The Malaysian Bar takes note of the release by the Human Rights Commission of Malaysia (“SUHAKAM”) of its findings in relation to the Public Inquiry into the Incidents During and After the Public Assembly of 28 April 2012.1
The SUHAKAM panel of inquiry sat for 29 days between 5 July 2012 and 10 January 2013, and heard testimony from 19 members of the public, four media practitioners, 18 police personnel and eight professionals/experts. A team of lawyers from the Malaysian Bar was admitted as observers and was allowed to pose questions to the witnesses and make submissions to SUHAKAM.2 In addition, Christopher Leong (then–Vice President of the Malaysian Bar), who had led the Malaysian Bar monitoring team on 28 April 2012, gave evidence before SUHAKAM. The Royal Malaysia Police (Polis DiRaja Malaysia (“PDRM”)) and BERSIH 2.0 also participated in the inquiry.
SUHAKAM made several pertinent findings, among which:
(1) As the assembly of 28 April 2012 was the first to be held after the coming into force of the Peaceful Assembly Act 2012 (“PAA”) on 23 April 2012, PDRM had been unable to fully observe the provisions of the PAA in its operations and handling of the participants. Nevertheless, PDRM has extensive and sufficient experience in managing large crowds, and ought to have used this experience to facilitate the assembly. PDRM’s approach of “restrain, restrain, restrain, caution and enforce” was inappropriate and did not reflect the spirit of the PAA. Exercising restraint was different from facilitating a public assembly;
(2) PDRM neither assisted nor facilitated the dispersal of participants at the assembly. PDRM had hampered participants from dispersing in an orderly and safe manner by not giving them sufficient and reasonable time to do so, and by firing water cannon and tear gas at the participants as they tried to disperse. SUHAKAM was informed that chemically laced water had been fired through water cannons, and 909 tear gas canisters and 58 tear gas hand grenades had been discharged that day. PDRM had also cordoned off dispersal routes, and in one location had “kettled” participants from dispersing. PDRM had fired tear gas canisters from both ends of the crowd, resulting in participants being trapped;(3) Some Federal Reserve Unit personnel, instead of firing tear gas into the air, had fired the tear gas directly at the participants, injuring them, with one participant suffering a serious eye injury that adversely affected his eyesight;(4) PDRM personnel had used disproportionate force and had misconducted themselves with respect to participants of the assembly and those who had been arrested and were being led to a holding area at Dataran Merdeka. Participants who had left the assembly and who were in hotel or eating premises were nonetheless arrested. People wearing yellow t–shirts were specifically targeted. Those arrested were not informed of the reason for their arrest, and were denied access to legal representation;(5) Some PDRM personnel had assaulted persons who had been arrested or who were under their custody; and(6) PDRM personnel assaulted, injured, intimidated and/or manhandled four media practitioners. PDRM personnel acted in bad faith and deliberately prevented media practitioners from reporting and taking photographs of various incidents of police brutality.
SUHAKAM also expressed its abhorrence at the mistreatment of media practitioners and the abuse of their rights to carry out their duties without hindrance or fear of physical harm.
The Malaysian Bar supports the 25 recommendations made by SUHAKAM, as well as SUHAKAM’s call for implementation of the recommendations of two earlier SUHAKAM public inquiries on the conduct of PDRM. The fact that many of these previous recommendations have not been implemented is indicative of PDRM’s reluctance to recognise their responsibility to promote, practise, and protect human rights in Malaysia. SUHAKAM noted a lack of cooperation by PDRM, in that there was a lack of pertinent information provided by PDRM in the inquiry; they failed to produce relevant witnesses to assist in the inquiry; they failed to provide the names of police personnel on duty at Jalan Tun Perak that day; and they failed or were unable to identify the police personnel depicted in the video clips, notwithstanding specific instructions from SUHAKAM to supply the information upon the witness being recalled to the stand.
SUHAKAM noted that as at January 2013, none of the police reports made about incidents of police brutality had been successfully determined by PDRM. Moreover, while two PDRM personnel had been charged in court, both were acquitted for lack of identification. Given these findings, and especially the significant failure of PDRM to police itself and discipline errant members of the force, the Malaysian Bar calls on the Government and PDRM to institute better safeguards against police misconduct and misbehaviour.
Based on the gravity of the findings by SUHAKAM, and the amount of time spent in investigations, it is patently clear that the Enforcement Agency Integrity Commission that has been set up by the Government would not be sufficient to act as a safeguard and protector of the public, since it has to monitor 17 other law enforcement agencies in addition to PDRM. The Malaysian Bar reiterates our call on the Government to immediately establish the Independent Police Complaints and Misconduct Commission (“IPCMC”), and to ensure transparent civilian oversight of, and public accountability by, the PDRM. PDRM must strengthen respect for human rights amongst its officers, and its rank and file, and be seen to punish misconduct by its personnel.
PDRM must make public its standard operating procedures, namely the Inspector–General’s Standing Orders, in order that it is clear how PDRM is to act under various circumstances. The principles enshrined in the United Nations Code of Conduct for Law Enforcement Officials and the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials must be the basic guidelines that form the core foundation of law enforcement officials’ conduct. In this way, we can improve policing standards in Malaysia, enhance professionalism in the police force, and engender consistent respect for law enforcement personnel.
19 April 2013
1 The public assembly was commonly known as BERSIH 3.0.
2 The written submission of the Malaysian Bar is available here.