MARCH 26 — On the March 22, 2019, six students from the University of Malaya protested the appearance of former Prime Minister, Datuk Seri Najib Razak near campus grounds.
The students held up a clown caricature that depicted the former Prime Minister and several other placards containing phrases of criticism.
Such actions caused his supporters, including Umno Supreme Council member, Datuk Lokman Noor Adam to confront the students.
He allegedly grabbed the clown caricature and proceeded to tear it to pieces while the other supporters snatched the placards away from the students.
It quickly escalated when one of the supporters held a student in a reverse chokehold, grabbed his hair and hit him.
Kuala Lumpur Police Chief, Datuk Seri Mazlan Lazim spoke to the media saying that investigations will be carried out under Section 160 of the Penal Code which prescribes the offence of affray.
Affray
Since the police are investigating the incident under the offence of affray, it is pertinent to first understand what the law has to say on the matter.
Section 159 of the Penal Code provides that an affray involves two or more people fighting in a public area which disturbs public peace. (Note 1)
Such an offence is punishable with six months of imprisonment or a RM 1000 fine or both as stated in Section 160 of the same Act.(Note 2)
When it comes to the offence of affray, there is no requirement in law for both parties to be charged, as it would naturally fall under the discretion of the Public Prosecutor. (Note 3)
Furthermore, a fight would fall under the offence of affray even if only one party is successful in landing a blow on his opponent.(Note 4)
Thus, the offence of affray can still be committed even though the other party does not react in an aggressive manner. However, some have contended that the Umno men’s reaction was justified because of the provocative act of the UM students.
While this argument may hold water to some, we contend that the element of provocation would be irrelevant as the offence of affray does not accommodate provocation as a vindicating nor a mitigating factor. When then will provocation be relevant?
Provocation
At this juncture, the definition of the word ‘provocation’ would be necessary. Provocation may be literally defined as an action or speech that makes someone angry, especially deliberately.
Under the law, provocation is defined as “some act, or series of acts done… which would cause any reasonable person, a sudden and temporary loss of self-control…” (Note 5)
Provocation is only a relevant consideration if those involved are being charged under Section 352 of the Penal Code. Section 352 provides that whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall be imprisoned for a term which may extend to three months or fined up to one thousand ringgit or both.
Provocation here steps in as a means to escape the punishment outlined above.
The relevant test to establish ‘sudden and grave provocation’ under Section 352 is ‘whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control.’(Note 6)
Therefore, as investigations are conducted under Section 160 and not Section 352, (Note 7) what is deemed to be provocative should not be under scrutiny as no mention of the term is made under this provision.
Therefore, the argument of provocation would not be relevant to either discount or dismiss the violent acts of those involved.
Freedom of speech and the right to assemble
It is imperative to understand that violence can never be justified as a method to quell an individual’s freedom of expression.
Freedom of speech and expression is a fundamental liberty that is enshrined under Art.10(1)(a) of the Federal Constitution.
Answerability, accountability and responsibility in government are not enforceable if citizens have no right to free speech.
It also promotes an alternative to the top-down decision-making approach. Under its broad umbrella, rights such as freedom of speech, right to peaceful assembly and the freedom of association are included. (Note 8)
Furthermore, Article 19 of the Universal Declaration on Human Rights provides that everyone shall have the right to hold opinions without interference.
The freedom of speech and expression bears many forms. This right is not confined to oral speech and expression. It may also encompass any acts of symbolic speech.
Emeritus Professor Shad Saleem Faruqi, in his book titled Document of Destiny, the Constitution of the Federation of Malaysia, states that a person’s dress, attire or articles of clothing are a form of expression. (Note 9)
Therefore, this implicitly connotes that symbolic speech would also be canvassed under Art.10(1)(a) of the Constitution.
As clear as day, the UM students’ act of holding up the caricature and placards was a form of symbolic speech and should be safeguarded at all costs.
Although the imperative behind their act of protest may be regarded as unnecessary and uncalled for by various parties, it is our position that their exercise of free speech should not be impeded based on that reason.
For many years, Malaysia has seen a crackdown on such exercise of free speech. We witnessed the prosecution of Bilqis Hijjas for her act of throwing balloons in PM Najib’s event, the prosecution of Fahmi Reza and Zunar for their artistic creations, the disciplinary action taken against four UM students for their act of protest in a 1MDB townhall, and many more.
It would be distasteful if the protection of free speech in this country is given the cold shoulder once again.
The freedom of assembly is also important in the context of this incident.
Article 10(1)(b) of the Constitution provides that all citizens have the right to assemble peaceably and without arms.
The right to assemble is largely governed by the Peaceful Assembly Act 2012 (PAA), which among others, prescribes the need for a 10-day notice before a person may exercise his right to assemble.
This might appear problematic for the students, as it is nowhere mentioned that a 10-day notice was given to the police before they assembled.
Judging by the spontaneity of the incident, it would be unlikely that they could issue such notice within the prescribed period of time.
However, we reiterate the government’s commitment to amend the 10-day notice requirement provided for under s 9(1) PAA.
In that light, we implore the government to impose a moratorium on the use of s 9(1) to prosecute those who fail to abide by it while the law is subject to the process of amendment.
With this moratorium, and the amendment to this impugned provision, we hope that the right to peaceful assembly would be strengthened, and along with it, the democratic essence of this nation as well.
Conclusion
Though the vigour of a New Malaysia wanes after each passing day, it is our stance that violence should never be condoned as a proportionate response to a person exercising his or her right to free speech and expression in this country.
It is never justifiable to resort to violence in any situation, especially to suppress dissent or criticism from the public.
It is expected from each member of society to act with reason and rationality, even more from a politician and a respected member of society.
We also strongly urge for the faithful protection of the right to free speech and peaceful assembly in this nation.
These rights are the bedrock of a healthy democracy, and should be staunchly defended from any form of violence and intimidation aimed at maiming its exercise.
* Notes
1 Penal Code, Act 574.
2 Ibid.
3 Navindran a/l Narayanan v Public Prosecutor [2018] MLJU 844.
4 Menase Ladang v Public Prosecutor [2018] MLJU 1049 in reference to Atma Singh Kahan Singh v The State AIR [1955] Punjab 191.
5 R v Duffy [1949] 1 All ER 932, referred to in the case of Basri Takadir v PP [2018] MLJU 967.
6 Nanavati v State of Maharashtra AIR 1962 SC 605; PP v Vijayan [1975] 2 MLJ 8.
7 The Malay Mail (2019), loc. cit.
8 Malaysian Federal Constitution, Article 10
9 This view was subsequently adopted in the Court of Appeal case of Muhamad Juzaili Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors [2015] 1 CLJ 954.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
