Which was illegal? The vigil, the charge and arrest, or the disgraceful destruction of evidence?
November 21, 2008
(3) Any police officer may stop any assembly, meeting or procession in respect of which a licence has not been issued or having been issued was subsequently cancelled under subsection (2) or which contravenes any of the conditions of any licence issued in respect thereof under that subsection; and any such police officer may order the persons comprising such assembly, meeting or procession to disperse.
(4) Any person who disobeys any order given under the provisions of subsection (1) or subsection (3) shall be guilty of an offence.
(4A) Where any condition of a licence issued under the provisions of subsection (2) is contravened, the licensees shall be guilty of an offence.
(5) Any assembly, meeting or procession-
(a) which takes place without a licence issued under subsection (2); or
(b) in which three or more persons taking part neglect or refuse to obey any order given under the provisions of subsection (1) or subsection (3),
shall be deemed to be an unlawful assembly, and all persons attending, found at or taking part in such assembly, meeting or procession and, in the case of an assembly, meeting or procession for which no licence has been issued, all persons taking part or concerned in convening, collecting or directing such assembly, meeting or procession, shall be guilty of an offence. – Sections 27(3), (4), (4A) and 5 of the Police Act, 167.
The full text of the complete section 27 of the Police Act, 1967, in pdf, is linked below.
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Malaysiakini reports today that when their videographer, Shukri Mohammad, who was also arrested on 9th November after the vigil was disrupted and had his video camera and the tape seized by the police to facilitate further investigation as they wanted to “look inside the camera”, had his equipment returned last Tuesday, it was discovered that almost 4 minutes of the original footage taken by Shukri had been ‘taped over’ with some other footage.
Whilst senior lawyer M Puravalen has proffered a view that this ‘taping over’ might not, in itself, disclose any offence under the Penal Code, Shukri may want to consider getting legal advice as to whether it could have occasioned a destruction of property, was therefore illegal, and whether he has a cause of action against PDRM.
Speaking of illegalities, was the presence of those at the vigil at the Dewan Sivik on 9th November, 2008 illegal?
As noted in my ‘…what to do if the going gets rough’ post, Section 27(2) of the Police Act, 1967 imposes the obligation to apply for a police permit for such a vigil on the person who intended to convene the vigil.
My reading of section 27(2) suggests that it only applies where an assembly, meeting or procession was planned for and intended by a person ( or persons, I will concede ) to be convened.
What if, as I think happened on the night of 9th November at the Dewan Sivik, people spontaneously gathered, without any one or more persons intending to convene that vigil, would section 27(2) apply?
I don’t think so.
And if I am right, the vigil at the Dewan Sivik that night, in my view, would not, from its very outset, come within section 27(5)(a) as an unlawful assembly.
Might it have been an unlawful assembly pursuant to section 27(5)(b)?
There were more than three persons present, so the requirements of the first part of section 27(5)(b) are certainly met.
However, section 27(5)(b) also provides that the persons taking part in the vigil must have neglected or refused ‘to obey any order given under the provisions of subsection (1) or subsection (3)’ before the vigil ’shall be deemed to be an unlawful assembly, and all persons attending, found at or taking part in such assembly…shall be guilty of an offence’.
Forget subsection (1) as I do not think it is relevant to the factual situation we are addressing. Focus only on subsection (3)
Under subsection (3), the police can ‘stop any assembly, meeting or procession in respect of which a licence has not been issued’ and ‘may order the persons comprising such assembly, meeting or procession to disperse’.
Meaning to say, at the vigil at Dewan Sivik, the police could have announced, as they did at the Amcorp Mall earlier that evening, that the vigil must stop and then order that the vigilers disperse, and if the police had done so, and the vigilers then failed to disperse within a reasonable time thereafter, the vigil would then, pursuant to section 27(5)(b), be deemed to be an unlawful assembly and we, the vigilers, would have committed an offence.
Those who were there at the vigil at Dewan Sivik know that there was no order given to stop the vigil or to disperse. The video evidence that we have all seen bears this out.
In my view, section 27(5)(b), too, did not apply.
The vigil could not be deemed to be unlawful.
What was clearly unlawful, in my view, was the charge and arrest by the police and the subsequent detention at the police station for several hours.
Assault and battery and unlawful detentions took place.
Another viable cause of action against PDRM?
Seems so.
What’s becoming increasingly obvious is the need for that IPCMC!
November 21, 2008 at 6:41 pm
IPCMC? Who’s really serious on this? Not on their side of the fence obviously. Just like expecting Lehman Brothers to get that bailout from Congress? We all know what happened. The Malaysian Polis is no better. They had even veiled their threats to the Government to withdraw their votes if the scheme gets through. Now, who’s talking? The Government or the Polis? Is not the IGP weilding more power than the Executive in so many respects as we had seen? Ghee, I simply love Malaysia.
malsia1206
November 21, 2008 at 9:04 pm
Dear Haris
Article 159 of the constitution provides the overarching legislation that grants police powers under Section 27 of the Police Act 1967.
The intent of granting this power to police is for the purpose of enforcing the provision of article 159.
The intent of this article 159 is also impliedly expressed in Section 27(2) of the Police Act where it states “the assembly, meeting or procession is not likely to be prejudicial to the interest of the security of Malaysia or any part thereof or to excite a
disturbance of the peace”
The issue here is whether the candle light vigil is in breach of article 159 (1)(f)? Common sense suggest that the vigil has no intention (mens rea) breach any part of article 159. The assembly or gathering of more than 3 person is highly unlikely to breach article 159 of the constitution. As such the Police taking the position of a reasonable person cannot exercise its powers under Section 27 of the Police Act. Police Officer can exercise this power only when on balance of probability that the assembly or gathering is likely to breach article 159.
The writer is a former senior police officer of the RMP. This how in the good old day when professional senior police officers to intepreted the police powers as provided for by the Police Act.
Cheers Brickfield
November 21, 2008 at 9:54 pm
police tempering with evidence?
yet the Idiot Botak Hamid wants the Rakyat to respect the PDRM, what an asshole Home minister!
Respect must be earned, you Idiot!
bloody disgrace to the Country.
November 21, 2008 at 10:05 pm
i agree. the arrest and the detention were indeed unlawful. they were detained in the police station for 7 hours, mind you!
the other person who had his video camera confiscated, and who along with shukri were at the police station busy running around trying to get back the video camera was my penangite friend, activist bk ong. like shukri, bk ong got back his camera. he was surprised that the shots he took of the police rounding up people into the black maria was still intact! he said maybe it could be due to the weak battery in his video camera, which made the police unable to watch/tamper with the video camera. anyway i had put up the video in my blog.
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November 21, 2008 at 10:46 pm
To quote from Raja Chulan “…the Police taking the position of a reasonable person…” Oh, how I simply love those words. We are assuming the Police ARE reasonable persons, are we not? Are they?
malsia1206
November 21, 2008 at 11:49 pm
Paul,
You said :
Layman point of view.
Reading your opening paragraphs, Para 3 and 4, the offense only happens after an order to disperse has been issued and this order is disobeyed.
Response : I’m not sure which paras 3 and 4 you are referring to.
There does not seem to be any problem about assembling together, with or without a permit.
With a permit, presumably, the police will not issue an order to disperse. The assembly is “legal”.
Response : Read subsection (3). Even one with a permit may be stopped and dispersed.
Without a permit the assembly would appear to be illegal and yet by itself not an offense. However, without a permit, the police can issue an order to disperse.
Response : My reading is that if there is a convenor and no permit, the assembly is, going by the language of subsection (5)(a), illegal, and an offence would have been occasioned by that assembly. With or without a permit, the police, with good reason, may order that the assembly cease and the participants disperse.
Any offense at all only happens when the order to disperse is not obeyed. Since, it would appear that it is not an offense to appear at an assembly that does not have a permit, what do they charge you under?
Would I be right, when reading Para 27(5)(b), that the illegality of an assembly can only manifest itself and become illegal when an order to disperse is neglected or not obeyed?
Which means, so long as an order to disperse is not issued, any assembly is not yet an offense!! If the order is obeyed, there never was an offense! So even though you may have been part of an illegal assembly as it did not have a permit, you had not yet committed an offense.
If the order is neglected and not obeyed, then there is both an offense of neglect and not obeying an order to disperse as well as taking part in an illegal assembly.
As to what constitutes neglected or not obeyed, that does not seem to be explained.
On 7th Nov, there was an order to disperse issued at AmCorp Mall. We dispersed. Later came together within AmCOrp’s foyer to sing the National Anthem. We then dispersed.
Not all of them went on to the Civic Centre. I was not at the Civic Centre at the time the police charged into the crowd. So that was not exactly the same assembly of people from that of AmCorp. This was a different assembly. This second Assembly did not also have a permit. But it does not become an offense until an order to disperse was issued, but neglected and not obeyed.
Evidence seems to suggest that there was no order to disperse at this other Assembly.
The absence of an order to disperse only suggests that the assembly was devoid of a permit, and therefore, illegal, but no offense had yet been committed.
Rather confusing this one!!
So what exactly did the drafters of the legislation envisage and intend?
That despite the police, that there is the expectation that as human beings we will assemble anyway, to voice a collective noise on any issue at all? Maybe they wanted us to have just this fraction of time needed to make a collective noise and then to go home? Or go fishing at the wharf, maybe? That we are civilised men and women not deserving of the kind of intimidation vexed upon us by the big and burly and rough and tough.
I guess the drafters did not look at one other thing. The FRU comes to these vigils fully armed to the hilt. Dressed up in armour almost like gladiators so that in case anyone swung an umbrella, possibly the most dangerous of weapons that any vigiler might have, that might land on his hand, he will feel nothing at all. To all that armour they add their batons, “plastic” shields, tear gas, water canons and of course their guns and rifles too.
Would I be right in suggesting that they would be following their SOPs written for the 1940s and 1950s when, if you look at the old black and whites, you see what might appear to look like a very rough crowd?
The fact that the police look positively silly coming all equipped like they do to confront a bunch of little girls, young men and women, and some older men and women who look almost like as if they have just come together to sing in a choir must surely raise questions among the participating police officers themselves. Surely many of them must be questioning the rationale of their own officers or their orders.
November 21, 2008 at 11:57 pm
might be worth thinking of getting a wireless video camera for such events. The video can be recorded remotely from the camera so that the cops cant get to it so easily
November 22, 2008 at 9:39 am
al-blur demands respect. his deputy says current high crime rate is just a perception. the cops are the laws unto themselves.
after this incident, dont be surprise evidence can be tempered and fabricated at their whims and fancies.
Hello, whats happening in the force? still demand respect,Al-Blur? Denigrating the force?
For the righteous cops, stand up and be counted. dont let your name be sullied by the imbeciles amongst you. Oh, the Ministers dont lead no more. There’s one with a record of screwing up his chairmanship. Ask him about PKA and Pempena.
November 22, 2008 at 8:21 pm
IPCMC would not see the light of day so long as the government of the day want to be in the good books of the Police Raja Di Malaysia.
The day the present BN government dares to table the IPCMC in Parliament, the rogues in the force who have much to hide will revolt. They might threaten to spill the beans on the SD of PI Bala, Saiful’s alleged sodomy, the tampering of evidence by the police at the behest of the IGP,certain ministers and the AG.
They might even threaten to divulge their investigations into the erasure of immigration records of Altantuya, how the C4 was procured and who actually C4ed Altantuya and under whose orders.
With so much at stake, who is going to see that the IPCMC is reviewed and made into law? The Police Raja Di Malaysia would be dead against it. They would not want their ‘bermaharajalela’ days to be curtailed.
November 23, 2008 at 9:18 am
Idiots in PDRM turning PDRM into an enemy of the people.
November 24, 2008 at 8:58 pm
Brother Haris,it’s really disgusting to see these ugly incidents happening in Bolehland.
Blatant violation of Human Rights will put Bolehland on par with countries like Burma, and the communists.
It does not augur well with the modernization of Bolehland. We are retreating to the 60’s.
Pathetic.
November 24, 2008 at 11:33 pm
Anonymous said…
Rich or Poor does not matter we can all work hard to survive but injustices and oppressions are some things most intolerable and that will create deep hatred, the more fear and hatred SI UMNO BOTAK is trying to create, the harder the resistance forces will be going against him and the whole of UMNO, come next general election, nobody except the uninformed will vote for BN who represented UMNO and their plundering and cheating policies against the peace loving Rakyats of Malaysia.
THE POLICE & THEIR BRUTALITY AGAINST PEACEFUL CITIZENS IN A NEW ERA OF UMNO SI BOTAK & NAJIS C4 FIT FOR THE SEWERS ONLY. THE SELECTIVE USE OF ISA SCARED AWAY CAPITAL INVESTMENT TO MALAYSIA IN A CAPITAL FLIGHT AND NEXT THE POLICE BRUTALITY AGAINST PEACEFUL RAKYATS UNDER THE DIRECT GUIDANCE OF UMNO SI BOTAK WILL SCARE AWAY THE TOURISTS VISITING MALAYSIA THAT IS THE NEW ERA OF NAJIS C4 IN HIS IN WAITING ADMINISTRATION. DON’T FORGET C4 IS NOT SOMETHING YOU CAN BUY IN THE SUPERMARKET AND IMMIGRATION RECORDS OF ENTRY CANNOT BE EASILY DELETED WITHOUT TOP POWER INTERFERENCE FROM UMNO SI BOTAK & NARGIS C4.
WHY Razak Baginda, the fall guy, with no further obstacles or hindrances in sight for Najis C4 in his ascending to the Top Power, has now been released??? Well he was released so that he can say some good words for Narjis C4 but then if he is sentenced to death he would then wash all their DIRTY linens in court or in public and then nothing but the whole truth would then be revealed. Now two other Police fall guys has been charged for the Murder but there seem to be no valid motives for them to do so except that they were carrying out orders from their boss none other than C4 Najis or immediate family. The real murderers whose identities are obvious but are still at large, with RPK detained under ISA but just released and PI Balasundram exiled overseas there are no other major obstacles and hindrances to C4 Najis’ ascendancy to the pinnacle of his power come March 2009. This is only obvious that UMNO has now the final say in justice with their man Zaki as the Chief Justice. This is the obvious Justice of Malaysia, the laughing stock of the whole world, Malaysia should be boycotted by the world communities for their greatest injustices towards human rights and common normal justices. THIS IS MALAYSIA UMNO’S MALAY SUPREMACY AT ALL COSTS BUT GOING DOWN THE SEWERS WITH NAJIS C4, THE NEW PRIME MINISTER IN WAITING AFTER THE 51ST YEAR OF INDEPENDENCE.