PDrMAct

Monday April 16

Open letter to the Home Affairs Minister
Raja Aziz Addruse
President, Hakam

3:48pm, Mon: Over the last two years many people have been arrested for participating in alleged unlawful assemblies (which include demonstrations and processions).

From statements made by the police and the authorities, the assumption appears to have been that any gathering in public of five or more persons is automatically unlawful unless licensed or permitted by the police.

Those taking part in a public gathering for which a police licence or permit has not been obtained are regarded and treated as offenders.

The complaints of police brutality being investigated by the Human Rights Commission (Suhakam) concerns alleged lack of restraint and excessive use of force by the police in dealing with participants in such gatherings.

The sight of large numbers of police personnel gathered around the area where a proposed gathering is to be held, all geared to do battle against the perceived rioters and backed by water-cannon trucks, gives the impression that the government is forever under a state of siege from some enemy of the state.

The practice of the police wading into the demonstrators to disperse them, and chasing and beating them with batons or canes, first shown worldwide on television in the middle of 1999, has now become all too familiar.

As if the use of force on them is not enough, participants who are charged in court and found guilty can, according to a recent press report, have their passports impounded by the immigration after they have served their sentence.

Whether it is lawful for the immigration authority to impose this further penalty itself raises serious human rights and constitutional questions.

But all these harsh measures, meant to discourage people from taking part in public gatherings, do not seem to have any deterrent effect.

In February this year, Reuters reported that two separate gatherings had been held in Kedah within a period of two weeks, one of about 500 people outside a court house and the other of about 5,000 people at an opposition rally, and both were dispersed by the police using tear gas and water cannons.

Another report stated that a rally of about 1,000 people had been held in Kuala Lumpur at around the same time. A mass gathering to protest against the government’s abuse of power, corruption and other grievances was also reportedly planned for this month.

In order to deal with the upsurge of demonstrations, the police were, according to a media report, increasing the size of their frontline force in Kuala Lumpur by more than three times.

Those participating in future demonstrations can, therefore, expect much tougher treatment from the police; and, in this electronic age, the picture of the capital of Malaysia being constantly under siege and of the police chasing and beating up demonstrators will, without any doubt, continue to be portrayed to the world.

And Malaysia will continue to be regarded as a country which has little respect for human rights.

Is it not about time that the police and the authorities reconsider their position on the question of public gatherings?

Should they not remind themselves that the right to peaceably assemble without arms is a fundamental right which has been guaranteed to every citizen of this country by the Federal Constitution for the purpose of enabling them to express publicly their disagreement or disapproval of governmental action and proposed measures?

It is a right which is as important as the right to freedom of speech for exposing abuse of power and corruption, and for ensuring transparency and accountability. It is part of the citizens’ right to dissent, acceptance of which is a fundamental requirement of a free society.

The police, however, say that the right to peaceably assemble is not absolute but is subject to restrictions imposed by law. They argue that under the Police Act 1950 any public gathering of five or more persons without a police licence or permit is unlawful

They say that any gathering for which a licence or permit has been refused or has not been applied for is an unlawful assembly. A clear indication of how they view an application for a licence or permit by the opposition was given recently by the Inspector-General of Police (IGP).

He was reported to have said that the motive behind street demonstrations organised by the opposition is to challenge the government and the law and that there is always present in such gatherings, the element of violence.

Having regard to that preconceived notion on the part of the police, it is not surprising that applications for licences or permits for public gatherings organised by the opposition have not had much success and their gatherings have consistently been denounced as unlawful.

But is that how the police should treat an application for a public gathering?

According to the Constitution the restriction to be imposed on the right to peaceably assemble must be in the interest of national security or public order.

In what way is it against the interest of national security or public for the citizens to gather in public peaceably to criticise the government for their acts or perceived abuse of power, corruption and the like or to have a peaceful procession for the purpose of handing over a memorandum to Suhakam at its office?

The Inspector-General of Police, however, says that such gatherings or processions, being organised by the opposition, have the motive of challenging the government. If that proposition is correct, it would mean that the government can never be criticised.

The very purpose of exercising the right to dissent is to challenge the propriety of government actions or proposed measures. So long as it is exercised through constitutional and lawful means, the police and the authorities should respect that right.

It is an abuse of police power to withhold issuing a licence or permit on some such ground as that stated by the Inspector-General of Police or on the ground, as stated by the deputy home minister, as reported in the press, that problems would crop up if thousands take part in the `procession’ being organised for April 14, 2001 to hand over a memorandum to Suhakam.

The fear of a disorderly crowd cannot be used to stop a peaceful gathering or demonstration or to cancel the right to a peaceable assembly. Otherwise, the right to peaceable assembly will become nothing more than an illusory one.

But the latest measure taken by the police in arresting six members of Parti Keadilan and a reformasi activist has raised even more serious issues. According to the police, they were arrested because they were planning to carry out protests until 2004 when the general elections were expected.

The plan apparently was to gradually intensify the daily demonstrations until the target was achieved, and the police had to move in to stop the plan to disrupt the peace and stability of the country.

You were reported in the Star Newspaper on April 11 to have said that the police had to arrest those involved in the conspiracy before the situation went out control. As has been stated above, the holding of public gatherings and processions peaceably and without arms is recognised by the Constitution. It should not be readily assumed that they must as a matter of course disrupt peace and stability.

But the reason for the arrest of the seven persons became somewhat altered the next day when it was reported (see The Sun, April 12) that they were part of a militant-type group which is prepared to use violent means to topple the government.

According to the Inspector-General of Police, the group had late last year adopted a two-pronged strategy to (a) continue its struggle through the democratic process; and (b) use unconstitutional means including militant-type activities such as street demonstrations, right up to the next general elections in 2004; that the group’s first militant action is to mobilise about 50,000 people to demonstrate in the city centre on April 14; and that as a decoy, the organisers have dubbed the rally as an assembly to hand over the people’s memorandum on human rights to Suhakam.

For the first time he alleged that the group had, in October 1998, tried to acquire explosives, including bombs and grenade launchers and enlisted the support of silat masters and influenced scores of former military personnel to join the demonstrations to be held by supporters of Anwar Ibrahim.

The Inspector-General of Police informed the press that the rally could develop into riots and advised the public to stay away.

It would seem from this that the main concern of the police was still the possibility of riots occurring. You yourself were reported in The Sun newspaper of the same date to have merely said that the police had evidence that these people were involved in attempts that would jeopardise public order and national security (but you did not go into specifics) and that the government’s responsibility was to protect the people against any threats to our peace and security.

Your advice was that there was no need for thousands of people to submit the memorandum: that it can be done by the leaders of the groups. You had made no mention of the attempted acquisition of explosives and grenade launchers, matters of great importance and seriousness, which, if true, you would surely have been informed of very much earlier.

One would gather from the reports that the alleged evidence of conspiracy to overthrow the government by force of arms had been available to the police for some time. If that is so, it was not explained why no action had been taken to charge those involved in court sooner and why the disclosures were only made a few days before the planned demonstration was due to be held.

In that respect, it is to be noted that, according to an AFP report, the prime minister had, in fact, acknowledged that there was no evidence at present to charge the seven persons detained under normal laws, and had said, "I don't know whether they have the explosives or not but there have been instances when petrol, molotov cocktails were made and tried before” and “they (the seven detained persons) could have been arrested under normal laws but normal laws require certain evidence and procedures and processes which is, I suppose, from the police point of view not effective in preventing something from happening..."

The Internal Security Act (ISA), it would seem, is again being invoked for a purpose for which it was never intended and because it is expedient to do so.

The National Human Rights Society (Hakam) has consistently called for the repeal of the ISA on the ground that it was especially promulgated to deal with the specific problem of communist insurgency and subversion (which the then Malaya was faced with when it attained its independence in 1957) and that problem had ceased to exist some years ago with the surrender of the communists and communist subversives (who were the substantial body of persons mentioned in the recital to the Act).

It has been the view of Hakam that the continued use of the provisions of the Act for other purposes is improper. In any case, it is contrary to the precept of the rule of law for any individual or authority to be vested with unfettered discretion. Arbitrary arrest and detention should not be permitted in a country which professes to believe in democracy.

Hakam would urge you, as the Home Affairs Minister, to reconsider the appeals made by various quarters that the right of the citizens of this country to peaceably assemble be respected and that the police be educated to understand that it is their duty to allow the citizens of this country to exercise their right of dissent through the guaranteed right to freedom of speech and to peaceable assembly.

Where a peaceable assembly is disrupted by outsiders intent on creating an outbreak of violence, it is those who cause the disruption whom the police should deal with - not the other way. The present stand taken by the police not to issue a licence or permit for any public gathering organised by the opposition is highly questionable as being unconstitutional.

Hakam would also urge that you consider seriously its call, and the call of non-governmental organisations (NGOs) and other organisations, to repeal the ISA, for the reasons stated above.

For the time being, the seven activists who have been detained should be released without delay. If there is, indeed, evidence to establish their involvement in any criminal act, they should be prosecuted in a court of law where they will be able to defend themselves.