“..one of the features of a vigorous and healthy democracy is that people are allowed to go out onto the streets and demonstrate. Thousands of demonstrations take place each year in London. Experience has shown that for the most part gatherings of this kind are peaceful. The police, on whom the responsibility of maintaining public order rests, seek to facilitate rather than impede their activities.”
– Lord Hope of Craighead, in the opening words of his leading judgment in the case of Austin v Metropolitan Police Commissioner [2009] 1 AC 564
In the Austin case, the House of Lords rejected a claim by a demonstrator (at an anti globalisation protest in 2001) for damages against the police for wrongful imprisonment because the police had cordoned off the site of the protest and refused to allow people to leave. But the reason why the claim was rejected is instructive, and shows how a democracy ought to balance the rights to assemble of individuals with society’s need to maintain public order.
England’s highest court there recognised that “crowd control measures resorted to for public order and public safety reasons had to take account of the rights of the individual and the interests of the community” and should not be “arbitrary” in that “they were resorted to in good faith, were proportionate and were enforced for no longer than was reasonably necessary”. The House of Lords found in the Austin case that
“the police had been engaged in an unusually difficult exercise in crowd control which had as its aim the avoidance of personal injuries and damage to property and the dispersal as quickly as possible of a crowd bent on violence and impeding the police, and since the fact that the achievement of that aim had taken much longer than the police had expected was due to circumstances beyond their control, the police had acted reasonably and proportionately to prevent serious public disorder and violence; and that, accordingly, the restriction on the first claimant’s liberty which had resulted from being confined within the police cordon did not constitute an arbitrary deprivation of liberty”.
[Quoting from the headnote of the report]
Contrast this with the situation in Malaysia and the anti ISA protest held on Saturday, 1st August 2009.
Here, it seems that it is the task of the police to impede rather than facilitate the free expression of views. The police in Malaysia are quite clearly intent on acting as a tool of repression on behalf of the ruling government, ensuring that no dissenting voices are allowed to be heard. Even if there is no violence, nor any threat of violence, the police will violently disperse the assembly with tear gas, chemically laced water cannon and an outrageous and oppressive show of force.
See the Al Jazeera report:
(Lawyer Puspawati Rosman is seen in the clip getting arrested for distributing the Bar Council’s Red Book pamphlet, giving advice to people on their rights when dealing with the police.)
And read the report from the monitoring team of lawyers from the Bar Council’s Human Rights Committee / Legal Aid Centre.
The police closed down Kuala Lumpur on 1st August 2009 – the jam on the Federal Highway went on for at least 5 kilometres in the blazin hot sun. Many who wanted to go shopping at the PC Fair could not make it. A client of mine had to meet an important client of his from overseas to pass a completed project – he was unable to do so.
How stupid does the Government, and the police, think we are? Have they not learnt from the drubbing they got on March 8, 2008 in the aftermath of the BERSIH and HINDRAF rallies?
All the people I spoke to, whose lives were disrupted by the jams, did not blame the protestors. All of them lay the blame squarely on the police. It was a gross over reaction: “If they want to protest, just let them protest lah.”
A good protest disrupts one’s day to day life sufficiently so people look up, take interest and see what the protest is all about. In the end, the police actually helped the protestors achieve this! No one would have paid any attention to the protests, and why it happened, if not for the police over-reaction. Al Jazeera would not have reported it, nor would Thomas Fuller of the New York Times have written about it.
When they learnt what the protest was about, most Malaysians said: “Well of course the ISA is unjust. It was for the communists, but now where got communists any more? If someone is a terrorist, charge him in Court lah!”
So GMI should probably thank the police: the march would never have got this kind of publicity if we had a proper police force cognizant of their role in a democracy.
Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com
Posted on 3 August 2009. You can follow any responses to this entry through the RSS 2.0.
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