The Malaysian Bar supports and defends the right to assemble peaceably. The right to freedom of assembly and expression is enshrined in Article 10 of the Federal Constitution of Malaysia. This is a fundamental feature of democracy, contained in the Universal Declaration of Human Rights (“UDHR”), which was adopted in 1948 by the United Nations General Assembly. Malaya in 1957, and Malaysia in 1963, embraced and accepted the UDHR when it was admitted to the United Nations.
The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police (headed by Tun Mohd Dzaiddin), which reported in May 2005, recommended to the Yang Di-Pertuan Agong that section 27 of the Police Act 1967 – requiring a permit for a public rally – be abolished. The Human Rights Commission of Malaysia, SUHAKAM, has made a similar recommendation to the Government on several occasions.
After the BERSIH 2.0 coalition, Perkasa and Umno Youth announced that they would organise public rallies on 9 July 2011, Bar Council (“BC”), consistent with its past practice, set up a monitoring team to monitor the main BERSIH 2.0 rally. The objective of the BC monitoring team was to observe whether all parties – including participants and organisers of the rally – exercised the right to freedom of assembly and expression in a peaceful manner, and whether law enforcement officials discharged their duty to uphold and protect the exercise of such right.
About 100 Members of the Bar and pupils-in-chambers, including the Office Bearers of the Malaysian Bar, volunteered to be part of the monitoring team, which was coordinated by Siti Zabedah Kasim and Seira Sacha Abu Bakar, members of the BC Human Rights Committee (“BCHRC”). The monitors donned chamber attire and wore a “Pemerhati” tag while on duty. They were divided into four teams, headed by two or three team leaders who were BCHRC members with prior monitoring experience.
The outcome of the monitoring exercise demonstrates that people in Malaysia are mature and peace-loving when championing a cause they believe in. The rally participants generally behaved in a peaceful and calm manner; most importantly, we witnessed that people from a wide variety of backgrounds and from across Malaysia participated in the rally without any conflict. This is contrary to the fear of possible racial disharmony or riots, expressed by certain irresponsible public figures.
The four teams were placed at four main points in central Kuala Lumpur, namely Masjid Negara, Masjid Jamek, Puduraya bus station and Stadium Merdeka.
B.1. Observations regarding participants
B.1.1. Peaceful rally participants
Monitors reported that the participants (save for one incident) behaved in a peaceful and calm manner during the rally. They chanted “Hidup Rakyat”, “Bersih” and “Reformasi”, and sang “Negaraku” and also “Rasa Sayang” on many occasions (see Appendix A). The participants stopped marching when they approached police barricades. Their leaders negotiated with the police to allow them through to make their way to Stadium Merdeka. On most occasions, the police did not grant them passage, and ordered them to disperse.
B.1.2. Unruly/irresponsible behaviour by rally participants
Two monitors reported having witnessed one or more participants throwing plastic water bottles at a television station reporter who was covering the BERSIH 2.0 rally (see Appendix B, observation nos. 1 and 2).
B.2. Observations regarding the police force
B.2.1. Indiscriminate and excessive use of tear gas and water cannons
The monitors observed that the police force used tear gas and water cannons arbitrarily, indiscriminately and excessively against the rally participants, including firing tear gas canisters very close to Tung Shin Hospital and employing water cannons while rally organisers were negotiating with the police (see Appendix C).
B.2.2. No warnings, or inaudible warnings, given to rally participants
Some monitors noted that the police did give warnings prior to utilising tear gas and water cannons. However, it was difficult for the huge crowd to hear what the police commandants said via their loud hailers, except for participants who were situated near the police (see Appendix D).
B.2.3. Unnecessary use of physical force/high-handedness by the police force towards the rally participants
A number of the monitors observed the police beating, hitting and kicking the rally participants (see Appendix E).
B.2.4. Random and arbitrary arrests
Many monitors observed the police randomly or arbitrarily arresting rally participants, including those who were dispersing (see Appendix F).
Many monitors also noted that a significant number of police officers were polite towards the leaders of the public rally, the participants and the BC monitoring teams (see Appendix G).
In particular, the police team stationed at the Jalan Hang Jebat entrance to Stadium Merdeka managed the crowd well, allowing them to assemble just beyond the barricades without unnecessary use of force, and permitting some speeches to be made.
B.3.1 Business as usual on the day of the rally
Some of the monitors who were stationed in the Jalan Petaling area noted that business continued as usual on the day of the rally. As such, the claim that the rally would be harmful for business is unfounded. The rally benefited enterprises that decided to operate on that day, especially with the increased number of patrons.
Based on the observations by the BC monitoring teams, Bar Council makes the following recommendations to the Malaysian Government:
(1) Uphold the constitutional right of Malaysians to assemble without a need for police permits, by amending the Police Act consistent with the recommendations of the SUHAKAM report on Freedom of Assembly issued in 2002 (see Appendix I for an extract of the recommendations contained in the report);
(2) The police and Federal Reserve Unit to implement international standards as guidelines for their personnel on the use of force and firearms in relation to assembly, consistent with the recommendations of the Report of SUHAKAM Public Inquiry into the Incident at KLCC on 28 May 2006 (see Appendix J for an extract of the report); and
(3) A thorough internal investigation by the police into allegations of aggression and undue force, as well as a comprehensive and independent investigation by SUHAKAM, by way of an inquiry on its own motion.
The Malaysian Bar expresses appreciation to the Inspector General of Police (“IGP”), Tan Sri Hj Ismail Omar, for allowing our monitoring teams to observe the public rally and for acknowledging our impartiality in conducting this monitoring exercise. We thank the Polis DiRaja Malaysia for the co-operation rendered to our monitors in carrying out their duties without fear and favour.
Lim Chee Wee
12 July 2011
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