UN Rapporteur: Is Malaysia a civilised nation? — Rama Ramanathan

Posted on: September 9, 2012

September 09, 2012

SEPT 9 — What are the characteristics of a civilised nation? Is Malaysia a civilised nation? These two questions remained with me well after I left a two-hour public forum at the Bar Council yesterday at which I heard Maina Kiai, the United Nations Rapporteur for the Rights to Freedom of Peaceful Assembly and of Association, and several others speak about freedom of association and assembly.

Maina, a Kenyan with degrees from Nairobi and Harvard, used the words “civilised” and “civilisation” often during his 30-minute address. He applauded the economic progress of Malaysia, emphasising his sense of awe after a visit to the Petronas Twin Towers.

If the measure of progress in civilisation is the magnificence of our finest building, then we are doing very well. But is that an adequate measure of civilisation?

Characteristics of a civilised nation

Maina spoke passionately about human rights and democracy. He spoke for the United Nations, as one familiar with international law. I walked away with seven key thoughts.

1. Presumption of right to association, not restrictions upon association. Maina said the measure of a civilisation is not it’s ability to tolerate democracy, but it’s ability to thrive upon democracy, to cherish and to protect democracy. For Maina, a nation can claim to be civilised only if its rulers, its citizens and its laws presume (“automatically grant”) the right to association, not restrictions upon association.

2. Freedom of association is a benefit, not a threat. Maina said a civilised society doesn’t view freedom of association as a threat; rather it views freedom of association as a benefit and works hard to to facilitate association and assembly. Maina defined “assembly” as “an intentional and temporary gathering,” including the right to march.

3. The state is responsible for dealing with commotion-creators. An unavoidable feature of life in society is the presence and emergence of persons who will create commotions or disruptions: the state must restrain them through effective policing. Maina said a civilised government considers itself duty-bound to deal with persons who create commotions during protests. Allowing people to vent safely helps ensure security and helps discourage them from seeking uncivilised forms of dialogue.

4. The state facilitates expressions of conflicting rights. Maina takes seriously the rights of everyone, e.g. shopkeepers and drivers. He said a shopkeeper’s right to commerce is just as much a right as his customer’s right to vent; good rulers will strive to keep a balance between the rights of those with different interests: by facilitating conflicting rights, not by curbing or stifling those who support contrary views.
5. Accepting the inevitability of counter-demonstrations. Maina said it is the duty of rulers and the police to recognise that counter-demonstrations are likely, and that it is the duty of the state to define and enforce measures to avoid confrontation — which they can do by keeping potential trouble makers away: allowing them another time or space to vent, thereby minimising violations of law and order.

6. Limiting the responsibility of organisers. Maina shares a belief which is deeply held amongst those who believe governments listen best when people protest visibly — just as our forefathers did in the 40’s and 50’s to evict the British. Maina said making the organisers of assemblies and marches responsible for the actions of individuals “is wrong and uncivilised,” since policing is the state’s responsibility. He holds up South Africa as a country which does this very well.

7. Foreign funding is a non-issue. On the subject of funding by foreigners, Maina asked: if a government can obtain foreign funds to develop the country, if private corporations can obtain foreign funds to invest in Malaysia, why should anyone who obtains foreign funds to exercise democratic rights be viewed unfavourably?

The erudite Maina left us with an implied question: if we review our government’s approach to freedom of association and assembly, will we conclude we are civilised?

Datuk Baljit Singh Sidhu: Moronic, flawed law

Maina was followed by Datuk Baljit Singh Sidhu who reviewed key aspects of the act which I have previously called ROFA (Restrictions on Freedom of Assembly). Baljit, a senior Malaysian lawyer, compares the need for freedom of association and assembly with the relief valve on a pressure cooker. He says assembly is like the relief valve — it allows a controlled release of pressure, thus reducing internal tension, while at the same time revealing the nature and extent of the tension.

It was evident that the meeting was a relief valve for Baljit to display and release his own frustrations with the law. For Baljit, the only label that fits the law is “moronic.”

Baljit’s key points are that the law proves those who rule us think “human rights” means “problem,” and that those who made the law fail to understand that Human Rights is a journey, not a destination. He pointed out several flaws in ROFA, including:

While it is claimed that the law is based New South Wales (NSW) law, the Malaysian version is not a bona fide copy, as the Malaysian version has been stripped of much which is good, and encumbered with much which is bad.

The law doesn’t address how “defective notices” should be handled. This is pertinent because the law requires the organisers of a protest to give the police 10 days’ notice. What if the notice is defective in some respect? Is there scope for amending the notice? The law is silent; given the competence of our current police chiefs, they are most likely to go by the letter of the law (focusing on the “shall”) rather than the preamble which expects the police to act as facilitator.

While the law prohibits street marches, there is a schedule which asks to be notified of details of street marches!
The appeal process provided for in the law is an appeal to an executive (home minister) to overrule another executive (OCPD), not judicial review.

The requirements relating to children are absurd, i.e. an 18-year-old can be a company director, but cannot organise a demonstration! The law makes it difficult to organise even for non-controversial subjects, i.e. cancer awareness and animal rights.

S Arutchelvan: Ridiculous law, ridiculous policing

Baljit’s presentation was followed by the always animated S Arutchelvan, the PSM (Parti Sosialis Malaysia) man whom many of us admire for his dedication to speak for the marginalised and demand better from society, police and politicians, often through organising and participating in demonstrations; my own acquaintance with Arul began through the EO6 saga when the Malaysian State immorally detained 6 PSM members.

As the moderator of the event, the ever gracious, focused and positive Andrew Khoo put it, Arul’s presence gives us confidence when we find ourselves in potentially explosive situations with the police. Arul knows and patiently but firmly exercises his rights.

I will just recount three things that Arul said:

First, Arul provided a different perspective to Maina’s impression of the Twin Towers. He described an occasion when he, walking alone to get a bite at the Twin Towers, was apprehended by 30 policemen, one of whom asked him to accompany them to the police station. Arul, saying he would do so only if he was arrested, asked whether he was arrested. At this point, the “arresting officer” made a call, obtained an answer, and then said “Yes, you are arrested.”

Second, considering that it is often the poor who need to draw attention to their plight through protests, Arul said it’s ridiculous to say protesters should not bring their children to protests. This is because they cannot afford, baby sitters, crèches or maids.

Third, Arul gave a great example of how ridiculous policing in Malaysia can be. He described the plight of 30 people who went from Cameron Highlands to Kuantan to make representations to the Mentri Besar about a land matter — since the MB failed to respond to several of their letters. The MB sent the OCPD to meet them. The OCPD ordered them to disperse. When they refused, they were arrested and taken to the police station — though the police couldn’t figure out what offence to charge them with. Eventually, they were charged with making a nuisance of themselves at the police station: for chanting “Police Zalim! Bebaskan Kami!” (Police are cruel! Free

Mohd Sha’ani, Suhakam: Repeal it!

The last speaker was from Suhakam, the Human Rights Commission of Malaysia. Space does not permit me to report what Commissioner Shaani Abdullah said, other than repeal the law and take a healthier view of human rights. Or else, fail abysmally to meet the goal of being a progressive and developed nation by 2020.

So, according to the United Nations, is Malaysia a civilised nation? —

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.

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