The International Human Rights Framework on the Right of Peaceful Assembly
Malaysia is not a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR), Article 21 of which governs the right of peaceful assembly.
The right of peaceful assembly is, though, a fundamental human right that is part of the corpus of customary international law. It is also a general principle of law.See Art. 38(1), 1945 Statute of the International Court of Justice.
There is not yet a regional human rights treaty to which South-East Asian nations can adhere, although a non-binding human rights declaration was issued by the Association of South-East Asian Nations (ASEAN) in 2013. Paragraph 24 of the ASEAN Human Rights Declaration provides that: "Every person has the right to freedom of peaceful assembly." Malaysia is a member of ASEAN.
The Domestic Legal Framework on the Right of Peaceful Assembly
Part II of the 1963 Federal Constitution of Malaysia protects certain fundamental human rights (referred to as "liberties"). Under Section 10(1)(b): "all citizens have the right to assemble peaceably and without arms".
The primary legislation governing assemblies is the 2012 Peaceful Assembly Act. According to Section 9(1), in order to hold an assembly 10 days’ notice must be given to the police.
Section 4(1) states that the right to assemble does not encompass a “street protest”, which is defined as an open air assembly that begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes.
In its 2018 national report for its Universal Periodic Review under the UN Human Rights Council, Malaysia stated:
The Government is also committed to the promotion and protection of these rights so long as it is in accordance with existing domestic laws. Throughout the period of 2013–2017, the Government had approved 25,901 public assemblies out of the 26,685 applications submitted, which amounts to 97.1% of approval percentage.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
The Inspector General of Police has issued a standing operating procedure on the facilitation of peaceful assemblies under the 2012 Peaceful Assembly Act, but this text is not publicly available.
The police are entitled to use force to disperse an unlawful assembly. According to Section 84 of the 1935 Criminal Procedure Code (as amended), if an order to disperse is not complied with,
any police officer, any member of the armed forces or any other person acting in aid of a police officer or member of the armed forces may do all things necessary for dispersing the persons so continuing assembled and for apprehending them or any of them, and, if any person makes resistance, may use such force as is reasonably necessary for overcoming resistance and shall not be liable in any criminal or civil proceedings for having by the use of such force caused harm or death to any person or damage to any property.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
The Inspector General of Police’s standing orders on the use of firearms are not a public document. In 2014, the Inspector General of Police told Human Rights Watch that these orders permitted use of a firearm for "self-protection" if “police are threatened with death [and] there is no time to use a less-lethal weapon".
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
Malaysia is not a state party to the ICCPR.
In the 2018 Universal Periodic Review of Malaysia under the UN Human Rights Council, numerous states called on Malaysia to respect the right of peaceful assembly, including by amending domestic legislation.
Views of Civil Society
According to Freedom House's 2019 report on Malaysia:
Freedom of assembly can be limited on the grounds of maintaining security and public order. The law delineates 21 public places where assemblies cannot be held—including within 50 meters of houses of worship, schools, and hospitals—and prohibits persons under the age of 15 from attending any public assembly. Those who proceed with a banned protest are subject to penalties including high fines. Despite the legal restrictions, demonstrations are often held in practice. Police continued to enforce existing laws under the PH government, arresting and charging unauthorized protesters on multiple occasions during 2018, though authorities approved the large opposition-led protest against ratification of ICERD in December.