Is Freedom truly Free?

After reading so many reports and articles on the Peaceful Assembly Bill especially with accusations being cast on both sides of the political divide, I believe that we have to go back to the root cause of the issue and examine it in a holistic and pragmatic manner. 

Trampling on our rights

First we must go back to the fundamental question as to whether the law, specifically Malaysian law, really stifles dissent and tramples on human rights. 

Indeed, we have examples of Ministers using their discretionary authority under the law in cases where there is no probable cause. Therefore that would lead us to believe that power was abused. 

Examples include the detention of a reporter, Raja Petra Kamarrudin and Teresa Kok under the draconian Internal Security Act, as well as the extra-judicial declaration that "Bersih" T-shirts are illegal as they represent an illegal organisation. 

I would submit that the examples I cited above represents a disproportionate response to the actual situation. This leads to awkward explanations afterwards which include the "She was detained for her own protection" and "because it represents an illegal activity" type of reasoning. Hardly impressive. 

There is no doubt that the current Barisan Nasional government has a history of abusing their powers under the law in order to preserve their own affair. However, by branding their discretion at making these arrests "to protect national interest and public property", many people as members of the public are led to believe by the Mainstream Media that the response was correct and proportionate. 

Bersih 2.0

The rally that truly triggered the necessity to call into question the Police Act provision on illegal assemblies was indeed Bersih 2.0. 

The 9th July 2011 is a day which would truly go down in infamy. Dubbed "709", we witnessed how the police doused the public with chemical-laced water and tear gas. Retreating into Tung Shin Hospital provided no respite when the Federal Reserve Unit decided to shoot the water into the compound. 

A rally to call for Free and Fair elections, which was entirely peaceful, was turned violent by police manhandling protesters. Protesters forced to disperse by violent means could have potentially created a stampede and it is only by the grace of God that there were not more casualties. 

Being in amongst the crowds, I believe how the FRU and police responded was truly disproportionate, although many quarters claimed they exercised a considerable amount of restraint. As a person who ingested tear gas into my system, I would beg to differ. 

But what was worse than the actual FRU and police crackdown, was the complete cover up of the Mainstream Media. The government went all out to deny the public the truth, and published their own version of events. This is despite an enormous amount of photographic and video evidence, which were posted in real time as the event occurred. 

So perhaps the true question to ponder is that, despite promised reforms in the law, including the repeal of the ISA and introduction of the Peaceful Assembly Bill, what is the check and balance to prevent Ministers from abusing their discretion under the Acts or issuing extra-judicial proclamations? 

Section 27 of the Police Act

The law causing the most amount of controversy is section 27 of the Police Act 1967 which deals specifically with illegal assembly. Under the draconian law, it was seen as a serious inhibition of any kind public assembly and gave the police the power to detain persons involved without a warrant (s27(6)). 

Holding a demonstration requires a police permit, and the senior district police officer has the absolute discretion to approve or deny the permit. Additionally under subsection 2, they can cancel the permit at any time. Police also "may do all things necessary for dispersing them and for arresting them". The scope of this provision is massive, which would protect the police from any allegation of brutality. 

There is no doubt that this section has to be abolished. It is fundamentally unconstitutional as it contravenes Article 10 of the Federal Constitution which guarantees the right to assemble peaceably. After a huge amount of pressure, the BN government appeared to relent by tabling the Peaceful Assembly Act. 

Truly a reform?

After a lot of condemnation from the Bar Council and Opposition MPs, we have to examine whether or not it should be called the "Anti-Assembly Bill" or "Illegal Assembly Bill" as proposed by some quarters. 

Notice of the assembly was proposed to be 30 days, which has since been revised to 10 days, after Myanmar's assembly bill which specified a 5 day notice period put us to shame. Under the Police Act, no time period is specified. However the need for a police permit is eliminated. I would take this development to be a good thing. 

However, let's look into the more contentious part of the bill. The fines of RM10,000 for participation in what is deemed as an illegal assembly, the prohibition of children at gatherings, limits in proximity to public places, places a complete ban on street demonstrations and the same scope of power given to the police as under section 27 of the Police Act. This throws up a lot of issues which would potentially cripple the freedom to assemble as under Article 10 of the Federal Constitution. 

Firstly, the fine of RM10,000 is clearly to deter anyone from coming to a protest or demonstration. Who can afford to be RM10,000 out of pocket? So, even if the cause is legitimate and of national concern, if the police uses their discretion to prohibit the assembly, the citizen is penalised heavily as a result? 

The prohibition of children is contentious as gatherings are supposed to be peaceful, and families would bring their children along with them. Penalising the parents for bringing their children along, rather than leaving them at home alone would be another reason for people to avoid protests. Additionally, there is the question of enforcement. When tear gas and chemical laced water are fired, would the police round the children up first? Unthinkable. 

With the list of restricted places so extensive, it appears that protest cannot happen unless you are out in the countryside! The government would say that this is to protect the interests of the people, but basically it is to give the police an excuse to accuse the group of being in a prohibited area, and thus have the authority to disperse the assembly. This would be especially true of any ceramahs held by the Opposition parties, and would affect whoever is in Opposition in future.

No to Street Demos

However, the one thing that riles up opposition MPs more than anything else, is the prohibition of street demonstrations, and that police are afforded the same scope of powers under the Bill. This would mean that Bersih 2.0 would be handled in exactly the same way under the new law as the old. For many, this is unacceptable.

Not everyone agrees with street marches, demonstrations or protests, but to place a complete ban on it would contravene the spirit of Article 10 of the Federal Constitution. Even our courts agree, as found in Cheah Beng Poh & Ors v Pendakwa Raya [1983] 1 LNS 65. The High Court Judge Hashim Yeop A Sani opined the following:

“The court as guardian of the rights and liberties enshrined in the Constitution is always jealous of any attempt to tamper with rights and liberties. But the right in issue here i.e. the right to assemble peaceably without arms is not absolute for the Constitution allows Parliament to impose by law such restrictions as it deems necessary in the interest of security and public order. In my view, what the court must ensure is only that any such restrictions may not amount to a total prohibition of the basic right so as to nullify or render meaningless the right guaranteed by the Constitution.” 

In the case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507, Federal Court Gopal Sri Ram opined the following:

“Now although the article says ‘restrictions’, the word ‘reasonable’ should be read into the provision to qualify the width of the proviso… The correct position is that when reliance is placed by the State to justify under one or more of the provisions of Article 10(2) of the Federal Constitution, the question for determination is whether the restriction that the particular statute imposes is reasonably necessary and expedient for one or more of the purposes specified in that article.”

Therefore the BN government cannot impose a complete ban on street protests unless they are willing to run afoul of the constitution.

Law vs Freedom

So is there a need for a law to govern Article 10, or shall we just leave the law as it is? I believe that we certainly have a need for a law to govern this. However, does making a law impinge on our ability to exercise our rights as per the constitution?

The issue of peaceful assemblies has certainly been a contentious one in our country, and most recently we saw 300 people gathering in KLCC park in protest of this very bill. But is it correct to allow an absolute freedom? Some argue that societies with sufficient maturity should not have their rights infringed upon by legislation.

However, I would liken this to removing all the lines, traffic lights, zebra crossings and speed limits on our roads. Now people are truly free to drive on the road, but would you dare? True freedom has boundaries. That way, we know the parameters to operate within.

Therefore, a Peaceful Assembly Bill is certainly essential. However, does the current piece of proposed legislation do us justice? I would submit that it does not. Laws must give space and act as guidelines, but not to the extent that it is stifling.

What are the main issues? One is public security, and the concern that a protest may turn violent. Where this is indeed the case, the burden of responsibility should lie on the shoulders of the culprits and the organisers. What this would do is that protestors would be able to self-police in order to avoid such incidents from occurring.

How about public order? This is where the police come in. If it is indeed a street protest, the police can cordon off the route and ensure that order is kept by escorting the procession to their final destination. This would ensure that there is no damage done, and the peace is kept. Traders along the way may experience a small interruption, but a business blackout like during Bersih 2.0 would not occur.

I believe that our Prime Minister is serious about making Malaysia “the world’s best democracy”. However, Malaysia as a member of the United Nations Human Rights council should surely be held to a higher standard. 

On Tuesday, lawyers from the Bar Council and others will march to parliament. Najib has a golden opportunity to do the right thing. Heed the voice of the people and make the appropriate amendments.


Written for Free Malaysia Today

(http://www.freemalaysiatoday.com/2011/11/29/is-freedom-truly-free/)

Also published on:

Malaysia Chronicle (http://www.malaysia-chronicle.com/index.php?option=com_k2&view=item&id=23597:is-freedom-truly-free?&Itemid=2)
The Malaysian Insider (http://www.themalaysianinsider.com/sideviews/article/is-freedom-truly-free-douglas-tan/)

BERSIH 2.0 overcomes the police state

July 10th, 2011 by William de Cruz, Guest Contributor



Malaysians and their supporters gathered in capital cities around the world today in Bersih 2.0 Global solidarity walks as the Opposition leader in their home country lay injured after a violent government crackdown on a peaceful Kuala Lumpur call for electoral reform.

An estimated 50,000 Malaysians took to the streets of KL in defiance of a government ban and even as Bersih 2.0 leaders were arrested.

Helicopters hovered over the capital amid heavy rains and Federal Reserve Unit troops blocked KL’s main arterial roads, but Malaysians proved unstoppable in their determination to stare down a belligerent government that had disallowed and demonised a public gathering for free and fair elections.

They staged an advance-retreat-advance street strategy against a massive police and riot squad presence, sustaining tear-gas and water-cannons attacks, overcoming roadblocks and the cancellation of all public transport across Malaysia’s richest urban centre.

Tear-gas canisters were also fired into Tung Shin Hospital in Jalan Pudu, KL, as riot squads targeted marchers who kept trying to avoid the roadblocks.

Developments in the violent state crackdown on the peaceful Bersih 2.0 rally were relayed to crowds across the world via Twitter, Facebook, mobile phones and wi-fi driven laptops and iPads.

PKR vice-president Nurul Izzah Anwar told New Mandala, “Malaysia is effectively a police state,” speaking after the riot squad attack that left her father, Anwar Ibrahim, injured.

Australian state capital cities were among the first worldwide to answer the clarion call to support the second Bersih rally in KL; the first was held in 2007.

More than 750 Malaysians and their supporters in Victorian capital Melbourne were the first Down Under to hold their Bersih 2.0 rally. By day’s end, Sydney, Canberra Adelaide, Perth and Brisbane saw politicians, union officials, Singaporeans and friendly NGO representatives add their voices to the widely embraced KL call to return democratic integrity to Malaysia’s electoral system.

Malaysian anti-Lynas campaigners from Kuantan on Malaysia’s east coast joined the Town Hall rally in Sydney’s Town Square, which saw nearly two hours of speeches, personal stories, skits and music on a wintry but sunny mid-afternoon.

As Australians joined hands with Malaysians, the Bersih 2.0 Global roll call drew in Geneva, London, Cork (Ireland), Paris, Taipei, Seoul, Tokyo, Hong Kong, Jakarta, San Francisco, Los Angeles, New York and Washington DC.

Bersih 2.0 leaders said at least 50,000 people took to KL byways, alleys and lanes, many pouring out of hotels they had booked into days ahead to avoid having to manoeuvre past blocks on arterial roads.

National laureate A. Samad Said, arrested mid-week and later released, said at Merdeka Stadium that their rally was a “great success”.

“I have never seen all the races in Malaysia so united for one cause before,” Samad said.

Anwar Ibrahim was hurt in the head when tear-gas canisters were apparently fired directly at him.

Daughter Izzah said her father had “sustained head injuries, receiving urgent medical attention”.

“The FRU had fired tear gas canisters directly at him, and I fear for the worse,” Izzah said soon after the attack.

“YB Khalid Samad underwent six stitches at the back of his head after being hit by a tear-gas canister. They were all in the tunnel at KL Sentral in Brickfields.

“It was a blatant show of brute force by the police, under orders of the Minister for Home Affairs and the PM.

“Malaysia is effectively a police state.”

“All my sisters, my mum, my husband were with me – concerned citizens who will continue the fight alongside so many courageous others to ensure we realise a truly fair, clean and transparent election system.”

Another Bersih 2.0 walker who survived the attacks said: “I am enraged. We must vote out UMNO-anchored Barisan Nasional.

“They are liars and cheats. There is nothing honourable about them.

“From here on, no supporter of BN is a friend.”

In fact, madness had already begun stalking Malaysia when police days before began arresting people for wearing yellow T-shirts.

Arrested this afternoon in KL were Bersih 2.0 chair Ambiga Sreeneevasan, chief of women’s rights group Empower, Maria Chin Abdullah, PAS president Haji Hadi Awang, Nurul Iman Anwar, sister to Izzah, and an unknown number of Opposition leaders, who were among more than 1,400 Malaysians detained by police at time of writing.

Less than two hours after the arrests, Opposition coalition member PAS threatened to mobilise one million of its members in a second rally if all detainees from today’s gathering were not released unconditionally within 24 hours. PAS helpfully announced exactly where these one million Muslims would descend – police headquarters at Bukit Aman, KL, and the main station in Jinjang, to the city’s north.

Ambiga was duly released by police (6.30pm, KL time). Speaking as a free Malaysian again, she said Malaysians have shown courage in the face of government intimidation.

The “amazing” turnout was a sign that “we do not want to be bullied anymore”.

“Rough intimidation does not work anymore,” said the Bersih 2.0 chair, effectively declaring a people’s victory in the face of an unconscionable and violent suppression by Najib Razak’s prime ministership of a matter as simple as his fellow citizens’ right to a democratically legitimate election system.

Bersih 2.0 was no more than a widely embraced call in Malaysia for just that, with eight specific reforms that 62 NGOs of varying persuasion and colour had considered needed urgent implementation if Malaysia was to actually be considered a practising democracy.

But a backward-running Putrajaya publicly interpreted a call for free and fair elections as a shout to topple the government. The triumvirate of PM, DPM and Home Minister basically bull-horned to the world that it could not stomach an independently accountable system by which the rakyat would choose their parliamentary representatives.

They were, and are, afraid of losing that much more ground come G13.

And maybe more.

In fact, Najib, Muhyiddin Yassin and Hishammuddin Hussein did not even want to discuss the reform memorandum, and had rebuffed all requests to simply accept the Bersih 2.0 document.

Following a rare intervention by Sultan Mizan Zainal Abidin, the constitutional monarch, Ambiga walked the talk of the obedient subject and opted for KL’s Stadium Merdeka, instead of a million flowers blooming on the streets.

But Malaysia’s new, less than loyal Trio continued to demonise and antagonise the Bersih 2.0 leader, who maintained a stately but unmoving commitment on behalf of the promise of a new future.

It would be stealing the monsoonal thunder from Bersih 2.0 to say Najib, Muhyiddin and Hishammuddin totally ‘lost it’.

The fact is, even with violence, bullying, threats, roadblocks ringing a capital city and the cancellation of weekend permits for private buses coming into KL and public military exercises where soldiers carried placards saying, ‘Dismiss or we will shoot’ in choice Malaysian tongues and the police deeming 91 eminent Malaysians persona non grata everywhere else in KL except in Merdeka Stadium on a soon to be fateful Saturday 9 July 2011 and what do you expect, helicopter them in?, and sudden emergence of weapons hoards that just must be linked to Bersih 2.0 and look, everyone, they even left bundles of signature-yellow T-shirts right next to the parangs for you to find and riot squad troops playing house in university grounds and elected leaders chorusing that if you want free and fair elections you must want to topple the government, and who are you, anyway, to think you know what you want and you’re going to get it, even after all that, it was Bersih 2.0 that had won.

The people chose to exercise their right to speak. They were not the violent ones.

Forty-two years since Malaysia’s ruling coalition first brought the country to the brink, Najib & Co again dared the unthinkable.

But Bersih 2.0 did not blink.

Back in Melbourne, Australia’s Bersih 2.0 co-ordinator, David Teoh, already looking at tomorrow, said the chapter would offer to the High Commission in Canberra all the volunteers necessary to help formalise, administer and oversee a postal vote system for those wanting to have their say in G13.

On 9 July, 2011, Malaysia’s Bersih 2.0 won for the people the right to speak, and put an end to the idea that more than a half-century of suppression of that fundamental tenet of democracy would be allowed to go on indefinitely.

As every finality has its own new beginning, Malaysia, all of 54, has arrived at its future.

IN BRISBANE, Mary O’Donovan wrote: A crowd of about 100 people gathered by 11am, dressed in different hues of yellow.

With a background of a banner emblazoned with the words Bersih 2.0 and the eight reform demands, the day began with a welcome speech that was followed by a period of silence for our friends and loved ones in KL today.

Many speakers took to the microphone, including Ng Sze Han, and amid laughter at his requiring sunglasses so he couldn’t be recognised, he spoke at length of the changes required, and many reiterated his stance.

We sang Negaraku with pride and the solidarity was apparent among us. We called out, What do we want? A fair and free election! When do we want it? NOW! As fliers were handed out, a few spoke to the passing crowd, informing them of the situation in Malaysia.

Although not among our friends and family in KL, we did all that we could, on a cold and blustery morning, in the heart of Brisbane, to support Bersih 2.0.

IN PERTH, Soon Yee Yap wrote: What a turn out it was, considering the grey skies and cold breeze. The really eager turned up by 1pm, well before we were due to start.

Must have been close to 300 in a racially-balanced crowd, packed like sardines on the 4m-wide verge in front of the Malaysian Consulate at Adelaide Terrace. Those who wanted more personal space went across the road.

At least a dozen blues – in yellow vests! – were on hand to assist with crowd control, and they were joined by plain-clothes AFP from the Dignitaries Section.

Suspect SB personnel were mingling with the crowd, as we sang, Negaraku. Many spoke of their surprise at the turnout, in spite of the oppression, threats and lies. But it was an event that the people wanted.

IN LONDON: More than 500 Malaysians from across Britain travelled to London to take part in a solidarity march today, speaking out for clean and fair elections. As 50,000 Malaysians faced tear gas and police brutality in Kuala Lumpur, the London Bersih 2.0 faction enjoyed full police co-operation with the peaceful demonstration.

The initial group of peaceful protesters – a well mannered cross section of our nation, young and old alike – started out in front of the Malaysian High Commission as early as 10 am, although the protest was not timed to start till noon, wielding placards with slogans such as, ‘Shame on you Malaysian Government‘, ‘Free and Fair Elections’ and ‘Release our leaders now!’

Crowd-chanting swelled with shouts of ‘Bersih! Bersih! Bersih!’ when a memorandum echoing the Bersih 2.0 electoral-reform demands was put through the letter box of the commission.

The high-spirited crowd with yellow Bersih T-shirts, balloon hats and Malaysian flags then marched past famous London landmarks such as Buckingham Palace and St James Park, enroute to Trafalgar Square, long the vibrant hub of free speech and assembly in London, including during South Africa’s struggle against apartheid, anti-ISA protests during Operasi Lalang and the clampdown on reformasi.

The protesters stopped briefly at the Malaysian Tourism Office before the group came to a halt outside the National Gallery, where songs were sung and poems read before 100 yellow balloons were released.

Shouts of ‘Kuning, Kuning, Najib Pening’ came at the climax of the march as participants blew soap bubbles in their clean-up call. The solidarity march ended with a solemn rendition of Negaraku.

Najib Tun Razak is due in London this coming week.

IN GENEVA: Bersih 2.0 drew 12 people who met under the huge chair in front of the United Nations offices. Each person stated why they were there and what it meant to us. All were aghast at what happened in KL.

A Swiss national who joined the group said she was reminded of what she had seen in South Africa in the apartheid years.

Bob Marley’s Get up! Stand Up! was followed by Negaraku.

A letter addressed to UN Secretary-General Ban Ki Moon was handed to the UN security guards, who accepted it and promised to hand it to the Sec-Gen’s office.

Rally organisers Malaysian Association of Geneva also called for a Q&A session with Malaysia’s ambassador to Switzerland. At press-time, they were still waiting for an official response.

IN PARIS: The setting was the Trocadero platform with the Eiffel Tower as background. About 30 Malaysians and friends came out to support the cause. We collected over 60 signatures from people of different parts of the world and, of course, Malaysians. Several hundred bi-lingual (French and English) flyers were also distributed.

The rally kicked-off with a passionate rendition of Negaraku, and the rest of the afternoon was spent talking to people about the situation in Malaysia. Many came forward to write words of encouragement on our giant banner.

Parisian police were very cordial and professional, and came to check to make sure everything went smoothly.

We ended the day with another heartfelt rendition of Negaraku, and everyone left with hopes in their hearts for change back home.

Extracted from http://asiapacific.anu.edu.au/newmandala/2011/07/10/bersih-2-0-overcomes-police-state/