143 of the Penal Code, which imposes a punishment of a term of up to six months’ imprisonment, or a fine, or both, on whoever is “a member of an unlawful assembly (as defined in Section 142 of the Penal Code).
It has been reported that the following three persons were arrested to assist the police in their investigations into the public rallies, and subsequently released without detention on remand:
It has been also reported that the following six persons were arrested to assist the police in their investigations into the public rallies, and subsequently detained on remand under Section 117(ii) of the Criminal Procedure Code before being released:
It has been further reported that YB Chua Tian Chang (commonly known as YB Tian Chua), Member of Parliament for Batu, was arrested on 20 March 2015 under Section 143 of the Penal Code, and released on 21 March 2015 when the police failed to obtain a remand order under Section 117 of the Criminal Procedure Code.
The constitutional right to assemble peaceably and without arms is guaranteed under Article 10(1)(b) the Federal Constitution, subject to limited restrictions “in the interest of the security of the Federation or any part thereof, or public order”, under Article 10(2)(b). The Court of Appeal in Nik Nazmi Nik Ahmad v Public Prosecutor  4 CLJ 944 unanimously reaffirmed this constitutional liberty as a fundamental right of all Malaysians.
It is therefore untenable that the police have decided to ignore the Court of Appeal’s decision in the Nik Nazmi Nik Ahmad case, and have arrested, and in several instances also detained on remand, the persons listed above. The decision of the Court of Appeal has a far-reaching impact on all forms of restrictions or limitations under our laws on the constitutionally safeguarded right to freedom of assembly.
A decision of the Court of Appeal, until reversed by the Federal Court, remains enforceable and binding. It is not open to anyone, including the police, to ignore the decision even if an appeal or a review of the decision is pending. As a law enforcement agency, the police must respect the law at all times, and not only when they wish or choose to do so. The police cannot be a law unto themselves.
Moreover, there appears to have been no reason for the police to arrest S Jayathas, YB Nik Nazmi Nik Ahmad, Fariz Musa, Mohd Fakhrulrazi Mohd Mokhtar, YB Teo Kok Seong and YB Tian Chua, as it was reported that they had voluntarily agreed to present themselves for questioning and to assist in the investigations. If the investigations could not be completed on the day they presented themselves, they should have been asked to return the next day, or on a date that was mutually agreed upon. Arresting persons who are willing to cooperate in investigations is a misuse of the power of arrest.
In addition, there appears to have been no basis whatsoever for the police to have sought remand orders for detention in the cases of YB Nik Nazmi Nik Ahmad, Fariz Musa, Mohd Fakhrulrazi Mohd Mokhtar, Adam Adli, Mandeep Singh and YB Teo Kok Seong. A remand order — could lead to a detention of up to 14 days — is to enable the police to complete investigations, and not for the purpose of commencing investigations. It is imperative that the police show that they have pursued investigations diligently. The police cannot detain persons on remand in order to conduct investigations at their leisure. Further, a remand order should not be sought in the absence of a reasonable belief that the accused persons would tamper with or destroy evidence that is material to the investigations, harass potential witnesses, or pose a flight risk.
A remand order is a grave and harsh deprivation of an accused person’s liberty. It is not an order that the police should lightly or routinely seek unless it is fully justifiable. The police should certainly not seek a remand order to harass and intimidate accused persons. Such conduct would be unprofessional, deplorable and unlawful.
The Malaysian Bar is deeply concerned by the manner in which the police have chosen to exercise their powers to arrest and detain persons exercising their constitutional right to assemble peaceably. We urge the police to exercise restraint, and to respect constitutional rights and to uphold the rule of law.
22 March 2015