Bersih gathering: Of facts and violations
Malaysiakini, 22 Nov 2007
via BERSIH.org
A Bar Council team which consisted, among others, of lawyers from the Human Rights Committee and the Kuala Lumpur Legal Aid Centre was commissioned to monitor the gathering on Nov 10.
Up to 40 volunteers broke up into seven teams which were to be stationed at the following 'hotspots': (1) S Complex, (2) Masjid Negara, (3) Central Market, (4) Masjid Jamek, (5) St Mary's Church by Dataran Merdeka, (6) the flagpole at Dataran, and (7) the Jalan Tun Perak/Tuanku Abdul Rahman intersection. As Dataran was cordoned off, teams (5) and (6) moved to the vicinity closest to them.
Our terms of reference were to monitor the gathering which was an exercise of the peoples' right to freedom of assembly and expression. We adopted a non-interventionist approach, seeking only to accurately document that which occurred. After the clashes around Masjid Jamek and Jalan Raja Laut, we followed the crowd towards Istana Negara to witness the culmination of the event.
At about 5.30pm, we conducted a feedback session, and thereafter, some lawyers joined the Bar's Urgent Arrest Team at the Police Contingent Headquarters to deal with the detention of those arrested at the gathering. The Team stayed till about 11.00pm when it was confirmed that all detainees had been released.
Some observations follow.
If the size of the participants at the Bar's Walk for Justice (about 2,000) is used as a gauge, the crowd at the Bersih gathering was easily 20 or 30 times more than those at the Walk. It was not a mere 4,000 or 10,000. A good means of estimation would be to count the number of those who arrived in the buses. This may be verified with the organisers.
The numbers arrested at the gathering were far less than those who participated in the event. We documented only 34 arrests, definitely not 245 as recently reported. Of those detained, 5 had to be treated in hospital for cuts, bruises, abrasions and one had a broken leg.
By about 2.00pm, the crowds were forced to gather at different areas as Dataran Merdeka was sealed off by barricades and heavy police presence. Main routes to Istana Negara were also blocked. This caused heightened tension and inconvenience in city areas.
Well disciplined
With the assistance of hundreds of stewards from PAS' 'Unit Amal', it is noted that the crowds were disciplined and well-behaved. Apart from sloganeering and attempting to walk to Istana Negara, there were no provocative acts, physical or otherwise, with the intent to create disorder. On one occasion for example, we saw a steward seize a political banner which was being carried by a group while they were walking to Istana Negara.
At Masjid Jamek, human chains were formed by the stewards to demarcate the crowds from the FRU lines. This ensured that there was a clear gap between the FRU and the crowds, and further to avoid close confrontation. Despite this, the FRU decided to forcefully disperse the crowds by dispensing chemically-laced water and throwing tear gas. Water was fired at the crowds and not above them, while gas canisters were lobbed a few at a time into the crowds. No prior warnings were heard. Helicopters were flying dangerously low, and it drowned out much communication.
In international human rights law, several principles are well-established. These have been adopted by Suhakam in its 'Report of Suhakam Public Inquiry Into the Incident at KLCC on 28 May 2006':
As opposed to interfering or impeding peaceful gatherings, the authorities have a duty to adopt positive measures to facilitate the exercise of one's rights of peaceful assembly and expression (da Leben v Austria). This may include assisting to control the traffic and providing a safe space for the gathering to take place.
Using force
Inconvenience caused to the public does not make an assembly a non-peaceful one (G v Germany). Suhakam rightly pointed out in its 'Report of Suhakam Public Inquiry into the November 5th Incident at KESAS Highway' that a gathering is still peaceful even if there are speeches and shouting at the same.
The authorities may only interfere if the conduct of the participants is such that harm is caused or likely to be caused to other persons and property, and others are provoked to violence (Steel v United Kingdom).
Further, Suhakam has recommended that should there be a need to use force, such use of force should follow five progressive stages: verbal persuasion, unarmed physical force, force using non-lethal weapons, force using impact weapons and finally, deadly force.
Malaysia is a member of the United Nations Human Rights Council. Yet, we still have some way to go in understanding our international obligations. If our citizens are to be treated with the respect we deserve, Malaysia needs to ratify the International Covenant on Civil and Political Rights today.
The police must also re-visit their mode of operation, and take a second look at Suhakam's recommendations. In particular, our country needs to discard the 'Licensing Model' in the Police Act, 1967 and move towards a 'Co-operative Model' in relation to peaceful assemblies where the police and organisers work together to facilitate the same, rather than constantly struggling with each other.
