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 was 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;
(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;
(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;
(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 above Final Report is due to be discussed at Bar’s EGM slated for Friday, 11th May 2012 at 3pm
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