The
Malaysian Bar is appalled at the abuse of the legal process and
grotesque use of force by the police in connection with the BERSIH 3.0
rally in Kuala Lumpur yesterday, 28 April 2012.
The
crowds that had gathered for the BERSIH 3.0 rally reflected a broad
cross-section of Malaysian society, and were peaceful. The police were
initially restrained, although they did try to stop people from reaching
various pre-announced meeting points. However, the attitude of the
police underwent a sea-change at 3:00 pm that day. The reported breach
of police barricades in some areas does not justify the police
unleashing the full force of their arsenal upon crowds that were
peaceful. The police have shown in this incident that they do not have
the maturity, discipline and restraint required of a professional force.
In this regard the Malaysian Bar strongly disagrees with the Minister
of Home Affairs’ assertion that the police acted professionally.
The
court order excluding members of the public from Dataran Merdeka is
arguably defective in law due to a lack of specificity. Given that the
BERSIH 3.0 rally had been announced on 4 April 2012, there was no need
to have obtained the order ex parte. There had been ample
opportunity for the relevant parties to be heard before deciding if such
an order deserved to be issued. In addition, the order was obtained
with respect to a situation of the authorities’ own making, by their
unjustifiable denial of access to Dataran Merdeka. It is important to
bear in mind that the Minister of Home Affairs had previously announced
that the BERSIH 3.0 rally was not a security threat.
Nonetheless,
having obtained the exclusion order, the police proceeded to disrespect
the order by unilaterally closing additional roads and restricting
access to other areas not covered by its terms. The terms of the order
itself, the closing of the roads and the restriction in access gave rise
to a tense situation that contributed to the unnecessary violence that
occurred.
As
has been done with some other public assemblies in the past, the
Malaysian Bar deployed lawyers and pupils-in-chambers to act as monitors
during the rally, numbering approximately 80. Our monitoring teams
reported witnessing the use of an array of heavy-handed tactics by the
police, including the indiscriminate discharging of multiple rounds of
tear gas without any obvious provocation, and arbitrary use of water
cannons. Police fired tear gas directly at the crowd. They also
manoeuvred their firing pattern to box in the participants rather than
allowing them to disperse quickly. This is not action to disperse, but
is instead designed to attack, a crowd. When items were thrown at the
police, the police stooped to return like for like.
The
Malaysian Bar does not countenance the belligerent conduct shown by a
number of the participants. However, we express deep and serious
concern as to how the police responded. The police displayed a lack of
restraint and proportionality, reminiscent of their actions at the
BERSIH 2.0 rally on 9 July 2011. Instead of displaying action to calm
the situation, they instead aggravated it and contributed to the
escalation of the conflict. Although organisers of public gatherings
must bear some responsibility when things get out of hand due to their
action or inaction, this does not and cannot excuse the response of the
police.
The
monitoring teams also witnessed numerous acts of police brutality, such
as assault of arrested persons. Instead of merely apprehending
suspects, the attitude of the police was punitive in nature. The
reported attacks by the police on members of the media, both local and
international, and the confiscation and/or destruction of their
photographs and video recordings, speaks to police action in covering up
or preventing a full and accurate record of the BERSIH 3.0 rally and
the responses of the police.
Regrettably,
the police also showed a general lack of cooperation towards the
Malaysian Bar’s monitoring teams, and were hostile in their attitude and
approach at times. This is most unprofessional and unbecoming, and
serves as an unhealthy development with negative connotations for the
future.
The
Malaysian Bar notes that yesterday’s events have not occurred in
isolation, but stem from the fundamental problems that gave rise to the
BERSIH 3.0 rally in the first place, namely the ongoing and outstanding
issues relating to the electoral roll, and the lack of confidence in its
integrity and that of the electoral process in Malaysia.
Those
who look upon Dataran Merdeka as a symbol of freedom will view the
exclusion from Dataran Merdeka as freedom denied. The promise by the
Government to respect democracy and human rights, and implement reforms,
was tested yesterday. The Government’s response and actions during the
BERSIH 3.0 rally provided an indication of whether the new reform
legislation will be perverted and abused in its use and implementation,
where the wide powers vested in the authorities call for measured,
proportionate and mature exercise. The events of 28 April 2012 do not
bode well in this regard.
Transformation
and real recognition of democratic rights come at a price, namely
constant vigilance. The cost of not transforming and not allowing
Malaysians the proper exercise of our democratic rights is too high. In
Malaysia’s march towards developed nation status by 2020, which is only
eight years away, the constitutional right to clean, free and fair
elections cannot and should not be sacrificed.
Christopher Leong
Vice-President
Malaysian Bar
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