On Thursday evening, there was a briefing held for volunteer lawyers sitting on the Kuala Lumpur Legal Aid Centre Urgent Arrest Team to provide legal assistance in case of arrests which would result from the anti-ISA peaceful assembly which was scheduled to be held on 1 August 2009 at 2.00pm. Every one had a feeling there were going to be massive arrests on August 1. We decided to document details of the arrests and only after the event ended we would be at the respective police stations to render legal assistance. Every one was all prepared, the list of lawyers’ contact numbers and case laws to be used for purposes of remand hearing.
As early as 9 am in the morning I had been receiving messages after messages confirming arrests. I just couldn’t help waiting no more that I decided to go to the Legal Aid Centre at Masjid Jame’ to join my fellow comrades who were already there. We prepared a long list of names and details of those who got arrested. A few of my comrades and I took turn to go to the ground to monitor the situation.
The crowd was not provocative, unarmed and all that they did was stand in one corner. All that they had with them was a conviction that ISA must be abolished as it violates human rights principle. At this moment, I will not delve into the issue of the right to peaceful assembly as provided for under Article 10 of the Federal Constitution, explained in length by SUHAKAM in its recommendation to the Government following the Kesas Highway and KLCC Bloody Sunday Public Inquiries and the practice of other countries such as the United States, Canada, Italy, etc which suggest one common point: the Police should facilitate the participants of a peaceful assembly, not to impede them.
Before I write more on my personal accounts as to how the whole event unfolded, let me quote some typical statements made by some sectors of the society.
Statement No. 1 – You lawyers all you know is right, right, right!
Statement No. 2- Not all police are bad okay!
Statement No. 3- You lawyers, all you know is to bash “us”, you think all lawyers are good?-since lawyers are always accused of being in the opposition, I figure you know what “us” means.
Statement No. 3- I’m so worried, you are being used by some people.
Statement No. 4- Law is a matter of interpretation. Period!
Fact No 1
Nowhere in the world there is a rule that says Police can beat you up whilst discharging their statutory duties. Police brutality is a crime.
Refer : United Nation Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
I witnessed before my own eyes, 2 participants were stomped by 4 to 5 police men. The man was lying helplessly on the ground with his hands up trying to protect his body and his face. I ran towards the man and demanded the police to stop using force as the first man was not violent and he was in no way resisting the arrest. He was lucky that they actually let him stand up and walk towards the police truck.
The second man was unfortunate that the moment I got there, he was already black and blue, beaten up by the police. I again demanded them to stop, some of them left the man and came towards me and started shouting. I told them no one has the right to act like barbarians and beat people up like nobody’s business, these people are human beings. They are unarmed and helpless. The police shouted “You lawyers all you know is right, right, right, go to court to fight for those rights!”.
Conclusion : you can murder just anybody, you can inflict harm on just anybody, let the person die first and later ask the family and the lawyer to go to the court to seek justice. This standard practice can only be traced back to Nazi time.
Fact No. 2
Right to Legal Representation
Refer : Article 5(3) of the Federal Constitution and Section 28A(2) to (7) of the Criminal Procedure Code.
When all the urgent arrest lawyers were still at the centre collecting all details of arrests, we managed to talk to the arrested persons on the phone. We advised them that they had to inform the Police that they needed to see their lawyers. We also advised them not to sign any statements until they see their lawyers. One man was on the phone with me. He told me that all of them were forced to give statements even though they have informed that they needed to see the lawyers first.
While he was still on the phone, I demanded to talk to the I.O, he passed the phone to one police officer, his name was Roslan. I told him, I need to see my client and he has the right to see me before doing anything. He stopped talking to me but I can still hear on the phone he said to my client “why are you calling your lawyer?? I trust you and now you go tell your lawyer??”. This is nothing but a deliberate act of intimidation aiming at preventing them from seeing their lawyers.
Forced to give statement? Section 112 of the CPC gives the right to silence. Any suspected persons have the right not to say a word to the Police. Which part of the section needs interpretation?
Fact No. 3
Nowhere in the world there is a rule that says the Police can lie as much as they want.
Refer : Your conscience, religious teachings.
It’s common to hear people say “Lawyers are liars”. Those who classify themselves as “us” would go further quoting "the first thing we do, let's kill all the lawyers." This phrase is from Shakespeare's Henry VI and the best part is, they forget to mention that this phrase was uttered by the villain. If you ask me what is my take on people who lie, I would say any single human being is capable of lying. The difference between a 7 year old kid who lies about his examination result and someone who is entrusted to carry out public duty is strikingly obvious. In Islam, people who lie are known as “munafiq” based on this particular tradition of the Prophet : "The signs of the hypocrite are three: when he speaks he lies, when he promises he breaks his promise and when he is entrusted he betrays the trust." (Bukhari and Muslim)
Umar mentioned the hadith of the Prophet : "The thing from which I fear for you the most is the knowledgeable hypocrite." Umar was then asked: "How can a hypocrite be knowledgeable?" To which Umar answered: "He speaks with wisdom but acts with injustice."
On that day, the Police keep uttering this statement God knows how many times “you are Malay, help other Malays la, why are doing all these things” -this is what we call “the Melayu thing”, which until now I cant figure out what does it have to do with the violations they committed. The reason why I quote the Prophet’s traditions as stated above is because I believe they are well aware of who the Prophet was and I think it’s not too much for me to assume that they should be familiar with this basic simple rule on lying. Again, why do I quote the Prophet’s traditions on munafiq? The reason is I couldn’t find anything on this (lying) from the so called “Melayu thing”, even if I crack my head open I could never recall whether I was ever taught in my religious school back then when I was in standard 3 that “Melayu thing” prevails over the teaching of the religion.
And why lying is a grave sin? Because people who lie can never do justice, particularly when those people are entrusted to carry out their duties with integrity and trust. The above mentioned tradition of the Prophet describes what “knowledgeable hypocrite” is. The words the Prophet used to describe this kind of people are “the thing which I fear for you the most…) show very clearly the severity of the act of hypocrisy by people who are entrusted to act justly.
Lies,lies and lies
Lie No. 1- When all the lawyers were trying to get access to see the clients outside the FRU Complex in Cheras, we were told that the detainees were about to be brought to Dang Wangi Police Station. We straight away made our way to Dang Wangi Police Station the moment we saw two trucks came out of the complex. Suddenly we got a call form our client saying that the Police actually took them to Bukit Jalil Police Station.
Lie No. 2- the woman detainees requested the Police to bring them to a place where they can perform their prayers after the arrests, the police officer said yes, and the next thing they knew was they were all put in the lock up.
Lie No. 3- 3 juveniles who were separated from the parents went missing in Police custody. While the father of one child was frantically looking for his son, the Police said “I don’t know, we don’t know where he is”. When the father came to see us in Bukit Jalil Police Station, we told the police that we wanted to lodge a police report on a missing person, and the interesting part is, this person went missing in police custody!. They panicked and suddenly they said “ya, the child is in Petaling police station”.
Lie No. 4- some of our clients were elderly and seriously ill. We managed to get someone to get the medicines for them. We gave the medicines to the Police and asked the police to pass them to our clients. They said they would do that. The next morning, when we went to the police station for remand hearing, we were informed by our clients that the Police never gave the medicines to them.
Lie No. 5- the woman detainees demanded to see their lawyers as they were in contact with us the moment the got arrested and they were fully aware of the fact that the lawyers were outside trying to get access to see them. One lady officer told them “why do you want to see your lawyers, they are not here”.
Lie No. 6- one man who was just released wanted to lodge a police report as he just lost his IC which was taken and kept by the police upon his arrest. He was prevented to lodge a report saying that the police were the ones responsible for his lost IC. The family members came to see me and asked me to help him out on this. I went in, I asked the police what was the problem. They finally had to allow him to report on what actually happened.
As I walked out of the police station, a friend said to me : “imagine, what would happen to people who don’t have lawyers to be with them, imagine the things the police are capable of doing”.
Fact No 5
“to take statement from the suspect and to obtain further information are not valid grounds to justify remand order” . These two grounds are clearly enunciated in the case of :
1) DASTHIGEER MOHAMED ISMAIL v. KERAJAAN MALAYSIA & ANOR
HIGH COURT MALAYA, KUALA LUMPUR,ABDUL WAHAB PATAIL J,[CRIMINAL APPLICATION NO: 44-6-99]4 MARCH 1999
2)IN RE MOHAMAD EZAM MOHD NOR, HIGH COURT MALAYA, KUALA LUMPUR, ABDUL WAHAB PATAIL J, [CRIMINAL TRIAL NO: 43-12-2001],10 APRIL 2001
3)SAUL HAMID PAKIR MOHAMED v.PUBLIC PROSECUTORHIGH COURT MALAYA, PENANG,EDGAR JOSEPH JR J [CRIMINAL REVISION NO. 53-8-87] 4 JUNE 1987
4)IN RE SYED MOHAMMAD SYED ISA & ORS HIGH COURT MALAYA, KUALA LUMPUR, ABDUL WAHAB PATAIL J,[CRIMINAL REVISION NOS: 43-03-2001, 43-05-2001, 43-06-2001& 43-07-2001]
To explain the above law on remand in a simpler term, when someone is arrested, the police may only detain that person up to 24 hours for investigation. The duty of the police is to complete investigation within 24 hours and to release the person as soon as possible. If the police cannot complete investigation within 24 hours, the police must bring the person before a magistrate for a remand order to extend his detention beyond 24 hours.
For the police to ask for remand order, they have to specify the grounds of the application, not the purpose of the application (as decided in the case of Saul Hamid). The onus is upon the applicant (the police) for an order for remand to satisfy the magistrate that an order to remand the suspect is necessary (as decided in the case of In Re Syed Mohammad Syed Isa & Ors).
Finally I figured out why on earth the police despise the word “right” so much. During the remand hearing, the police did not even bring one single case law to substantiate their application for remand. If only they read the cases I just cited above, they might suffocate and fall to the ground having to swallow repeated mention of the word “right” and “liberty” by the Court which form the very foundation of a just criminal justice system,. Mind you that the police are the ones who have to prove the ground to justify their application for remand and they couldn’t even be bothered to do research and bring a case law to the Court.
Which part of the principles enunciated in the cases above needs interpretation?
The “so called ground” given by the police on the remand day:
1) to obtain further information
2) to take further statement from the suspect
Some detainees were released and some were remanded. I find this part rather puzzling. The police repeated the same grounds which run contrary to the case laws cited above, and yet the magistrate could grant different orders. Strange? No it’s not. Apparently it has been the standard practice as far as I could recall.
Fact No. 6
Human rights are rights inherent to all human beings, regardless of your nationality, place of residence, sex, national or ethnic origin, colour, religion etc. The fact that you are a human being gives you these inherent rights, regardless who you are, whether you are a prisoner, a student, a child, a refugee, a migrant, a detained person etc.
Refer : Declaration of the Rights of Man, the Universal Declaration of Human Rights, the Geneva Conventions, and the International Covenant on Civil and Political Rights, Child Act 2001, Convention on the Rights of the Child (CRC) which has been ratified by Malaysia.
Violations committed on the detained persons on that day:-
1- The juveniles were denied food and drinks for almost 8 hours.
2- The male detainees were asked to drink from the toilet pipe even though there were proper food and drinks provided for people in detention.
3- The detainees were denied the right to practice their religious obligation (prayers).
4- The detainees were forced and intimidated to give statement without the presence of lawyers. Mind you that the law gives the right to refuse giving statement (the right to silence)
5- The police seized the IC, handphones and other belongings of the detainees upon their arrests without filling up the list. They deliberately refused to return all the belongings upon their release.
6- The Juveniles were held in the lock up together with adults. This is in contravention with the provisions of the Child Act 2001 and the CRC.
7- One juvenile had a fever when he was detained and no medical assistance was given to him. This is in contravention with the Child Act 2001 and CRC.
Coming back to the typical statements I stated above. Some might say, what is the relevance? That’s the whole point I’m trying to make. People deliberately close their eyes to these atrocities and they resort to saying all those typical statements to justify their inaction, ignorance and refusal to admit to the truth. We don’t need to respond to those typical statements as the time used to respond to those statements would be much better used to help those who are oppressed and violated.
If you fail to see your own reflection in the human being standing in front of you, …please tell me what I should refer you as.
“Our government is the potent, the omnipresent teacher, For good or ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself.”Justice Louis D. Brandeis – 1920