THIS PART SHALL COVER THE TOPIC OF PEACEFUL ASSEMBLY
It is a misconception that there are no limitations to Human Rights. It is a gross misconception, too, to think that the Right to Peaceably Assemble comes without any form of limitation. Article 29(2) of the Universal Declaration of Human Rights says so.
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
What does the above mean? If put in layman terms, the above means you can’t assemble in a quiet neighbourhood at four o’ clock in the morning. You can’t assemble in the middle of a downtown street. If your assembly becomes rowdy, the cops can stop it. If your assembly is a pot party, the police can close it. If you bring 1,000 people into a building designed for 100, the police can close it. Basically, you can’t create a safety hazard. You can’t disturb the peace. You can’t incite a riot. You can’t create unsafe conditions.
The preliminary report by the Bar Council on BERSIH 3.0 acknowledged that some rally participants were already behaving rowdy towards the authorities, but the police did not act until the breach of police line was done by some politically-motivated participants, after a signal instruction was given out to them by some politicians. The final report, which was prepared in haste, changed the situation to “reported breach” instead of an actual breach, and pinned more than 90 percent of the blame on the police.
The Bar Council’s 93-paged final report contained lots of overkill in order to justify their pinning the blame on the police; citing every single declaration and convention there is on Human Rights, and articles that point to misconducts by the authorities. Now, let us revisit the facts one by one. I will go by chronological order based on the preliminary Bar Council report and compare it with the final version:
Para 5.5: “At around 12.50pm near the roundabout on Jalan Kinabalu, some of our monitors heard some rally participants calling police officers “sampah (rubbish)” as they passed the police line. The police officers, however, did not pay heed to what was said by the participants. ” Apart from an incident at 12.38pm where rally participants shouted “Rasuah (Corruption/Corrupted)” at the police, the final report did not mention the incident at Jalan Kinabalu.
Para 5.6: “Around 12pm to 1pm, participants at the intersection of Jalan Tun Perak, Jalan TAR and Jalan Raja, booed and jeered at the police officers but there was no retaliation from the police. Some police officers took photos of the crowd surrounding them.” This, too, was omitted in the final report.
Para 5.7: “Between 12pm and 2pm, PDRM and DBKL constantly drove their vans, cars and trucks along Jalan Tun Perak through the middle of the crowd. A small number of participants (mostly in yellow t-shirts) at times threw things at the vehicles including cans, empty plastic bottles, and other items, and at other times, the crowd cheered them.” Not a single mention of this was made in the corresponding table in the final Bar Council report. Instead, it wrote about how the participants were in jovial mood and at the same time the number of police presence was building up and acted in aggressive manner towards the participants.
Para 5.8: “Around 2.50pm, near the barricades at Dataran Merdeka, some of our monitors observed rally participants shouted “masuk, kita masuk! (Go in, let’s go in!)” The police force then sprayed water cannon and fired tear gas towards the participants. The monitors, who were trapped within the crowd of participants then heard a group of particpants yelling “undur, undur (retreat, retreat).” However, some of the participants kept on shouting “masuk, kita masuk (go in, let’s go in).” Not a single sentence from this preliminary report was included inside the Bar Council’s final report; nor was there any mention of the video of a politician signalling the order for a breach of police barricade be made. Instead, the final report painted a picture that the police had already fired tear gas BEFORE this signal-event even took place. I quote:
2.40pm in front of DBKL building. A monitor noticed police officers ran backwards towards the police trucks. The monitor did not hear of any warning sound given by the police but then water cannons sprayed and tear gas fired towards the crowd. The crowd dispersed towards DBKL building. DBKL officers did not allow the crowd to take cover in the area.
Was the Bar Council fair and just in its reporting of the event? Why was there such a huge difference between the preliminary and final reports? One may argue that the preliminary report did not contain all the details of the events as it was quickly drafted, but total omission of events in the final one shows that the Bar Council’s final report was objective. Its objective was to paint a bad picture of the police and local government authorities.
I think much have been said by me on the Universal Declaration of Human Rights and its limitations. You can find them in the links below:
Now, let us revisit Article 20(1) of the Universal Declaration of Human Rights (UDHR):
Everyone has the right to freedom of peaceful assembly and association
The corresponding article in the Malaysian Federal Constitution would be Article 10(1)(b) that states:
Subject to clauses (2), (3) and (4) – all citizens have the right to a peaceful assembly and without arms
One glance at these two articles will indicate that it is everyone’s right to be able to assemble peacefully. Does the right come without limitation? My answer is, of course NOT.
There are SIX guiding principles for the rights to peaceful assembly:
Principle 1 – Presumption in favour of holding assemblies. What it means here is that as a fundamental right, freedom of assembly should, in so far as possible, be enjoyed without regulation. Anything not expressly forbidden in law should be presumed to be permissible, and those wishing to assemble should not be required to obtain permission to do so. In the Peaceful Assembly Act 2012, Section 9(1) states that the organiser shall, ten days before the date of an assembly, notify the Officer in-charge of Police District (OCPD) in which the assembly is to be held. No permit is required, as evident in the BERSIH 3.0 assembly where the police and relevant authorities facilitated the passage and assembly of participants EVEN WHEN INCONVENIENCING non-participants. barring areas like the Central Market, the DBKL building, and the Dataran Merdeka. Were the authorities right by barring the participants entry into these areas? The answer is, YES. Section 11 of the Peaceful Assembly Act 2012 requires organisers to obtain consent of owner or occupier of place of assembly. Unless it is a designated place of assembly, an expressed consent from the owner or occupier is needed for these places.
Principle 2 – The State’s duty to protect peaceful assembly. This is an established fact that from 9am when the Bar Council monitors began observing the assembly, the police were there to facilitate the assembly, EVEN to the point of not reacting to taunts and jeers and objects being thrown at their vehicles prior to 3pm.
Principle 3 – Legality. Any restriction imposed must have a formal basis in law. A constitutional lawyer debated with me this issue saying that the Home Minister had already given the green light for the assembly to go ahead without a permit. Yet, as a lawyer, he failed to understand the part where Section 11 of the Peaceful Assembly Act 2012 states that expressed consent must be obtained from the owner or occupier of the place. Does he mean that if the Home Minister says it is okay for the participants to camp out on your home lawn then you have no right to refuse? If so, where is your right under Article 3 of the Universal Declaration of Human Rights? Is it supposed to favour only the participants?
DBKL, as the custodian of the Dataran Merdeka, had obtained a court order two days before BERSIH 3.0 assembled, to bar participants from entering the Dataran Merdeka. Bear in mind, for two weeks they had closed one eye to a group of students who had camped on the lawn of the Dataran Merdeka, causing damage and throwing rubbish all over the place. Therefore, an order was obtained to prevent more damage to the Dataran Merdeka. Remember, By-Law 4 of the Local Government (Dataran Merdeka, Federal Territory, Kuala Lumpur) By-Laws, 1992 states the following:
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.
The order was obtained under Section 98 of the Criminal Procedure Code. I am pretty sure that the Magistrate who issued the order must have taken into consideration the history and lessons learnt from the previous BERSIH episodes, thus meeting the requirement of the clear and present danger test. I am also sure that the Magistrate had taken into account statements and remarks made by politicians in the mass media on BERSIH 3.0 that have met the incitement test, before issuing the order.
Principle 4 – Proportionality. Any restriction imposed on freedom of assembly must be proportional. The least intrusive means of achieving the legitimate objective being pursued by the authorities should always be given preference. The dispersal of assemblies may only be a measure of last resort. The restriction imposed was proportional. Only the Dataran Merdeka was sealed off, and this only happened AFTER several stadiums offered to the organisers by the local authorities as designated place of assembly, were rejected by the former. This despite the fact that in BERSIH 2.0, the organiser applied for the use of the Stadium Merdeka, but was rejected by the owner. If the cause of BERSIH 3.0 is paramount, would venue be a matter? The dispersal of the assembly was only done when the participants, after being signaled by a politician, breached the barricades protecting the Dataran Merdeka. If you read the definition under Section 3 of the Peaceful Assembly Act 2012, an assembly is no longer an assembly the moment you assemble in a meeting at a specified place, then walk in a mass march or rally for the purpose of objecting to or advancing your cause. This is termed as a ‘street protest’ which is no longer covered by the Peaceful Assembly Act 2012 under Section 4(1)(c). Here, the test of preserving the public order, morality and security takes place. Even then, before the breach at 2.50pm, the police allowed the participants to rally.
Principle 5 – Good administration. The public should know which body is responsible for taking decisions about the regulation of freedom of assembly, and this must be clearly stated in the law. In this case, the Peaceful Assembly Act 2012 states that the Minister of Home Affairs, through the Police, is responsible.
Principle 6 – Non-discrimination. The right to peaceful assembly should be enjoyed by all. On the 28th April 2012 we had different parties and organisations that held simultaeneous assembly, including political parties. None were discriminated. The right for children to participate in an assembly or organise an assembly is also stated in Section 4(1)(d) and (e) of the Peaceful Assembly Act 2012. With due regard to the evolving capacity of a child, no children below the age of 15 may participate in an assembly. What we saw during BERSIH 3.0 was parents taking children even below the age of 12, which in my opinion is irresponsible given the intensity of the event’s atmosphere, and given the history of similar assemblies organised by the same organisers in the past.
We know for a fact that the police had, right up until the breach was “ordered” at 2.50pm, facilitated the street protests, the marches, the multiple (simultaenous) assemblies, did not even react to taunts, jeers, object-throwing. Suddenly, in the Bar Council’s final report there was this monitor who had heard a police walkie-talkie saying , “Bersiap sedia untuk…(Prepare for….)” although this was heard some 20 minutes before the actual breach. Other monitors reported seeing pick-up trucks with strange communication poles on top of them. None of these were in the preliminary report, yet conveniently appeared in the final report that was prepared in haste for the EGM called. Was the idea of producing this report and the subsequent condemnation of the police a deliberate act to vilify the police?
In 2007, the Office for Democratic Institutions and Human Rights (ODIHR) had issued a Guideline for Freedom of Peaceful Assemblies. On page 13 of the guideline, the following statement is made:
Only peaceful assemblies are protected. An assembly shall be deemed peaceful if its organisers have peaceful intentions. The term “peaceful” should be interpreted to include conduct that may annoy or give offence to persons opposed to the ideas or claims that a particular assembly is promoting, and even the conduct that deliberately impedes or obstructs the activities of third parties. Participation in a public assembly must be voluntary.
And as I said in a few paragraphs above, Section 4(1)(c) of the Peaceful Assembly Act 2012 clearly agrees with the guideline above. The police were upholding the law by protecting the Dataran Merdeka, as ordered by the Magistrate via a court order issued under Section 98 of the Criminal Procedure Code. If that is so wrong, then is the Bar Council not interested in upholding the sanctity of the law? The Dataran Merdeka does not fall under the definition of a public place. It is not a park where people go picnic or jog at; it is not a square that is open to the public like the Trafalgar Square is; it is not a street or a sidewalk or an avenue or pavement or even a footpath. It is protected under a By-law made under the Local Government Act, 1976.
I personally do not take the Bar Council’s final report seriously. I do not believe it was made objectively, nor was it a fair report made with good intention. As for its Monitors, some are members of the opposition party, some are on the BERSIH steering committee, some are both. How non-partisan is that?
In the next part of my posting, I will address the issue and claims of torture. Lastly, I leave you with this section on “Monitors” set in the guideline issued by the ODIHR. Based on my paragraph above, you decide whether the Bar Council has been fair at all:
8. Monitors – For the purpose of these Guidelines, monitors are defined as non-participant third-party persons or groups whose primary aim is to observe and record what is taking place.