A Bar Council team which consisted, among others, of lawyers from the Human
Rights Committee and the Kuala Lumpur Legal Aid Centre was commissioned to
monitor the gathering on 10 November 2007. Up to 40 volunteers broke up into 7
teams which were to be stationed at the following ‘hotspots’: (1) SOGO Complex,
(2) Masjid Negara, (3) Central Market, (4) Masjid Jamek, (5) St. Mary’s Church
by Dataran Merdeka, (6) the flagpole at Dataran, and (7) the Jalan Tun Perak/Tuanku
Abdul Rahman intersection. As Dataran was cordoned off, teams (5) and (6) moved
to the vicinity closest to them.
Our terms of reference were to monitor the gathering which was an exercise of
the peoples’ right to freedom of assembly and expression. We adopted a
non–interventionist approach, seeking only to accurately document that which
occurred. After the clashes around Masjid Jamek and Jalan Raja Laut, we followed
the crowd towards Istana Negara to witness the culmination of the event.
At about 5.30pm, we conducted a feedback session, and thereafter, some lawyers
joined the Bar’s Urgent Arrest Team at the Police Contingent Headquarters to
deal with the detention of those arrested at the gathering. The Team stayed till
about 11.00pm when it was confirmed that all detainees had been released.
Some observations follow.
If the size of the participants at the Bar’s Walk for Justice (about 2,000) is
used as a gauge, the crowd at the BERSIH gathering was easily 20 or 30 times
more than those at the Walk. It was not a mere 4,000 or 10,000. A good means of
estimation would be to count the number of those who arrived in the buses. This
may be verified with the organisers.
The numbers arrested at the gathering were far less than those who participated
in the event. We documented only 34 arrests, definitely not 245 as recently
reported. Of those detained, 5 had to be treated in hospital for cuts, bruises,
abrasions and one had a broken leg.
By about 2.00pm, the crowds were forced to gather at different areas as Dataran
Merdeka was sealed off by barricades and heavy police presence. Main routes to
Istana Negara were also blocked. This caused heightened tension and
inconvenience in the city areas.
With the assistance of hundreds of stewards from PAS’ ‘Unit Amal’, it is noted
that the crowds were disciplined and well–behaved. Apart from sloganeering and
attempting to walk to Istana Negara, there were no provocative acts, physical or
otherwise, with the intent to create disorder. On one occasion for example, we
saw a steward seize a political banner which was being carried by a group while
they were walking to Istana Negara.
At Masjid Jamek, human chains were formed by the stewards to
demarcate the crowds from the FRU lines. This ensured that there was a clear gap
between the FRU and the crowds, and further to avoid close confrontation.
Despite this, the FRU decided to forcefully disperse the crowds by dispensing
chemically–laced water and throwing tear gas. Water was fired at the crowds and
not above them, while gas canisters were lobbed a few at a time into the crowds.
No prior warnings were heard. Helicopters were flying dangerously low, and it
drowned out much communication.
In international human rights law, several principles are well–established.
These have been adopted by SUHAKAM in its ‘Report of SUHAKAM Public Inquiry Into
the Incident at KLCC on 28 May 2006’:
• As opposed to interfering or impeding peaceful gatherings, the authorities
have a duty to adopt positive measures to facilitate the exercise of one’s
rights of peaceful assembly and expression (da Leben v Austria). This may
include assisting to control the traffic and providing a safe space for the
gathering to take place.
• Inconvenience caused to the public does not make an assembly a non–peaceful
one (G v Germany). SUHAKAM rightly pointed out in its ‘Report of SUHAKAM Public
Inquiry into the November 5th Incident at KESAS Highway’ that a gathering is
still peaceful even if there are speeches and shouting at the same.
• The authorities may only interfere if the conduct of the participants is such
that harm is caused or likely to be caused to other persons and property, and
others are provoked to violence (Steel v United Kingdom).
Further, SUHAKAM has recommended that should there be a need to use force, such
use of force should follow 5 progressive stages: verbal persuasion, unarmed
physical force, force using non–lethal weapons, force using impact weapons and
finally, deadly force.
Malaysia is a member of the United Nations Human Rights Council. Yet, we still
have some way to go in understanding our international obligations. If our
citizens are to be treated with the respect we deserve, Malaysia needs to ratify
the International Covenant on Civil and Political Rights today.
The police must also re–visit their mode of operation, and take a second look at
SUHAKAM’s recommendations. In particular, our country needs to discard the
‘Licensing Model’ in the Police Act, 1967 and move towards a ‘Co–operative
Model’ in relation to peaceful assemblies where the police and organisers work
together to facilitate the same, rather than constantly struggling with each
other.