Christopher Leong
Vice-President
Malaysian Bar
29 April 2012
The Malaysian Bar is appalled at the abuse of the legal process and grotesque use of force by the police in connection with the BERSIH 3.0 rally in Kuala Lumpur yesterday, 28 April 2012.
The crowds that had gathered for the BERSIH 3.0 rally reflected a broad cross-section of Malaysian society, and were peaceful. The police were initially restrained, although they did try to stop people from reaching various pre-announced meeting points. However, the attitude of the police underwent a sea-change at 3:00 pm that day. The reported breach of police barricades in some areas does not justify the police unleashing the full force of their arsenal upon crowds that were peaceful. The police have shown in this incident that they do not have the maturity, discipline and restraint required of a professional force. In this regard the Malaysian Bar strongly disagrees with the Minister of Home Affairs’ assertion that the police acted professionally.
The court order excluding members of the public from Dataran Merdeka is arguably defective in law due to a lack of specificity. Given that the BERSIH 3.0 rally had been announced on 4 April 2012, there was no need to have obtained the order ex parte. There had been ample opportunity for the relevant parties to be heard before deciding if such an order deserved to be issued. In addition, the order was obtained with respect to a situation of the authorities’ own making, by their unjustifiable denial of access to Dataran Merdeka. It is important to bear in mind that the Minister of Home Affairs had previously announced that the BERSIH 3.0 rally was not a security threat.
Nonetheless, having obtained the exclusion order, the police proceeded to disrespect the order by unilaterally closing additional roads and restricting access to other areas not covered by its terms. The terms of the order itself, the closing of the roads and the restriction in access gave rise to a tense situation that contributed to the unnecessary violence that occurred.
As has been done with some other public assemblies in the past, the Malaysian Bar deployed lawyers and pupils-in-chambers to act as monitors during the rally, numbering approximately 80. Our monitoring teams reported witnessing the use of an array of heavy-handed tactics by the police, including the indiscriminate discharging of multiple rounds of tear gas without any obvious provocation, and arbitrary use of water cannons. Police fired tear gas directly at the crowd. They also manoeuvred their firing pattern to box in the participants rather than allowing them to disperse quickly. This is not action to disperse, but is instead designed to attack, a crowd. When items were thrown at the police, the police stooped to return like for like.
The Malaysian Bar does not countenance the belligerent conduct shown by a number of the participants. However, we express deep and serious concern as to how the police responded. The police displayed a lack of restraint and proportionality, reminiscent of their actions at the BERSIH 2.0 rally on 9 July 2011. Instead of displaying action to calm the situation, they instead aggravated it and contributed to the escalation of the conflict. Although organisers of public gatherings must bear some responsibility when things get out of hand due to their action or inaction, this does not and cannot excuse the response of the police.
The monitoring teams also witnessed numerous acts of police brutality, such as assault of arrested persons. Instead of merely apprehending suspects, the attitude of the police was punitive in nature. The reported attacks by the police on members of the media, both local and international, and the confiscation and/or destruction of their photographs and video recordings, speaks to police action in covering up or preventing a full and accurate record of the BERSIH 3.0 rally and the responses of the police.
Regrettably, the police also showed a general lack of cooperation towards the Malaysian Bar’s monitoring teams, and were hostile in their attitude and approach at times. This is most unprofessional and unbecoming, and serves as an unhealthy development with negative connotations for the future.
The Malaysian Bar notes that yesterday’s events have not occurred in isolation, but stem from the fundamental problems that gave rise to the BERSIH 3.0 rally in the first place, namely the ongoing and outstanding issues relating to the electoral roll, and the lack of confidence in its integrity and that of the electoral process in Malaysia.
Those who look upon Dataran Merdeka as a symbol of freedom will view the exclusion from Dataran Merdeka as freedom denied. The promise by the Government to respect democracy and human rights, and implement reforms, was tested yesterday. The Government’s response and actions during the BERSIH 3.0 rally provided an indication of whether the new reform legislation will be perverted and abused in its use and implementation, where the wide powers vested in the authorities call for measured, proportionate and mature exercise. The events of 28 April 2012 do not bode well in this regard.
Transformation and real recognition of democratic rights come at a price, namely constant vigilance. The cost of not transforming and not allowing Malaysians the proper exercise of our democratic rights is too high. In Malaysia’s march towards developed nation status by 2020, which is only eight years away, the constitutional right to clean, free and fair elections cannot and should not be sacrificed.
Mr Leong, we are marching towards bankruptcy if not already attained that status.
We are also facing a government hell-bent on protecting their gravy train.
Come on. Was the police reaction so unexpected? Are we that surprised. Expressions of surprise or implication of that are completely erroneous. Who does not know that the umno compliant police would gas and spray the ppl. Saying that we are surprised only serves to dignify umno for it means that umno police actually do not engage in unlawful and improper acts and what happen yesterday was only something beyond the usual expectation. Tell you, it would be far far beyond our expectation if umno police were to behave themselves.
The students’ Occupy Merdeka with tents that nite had unwelcomed political Thugs, and
this time, Bersih 3.0 had salaried / uniformed / arsenal-equupped Thugs.?
Yes the Bar Council is right that police response is ‘disproportionate’. The Reason: – strong police action (ie tear gas /water cannons) is defensible only at Dataran Merdeka in which barricade/perimeter was breached (against Bersih’s Organisers’ prior agreement to ensure their supporters would not breach it in light of the DBKL Court judgment). Police had no business, after the turning point of that breach, to unleash simultaneously without warning its full response all other Bersih supporters in other parts of the city who had no complicity or involvement with breach of the barricade at Dataran Merdeka and who otherwise did not know what was happening or what had happened to activate this “change” of PDRM (up to then) restrained stance! Earlier commentator Lim KamPut would be justified to question why the they fired tear gas and water at him & crowd at Bar council alongTun Perak/Masjid Jamek station area, without any provocation – re his posting #8 in earlier thread “ Who caused Bersih 3.0 chaos?”
UMNO and PDRM were taking revenge on the peaceful Bersih protestors. In the days to come, I am sure videos of police brutality will surface. Meanwhile, Hishamuddin is very busy asking the police to delete all evidence from illegally confiscated journalist cameras. Shame on UMNO and PDRM for their inhumanity and lies! I really hope that international sanctions will be taken against UMNO politicians.
They must create front page news that some Bersih 3 walkers are violent.
It’s a huge success and an anti-dote must counter it.
Many like me were there from Friday to after the walk…going home …peacefully.
Trouble comes….it must always be the walkers starting it……but who knows…that may be true.
I have seen an MCA bugger came and offer jobs to the Dataran protesters…sort of…getting all…..out of focus…and be selfish.
Jeffrey:
‘…strong police action (ie tear gas /water cannons) is defensible only at Dataran Merdeka in which barricade/perimeter was breached…’
I wonder how you get this idea from the article. The author neither says nor implies anything close to what you attribute to him.
What he explicitly says is that the court order to lock down the Square is defective, and the the exclusion from the Square will be deemed as freedom denied. That much is clear. There’s nothing there that indicates that he thinks that ‘strong police action is defensible only at Dataran…’
The author says that ‘the order was obtained with respect to a situation of the authorities’ own making, by their unjustifiable denial of access to Dataran Merdeka.’ The breach of an unjustifiable ban does not justify such a strong response.
Aside from the issue of police’s switch of response (some time at about 3 pm after the Dataran barricade breach) from restraint to disproportionate and indiscriminate force (ie SOP of water cannons and tear gas), there are two other questions. The First Question : was the unleashing of disproportionate force (which would be sought to be defended/justified upon Bersih’s breaking of its earlier undertaking/covenant not to breach the Dataran Merdeka barricade) caused by PDRM/top decision makers being afraid of a situation judging from the sheer size of the congregation of (estimated 300,000) chocking all the main thoroughfares leading to Dataran; or someone within inner power circle wanted this to happen to again sabotage/neutralize Ah Jib Gor’s ‘reformist’ credentials?
Now relating to the authorities’ justification of Bersih’s breach of barricade a Second Question arises from this Malaysiakini’s 29th April report by Andrew Ong “How the Dataran cordon was breached”. It said “based on a video published by Free Malaysia Today, PKR deputy president Azmin Ali was clearly seen motioning to NGO and Pakatan leaders on top of the truck in a “come over” gesture while standing right next to the barricade…Some of people on top of the truck appeared to disagree and an unidentified person on top of the truck waved his hand in a “no” motion.
After this exchange, Azmin was seen trying to step down from an elevated platform and people surrounding him conducted the first breach.” This had happened AFTER Ambiga’s call to disperse and PKR de facto leader Anwar Ibrahim had reiterated calls for a dispersal. What does Ambiga/Bersih say to this? Will Anwar still defend Azmin and that sectionof his PKR / Bersih supporters if allegations upon investigation were found true?
Jeffrey:
‘…caused by PDRM/top decision makers being afraid of a situation judging from the sheer size of the congregation of (estimated 300,000) chocking all the main thoroughfares leading to Dataran’.
I think you’ve missed an important point made by Leong in this article: ‘They also manoeuvred their firing pattern to box in the participants rather than allowing them to disperse quickly. This is not action to disperse, but is instead designed to attack, a crowd.’
To Wang Yen: My statement “strong police action (ie tear gas /water cannons) is defensible only at Dataran Merdeka in which barricade/perimeter was breached” is my opinion, if all a defence of strong police action were sought to be defended. I did not attribute it at all to what Bar Council Christopher Leong said. He did not say such a thing. He said it was disproportionate (everywhere). I agree its so everywhere else where supporters were peaceful, not immediately involved in breach of the barricade, didn’t know what was happening and were simply attacked. Now coming to that section of Dataran where the barricade was broken and some of the crowd surged across, though not everyone in the immediate Dataran crowd was complicit to this “breach” aware much less agreed to it, yet PDRM authorities defending the square would have the excuse of strong response in self defence against an aggressive crowd that breached the very barricade perimeter that Bersih’s leaders had undertaken to authority to ensure that their supporters would observe and not do!
Leong’s point (They also manoeuvred their firing pattern to box in the participants rather than allowing them to disperse quickly. This is not action to disperse, but is instead designed to attack, a crowd) explains why the police action was disproportionate & excessive, which I agree, especially when undertaken simultaneously in other parts of the city on defenceless crowd having nothing to do with breaching the Dataran Barricade or any danger to PDRM positioned there guarding the Square.
Leong did not make the point of “firing pattern to box in the participants” as a reference to the firing pattern at Dataran Merdeka in immediate response to the breach. I take it that he could have meant it anywhere else, just like what LimKam Put said had happened at the Bar Council/Masjid Jamek station way down Jln Tun Perak. Generally it would be more difficult to accuse PDRM of disproportionate force in a face off with thousands at immediate vicinity of Dataran perimeters/barricades that they were supposed to defend, which were breached. Elsewhere its a different story!
///What he (Christopher Leong) explicitly says is that the court order to lock down the Square is defective, and the exclusion from the Square will be deemed as freedom denied.//
That the court order is defective is Leong’s legal opinion. It may also be Bar Council’s legal opinion. They may be right but until there’s another court decision to overrule the existing one obtained by DBKL are we to follow the Court order or Christopher Leong’s/Bar Council’s opinion as to what represented the law to be observed (apart from separate moral issue of whether to adhere to law suspected given by a not so independent court or a court that clever as to what the actual law should be)? The fact is Bersih’s leaders esp Ambiga had agreed to observe the barricade/perimeters of Dataran and directed supporters to do so. The question of whether the Court judgment is founded on correct reasoning or wrong law as opined by Christopher/Bar Council is irrelevant to the issue under contention here relating to police action, whether proportionate or disproportionate, depending on where it was unleashed!
For when Ambiga had in the beginning agreed to observe the barricade/perimeters of Dataran and directed supporters to do so, she already accepted DBKL’s Court Order as law to be observed.I don’t believe Bar Council had contradicted this. It is Lawyer Christopher Leong’s personal opinion that the DBKL court order excluding members of the public from Dataran Merdeka is arguably defective in law due to a lack of specificity. His take is not vindicated by another court order overruling the existing order and the existing order (whether right or wrong by people erudite in law or logic) was the one upon which Bersih agreed to respect by directing its supporters not to encroach on the barricades/perimeters. Thats what is important. When some sections of the crowd breached that undertaking / covenant on Bersih’s part, it simply gave PDRM the excuse and needed justification to respond forcefully at that place (Dataran) where the breach occurred.
Jeffrey:
‘The question of whether the Court judgment is founded on correct reasoning or wrong law as opined by Christopher/Bar Council is irrelevant to the issue under contention here relating to police action, whether proportionate or disproportionate, depending on where it was unleashed!’
That point is relevant to whether the police are justified to take a strong action.
Jeffrey:
‘Leong’s point (They also manoeuvred their firing pattern to box in the participants rather than allowing them to disperse quickly. This is not action to disperse, but is instead designed to attack, a crowd) explains why the police action was disproportionate & excessive, which I agree…’
I don’t think you got his point. In your numerous posts on this topic (in other threads), you’ve been claiming that the police’s action to disperse the crowd was to clear the roads so as to give access to others who were heading to the city centre. But Leong’s point is that the firing pattern indicates that their intention was not to disperse.
Jeffrey:
‘That the court order is defective is Leong’s legal opinion. It may also be Bar Council’s legal opinion. They may be right but until there’s another court decision to overrule the existing one obtained by DBKL are we to follow the Court order…’
In response to this,
http://www.answers.com/topic/rule-of-law#ixzz1tQlxf5O4‘
‘A conundrum is presented when the government acts in strict accordance with well-established and clearly defined legal rules and still produces a result that many observers consider unfair or unjust. Before the Civil War, for example, African Americans were systematically deprived of their freedom by carefully written codes that prescribed the rules and regulations between master and slave. Even though these slave codes were often detailed, unambiguous, and made known to the public, government enforcement of them produced unsavory results.
Do such repugnant laws comport with the rule of law? The answer to this question depends on when and where it is asked. In some countries the political leaders assert that the rule of law has no substantive content. These leaders argue that a government may deprive its citizens of fundamental liberties so long as it does so pursuant to a duly enacted law. At the Nuremberg trials, the political, military, and industrial leaders of Nazi Germany unsuccessfully advanced this argument as a defense to Allied charges that they had committed abominable crimes against European Jews and other minorities during World War II.
In other countries the political leaders assert that all written laws must conform with universal principles of morality, fairness, and justice. These leaders argue that as a necessary corollary to the axiom that “no one is above the law,” the rule of law requires that the government treat all persons equally under the law. Yet the right to equal treatment is eviscerated when the government categorically denies a minimal level of respect, dignity, and autonomy to a single class of individuals. These unwritten principles of equality, autonomy, dignity, and respect are said to transcend ordinary written laws that are enacted by government. Sometimes known as natural law or higher law theory, such unwritten and universal principles were invoked by the Allied powers during the Nuremberg trials to overcome the defense asserted by the Nazi leaders.’
Jeffrey’s discussion of Leong’s legal opinion has missed a crucial point. Leong says that ‘The court order excluding members of the public from Dataran Merdeka is arguably defective in law DUE TO A LACK OF SPECIFICITY.’ This point is crucial to whether the government can appeal to the rule of law to justify the harsh police action. See below.
http://www.answers.com/topic/rule-of-law#ixzz1tQmlY6bg
‘For similar reasons, the rule of law is abridged when the government attempts to punish someone for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon government officials who are charged with the responsibility of prosecuting individuals for criminal wrongdoing. The more prosecutorial decisions are based on the personal discretion of a government official, the less they are based on law.’
The determination of what the law is, and whether the law as laid down or interpreted by a judge in a court order is “arguably defective in law DUE TO A LACK OF SPECIFICITY” is not for Mr Christopher Leong to decide. (Here he uses the word “arguably” defective which means that it is open to more than one point of view or argument). It is to be determined by another court judgment overruling the first, in the absence of which the first is still held as representing the law. There will be chaos if everyone whom we respect the views or sympathize with his political position can tell us that whether what is law that we should follow depends on not what the court lays down in judgment as the law but his views of what the law is or ought to be, no matter how well meaning, intelligent or even erudite in law he is.
Ex Bar Council chairman Ambiga knows better. She agreed that DBKL’s judgment should be respected as law to be abided by Bersih & followers – hence the order was out to supporters not to breach the barricades- for so long as it has not been appealed against and overruled by another appellate court. [This is separate from the issue whether she thinks that DBKL judgment is correctly decided and could be reversed later on, on appeal]. Until then it is still law. It also means she and Bersih are bound to that undertaking – not to break the Dataran barricades justified upon premises o legality of DBKL’s Court Judgment. Bersih can’t just say that it would observe the barricades in the beginning of the Sat Rally and when convenient at 3 pm allow its followers to break the barricades just because Christopher Leong, vice president of Malaysian Bar opines that the DBKL Court judgment is misconceived!
There is also a mighty big difference between conceding (1) what the law is and arguing on the hand that (2) although that is the law, we choose on conscience, not to follow it because we either think the law is incorrectly decided by the court that is not independent or the law is simply inhumane immoral or arbitrary in enforcement. There is nothing wrong in (2) provided one is prepared to take the consequences of punishment in breaking or not abiding by it. That’s a personal choice. Bersih’s leaders have made the choice : they decided to follow the DBKL judgment as the law (whether they think it good or bad law). That is a moral stand because to decide not to follow it is to defy the judgment and gate crash the barricades of Dataran on basis that we have the right to occupy it that DBKL has no right to deny and in so doing cause a clash and police retaliation that will inflict injury on supporters including women and children. Bersih’s leaders have right to make choice whether to break that unjust law but they cannot, with responsibility, lead their thousands of followers to do so inviting such consequences. Be cavalier with one’s own lives based on principles and sacrifices but is it right to urge those thousands that follow you to take the consequences that one personally would take? Also what ethical principle is it, to once having decided on a course to follow the law, and give one’s undertaking to abide by the barricade line only to break that undertaking i9n the afternoon?
Nazi’s laws authorise extermination of Jews. In Nuremberg trials, the political, military, and industrial leaders of Nazi Germany were held to account because there were higher laws – those “unwritten principles of equality, autonomy, dignity, and respect are said to transcend ordinary written laws that are enacted by government.” Fair enough no one (whether Adolf Hitler or Ratko Mladic should hide behind Nazi’s or Serbian laws to commit atrocities and genocide). DBKL’s court judgment, even if Christopher complains that it is defective in law due to a lack of specificity is not genocide or torture etc of the nature and character that any where anyone would reasonably consider of the genre and character offensive to those “unwritten principles of equality, autonomy, dignity, and respect” raised to hold those guilty of genocide and torture responsible! We’re not comparing like to like when raising Nuremberg trials to justify defiance of the DBKL Dataran judgment here under discussion.
Had Hitler won the war against the Allies and dominated the rest of the world (instead of the other way around) then we will never know (will we?) whether his genocide of the Jews based on domestic german law would now be considered invalid against these higher natural laws cited by Wang Yen..
For there would not be the Nuremberg trials, there would not even exist the Jewish state as we know today. or it is often the Victor that makes and defines what i law and what is higher written laws that the victor abides and the vanquished is said to break and must be punished.
Oop – “For it is often the Victor that makes and defines what is or ought to be the law and unwritten laws above it that the victor abides and enforces and the vanquished is said to break and must be punished for breaking it.
///I don’t think you got his point. In your numerous posts on this topic (in other threads), you’ve been claiming that the police’s action to disperse the crowd was to clear the roads so as to give access to others who were heading to the city centre. But Leong’s point is that the firing pattern indicates that their intention was not to disperse.///
Thats right. In my earlier threads I was just wondering others had the right to re-enter the city (which was locked since morning), Ambiga/Anwar at 2.30 pm said Rally’s over please disperse and yet many did not want to disperse, wanting to hang around the main roads until nightfall. Whats the meaning of this? This is what I explained to Lim Kam Put in earlier threads. I have since corrected this line of thought in my posting #4 above as I thought whatever breach of barricade that occurred in Dataran itself justifying police strong action, there is no justification to use it (such force) across the board – at the same time upon one signal from the top- on the thousands (with peaceful intentions) every where else in the city, not knowing the ruckus in Dataran, not complicit to it, received no notice from Bersih’s leaders that rally was over and to disperse at 2.30 pm onwards (when original program of sit in was supposed to end at 4 pm) and equally with no warning from authorities/police to disperse or else…..
Jeffery…Are you really 84 years old?
I met LimKamPut.
Did you participate?
The Nazi example is only an illustration. Citing an example to illustrate a point does not restrict the scope of one’s point to it.
You’ve been talking about whether we have the right to encourage others to set aside unjust laws by appealing to higher/natural laws. But Leong’s point is that breaching an unjust and vague law does not justify harsh actions. I further support this point by suggesting that natural/higher laws give us reason to think that such harsh action is unjustifiable.
Wang Yen, Leong is correct that DBKL Court Judgment (hurriedly applied for & obtained in relation to our civic rights to gather in Dataran) qualifies as “unjust and vague law”. It is also correct of him to contend that “breaching an unjust and vague law does not justify harsh actions” (of PDRM retaliation). The argument is over the shooting of tear canisters/chemical laced water, whether it was ‘disproportionate’ harsh action or a proportionate one. At Dataran Merdeka itself the line was drawn at the perimeters of the sharp razor barricades with heavy PDRM presence standing in line just behind. I could also speak from vantage point of Dataran Merdeka at JlnTunPerak/Jln TAR junction in which I was present as early as 7.30 am – and intermittently at various points along the length of JlnTunPerak till afternoon. All along there was no problem from PDRM, they were restraint – or the crowd- for so long as these perimeters (as agreed) were observed. Bersih specifically directed that we were not to breach those lines. (Its based on rationale of the Court order that Bersih was not prepared to defy).
Whichever one looks at it, until afternoon police took no action (unlike Bersih 1.0 & 2.0) even though no one can say that jamming up the main thoroughfares was not itself by all counts an illegal assembly by Peaceful Assembly Act 2012. I appreciate that because the crowd grew very big, though some participants came as if it was family outings esp in earlier morning with family photos, others looked menacing [esp after 2.30 pm when supposedly the rally had been declared ended by Ambiga/Anwar in another part] when the crowd nearest to perimeters started shouting “buka buka” “tolak UMNO” “tolak Najib”! What “buka” when organizers already agreed not to breach that line and in fact already asked all to disperse (though at that time/point we never heard it)? Then of course (without exactly hearing the warning), canisters of tear gas whished by – fired from somewhere within Dataran in the direction of DBKL /JlnRaja Laut.
(Contining from 2nd post currently moderated) – Later we understand that part of the crowd at another point breached the perimeter/barricade. I could imagine that if I were the police stationed there (throughout the day to guard with no breach of lines) were to face such a tremendous crowd, with the lines breached and crowd surging forward in hostile way, I would have retreated and shot the canisters myself. My life was in danger. I would shoot my gun with live bullet if so threatened by bodily harm! Dataran was surrounded by thousands in all directions. They could be easily incited by the section of crowd that breached the agreed perimeters to surge in. I understand the sentiments of PDRM there in Dataran and think their action proportionate to the level of threat perceived but could not understand why at the same time this forceful response at Dataran (to deal with a particular specific threat) was also carried out at other parts of city simultaneously (from what I heard without warning) on other unwary peaceful protestors, considering such a huge crowd could not just be switched or off like bulb (when Amiga/Anwar message to disperse was not even conveyed to these areas). Maybe they thought violence could spread quickly to else where once rumours of what happened in Dataran spread.
Bersih was for free elections. Needless to say sentiments of many in the crowd were against PDRM (pretorian guards of regime). Many called them “pigs”. A breach of agreed perimeters at Dataran could have sparked violence from both sides given the tensions. It is very bad if anyone from esp the Opposition thought that he could just incite those around him to break agreed perimeters just so to reclaim Dataran from just “vague and unjust law” . The potential escalation to violence in Dataran (spreading to rest of city when rumours of clash spread) was real. It was terribly irresponsible to hijack the rally for this political objective of seeking to galvanise moral outrage from clashes with authorities over some abstract point of vague law etc (already agreed by Bersih to be observed) heedless of potential dangers of bodily harm to rest esp young children and women everywhere amid the thousands at all parts of city.
Jeffrey, ‘I could imagine that if I were the police stationed there…were to face such a tremendous crowd, with the lines breached and crowd surging forward in hostile way, I would have retreated and shot the canisters myself. My life was in danger…’
Policemen threatened (any armed gangs? [to use Assad’s words]?
Dr. Goh Chee Leong, who was, there, has this to say:
http://blog.limkitsiang.com/2012/04/29/bersih-428-a-personal-perspective/#more-18587
‘Some commentators have blamed the small section of the protestors who breached the barricades. Okay, this was perhaps a poor move “politically”, probably initiated by some over enthusiastic youth. But let’s for a moment stop and consider what exactly they were “breaching”.
Were they breaching a line that was protecting a person or a national treasure? Were the protestors breaching the line in order to attack and disrupt some event in Dataran Merdeka? Was their intention to ransack a bank or loot shops? No! The only thing behind those barricades was an empty field. A field where Malaya was declared finally independent and free. A field that belongs to all Malaysians. So if the police had merely allowed the protesters to breach the barricades, what would the city or the country have lost? The police say they were protecting public interest. What public interest existed at 2pm April 28, 2012? Who were the members of the public the police are referring to? There were over 150,000 members of the public who wanted to be at the field which happened to be empty at that time.’
This article talks about whether the police are justified to respond harshly to a vague, unjust, and arbitrary ban. But Jeffrey harps on a different issue: whether one should encourage people to breach such a ban, which Leong does not address here.
Jeffrey, ‘…heedless of potential dangers of bodily harm to rest esp young children and women everywhere amid the thousands at all parts of city.’
As pointed out by Dr. Goh Chee Leong The breach of such a ban leads to no harm or danger except for those inflicted by the police.
Even if one should not encourage such a ban, does breaching a vague, unjust, and arbitrary ban justify the harsh response? That’s the crux of the matter.
In response to Jeffrey’s talk of potential dangers of bodily harm, Jackson Ng says
‘The police claim that a few demonstrators who broke through the fence to get onto Dataran Merdeka provoked the police to retaliate?
Is that so? Is that violence? Violence on whom, the police, the fence? The police say the demonstrators had broken the law by breaking through the security barricade that prevented the demonstrators to get into the open and vacant field. Is that justification for the police to go for the kill? I am sure if the police had just let them in, and then arrested them one by one and take them away in black maria, no violence would have occurred. It is the shooting of chemical laced water and tear gas that provoked the clash and mayhem.’ http://www.malaysia-chronicle.com/index.php?option=com_k2&view=item&id=32980:who-provoked-the-bersih-30-violence?&Itemid=2
“As pointed out by Dr. Goh Chee Leong The breach of such a ban leads to no harm or danger except for those inflicted by the police. Even if one should not encourage such a ban, does breaching a vague, unjust, and arbitrary ban justify the harsh response? That’s the crux of the matter./// – Lee Wang Yen.
I disagree because no matter one may hold the view (even on the assumption of merits) that the ban is arbitrary, or the DBKL Court judgment not good law for lacking specifics, the fact that Bersih agreed/undertook to respect the non breach of the barricades around Dataran Merdeka underpinned on premises of the judgment, then that line drawn should be strictly observed, and on Bersih’s part ensured to be observed by its supporters strictly at the beginning, throughout till the end of rally. The line was significant because the understanding had created mutual expectations from both sides mutually suspicious of the other, in a tense position of a face off.
If Bersih or PR felt like Christopher that the DBKL jugmnent was bad law and breaking it was no make shake, then say so in the beginning so that those of us who participated in the rally could come prepared for police retaliation due to the defiance of the judgment. It is not right to say Bersih observed the judgment/barricade – upon which reliance we who brought our children and family for rally thinking that as long as that was so risk of police reetaliation was mitigated – only to find at something 3 pm a certain group of supporters were not prevented from breaching that line/barricade exposing everyone to the risks of police retaliation, which materialised, only to be subsequently explained away that the police was using excessive force, the court judgment was not good etc!
Its trite that when two mutually suspicious groups with potential for violence are confronting each other in a face off the line prior agreed not to be crossed, and upon which expectations are reposed, should be strictly observed and enforced with no ambiguity/subsequent rationalisation (eg bad law) to try excuse its breach that could trigger violent action from either side. This is the crux of the issue.
Once Bersih’s supporters breached the barricades and threatened to surge into Dataran in large numbers in confrontation with police, their response (forceful by way of tear gas/water cannons to chase and disperse the crowd there) at Dataran is, my view, justified and proportionate in light of the changing potentially dangerous circumstances.
The disadvantage of an unjust law for the government is that it takes away justification for a strong action.
Getting into an empty square does not engander any person or property. Jeffrey has not spelled out any dangers except for the violent police response. So the police are clearly at fault.
Violence was caused by the police action whose justification was void because of the injustice of the ban.
///Getting into an empty square does not endanger any person or property///
Reply: Square was not empty. The Police were all there under instructions to guard/defend it!
///Violence was caused by the police action whose justification was void because of the injustice of the ban.///
If ban were unjust, then Bersih should NOT have accepted to observe this unjust ban and promised/undertaken to the authorities to uphold it by instructing its supporters not to cross the barricade. One can’t have the cake and eatr it at same time. As organisers its Bersih’s duty to ensure that its supporters (never mind agent provocateurs) not violate this understanding with authorities. Unit Amal PAS helping Bertsih should be stationed along the perimeters to ensure strictly that barricade not crossed by any sub group to provoke the police acting on Bersih’s promise not to cross.
Yes security barricade was in Dataran but in front of empty field. But its not just empty field grass and soil so whats big deal ? Thats not the argument. DBKL said that it was its land, that grass soil and all was for real national events, Bersih’s rally just not it. Its not that I subscribe to DBKL’s logic but its basis it got the court order which Bersih organisers agreed to observe. I can’t understand the argument that one could accept something like a ban / court order, promise to observe it (notwithstanding under protest to its merits/justice) so that one’s supporters could protest as near as possble and at the same could suffer that agreement/compromise to be reneged and complain of retaliation by reverting to argument that the ban was not accepted for being flawed law.
Look at that guy….blaring away….non stop.
Jeffrey, ‘Square was not empty. The Police were all there under instructions to guard/defend it!’
Please substantiate this claim. See the contrary claim below (from Malaysiakini, cited in http://groups.yahoo.com/group/beritamalaysia/message/121330):
‘Another mystery was how the police allowed the first breach to happen, since they had formed a human wall behind the cordon since the night before. According to eyewitnesses, the police had suddenly ran away from their positions just before the water cannons were deployed. A series of photographs from one Malaysiakini reader depicted how there was no breach at the middle of the cordon until the police ran and abandoned the line. “It was strange. They were literally running from the line. This emboldened
the protesters to make a break for Dataran Merdeka,” said one protester, 31, from Taiping.’
Jeffrey repeatedly fails to grasp the key point in the article and my comments: whether or not one should breach or encourage the breach of an unjust, vague, and arbitrary law, does such a breach justify the harsh police action? Whatever you view is on the morality of such a breach, that’s not the main issue discussed here. The issue is …(do I have to repeat?)
Even if you think that the breach of an unjust, vague, and arbitrary law that does not harm anyone or any property (except for the harm inflicted by police action) is morally unjustifiable, do you think that such a breach justify the violent police response? That’s the issue.
///whether or not one should breach or encourage the breach of an unjust, vague, and arbitrary law/// Depending. Generally, you fight for its repeal. Then again oppressors won’t repeal! So the question arises whether by encouraging its repeated breach by many conscientious people, normally law abiding, the arbitrary and unjust law and its enforcement will be so discredited as to lead to its sooner obsolescence or its repeal. There are of course those who don’t agree and would say for so long as it is law, for the time being, and sensible and conscientious people can make moral intellectual judgment with accuracy as regards its arbitrariness, yet until its repeal, it should be abided as breaking the law should not be encouraged based on ends justifies the means to discredit it. I believe that’s position taken by Senator Tunku Abdul Aziz in breaking ranks with his party leadership over its support of Bersih 3.0. 2000 years ago Socrates drank hemlock to uphold the unjust sentence meted to him for “poisoning” minds of the young for teaching them how to question & think. Myself I think we should not have hard fast rules (in the abstract). The particular law, the degree of injustice, the circumstances of its enforcement or opposition to it, the results, context will all have a part play as to which stance to take.
I understand that you may have your own view on whether such a breach or encouraging such a breach in this context is morally justifiable. That’s not what is contested now. The point of contention is as follows. EVEN IF you think that in this particular context the breach of an unjust, vague, and arbitrary law that does not harm anyone or any property (except for the harm inflicted by police action) is morally unjustifiable, do you think that such a breach justify the violent police response? That’s the issue.
///Even…if the breach of an unjust, vague, and arbitrary law that does not harm anyone or any property (except for the harm inflicted by police action) is morally unjustifiable (ie Tunku Abdul Aziz’s stance), do I think that such a breach justify the violent police response? /// It depends on meaning of “violent” response. It’s a question of proportionality of response based on circumstances. For eg if in context of preceding discussions/arguments, police in Dataran in response to breach of barricades respond by shooting water laced chemicals or tear gas with the object of dispersing the gathering I would think it is justifiable proportionate response whether (one labels it violent) though at the same time the same response unleashed simultaneously at the crowd ELSEWHERE without warning would be disproportionate response. However back to Dataran : if after the first response of dispersing the crowd by SOP (chemical laced water &tear gas) the police took the opportunity to go further in mopping up operation and in that process brutalise (eg beat and trample senseless people, go into private premise without warrant to arrest anyone with yellow Bersih tee shirt (when they had not done so before throughout the morning), then yes that’s brutal and violent action, and in answer to question- I don’t agree that such a breach justifies the violent police response (in these senses & context).
In your post 51, you choose to respond to the part which I have repeatedly claimed to be a side issue. The main issue is as follows. Whatever your view on the morality of the breach (and the encouragement to breach) is, whether or not you think that they are justified, and whether or not you’re justified to think that they are justified, THE ISSUE IS: does it justify the police action on 28/4? EVEN IF the breach is morally unjustifiable, does it justify such a brutal response?
///Does it justify the police action on 28/4? EVEN IF the breach is morally unjustifiable, does it justify such a brutal response?/// Doesn’t #3 answer that? I said Police in Dataran in response to breach of barricades responded by “brutally” shooting water laced chemicals or tear gas with the object of dispersing the gathering – I think that it is justifiable proportionate response. But if one is talking of “brutal” response in context of reports from Malaysiakini – eg Mohd Firdaus Azizi, 28 punched and kicked by 2 groups of policemen or 113 casualties in GH- of course such police action is (to my mind) unjustifiable even if breach of the law were unjustifiable. I assume thats obvious. They are two separable issues justifiability of law breaking and justifiability of such police response.
Doesn’t #3 answer that? I said Police response to breach of barricades -by shooting water laced chemicals or tear gas with the object of dispersing the gathering – is justifiable proportionate response. But if one is talking of “brutal” response in context of reports from Malaysiakini – eg Mohd Firdaus Azizi, 28 punched and kicked by 2 groups of policemen or 113 casualties in GH- of course such police action is (to my mind) unjustifiable (I thought this obvious) even if breach of the law were unjustifiable. Justifiability of law breaking and justifiability of such police response are separate issues.
No, the use of water cannons and tear gas would be justified if there were a riot – looting, vandalism, arson, fighting etc. Breaching an empty public square barricaded arbitrarily does not justify such a response. Removing a few plastic barricades and walking into an empty square does not harm any person or property. The definition of riot is crucial. In England and Wales, riot involves violence (against persons or property). Tear gas etc can only be used for riot control.
#4 was posted before I saw your #3.
So a few protesters walking into the square after removing the barricades does not justify the use of water cannons and tear gas.
You are right about square being empty. The part occupied by PDRM & Riot police was the “buffer zone” and that was not supposed to be breached.
There’s another reason why I wasn’t focusing strictly on all squares on issues raised by Christopher as highlighted by you. I think we know enough from past experience and behaviour of police brutality (which of course is never justifiable, breach or no breach of law, whether that law arbitrary, capricious or otherwise). Given that known factor (not under contention), I would have assumed that given the understanding by Bersih not to breach the barricades, this breach should not be allowed to takeplace by Bersih’s organizers to give police the opportunity to unleash this brutality on common peaceful Malaysians out to make a democratic point (and their masters an opportunity to try claim high moral ground by saying that it was bersih that drew first blood in not being able to control its own supporters). I would be particularly piqued if opposition politicians maneuvered the finale by incidents to mar an otherwise successful rally just to score political objective of giving police authorities an excuse to unleash the brutality on common people just so they could galvanize more moral public outrage to better their chances in election. It’s the common people who get hurt.
DAP’s Fong Kui Lun claims that police allowed western tourists to enter the Square after the sit-in while barring oriental tourists and locals. The court order keeps the Square out of bounds for 4 days. According to your reasoning that a law, however vague and unjust it is, is still a law to be strictly observed, do you think the westerners allowed in and the policemen who allowed them in should be arrested or tear gassed?
I don’t know about the part relating to “a few protesters walking into the square”. I assume it was more than that. We know enough from past experience and behaviour of police brutality to belabour over this point.Given this known factor, I would have assumed that given the understanding by Bersih not to breach the barricades, this breach should not be allowed to take place by Bersih’s organizers to give police the opportunity to unleash its brutality on common peaceful Malaysians out to make a democratic point. I am particularly piqued if opposition politicians maneuvered the finale by incidents to mar an otherwise successful rally just provide authorities the excuse to unleash their customary brutality on common people just so that Opposition could galvanize on the rising tide of public moral outrage at the brutality to better their chances in evicting an ensconced incumbent. It may be ends justifies the means but its the common people (children included) that bear the brunt of the brutality. If any one had told them to go to the rally prepared for a fight & be brutalised then OK but don’t represent a certain position (no provocation of police by no breach of barricades) and then allow the rule to be changed at the end with predictable consequences!
I wasn’t focusing strictly on angle of issues you said Christopher raised because I assume from past experience police brutality is expected factor. Given this known factor, I expect Bersih not to breach the barricades per its undertaking so as not give that brutality an opportunity to unleash on common peaceful Malaysians out to make a democratic point. I am particularly piqued if opposition politicians maneuvered the finale by incidents to mar an otherwise successful rally just to provide authorities the excuse to unleash this brutality so as to exploit public moral outrage once again to tilt the electoral playing field against an ensconced incumbent. It may be ends justifies the means but its the common people (children included) that bear the brunt and pay the price. Its Ok if you tell them in the beginning what to expect, not change rules of engagement at the end and make them pay the price.
It depends on terms of court order obtained by police. I understand from reports that the Dataran ban up to 1st May is on not just Bersih’s supporters but public that includes westerners etc. If policemen allowed western tourists in then its simply that in being selective they have failed to enforce the law. Should policemen be arrested or tear gassed? The police have their disciplinary rules/general orders to deal with laches in carrying out official duties.
Jeffrey, ‘We know enough from past experience and behaviour of police brutality to belabour over this point…’
That’s exactly the point. The problem lies with the police. Removing a few barricades and walking into an empty space without harming any persons and property is not the problem. It does not justify the use of cannons and tear gas as there was no riot – not violence was involved. What you write shows that the problem lies with the police – they used riot-control measures when there was no riot. Yet you pinned the blame on the non-violent protesters.
I’d agree with you that tear gas should be used if protesters begin punching the policemen or setting fire to FRU trucks before breaching the lines.
Jeffrey, ‘We know enough from past experience and behaviour of police brutality to belabour over this point…’
That’s exactly the point. The problem lies with the police.Removing a few barricades and walking into an empty space without harming any persons and property is not the problem. It does not justify the use of cannons and tear gas as there was no riot – no violence was involved. What you write shows that the problem lies with the police – they used riot-control measures when there was no riot. Yet you pin the blame on the non-violent protesters.
I’d agree with you that tear gas should be used if protesters begin punching the policemen or setting fire to FRU trucks before breaching the lines.
We have been talking about the initial breach right after Ambiga’s and Anwar’s speech. People just removed the barricades and got into the empty square after policemen left. I disagree with your judgement that in this case the use of tear gas and water cannons was justified. My reason is that there was no riot.
Later on, some protesters began hurling projectiles at policemen. That constitutes riot. But this would not have happened had the police not misused their tear gas and water cannons in the first place. Of course, these rioters should still be punished by the law. But please don’t deflect from the point of contention: Is the police reaction (which triggered pockets of riots subsequently) to the initial non-violent breach of a vague, unjustified, and arbitary ban justified?
Jeffrey, ‘I wasn’t focusing strictly on angle of issues you said Christopher raised because I assume from past experience police brutality is expected factor…’
While past experience is relevant, you said in an earlier post that the specific context was crucial. So let’s focus on this particular context. In this case, several protesters began removing barricades and getting into the empty squares when the policemen had left. They did so without harming any persons and property. They are unarmed. Nothing in that specific context indicates that your knowledge about previous riots or violence (except for that inflicted by police, for which protesters are not to blame) is relevant to this specific context
I was surprised that you kept focussing on whether the opposition should encourage the breach. I’ve repeatedly said the following. Let’s grant that you’re right that one has no justification for such a breach or for encouraging such a breach (remember the ‘EVEN IF…’ I’ve mentioned numerous times?). Do you think the police reaction (depolying water cannons and tear gas) to such a breach is justified? That’s the main point Leong and I are focussing on.
In summary, the police unjustifiably deployed riot control agents in response to a non-violent breach of a vague, unjustified, and arbitrary ban – when there was no riot. This ‘police riot’ led to some pockets of riots on the part of some protesters. So the police (and their bosses) are the source of the problem.