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Suhakam) on 1 December 2006 BAR COUNCIL LEGAL AID CENTER (KL) REPORT OF OBSERVATIONS ON THE PUBLIC INQUIRY INTO THE INCIDENT AT KLCC ON 28 MAY 2006 ON BEHALF OF INTERESTED PARTIES Chua Tian Chang (W1), Badrul Hisham bin Shaharin (W2), Yap Weng Keong (W4), Dr. Hatta Ramli (W5), Lim Sok Swan (W6), Ronnie Liu Tian Khiew (W7), Lee Huat Seng (W8), Lua Khang Wei (W9), Lai Chee Sen (W13), Lee Khai Loon (W14), Lim Hong Siang (W15), Soh Sook Hwa (W16), Zahir bin Hassan (W17), Syed Ibrahim bin Syed Noh (W19), Lim Ban Teng (W20), Nashita binti Md Noor (W22), Ooi Tze Min (W23), Teh Chun Hong (W24), Amran Zulkifli (W25), Wong Keen Yee (W26) and Omar Tan Abdullah @ Tan Soi Kow (W27) SUBMITTED TO THE HUMAN RIGHTS COMMISSION OF MALAYSIA (SUHAKAM) ON 1 DECEMBER 2006 BAR COUNCIL LEGAL AID CENTRE (KL) 6TH FLOOR, WISMA KRAFTANGAN NO. 9, JALAN TUN PERAK 50050 KUALA LUMPUR 1 Report Of Observations On The Public Inquiry Into The Incident At KLCC on 28 May 2006 On Behalf of Interested Parties TABLE OF CONTENTS I. INTRODUCTION II. IDENTIFICATION OF THE RIGHTS ENGAGED III. ANALYSIS OF EVIDENCE OF WITNESSES IN CHRONOLOGICAL ORDER IV. OVERVIEW AND NARRATIVE OF THE EVENT V. VIOLATIONS OF HUMAN RIGHTS AND HOW THEY CAME ABOUT, WHO WAS RESPONSIBLE, ADMINISTRATIVE DIRECTIVES, PROCEDURES OR ARRANGEMENTS THAT CONTRIBUTED VI. RECOMMENDATIONS VII. ACKNOWLEDGEMENTS VIII. APPENDIX 1 2 Report Of Observations On The Public Inquiry Into The Incident At KLCC on 28 May 2006 On Behalf of Interested Parties I. INTRODUCTION These observations are forwarded on behalf of the following interested parties who also appeared as witnesses in the Inquiry. They are as follows: • Chua Tian Chang (W1) • Badrul Hisham bin Shaharin (W2) • Yap Weng Keong (W4) • Dr. Hatta Ramli (W5) • Lim Sok Swan (W6) • Ronnie Liu Tian Khiew (W7) • Lee Huat Seng (W8) • Lua Khang Wei (W9) • Lai Chee Sen (W13) • Lee Khai Loon (W14) • Lim Hong Siang (W15) • Soh Sook Hwa (W16) • Zahir bin Hassan (W17) • Syed Ibrahim bin Syed Noh (W19) • Lim Ban Teng (W20) • Nashita binti Md Noor (W22) • Ooi Tze Min (W23) • Teh Chun Hong (W24) • Amran Zulkifli (W25) • Wong Keen Yee (W26) and • Omar Tan Abdullah @ Tan Soi Kow (W27) These observations are also forwarded on behalf of SUARAM, a non-governmental organization working to promote and protect human rights in Malaysia. The Background In protest to the sharp fuel price hike announced by the government early this year, three peaceful protests had been organized by a number of NGOs, political parties and the MTUC (Malaysia Trade Union Congress) on 3rd, 10th and 26th of March 2006 in front of KLCC. On the 26th of March, the police dispersed the peaceful crowd violently and arrested 22 protestors. A number of protestors were injured due to police violence. A complaint was submitted to SUHAKAM on 31 March 2006. On 28 May 2006, the Coalition to Protest Fuel Price Hike (PROTES) once again organized a demonstration in front of KLCC to voice the plight of Malaysians who are 3 Report Of Observations On The Public Inquiry Into The Incident At KLCC on 28 May 2006 On Behalf of Interested Parties heavily burdened by the fuel price and electricity tariff hike. Unfortunately, this assembly was again dispersed by the police with force. 20 people were arrested, including one minor. Many protestors were beaten and kicked by the Federal Reserve Unit (FRU) personnel. Several protestors suffered injuries of varying severity. The tragic day was dubbed “Bloody Sunday” by observers on account of photographs of blood-stained protestors. A second complaint was lodged with SUHAKAM. After filing these complaints to SUHAKAM, civil society groups pressed SUHAKAM to hold a public inquiry into police conduct and brutality in breaking up the aforesaid demonstrations. After some months, SUHAKAM finally announced that they would hold a public inquiry into the “Bloody Sunday” incident on 28 May 2006. The Terms of Reference of the Inquiry The terms of reference of the Inquiry are as follows: 1. To determine whether there were any violations of human rights of any person or party during the incident. 2. If violations of human rights occurred, to determine: (i) which person or agency is responsible; (ii) how such violations came about; (iii) what administrative directives and procedures, or arrangements contributed to them; and, (iv) what measures should be recommended to be taken to ensure that such violations do not recur. Counsel for the Bar Council who also appeared at the Inquiry will also be submitted their observations to assist SUHAKAM with their findings. To avoid duplicity, the Bar Council and the Kuala Lumpur Legal Aid Centre shall be submitting two separate reports, and will deal with the terms of reference as follows: A. The Kuala Lumpur Legal Aid Centre shall address the evidence presented at the Inquiry and answer terms of reference 2(i) - (iv). B. The Bar Council shall address practices and legislation in other jurisdictions and also answer term of reference 2 (iv). 4 Report Of Observations On The Public Inquiry Into The Incident At KLCC on 28 May 2006 On Behalf of Interested Parties III. IDENTIFICATION OF THE RIGHTS ENGAGED After having had the opportunity to observe and take an active part in the proceedings, the Bar Council is of the view that based on the evidence presented, the following core rights of the protesters (vis-à-vis the police and FRU) were engaged: • Right to life, liberty and security • Right to freedom of opinion and expression • Right to assemble peacefully without arms This is to be juxtaposed with the conduct of the police and FRU particularly on the use of force in crowd control situations. We discuss these in turn. Right to life, liberty and security A. International human rights law 1. The Universal Declaration of Human Rights, 1948 (UDHR) 1.1 Article 3 provides as follows: “Everyone has the right to life, liberty and security of person.” 1.2 In connection therewith, Article 5 specifically states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 5 Report Of Observations On The Public Inquiry Into The Incident At KLCC on 28 May 2006 On Behalf of Interested Parties 1.3 In the event of violations of fundamental rights, Article 8 provides that everyone has the right to an effective remedy by competent national tribunals for redress of those violations. 2. The International Covenant on Civil and Political Rights, 1976 (ICCPR) 2.1 Based on provisions of the UDHR, the ICCPR reaffirmed the rights set out therein. 2.2 Article 6(1) provides as follows: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” 2.3 In connection therewith, Article 7 specifically states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment 1. 2.4 Article 9(1) reinforces the right to liberty and security of the person2. 2.5 No derogation from Articles 6 and 7 may be made under the ICCPR 3. There appears to be no specific prohibition of derogation from Article 9. However, any attempted derogation may only be permitted in a time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed. Measures taken must only be to the 1 See also United Nations Human Rights Committee, General Comment No. 7 (“Article 7: The prohibition of torture and cruel, inhuman or degrading treatment or punishment”) , 16 th Session (1982) and replaced by United Nations Human Rights Committee, General Comment No. 20 (“Article 7: The prohibition of torture or cruel, inhuman or degrading treatment or punishment”) , 44 th Session (1992). 2 See also United Nations Human Rights Committee, General Comment No. 8 (“Article 9: The right to liberty and security of the person”) , 16 th Session (1982). 6 Report Of Observations On The Public Inquiry Into The Incident At KLCC on 28 May 2006 On Behalf of Interested Parties extent strictly required by the exigencies of the situation4. This demonstrates the elevated importance of the right guaranteed under Article 9. For the purpose of this report, the evidence presented at the Inquiry does not meet the requirements under Article 4(1) allowing any derogation by a State party. 2.6 Article 2(3) outlines remedies which must be provided to any person whose rights have been violated: “Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.” 3 Article 4(2) of the ICCPR. See also United Nations Human Rights Committee, General Comment No. 6 (“Article 6: The right to life”) , 16 th Session (1982). 4 Article 4(1) of the ICCPR. See also United Nations Human Rights Committee, General Comment No. 5 (“Article 4: Derogations during a state of emergency”) , 13 th Session (1981) and replaced by United 7 Report Of Observations On The Public Inquiry Into The Incident At KLCC on 28 May 2006 On Behalf of Interested Parties 3. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1987 (CAT) 3.1 Article 16 provides that each State Party shall undertake to prevent in any territory under its jurisdiction acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture 5 when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person.
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