Sunday, May 08, 2016

Remove repressive amendments to CPC, says Suaram? All 'activity detrimental to parliamentary democracy' need bto repealed?

Section 124 Penal Code was amended to add several new sections that makes 'activities detrimental to parliamentary democracy' an offence, which came into force on 31 July 2012. The problem is that it is so vague - for the ruling government can simply make almost any action, including those highlighting wrongdoings or alleged wrongdoings of the government into an offence punishable in law... 

Of concern, is Najib's and BN's understanding of 'Parliamentary Democracy' - for them, in my opinion, is that the only time a Malaysian is expected to exercise his/her right is from date of nominations until elections ... thereafter, for the remaining period, we are supposed to be happy and allow the elected do as they please... Well, this is not parliamentary democracy 

Parliamentary democracy requires ongoing monitoring of the government and the elected MPs/ADUNs... it demands citizens to highlight alleged wrongdoings or wrongs of government, highlight different opinions, etc ...it demands ongoing communication, not a one way communication from the elected to the people but a two-way communication..

So, what is 'activities detrimental to parliamentary democracy'? 

...  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.. Malaysian Bar Press Release, 28/8/2015..

Well, not surprising ....but that draconian 124 provisions used for other reasons ...

Now SUARAM alleges in a recent news report, that there will be further amendments that will allow the denial of bail to persons charged under these 'section 124' offences. I believe he is really talking about the new offences, i.e. sec. 124 B,C,....

In any event, I have been looking for confirmation of the fact that there will be new 'denial of bail' amendments tabled in May - but have found no such news. Will post again if I find more details, which SUARAM alleged will be tabled in May 2016 ...

For your information, some of the relevant 'draconian' section 124 amendments that came into force in 2012 is as follows:-   


124B  Activity detrimental to parliamentary democracy
Whoever, by any means, directly or indirectly, commits an activity detrimental to parliamentary democracy shall be punished with imprisonment for a term which may extend to twenty years.



124C  Attempt to commit activity detrimental to parliamentary Democracy
Whoever attempts to commit an activity detrimental to parliamentary democracy or does any act preparatory thereto shall be punished with imprisonment for a term which may extend to fifteen years


124D  Printing, sale, etc., of documents and publication detrimental to parliamentary democracy
Whoever, by any means, directly or indirectly, prints, publicises, sells, issues, circulates or reproduces any document or publication detrimental to parliamentary democracy shall be punished with imprisonment for a term which may extend to fifteen years:
Provided that no person shall be convicted of an offence under this section if he proves to the satisfaction of the court that the document or publication in respect of which he is charged was printed, published, sold, issued, circulated or reproduced, as the case may be, without his authority, consent and knowledge, and without any want of due care or caution on his part, and that he did not know and had no reason to suspect the nature of the document or publication.

124E  Possession of documents and publication detrimental to parliamentary democracy
(1) Any person who, without lawful excuse, has in his possession any document or publication detrimental to parliamentary democracy or any extract therefrom, shall be punished with imprisonment for a term which may extend to ten years.
(2) The document and publication referred to in subsection (1) shall be presumed to be a document or publication detrimental to parliamentary democracy until the contrary is proved; and where in any prosecution under this section it is proved that a person was carrying or had in his possession or under his control a document or publication detrimental to parliamentary democracy he shall be deemed to have known the contents and the nature of the contents of such document or publication:

Provided that no person shall be convicted of an offence under this section if he proves to the satisfaction of the court-
(a) that he was not aware of the contents and the nature of the contents of the document or publication detrimental to parliamentary democracy which he was carrying or had in his possession or under his control; and
(b) that he was carrying or had the document or publication detrimental to parliamentary democracy in his possession or under his control in such circumstances that at no time did he have reasonable cause to believe or suspect that the document or publication was a document or publication detrimental to parliamentary democracy.
Other sections of concern, include:-
124F Importation of document and publication detrimental to parliamentary democracy
124G Posting of placards, etc.
124H Dissemination of information
124I Dissemination of false reports
124J Receipt of document and publication detrimental to parliamentary democracy
 

See earlier relevant post:-

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










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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