Fallacies Spun by Critics of the Bar

This response is jointly endorsed by Edmund Bon, Fahri Azzat, Janet Chai, K Shanmuga, Mahaletchumy BalakrishnanMarcus van Geyzel, Seira Sacha Abu Bakar, and Sharmila Sekaran.

The Bar Council and the Malaysian Bar (“the Bar”) have been criticised recently as being pro-Opposition. This is because of the Bar’s press statements and its Extraordinary General Meeting resolution regarding the police brutality shown at the Bersih 3.0 sit-down rally. The common theme adopted by critics of the Bar is that the Bar was not fair, or even-handed, as the Bar were more critical of the police than it was of the other parties involved.

Some of the more popular criticisms were summarised in Roger Tan’s article “Unswayed by fear or favour” which was also published in The Sunday Star on 20 May 2012. In summary, he says the following:

  1. The Bar in condemning the police brutality must be equally aggressive in its condemnation against the protestors who “behaved like rioters and anarchists”.
  2. The Bar had prejudged the issues by passing the resolution because by doing so “the Bar had already come to a conclusion that all those acts listed therein had been committed by the police”.
  3. The Bar should have demanded an apology from Dato’ Seri Anwar Ibrahim because “it was his men who were reportedly the ones who removed the barrier” which was “the trigger point”.

This statement is written immediately in response to Roger Tan’s article, but also addresses others who have been critical of the Bar on this issue. We intend to address the second criticism first, then the third and first criticisms. Our reason for this will become apparent as our reply develops.

The Bar did not prejudge the issues

In his second criticism, Roger says that the Bar should only pass the resolution condemning police brutality after a finding has been made by an independent body such as SUHAKAM. However, SUHAKAM relies on the evidence of witnesses, and often conducts a hearing several months after the event. The Bar based its stance and resolution on the observations of 80 lawyers who formed a team of observers of events during Bersih 3.0. The purpose of assembling and mobilising this monitoring team was precisely so that the Bar would be able to rely on their eyewitness accounts, and not those of friends, media, the police, or post-event photos or videos. The observations of the monitoring team were recorded and compiled within hours on the day itself, and thereafter fine-tuned and completed. We have no reason to doubt the credibility and observations of the team, and neither have we heard of substantiated allegations about them.

Aside from the Bar monitoring team and its report, since that day many other eyewitness accounts have emerged, including photos and videos that speak for themselves. Significantly, on this occasion, even media members were not spared. We even had the embarrassing incident where Al-Jazeera’s reporter Harry Fawcett had to report via Skype from his iPad as his team’s video camera was smashed by police while they were recording police brutality against protestors.

Most importantly, many previous SUHAKAM inquiries – the 5 November 2001 Kesas Highway Incident, the 17 June 2003 Kundasang Incident, the 28 May 2006 KLCC Incident, the 27 May 2008 Persiaran Bandar Mahkota Cheras 1 Incident, the 9 July 2011 Bersih 2.0 Incident – found that there was excessive use of force by the police, and evidence of police brutality. Numerous complaints by victims led to the said inquiries, the findings of which thereafter vindicated the complaints leading to damning conclusions about police conduct. These many reports do not just show isolated instances of police brutality: Bersih 3.0 was not a one-off. There is a pattern of regular use of excessive force and brutality in violation of human rights by the Royal Malaysian Police Force. Despite these many reports by SUHAKAM, and despite the findings of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police, the police have not made any serious attempts to school themselves in the prevention of human rights violations.

Regrettably, Roger is sceptical of the 80 monitors appointed by the Bar Council because they are not named, as he “would certainly like to know their political inclinations” to satisfy himself that they “were independent-minded in their conclusions”. Firstly, five widely-respected senior members of the Bar, who were a part of a “roving” team of monitors, were named and had their observations separately documented: Christopher Leong (Vice President of the Malaysian Bar), Steven Thiru (Treasurer of the Bar Council), Dato’ Ramachelvam Manimuthu, Ramdas Tikamdas, and Roger Chan Weng Keng. Apparently it is not enough that lawyers of this calibre verify and endorse the report.

More importantly, what does one’s political inclination have to do with stating a fact about whether Malaysian citizens were assaulted and battered by the police, and whether there was excessive use of force in accordance with international human rights standards?

Whilst Roger Tan has left the Bar Council, it is unfair to assume that the Bar Council would not have trained these monitors properly bearing in mind this is not the first assembly monitoring mission dispatched by the Council. His flippant remarks greatly disparage those members of the Bar who volunteered to serve on the monitoring team, implying as it does that they would allow their personal prejudice to influence their professional duties. It is part of our job as lawyers to put aside our personal prejudice in order to advance the cause of justice.

Rather conveniently, whilst casting these aspersions on others, Roger himself does not reveal his strong affiliations to a particular political party. Employing Roger’s logic, one wonders, perhaps, whether commentators in The Star for example should also be required to divulge their political affiliations and leanings before their opinion pieces are published. But we will not venture into the realm of the fallacy of argumentum ad hominem to discredit the views of others, as Roger disappointingly has.

Roger’s comments suggest that we should not immediately make conclusions even if we see a group of uniformed policemen beating up an unarmed citizen who lies helpless on the ground because there were extenuating circumstances. And even if numerous members of the Bar, members of the public and journalists documented such incidents of brutality. The fact is, the police are supposed to treat each person they arrest as if they are innocent until proven guilty. The police should only use reasonable force in arresting someone. If they have to resort to force, they should only use force that is proportionate to the threat faced, and only enough to ensure the person’s arrest.

Roger cites the example of the Bar postponing its EGM with regards to the VK Lingam video clip scandal while it waited for the Royal Commission of Inquiry to complete its task. Roger however seems to overlook the fact that the video clip sparked the groundbreaking Walk for Justice in September 2007 which saw about 2,000 lawyers marching to the PM’s office. The other difference with that example is that with Bersih 3.0, the Bar monitoring team saw police brutality with their own eyes, and not through a video clip. It is obvious that this is not a comparable precedent.

What is this obsession with Anwar Ibrahim?

In his third criticism, Roger insists that the Bar should similarly demand an apology from Dato’ Seri Anwar because he was reported to have instigated the removal of the barrier. But Roger must understand that one must distinguish between credible first-hand reports by Bar monitors, and accusations by obviously partisan members of Barisan Nasional and its media.

This is where Roger shows an obvious inconsistency – whilst saying that the eyewitness accounts of the Bar’s monitoring team is insufficient to be relied upon, he says that the Bar should demand an apology from Dato’ Seri Anwar for an incident that no one on the Bar’s monitoring team witnessed. Despite the many eye witness blog entries, photos and videos, there has been no compelling evidence either way to show who removed the barriers, or whether their removal was facilitated by the police, public, or Opposition members. On what basis is Roger suggesting that the Bar demand an apology from Dato’ Seri Anwar?

Let us for one moment set aside the question whether the Court order prohibiting entry into Dataran Merdeka was unnecessary, wrong in law and unconstitutional. Let us also assume the barriers in question were covered by the Court order. Even assuming that the order was validly executed by the police, did it necessitate the extreme use of non-lethal force to arrest and disperse the small group of people who breached the barrier? Bearing in mind that the Bar’s resolution was on police misconduct, and not about who removed the barrier, it is even more disconcerting that Roger implies that the police may excessively and disproportionally tear-gas and beat the innocent just to get at those who did breach the barrier.

The Bar need not have condemned the protestors

Finally, Roger develops the basis of the criticism that the Bar is not “independent” by stating the Bar failed to condemn with equal vigour lay members of the public who he says acted “like rioters and anarchists”. Many labour under the misapprehension that to be “independent” an organisation must always be even handed and restrained in one’s remarks. But that is a fallacy. And it is an even greater fallacy when it concerns injustice.

Police brutality is a violation of a human right. A violation of any human right is manifest injustice. Police brutality per se is an injustice. The presence of police brutality has tainted the Royal Malaysian Police as surely as a drop of blood stains a uniform. An injustice perpetrated by even one from an institution set up to serve the cause of justice deserves the harshest condemnation. There cannot be any restraint in condemning abuse of power. As a police force meant to be independent and professional, the Royal Malaysian Police are kept to higher standards than lay members of the public. So the Bar cannot be swayed by fear or favour; it cannot be hesitant or even handed in condemning an injustice that is police brutality. Here is an Executive institution that is well-funded and well-staffed with wide powers taking action against unarmed people. It is State against the individual person, and the Bar stands – must stand – for the latter.

What Roger and many who adopt this line of criticism fail to explain is how the condemnation of police brutality amounts to an endorsement of the Opposition. This criticism reveals more of their own political prejudice than that of the Bar. Their criticism strongly suggests a belief that criticism of the police is the equivalent of criticism against the political party in government. Their criticism also reveals that they are the sort who think that perception is reality.

It is only those who are so immersed and drenched in politics that adopt such a worldview. The Bar’s criticism and the facts it relies on are an inconvenience to their perception. Ultimately these popular criticisms against the Bar are not borne of logic or facts, but a need to feel good.

There is one further reason why we would not have voted for a resolution that condemned those members of the public who turned violent. The fact is that most thinking Malaysians who have access to the alternative media – and therefore do not rely solely on the bare faced propaganda of our mainstream print and broadcast media – are not convinced that these so called “rioters” are as blameworthy as the police.

The police put razor wire across our City roads turning Kuala Lumpur into a war zone before any violence had ensued. The police obtained a totally unnecessary Court order prohibiting entry for four days into Dataran Merdeka, without any notice or opportunity to the organisers of Bersih 3.0 to present their case despite ample time for them to do this. Then, when the disturbance started, it was the police who shot tear gas behind and in front of retreating protestors so that they were boxed in rather than allowed to disperse. Who ordered the closure of the nearby LRT stations so as to prevent people from dispersing? Who ordered the destruction of cameras belonging to journalists, and the reported censorship of Al Jazeera and the BBC? What justified the four hours of continued attacks on people who were already dispersing or having dinner? All this done against fellow Malaysians, who until the very end had taken part in an almost perfect rally.

As pointed out by Roger, the Bar’s resolution did expressly state that the Bar is concerned with and does not countenance acts of violence by rally participants, and are concerned by reports that police barriers were breached. In our view, that says enough. We did not hear any suggestions made at the EGM to amend the resolution. All the dissenters at the EGM agreed in principle that they were against police brutality. What more needs to be said really, seeing as the police were already actively identifying and hunting down those whom they say committed offences during the rally? The police had even stated that they would conduct a house-to-house search for these individuals. Compare this with the lack of action in identifying, let alone condemning and punishing, the police officers who committed violations of duty and human rights.

The Bar’s resolution was proper

The Bar was entitled and correct to issue the statements it did, and to pass the resolution it did. The resolution is fair in all the circumstances and was carefully worded throughout. The facts that it had gathered itself through the Bar’s own members were set forth frankly and properly, and the urgent action that was needed due to the unprecedented police brutality seen on that day was set out in an appropriate and immediate manner.

We are proud to have supported the Bar’s resolution and have no qualms about the Bar’s continued independence. We believe the vast majority of the Bar are totally in support of the resolution, and the comments against the resolution are the isolated voices of a few in the wilderness given undue prominence by propaganda organisations posing as the mass media.

It is telling that Roger states that “removing the barrier was the trigger point” and adds that it is “common sense” that “whoever first raises his hand against the other is the most blameworthy”. Words do not suffice to describe the disingenuous nature of the suggestion that the removal of the barrier is even remotely comparable to the brutal actions of the police. In any case, there have been no reports of barriers being “breached” in front of the Bar Council, on Leboh Pasar Besar – yet even then, water cannons and tear gas were fired there. Roger fails to acknowledge the clear reality that police reaction was not localised to Dataran Merdeka or to the participants there, and that other than at the Jalan Raja / Tun Perak junction, it was the police who struck first.

The actions of some members of the police force on that day were incidences of injustice that were so blatant that it should be impossible for anyone who purports to stand up for justice to remain silent. We have already seen concerted efforts – by the ruling coalition, the police, and those who are too politically-partisan to distinguish clear acts of injustice from their political posturing – to distract from the injustice highlighted by the Bar’s resolution by attacking the Bar and casting aspersions on those who are doing no more than reporting what they saw with their own eyes.

The Bar must continue to fight for those who cannot speak up for themselves, and whose rights are oppressed by the might of the State. That is our duty, and one that we hope members of the Bar will continue to discharge without fear or favour.

Edmund Bon, Fahri Azzat, Janet Chai, K Shanmuga, Mahaletchumy Balakrishnan, Marcus van Geyzel, Seira Sacha Abu Bakar, and Sharmila Sekaran.

Note: Roger Tan subsequently issued a response to this statement, which can be found here.

Recommended Reads:

7 Mei 2009: Satu Pencabulan Satu Penghinaan
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Posted on 22 May 2012. You can follow any responses to this entry through the RSS 2.0.

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19 Responses to Fallacies Spun by Critics of the Bar

  1. Ghaflennon

    This is my story about an institution that has detached and disengaged itself from being of an accountable body . A sense of thankfulness was in containment .

    In the views of many , the inclusion of the Bar Council in Bersih to walk the street for cleaner and fairer election is in justification . It defines the constitutional rights to freedom of speech and expression , to assembly peaceably and without arms . These are some of the constitutional rights , constitutionally granted !

    As someone remarks that the , " Bar Council's democratic pretensions " in which I think as pretension as such . More to that , I come to terms it is an incendiary body nonetheless the provocateur to Peace and Harmony . The Bar Council must concede by acknowledging the provision stipulated for the security of the Federation , public order or morality are equally owned the constitutional rights too .

    I am in harmony with the Bar Council that it is the integral part of the juridical , which is striving to be a constitutional institution in the premise for an account of the given laws for Peace and Harmony . But the gravity to uphold was put to vain . I have come to believe indefinitely  it is not going to be so . The Bar Council has turned out to be a ' Movement ' which has gone beyond the perimeter of its fundamental function for justice .      

    What ' they think right is just their construction of ' code of injunction '  and also their misrepresentation  proverb to defend the fundamental rights and freedom from those they think have abused the rule of law .  At the same time , the  others prevailing stipulated rights are totally ignored .

    It seems exclusive  ,  the movement has been told that it requires more  of just being lawyers . They are required to march to the streets in order to uphold    their brand of constructed  justice . They are summoned to actively play broader roles for social conscience and more sense of responsibility because it is their democratic rights to do so . This  is an affirmed affidavit underlined the broadening of  their new ' code of injunction ' for the  Movement  . It smells mental anarchy to me   .

    They forget that they are also physiologically  bound by their unconsciousness prejudice,  bias and naive in the meaning of upholding ' justice' . The social and political conscience of justice fall into a thin line of dissent and bone of contention  among them  . As a result , the things that they are rightly believe are not what they rightly behave and yet they are not even aware of their  rightly values and beliefs .  

    The rightly shepherd who is trapped in and under unconsciousness phenomenon is Dato' Ambiga  Sreenevasan , an ex-president of the Bar . Her unconsciousness bias could deliberately manipulate her  sheep to walk against their own interest and the laws .

    Of no doubt that she , the woman , was seen to have had led the movement but the peaceful march had gone berserk and beyond the pale . It seems to me she has not able to break her created three glasses ( Bersih 1,2 and 3 ) but has tainted her glasses into a darker black . 

    Further , the  deficiency and adversity of the 'Movement ' is when it becomes a partisan body in its advocacy by leadership . She has tarnished the integrity of our Democracy and rule of law by not being impartial . In conjunction and as mentioned ,  the rights of the majority peace-loving Malaysians are ignored . 

    Advocating the march under Bersih is an act beyond the function of its jurisdiction  . It jeopardizes its position and function as an advocator for justice and not being prejudice in our democratic system . We can smell again that the political motive of street demonstration  is at large , to con brio the masses to overthrow undemocratically  the present Administration .

    It is unfortunate  , Amiga and the Bar Council have sucked themselves into being a political mercenary for social and civil liberty with their new ' code of injunction ' as the guidance principal for ' their constructed justice by misrepresentation '  . She calls for a place that Bersih be part of the political evolution for a ' radical ' change in  the Malaysian democracy . 

    Bersih is her constructed cage for the sake of love ,  for her birds .

    God loved the birds and invented trees.  Man loved the birds and invented cages.  ~Jacques Deval, Afin de vivre bel et bien

  2. wonderworld

    What is right ? A kills B. Those defend A says he is innocent, self defense etc. Those defend B says, because A is crazy, misbehaving, unreasonably……. What is fair? What is you definition of fair? Are you born fairly…………compare to the rest of people?

  3. notasmart lawyer !!

    The Bar in condemning the police brutality must be equally aggressive in its condemnation against the protestors who “behaved like rioters and anarchists”.

    Fool !!! ….. Bersih is not anarchy …. this is anarchy !!!!
    http://www.youtube.com/watch?v=I-h-YIj4jRw&fe…

  4. lynn cheang

    Good rebuttal! Are you guys putting this rebuttal in the Star?

  5. phang

    i can't believe how ridiculous this is all becoming when first-hand eye-witnesses who are only reporting what they saw, lawyers or otherwise, need to defend themselves against what is pure and utter propaganda posturing.

    it's like a school bully beating the crap out of the entire high-school class and then the class needs to repeat themselves over and over and over again that yes, that really happened, while some kid who was on medical leave repeatedly questions the truth of it, even when his classmates have the bruises still fresh on them.

  6. wonderworld

    agree with you. Maybe too many criminal lawyer around!

  7. simple man

    I am just a simple man. But if someone did something not right/go wild & police take some action….is that wrong? Is not easy to deal with 'rough people'. I do not understand why BC keep on saying rights are oppressed…..maybe that is why lawyer is for – to defence the 'criminal'?? Is that what BC doing now?

  8. Where exactly does it state that the Bar Council's duty is to speak up for those who cannot speak for themselves or fight for those whose rights are oppressed by the might of the State? If you could just humor me on this issue, thanks.

    • Fahri Azzat

      Section 42(1)(a) Legal Profession Act 1976:

      The purpose of the Malaysian Bar shall be:

      (a) to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour;

      • Marcus van Geyzel

        To be specific, for @keethariq's benefit, the answer lies in the meaning of "justice".

  9. Sabahan

    bla bla bla Roger Tan bla bla bla Anwar Ibrahim bla bla bla we are apolitical bla bla bla

  10. Bean

    There is no necessity for police to go after rally-goers when they are already dispersing. Police went after the people and beat them. What is the rational for that? Police should be calm and cool and not go bizarre. They should treat the citizens well. Even criminals have right when they are in the custody of the police. They complain of being beaten why in custody, so why can't the Bar Council stand up for the rights of the rally-goers who are not even criminals. They are just ordinary people who want a fair and just election. This is a well-written piece. Roger Tan himself showed to us his biases and his own political leaning.

  11. Kim Quek

    Bravo! What a masterpiece! LoyarBurokkers, you have not only eloquently defended the Bar’s swift condemnation of the police brutality with lucid facts and logic, but have also given voice to the silent masses who have suffered the combined injustice of such state-instituted violence and the subsequent state-sponsored vilification. Your article should put Roger Tan and The Star to shame – that is, if they have a conscience

  12. pepperlim

    Nice!

  13. shanon lim

    fellas, keep up the good work

  14. Quek Kia Ping

    a fantastic article in showing the Bar stand which is police brutality. Well written and well said. My support goes to the Bar. Without fear and favor

  15. Bothbullshits

    bla,bla,bla,yada,yada,yada. no one is right. no one is wrong

    • jolly cool

      yes….. tiap-tiap orang mempunyai tanggungjawab sendiri. Satu jari menujukan orang yang salah, 3 jari menujukan diri sendiri.

  16. May Chee Chook Ying

    Keep up the good work, guys. Don't be cowed by those Yg Beruks. No one can take away the good that you do, no matter how they spin. Take care and God bless.