COMMENT The Malaysian Bar deplores the arrest and detention on 25 August 2015 of 17 persons — 16 of whom are reportedly university students — for taking part 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.

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 (in Parliament by then de facto law minister Mohamed Nazri Abdul Aziz on April17, 2012) that it would be used to deal with violent offences, such as the assassination of a head of state, a coup d’état, an armed insurgency, or guerrilla warfare, and breaches of constitutional provisions.

Unjustifiable to use Section 124B

There was no intention to inhibit political dissent or peaceful assembly, and a Member of Parliament (MP for Rembau Khairy Jamaluddin) observed, “Kalau nak buat perhimpunan aman atau bersih pun, itu tidak detrimental to parliamentary democracy.”

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 (Article 4(1) of the Federal Constitution).

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 is president of the Malaysian Bar.