minutes EGM of the Malaysian Bar | 11 May 2012

Held on 11 May 2012 (Friday) at 3:00 pm at the Grand Ballroom, Sunway Putra Hotel, Kuala Lumpur

The Chairman, Lim Chee Wee, called the Extraordinary read the views expressed by fellow Members via both General Meeting of the Malaysian Bar (“EGM”) to order mainstream and social media. At the outset of the at 3:23 pm when the quorum had been reached. meeting, a ten-minute video clip of the events pertaining to the BERSIH 3.0 rally, which had been put together using He thanked the Members of the Bar for their presence footage taken by Members of the Bar, was screened. and support. He remarked that Members would have

“Motion in relation to the events of and surrounding the BERSIH 3.0 public assembly on 28 April 2012, and matters in connection therewith”, proposed by Lim Chee Wee (Chairman, Bar Council), on behalf of the Bar Council, dated 4 May 2012. Whereas: (A) A public assembly was called for and organised by BERSIH 2.0, a coalition of 84 NGOs, on 28 April 2012 for electoral reforms. The public assembly was commonly known as BERSIH 3.0;

(B) Dewan Bandaraya Kuala Lumpur refused to allow the assembly at Dataran Merdeka, as chosen by the organisers, and insisted on the use of alternative venues;

(C) Despite the Minister of Home Affairs having twice asserted that the BERSIH 3.0 assembly was not a security threat, the police obtained an ex parte order from the Magistrates’ Court on the evening of 26 April 2012 restraining Dato’ Ambiga Sreenevasan, the organisers of the BERSIH assembly and members of the public from gathering at Dataran Merdeka;

(D) The police announced, after obtaining the court order, that participants were permitted to gather at various points in Kuala Lumpur, except Dataran Merdeka;

(E) It has been reported by various news agencies that there were between approximately 30,000 to 250,000 people gathered for the assembly in Kuala Lumpur on 28 April 2012. The Malaysian Bar monitoring team estimated the crowd to be at least 100,000 people;

(F) The crowd that gathered that day reflected a broad cross-section of Malaysian society, and was peaceful;

(G) There were police barriers set up at every point/road leading to Dataran Merdeka, most of which consisted of metal gates, water-filled dividers and razor wire;

(H) There was massive police presence: approximately 14,000 personnel were reportedly deployed (including personnel from the Federal Reserve Unit) together with water cannons. It was observed that a substantial number of police personnel did not display their police identification numbers on their uniforms;

(I) At approximately 2:35 pm the organisers of the assembly, through its Co-Chairperson Dato’ Ambiga Sreenevasan, announced that the assembly had concluded and requested that the crowd disperse;

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(J) The police were initially restrained. However, this changed at approximately 3:00 pm, when there was a breach of the perimeter barriers set up at the junction of Jalan Tun Perak and Jalan Raja;

(K) The police then responded by unleashing water cannon and firing successive volleys of tear gas directly into the crowd gathered at that junction, and along Jalan Tun Perak, Jalan Tuanku Abdul Rahman and Jalan Raja Laut. Similar police action was reported at other points where crowds had gathered;

(L) The Malaysian Bar’s monitoring teams reported witnessing the use of heavy-handed tactics by the police, including the indiscriminate discharging of multiple rounds of tear gas directly into the crowds, without any obvious provocation, and the arbitrary use of water cannons;

(M) The police also directed their use of water cannon and firing of tear gas to box in participants rather than allowing them to disperse quickly. As participants retreated, the police should have re-established their barriers and given sufficient time to the crowd to disperse in an orderly and safe manner, instead of chasing participants and persistently shooting water cannon and firing tear gas on them. It appeared that the purpose of the police was not to disperse, but to attack, the crowd;

(N) Random, widespread and wanton physical assault and brutality by the police on members of the public and media professionals have been reported. It has further been reported that there was confiscation and/or destruction of photographs and video recordings made by members of the public and media professionals, and damage caused to their recording equipment;

(O) There were unwarranted arrests of members of the public and media professionals. The police also arrested Members of the Bar who had participated in the public assembly. Whilst in the care and custody of the police, at least three of these Members were physically assaulted and beaten, and suffered serious injuries;

(P) In response to the use of force by the police, sections of the crowd resorted to retaliatory acts, including the throwing of stones and bottles. The police responded like for like. These skirmishes between the police and sections of the crowd carried on until approximately 7:00 pm;

(Q) The police have failed to display the maturity, discipline and restraint required of a professional force. Instead of acting to calm the situation, they aggravated it and contributed to its escalation;

(R) It has been reported that the organisers of the BERSIH 3.0 assembly had not made sufficient efforts to manage the crowds or to resolve the impasse between the police and the crowds;

(S) It has been reported that between 388 and 513 persons were arrested and taken to Pusat Latihan Polis (“PULAPOL”), Jalan Semarak, Kuala Lumpur. The Malaysian Bar’s urgent arrest team, comprising members of the Bar Council Legal Aid Centre (Kuala Lumpur) and volunteer lawyers, were present at PULAPOL to assist and represent the arrested persons. However, the police refused to allow them access to the arrested persons despite repeated requests by both the lawyers present and the arrested persons. This denial of access to legal representation is a violation of Article 5 of the Federal Constitution and section 28A of the Criminal Procedure Code;

54 | 2012/13 annual report (T) The right of every citizen to freedom of speech and expression, and to assemble peaceably, is enshrined in Article 10 of the Federal Constitution as well as Articles 19 and 20 of the Universal Declaration of Human Rights;

(U) The right of every person to life and liberty, including the right not to be assaulted or harmed, is enshrined in Article 5 of the Federal Constitution as well as Article 5 of the Universal Declaration of Human Rights; and

(V) The Malaysian Government, as a member of UNESCO, is aware of the Medellin Declaration on Securing the Safety of Journalists and Combating Impunity, adopted at the UNESCO Conference on Press Freedom, Safety of Journalists and Impunity on World Press Freedom Day 2007;

Now it is hereby resolved that: (1) The Malaysian Bar views with grave concern, and condemns:

(a) the excessive, indiscriminate and wrongful use of water cannons and tear gas by the police on participants of the assembly;

(b) the action of the police in not allowing the crowd sufficient time to disperse in an orderly and safe manner, and instead chasing the participants and attacking them by persistently shooting water cannon and tear gas on them;

(c) the tactics of the police in trapping and attacking the participants with water cannon and tear gas instead of permitting them to disperse;

(d) the random, widespread and wanton physical assault and brutality by the police on members of the public and media professionals;

(e) the unwarranted arrests of members of the public, media professionals and Members of the Bar, and the physical assault and beating of at least three arrested Members;

(f) the unjustifiable and unlawful confiscation and/or destruction of photographs and video recordings made by members of the public and media professionals, and damage caused to their recording equipment; and

(g) the lack of discipline and professionalism of the police;

(2) The Malaysian Bar calls for the police to identify their personnel involved in the misconduct and unlawful acts and surrender all the wrongdoers, in particular those who assaulted members of the public, media professionals and lawyers, for prosecution;

(3) The Malaysian Bar renews our call on the Government to give effect to the recommendation of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police to set up the Independent Police Complaints and Misconduct Commission recommended therein, without further delay;

(4) The Malaysian Bar calls for the Minister of Home Affairs and the Inspector General of Police to issue a public apology for the actions and conduct of the police, including the excessive, indiscriminate and wrongful use of water cannons and tear gas;

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(5) The Malaysian Bar calls for the Minister of Home Affairs and the Inspector General of Police to issue a public apology to members of the public, media professionals and lawyers who were assaulted or beaten by the police;

(6) The Malaysian Bar calls for the setting up of an independent commission to recommend and formulate proper guidelines or operating procedures governing conduct of police in the control and management of public assemblies, and the use of non-lethal and lethal weapons, which would be in accordance with internationally- accepted standards, in particular the Code of Conduct for Law Enforcement Officials (adopted by United Nations General Assembly resolution 34/169 of 17 December 1979) and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials 1990;

(7) The Malaysian Bar calls on the Government to pay just and proper compensation to members of the public, media professionals and lawyers who were assaulted;

(8) The Malaysian Bar condemns the police for denying lawyers access to arrested persons and calls upon the police to abide by and give effect to Article 5 of the Federal Constitution and section 28A of the Criminal Procedure Code;

(9) The Bar Council will look into how it can assist those denied their constitutional rights and those who were assaulted to pursue claims against the relevant parties for just and proper compensation;

(10) The Malaysian Bar calls on the Government, in line with the Medellin Declaration, to:

(a) prevent crimes against media professionals, investigate and penalise such crimes, provide witness protection for those testifying about them and ensure that the perpetrators do not go unpunished;

(b) promote awareness and train Malaysian law enforcement agencies to respect and promote the safety of media professionals, and ensure that they are able to work in full security and independence; and

(c) take resolute action for the safety of media professionals and ensure respect for their professional independence;

(11) The Malaysian Bar calls on Dewan Bandaraya Kuala Lumpur to uphold freedom of assembly and the right of all to utilise Dataran Merdeka for public assemblies; and

(12) The Malaysian Bar reaffirms the right of individuals to participate in public assemblies. Such right must however be exercised in a peaceful and responsible manner. The Malaysian Bar reminds organisers of public assemblies of their responsibility to take all reasonable action to ensure a peaceful assembly.

The Chairman explained why Bar Council (“BC”) thought would be played occasionally during the meeting. The it necessary to convene the EGM. The first reason was second reason was to allow Members to listen to how to give Members an opportunity to see and hear a law and order had broken down, and descriptions of firsthand account of events that had taken place on the police brutality, the extent of which had not been seen day of the BERSIH 3.0 rally, through the video clip which in Malaysia since the crackdown on the “Reformasi”

56 | 2012/13 annual report rallies in 1998. The third reason was to allow a debate option. The Chairman pointed out that even the SOPs of the motion proposed on behalf of BC. The fourth for Egypt and the Philippines referred to restraint in reason was the refusal by the police to admit any fault. the use of force. In Kashmir, the SOP called for tear gas canisters to be launched by law enforcement officials The Bar had not held an EGM after the BERSIH 2.0 in a parabolic fashion and not at body- or eye-level. If rally in 2011 because of the subsequent Human Rights Members were to look at what happened in the BERSIH Commission of Malaysia (“SUHAKAM”) inquiry that was 2.0 and BERSIH 3.0 rallies, the five-stage approach held. SUHAKAM’s report in respect of that inquiry had was not adhered to by our law enforcement officials been recently released. The events that unfolded at the when dealing with rally participants. Annexure 1 of BERSIH 3.0 rally on 28 Apr 2012 pointed to the failure the Final Report contained a timeline of observations of the police in learning from its past mistakes, such as by individual monitors, and photographs taken by the disproportionate and excessive use of force, the them. There were at least 11 separate incidents of refusal to wear identification tags and the boxing-in of police brutality recorded at various locations. The demonstrators. These mistakes had been identified by roving monitoring team comprised two Office Bearers SUHAKAM, following inquiries into the Kesas Highway, (Christopher Leong, the Vice-President, and Steven Bandar Mahkota Cheras, and KL Convention Centre Thiru, the Treasurer) and two other Members of the Bar incidents, and the BERSIH 2.0 public assembly. At the (Ramdas Tikamdas and M Ramachelvam). BERSIH 3.0 rally, there was an unprecedented attack on, and harassment and intimidation of, media personnel The Chairman highlighted paragraph 1.3 of the Final by the police, and all forms of recording by them and the Report, which contained a summary of 10 observations Bar’s monitoring team, as well as recording equipment, that had been categorised. The first category covered were seized. the carnival-like atmosphere before 3:00 pm; the second, the assault by the police using disproportionate On behalf of BC, the Chairman apologised for not having force to disperse the crowd; the third, the situation circulated the Bar’s Final Report on the BERSIH 3.0 after the breach of the outer police perimeter barrier at public assembly to Members earlier, as it had only been Dataran Merdeka, which resulted in the police chasing finalised the previous day. The Interim Report had been the demonstrators. The Final Report also contained released a few days after the public assembly. The Final observations concerning the unruly behaviour of some Report consisted of the monitoring team’s observations, demonstrators. Paragraph 1.4 contained observations a discourse of the issues, the position of the law in by the monitoring team that covered the BERSIH 3.0 Malaysia, what is applicable to local law enforcement rallies held in four other places, namely Ipoh, Johor officials, and references to the United Nations (“UN”) Bahru, Kuantan and Malacca. These rallies were Code of Conduct for Law Enforcement Officials and UN peaceful because of the cooperation between the Basic Principles on the Use of Force and Firearms by Law police and the participants. Paragraph 1.5 dealt with Enforcement Officials. There was also a comparative the denial of access to the “urgent arrest” team of analysis of Standard Operating Procedures (“SOPs”) of lawyers to meet detainees at PULAPOL from as early as foreign jurisdictions: the District of Columbia, Victoria, 5:00 pm. Lawyers were clearly discriminated against, Kashmir, Egypt and the Philippines. What was missing because members of the mainstream media and two is the SOP for law enforcement officials in Malaysia on SUHAKAM Commissioners were allowed access into the use of non-lethal force such as tear gas and water PULAPOL. The Chairman said that the Vice-President cannon (excluding firearms). The international SOPs and he were in constant touch with the top hierarchy have five stages, the first of which is verbal persuasion to of the police force to try to obtain access, but their disperse, which involves engagement between police/ appeals were rebuffed. The reason given was that the law enforcement officials and participants. The use police were in the midst of processing the detainees of force, including non-lethal force, should be the last before releasing them. The last detainee was released

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on the following morning, at approximately 5:15 am. (4) 3:40 pm, Wisma Kraftangan, Jalan Tun Perak

The Chairman highlighted a number of specific Suddenly a Malay man was surrounded by some observations by the monitoring team that were five to six police officers and these police officers contained in the Final Report: were seen beating him. Monitor was unsure whether the man was arrested. (1) 2:40 pm, in front of DBKL building (5) 3:50 pm, in front of DBKL Building, Jalan Raja Laut A monitor noticed police officers ran backwards towards the police trucks. The monitor did not A man who had been arrested was beaten up by hear any warning sound given by the police a police officer as the man tried to cover his face but then water cannons were sprayed and tear when a photographer wanted to take a close-up gas was fired towards the crowd. The crowd picture of him. dispersed towards DBKL building. DBKL officers did not allow the crowd to take cover in the area. The Chairman said that based on the international SOP, police were not prohibited from firing tear gas into the The Chairman said that one of SUHAKAM’s reports middle of the crowd, but it was a given that such a thing contained a recommendation about the need for the should not be done, as it would not be consistent with police to give two rounds of warning at 10-minute the objective of dispersing the crowd, and was more intervals. According to our observers, no warning akin to assaulting them. If the police wanted the crowd was given at certain places, whereas in other places, to disperse, they must engage the crowd first, and if the insufficient warnings were given at two- to three- crowd still refused, then the police could fire tear gas minute intervals. in front of it, but not directly into its midst. The video clip covering Jalan Tun Perak showed the police firing (2) 2:53 pm, Jalan Tuanku Abdul Rahman at least five rounds of tear gas into the middle of the crowd, which was packed body-to-body. Demonstrators A monitor saw police launched water cannons and were boxed-in at either end and had nowhere to go to fired tear gas without any warning. The crowd ran disperse. Tear gas was fired at both ends. Again, this helter-skelter. Tear gas was fired almost non-stop. was inconsistent with any SOP on the use of tear gas.

The Chairman said that to date, the police had not The Vice-President, Christopher Leong, who had been disclosed how many tear gas canisters were used on the leader of the roving monitoring team stationed at that day but, according to media reports, at least 40 Jalan Tun Perak, expressed gratitude for having been canisters were discharged. right in the middle of events that day as he was able to share his personal experience with Members and (3) 3:00–3:30 pm, Jalan Tun Perak, in front of CIMB provide them with a firsthand account of what had Bank, opposite the old court happened. He said he could feel the jubilation and strength of the crowd that had gathered very early in Monitors witnessed tear gas being shot into the morning, as the participants knew that they were the middle of the crowd, which is when the not alone. They were surrounded by a great number crowd started to panic and many were pushing, of fellow Malaysians who saw it important enough to to disperse from the area. A Malay man who attend the assembly, which was peaceful right up until had fainted was seen in front of the OCBC Bank 3:00 pm. The assembly stretched from Menara Maybank building, where some helped by rubbing salt on at Jalan Tun Perak, right up to the roundabout at Bank his face. From the wounds seen on his body, he Negara Malaysia at 2:00 pm. The Bar’s monitoring team might have been hit by tear gas.

58 | 2012/13 annual report estimated the crowd, which was packed body-to-body, Eventually, the crowd moved back towards Jalan at that stretch to be approximately 60,000 to 70,000 Tuanku Abdul Rahman to see if it could get through to in number. However, there is a formula for calculating Jalan Masjid India, which again took a while due to its numbers present by square footage that would be more sheer size. The crowd also tried to get into Jalan Bunus, accurate. a lane that runs parallel to Jalan Tuanku Abdul Rahman. By that time, the police had taken positions onall Similarly, there was a packed crowd at Jalan Tuanku connecting lanes between Jalan Tuanku Abdul Rahman Abdul Rahman and Jalan Raja Laut. Around that time, the and Jalan Bunus, and were, from time to time, firing roving monitoring team moved to the junction of Jalan tear gas into the crowd that was seeking to disperse Tuanku Abdul Rahman, Jalan Raja and Jalan Tun Perak, into the Masjid India area and Capital Square (at Jalan the fateful place where a breach of the police barrier Munshi Abdullah). on the outer perimeter of Dataran Merdeka apparently occurred, much later. The roving monitoring team saw The Vice-President said that there was no reason for most of the participants seated under the midday sun the police to continue chasing the crowd that was in the middle of Jalan Tuanku Abdul Rahman and Jalan moving away from the police lines peacefully, looking Tun Perak, without any sizeable crowd moving about. for avenues in order to disperse. He asked Members At 3:00 pm, the roving monitoring team saw plumes to keep in mind the fact that it was very obvious that of smoke, which were obviously tear gas, coming the police were carrying out their job under orders past the perimeter barrier on Jalan Raja. The roving from their superiors not to allow any person to get into monitoring team then saw the crowd on Jalan Tuanku Dataran Merdeka. They achieved that within the first Abdul Rahman slowly turning around and moving away minute of the firing of tear gas at 3:00 pm. What they from the police lines in an orderly manner, towards ought to have done was to re-form the police barricade the direction of the Coliseum and Sogo Supermarket. and make a general announcement to the crowd to Because of its sheer size, the crowd could not move out disperse and give them sufficient time to do so. There fast. Credit should be given to the crowd, which did not was no reason for the police to have continued with go on a stampede. There were many voices among the their onslaught. Even if some members of the crowd crowd shouting, “Don’t run, don’t run.” It was amazing had breached the perimeter barricade, the maximum that the crowd, for some reason, and in the melee of consequence expected was that about 100,000 to the smoke and panic, listened to that one instruction. 150,000 people would have run to an open field and sat down for the remainder of the hour. It was not a The police suddenly fired about four to five volleys of tear situation where the crowd had tried to break into a gas into the crowd. Because the roving monitoring team sensitive government facility or military camp. The had initially stayed back to continue its observations, police must possess the requisites, namely, a calm they were hit by the tear gas. Later, about 50 metres state of mind and experience to make proper decisions. down the road, the monitoring team was hit again. Part Instead, they took the opposite decision of continually of the crowd moved down Jalan Tuanku Abdul Rahman firing at the crowd. The Vice-President questioned the and turned right into Jalan Melayu to escape the police balance in the whole event. who were chasing the crowd while at the same time firing tear gas at it. That crowd collided head-on with The Vice-President said that in the morning, the roving an opposing crowd of equal size coming from the other monitoring team walked from Central Market through end, where the police were also firing tear gas. When the covered pedestrian walkway to the front of the BC the two crowds collided, a huge confusion resulted building, Jalan Melayu, Jalan Masjid India and Jalan because nobody knew where to go. A few people were Tuanku Abdul Rahman. These places were tightly overcome by tear gas. One could see many members of packed with people. The Vice-President personally the crowd helping each other. witnessed businesses that had chosen to open, enjoying

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brisk sales. It had been reported in the news that some 11 separate incidents of police beatings and physical burger traders who had chosen not to open for business assaults that occurred, without any valid reason, at on the day of the public assembly had decided to set different locations. To Roger Tan Kor Mee’s question up a stall in front of Ambiga Sreenevasan’s house on whether it would cause any harm if he were to call the the day before the EGM, where a crowd of 30 had been police “anjing” the next day, the Chairman remarked present. The Vice-President questioned their business that he could go ahead, but the police might respond acumen because if they had opened for business on adversely towards him. that day, they could have sold their burgers to a crowd of over 100,000. The Vice-President clarified that the Bar’s stand is that the police must be a disciplined force because they The Chairman said that underlying the use of force were wield powers that are not in the hands of citizens. two principles contained in the two UN instruments — Before wielding the powers, the police must exercise the Code of Conduct for Law Enforcement Officials and sufficient restraint and discipline. Just because they are the Basic Principles on the Use of Force and Firearms called “sampah” or “anjing” does not justify the police’s by Law Enforcement Officials — namely, necessity and act of opening fire. However, the same standard should proportionality. apply equally to members of the public. If the police had called a member of the public “sampah” or “anjing”, Roger Tan Kor Mee of the Johore Bar said that he only it would not have been justifiable for that person to hit received the Final Report the night before through the police. email, and sought clarification from the monitoring team concerning paragraph 1.3, subparagraph (ii), Roger Tan Kor Mee asked that the Chairman and which he read out: “The use of force by the police Members of the House not misunderstand him, as he without any obvious provocation or cause…”. He agreed that police brutality is not excusable. He stressed remembered that in the Interim Report, the monitoring that the Final Report must be accurate to reflect the team reported that the police had been taunted with overall report. To his question of whether paragraph words like “anjing” and “anjing kurap”. He asked if there 1.3(ii) was inconsistent with the later part of the report, was a conflict between the Interim Report and the Final the Chairman confirmed that it was not. Roger Tan Kor Report since there was a breach of the police barricade. Mee said that he would leave the paragraph unchanged since the Chairman did not feel the same way as he did. The Chairman said that Annexure 1 of the Final Report contained observations regarding insults, taunting Siti Zabedah Kasim of the Penang Bar proceeded to and jeering by a section of the crowd. According to provide clarification on Roger Tan Kor Mee’s query a SUHAKAM report, speeches and shouting are not about the inconsistency in the two Reports. tantamount to violent behaviour by participants. Furthermore, such taunting could not be taken as The Chairman interjected and informed the House that justification for the use of force by the police, which was Siti Zabedah Kasim, together with Roger Chan Weng why the recital of the motion referred to the discipline Keng, led the monitoring team. He asked the House to of the police force. record its appreciation and gratitude to the members of the monitoring team who had put themselves in harm’s Roger Tan Kor Mee asked if the phrase “without any way during the reported assaults that took place along obvious provocation or cause” in paragraph 1.3 was Jalan Tun Perak between 4:00 pm to 7:00 pm. The crowd correct because it appeared to be inconsistent with had refused to disperse, notwithstanding a request the findings made in the later part of the Final Report. to do so by one of the rally organisers, Datuk Chua Jui The Chairman said that the findings were based on Meng, as well as the heads of the monitoring team, and the observations by the monitoring team in respect of instead played a cat-and-mouse game with the police,

60 | 2012/13 annual report throwing items at them. Likewise, the police picked up The Chairman, who has been a Bar Council member and threw the items back at the crowd. Young Members for eight years, said that the process of registration for of the Bar who were part of the monitoring team on this EGM was no different from that in past general duty at Jalan Tun Perak wanted to stay to observe and meetings over the last 60-odd years. Registration has record what was happening, but the Treasurer had told always been carried out according to the name and them that they should not be caught in a dangerous membership number of Members. situation where tear gas canisters were being fired and the road was filled with broken bottles and bricks, and Mohd Khairul Azam Abdul Aziz said that the Bar needed concrete pavement pieces, being thrown around. a transformation in order to claim back the dignity and integrity of the legal profession. He doubted whether The House also recorded its gratitude and appreciation the quorum was sufficient. He asked the Chairman to to the urgent arrest team that had been on duty from take a head count to check whether Members present 5:00 pm to 5:30 am. The Chairman said that the have a Practising Certificate. The Chairman assured importance of the Final Report and the work of the him that the quorum figure was correct and that the monitoring team should not be underestimated, as the Secretariat staff were doing a marvellous job keeping Final Report was now probably the most independent count. When Mohd Khairul Azam Abdul Aziz said and objective record of events surrounding the that he neither believed nor trusted the Chairman, BERSIH 3.0 rally, in light of the biased reporting by the the Chairman responded that Members could agree mainstream media. to disagree, and that it was up to Mohd Khairul Azam Abdul Aziz to do what he had to do next. Siti Zabedah Kasim clarified that the retaliation from the protestors came only after the police started Mohd Haijan Omar of the KL Bar related his experience acting brutally by utilising the water cannon and firing of how he became a victim of police brutality at the tear gas at them. Friends of the protestors who saw BERSIH 3.0 rally. He said he had initially been clad in a this became angry and, together with the protestors, white shirt on that day because he was supposed to be started to retaliate between 5:00 pm to 6:00 pm by on duty as an observer on behalf of Lawyers for Liberty, throwing bottles at the police and calling them “anjing”. and had been scheduled to attend a remand proceeding However, retaliation by the police was not justified, and that evening. On that day, the crowd was filled with in fact both sides were equally bad. joy and in a festive mood. He added that when he felt hot and started to perspire, he had changed into Mohd Khairul Azam Abdul Aziz of the Kuala Lumpur a yellow shirt. He then went to meet his friend at (“KL”) Bar then informed Members that he had a copy Jalan Tun Perak, and in front of the BC building. While of the Federal Constitution with him, spoke in Bahasa in the compound of Reggae Mansion (at Jalan Tun HS Malaysia and English. The following is a gist of his Lee) with his friend at about 7:00 pm, he decided to go statement: “Tadi you announced ada seribu lebih yang home because it was getting dark. As he was getting attend this EGM. But tadi, masa registration kat luar ready to leave, he received a call from a friend telling sangat-sangat longgar. Salah satu daripada tuntutan him to go to PULAPOL. BERSIH, menuntut apa sistem electoral yang bersih dan sebagainya, tapi ramai yang masuk tiada pun tunjuk Suddenly, he heard someone shouting, “Police! IC. Dalam dewan sekarang ini, berapa ramai from that Police!”, and saw a protestor being chased by two one thousand you mentioned before, adalah lawyer policemen. Mohd Haijan Omar said he was dumbstruck dan chambering student sebenarnya. Ramai juga yang to see the policemen shouting madly and jumping over dah balik. So how can you just continue with this EGM the gate of Reggae Mansion. When the policemen without a proper headcount to make sure all of them failed to catch the protestor, they suddenly turned their have a valid Practising Certificate. This is not right.” attention on him and shouted at him, but he could not

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make out what they shouted. He asked them, “Apa?”, brought to PULAPOL, where the treatment accorded to but the moment he uttered that word, the policemen him was totally unexpected, as he had thought he would charged at him and punched his face, resulting in a be beaten to death there. The police officers offered one-centimetre cut above his left eye. When he told him a meal and drink, and asked him, “Encik, adakah them that he was a lawyer, they replied, “Aku peduli anda luka? Kita ada rawatan dekat sini.” Kenny Wong apa engkau lawyer. Engkau tahu tak, dua orang Kit Lee said that every detainee was asked to show his polis dah mati pasal kau orang.” Mohd Haijan Omar or her identity card, and was photographed, without retorted, “Apa kena-mengena saya dengan polis yang any explanation. The police officers also undertook mati dan apakah kena-mengena saya berada di sini?” some documentation. Kenny Wong Kit Lee said he was The policemen continued to assault him, all the while among the last batch of detainees, who were released targeting his face, and he started bleeding profusely. after 4:00 am. According to him, not all police officers Three to five other policemen appeared behind him behaved badly, as some were friendly and kind towards and punched him from the back, gave him some “flying the detainees. kicks”, and struck his head. He was then arrested. The Chairman asked Kenny Wong Kit Lee to contact BC When Mohd Haijan Omar asked the policemen whether if he needed any help. He said that as far as the issue they were arresting him and, if so, the basis for the of identification tags was concerned, there had been arrest, they kept silent. One of the policemen then tried four SUHAKAM public inquiry reports recommending to pull him into a back alley to avoid media personnel that the police must wear their identity numbers or from taking pictures of his swollen face. Mohd Haijan name tags for ease of identification. This is something Omar said he put up a struggle to avoid being taken important that must be borne in mind. there and assaulted again. However, he was still beaten up for resisting the policeman. The policeman then Muhammad Faisal Moideen of the KL Bar sought escorted him to Dataran Merdeka through Jalan Tun clarification on a few issues. He questioned the Perak, to where all the other arrested persons were necessity for calling the EGM in haste when it could gathered. Along the way, more than 10 policemen who have been called later, bearing in mind that the Final were at Jalan Tun Perak took turns to hit and slap him. Report had only been circulated to Members the night They also uttered offensive remarks in the presence of before. He claimed that the Interim Report and the high-ranking officers, one of whom he recognised as Final Report had been hastily done, and questioned R Lingam. He was also hit with a baton by a Federal whether the monitoring team was well-equipped to Reserve Unit officer. make the findings of fact contained in the two reports, as the monitors’ perception and interpretation of what The Chairman thanked Mohd Haijan Omar for sharing they saw on that day might have been different from his unpleasant experience with Members, and asked what they subsequently inserted into the reports. He him to contact the Office Bearers if he required any questioned whether the monitoring team had been assistance. given a briefing, prior to the event, as to what to look out for, such as the patterns of firing of tear gas, to Kenny Wong Kit Lee, a pupil in chambers, said that while ascertain whether tear gas had been used in a proper he was looking for his cousin at the rally, he was suddenly and lawful manner. attacked from behind by seven to 10 policemen, who punched and slapped him for no apparent reason. He He also questioned whether BC had considered the need was arrested at 3:00 pm. Policemen kicked him while to consult an expert on crowd control before making all dragging him to a place to join other arrested persons. sorts of allegations and assumptions in the proposed He tried to identify them but could not, because none motion, which he felt was a foregone conclusion. He of them wore identification tags. He was subsequently said that facts on what had transpired were available

62 | 2012/13 annual report not only from BC but also from various other parties, contained in Annexure 1, and the video recordings by through videos, write-ups and testimonies, and an in- our monitoring teams. depth investigation ought to be carried out. If Members did not want a debate on the real issues, the House The Chairman informed the House that besides the two could just bulldoze the motion through. His concern Members of the Bar who were direct victims of police was the ultimate effect the motion might have if it were brutality, there was one more Member who suffered a passed, as it would send mixed signals to the public, similar experience, but was unable to attend the EGM to the effect that the police cannot commit acts of to give an account. He pointed out that police brutality violence, but the public can breach the court order that keeps happening again and again, as evidenced by the had been obtained. He said that Members are lawyers SUHAKAM public inquiries of 2000, 2006, 2009 and and ought to be realistic. 2012. This was not the first EGM held by the Malaysian Bar to discuss police brutality. In October 1998, an EGM The Chairman explained that members of the had been held to discuss the massive police brutality monitoring team had been briefed, and provided with arising from the crackdown on “Reformasi” rallies. a set of guidelines. A number of meetings had been As the voice of the public, the Bar must continue to held prior to, during, and after the event. Over the monitor public rallies, and convey the message that years, the Bar had played the role of observer through police brutality must stop. Regrettably, the police have its monitoring teams in various rallies. The Bar had also not learned anything. sent a watching brief team to attend the four SUHAKAM public inquiries, who had participated by way of cross- The Vice-President said that on the day of the event, a examination of witnesses and providing submissions. two-and-a-half hour debriefing session had been held The Malaysian Bar was therefore an expert on the with all members of the monitoring team at the BC principles governing crowd control and the use of non- Secretariat at about 5:30 pm, to collate details of the lethal force and firearms, and knew what it was doing. event while these were still fresh in their minds. As a result, BC had been able to come out with a response the As to whether the Interim Report was premature, the very next day, which was followed by the Interim Report Chairman said that his comment to the press that truth and, later, the Final Report. The Vice-President said that and facts are never premature was unfortunately not the Chairman and he visited the Member who had been carried in any of the newspapers. The Interim Report beaten up by the police, but who unfortunately could and the Final Report contained written observations not come for the EGM. If any Member were to see the by the six monitoring teams, and had been compiled kind of injuries on that Member’s face and body, tears based on the individual observations of 80 members. would surely be shed. Due to the very biased reporting by the mainstream media within the first three days of the event, the Office The Chairman informed Muhammad Faisal Moideen Bearers felt obliged to get the correct information that the issue of whether the motion was balanced or out to the public quickly so that they would have not would be addressed by an amendment that was an independent and objective view of the actual being drafted for Members’ approval. Muhammad events, hence the Interim Report had been prepared Faisal Moideen said that the monitoring team could not immediately after the event. The Interim Report was have been everywhere on that day, though he did not balanced because it also recorded the unruly behaviour doubt what they had seen. He asked if the information of protestors along Jalan Tun Perak. BC did not edit gathered by the monitoring team could be used to either the Interim Report or the Final Report. The assist a larger investigation. Final Report was more comprehensive. The Chairman said that BC was qualified to make the findings of fact, The Chairman said that this would be addressed shortly. as they were based on the factual observations, as With regard to the Final Report, the Chairman had

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informed Dato’ Ku Chin Wah (head of Kuala Lumpur Roger Tan Kor Mee said he raised this issue because Criminal Investigation Department) that BC would like BC had told the public not to pre-judge anything. He to meet him. He said he has no issue for BC to engage recalled that when the VK Lingam tape emerged during with the police, Attorney General, Minister of Home his tenure as a BC member, BC had wanted to hold an Affairs, and particularly SUHAKAM. EGM. As soon as the Government announced that it would set up a Royal Commission of Inquiry to look Tommy Thomas of the KL Bar referred to the concerns into into the VK Lingam video-clip, BC decided to defer raised by Roger Tan Kor Mee and Muhammad Faisal the EGM because it had not wanted to pre-judge the Moideen regarding the adequacies of the Interim issue. Another reason for his question, which he said Report and the Final Report. He said that Members was reasonable, was because he was a fierce advocate present, numbering over a thousand, had the benefit of of the independence of the Bar, and was only fulfilling the motion, containing 22 recitals and 12 resolutions, his duty as a Member of the Bar by being present at the which should provide enough material for them to EGM. He asked BC to be careful before adopting the vote on. Tommy Thomas said he had never attended motion, to avoid the accusation of having pre-judged an Annual General Meeting (“AGM”) or EGM of the Bar the issue, which was his main concern. where a report had been required in order for a motion to be debated and voted upon. That was the purpose of Roger Chan Weng Keng, a coordinator of the monitoring the recitals. He believed that the majority of Members team, proceeded to address Roger Tan Kor Mee’s present held a similar view. He challenged the premise concern, which had been echoed by Muhammad upon which Roger Tan Kor Mee and Muhammad Faisal Faisal Moideen, in relation to the phrase “without Moideen had put forward their case. He referred to a provocation” in paragraph 1.3(ii) of the Final Report. telephone conversation he had had with the Chairman, He said that rumblings had been heard, a few days during which he had requested that the recitals be earlier, that the Chairman had acted hastily, resulting kept brief because BC’s past recitals had always been in contradictions between the Interim Report and the verbose. He had told the Chairman that the 22 recitals Final Report, thereby causing dissatisfaction among were excellent because they were factual, and had been certain parties. He urged Members of the Bar not to be informed that the Vice-President had drafted them. too pedantic as the paragraph “talks about generality”. Inferences drawn from the two reports could be Tommy Thomas said that Members might agree or powerful as they were based on facts. He said he had disagree on the wording, but they did not need any been advised to put the report in context to ensure report to continue with the meeting. If Roger Tan Kor linkages, ie no break in the chain of evidence. Towards Mee and Muhammad Faisal Moideen did not agree that end, he exercised great care in telling members of with the resolution, they could vote against it. The the monitoring team to avoid making any assumption, Bar, unlike any other body in Malaysia, loves diversity judgment or opinion, and to just be factual. of opinion and encourages dissent. Tommy Thomas said that Members had come to the EGM with an open Roger Chan Weng Keng referred to the 11-page dual- mind, but some of them might have been persuaded by column table that contained substantial evidence the statements of Ranjit Singh Dhillon (of the Penang of police brutality. He alluded to the confusion that Bar), which had been reported in the media, that the Members seemed to have, arising from the words Chairman had rushed in convening this EGM. Tommy “group” and “crowd” at paragraph 26. Members should Thomas wondered why Ranjit Singh Dhillon was not not confuse a group with a crowd. A crowd consisted present, and asked the Chairman to get on with the of people numbering more than 100,000, while a vote as soon as possible. group of people means a certain section of the crowd. Paragraph 1.3 talks about a crowd. Adilah Ariffin, the

64 | 2012/13 annual report human rights officer of BC, had spent three days and Ambiga Sreenevasan, announced that the nights to ensure that all the details in the Final Report assembly had concluded and requested that the were properly drawn out without any gaps. crowd disperse.

Srimurugan s/o Alagan of the Selangor Bar, who said Mohamad Reza b Abu Hassan said that for all intents he had attended all AGMs of the Bar since he began and purposes, the BERSIH rally had ended at 2:35 pm. practising, congratulated Ambiga Sreenevasan (of He then highlighted item (J) of the recitals in the motion: the KL Bar), on behalf of the Malaysian Bar, on her marvellous and courageous job in having led the BERSIH The police were initially restrained. However, this 3.0 rally. He expressed his full support of the motion changed at approximately 3:00 pm, when there condemning police brutality. He recalled having been was a breach of the perimeter barriers set up at tear-gassed and pepper-sprayed during the Reformasi the junction of Jalan Tun Perak and Jalan Raja. rallies arising from the sacking and arrest of Dato’ Seri Anwar Ibrahim, the then-Deputy Prime Minister. He He stated that he did not support police brutality. He said that the Bar had attained enough experience in its drew Members’ attention to item (1) (g) of the motion, role as observer at public rallies. He was near Dataran which he read out in part: “the lack of discipline and Merdeka on 28 Apr 2012 when he saw James Nayagam, professionalism of the police”. a SUHAKAM Commissioner, standing near the police barricade. Srimurugan s/o Alagan told him he was Mohamad Reza b Abu Hassan noted that although the certain that the police would open fire, but James motion called for a general critique and condemnation Nayagam did not believe him. Srimurugan s/o Alagan of the police brutality, it appeared to contradict the said he left the place well before the firing started as observation, contained in the Final Report, that the he was wise enough to know that it would inevitably rallies held in Ipoh, Johor Bahru, Kuantan and Malacca happen. Although the Bar had passed numerous were peaceful. Because the police brutality was resolutions on police brutality and custodial deaths, the confined only to KL, he had concerns over the general number of such incidents kept piling up. Srimurugan nature of the motion, which was akin to the Malay s/o Alagan concluded by asking the Bar to do more than proverb, “Kerana nila setitik, rosak susu sebelanga”. just pass resolution after resolution because this was clearly not enough. The Chairman took note of Mohamad Reza b Abu Hassan’s first point and confirmed that BC’s election is The Chairman said that the proposed resolution called governed by the Legal Profession Act 1976, which BC for BC to set up a team of volunteers to advise victims was obligated to comply with. The latter agreed that of police brutality, in terms of either representation to nothing could be done unless the Legal Profession Act SUHAKAM or filing of civil suits. BC planned to meet the 1976 was amended. following day to consider other proposals. Gopal Sreenevasan of the KL Bar addressed some of the Mohamad Reza b Abu Hassan of the KL Bar, who concerns that a few Members had raised regarding the supported BERSIH’s demand for transparent elections, accuracy of the report. He said that if he were given asked how the Bar could support BERSIH’s demands a choice as to whom to believe — the monitors of his when BC’s own election is conducted by way of postal organisation led by its Vice-President, or the Inquiry vote, which is not a transparent mode. He referred Panel led by Tun Hanif Omar who had reportedly said Members to item (I) of the recitals in the motion: he would be impartial but would not stand down — he would know the option to choose, and therefore, voting At approximately 2:35 pm the organisers of the on the motion would be easy for him. assembly, through its Co-Chairperson Dato’

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A Kanesalingam of the KL Bar said that according to He said that this was something he had not seen at any Makkal Osai, a Barisan Nasional Tamil newspaper, previous Bar AGM or EGM, and he strongly urged the 250,000 people took part in the BERSIH 3.0 Bar to get on with the motion. He praised BC for the demonstration. This meant that there were 250,000 good job it was doing, and asked BC to carry on doing so. witnesses to the police brutality. A Kanesalingam said that police brutality was the first dangerous sign of power Ramdas Tikamdas of the KL Bar, who had also been a that corrupts, and he asked BC to act quickly before member of the roving monitoring team, proposed that the power corrupts absolutely. The second dangerous BC issue a public statement informing the public that sign was related to the amendment to the Criminal all victims of police brutality would be assisted by the Procedure Code that empowered the police to detain Bar by way of preparing statutory declarations, etc. people for up to 28 days without having to produce Once a group of volunteers was nominated, BC could them before the Magistrate. The third dangerous publicise the details — the specific time, date and sign was in respect of the vote taken by the Malaysian venue — of when lawyers would be available to offer Government on 29 May 2009 against the resolution of their assistance. the Office of the UN High Commissioner for Refugees (“UNHCR”) calling for an independent investigation Rathakrishna s/o Shanmugam of the Perak Bar, in into war crimes, genocide and ethnic cleansing by the expressing his support for Ramdas Tikamdas’s proposal, Government of Sri Lanka. A Kanesalingam asked the referred to the Chairman’s statement on the Reformasi Bar to be cautious. He proposed that the last sentence rallies and said that following the HINDRAF, BERSIH 1.0, in item (12) of the resolution be removed as it seemed BERSIH 2.0 and BERSIH 3.0 rallies, police behaviour to suggest that the organisers of the BERSIH 3.0 rally did not change because the Bar had not done enough had not taken all reasonable action to ensure a peaceful to make them change legally. He highlighted section assembly. 107A of the Criminal Procedure Code, which provides that a complainant, after waiting for two weeks, must The Chairman said that an amendment was in the write to the Investigating Officer and ask for a status process of being made to the paragraph. report pertaining to the investigation of the complaint. The second limb allows the victim to write to the Rajesh Kumar Sharma of the KL Bar, who had been Public Prosecutor to complain about the failure of the present at the BERSIH 3.0 rally, said that he had been Investigating Officer to give a status report. Rathakrishna charged under two alternate offences, namely, illegal s/o Shanmugam said that this task is normally done by assembly and breaking a Public Servants’ Order. He lawyers on behalf of their clients, but the Investigating would not elaborate on what had put him in the situation Officer would just ignore them. Most probably, the as the matter was subjudice, but he wanted to inform majority of the over 1,000 protestors who had been Members that if the act of helping an innocent person illegally arrested during the BERSIH 2.0 rally would have who had been injured had caused his predicament, made a police report, yet nothing had come out of it. he would go through every means to fight the charge. With regard to the BERSIH 3.0 rally, over 500 protestors He disclosed the fact that BC members had been very had been arrested. Rathakrishna s/o Shanmugam helpful and forthcoming ever since the charge. proposed that BC mention in its press statement that in order for clients to help themselves, they should write The Chairman confirmed that BC had offered assistance a letter directly to the Investigating Officer, asking for to Rajesh Kumar Sharma. a status report. If they do not succeed, they can then write to the Public Prosecutor. It can be assumed that P Arudkumaran of the Selangor Bar viewed the large the Public Prosecutor will push their letters under the presence of the police inside and outside of Sunway carpet. If there is an outcry by the public, BC could, at Putra Hotel that morning as a form of police brutality. that stage, step forward to help the clients.

66 | 2012/13 annual report The Chairman said that if the motion is adopted, BC will Abu Backer Sidek b Mohamad Zan then asked Members issue a circular asking Members to come forward as of the Bar to be brave. He said he was ashamed and volunteers to assist the victims. hated to be a Member of the Bar. He added he would ask the Government of Malaysia to set up another body Abu Backer Sidek b Mohamad Zan of the Selangor Bar so that he could have a choice as to which body to join. sought the Chairman’s indulgence to allow him to speak in Bahasa Malaysia. The gist of his statement was: Siva Segara K of the KL Bar interjected and announced that he was very proud to be a Member of the Bar. Saya telah lama tidak hadir dalam mesyuarat- mesyuarat Majlis Peguam dan rasa terpanggil hari The Chairman, in reply to Abu Backer Sidek b Mohamad ini kerana saya terfikir dan tertanya-tanya tentang Zan, said that paragraphs (P) and (12) as well as Annexure resolusi yang hanya mengatakan semuanya 1, refer to the “unruly behaviour of demonstrators”. He tentang police brutality. Saya mempunyai explained that the purpose of the EGM was not to talk seorang adik yang juga anggota polis yang telah about free and fair election, but human rights issues in dicederakan oleh anggota-anggota BERSIH (saya terms of law enforcement officials’ treatment of the call it “KOTOR”) dan hampir-hampir, kalau tidak exercise of rights. The Chairman said that he was sad ditarik dan diselamatkan oleh rakannya, telah to hear Abu Backer Sidek b Mohamad Zan telling the mati. Saya hairan mengapakah Majlis Peguam, House how ashamed he was to be a Member of the sebuah badan profesional yang dianggotai Bar. On behalf of all Members present, the Chairman oleh mereka-mereka yang bijak, hanya ingin stated that he was very proud to be a Member of the mengatakan satu resolusi tentang police brutality. Malaysian Bar. Tidak ada sesuatu pun di situ yang mencadangkan bahawa mereka yang terlibat dalam perhimpunan The Chairman proceeded to highlight the three tersebut juga tidak boleh melakukan tindakan amendments to the motion as follows: brutality. Saya datang bukan kerana untuk membela adik saya tapi untuk berkongsi. Saya Recital (J): The word “reported” was added before tak faham mengapa kita perlu berhimpun. Saya “breach”: mungkin bersetuju dengan dakwaan kumpulan BERSIH yang mengatakan bahawa terdapat The police were initially restrained. However, this penipuan seperti pengundi-pengundi hantu dalam changed at approximately 3:00 pm, when there pilihanraya. Jika benar ada pengundi-pengundi was a reported breach of the perimeter barriers hantu dari kubur yang keluar datang mengundi, set up at the junction of Jalan Tun Perak and Jalan yang menyebabkan sesuatu parti menang dalam Raja; pilihanraya secara tidak adil, adalah lebih baik, saya rasakan, daripada berdiri di tepi jalan bagi New Recital (QA): pihak tersebut mencari bukti seperti surat mati atau apa-apa surat yang boleh tunjukkan dia itu The findings and recommendations of the previous hantu dan bawa kepada Suruhanjaya Pilihan Raya four SUHAKAM public inquiries, regarding the Malaysia. Bar Council harus bertindak dengan incidents at Kesas Highway (2001), KLCC (2007), adil. Jangan katakan bahawa tidak ada seorang Bandar Mahkota Cheras (2008) and the BERSIH anggota awam pun brutality pada masa tersebut. 2.0 public assembly (2012), do not appear to have Pasti ada. Jadi kemarahan meningkat. Maka been put into consistent practice by the police; mereka akan melakukan sesuatu yang di luar kawalan.

www.malaysianbar.org.my | 67 minutes EGM of the Malaysian Bar | 11 May 2012

Paragraph (12): To Tan Keng Liang’s request that the two paragraphs be reworded for clarity, the Chairman said he would The Malaysian Bar reaffirms the right of mention the issue of access to lawyers at the press individuals to participate in public assemblies. conference that would be held after the EGM. The Malaysian Bar is however concerned by, and does not countenance, any acts of violence in Latheefa Koya of the Selangor Bar spoke in relation to a public rally. Such action by participants is not paragraph (9) and described the initiatives of a group of an appropriate response to police. Such right of lawyers was in collaboration with various civil society public assembly must however be exercised in a groups. She mentioned Lawyers for Liberty in particular, peaceful and responsible manner. The Malaysian and said that the group had started documenting the Bar reminds organisers of public assemblies of various complaints lodged by victims of police brutality. their responsibility to take all reasonable action to At least 100 complaints had been collated. Latheefa ensure a peaceful assembly. The Malaysian Bar is Koya asked the Bar to consider how it could make equally concerned by reports that certain persons use of the information gathered, apart from suing the had crossed through the police perimeters barriers Government. She said she was particularly disturbed at the relevant location even though the organisers by Tan Keng Liang’s statement that in the case of the of the BERSIH 3.0 public assembly had on 27 Apr police, the Attorney General may assist them. In her 2012 announced that participants should abide by view, the Attorney General should be looking into the the order of the Magistrate’s Court dated 26 Apr case of every person who had been injured arising 2012 and when the said organisers had at about from police brutality as it involved criminal acts. She 2:35 pm called for a dispersal of the assembly. asked the Bar to take the lead in instituting criminal action against the police because the reality was that Tan Keng Liang of the Kedah/Perlis Bar referred to resolution after resolution had been adopted by the paragraphs (7) and (9) of the motion. He contended Bar but, thus far, no serious action had been taken by that he was not taking anybody’s side, and proposed the authorities against the police. Latheefa Koya said that the recipient of BC’s legal aid be expressly stated this was the best time for BC to revive the call for the in the resolution. He asked if the police who had been setting up of an Independent Police Complaints and assaulted in the BERSIH 3.0 rally would be provided Misconduct Commission (“IPCMC”). She suggested with this aid. Though the police may get the assistance that the motion be translated into Bahasa Malaysia of the Attorney General’s Chambers, the Bar must be as Abu Backer Sidek b Mohamad Zan did not seem to seen to be impartial by extending its legal aid to them, understand the English version. as well as to people who had reportedly suffered losses during the BERSIH 3.0 rally, such as taxi drivers and Richard Teh Tai Sheng of the Selangor Bar, who had businessmen. He asked the Chairman to make a public been a member of the Bar’s monitoring team, noted statement on this as it would help solve a lot of issues. the dissenting views of certain Members and said that some Members felt that the victims of police brutality The Chairman clarified that there was nothing in the had asked for trouble since they had known what to resolution calling Members of the Malaysian Bar, expect. In his view, police brutality towards the crowd as lawyers, not to act for any police personnel who could be justified as necessary under the Police Act. He had been assaulted or any trader who had allegedly also noted that although the House had been arguing suffered a loss. The focus of the resolution wason for two hours on the issue of police brutality, no one had citizens who were victims of police brutality because raised the issue concerning the arrests of several media they do not possess any arms or power, as the police personnel and whether such arrests were part of the do. As the Vice-President had said, traders who had police force’s SOP. If the Bar’s view was that the arrests had the business acumen to open for business on that of citizens were not justifiable, then the same stand day enjoyed a thriving business. should apply to the arrests of media representatives.

68 | 2012/13 annual report Richard Teh Tai Sheng said that pursuant to the ex parte T-shirt, “Before you walk any further, please change court order issued by the Magistrate two days earlier, that T-shirt.” Lim Tuck Sun said he had not considered the restricted area covered only the compound of the request extraordinary, since the situation was still Dataran Merdeka. The first part of the rally before 3:30 tense. The unnamed lawyer replied, “OK.” As another pm had been fine and festive-like but after that, the friend proceeded to take the unnamed lawyer’s spare police had been seen chasing the crowd and firing tear shirt out of Lim Tuck Sun’s rucksack and hand it over to gas at them all over KL which, in Richard Teh Tai Sheng’s the unnamed lawyer, who had stretched his hand out, a view, looked like a cowboy town. Mass arrests and group of about eight to 10 policemen suddenly rushed police brutality took place after 4:30 pm. Nevertheless, forward and grabbed both of them. The two lawyers credit must be given to the police for allowing people to were then swallowed up by the group of policemen, travel by Light Rail Transit (“LRT”) to enter KL to attend and the unnamed lawyer was arrested. the BERSIH 3.0 rally. This had not been the case in the BERSIH 2.0 rally where participants had been picked up Lim Tuck Sun said that he and his other friends had by the police at around 10:00 am at the Komuter train gone to PULAPOL to wait to see the unnamed lawyer station. Over 1,000 participants had been arrested at who was only released at about 1:30 am. He could not that time, whereas over 500 were arrested during the recognise the unnamed lawyer, who had injuries all BERSIH 3.0 rally. This showed that the police had begun over his head, face and body. At that point, one of the loosening up a bit. residents of Jalan Gurney came out to take a picture of the unnamed lawyer and said, “Come hero, three point Lim Tuck Sun of the KL Bar enquired if it would be zero.” Lim Tuck Sun said that the police had hit the appropriate for him to discuss the issue mentioned by unnamed lawyer on the head with a baton and kicked the Chairman and the Vice-President, concerning the his stomach, resulting in a massive swelling on the head unnamed lawyer who had been arrested and beaten up and a round black bruise measuring about 3 inches in by the police and could not attend the EGM. He said he diameter on the stomach. He said that this had not would relate the incident with reference to paragraph been a case of a person who had disobeyed the police (12) of the proposed resolution concerning the right order to change his shirt. The unnamed lawyer, who of freedom to assemble. He stated that freedom to had had the right to wear the yellow shirt, had been assemble included freedom to disperse freely. Lim in the process of complying with the directive when he Tuck Sun explained that before the arrest, he and his was punched and kicked all over the face and body and five friends had been at Jalan Raja Laut. When the subsequently arrested. Lim Tuck Sun said that what police moved in, they escaped arrest and retired to the added to the unnamed lawyer’s sense of powerlessness Selangor Club, where they spent a couple of hours. was the fact that he would never be able to identify his attackers, as they had not been wearing name tags, and At around 7:00 pm, when the sun started to set, the he could not remember who they were. Since he had group of friends decided to go home. They proceeded no point of reference, it meant that he had no means of to walk up to the Masjid Jamek LRT station but were not redress. Lim Tuck Sun said that this was the reason why aware of the fierce confrontation going on there. On the resolution must be passed. their way, a group of about 100 police officers started heckling them. Most of the police officers had already Ira Biswas of the KL Bar suggested that paragraph (12) removed their Velcro-attached name tags. When one be amended by deleting the words indicated below: of them stopped the group and asked where they were going, the unnamed lawyer replied that they wanted to The Malaysian Bar reaffirms the right of individuals take the train home. The policeman told them, “Not to participate in public assemblies. The Malaysian this way, turn back.” The policeman then instructed the Bar is however concerned by, and does not unnamed lawyer, who had been wearing a yellow BERSIH countenance, any acts of violence in a public rally.

www.malaysianbar.org.my | 69 minutes EGM of the Malaysian Bar | 11 May 2012

Such action by participants is not an appropriate be condoned. In respect of paragraphs (4) and (5), response to police. Such right of public assembly pertaining to the call for the Minister of Home Affairs must be exercised in a peaceful and responsible to apologise, Roger Tan Kor Mee further proposed that manner. The Malaysian Bar reminds organisers the Bar make a similar call to Dato’ Seri Anwar Ibrahim of public assemblies of their responsibility to to apologise, because the act by a Parti Keadilan Rakyat take all reasonable action to ensure a peaceful member of removing the barrier had acted as the assembly. The Malaysian Bar is equally concerned trigger point. by reports that certain persons had crossed through the police perimeter barriers at the The Chairman said that since Roger Tan Kor Mee’s first relevant location even though the organisers of proposal had been adequately dealt with in paragraph the BERSIH 3.0 public assembly had on 27 Apr (12), he would not accept the proposal. As for demanding 2012 announced that participants should abide by an apology from Dato’ Seri Anwar Ibrahim, the Chairman the order of the Magistrate’s Court dated 26 Apr said that the Bar did not see the issue in the same way 2012 and when the said organisers had at about as Roger Tan Kor Mee did, because the Minister of Home 2:35 pm called for a dispersal of the assembly. Affairs and the Inspector General of Police wielded powers. At the time of drafting the proposed motion, Ira Biswas explained that the amendment was necessary BC came to the view that an apology would carry a because the police perimeter barrier did not cover only stronger message compared to a resignation, as people the area of the court order, but beyond it as well. She could choose to resign, but they might not apologise or enquired about the Bar’s position on the validity of the express regret for what they had done. court order, and said that if the Bar did not recognise the order, then there was no need to make reference to Khabir Saroop Singh Dhillon of the KL Bar proposed an it in the resolution. amendment to paragraph (12) by adding the following words: The Vice-President said that although the ex parte order referred to Dataran Merdeka’s patch of grass, The Malaysian Bar reaffirms the right of individuals it did state that the restricted area included the area to participate in public assemblies. The Malaysian surrounded by Jalan Raja, Jalan Kelab and Jalan Sultan Bar is however concerned by, and does not Hishamuddin. The police had, therefore, been entitled countenance, any acts of violence in a public rally to put up the barriers, as a matter of public control, to especially against the police, the press and the prevent attempts to get into the area. lawyers on duty. Such action by participants is not an appropriate response to police. Such right The Chairman said that pursuant to the Vice-President’s must be exercised in a peaceful and responsible press release, the Bar took the position that the court manner. The Malaysian Bar reminds organisers order was defective. He agreed with Ira Biswas that of public assemblies of their responsibility to reference to the court order in the resolution be take all reasonable action to ensure a peaceful removed for purposes of consistency. assembly. The Malaysian Bar is equally concerned by reports that certain persons had crossed Roger Tan Kor Mee proposed two amendments to the through the police perimeter barriers at the resolution. Although he had no issue with paragraphs relevant location even though the organisers of (A) to (G) regarding the Bar’s condemnation of police the BERSIH 3.0 public assembly had on 27 Apr brutality, he had seen troubling scenes of assault 2012 announced that participants should abide by by some protestors against the police. As the Bar is the order of the Magistrate’s Court dated 26 Apr independent, he proposed that BC emphasise that, 2012 and when the said organisers had at about from a rule of law perspective, such action should not 2:35 pm called for a dispersal of the assembly.

70 | 2012/13 annual report Khabir Saroop Singh Dhillon said that this was due Reserve Unit personnel kicking down an entire row to the current change of environment, where public of motorcycles, which had led to Tan Sri Anuar Zainal assemblies were expected to become a more common Abidin remarking, “Oh, motorcycles provoke dia ke?” occurrence. During public assemblies, it must be Sulaiman Abdullah said that no matter how grave and realised that a difference exists between participants sudden the provocation faced by the police, he would and people who are on duty. like to believe that Malaysia’s system of training the police was so good that the police could withstand any Sulaiman Abdullah of the Selangor Bar said that he provocation. If the police could give in to provocation was somewhat bemused by the debate that morning easily and retaliate, that meant that they were not a as he had been brought up to believe that there was police force, but a bunch of savages who could not no balance between right and wrong, and between control themselves. justice and injustice. He was a lawyer because he stood up for what was right and just. He believed that his Sulaiman Abdullah said that, in respect of the doubt professional organisation should also stand up for the expressed by Mohd Khairul Azam Abdul Aziz over the same principle. Between justice and injustice, there quorum for this meeting, just in case a report were to was no question of the two being evenly balanced. If be carried by Utusan Malaysia the next day stating that there was open injustice, the Bar had to say so, without BC did not have a quorum because fewer than 1,000 the need to say, “Oh! The other side suffered as well.” Members were present, he wished to remind Mohd As the Chairman had stated so eloquently, if the public Khairul Azam Abdul Aziz of the following provision had done wrong, the police would have clamped down under section 64(4) of the Legal Profession Act 1976: and arrested them, but if the police had done wrong, Sulaiman Abdullah asked who would make them The quorum for an Annual General Meeting shall accountable. Although he had not been reading as be five hundred Members of the Malaysian Bar; widely as he ought to, he said that he had yet to see and no business shall be transacted at any Annual a statement from a person of authority in Malaysia General Meeting unless a quorum is present when saying that if any police officer had done any wrong, the meeting proceeds to business. the authorities would come down hard on him. He questioned why no such statement was being made. Sulaiman Abdullah said that so long as there had been Sulaiman Abdullah expressed his concern that the Bar 500 Members at the start of a general meeting, the — as the voice of the Malaysian public and the body quorum requirement had been met. He objected very responsible for pursuing the cause of justice without strongly to the attack by Mohd Khairul Azam Abdul fear or favour — was trying to be too even-handed. He Aziz against the BC Secretariat staff, who had gone asked the Chairman to be careful not to let down the out of their way to ensure proper security in that only Malaysian public and the Malaysian Bar as a whole, in Members were allowed into the hall. his zeal to be even-handed. At this stage, the Chairman announced that although Regarding the provocation against the police, Sulaiman it was not yet 4:00 pm, 1,168 Members had registered Abdullah recalled the SUHAKAM inquiry headed by Tan their attendance. Sri Anuar Zainal Abidin, former Chief Judge of Malaya, into the Kesas Highway incident. SUHAKAM’s report Janet Lee of the KL Bar said that the situation on 28 Apr carried a statement by the police that because they 2012 had been chaotic, resulting in some demonstrators had been on duty from morning until evening without and police officers getting hurt. Members would agree being allowed to go to the toilet or eat or drink, they that the police had been rather chaotic as to how to were open to provocation. At the inquiry, SUHAKAM present themselves. She said she would like to press had been shown a video depicting a group of Federal aggressively for resolution (3) regarding the setting

www.malaysianbar.org.my | 71 minutes EGM of the Malaysian Bar | 11 May 2012

up of the IPCMC, as well as resolutions (6) and (8) and not an appropriate response to police. Such right Article 10 of the Federal Constitution. must be exercised in a peaceful and responsible manner. The Malaysian Bar reminds organisers P Suppiah of the Johore Bar proposed that the meeting of public assemblies of their responsibility to be closed as he felt that enough discussion had taken take all reasonable action to ensure a peaceful place on the motion. assembly. The Malaysian Bar is equally concerned by reports that certain persons has crossed The Chairman said that he would allow three more through the police perimeter barriers at the speakers: Ngan Siong Hing, Ragunath Kesavan and relevant location even though the organisers of Sreesanthan Eliathamby to speak before he put the the BERSIH 3.0 public assembly had on 27 Apr motion to the vote. 2012 announced that participants should abide by the order of the Magistrate’s Court dated 26 Apr Ngan Siong Hing of the Perak Bar informed Members 2012 and when the said organisers had at about that he had been the last Member to register his 2.35 pm called for a dispersal of the assembly. attendance for the EGM and that he had made every effort to come because he was afraid that there might be Ragunath Kesavan explained that there was no purpose no quorum. He expressed his gladness at the presence for the inclusion of that final sentence in the motion of more than 1,000 Members. Another reason for his since it had already been included in the recital. It was attendance was because BC and, in particular, Ambiga also not a fact per se. He expressed his amazement at Sreenevasan, had done a splendid job. Though he had the good behaviour of the crowd of 200,000 that day yet to read the motion, he believed that it contained because there had not been a single act of rioting or facts based on the images he had seen on the Internet looting reported, unlike in certain parts of the world, and via email. He said he had been in KL for a week where such acts occurred at public gatherings. He said and, on the day of the rally, he had walked from Jalan that the Malaysian citizens had been peaceful, and Tun Perak to the Royal Selangor Club. He saw a huge the suggested acts of violence against the police very number of people that day, unlike in rallies that had limited. taken place during his young days as an activist. He also saw a young lawyer whose eye was injured. In the mid- Sreesanthan Eliathamby of the KL Bar said that, having sixties, the police had fired tear gas canisters at Socialist heard the statements by other Members about the Front gatherings but now, they fired at peaceful peaceful rallies in the four states, he had some hesitation demonstrations. When lawyers wanted to sit down, in making a proposal. He noted that part of the heading the police refused to allow them. Ngan Siong Hing said to the motion did not form part of the resolution, and that personally, he was looking forward to BERSIH 4.0 proposed that it be included as indicated below: and hoped that all Members would turn up. Now it is hereby resolved that with respect to Ragunath Kesavan of the KL Bar proposed an the events of and surrounding the BERSIH 3.0 amendment to paragraph (12) by deleting the last assembly on 28 Apr 2012 in KL, the Malaysian Bar sentence as shown below: views with grave concern, and condemns:

The Malaysian Bar reaffirms the right of individuals (a) the excessive, indiscriminate and wrongful to participate in public assemblies. The Malaysian use of water cannons and tear gas by the Bar is however concerned by, and does not police on participants of the assembly. countenance, any acts of violence in a public rally especially against the police, the press and the The Chairman said that the Vice-President would work lawyers on duty. Such action by participants is on the amendment accordingly.

72 | 2012/13 annual report Voting on the amended motion by a show of hands Mark Ho Hing Kheong of the KL Bar commended Lim commenced at this stage. Tuck Sun for having spoken up for the unnamed lawyer friend who could not speak for himself at the meeting. While waiting for the results of the vote count, the The other two lawyer victims were able to relate their Chairman announced that a Criminal Law Forum would stories, though with a humorous slant, but there be organised by the Criminal Law Committee on 26 were many other victims out there who had suffered May 2012. He urged Members to attend the forum, at emotional and psychological scars and were not able which they could raise their grievances. He also invited to speak for themselves. He commended Abu Backer Members to register for the highlight of the year — the Sidek b Mohamad Zan for speaking up for his brother International Malaysia Law Conference 2012 — that [sic], the police officer, but unfortunately, the motion would be held from 26 to 28 Sept 2012. The registration was about police brutality and not about brutality by fee had been set at RM1,400. the public.

Edmund Bon Tai Soon of the KL Bar said that although To Srimurugan s/o Alagan’s request that, at the press the Malaysian Bar had passed many resolutions on police conference after the EGM, the Chairman strongly brutality, nothing positive had happened. He proposed condemn the censorship of international news by that BC consider, at its meeting the following day, that certain local media, the Chairman said he had taken a march be held from the BC building to Bukit Aman to note of the request. hand over a memorandum to the Inspector General of Police. He said that, based on the very good attendance The Chairman announced the results of the vote: the at this EGM, Members were very serious about the resolution was carried by a majority of the Members issue and therefore, BC should do the march. BC had present (939 votes in favour, 16 against, with no conducted all of its assemblies very well and peacefully abstentions). He said that for the record, 1,265 [sic] and the message had been conveyed. Merely sending Members of the Bar attended. He thanked Members the resolution to the Inspector General of Police by way for their attendance and then concluded the EGM at of letter, and putting it on the Malaysian Bar website, approximately 5:45 pm. would achieve nothing. BC would be able to achieve a little bit more by reviving the IPCMC campaign. For the record, a total of 1,270 Members attended the EGM. To Siti Zabedah Kasim’s request that BC consider changing the attire of the monitoring team from Tony Woon Yeow Thong chambers attire to something more suited to the hot Secretary local climate, the Chairman said that BC had taken note Malaysian Bar of this.

www.malaysianbar.org.my | 73 minutes EGM of the Malaysian Bar | 11 May 2012

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