| 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 [2014] 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.
Steven Thiru
President
Malaysian Bar
22 March 2015
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