KUALA LUMPUR, Aug 28 — The Malaysian Bar questioned today the constitutionality of a Penal Code law governing parliamentary democracy after taking issue with what it said was an abuse of the provision by local enforcers.
In a statement, Bar Council president Steven Thiru cited the case of the arrest and subsequent remand earlier this week of 16 student participants of the #OccupyParliament sit-in protest, and said the police had erred when they applied to have the youths placed in lock-up for seven days.
“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,” Steven said.
“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,” he added.
The youths are being investigated under Section 124B of the Penal Code, a provision on the protection of parliamentary democracy that was added to Malaysia’s law books in 2012 to deal with offences like the assassination of a head-of-state, a coup d’état, an armed insurgency, or guerrilla warfare, and breaches of constitutional provisions.
Steven pointed out today that when the amendment to the Penal Code was made, it was not with the intention of inhibiting “political dissent or peaceful assembly”.
As such, he said, using the section of the law against the youths over what was meant to be a peaceful gathering was unjustifiable.
He went on to say that the provision cannot be misused to erode a person’s constitutional right, such as the right to assemble peacefully and without arms as enshrined in Article 10(1)(b), read with 10(2)(b) of the Federal Constitution.
“In any event, the constitutional validity of Section 124B is questionable,” Steven said.
“Malaysia is a constitutional democracy, where the Federal Constitution is the supreme law of the land.
“The concept of parliamentary democracy is only applicable in countries where the Parliament is supreme, such as the United Kingdom,” he added.
The 16 youths who were nabbed on Tuesday night were issued remand orders for three days the following day. The orders were reduced, however, by a High Court here yesterday.
A 17th person was also detained during the incident and remanded three days but for a different offence obstructing a civil servant from carrying out his duties.
The #OccupyParliament movement was kicked off as a pre-cursor to Bersih 4 this weekend, and its participants had vowed to stay put outside the legislative house until and unless Prime Minister Datuk Seri Najib Razak stepped down.
