The Bar Council and the Malaysian Bar (“the Bar”) have been
criticised recently as being pro-opposition. This is because of the
Bar’s press statements and its extraordinary general meeting resolution
regarding the police brutality shown at the Bersih 3.0 sit-down rally.
The common theme adopted by critics of the Bar is that the Bar was not
fair, or even-handed, as the Bar were more critical of the police than
it was of the other parties involved.
Some of the more popular criticisms were summarised in Roger Tan’s
article “Unswayed by fear or favour” which was also published in the
Sunday Star on May 20, 2012. In summary, he says the following:
1. The Bar in condemning the police brutality must be equally
aggressive in its condemnation against the protestors who “behaved like
rioters and anarchists”.
2. The Bar had prejudged the issues by passing the resolution because
by doing so “the Bar had already come to a conclusion that all those
acts listed therein had been committed by the police”.
3. The Bar should have demanded an apology from Datuk Seri Anwar
Ibrahim because “it was his men who were reportedly the ones who removed
the barrier” which was “the trigger point”.
This statement is written immediately in response to Roger Tan’s
article, but also addresses others who have been critical of the Bar on
this issue. We intend to address the second criticism first, then the
third and first criticisms. Our reason for this will become apparent as
our reply develops.
The Bar did not prejudge the issues
In his second criticism, Roger says that the Bar should only pass the
resolution condemning police brutality after a finding has been made by
an independent body such as Suhakam. However, Suhakam relies on the
evidence of witnesses, and often conducts a hearing several months after
the event. The Bar based its stance and resolution on the observations
of 80 lawyers who formed a team of observers of events during Bersih
3.0. The purpose of assembling and mobilising this monitoring team was
precisely so that the Bar would be able to rely on their eyewitness
accounts, and not those of friends, media, the police, or post-event
photos or videos. The observations of the monitoring team were recorded
and compiled within hours on the day itself, and thereafter fine-tuned
and completed. We have no reason to doubt the credibility and
observations of the team, and neither have we heard of substantiated
allegations about them.
Aside from the Bar monitoring team and its report, since that day
many other eyewitness accounts have emerged, including photos and videos
that speak for themselves. Significantly, on this occasion, even media
members were not spared. We even had the embarrassing incident where
Al-Jazeera’s reporter Harry Fawcett had to report via Skype from his
iPad as his team’s video camera was smashed by police while they were
recording police brutality against protestors.
Most importantly, many previous Suhakam inquiries — the November 5,
2001 Kesas Highway Incident, the June 17, 2003 Kundasang Incident, the
May 28, 2006 KLCC Incident, the May 27, 2008 Persiaran Bandar Mahkota
Cheras 1 Incident, the July 9, 2011 Bersih 2.0 Incident — found that
there was excessive use of force by the police, and evidence of police
brutality. Numerous complaints by victims led to the said inquiries, the
findings of which thereafter vindicated the complaints leading to
damning conclusions about police conduct. These many reports do not just
show isolated instances of police brutality: Bersih 3.0 was not a
one-off. There is a pattern of regular use of excessive force and
brutality in violation of human rights by the Royal Malaysian Police
Force. Despite these many reports by Suhakam, and despite the findings
of the Royal Commission to Enhance the Operation and Management of the
Royal Malaysia Police, the police have not made any serious attempts to
school themselves in the prevention of human rights violations.
Regrettably, Roger is sceptical of the 80 monitors appointed by the
Bar Council because they are not named, as he “would certainly like to
know their political inclinations” to satisfy himself that they “were
independent-minded in their conclusions”. Firstly, five widely-respected
senior members of the Bar, who were a part of a “roving” team of
monitors, were named and had their observations separately documented:
Christopher Leong (vice-president of the Malaysian Bar), Steven Thiru
(treasurer of the Bar Council), Datuk Ramachelvam Manimuthu, Ramdas
Tikamdas, and Roger Chan Weng Keng. Apparently it is not enough that
lawyers of this calibre verify and endorse the report.
More importantly, what does one’s political inclination have to do
with stating a fact about whether Malaysian citizens were assaulted and
battered by the police, and whether there was excessive use of force in
accordance with international human rights standards?
Whilst Roger Tan has left the Bar Council, it is unfair to assume
that the Bar Council would not have trained these monitors properly
bearing in mind this is not the first assembly monitoring mission
dispatched by the council. His flippant remarks greatly disparage those
members of the Bar who volunteered to serve on the monitoring team,
implying as it does that they would allow their personal prejudice to
influence their professional duties. It is part of our job as lawyers to
put aside our personal prejudice in order to advance the cause of
justice.
Rather conveniently, whilst casting these aspersions on others, Roger
himself does not reveal his strong affiliations to a particular
political party. Employing Roger’s logic, one wonders, perhaps, whether
commentators in The Star, for example, should also be required to
divulge their political affiliations and leanings before their opinion
pieces are published. But we will not venture into the realm of the
fallacy of argumentum ad hominem to discredit the views of others, as
Roger disappointingly has.
Roger’s comments suggest that we should not immediately make
conclusions even if we see a group of uniformed policemen beating up an
unarmed citizen who lies helpless on the ground because there were
extenuating circumstances. And even if numerous members of the Bar,
members of the public and journalists documented such incidents of
brutality. The fact is, the police are supposed to treat each person
they arrest as if they are innocent until proven guilty. The police
should only use reasonable force in arresting someone. If they have to
resort to force, they should only use force that is proportionate to the
threat faced, and only enough to ensure the person’s arrest.
Roger cites the example of the Bar postponing its EGM with regards to
the VK Lingam video clip scandal while it waited for the Royal
Commission of Inquiry to complete its task. Roger however seems to
overlook the fact that the video clip sparked the groundbreaking Walk
for Justice in September 2007 which saw about 2,000 lawyers marching to
the PM’s office. The other difference with that example is that with
Bersih 3.0, the Bar monitoring team saw police brutality with their own
eyes, and not through a video clip. It is obvious that this is not a
comparable precedent.
What is this obsession with Anwar Ibrahim?
In his third criticism, Roger insists that the Bar should similarly
demand an apology from Anwar because he was reported to have instigated
the removal of the barrier. But Roger must understand that one must
distinguish between credible first-hand reports by Bar monitors, and
accusations by obviously partisan members of Barisan Nasional and its
media.
This is where Roger shows an obvious inconsistency — whilst saying
that the eyewitness accounts of the Bar’s monitoring team are
insufficient to be relied upon, he says that the Bar should demand an
apology from Anwar for an incident that no one on the Bar’s monitoring
team witnessed. Despite the many eyewitness blog entries, photos and
videos, there has been no compelling evidence either way to show who
removed the barriers, or whether their removal was facilitated by the
police, public or opposition members. On what basis is Roger suggesting
that the Bar demand an apology from Anwar?
Let us for one moment set aside the question whether the court order
prohibiting entry into Dataran Merdeka was unnecessary, wrong in law and
unconstitutional. Let us also assume the barriers in question were
covered by the court order. Even assuming that the order was validly
executed by the police, did it necessitate the extreme use of non-lethal
force to arrest and disperse the small group of people who breached the
barrier? Bearing in mind that the Bar’s resolution was on police
misconduct, and not about who removed the barrier, it is even more
disconcerting that Roger implies that the police may excessively and
disproportionally tear-gas and beat the innocent just to get at those
who did breach the barrier.
The Bar need not have condemned the protestors
Finally, Roger develops the basis of the criticism that the Bar is
not “independent” by stating the Bar failed to condemn with equal vigour
lay members of the public who he says acted “like rioters and
anarchists”. Many labour under the misapprehension that to be
“independent” an organisation must always be even handed and restrained
in one’s remarks. But that is a fallacy. And it is an even greater
fallacy when it concerns injustice.
Police brutality is a violation of a human right. A violation of any
human right is manifest injustice. Police brutality per se is an
injustice. The presence of police brutality has tainted the Royal
Malaysian Police as surely as a drop of blood stains a uniform. An
injustice perpetrated by even one from an institution set up to serve
the cause of justice deserves the harshest condemnation. There cannot be
any restraint in condemning abuse of power. As a police force meant to
be independent and professional, the Royal Malaysian Police are kept to
higher standards than lay members of the public. So the Bar cannot be
swayed by fear or favour; it cannot be hesitant or even handed in
condemning an injustice that is police brutality. Here is an Executive
institution that is well-funded and well-staffed with wide powers taking
action against unarmed people. It is state against the individual
person, and the Bar stands — must stand — for the latter.
What Roger and many who adopt this line of criticism fail to explain
is how the condemnation of police brutality amounts to an endorsement of
the opposition. This criticism reveals more of their own political
prejudice than that of the Bar. Their criticism strongly suggests a
belief that criticism of the police is the equivalent of criticism
against the political party in government. Their criticism also reveals
that they are the sort who think that perception is reality.
It is only those who are so immersed and drenched in politics that
adopt such a worldview. The Bar’s criticism and the facts it relies on
are an inconvenience to their perception. Ultimately these popular
criticisms against the Bar are not borne of logic or facts, but a need
to feel good.
There is one further reason why we would not have voted for a
resolution that condemned those members of the public who turned
violent. The fact is that most thinking Malaysians who have access to
the alternative media — and therefore do not rely solely on the
bare-faced propaganda of our mainstream print and broadcast media — are
not convinced that these so-called “rioters” are as blameworthy as the
police.
The police put razor wire across our city roads, turning Kuala Lumpur
into a war zone before any violence had ensued. The police obtained a
totally unnecessary court order prohibiting entry for four days into
Dataran Merdeka, without any notice or opportunity to the organisers of
Bersih 3.0 to present their case despite ample time for them to do this.
Then, when the disturbance started, it was the police who shot tear gas
behind and in front of retreating protestors so that they were boxed in
rather than allowed to disperse. Who ordered the closure of the nearby
LRT stations so as to prevent people from dispersing? Who ordered the
destruction of cameras belonging to journalists, and the reported
censorship of Al Jazeera and the BBC? What justified the four hours of
continued attacks on people who were already dispersing or having
dinner? All this done against fellow Malaysians, who until the very end
had taken part in an almost perfect rally.
As pointed out by Roger, the Bar’s resolution did expressly state
that the Bar is concerned with and does not countenance acts of violence
by rally participants, and are concerned by reports that police
barriers were breached. In our view, that says enough. We did not hear
any suggestions made at the EGM to amend the resolution. All the
dissenters at the EGM agreed in principle that they were against police
brutality. What more needs to be said really, seeing as the police were
already actively identifying and hunting down those whom they say
committed offences during the rally? The police had even stated that
they would conduct a house-to-house search for these individuals.
Compare this with the lack of action in identifying, let alone
condemning and punishing, the police officers who committed violations
of duty and human rights.
The Bar’s resolution was proper
The Bar was entitled and correct to issue the statements it did, and
to pass the resolution it did. The resolution is fair in all the
circumstances and was carefully worded throughout. The facts that it had
gathered itself through the Bar’s own members were set forth frankly
and properly, and the urgent action that was needed due to the
unprecedented police brutality seen on that day was set out in an
appropriate and immediate manner.
We are proud to have supported the Bar’s resolution and have no
qualms about the Bar’s continued independence. We believe the vast
majority of the Bar are totally in support of the resolution, and the
comments against the resolution are the isolated voices of a few in the
wilderness given undue prominence by propaganda organisations posing as
the mass media.
It is telling that Roger states that “removing the barrier was the
trigger point” and adds that it is “common sense” that “whoever first
raises his hand against the other is the most blameworthy”. Words do not
suffice to describe the disingenuous nature of the suggestion that the
removal of the barrier is even remotely comparable to the brutal actions
of the police. In any case, there have been no reports of barriers
being “breached” in front of the Bar Council, on Leboh Pasar Besar — yet
even then, water cannons and tear gas were fired there. Roger fails to
acknowledge the clear reality that police reaction was not localised to
Dataran Merdeka or to the participants there, and that other than at the
Jalan Raja/Tun Perak junction, it was the police who struck first.
The actions of some members of the police force on that day were
incidences of injustice that were so blatant that it should be
impossible for anyone who purports to stand up for justice to remain
silent. We have already seen concerted efforts — by the ruling
coalition, the police, and those who are too politically partisan to
distinguish clear acts of injustice from their political posturing — to
distract from the injustice highlighted by the Bar’s resolution by
attacking the Bar and casting aspersions on those who are doing no more
than reporting what they saw with their own eyes.
The Bar must continue to fight for those who cannot speak up for
themselves, and whose rights are oppressed by the might of the state.
That is our duty, and one that we hope members of the Bar will continue
to discharge without fear or favour. –
loyarburok.com
* This response is jointly endorsed by Edmund Bon, Fahri Azzat,
Janet Chai, K Shanmuga, Mahaletchumy Balakrishnan, Marcus van Geyzel,
Seira Sacha Abu Bakar, and Sharmila Sekaran.
I'd
never really met Ambiga before, save for two fleeting moments - the
first at the lawyers' march against the (then) Peaceful Assembly Bill
and, the second, on that fateful Saturday afternoon of April 28.
After
we had walked through the army of newsmen and women, we were warmly
greeted at Ambiga's gate by the always smiling social activist
Hishamuddin Rais (centre in photo) and ushered into her home.
Around
4pm, an hour later than expected, as we Malaysians tend to be, the
police let through the leaders of a bunch of youngsters - a group whose
totally forgettable name now escapes me - to send their ‘memorandum'.
Next
came the ‘main act', the petty traders. Surprisingly, they'd changed
their tune somewhat, assuring us all that they would not now hold a
two-day pasar malam on the road outside the house.
How
cheap, how unnecessary, I said to myself. And I remembered Ambiga's
apology at the ‘post-pasar malam (that never was)' press conference.