Friday, August 21, 2009

Legal Aid and Assistance to those Arrested in the Anti-ISA Protest on 1 August 2009

Thursday, 20 August 2009 05:19pm (
Contributed by Ravinder Singh Dhaliwal, Fadiah Nadwa Fikri and Stephanie Bastian

Legal Aid and Assistance to those Arrested in the Anti-ISA Protest on 1 August 2009
589 people including 44 juveniles were arrested on Saturday 1 August 2009 in connection with the anti ISA protests in the centre of Kuala Lumpur.

Two teams of lawyers from the Bar Council mobilised themselves to respond. The Human Rights Committee took charge of monitoring while the Bar Council Legal Aid Centre (Kuala Lumpur) formed an Urgent Arrest Team to provide legal aid and assistance to those who might get arrested.

News about the Arrests

As early as 6.30 am on that Saturday morning, volunteer lawyers of the Legal Aid Centre (LAC) had already gathered at the LAC office in Wisma Kraftangan. There were lawyers manning the Centre while others went on the ground along Jalan Tunku Abdul Rahman, Sogo areas and Masjid Jamek to monitor the situation.
The Centre received the first report of arrests at about 9.00 am. We also received reports that people were beaten up by the police and excessive force was used in the course of arrests even though those taking part in the assembly were not violent. In one incident, when one of the lawyers called on the police not to use excessive force the police shouted back, “if you want to talk about rights, you go to court, you lawyers all you know is rights, rights, rights!”

As the day progressed, more and more calls were coming in informing the lawyers about arrests taking place at the different hot spots. Some arrests even took place outside Wisma Kraftangan itself! A few of the volunteer lawyers were also tear-gassed and harassed by the police.

Sieving through the Information

The lawyers at the Centre began sieving through the information while trying to figure out the actual situation, especially where the detainees were being held. Where it was possible, lawyers asked the persons detained to confirm their whereabouts and advised them about their rights through the calls. They were also counseled to voice their requests to meet the lawyers and not to sign any statements without the presence of lawyers.

The information suggested that those detained were taken to a number of police stations including those on Jalan Campbell and Jalan Tun H S Lee, but it also seemed to suggest that everyone was being moved to the FRU PGA Complex in Cheras.

To clarify the situation, the lawyers attempted to contact various police stations including Bukit Aman and Cheras to confirm the arrests, determine the location of the detainees and notify the authorities that they would be acting for the detainess – without much success. Most police stations denied holding any detainees and the FRU PGA Complex could not be contacted.

In the end, it was decided that one of the lawyers would take a trip to the FRU PGA Complex, Cheras and to report back to the rest. He arrived at about 3.00 pm and was probably one of the first lawyers to arrive on the scene.

FRU PGA Complex – Extremely Uncooperative and Inaccessible

At the Cheras FRU PGA complex it was clear that hundreds of people were in police custody. This was evident from the truckloads of detainees being driven in. At this point, more lawyers had arrived but their efforts at gaining access to their clients proved difficult, as the police and the FRU Officers were extremely uncooperative. Lawyers were made to stand and wait outside the huge Complex and repeated requests to talk to an officer or person in charge to find out what was happening was a futile effort. There was an absolute lack of response from the officers manning the gate.

To make the problem worse, it was not clear if the Complex could be used as a detention centre. There appeared to be no police officer in charge, investigation officer or OCPD and the Complex became one huge inaccessible fortress.

Those police officers that we had to interact with just said ‘NO’ to every request or query. They did not even bother to invoke Section 28A (8) of the CPC as they normally do. A senior Officer told one of the lawyers “Don’t talk to me about the law, you lawyers know the law and all I know is this is a ‘kawasan larangan’ so you cannot go in”. They were uninterested in the law. It was just a case of “no” and “you can do what you want.”

Despite being at the Cheras FRU PGA Complex for close to 5 hours, and despite numerous attempts on our part we never managed to gain access to any of the persons being held here. It was clear that the police have scant regard for Article 5 of the Federal Constitution. In situation after situation they deny lawyers the right of access and continue to make a mockery of Section 28A (2) to (7) of the Criminal Procedure Code which specifically allows for such access.

At some point, buses began to leave the complex. It was not clear at this stage what was going on. Were detainees being released or merely being moved to different police stations? As has become standard police operating procedure in this country, the police never provide any information about what is going on! We asked but as usual we were met with a wall of silence.

Lawyers thus had no choice but to resort to chasing police buses on motorbikes to try and figure out what was going on. After several attempts, one of the lawyers finally caught up to one of the buses at the train station in Cheras. Detainees were being let off the bus here and the lawyer managed to speak to them. This was the first time that we were able to confirm that releases were taking place.

It baffles the mind as to why the police had to resort to such secrecy pertaining to their actions. If you are going to release someone – why not just say so. If you are going to remand someone – is it so difficult to inform the family and friends that a remand order is being sought and let them know where and when the remand hearing will take place?

There are a lot that needs to be done to reform the police force, but one immediate step that they could easily take (if they wanted to) would be to be more transparent. But old habits die hard and the lack of transparency and secrecy appear to have become part of Polis Di Raja Malaysia’s organisational culture.

Bukit Jalil Police Station – Interviewing Clients and Remand Hearing

While the lawyers were still at the Cheras FRU Complex, they began to receive reports that some of the persons detained were being held at the Bukit Jalil police station. Some lawyers remained at the Complex to monitor the situation while others began traveling to Bukit Jalil.

Another group of lawyers headed to Petaling police station upon hearing of the detention of three juveniles there. When they arrived at the Petaling station, they discovered that one of the three juveniles had already been remanded for four days.

The first volunteer lawyers arrived at Bukit Jalil at around 9.00 pm. They spoke to the OCPD and asked to see their clients. After waiting for almost 2 hours, they finally managed to see the IO, Inspector Buruwin. They repeatedly insisted on access and finally at about 11.00 pm the team began to interview about 40 persons who were being detained in Bukit Jalil police station. It was not certain if the remand would take place immediately and so the lawyers waited outside the police station till 2.00 am when they were informed that the remand hearing would only take place at 11am on Sunday (2 August).

The volunteer lawyers regrouped at the Bukit Jalil police station at 9.00 am on Sunday. Despite being told that the remand proceedings would take place at 11.00 am, the team wanted to turn up early since some of those detained on Saturday had been detained as early as 9.00 am on Saturday morning and there were concerns that the remand hearing might take place before the 24-hour deadline.

(Lawyers outside Bukit Jalil police station after remand hearings)

The remand hearing at Bukit Jalil began at around 12.00 noon on Sunday. The two juveniles who had been detained at Petaling police station were brought to Bukit Jalil in a van. Puan Naziah was the presiding magistrate and she began by hearing the remand applications in respect of the two juveniles. She ordered them both released.

She then proceeded to hear applications for remand in batches. She began with batches of three but towards the evening the batches got bigger with the last ones numbering 17 and 21. It was only during these proceedings that we learned that about 13 persons arrested early on Saturday morning had already been given remand orders. This remand hearing had apparently taken place at about 2.00 pm on Saturday afternoon when we were still at Wisma Kraftangan and the anti-ISA gathering was in full swing!

The 13 had apparently been arrested at about 3.30 am on Saturday morning. No lawyer was present at the proceeding and the majority of the 13 were remanded for four days. While the remand hearings were going on, 21 more persons who had been held overnight in the Brickfields police station arrived.

The remand hearing was a long drawn out process. By about 4.00 pm some of the volunteer lawyers were exhausted. Many of them had been at the Bukit Jalil police station until 3.00 am on Saturday night and then returned to Bukit Jalil at 9.00 am on Sunday morning. It had by now became clear that the remand hearings would run into the night. Following that, an SOS was sent out for reinforcements. By 6.00 pm more lawyers began arriving at the Bukit Jalil police station to assist.

The remand hearing finally came to an end at 9.15 pm – after almost 10 hours! The total number of persons whom the police sought to remand was 77. The police failed to get remand orders against 59 persons and over the course of 10 hours, 3 juveniles, 11 women and 45 men were released. There were cheers of joy and jubilation as those released met their friends and family outside the police gate. Over the course of the day, a total of 18 persons were remanded - 1 juvenile, 5 women and 12 men.

The final batch of lawyers came out of the police station at 9.30 pm to applause and shouts of “hidup peguam” from the crowd of family members and friends of the detainees.

Bail Application – Kuala Lumpur Sessions Court

On 3 August 2009 (Monday), 29 persons were brought to the Sessions Court and charged; 16 for being part of an illegal assembly and 13 others under the Societies Act for distributing T-shirts for an unregistered society (Gerakan Mansuhkan ISA or GMI).

The volunteer lawyers did the bail applications. The prosecution asked the Court to impose a bail of RM6,000 and a RM5,000 bond on the juvenile. The Court, however, after hearing arguments from the lawyers, fixed bail for each of the 28 at RM500 and allowed the juveniles to be released on a RM 300 bond.

The police then whisked off four of the women who had been offered bail in the Sessions Court to the Magistrates Court where they were charged for apparently not producing their ICs when arrested. Once again the lawyers conducted the bail application and bail was set at RM200 each.

(Detainees released on bail)

Making a difference

The presence of lawyers at Bukit Jalil police station and the Court made a difference. At the remand hearings on Sunday in the Bukit Jalil police station, the police failed in three out of four cases to get a remand order. This failure rate is unprecedented. We remember all too well, previous situations of mass arrests – when almost everyone would get remanded. The maximum remand against the 18 was only two days - which meant that they had to either be charged on Monday or released.

The number of persons who were released at the remand hearings on Sunday stood in sharp contrast to the situation on Saturday afternoon when 13 unrepresented persons were remanded, the majority of them for the maximum of four days.

The lawyers who handled the bail application also did a good job by getting a bail as low as RM500. In previous situations of mass arrest, bail had sometimes been as high as RM2,000.

Thank you

The Bar Council Legal Aid Centre (Kuala Lumpur) would like to thank all those who were part of the Urgent Arrest Team over the weekend and all those who responded to the SOS for more volunteer lawyers, chambering pupils, and staff of the Centre. Everyone played their part. Truly it was a wonderful team effort involving many people – some of whom gave their time and effort on short notice.

We laud them for sacrificing their time and energy over the arduous three days. From being with us at our Centre to monitor the arrests, to traveling to different police stations on Saturday to try and locate those detained, for going to Bukit Jalil police station to assist in the remand hearing and for turning up at the Court on Monday to help in the bail application.

Their combined efforts and commitments to the fundamental tenet that every one has the right to legal counsel made a real difference to the length of time that the detainees had to suffer in police custody.

We thank the following persons for assisting in one way or another. Their presence made a real difference to the lives of all those detained:

Ravi Nekoo, Ravinder Singh, Fadiah Nadwa, Saha Deva, Stephanie Bastian, Valen Khor, Harleen Kaur, Rajen Devaraj, Puspawati Rosman, Harvindar Singh, Rajesweri Paramesevam, Mohd Radzlan Jalaludin, Nik Waheeda, Farida Mohamad, Sasha Lyna, Murnie Hidayah, Farhana Abdul Halim, Syuhaini Safwan, N. Surendran, Latheefa Koya, Honey Tan, Pushpa Ratnam, Lim Chee Wee, Ragunath Kesavan, Ambiga Sreenevasan, Edmund Bon Tai Soon, Daniel Joseph Albert, Syahredzan B Johan, Jonson Chong, Patrick Dass, Lee Choi Wan, Chow Siew Lin, Steven Thiruneelakandan, Brian Jit Singh, Verghese Aaron Mathews, David Dinesh Mathew, Khaizan Sharizad (Sherrie), Rachel Vanuja Suppiah, Seira Sacha, Adiba Shareen, Soo Siew Mei, Lim Kar Mern, Joanna Loy, Ahmad Zamri B Asa’ad Khuzaimi, Zulqarnain B. Lukman, Azizzul Shariman B Mat Yusoff, Ariff Azami B Hussein, Zulhazmi B. Shariff, George Varughese, M Puravalen, Richard Wee, Chin Hsu Lin, Chin Oy Sim, Andrew Khoo, Bavanee Subramaniam, Sivamalar Genapathy, Elizabeth Anne, Jeevanathan Angappan, Sheena Manicam and Nalina Grace Nair.

[Ravinder Singh Dhaliwal is the Chairperson of the Bar Council Legal Aid Centre (KL), Fadiah Nadwa Fikri is the Secretary and Stephanie Bastian is the Executive Director]

Friday, August 07, 2009


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 :





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