To recap, prior to the BERSIH 2.0 rally, its organisers failed to get a judicial review on the refusal of the police to issue a permit for the planned rally. THE EO/PSM 6 were arrested and have been charged for the possession of subversive documents. My take on the latter is that they should have either been held for offences related to the Societies Act and/or the Internal Security Act.
Now comes the conduct of the government and the police, and of certain individuals during the rally of 9th July.
THE ELECTIONS COMMISSION
The Elections Commission had had ample time since BERSIH 1.0 to go out and explain to the masses, steps taken to improve the elections process as well as allay the fears of the general public. If it did, it was not adequate.
When BERSIH 2.0 presented its eight demands, the Elections Commission should have been more open to engage BERSIH. If my memory serves me well, someone jumped the gun too soon by declaring that BERSIH has a hidden agenda. Hidden agenda or not, the EC should have been more open to a face-to-face engagement. Only after did the EC invite BERSIH for a dialogue on its eight demands. I stand corrected on this matter.
To be fair to the police, they have issued several warnings that the planned rally was illegal as no permit was issued for it. As I have mentioned in a previous posting, what should have happened was for the organisers of the rally to take the matter to the court for a judicial review to challenge the police’s decision, but this was not done.
During the lockdown of the city of Kuala Lumpur, the police should have placed barbed wires, or simple tapes to depict the boundaries the demonstrators should not breach, and stand well away from that line. A breach of the line would signal the advancement of the demonstrators despite being warned to keep well clear. If the threshold was crossed, preventive action by the police is permissible.
The police acted under the Public Order (Preservation) Act, 1958, when dispersing the rally. For those of you who mentioned “police brutality” you might wants to see what the Act actually says:
“Any police officer may, if necessary for the public security to use such force as may be necesary to disperse any procession meeting ………….. which force may extend to the use of lethal weapons”
In short, any police action that involves shooting of live bullets at protestors, and anything else lesser, is NOT regarded as brutality by the Act.
THE UNINFORMED PUBLIC
If I may digress a little, one of the reasons the daughter of a certain former Prime Minister joined the rally because she saw the police and military doing joint riot-control exercise, and feared that another Tahrir Square would happen in Malaysia. Let me tell you that that is a common practice. I had had that opportunity to attend one of those training sessions when I was a serving military officer. So, it was an unfounded fear of the unknown.
During those training, to reflect back on the use of lethal weapons stated by Section 5(2) of the Public Order (Preservation) Act, 1958, we were trained to disperse rallies using all of the methods allowable by the law, including the use of lethal weapons. However, it was not to be used indiscriminately: only proportionate and focused on those creating trouble.
As for the Defence Minister, he made a statement that was uncalled for: that the military was ready to take over when asked to. Probably, he was like another young politician who was more than eager to put on the military uniform. Let me inform the general public as it is my duty to do so, that the King has declared Emergency FIVE times in Malaysia, yet not once was the military asked to take over. It was always the police that was put in charge with the military assisting when required. The duty to preserve public order lies with the police, and not with any other organisation.
When granted an audience with the King, it was suggested that a stadium be used to hold the rally. This would have been the best course of action to achieve the objective, and that was to hold a rally, explain to the masses what was being demanded, then representatives of BERSIH 2.0 present those demands to the King. However, had the memo been given to the King during the meeting itself, there would not have been any need for any rally.
The government should have allowed the organisers to use Stadium Merdeka, or Stadium Shah Alam as offered by the Menteri Besar of Selangor, with proper planning and coordination with the police, disruption to traffic would be minimised.
In addition, calls a few days prior by political leaders representing the opposition for BERSIH to gather at three separate venues, then march to the stadium was further seen as an incitement to cause public disorder, as a march was the very thing the police was against. This, too, was seen by the general public that BERSIH 2.0 was not apolitical.
To sum it all up, the handling of the BERSIH 2.0 issue was riddled with flaws starting with the organisers not going to the court for a judicial review, the Elections Commission not engaging the public since BERSIH 1.0 to explain on the improvements made to the elections system; an opportunity they had since 2008. The presence of opposition party leaders made BERSIH 2.0 looked partisan, and BERSIH 2.0 lost its clout as a neutral organisation.
If I may go back to my previous postings, freedom of assembly only exists in so far as no individual laws are broken; and that right to assemble is subject to conditions including national security, public safety, prevention of disorder, protection of health or morals, and the protection of rights and freedom of others.
And may I reiterate for the last time, I am not a lawyer.