Release The HINDRAF 5

A while ago, we heard from the Government (of the Federation) of how the rakyat wanted the Internal Security Act to remain on the books. I have my reservations about the truthfulness of that assertion. Whatever the case, I believe that if the Barisan Nasional component parties are sincere in their self-declared aim of wanting to re-evaluate themselves, they must question their continued support and use of anti-democratic legislation like the Internal Security Act, the Official Secrets Act and the Printing Presses and Publications Act.

In voting as they did this year, Malaysians were not only protesting, they went in search of a viable alternative. The Barisan Nasional must realize that it had allowed itself to become, or perhaps be portrayed as, a corrupt regime that considered itself above the law. This had largely been driven by the repressive methods that were allowed for by these self-serving laws. So much so that the rakyat had come to understand that the use of these laws, in particular the ISA, were not so much aimed at protecting the security of the rakyat and the nation but rather the interests of the Barisan Nasional.

If the Barisan Nasional wants to remain relevant, they will have to confront reality. The rakyat have spoken. They have not only signaled their rejection of the selfish ways of the coalition, they have also signaled their rejection of the methods the coalition has employed to its own ends.

Last December I wrote of how there was no justification to detain the HINDRAF 5 under the ISA. If they had committed crimes, the only proper thing to do was to charge them in a court of law and let due process run its course. I maintain this position.

In this context, the outcome of the General Election proves two things. Firstly, how deeply the issue of marginalization resonates with the rakyat. Whatever the posturing and the rhetoric, marginalization was the primary cause that underlay HINDRAF efforts.

Secondly, the outcome clearly establishes how Malaysians have matured far beyond May 13th 1969. If the Barisan Nasional government were to be believed, Malays would have only voted for Malays, the election result would have led to severe reactions and there would have been blood flowing through the streets as Malaysians turned on each other. As we saw, that was not the case. Malaysians transcended the parochial expectations of the Barisan, forging together in a common cause.

It is on the premise that I once again question the truthfulness of the stated belief of the Barisan Nasional government that the HINDRAF 5 are a threat to national security. The groundswell we experienced last Saturday clearly shows that they are not. Their detention cut, and continues to cut, into the consciousness of Malaysians of all ethnic backgrounds.

Mr Karpal Singh has called for the release of M Manoharan (Malaysiakini; ‘Karpal: Release Manoharan now’). He says, in effect, that by having voted for him in the context of GE2008, the people have declared that he is not a threat to national security. I agree with Mr Karpal but go further. The logic applies equally to the other detainees.

The step of releasing the HINDRAF 5 is an obvious choice in determining which of the series of conciliatory measures that the Barisan Nasional government will have to undertake first in order to win back the trust of the rakyat. Repealing the OSA and permitting publications of newspapers without permits follow closely behind.

Release the HINDRAF 5.

MIS

HINDRAF 5: ISA Detentions Side-Step Justice System

What need was there to detain the HINDRAF five under the Internal Security Act?

The ISA is a draconian law. It has no place in the modern and mature society that Malaysia is. It has been condemned internationally and locally. The manner in which the ISA allows for subjective detention without trial is violative of the fundamental liberties of persons detained in a manner that cannot be justified in any circumstance.

The Government’s position is that the five are threats to national security and public order and that they are a menace to the public for having lied about the Government in accusing it of ethnic cleansing, for having organized illegal assemblies and for having had links with terrorist groups (‘5 Hindraf leaders a threat to national security’, NST, 14.12.2007).

These accusations reveal the possibility of the five having engaged in criminal activity. Three of the five have already been charged with sedition (though I wish to stress that I do not view the offence of sedition as being constitutional). Chapter VIA of the Penal Code was recently added to allow for the prosecution of persons involved in terrorist activity. Appropriate arguments could be mounted to oppose bail to ensure that pending the trial of the five, they would be prevented from fleeing the jurisdiction and, arguably, from repeating the offensive activity.

We cannot lose sight of the fact that no matter how heinous the activity complained of may appear, accusations remain mere accusations until and unless they are made out in a court of law. Every person is presumed innocent until proven guilty in a court of law.

The detentions are therefore clearly preemptive, allowing for a side-stepping of a criminal justice system that is aimed at ensuring that no person is denied his constitutionally guaranteed right to liberty save where it is denied through an exercise of judicial scrutiny replete with inbuilt safeguards aimed at ensuring that an innocent person is not mistakenly imprisoned.

The Government would have us believe that rather than preemptive, the detentions are preventive. The crucial question is on whose account. The Government can hardly be considered to be objective bearing in mind the cause HINDRAF espouses. We have heard much of the Government having taken grave exception to the positions HINDRAF has taken. In the very public fanfare surrounding the official reaction to HINDRAF, we have been made to understand that the Prime Minister is angry at the suggestion of ethnic cleansing. He is outraged at the lies that he feels HINDRAF has allegedly told of his Government ('Governmnent doing its best for Indians', NST, 02.12.2007; 'PM: They want to destroy the country', Malaysiakini, 13.12.2007). He is also, by virtue of being the Internal Security Minister, the authority responsible for the issuance of detention orders.

Anger is not sound basis for objective decision-making. It is further not a proper legal basis for the issuance of a detention order.

In the same vein, political expediency cannot be allowed to become a factor, more so where the detentions are a ‘face saving’ measure. And as much as the Government may deny this to be the case, the truth is that the Government is acting in its own cause. This is as compelling a reason as any to not invoke the subjective processes of the ISA.

The Prime Minister has publicly declared that the authorities have evidence of the alleged terrorist links HINDRAF is said to have ('Close watch on Hindraf', The Star, 08.12.2007). Minister Nazri has also publicly declared the existence of such links ('Link is with Tamil Tigers and India's Rss, says Nazri', The Star, 08.12.2007). If this is the case, then there is more reason for the five or any number of other persons involved to be appropriately charged and prosecuted.

The detention of the HINDRAF 5 may also have the retrogressive effect of, by reason of its ‘chilling’ effect, stifling genuine civil society efforts aimed at promoting discourse on the path this nation must take to ensure sustainable and inclusive development. This would include efforts by various interest groups aimed at addressing the underlying grievances that have caused citizens to peaceably assemble these past five weeks or so. It would be regrettable if these groups, in particular that part of the Indian community that, no matter the rhetoric and the politics of the situation, have felt represented in a way that they have not before were to take from the detentions a signal that the Government does not consider their situation and grievances as being of sufficient importance.

MIS

Free The 31

31 persons who participated in the HINDRAF rally have been charged with attempted murder. From a report by Malaysiakini (‘Attempted muder charge for Hindraf protestors’, 04.12.2007), it appears that the charge has been framed on the basis of an apparent intent to murder a police officer, Dadi Abdul Rani. The so-called attempt was alleged to have occurred during the debacle at the Batu Caves.

Let us leave aside the merits or de-merits of the charge for the moment and consider their context. The events at Batu Caves are now notorious. The version presented by the police was that they were compelled by circumstance to resort to tear gas and water cannons. The objective evidence (see Jeff Ooi's Minority Report series) points to a very different scenario; in the early hours of 25th November, persons at Batu Caves, and I use the word ‘person’ advisedly as it is not clear at all that these persons were going to participate in the HINDRAF rally, were corralled into the Batu Caves temple compound. Police officers then launched an offensive using tear gas and water cannons. It was during this melee that bricks and pipes were apparently thrown, it would appear in response to what the police were doing.

The Attorney General is quoted in the Malaysiakini report as saying, "They threw bricks at his head. Do you think it will not cause death?".

It does not follow that every person who throws a brick at someone intends to commit a murder. To have charged the accused for attempted murder, the Attorney General in his capacity as Public Prosecutor, must have been satisfied that every one of the 31 persons had intended to cause grievous harm to Officer Dadi of such a nature that his death was not unforeseeable. The Attorney General must be satisfied that there is enough evidence of such intention, and of actions motivated by such an intention, that were such evidence left unrebutted, a court would convict the 31 persons.

The Attorney General appear to think that there is sufficient evidence. From reports, this appears to be on the basis that anyone who threw a brick at the head of someone would have reasonably foreseen that the target might be injured to an extent that the target died.

In my view, this would not be sufficient. There has to be evidence that these 31 persons specifically attacked Officer Dadi. There has to be evidence that having chosen to attack Officer Dadi, these 31 persons then proceeded to attack him in such a way that his death by such attack would be foreseeable.

The events at Batu Caves, in my view, and I have not had sight of the charge sheets, do not allow for a clear conclusion of this nature to be drawn. Is the Attorney General saying that police officers who have beaten demonstrators or participants of rallies with batons on their heads are also culpable for attempted murder? Is he saying that the police officer who drew his firearm and shot 2 persons at Pantai Batu Burok also attempted to murder the persons he shot. I think not, not because the Attorney General has turned a blind eye to those events but because the actions of those police officers, as offensive as they may have been, simply do not form a basis for such a conclusion.

If they do, then the Attorney General is guilty of selective prosecution. Though in law the Attorney General as the Public Prosecutor has the absolute discretion to charge a person of a crime, this discretion not being justiciable, his discretion must be exercised in an even handed manner and not at whim and fancy. The Federal Constitution guarantees equal protection before the law. This precludes arbitrary invoking of legal process.

From this perspective, it is not unreasonable to think that the decision to charge may have been prompted by other considerations, principally a desire to stamp out any attempt to express disagreement and frustration with the way things are. The discretion to mount prosecutions has in this way been harnessed to the machinery of a government that tolerates little or no resistance as it engages in a perverse political dance with the leaders of HINDRAF.

How else does one explain the fact that the leaders of HINDRAF have not been charged with any crime though, if one believes the statements made by the authorities, there is sufficient basis for a prosecution? How else does one justify the presence of the Attorney General, recently returned from the International Court of Justice in the Hague, in the Klang Sessions Court?

The decision to charge the 31 of attempted murder, paving the way to a refusal of bail, was cruel. Though attempting to inflict bodily harm is not to be condoned, the authorities must see that the 31 and their families, their children, have been made pawns. They have been made to suffer, and will continue to do so as they await their trials, for nothing more than being in the wrong place at the wrong time.

Free the 31.

MIS

A Thought On Rallies: The Bar, BERSIH, HINDRAF And Those To Come

"At the start of the dictatorships in Chile, Argentina and Uruguay, the only public gatherings permitted were shows of military strength and football matches. In Chile, wearing slacks was enough to get you arrested if you were a woman, long hair if you were a man. "All over the Republic a thorough cleansing is under way," declared an editorial in a junta-controlled Argentine newspaper. It called for a mass scrubbing of leftist graffiti: "Soon enough of the surfaces will shine through, released from that nightmare by the action of soap and water."

In Chile, Pinochet was determined to break his people's habit of taking to the streets. The tiniest gatherings were dispersed with water cannons, Pinochet's favorite crowd control weapon. The junta had hundreds of them, small enough to drive onto sidewalks and douse cliques of school-children handing out leaflets; even funeral processions, when the mourning got too rowdy, were brutally repressed. Nicknamed guanacos, after a llama known for its habit of spitting, the ubiquitous cannons cleared away people as if they were human garbage, leaving the streets glistening, empty."

(Naomi Klein, 'The Shock Doctrine')


"In spite of fairly regular multi-party elections and some other features requiring accountability of the regime, the Malaysian state has been authoritarian since the colonial period, though analysts have charcterised the political system as semi-authoritarian, semi democratic, or quasi-democratic. Although these qualified descriptions suggest that some democratic aspects and forms remain, most of the minimal conditions necessary for the practice of democracy in the Schumpeterian sense, particularly fair elections, adequate opportunities for independent political opinion-making and political organisation, and minimal protection for the individual from arbitrary state power, hardly exist in Malaysia. Further, as Crouch points out, even the minimal civil liberties and democratic procedures that exist are allowed as long as the position of the ruling elite is not seriously threatened, let alone undermined; he observes that such rights have been 'quickly modified or abolished when elite interests were threatened'. This has been true of amendments to the Federal Constitution and other legislation, as well as to the rules and regulations governing UMNO, which has increasingly enjoyed and deployed the powers and privileges of long term incumbency since 1955 in a seemingly one-party state."

(Terrence Gomez and Jomo K.S., 'Malaysia's Political Economy: Politics, Patronage And Profits')

The Personal Dignity Of HINDRAF Supporters

Judging by the report by Malaysiakini “Tear gas fired at defiant protesters”), it seems as if the attempt to impede the HINDRAF Rally has descended into chaos. The police have come down hard, its treatment ‘heavy handed’. Bar Council monitors have declared their unhappiness with the way the police are handling the matter.

From the report it would seem that even before 7.40 am, tear gas was fired into crowds at Jalan Ampang, KLCC and Batu Caves. At 9.30 am, tear gas was still being fired. It appears also that participants are being beaten, women and children not being spared.

The question is why. The police obtained an order allowing officers to arrest on sight (see Malaysiakini report “Cops obtain rare court order against HINDRAF”). If there are persons breaching the order then arrests should be made and, in fact, it appears that arrests have been made already.

The order DOES NOT authorize the use of force. I would go further, the order, in allowing for preemptive measures, lends against the use of force.

And, of course, the question that begs an answer is why stop the rally in the first place. The question of a permit, or the lack of one, is a convenient and self-serving one.

How does this rally, planned for a Sunday morning, differ from the one organized by UMNO Youth during Condoleeza Rice’s visit to Kuala Lumpur on a Friday afternoon? That demonstration took place in the same vicinity, also had fiery and inflammatory speeches and was directed to a person or organisation other than the Malaysian government. That demonstration was aggrandized by the local media, with photographs of a defiant Khairy Jamaluddin, in arm sling to boot, gracing the leading pages (if not the front pages) of the mainstream print media.

It is readily obvious to all that despite the great show, there was never any intention on the part of the police to use force where the UMNO Youth demonstration was concerned. None was in fact used. The contrast with action taken where the HINDRAF Rally is concerned is manifest.

The UMNO Youth demonstration was as much about personal dignity as the HINDRAF Rally is. For, at the heart of the HINDRAF cause is a serious complaint about the marginalizing of the Hindhu community and a plea for recognition of the plight of this particular marginalized community.

I do not necessarily agree with the manner in which HINDRAF has decided to espouse its cause. Though I recognize the point HINDRAF is making, I believe that we should be fighting for the cause of all underprivileged and marginalized Malaysians. Having said that, the apparently inconsistent stance of the Police and the Government where rallies are concerned can only lead one to a conclusion that there may be some truth to what HINDRAF is saying.

I offer a prayer for those on the ground now and brace myself for the possibility of great violence.

The police should have known better than to use force to turn away people who have risen to claim what little dignity circumstance has left them with. Being at the point where one is compelled by sheer force to make a choice between standing firm on one’s principles, and in one’s beliefs, or turning away is not an easy one. Having made the decision to march this morning, many, if not all, would have made the decision that life was not worth living unless one could stand with dignity.

This is a decision that no one, not even the Police, is in any position to challenge.

MIS

HINDRAF Rally: 25th November 2007

The National Human Rights Society (HAKAM) is gravely concerned at the refusal by the Government of Malaysia and the Royal Malaysian Police to allow for the intended peaceable assembly of persons supportive of the cause espoused by the Hindhu Rights Action Force (HINDRAF) this Sunday. HAKAM is equally concerned at the measures aimed at preventing HINDRAF from continuing with the intended assembly including the arrest of three of the principal organizers and the procuring of a restraining order at large against all persons intending to assemble in support of the HINDRAF cause.

HAKAM believes that it is the right of every Malaysian to express his or her views in peaceable manner, no matter how unpopular those views may be. The right to assemble peaceably is a right guaranteed under the Federal Constitution. Though the Government and the Police are charged with the responsibility of maintaining public order, they are equally responsible for ensuring that citizens are free to express themselves. Peaceable demonstrations are universally recognized as legitimate means of expression. There is nothing to suggest that the HINDRAF assembly is intended to be anything other than a peaceable demonstration.

If the Government or the Police are concerned that there are elements that may lead to public disorder, then it is incumbent upon the Police to identify those elements and protect those who wish to assemble peaceably from them. Preventing HINDRAF and its supporters from assembling would only facilitate the purpose of those who wish to impede HINDRAF and its supporters. This would not only be unreasonable but would also render illusory the rights of assembly and expression.

In this vein, the preemptive measures should not have been taken. The situation did not warrant the obtaining of a preemptive restraining order.

Further, HAKAM deplores and condemns the invoking of the Sedition Act by the authorities. HAKAM views the Sedition Act as unconstitutional and as an outdated legislation that has no place in the modern progressive society that Malaysia is today. HINDRAF and its supporters have every right to express their dissatisfaction with the state of affairs even where such expression is not necessarily popular. Majority rule does not justify the denial of minority voices. The attempt to deny the minority voice in these circumstances only goes to reinforce belief that in Malaysia it is only the majority voice that matters. This is a belief that is unsupported in fact or law.

HAKAM urges the Police to allow HINDRAF and its supporters to assemble peaceably this Sunday and to protect them from untoward harm. HAKAM further urges the Police to exercise restraint and to not resort to force.

Malik Imtiaz Sarwar
President, HAKAM
24th November 2007