Tuesday, November 18, 2008

Policing The Constitution


Policing The Constitution

(An Open Letter To The Inspector General of Police)


Dear IGP,

Let me firstly acknowledge that yours is not an easy responsibility to bear. The task of policing is certainly a difficult one. It calls for the fine balancing of the many different interests and expectations that will allow for security without undue compromise of the freedoms that mark this nation as a democracy. Far too often, the choices that have to be made are those that will be remembered more for their being unpopular than their having been effective.

As a lawyer, it strikes me that there is a way to make navigating these difficult waters easier, if only slightly. The power to police stems as it does from law enacted for that purpose. The Police Act and the Criminal Procedure Code are not only the maps by which you chart your course, they are also the justification you offer for actions that might be viewed as unfair. After all, the Royal Malaysian Police does not legislate; it merely enforces the will of the legislature as codified into the statute books.

This approach could also extend to areas where the law vests police officers with a discretion the exercise of which is a matter than can only be determined by reference to the particular circumstances of a given situation. Though in these cases the particular legal provision in issue may be silent as to how it is a police officer is to act, it should not be overlooked that the Constitution is the supreme law of the land. In enumerating the fundamental liberties of citizens, it has provided the context and limits of enforcement. Seen in this light, it become evident that the primary role of the police force is to ensure that the constitutional framework is maintained as it was at all times intended to be: one that guarantees the freedom for Malaysians to aspire to be all that they are without fear of reprisal.

It is from this perspective that I question the wisdom of your policy on the matter of public assemblies.

I acknowledge that the legislature has by virtue of the Police Act imposed the requirement of permits for gatherings in public places on pain of sanction. I note however that the police force has taken it upon itself to exclude certain types of gatherings from the requirements of the Police Act. This seizing of discretion, for it could be said that the statute allows for no such discretion, is understandable for were it to be otherwise we would see many a family arrested for picnicking in public parks. By any definition they would constitute the assembly of three or more persons in a public place the Police Act targets.

This however makes the point that it is not necessarily the case that all gatherings in public places without permits are unlawful assemblies; it is only those that the police force deems such that are. Experience shows that this has however been markedly selective.

Compare, for instance, the experience of protestors outside the Bar Council and UITM students demonstrating against the admission of non-Malays this August with the treatment of participants in the anti-ISA vigil held earlier this month. While the third event had dispersed, spontaneous peaceful gatherings of small groups of citizens were acted against with force and culminated in numerous arrests. Though the earlier two events were by any comparison that much more aggressive, no action was taken despite the protest outside the Bar Council having disrupted a closed-door event.

Circumstance suggests that your officers believe there to be basis for their action and for treating events differently from one another. Objective scrutiny point to that basis being an apparently misguided notion as to what it is that constitutes a threat to public order. It appears that the third event, and others like it, was perceived as being disruptive of public order not so much for the event itself but rather the anti-ISA message it sought to convey. It seems that this was considered to be dangerous for its seemingly anti-establishment sentiment, a conclusion reinforced by conditions imposed by the police for a similar event held last Sunday. These included prohibitions on the lighting of candles, the wearing of anti-ISA t-shirts and the making of any statements supportive of the release of detainees.

In contrast, the first two events did not convey any such sentiment.

If this is in fact the case, that policy needs to be reexamined. The approach it entails is grossly unfair. It also exposes the police force to attack and criticism in a manner that is unnecessarily undermining of respect for the institution at a time when more needs to be done to shore up public confidence

It is not for the Royal Malaysian Police to police thought and speech through preemptive enforcement; that is not its fight. Malaysians are guaranteed the freedom of thought in as much as they are guaranteed the right to express themselves, either alone or in peaceable assembly with others. The nature of views expressed is not a matter for the police force to concern itself with; ensuring that Malaysians are free to avail themselves of the guarantees afforded to them under the Constitution to live out democracy as it was intended is.

Malik Imtiaz Sarwar

(Malay Mail; 18th November 2008)

MIS

9 comments:

masakini said...

Malik:

It is not as if the Police do no understand or realise what they are doing. Some of my police friends have confided of their predicament, as being ransacked between the devil and the deep blue sea.

Let me amplify this a bit further. On a hypothetical basis, the reaction of the police to such events may be different under a non UMNO/BN govt. Of course, I do get very upset, and even angry, at the police for roughing people up, especially when people want to express their democratic rights in a non-violent manner but why we see the main culprit.

I, as much as you, know that the orders come from the TOP and hypothetically again, if by any chance Tan Sri Musa or any of his senior officers are seen to give even a little bit of leeway, we don't have to second guess what will happen to his position, and there will be other MUSAs, BAKRIs, etc waiting only eagerly to step-in.

I still recall the incident when Gandhi took exception and expressed his disdain in no uncertain terms to the crowd that became offensive to the police.

We have an axe to grind, and I share that predicament with all right-thinking Malaysians. I was, and still am, angry at the way Irene Fernandez was chastised by the authorities for her tryst with truth and justice for going to the aid of helpless foreigners. The ISA is a shame to those who believe and practice democracy.

The fault lies, as many others may have observed, with the govt of the day. Nothing short of a change in govt will ever change anything notable, including the ISA and the Police acts. We have to shift our focus and change people's mind-set to truly believe that it is the govt of the day that perpetrates these acts.

Pratamad said...

In summary, the PDRM has a very shallow thinking: as long as the law is on their side, they are fine. But that's plainly rule by law, which is not for democratic Malaysia but for Communist regime of China. They clearly need further education on rule of law. They can continue down the path of such behavior, without breaking a bit of the law, but eventually command zero respect and faith from the rakyat.

Bob said...

It's sad that Malaysia has descended into a form of fascist state. I wonder how the police will react with a change of government.

captazhar said...

In the military, where discipline and strict obedience to orders are paramount, officers were also trained to follow their conscience. We only have to open our hearts and minds to know the truth.

The police should be in the position to exercise this right with their close proximity to the public. But they need the moral courage to make the right choice.

I strongly recommend this article for further reading.

http://www-cgsc.army.mil/carl/resources/csi/Zwygart/zwygart.asp

Anonymous said...

Dear Malik,
To me and most other average citizens,the police are there to catch the bad guys and protect the good guys. But it seems that this is no longer true. We experience more and more crime in our immediate vicinity all the time and we live in a neighbourhood that was once considered safe. Recently, we have had to deal with break-ins, stolen sewage grills (people getting badly injured when they fall in), snatch-thefts, car thefts, vandalism, assault,robbery and rape. After being told by police that there is not much they can do because of lack of manpower, we are forced to spend yet more money in already difficult times, on private security. If they can send so many police personnel to stop candlelight vigils, arrest RPK and AI (apparently 10 and 12 respectively), accompany VIPs to dinners and beauty appointments etc etc, why can't they do more to make our neighbourhoods safer for our children? We have written to our MP but other than the police patrolling the area a little more frequently for about a month after that, nothing much has come of it.

Worried citizen

zorro said...

Malik, reading you is an intellectual treat. Without your permission this piece will be this Friday's GUEST BLOGGER.

Ganesh said...

I concur with Zorro. I first saw you on Al-Jazeera and from that day onwards, I mentioned your name to countless others. Reading you blog leaves me without a doubt on why my uncle (mr.sreesanthan)holds you in such high regard. Hope that there will be more like you, RPK and Zaid Ibrahim to bring positive change to Malaysia sooner rather than later. If Indonesia and South Africa have done it, there is no reason why Malaysia cannot. Looking forward to more great articles by yourself. Pleasure reading it. Cheers =)

Reject Mahathirism said...

MAKE YOUR OWN BATTERY-POWERED LAMP FOR ANTI-ISA VIGIL

For photo, see: http://iwfrpk.blogspot.com/

No candles? No problem:

1. Get a papercup.
2. Get a torchlight.
3. Use a pin or needle to poke holes into the paper cup.
4. Tape the papercup to the top of the torchlight with some duct or cellophane tape.
5. Done.

PJ Anti-ISA Vigil
DATE: Sunday, 23 Nov 2008
VENUE: In front of MBPJ (Majlis Bandaraya Petaling Jaya)
TIME: 8pm

TRAVEL OPTION 1
If you’re taking LRT to get to the Anti-ISA Vigil at MBPJ (Majlis Bandaraya Petaling Jaya), get off at Asia Jaya Putra LRT station. If you know the walking route, you can take a 15 minute walk to MBPJ. Otherwise, you can catch the T629 RapidKL shuttle bus which will pass Jalan Yong Shook Lin, where the MBPJ is situated. Just ask the bus driver to stop you at MBPJ.

TRAVEL OPTION 2
Alternatively, if you know the walking route, you can stop at the Taman Jaya Putra LRT station and take a 15 minute walk to MBPJ.

MBPJ address:
Majlis Bandaraya Petaling Jaya,
Jalan Yong Shook Lin,
46675 Petaling Jaya,
Selangor Darul Ehsan.
General Phone line: 79563544

Map of Petaling Jaya:
http://www.mycen.com.my/map/petaling_jaya.html

God bless and stay safe. See you all there!

REJECT FASCISM,
REJECT MAHATHIRISM,
REJECT ISA.

Peter said...

Good news everyone. From now on, town councils will be accountable to residents!!!!!