Category: Daily Whatevers

Online social networks are fun places; you get to meet all kinds of people from all over the world. One such group is the Murtads in Malaysia and Singapore on Facebook. The description of the group reads as follows:

Islamic apostates in Malaysia and those who support them. This group has the goal to network the apostates of Islam from Malaysia and those who would like to offer support and discuss about this issue.

The Apostates in Malaysia group offers a safe place for those who are trapped by Islam in Malaysia. Feel free to introduce yourself, share your stories and concerns, anything you like. This place is especially for you. 🙂

By government orders, Faith Freedom International (faithfreedom.org) is currently banned by every ISP in Malaysia. Internet usage is also highly monitored in Malaysia today. Those found to be accessing and/or publishing disagreeable contents according to the Malaysian government and the Islamic government of Malaysia are subject to arrest and up to a heavy degree of indeterminable punishment. Apostasy, according to a fatwa issued my the Islamic government of Malaysia, a national security threat and treason. Therefore, for security reasons, I encourage those who are apostates especially in Malaysia to use a secondary Facebook account to participate in this group.

Everyone is welcomed to join this group and participate in the discussions. Being an apostate is such an intimate and troubling concern to individuals who are affected in Malaysia, therefore it only makes sense that we have compassion as there is already weight of the burden that they carry – this can be a wonderful place for everyone if we decide to make the conscious effort to be nice to each other here 🙂

Even more surprising is to find several known figures from Malaysia that include Raja Petra, Boo Cheng Hau (DAP), Xavier Jayakumar (PKR), and Ean Yong (DAP):

Friends of PAS, I presume.

(Images taken with thanks from Cucu Tok Selampit‘s blog.

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.

THE POLICE

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.

THE STADIUM

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.

SUMMARY

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.

In this part, I shall embark on discussing with myself the way the government handled the BERSIH 2.0 situation.

So it has been reported today that the EO6 or PSM6 depending on how you look at them, will be charged on 3rd August 2011 for being in possession of, and distributing subversive materials. Therefore, I shall address this issue before embarking on other issues relating to how the government handled the whole BERSIH 2.0 issue.

The PSM members were caught by the police distributing subversive materials (read: communist) several days before the BERSIH 2.0 rally. They were held under the Emergency (Public Order and Prevention of Crime) Ordinance, 1969. Personally, I do not think it was the correct Act used to put them in detention. A more appropriate Act would have been the Internal Security Act, 1960. The alledge crime committed was too serious to just use the Emergency (Public Order and Prevention of Crime) Ordinance; furthermore, there were more than one person that the police needed to investigate, and the process would have taken longer than just a few days or weeks. They would need to check their background, their links, contacts etc to determine if the whole network could be taken down. Section 29(1) of the Internal Security Act, 1960 would have covered the necessity to detain the six, while Section 29(3)(a)(b)(c) of the same Act would have sufficed in determining the nature of their offence. Section 29(4) further explains that “every subversive document shall be presumed to be a subversive document until the contrary is proved.”

The PSM6 should, as required by law, have immediately surrendered the “subversive documents” to the Police. This is stated in Section 29(2) of the Internal Security Act, 1960, among which states that:

“Any person or any office bearer of any association or any responsible member or agent of any organisation who receives any subversive document shall deliver the same without delay to a police officer…”

I can only guess why the government did not use the ISA on the PSM6; and my guess is whoever made the decision was either misinformed, ill-advised, pussy-footed, not well-versed, and even wanting to be populists. However, those are my guesses. The real reason remains with the authorities in concern.

If at any time then the authorities had felt that the use of the ISA would have been an overkill (which I personally do not), then holding them under the Societies Act, 1966 would have sufficed. Whoever advised the Home Minister should have known that Sections 47 and 48 of this Act cover the alledged offences, as the Communist Party of Malaya remains an unlawful society.

Whatever it is, the government should have allowed the police to hold the six much longer (the Inspector-General of Police has at his discretion the authority to hold them under the Emergency (POPO) Ordinance 1969 for 30 days. Allow the police to do their job properly so justice could be served to all parties involved, including to the six as well as to their family members.

It looks like this posting on the EO6 alone have taken up so much blog space. I guess I will have to continue in another blog posting.

If I may recap what I had written in Part One of this series (A Clean Assembly – Part One), the right to assemble is NOT an absolute right, nor has it been guaranteed by Article 10 (1) of the Federal Constitution. In fact, the same right, as provided for in Article 20 of the Universal Declaration of Human Rights, has its limitations set as provided for by Article 29 (2) of the same. It reads:

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.

In drafting Article 29(2), the United Nations recognised that for every right and fundamental liberty granted to every human being, there would be a competing right of others that includes the society or state in which that person lives. Therefore, what BERSIH supporters see as their fundamental right to march, is actually limited by the right of road users whom had paid the tax to use the roads involved. The wishes of the majority who may or may not support the want to march to express; and these are the considerations the judicial review would have had to take, had BERSIH went to court to challenge the police’s refusal to issue a rally permit.

One should remember that Article 29 of the Universal Declaration of Human Rights demands countries to balance these competing rights, on one side wanting recognition of their cause, and the limitations provided by the law solely for the purpose of securing due recognition and respect for the rights and freedom of others opposing, by meeting the requirements of national security, public order, public moral and public health and welfare. Public in this context refers to the others who do not join or support such cause.

As a person from the outside looking in, with BERSIH’s high profile individuals such as Ambiga Sreevasan, Edmund Bon et al, they should have known that a judicial review is needed for them to justify their claim to their right under Article 10 (1). However, in view of their failure to exercise that option gives me no choice other than to assume that it was an act of mala fide . Maximum publicity was the real intent.

Of course, as in any other rally, there will be culprits bent on causing havoc; as evident in a video shown of a politician riding on the BERSIH platform doing a countdown before charging towards the police line in the hope that the police would do something drastic to them, and these events are captured especially by the foreign media. This is where the history of such rally and of its organisers must be investigated thoroughly by the police and the judicial review in determining the clear and present danger, and incitement tests.

In Part Three, I shall write about the conduct of the government, the police, and of the six members of the Socialist Party of Malaysia arrested under the Emergency Ordinance.

I am not a lawyer.

I have never disputed the right to assemble by any one person or by a group. What I have been disputing is the fact that some uninformed or misinformed individuals have been abusing Article (10) of the Federal Constitution, as well as Article 20 of the Universal Declaration of Human Rights on the right to assemble. To me, BERSIH on its own could have been well-received had it not been for its association with political parties representing the opposition, and a series of threats to public order made by its organisers added to the imbroglio.

Now, what went wrong, if any did at all?

Ambiga declared the march to be held on 9th July 2011. What should have (did it, I wouldn’t know) followed is the application for a rally permit, venue, route to be taken if there is a need to march, and so on. One must remember, the right to assemble is provided for in Article 10 (1) of the Federal Constitution of Malaysia. However, if you were to read that particular paragraph carefully, it begins like this:

Subject to clauses (2), (3) and (4), everyone has the right to freedom of speech and expression; have the right to assemble without arms; and the right to form associations. Clauses (2), (3) and (4) of the Article provides the limitations to those rights: they must not be a threat to national security, public order, public moral and public health.

Based on these limitations, the police, in the spirit of the law, should award the permit based on the details given by the permit applicant. Any dispute, then the applicant should take it to the courts for a judicial review, in which the court will then hear out the pros and cons of having the rally. In the US, two tests are applied to this stage of process: the Clear and Present Danger test; and the Incitement test.

The court will then find a remedy (a compromise if you must) on the matter. If judgement is made to allow the rally to go on, then the organisers would have to provide marshalls, routes, rules to be followed and so on. This matter should have been handled as per the recommendation for the Red Lion Square disorder of 1974 by Lord Justice Scarman. He said:

‘…’The right (to demonstrate) of course exists, subject only to limits required by the need for good order and the passage of traffic…’

Did the organisers of the march take the police’s objection to court? The answer as we all know is a simple but deafening NO.