My colleague from Sweden once made a remark about the Chinese New Year traffic. The problem with Malaysian roads getting congested, he said, is because people do not respect the law. Queue-jumpers cause bottleneck situations along highways, while in town, double-parking clogs up the roads.
He is absolutely right. Malaysians have a problem with abiding by the law. What makes it worse is when the very institution that is supposed to set examples to the general public breaks it once too often. After a while, I can only conclude that the Malaysian Bar is led by drunkards and partisan people who have no regards to uphold the tenets of their association. Seriously, I find their constant by-design association with the opposition parties, and skewed view of Human Rights, for the lack of a better word, disturbing.
Most prominent opposition-leaning Bar Council members claim that the Peaceful Assembly Act, 1972 is against normal International Human Rights “law.” For that reason, the PA2012 should and can be be challenged. This Act was put to the test during the recent BERSIH 3.0 mayhem.
In the recent BERSIH 3.0 interim report issued by the organisation, it mentioned that the rally was peaceful until around 3pm when the police opened fire with their water cannons and teargas (para 1.3 (i)) but there was no mention about the breach of police line by the protestors under the instruction of one politician (or so it seems from the video that has now been shown by several international news agencies).
The organisation also goes to mention about the Universal Declaration of Human Rights. It quoted Article 3 of the Declaration which says:
Everyone has the right to life, liberty and security of person
Then it goes on to quote Article 5 of the same Declaration that says:
No one shall be subjected to torture, or to cruel, or inhuman or degrading treatment, or punishment
Let us first talk about these two Articles. Article 3 clearly says everyone, not just the rally participants, has the right to life, liberty and security. In Section 3 of the PA2012, it is stated in the interpretation that “rights and freedom of other persons” includes:
- the right to peaceful enjoyment of one’s possession;
- the right to freedom of movement;
- the right to enjoy the natural environment; and
- the right to carry on business.
Pro-one-sided Human Rights group may argue that the right to freedom to assemble is guaranteed under the Declaration, and also in the Federal Constitution. However, if one was to read the Declaration and the Constitution properly, the Declaration clearly states:
Article 20(1) UDHR – Everyone has the right to freedom of peaceful assembly and association
Article 10 Federal Constitution – (1) Subject to Clauses (2), (3) and (4) – (a) every citizen has the right to freedom of speech and expression, (b) all citizens have the right to assemble peaceably and without arms;
If you look at the above Articles, they clearly mention the words PEACEFUL and PEACEABLY. On Page 27 of the Bar Council’s report, their monitors reported that between 9am and 2.30pm it was observed that the police force was unperturbed by the participants, and some were courteous towards the participants (para 6.1). Around 12 noon, the crowd marched towards Jalan Tun Perak from the Jalan P Ramlee and Jalan Raja Chulan areas. Along the way, traffic police gave full cooperation and managed traffic for the crowd to march (para 6.2). In both paragraphs, it was clear that the police cooperated, even though at this point the BERSIH 3.0 participants had broken the law. Section 4 (2) of the PA2012 states:
A person commits an offence if (c) he organizes or participates in a street protest
A ‘street protest’ is defined in Section 3 of the Act as: “an open air assembly which begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes.”
The Bar Council monitors also noted that at 12.50pm, near the Jalan Kinabalu roundabout (in the Dataran Merdeka area), some rally participants were heard calling the police “sampah (rubbish)” as they passed the police line. The police officers did not pay heed to what was said by the participants (para 5.5, page 26). Around 12 noon to 1pm, a number of participants (most were wearing yellow) booed and jeered at the police. Still there was no retaliation by the police (para 5.6, page 26). Between noon and 2pm along Jalan Tun Perak, some participants threw cans, empty bottles and other stuff at police vehicles (para 5.7, page 26), and still there was no report of the police retaliating. It was only at 2.50pm that the monitors observed rally participants shouted “Masuk, kita masuk (Go in, let’s go in!)” (para 5.8, page 26). This was when the police retaliated with water cannon and tear gas after the barricade was breached.
It was after this that the report stressed more on the conduct of the police than of the protestors. The Bar Council had failed to also pin the blame on their political associates from the opposition that had hijacked the BERSIH 3.0 cause, to achieve their own cause – and that was to get the attention of the foreign media to focus on the acts of members of the police force against the demonstrators DESPITE having a law to allow peaceful assemblies to demonstrate Prime Minister Najib’s commitment towards better freedom.
I do not condone the acts of the members of the police force if they had gone overboard, but I can understand from the bar Council’s report that for 6 hours the police had cooperated with the participants even though they had broken the law. Even after sporadic jeering and having bottles thrown at them, they never once retaliated. This goes to show that the police had been consistent in executing their duties which were (1) to facilitate the BERSIH 3.0’s rally and minimise inconvenience to the public at large (read: those who were not participants), and (2) to uphold a Magistrate’s order barring participants from entering the Dataran Merdeka.
In the above paragraph, both the Organisers and the Participants of the rally have already breached Sections 2 (c) (f); 6 (2) (a) (b) (c) (d) (f) (g) (h) and 7 (a) (ii) (iii) (iv) (v) and 7 (b) of the PA 2012. If you think that the Dataran Merdeka belongs to the people, you are dead wrong. The Local Government (Dataran Merdeka, Federal Territory, Kuala Lumpur) By-Laws, 1992 states:
By-Law 4. Offences. No person shall, unless approved by the Commissioner in writing, in the Dataran Merdeka– (a) eat any food, drink or smoke any cigarette, cigar or any tobacco; (b) cut, remove, damage, pluck any leaf, branch, flower or seed of any plant or tree; (c) cut, uproot, dig, remove or damage any plant, tree or grass; (d) excavate or remove any earth; (e) climb any tree or structure; (f) dirty, deface, make alteration to, displace or damage any structure; (g) nail, tie, bind, chain, draw, scribble, paint, spray, mark, affix, inscribe, display, place or hang anything on any tree, plant or structure; (h) walk over, step or stand on any planting bed or shrubbery; (i) enter or climb the hundred metre flag pole; (j) ride, drive, pull or push any vehicle whether mechanically propelled or otherwise or slide with a skate; (k) contaminate or pollute the water in any fountain; (l) deface or remove any notice displayed by the Commissioner; (m) spit, urine or defecate; (n) displace, make any alteration to, remove, deface or tamper with anything displayed, exhibit, affixed, hung, placed, constructed or set up by the Commissioner; (o) erect any tent, booth, shed or other structure;(p) drop, throw, deposit, place or leave anything whatsoever; (q) kindle any fire or any fireworks or crackers; (r) lie down or sleep in any part of Dataran Merdeka; or (s) allow any animal which is under his control to enter or remain in any part of Dataran Merdeka.
I did not see the By-Law being quoted by the Bar Council, nor was it quoted by any of its opposition-leaning members that I have engaged. This further underscores my idea that the Bar Council has a political agenda, and is not interested in upholding the law.
The report also quoted Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) that says:
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life
I do not know why was this Article or the Covenant quoted in its report. Is it to show that the degree of “police brutality” equals that to Tahrir Square and elsewhere? If you flip this Covenant’s coin, the Bar Council should also see that it applies to us who detest street protests, miss out on the joys of life because of them, inconvenienced because of them and also to the policemen who got beaten up for trying to maintain public order. Where were the rights of the policemen who were constantly taunted, ridiculed, jeered at with the aim to diminish or obliterate their mental capacity? That act falls under the definition of torture. But of course the learned members of the Bar Council will say, “The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment does not cover the police.” So, is a policeman less than human? Is he supposed to have limits of patience as high as the sky is?
The Right to a Peaceful Assembly is NOT a guaranteed right – whatever that right is has to and must be balanced with the rights of others. The PA2012 is there to ensure that the rights are balanced. If you are to assemble, you are not to cause inconvenience to others. During BERSIH 3.0, those who did not participate had their rights infringed upon when they could not travel in and around KL as they would do. Roads were closed and there was clear and present danger in the areas leading to the Dataran Merdeka. Under Article 10 (2) (a) the Government has a duty to restrict the right to peaceful assemblies where the security, public order and public morality is under threat.
For advocates of the Universal Declaration of Human Rights, I am happy to inform you that such limitations also exist in the form of Article 29 (2) of the said Declaration, where it says:
- In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
So, there have you. The Bar Council of Malaysia has contradicted itself. Like a drunkard it goes to talk about one thing, then deny it in another sentence. And it also conveniently omitted Articles of International Human Rights “laws’ that do not work in their favour. I can only think of one agenda that the Bar Council has, and it is the same one that the goons who hijacked BERSIH 3.0 had on that April afternoon: not fighting for BERSIH, but fighting for the agenda of bringing down the government through force and lies.