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

Anwar Ibrahim Arrested

At 12.55 pm, outside his house. He was due to give a statement to the police at 2.00 pm.

We should remain calm and await further developments. From media reports, it would seem that Anwar Ibrahim was prepared for this and has lawyers at the ready. If he is being arrested in connection with the alleged sodomy, then he should be brought before a magistrate within 24 hours and be charged unless a remand order is obtained to allow for further investigation. The offence is bailable and I see no reasonable basis for bail being refused.

The authorities must take every care to ensure that nothing untoward occurs. We in turn should not be reactionary.

MIS

Kamunting ISA Vigil Without Incident

Just spoke to Haris Ibrahim. FRU was present but nothing untoward happened. The event was allowed to proceed and wrapped up by 9.

MIS

The Fact Is, Mr Chor

(Mr Chor Chee Heung is the Deputy Minister for Home Affairs. Unsurprisingly, he gave the usual political answers when confronted in Parliament over the Bandar Mahkota Cheras incident in which according to media reports Chang Jiun Haur was assaulted and battered by FRU officers)


For goodness sake, Mr Chor, why does every answer have to be a political one.

The fact is a young man lies in the intensive care unit of a hospital. He was put there by some twenty police officers who beat him up. They say that he was trying to run them over but not a single police officer appears to have been injured. There is also a great deal of doubt as to whether the young man was trying to run over police officers, or anyone for that matter, or was simply trying to leave the scene, perhaps realizing his mistake for having stopped in the first place.

And the fact is that no amount of provocation short of a direct threat on life warranted a reprisal of this form by the police officers.

Perhaps, Mr Chor, you would care to remind yourself, and the Minister, that you are not the Inspector General of Police and as such, you are not directly responsible for the misconduct of police officers. Perhaps you would even care to remind yourself, and the Minister, that your ministry is responsible for determining fairly what it is that happened and to take steps to ensure that it does not happen again.

The fact is, Mr Chor, the Royal Malaysia Police is regrettably virtually synonymous with police brutality. I do not say this of my own accord, I am merely reiterating what it is a Royal Commission of Enquiry had come to conclude. You may recall that the Royal Commission had strongly recommended the establishment of an independent complaints and misconduct commission to address the kind of conduct that was making Malaysians lose faith in the police force. You may recall the proposed independent commission by its acronym, IPCMC, just as you may recall that your government has failed to establish the IPCMC despite promises that the recommendations of the Royal Commission would be given effect.

Incidentally, Mr Chor, you may also wish to remind yourself that one of the reasons that the Commission of Enquiry felt the need for the IPCMC was a seeming unwillingness on the part of the police force to investigate its own conduct. Were it otherwise, why would the Royal Commission have proposed a draft law for the IPCMC which declared, in its preamble:

“An Act to establish the Independent Police Complaints and Misconduct Commission whose principle functions are to receive and investigate into complaints about the Royal Malaysia Police, to detect, investigate and prevent police corruption and other serious police misconduct, to set out the powers and functions of such Commission for improving police integrity, reducing misconduct and building public confidence and to ensure that there is vigilant oversight in Malaysia of the Royal Malaysia Police…”

It may also be useful to take note that the Royal Commission concluded in paragraph 2.6.8 of its report (page 53) that there was abuse of power on the part of some police personnel and that if those guilty of abusing their power were not punished, this problem would persist. There appears to have been no action taken, and if there was it was not publicized, in connection with the shootings at Pantai Batu Burok late last year, Bloody Sunday and the other very public instances of apparent police misconduct.

This puts paid to the suggestion on your part, Mr Chor, that the police force is capable of investigating the events at Bandar Mahkota Cheras fairly and professionally.

The fact is, Mr Chor, your Ministry is failing the rakyat grievously for failing to take meaningful steps to address this situation. Its continued inaction has resulted in Chang Jiun Haur being in hospital, the tears of his parents and family streaming into the river of tears of other parents, other families who have similarly suffered.

There are questions that need to be answered and action that has to be taken. We are primed however for no further action. In fact, Mr Chor, if the events of Pantai Batu Burok or the HINDRAF Batu Caves incident are anything to go by, we can reasonably expect Chang Jiun Haur to be charged in a court of law soon. Nothing surprises us anymore, your administration is capable of almost anything it would seem.

But then, Mr Chor, I suppose politics would make that an acceptable end for you. And you and your colleagues wonder why so many Malaysians are so sick of the Barisan Nasional?

MIS

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

Not Urgent, Mr Speaker?

(Malaysiakini reports today (“Motion to debate “bloody ceramah” rejected; 11.09.2007)) that the Speaker of the Dewan Rakyat rejected for debate an urgent motion moved by Salahudin Ayub (PAS-Kubang Kerian) to debate the tragedy of Pantai Batu Buruk. The primary reason for this rejection was reported as there being no urgency as the matter was “just a riot” that was under investigation by the police. The Speaker however appears to have agreed that it was a matter of public interest)

Violence, aggression and arrogance. These are the walls behind which our leaders claim to be protecting democracy. They are the walls that keep us away from a fair, just and accountable government. From democracy.

Democracy can only flourish on a bed of truth. Information is key to our freedom of choice. The search for truth, if effected by peaceful means, can never amount to a threat to national security.

The suggestion that a peaceful gathering of Malaysians interested in hearing a viewpoint, alternative or otherwise, could be prejudicial to security or a disturbance of the peace is insulting.

It is insult to those who were present at Pantai Batu Buruk. It is an insult against those of who attended the demonstrations against petrol and toll hikes. It is an insult against any right thinking Malaysian who believes in the freedoms our constitution enshrines. It is an insult to those who struggled before us to pave the way to Merdeka.

Peaceful gatherings are a means of expression throughout the world. This is more so where other forms of expression have been curtailed. It is only in nations where there is no rule of law or the rule of law has broken down that peaceful gatherings are deemed to be a threat to national security. We appear to be such a nation. Time and time again, reports have been issued about the use of force to disperse peaceable gatherings. Time and time again, these reports have alluded to the underlying freedom to assemble and express. Time and time again we have only had more violence in response.

Two Malaysians were shot for making the mistake of assuming that they had a right to defend their constitutional right to free choice. A right to defend themselves against the violence used to quash their freedoms. We are told that they were shot as a matter of self-defence. The question is whose?

Does it matter that they and the hundreds who were trampled under jack-boots, pummeled with batons, pulverized by high pressure water jets laced with chemical additives even as they struggled against the tear-gas did not have the means to defend themselves? Does it matter that the police waged a campaign of aggression as a part of a strategised campaign and given the means to participate?

The struggle for merdeka began long before the Union Jack was lowered. It began long before the diplomacy began. The struggle for merdeka began as an understanding in the hearts of those who saw a life beyond colonization. In attempting to map out their vision, some of them risked arrest, prosecution and brutality at the hands of the colonial authorities then. They accepted that risk, paving the way for the negotiations that gave us our freedom. That gave us Merdeka.

And does it matter that the tragedy of Pantai Batu Buruk would not have happened if the powers that be had allowed these Malaysians to do what it is that they had come to do? To listen.

Malaysians are not the enemy. Our blood, sweat and tears nourish the soil we stand on. Tanah tumpahnya darah ku. The blood shed - be it from having been beaten by batons, or pummeled with fists, or kicked with boots and now from a gunshot - is being shed by Malaysia. For when we bleed it is the nation that bleeds.

Guns, water-cannons, tear-gas canisters, batons, shields, sticks and stones. Prosecutions, jail, detention without trial. They cannot, must not be allowed to, stand in the way of truth.

Freedom is our birthright. Malaysian blood is being shed over that freedom. Is that not a matter of urgency?

MIS

Riot? What riot?

Once again we have the government condemning the so called rioters at Pantai Batu Buruk. We hear of a need for stern action.

The government’s response is typically what it always is in situations like this. Sweeping, muddling and having a tendency towards obscuring the truth of the matter rather than accounting for it.

Could what happened on Saturday night and early Sunday morning be characterised as rioting? Is an expression of disagreement with government policies articulated through state machinery an act of rioting? More so where the laws are enforced in way which is undermining of the very freedoms the State is bound to protect.

Consider this:

• The people gather to hear viewpoints.

• These viewpoints are matters which they are guaranteed a right to hear. These viewpoints are matters which go to the freedom to choose so essential to democracy.

• The people do not have access to these truths due to restrictive policies where the media is concerned and a bias against any views other than those of the government.

• Laws are designed to restrict access to such viewpoints.

• As a result, citizens have no real and meaningful avenues to get these viewpoints other than to attend events like the BERSIH event on Saturday night.

• The event, and other such events, are impeded by a unconstitutional permit application processes.

Where do the people turn to? What choices do they have?

I do not countenance the use of force, any force. But I am hard-pressed to conceive of any practical alternative those who made the effort to make their way to Pantai Batu Buruk had. It would appear that all attempts to reason with the police had failed. Were it not the case, there would have been no reason for the police, who had been present from as early as 5 pm, to have engaged with water cannons and tear gas at 10.30 pm. The fact that the crowd remained until that point time clearly demonstrated their desire to have the event proceed. The fact that the police only engaged at 10.30 shows that there was no disturbance before then.

What does one do when one’s democratic rights are wrenched away through authoritarian measures? If it was an enemy of the state who had done so, those who reacted on Saturday night would have been given medals and called ‘freedom fighters’.

Further if it is true, as the Opposition claims, that there were ‘agents provocateurs’ who incited the events that took place, could the events at Pantai Batu Buruk be condemned as they have been? When it is the police force itself that engages in the use of methods designed to agitate and create unrest, can the unrest instigated in this way be properly made the basis of aggressive response of the kind that we saw over the weekend, and at a high number of peaceful civil society public gathering over the last two years?

‘Agent provocateurs’ incite crimes. They cannot be equated with undercover agents. The actions of the former more usually create the criminal intent later made the basis of action, either by response through the use of force or through prosecution. The actions of the latter however do not create the criminal intent and instead more usually allow in the uncovering of the criminal intent. Agent provocateurs are criminals themselves.

Who is to be blamed, if the accusation of the Opposition is true?

The human condition should not be put to test by the authorities when they know that there is a high probability of a response. It is like playing with fire.

MIS

Of Peaceful Gatherings, The Freedom Of Speech And Live Ammunition

You would have read or heard of the shocking events in Kuala Trengganu late last night and early this morning. Let us look at these events in perspective.

A coalition aimed at nothing more than a free and fair electoral process, BERSIH (Coalition For Free And Fair Elections), is on a road show aimed at promoting awareness of the need for free and fair elections. This is, in my mind, a nation building effort in light of concerns about the state of the electoral process in Malaysia.

Last night, as a part of the on-going roadshow, a forum was intended to be held at Pantai Batu Buruk, Trengganu. A report appearing in Malaysiakini (Live Bullet Fired At Angry Ceramah Crowd) tells us that the organizers had applied for the necessary permit and had assumed that the ‘event would be given the green-light’. BERSIH events appear to have been held prior to this without any problem (see here for events held to date).

Tan Sri Khalid (PKR) and Mohamad Sabu (PAS) were to speak.

The police refused a permit. No explanation appears to have been given for this refusal. [Update: The updated Malaysiakini report states that a permit was in fact given but withdrawn at the last minute]

From the Malaysiakini report, a report appearing on Harakah online and a sequence of events provided by BERSIH (see here), the following can be discerned: a police cordon was established from as early as 5.00 pm. A stage set up for the event was ordered to be brought down at about the same time. A crowd began to gather. There was a significant police presence. By 8.00 pm, the Riot Squad (Federal Reserve Unit, FRU) began to direct the dispersal of the crowd. The crowd grew in number. At about 10.00 pm the stage set up for the event was torn down. The crowd became agitated and began to engage with the police officers. By 1o.30 the FRU began using water-cannons and tear gas, and continued to do so until about 1.30, at which point the FRU began to withdraw.

Live ammunition was used. The Malaysiakini report quotes the the Trengganu Police Chief as admitting that a shot was fired. He stresses that only one shot was fired. The Bersih and Harakah reports suggest otherwise.

As a consequence 2 persons, described as youths in the Harakah report, have apparently been injured (one, Suwandi Abdul Ghani, directly by the bullet and the other by 'percikan dari beberapa tembakan'). The Trengganu Police Chief asserts that this was in defence against an assault by a group of individuals. No suggestion has been made that any of the said individuals were armed. Further, no explanation has been offered as to how and why other police officers were not on hand to assist.

The BERSIH report states that the shot to was fired by a plain-clothes officer who had apparently infiltrated into the crowd. He was recognised and chased by a group of individuals who were throwing stones, apparently firing at them as he was attempting to evade them.

The Harakah report suggests that other shots were fired. No report states that a warning shot was fired first.

The matters described above are shocking, not only for their brutality but for their implications.

I believe the police acted unconstitutionally and, as such, wrongfully . Malaysians have a constitutional right to assemble peaceably and without arms (Article 10(1), Federal Constitution). This is a right that can only be curtailed by Parliament through restrictions deemed necessary or expedient in the interest of the security of the Federation or any part thereof or public order (Article 10(2), FC). The provisions of the Police Act prohibiting unlicenced public gatherings and making it mandatory to apply for licences for public gatherings must be read in the light of the constitutional guarantee.

Malaysians also have the right to express themselves (Article 10(1)). They also have a constitutional right to free and fair elections. The expression of concerns about the electoral process and the need for reforms is a matter of great constitutional significance. This goes to the heart of democracy in this country. The refusal by the police to grant a permit for the event, such refusal being by law permissible only where the supervising police officer concerned is satisfied that the event is not prejudicial to the security of the Federation or likely to cause a public disturbance, was an act in violation of both letter and spirit of the Federal Constitution and an exercise in arbitrary decision making.

The use of any measure to impede the right of assembly and expression and further, the use of force and all such measures employed, is unconstitutional. The use of force and live ammunition is of grave concern. The police were not dealing with armed assailants. They were dealing with person-on-the street Malaysians.

The matters above suggest that the authorities, and any government that supports them by leaving their actions unaccounted for, believe that:

• events aimed at promoting awareness of the constitutionally provided free and fair electoral process are events that are prejudicial to the security of the Federation or will cause public disturbance;

• use of force is permissibe to disperse gatherings of Malaysians interested in hearing more about the process in the exercise of their constitutional right to the freedom of assembly and expression. Such use of force would include shooting at individuals who are not bearing firearms or, apparently, no other arms; and
  

• police personnel deployed to deal with peaceable gatherings where no arms are apparently being carried are permitted to carry arms and live ammunition and use such weapons at their discretion.
  

If we are a constitutional democracy, as the Prime Minister says we are, how has it come to this? A Malaysia where force of arms is used against Malaysians exercising their constitutional rights to freedom of choice. What happens next? The dismantling of general elections?

For those of you who need more proof of the collapse of the Rule of Law in this country, look no further.

What say you, Mr Prime Minister?

MIS