Monday, August 31, 2015

Sec. 124B Penal Code 'activity detrimental to parliamentary democracy' must be repealed

In my opinion, Section 124B Penal Code must be repealed - we do not such vague offences that could so easily be abused.

Activity detrimental to parliamentary democracy - what is that?

Press Release | Section 124B of the Penal Code Must Not be Used to Curb Freedom of Assembly


Friday, 28 August 2015 04:14pm
ImageThe Malaysian Bar deplores the arrest and detention on 25 August 2015 of 17 persons — 16 of whom are reportedly university students — for participating in a peaceful sit-in outside the Parliament.  They were remanded overnight and the police subsequently sought a seven-day extension of the remand.  The Magistrate granted a remand of three days.  The revision application was heard by the High Court yesterday, and the remand period for 16 of the detainees was reduced to two days. 

It has been reported that the detainees are being investigated, inter alia, for an activity detrimental to parliamentary democracy, under Section 124B of the Penal Code (“Section 124B”).  The phrase “activity detrimental to parliamentary democracy” is defined in Section 130A(a) of the Penal Code as “an activity carried out by a person or a group of persons designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means”.

When Section 124B was tabled in Parliament in 2012 as an amendment to the Penal Code, the Government declared that it would be used to deal with violent offences such as the assassination of a head of state, a coup d’├ętat, an armed insurgency, or guerrilla warfare, and breaches of constitutional provisions.[1]  There was no intention to inhibit political dissent or peaceful assembly, and a Member of Parliament had observed, “Kalau nak buat perhimpunan aman atau bersih pun, itu tidak detrimental to Parliamentary Democracy.”[2] 

The resort to Section 124B against the 17 persons, who had assembled peaceably, is therefore unjustifiable. This provision cannot be misused to erode or dilute the constitutional right — enshrined in Article 10(1)(b), read with 10(2)(b), of the Federal Constitution — to assemble peaceably and without arms.  Further, it would be a gross abuse of Section 124B if it were to be used to cause fear or anxiety among members of the public.

In any event, the constitutional validity of Section 124B is questionable.  Malaysia is a constitutional democracy, where the Federal Constitution is the supreme law of the land.[3]  The concept of parliamentary democracy is only applicable in countries where the Parliament is supreme, such as the United Kingdom. 
Thus, Section 124B purports to cover a subject matter —  parliamentary supremacy — that is unknown to our constitutional scheme.  It further offends two cardinal principles: criminal law must be clear and precise, and the subject matter of criminal sanction must be known.  The uncertainty in Section 124B is exacerbated by the oppressive penal sentence for the offence, which is imprisonment for a term that could extend to 20 years.

Moreover, it is unacceptable for the police to have sought remand orders of one week.  The duration sought was excessive, and lends to the widely held perception that the police are freely seeking remand orders to punish persons involved in peaceful assemblies, even before any finding of guilt by a court of law, as well as to further intimidate others who may wish to participate in any public assembly.  

The Malaysian Bar strongly urges the police to cease misusing Section 124B, and to respect the right of all Malaysians to assemble peaceably.  Democracy is strengthened — not threatened — when Malaysians who wish to assemble in peace may do so without threats of reprisal or unjustified arrest. 

Steven Thiru
President
Malaysian Bar

28 August 2015 

Note:

Bar Council will send a monitoring team to observe the BERSIH 4 rally, which is scheduled to take place in Kuala Lumpur on 29 and 30 Aug 2015 (Saturday and Sunday).  The monitoring team will look out for, and document, possible violations of human rights — by any individual or group — during the event.

In addition, a team of lawyers from the Bar Council Legal Aid Centre (Kuala Lumpur), known as the “urgent arrest” team, will provide legal assistance in the event of arrests.  The team can be contacted by SMS at the following telephone numbers:  

(1) 018-321 1506
(2) 011-1214 0877

Members of the public can send a SMS to one of these numbers, with the following information:

(1) Name of sender;
(2) The name, IC number and telephone number of the arrested person; and
(3) The police station to which the arrested person has been taken (if known). 

The urgent arrest team will try to contact the arrested person and to arrange legal assistance as quickly as possible.


[1] “Penyata Rasmi Parlimen Dewan Rakyat, 17 April 2012”, page 120, quoting the then-de facto Law Minister Dato’ Seri Mohamed Nazri Abdul Aziz.
[2] Ibid., page 73, quoting the Member of Parliament for Rembau, Tuan Khairy Jamaluddin.
[3] Article 4(1) of the Federal Constitution.

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