Right to Peaceful Assembly Rendered Illusory by Arbitrary Arrests and Oppressive Remand Orders – Bar Council

Source: The Malaysian Bar

Press Release | Right to Peaceful Assembly Rendered Illusory by Arbitrary Arrests and Oppressive Remand Orders

The Malaysian Bar is very concerned over the police action against some of the participants of the “Bantah GST” (“Oppose the Goods and Services Tax”) public rally held in Kuala Lumpur on 1 May 2015.

The fundamental right to peacefully protest on a matter of public interest is a norm in any vibrant democracy. It is a recognised and legitimate form of public expression of concern, and must not be curtailed through harsh or punitive measures in order to stifle contrary views. A modern and progressive nation must embrace peaceful expressions of dissent, and promote engagement and attempts at mutual resolution of the concerns.

It has been reported that the organisers gave prior notice of the rally to the police and obtained approval to hold it at Padang Merbok. The police were therefore not against the public assembly. The organisers decided that participants should gather at five different locations before marching to KLCC.

The rally was attended by approximately 10,000 persons. Apart from some alleged untoward incidents during which graffiti was spray-painted, smoke bombs and firecrackers were set off, and rubbish was burned — all of which were allegedly committed by a small minority of participants in a limited area — the rally was peaceful.

Regrettably, the police arrested approximately 38 rally participants for investigations for alleged offences under the Sedition Act 1948, Penal Code, and Corrosive and Explosive Substances and Offensive Weapons Act 1958. In many cases, the police detained the suspects overnight and then applied for remand orders for four days. The police should not routinely resort to detentions, which are dehumanising and degrading, to punish and intimidate suspects.

Twenty-nine out of the 38 rally participants were arrested for allegedly releasing a smoke bomb at around 2:00 pm, as well as for unlawful assembly. However, they were only apprehended at 7:00 pm, well after the rally had ended. It is startling that the police waited several hours after the alleged offences before arresting the alleged perpetrators.

There were six minors of 16 to 17 years of age among the 29 arrested participants. The minors were reportedly arrested and handcuffed together with the adult suspects and taken to the Kuala Lumpur Police Headquarters and later transferred to Dang Wangi District Police Headquarters. On 2 May 2015, the minors were produced together with the 23 adult suspects before a Magistrate for the remand hearing. The police sought a four-day remand, and were granted a remand of one day. The minors were then detained at Dang Wangi District Police Headquarters until their release.

The Malaysian Bar is shocked at the manner in which the police treated these six minors, who fall within the definition of a “child” under the Child Act 2001. The Child Act 2001 recognises that a child, by reason of physical, mental and emotional immaturity, is in need of special safeguards, care and assistance. In this regard, it appears that the police ignored several applicable provisions of the Child Act 2001, including the following:

(1) Upon the arrest, the police “shall immediately inform a probation officer and the child’s parent or guardian of the arrest” (section 87(a));
(2) Appropriate arrangements shall be made to prevent a child who is being detained in a police station, being conveyed to or from any Court, or waiting before or after any attendance in any Court, from associating with an adult who is charged with an offence (section 85(a)); and
(3) The arrested child shall be brought before a Court For Children (which is constituted under section 11) within 24 hours of the arrest (section 84(1)).

Further, Article 40 of the United Nations Convention on the Rights of the Child — to which Malaysia is a State Party — prescribes the manner in which a child accused of infringing penal laws is to be treated. The police appear to have been oblivious of these legal obligations, and have arguably exposed the minors to irreparable trauma, and long-term psychological scarring and damage.

It was also reported that the police had issued notices to several persons to present themselves at the Dang Wangi District Police Headquarters before 10:00 pm on 1 May 2105, failing which they would be arrested. There appears to have been no plausible reason for this urgency to commence investigations, and the threat of arrest was certainly unwarranted.

Indeed, in the recent protest in Taman Medan, Selangor on 19 April 2015, the police did not arrest any protestor, and only questioned one of the persons involved, for about three hours on 22 April 2015. Such seemingly inconsistent treatment by the police lends to the perception that the police practise selective or unfair policing.

Several of the persons who received the notice from the police voluntarily presented themselves at the Dang Wangi District Police Headquarters before 10:00 pm to assist in police investigations. Inexplicably, they were arrested before their statements were recorded, and detained overnight. The police subsequently sought remand orders for four days for some of them, which were refused by the Magistrate.

In addition, it has been reported that two other persons, who had also voluntarily presented themselves to assist in police investigations, were arrested and made to wait for as long as ten hours for their statement to be taken by the Investigating Officer. The actual recording of their statements then reportedly only took a mere 10 minutes. The apparent dilatoriness on the part of the police could be construed as harassment, abuse of power and an unwarranted deprivation of a person’s liberty.

It is difficult to fathom why the police would arrest and detain suspects who are willing to cooperate in investigations. Moreover, it is unacceptable for the police to have sought remand orders for four days. It is alleged that these persons had committed offences under section 4 of the Sedition Act 1948 and section 143 of the Penal Code. These alleged offences do not require arrest and overnight detention, and certainly do not justify the excessive remand orders sought. The impression given is that detention was used to punish these persons, before any finding of guilt by a court of law.

There are also allegations that several police cars intercepted a suspect by surrounding his moving vehicle in the middle of a highway, forcing his car to a halt. The suspect was then allegedly dragged out of the car by plainclothes policemen. The suspect has lodged a police report stating that he was verbally and physically assaulted before being pushed into one of the police cars and driven to the police station. These allegations are serious, and cast a pall over the reputation of the police. There must be a thorough investigation, as the alleged conduct is unbecoming of any enforcement agency. If there is any basis to the allegations, the persons involved must be prosecuted for criminal assault.

The Malaysian Bar reminds the police that the constitutional right to peaceful assembly must not be thwarted by repressive police conduct. The police should be mindful that their role is to promote and facilitate the exercise of the right to peaceful assembly — before, during and after the assembly. The misuse of police powers renders the exercise of the fundamental right to peaceful assembly illusory.

Steven Thiru
President
Malaysian Bar

7 May 2015


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