Rightways: Think Global, Act Local; Change & Grow Rich; Sow as You Reap & Soar High!
Friday 29 June 2012
Thursday 28 June 2012
Misrule worse than no rule!
Can someone be charged for an offence when at the material time there was no offence?
KUALA LUMPUR: The Federal Territory Islamic Religious Department (Jawi) does not need any court order to seize the book ‘Allah Liberty & Love – Courage To Reconcile Faith & Freedom’ by controversial writer, Irshad Manji, following its contents infringing Islamic laws, said Jawi senior enforcement assistant principal director Wan Jaafar Wan Ahmad.Malaysians Must Know the TRUTH: JAWI DOES NOT NEED COURT ...
NIK Raina Nik Abdul Aziz is accused of committing a crime, the “crime” being the distribution of a book which the Federal Territory Islamic Religious Department (Jawi) does not like.
If the sentence above sounds a bit odd, that is because it is.
Nik Raina is a manager in a bookstore. She is not an owner of a bookstore, she is an employee.
Therefore, she does not have any say with regard to what book is being sold. She just manages the shop, as her job title entails.
Now she is being charged in the Syariah Court for distributing a banned book.
But it is a book, it must be said here, that at the time of the supposed offence was not actually banned.
Therefore, it was not illegal to sell the book at the time.
Jawi raided the shop she was working in on May 23. Copies of the book were confiscated during the raid. The book was effectively deemed illegal on June 14.
So, on what grounds was Jawi confiscating the books? It is not based on the law, that is for sure, because no law was passed banning it until 22 days after the raid.
The only reason that can exist is that Jawi disapproved of this book and took it upon itself to take action even though there was no legal ground upon which it could do so. In other words, they didn’t like the book so they decided to raid a shop and take the book.
Does this sound odd to you? Does it sound like the action of a despotic state? It does to me.
How can a person be charged for an offence when at the time of the so-called wrongful act, there was no offence? You can’t possibly do that to a person.
There are constitutional provisions against such things. It is known as protection from retrospective legislation.
In other words, if you decide to make it illegal to wear yellow today, you can’t charge someone for wearing yellow yesterday. To do so would lead to an incredible injustice and the complete breakdown of the rule of law.
Now, because Jawi is an Islamic body, there are some who believe they are above criticism. I beg to differ; it is because they are a religious entity that they must be open to criticism, especially if they behave in a way that is unjust.
This is because as a religious agency they have an even greater responsibility to not tarnish their actions with acts of cruelty, meanness and vindictiveness. For by doing so they demean the very faith that they are supposed to be upholding.
But that is by the by. Any agency, be it religious or secular, has no right to treat people in this way.
They have no right to seize private property on their whim, and they have no right to charge someone for a crime that does not exist.
That is the bottom line. If we allow anyone to do so, we are simply throwing away our democracy and the protection that the rule of law provides us.
Related articles:
‘Violent lawyer’ may face action
PETALING JAYA: The Bar Council is looking at issuing a show-cause letter to the lawyer who was caught on video pushing and kicking a client.
Bar Council president Lim Chee Wee said that if there was a cause for further action, the lawyer would be referred to the Disciplinary Board.
“The Board (which is independent of the Bar Council) will decide whether to convene a disciplinary committee to investigate further or deal with the matter summarily.
“If convicted, the lawyer can face reprimand, fine, suspension, or be struck off the roll,” he said.
He said this in response to a 9.03-minute video clip on a “hooligan lawyer” that has gone viral.
The video showed two men, believed to be a lawyer and a house buyer, arguing in the presence of three others in an empty house on June 19.
The argument started when the house buyer refused to acknowledge receipt of several documents handed to him by the lawyer.
The lawyer, Tan Hui Chuan, who is a former Selayang municipal councillor, said it was not fair to pre-judge him.
“I am only human. The client bombarded me with hurtful and disrespectful words over and over again.
“I am 58 years old and about to retire. I never had any disciplinary issues before. As all can see, I only pushed him away from me, to make him stop.
“But he went on and on. I raised my hands several times as a sign of surrender but he kept pestering me.
“And yes, I kicked him once. But it was a soft kick,” he said.- The Star
Sources: 
Related posts:
Ethics vital for lawyers! Force to sign documents & hit client?
Bar Council president Lim Chee Wee said that if there was a cause for further action, the lawyer would be referred to the Disciplinary Board.
“The Board (which is independent of the Bar Council) will decide whether to convene a disciplinary committee to investigate further or deal with the matter summarily.
“If convicted, the lawyer can face reprimand, fine, suspension, or be struck off the roll,” he said.
He said this in response to a 9.03-minute video clip on a “hooligan lawyer” that has gone viral.
The video showed two men, believed to be a lawyer and a house buyer, arguing in the presence of three others in an empty house on June 19.
The argument started when the house buyer refused to acknowledge receipt of several documents handed to him by the lawyer.
The lawyer, Tan Hui Chuan, who is a former Selayang municipal councillor, said it was not fair to pre-judge him.
“I am only human. The client bombarded me with hurtful and disrespectful words over and over again.
“I am 58 years old and about to retire. I never had any disciplinary issues before. As all can see, I only pushed him away from me, to make him stop.
“But he went on and on. I raised my hands several times as a sign of surrender but he kept pestering me.
“And yes, I kicked him once. But it was a soft kick,” he said.- The Star
Sources: http://www.malaysianbar.org.my/
Related posts:
Ethics vital for lawyers! Force to sign documents & hit client?
Wednesday 27 June 2012
New tax rules create a quandary for lending to family members
CHARGING below market interest gets you in trouble with the taxman or the law against money-lending.
“Neither a borrower nor a lender be”.
This advice by Polonius, the King's adviser to his son in Shakespeare's Hamlet remains good advice today.
But good advice, it is said, is least heeded when most needed.
Lending money gives rise to risk of default, a stark reminder of today's global phenomenon.
At a personal level, it can lead to the loss of a friend, a relative remaining one only by virtue of blood ties.
The term “relative” is defined in our tax law to include a wide network of family members including a nephew, a niece, a cousin and somewhat incredibly “an ancestor or lineal descendant.”
How the latter is to be determined, the law has not made clear, leaving the conundrum perhaps to the wisdom of the courts.
In many cases, loans between family members are below-market loans.
By this is meant that the lender charges either no interest or a rate that is less than the “market rate” also known as the “arm's length” rate.
This is in breach of the tax law, which requires a loan to a related party including a relative to be at the market rate of interest.
This requirement has been made clear by a recent Government Gazette setting out rules on transfer pricing as the rules do not state that such loans must be in the context of carrying on a business or must be used in a business.
Thus when you make a below market loan to a relative, driven entirely by altruistic reasons and devoid of any business considerations, the tax law treats you as having derived imputed' income from your borrower and would proceed to levy tax on that imputed income.
This phantom income on which tax is levied equals the market rate you should have charged less the interest you actually charged.
This means that you must report the imputed interest as taxable income in your tax return failing which you will be in default of the tax law.
If you were to consider avoiding this unfavourable tax outcome by being somewhat hard-hearted and charged interest to your relative, then you are in breach of the Moneylenders Act.
The law here precludes the charging of any interest since you are not a licensed moneylender.
A moneylender under this law is any person who “lends a sum of money to a borrower in consideration of a larger sum being repaid to him”.
So this puts you, the lender, setting out to help a financially distressed relative, on the proverbial “horns of a dilemma”.
You are in the untenable position of breaking one or the other law.
This state of affairs seems to run counter to any coherent tax policy objective.
In the United States, the lending of money below market rate historically occurred without tax consequences.
Through a series of court cases over several years culminating in a case in 1984, the court held that the lender's right to receive interest is a “valuable property right” and where such a right is transferred by way of an interest-free loan, it is in the nature of a gift subject to “gift tax”.
But the point here is that the taxing of the interest-free loan is because of the existence of a gift tax.
We do not have such a tax in Malaysia and taxing imputed interest, as this measure is generally known, between related individuals not conducting business transactions, is a retrograde step.
We had long repealed a similar imputed income provision, which treated a person owning an unoccupied house as having an income source, even where no income exist.
Business related loans follow similar concepts, but here the law is entirely understandable and justified where the intent is to avoid tax.
If company A makes an interest-free loan to its subsidiary which is a tax exempt pioneer company, then this leads to tax results which are not reflective of transactions between commercial parties.
Not charging interest inflates the subsidiary's tax exempt profits enhancing its capacity to pay tax exempt dividends, without a corresponding tax liability on the lending parent had interest been charged.
Here the existence of a “tax shelter” where one entity has either tax exempt status or a tax loss position, can lead to tax leakage, the reason for the arm's length rule.
Interest-free business lending between related companies can also lead to anomalous results.
This is a consequence of the divergence between the tax treatment and the new accounting standards for public listed companies.
The taxman will require tax to be imposed on the lender on the imputed market rate interest.
Whereas if such a company lends RM100,000 to its subsidiary interest - free to be repaid in equal instalment over five years and the market interest rate is 10%, the accounts will reflect the lender as having a debt of RM75,816, which is the discounted amount at the inception of the loan.
Over the period of the loan, the borrower will be shown as having paid interest of RM 24,184 which will equal the discount.
Thus the books of both companies will be recorded as if interest had been paid as shown in the table.
Since these are book entries and there are no costs incurred or income earned, they have no tax consequence.
This reflects the economic substance of the loan transaction as distinct from the strict legal substance, the mainstay for tax.
This fundamental difference in concept tends to make attempts at convergence between the accounting and tax treatments particularly problematic.
The more pressing issue is doing away with the taxing of imputed interest on non-business lending between relatives, a measure which seems unjustified.
Kang Beng Hoe is an executive director of TAXAND MALAYSIA Sdn Bhd, a member firm of TAXAND, the first global organisation of independent tax firms. The views expressed do not necessarily represent those of the firm. Readers should seek specific professional advice before acting on the views. Beng Hoe can be contacted at kbh@taxand.com.my
“Neither a borrower nor a lender be”.
This advice by Polonius, the King's adviser to his son in Shakespeare's Hamlet remains good advice today.
But good advice, it is said, is least heeded when most needed.
Lending money gives rise to risk of default, a stark reminder of today's global phenomenon.
At a personal level, it can lead to the loss of a friend, a relative remaining one only by virtue of blood ties.
The term “relative” is defined in our tax law to include a wide network of family members including a nephew, a niece, a cousin and somewhat incredibly “an ancestor or lineal descendant.”
How the latter is to be determined, the law has not made clear, leaving the conundrum perhaps to the wisdom of the courts.
In many cases, loans between family members are below-market loans.
By this is meant that the lender charges either no interest or a rate that is less than the “market rate” also known as the “arm's length” rate.
This is in breach of the tax law, which requires a loan to a related party including a relative to be at the market rate of interest.
This requirement has been made clear by a recent Government Gazette setting out rules on transfer pricing as the rules do not state that such loans must be in the context of carrying on a business or must be used in a business.
Thus when you make a below market loan to a relative, driven entirely by altruistic reasons and devoid of any business considerations, the tax law treats you as having derived imputed' income from your borrower and would proceed to levy tax on that imputed income.
This phantom income on which tax is levied equals the market rate you should have charged less the interest you actually charged.
This means that you must report the imputed interest as taxable income in your tax return failing which you will be in default of the tax law.
If you were to consider avoiding this unfavourable tax outcome by being somewhat hard-hearted and charged interest to your relative, then you are in breach of the Moneylenders Act.
The law here precludes the charging of any interest since you are not a licensed moneylender.
A moneylender under this law is any person who “lends a sum of money to a borrower in consideration of a larger sum being repaid to him”.
So this puts you, the lender, setting out to help a financially distressed relative, on the proverbial “horns of a dilemma”.
You are in the untenable position of breaking one or the other law.
This state of affairs seems to run counter to any coherent tax policy objective.
In the United States, the lending of money below market rate historically occurred without tax consequences.
Through a series of court cases over several years culminating in a case in 1984, the court held that the lender's right to receive interest is a “valuable property right” and where such a right is transferred by way of an interest-free loan, it is in the nature of a gift subject to “gift tax”.
But the point here is that the taxing of the interest-free loan is because of the existence of a gift tax.
We do not have such a tax in Malaysia and taxing imputed interest, as this measure is generally known, between related individuals not conducting business transactions, is a retrograde step.
We had long repealed a similar imputed income provision, which treated a person owning an unoccupied house as having an income source, even where no income exist.
Business related loans follow similar concepts, but here the law is entirely understandable and justified where the intent is to avoid tax.
If company A makes an interest-free loan to its subsidiary which is a tax exempt pioneer company, then this leads to tax results which are not reflective of transactions between commercial parties.
Not charging interest inflates the subsidiary's tax exempt profits enhancing its capacity to pay tax exempt dividends, without a corresponding tax liability on the lending parent had interest been charged.
Here the existence of a “tax shelter” where one entity has either tax exempt status or a tax loss position, can lead to tax leakage, the reason for the arm's length rule.
Interest-free business lending between related companies can also lead to anomalous results.
This is a consequence of the divergence between the tax treatment and the new accounting standards for public listed companies.
The taxman will require tax to be imposed on the lender on the imputed market rate interest.
Whereas if such a company lends RM100,000 to its subsidiary interest - free to be repaid in equal instalment over five years and the market interest rate is 10%, the accounts will reflect the lender as having a debt of RM75,816, which is the discounted amount at the inception of the loan.
Over the period of the loan, the borrower will be shown as having paid interest of RM 24,184 which will equal the discount.
Thus the books of both companies will be recorded as if interest had been paid as shown in the table.
Since these are book entries and there are no costs incurred or income earned, they have no tax consequence.
This reflects the economic substance of the loan transaction as distinct from the strict legal substance, the mainstay for tax.
This fundamental difference in concept tends to make attempts at convergence between the accounting and tax treatments particularly problematic.
The more pressing issue is doing away with the taxing of imputed interest on non-business lending between relatives, a measure which seems unjustified.
Kang Beng Hoe is an executive director of TAXAND MALAYSIA Sdn Bhd, a member firm of TAXAND, the first global organisation of independent tax firms. The views expressed do not necessarily represent those of the firm. Readers should seek specific professional advice before acting on the views. Beng Hoe can be contacted at kbh@taxand.com.my Learn more about Malaysian new Assembly Act
Previously, everything was prohibited unless permitted. Now everything is permitted unless prohibited. This is a significant shift in civil rights thinking.
IN early legal systems, the primary end of the law was to keep the peace. In modern legal orders, a just balance between the might of the state and the rights of the citizens is attempted. No field better exemplifies the difficulty of achieving this fair balance than Malaysia’s law relating to assembly and procession.
The recently enacted Peaceful Assembly Act 2012 has received much criticism in the media and deserves scrutiny of its high and low points.
Police permit: Previously under Sections 27 of the Police Act, citizens had to apply for a police permit for gatherings or processions of more than three people.
Under the new Act, there is no requirement for a police permit, but organisers of assemblies must notify the authorities 10 days in advance under Section 9(1). No notice is required for meetings in designated places or if the assembly is an exempted assembly.
If in response to a notification the police do nothing, then under Section 14(2) silence is deemed as consent.
Previously, everything was prohibited unless permitted. Now everything is permitted unless prohibited. This is a significant shift in civil rights thinking.
No power to ban: Under the Police Act, assemblies and processions could be prohibited outright or conditions imposed.
The new Act in Section 15 permits the OCPD to impose significant restrictions and conditions including the date, time and place of the assembly. However, there is no power to issue an outright “No” before the assembly takes place.
Time limits: Just as citizens are required to give advance notification of 10 days, the police response must also be communicated within a stated time limit of five days: Section 14(1). An appeal to the Home Minister must be decided within 48 hours: Section 16(2).
Designated places: The Act permits the minister to designate places where assemblies may be held without notification to the police. Critics have charged that this is an attempt to isolate Opposition gatherings in distant and low-impact places.
This is an overly cynical view. Actually it is a good idea to designate some fields, stadiums and Speakers’ Corners for public assemblies.
What would be improper is if the owners of designated places indulged in the selective granting or refusal of permission. If this happens, judicial review is likely on the (Article 8) principle of equality or the administrative law principles of reasonableness, irrationality or abuse of power.
Exempted assemblies: This Act does not apply to election campaigns, strikes, lock-outs and pickets under the Industrial Relations Act and the Trade Union Act: Section 1(3).
It is also inapplicable to religious assemblies, funeral processions, weddings, open houses, family get-togethers, family days and meetings of societies or associations: Third Schedule Paragraph 9(2)(b).
The words “meetings of societies and associations” are very broad and permit vast possibilities.
Right to object: All persons likely to be affected by a proposed assembly have a right to be informed and to raise objections. In principle this is acceptable.
However, there is a perception that the police may pander to extremist groups; subordinate minority rights to majority concerns, and discourage lawful but unpopular assemblies. This perception needs to be proved wrong.
Judicial review: Mercifully, the Act has no ouster clauses for excluding judicial review.
Counter-assemblies: The Act takes admirable note of counter- and simultaneous assemblies, and seeks to regulate them by giving preference to the assembly first in place. It also provides for alternative sites, times and dates for the counter- or simultaneous assembly or assemblies.
Spontaneous gatherings: These are not contemplated by the law and are presumably not illegal.
Involuntary presence: The definition of “participant” leaves out anyone who is unintentionally or involuntarily present at an assembly. This will be a useful defence to a citizen who is the subject of a prosecution.
Despite the above wholesome features, the reformed law still bristles with some controversial provisions.
Street protests: These are a form of assembly in motion, a procession or a demonstration. They were permitted (within limits) subject to regulation under Section 27 of the Police Act, but are now absolutely banned.
Other ambiguous aspects of the law are that a street protest by definition involves “walking in a mass march or rally.” So if there is no walking but a motorcade of cars or bikes, that will not be caught by this law and the authorities may have to use Section 268 of the Penal Code or some provision in the Road Traffic Act 1987.
Further, although “street protests” are banned, the Act refers here and there to “processions” and “assemblies in motion.” One has to struggle to understand the distinction between a lawful procession and an unlawful street protest.
Police discretion: Under the Police Act, police discretion to grant or withhold a permit was more or less unfettered and the power to impose conditions was very wide, although subject to occasional judicial review as in Chai Choon Hon v Ketua Polis Kampar (1986) and Patto v CPO Perak (1986).
Similar to the Police Act, the new law in Section 15 still confers on the men in blue very wide discretion to impose “restrictions and conditions,” arrest without a warrant any person failing to comply with a restriction or condition, or order the assembly to disperse.
It must be acknowledged, however, that such wide discretion is known in other jurisdictions like Britain, Finland and the state of Queensland in Australia, but subject to external review.
External control: Unlike the recent Security Offences (Special Measures) Act which subjected the powers of the police and the Minister to judicial control, this Act makes no effort to subject police discretion to external, non-executive control.
An appeal lies with the minister, which basically means there is an appeal from the executive to the executive.
Fortunately, however, there is no ouster clause, and judicial review on the first principles of administrative law is a possibility.
Public places: These are defined too broadly, so they include private places open to or used by the public by the express or implied consent of the owner or on payment of money. This means that private premises, hotels and halls to which members of the public are invited or permitted are deemed public places!
Constitutionality: It remains to be seen whether the courts will review the constitutionality of some parts of this law. Issues germane for discussion are:
> The total ban of street protests without linking it to public order and national security may well fall foul of Article 10(2).
> The ban on people under 21 organising an assembly may be challenged as a violation of Article 10 (free speech) and Article 8 (equality). It is noteworthy that case law has established that parliamentary restrictions on human rights must be reasonable by objective standards (Hilman Idham).
> One of the grounds on which the police may exercise the power to regulate assemblies is “the protection of the rights and freedom of other persons” (sections 2, 3 and 15). These words of limitation do not occur in Article 10(2), and may therefore be seen as an extra constitutional limitation.
In most countries including the US and Malaysia, courts have accepted implied limits on human freedoms and have often carved out common law restrictions on fundamental freedoms.
In sum, the Act has many wholesome features. But it is defective in that it imposes no objective restraints on the police and ministerial discretion.
Nevertheless, as judicial review is not excluded, courts may provide a proper balance between police powers and fundamental freedoms. Whether the courts will play such a balancing role remains to be seen.
> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM.
IN early legal systems, the primary end of the law was to keep the peace. In modern legal orders, a just balance between the might of the state and the rights of the citizens is attempted. No field better exemplifies the difficulty of achieving this fair balance than Malaysia’s law relating to assembly and procession.
The recently enacted Peaceful Assembly Act 2012 has received much criticism in the media and deserves scrutiny of its high and low points.
Police permit: Previously under Sections 27 of the Police Act, citizens had to apply for a police permit for gatherings or processions of more than three people.
Under the new Act, there is no requirement for a police permit, but organisers of assemblies must notify the authorities 10 days in advance under Section 9(1). No notice is required for meetings in designated places or if the assembly is an exempted assembly.
If in response to a notification the police do nothing, then under Section 14(2) silence is deemed as consent.
Previously, everything was prohibited unless permitted. Now everything is permitted unless prohibited. This is a significant shift in civil rights thinking.
No power to ban: Under the Police Act, assemblies and processions could be prohibited outright or conditions imposed.
The new Act in Section 15 permits the OCPD to impose significant restrictions and conditions including the date, time and place of the assembly. However, there is no power to issue an outright “No” before the assembly takes place.
Time limits: Just as citizens are required to give advance notification of 10 days, the police response must also be communicated within a stated time limit of five days: Section 14(1). An appeal to the Home Minister must be decided within 48 hours: Section 16(2).
Designated places: The Act permits the minister to designate places where assemblies may be held without notification to the police. Critics have charged that this is an attempt to isolate Opposition gatherings in distant and low-impact places.
This is an overly cynical view. Actually it is a good idea to designate some fields, stadiums and Speakers’ Corners for public assemblies.
What would be improper is if the owners of designated places indulged in the selective granting or refusal of permission. If this happens, judicial review is likely on the (Article 8) principle of equality or the administrative law principles of reasonableness, irrationality or abuse of power.
Exempted assemblies: This Act does not apply to election campaigns, strikes, lock-outs and pickets under the Industrial Relations Act and the Trade Union Act: Section 1(3).
It is also inapplicable to religious assemblies, funeral processions, weddings, open houses, family get-togethers, family days and meetings of societies or associations: Third Schedule Paragraph 9(2)(b).
The words “meetings of societies and associations” are very broad and permit vast possibilities.
Right to object: All persons likely to be affected by a proposed assembly have a right to be informed and to raise objections. In principle this is acceptable.
However, there is a perception that the police may pander to extremist groups; subordinate minority rights to majority concerns, and discourage lawful but unpopular assemblies. This perception needs to be proved wrong.
Judicial review: Mercifully, the Act has no ouster clauses for excluding judicial review.
Counter-assemblies: The Act takes admirable note of counter- and simultaneous assemblies, and seeks to regulate them by giving preference to the assembly first in place. It also provides for alternative sites, times and dates for the counter- or simultaneous assembly or assemblies.
Spontaneous gatherings: These are not contemplated by the law and are presumably not illegal.
Involuntary presence: The definition of “participant” leaves out anyone who is unintentionally or involuntarily present at an assembly. This will be a useful defence to a citizen who is the subject of a prosecution.
Despite the above wholesome features, the reformed law still bristles with some controversial provisions.
Street protests: These are a form of assembly in motion, a procession or a demonstration. They were permitted (within limits) subject to regulation under Section 27 of the Police Act, but are now absolutely banned.
Other ambiguous aspects of the law are that a street protest by definition involves “walking in a mass march or rally.” So if there is no walking but a motorcade of cars or bikes, that will not be caught by this law and the authorities may have to use Section 268 of the Penal Code or some provision in the Road Traffic Act 1987.
Further, although “street protests” are banned, the Act refers here and there to “processions” and “assemblies in motion.” One has to struggle to understand the distinction between a lawful procession and an unlawful street protest.
Police discretion: Under the Police Act, police discretion to grant or withhold a permit was more or less unfettered and the power to impose conditions was very wide, although subject to occasional judicial review as in Chai Choon Hon v Ketua Polis Kampar (1986) and Patto v CPO Perak (1986).
Similar to the Police Act, the new law in Section 15 still confers on the men in blue very wide discretion to impose “restrictions and conditions,” arrest without a warrant any person failing to comply with a restriction or condition, or order the assembly to disperse.
It must be acknowledged, however, that such wide discretion is known in other jurisdictions like Britain, Finland and the state of Queensland in Australia, but subject to external review.
External control: Unlike the recent Security Offences (Special Measures) Act which subjected the powers of the police and the Minister to judicial control, this Act makes no effort to subject police discretion to external, non-executive control.
An appeal lies with the minister, which basically means there is an appeal from the executive to the executive.
Fortunately, however, there is no ouster clause, and judicial review on the first principles of administrative law is a possibility.
Public places: These are defined too broadly, so they include private places open to or used by the public by the express or implied consent of the owner or on payment of money. This means that private premises, hotels and halls to which members of the public are invited or permitted are deemed public places!
Constitutionality: It remains to be seen whether the courts will review the constitutionality of some parts of this law. Issues germane for discussion are:
> The total ban of street protests without linking it to public order and national security may well fall foul of Article 10(2).
> The ban on people under 21 organising an assembly may be challenged as a violation of Article 10 (free speech) and Article 8 (equality). It is noteworthy that case law has established that parliamentary restrictions on human rights must be reasonable by objective standards (Hilman Idham).
> One of the grounds on which the police may exercise the power to regulate assemblies is “the protection of the rights and freedom of other persons” (sections 2, 3 and 15). These words of limitation do not occur in Article 10(2), and may therefore be seen as an extra constitutional limitation.
In most countries including the US and Malaysia, courts have accepted implied limits on human freedoms and have often carved out common law restrictions on fundamental freedoms.
In sum, the Act has many wholesome features. But it is defective in that it imposes no objective restraints on the police and ministerial discretion.
Nevertheless, as judicial review is not excluded, courts may provide a proper balance between police powers and fundamental freedoms. Whether the courts will play such a balancing role remains to be seen.
REFLECTING ON THE LAW By SHAD SALEEM FARUQI
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