What happens under arrest

By Deborah Loh
thenutgraph.com

SIVARASA Rasiah was a human rights lawyer before he entered politics and was elected as the Member of Parliament for Subang in the March 2008 general election. Hence, the Parti Keadilan Rakyat vice-president is no stranger to the criminal justice system — and to being arrested himself.

On 1 Aug 2009, Sivarasa was arrested together with almost 600 others and detained for two days for being part of an anti-Internal Security Act (ISA) rally in Kuala Lumpur. Prior to that, he had also been arrested several times for participating in activities that called for human rights to be respected. These include the Asia Pacific Conference on East Timor (Apcet) in November 1996; the Reformasi protests of 1999; the September 2007 lawyers' Walk for Justice in Putrajaya; and the April 2008 Hindraf gathering outside Istana Negara to submit a memorandum to abolish ISA and release detained Hindraf leaders.

In the second of a two-part interview with The Nut Graph conducted on 4 Aug 2009 in Kuala Lumpur, Sivarasa talks about the meaning of "freedom of assembly" and reveals what happens in police lock-ups that go against the provisions of the law.

TNG: What do you think about (Prime Minister Datuk Seri) Najib (Razak)'s offer to hold rallies in stadiums?

Sivarasa: Again, he is missing the point. The real issue is not about holding rallies in stadiums. This is the difference between our democratic approach, and the Barisan Nasional (BN)'s lack of understanding or wilful refusal to understand what democracy is.

Democracy is about the right to express through public assembly. And public assembly, as long as it is done peacefully, must be allowed. It is a very basic thing to understand. It distinguishes the democratic person from the non-democratic person.

And unfortunately, Najib and the BN are still showing that they are fundamentally not democratic. Their real political values are authoritarianism and not democracy. It's all dressing up by saying "hold it in a stadium". It's avoiding the issue; it's not addressing the real question of what is a democratic right.

Should the Police Act on illegal assembly be amended?

Absolutely. There are parts of the Police Act which may have to stay. But the parts that give the police too much power to stop assemblies must go. And there must be a way to ensure that peaceful assemblies are allowed to take place.

Police must still have a role because it is their duty to regulate traffic, for example. Should some people misbehave in a peaceful assembly and become violent, that is when they can use their powers of arrest or to disperse the rally. But their actions must be proportionate to the situation, not excessive.

A protester being taken away by police during the anti-ISA rally of 1 Aug (Pic by Gan Pei Ling)

If the rally is peaceful, just allow it to take place. Possibilities of this or that flaring up are not the issue. I have participated in rallies in London of 200,000 people, with just a few hundred police [officers] sorting out traffic control and public order without any problem. Rally organisers also have their own marshals and they can coordinate with the police. And if a group decides to misbehave violently, then that group can be arrested; that's acceptable. But the majority who want to march peacefully, they must be given that right.

So if you could amend the Police Act on illegal assembly, the first thing to go would be the issue of permits?

Yes. It has to be modified, amended to ensure respect for the right to peaceful assembly. And ultimately, we also need to amend Article 10 (on the freedom of speech, assembly and association) of the Federal Constitution to ensure that these rights are given firmer protection.

How was your treatment in police lockup [after being arrested on 1 Aug 2009], and that of other detainees?

My statement was not recorded immediately, and that's one of my complaints. On Sunday, 2 Aug, one of the grounds stated by the police for remanding me was because police still had not taken my statement. I told the magistrate that I had been sitting for hours in the FRU depot on Saturday, 1 Aug, while many others detained had their statement recorded. Why wasn't mine?

The whole of Sunday, I was also sitting in the lock-up, where again they could have taken my statement. It wouldn't have been more than a five-minute affair. When you are under arrest, you have the right to remain silent. If you say that you're not going to answer, taking the statement would have been done in no time.

Finally, they did take my statement on Monday morning, 3 Aug, before I was taken to court and released. I told them I would exercise my legal right to remain silent. My counsel also told the magistrate the same thing, and she still went ahead and granted a two-day remand although she was advised by my lawyers that the law did not permit a remand simply for the purpose of recording a statement.

What about the other detainees?

Not a lot of them were fully aware of their legal rights, so some gave a statement. But the police abused their rights by asking questions they shouldn't have.

When you take a statement from a detainee, you must apply a caution. You must advise them of their right to remain silent. Police didn't do that. They asked questions without advising the detainees of their rights. This is required under Section 112 of the CPC.

Sometimes, the police mislead detainees by saying that they must answer, when actually, the legal position is that you don't have to answer under Section 112. You have a right under this section not to answer questions that are self-incriminatory.

But police asked questions that were obviously incriminatory, like, "Did you go to the gathering?" They misled detainees by asking questions not for a 112 statement, but said they were filing a borang dokumentasi. This is a form of misrepresentation. They lied to the detainees. The first part of the form is about your personal details, but after that they asked questions like, "Were you at the gathering? How did you get there? Ada imbuhan?" This is illegal without a proper caution under the law.

Were detainees allowed access to lawyers?

It's supposed to be granted immediately, but on Saturday, the police only granted it very late at night, after they had recorded statements from the detainees, which again is wrong.