Election Laws : Postal & Advance Voting

Introduction

The general election held in 2013 was a stepping stone for Malaysia’s democratic process. For the first time, advance voting was introduced to the nation – where citizens who meet the relevant criteria would be eligible to vote before the actual polling date. Furthermore, GE2013 marks the first time in Malaysian history where postal voters of a general kind abroad are allowed to partake in the voting process.

Nevertheless, one question remains: How much do we know about postal and advance voting? Is the nation – including all officials and candidates, well-educated enough to understand the procedure thoroughly and be able to prevent an abuse of procedure?

What is Postal Voting?            

            As the name suggests, postal voting would simply mean voting via post.

            In gist, voters who are eligible to vote via postal voting would first have to apply to be a postal voter. Upon acceptance of their application, postal voters would be given details - including what the voter has to bring, when and where to pick up his/her ballot, and more importantly, where to cast the vote. The postal voter could opt to cast the votes at the embassy by dropping their ballots into the ballot bag and have the embassy “post” the votes on their behalf; or to courier the vote back to Malaysia to an election official or any persons who would then submit the vote personally to the EC officials before the calculation of votes.

Once your application to become a postal voter has been approved, you will no longer be able to vote in person in Malaysia. This is to ensure that electors would not practice double voting. A person may only cast a vote if he or she is on the Electoral Roll, as it is a statutory offence to vote twice.

           

Who can be a Postal Voter?

According to R 3(1) Elections (Postal Voting) Regulations 2003, citizens who are eligible to register as postal voters includes absent voters who are certified by the Election Commission (“The EC”) to be an election officer who would be on duty on polling day; police and armed forces personnel; member of any public services who would be on full-time duty in a post outside Malaysia during polling day; a member of the EC; or a member of any category of persons designated as postal voters via notification in the Gazette.

An “absent voter”, as per R 2 Election (Registration of Electors) Regulations 2002, means a citizen aged 21 and above on the qualifying date, and is a serving member of the armed forces of Malaysia or other countries; public personnel who is on duty outside the boundaries of Malaysia on the polling date; full-time students overseas or who is living with his/her spouse overseas at the date of application for registration to become an elector. It is interesting to note that this regulation gives spouses of public personnel and serving member of the armed forces in Malaysia an option to become an absent voter.

What is Advance Voting?

Based on R 2, Elections (Conduct of Elections) (Amendment) (No. 2) Regulations 2012, under the system of advance voting, the registered advance voters would cast their votes earlier than the actual polling date. For instance, while the actual polling date for the 13^th General Election was on 5^th May 2013, advance voters had casted their votes on 30^th April 2013 in 544 polling stations nationwide. The practice in GE2013 seems to suggest that advance voting is only carried out within Malaysia; eligible voters overseas could only vote via postal voting.

Who can be an Advance Voter?

            R 27A of the same regulation allows armed forces personnel, police personnel, General Operations Force personnel and their spouses who have already been registered as an elector under the Elections (Registration of Electors) Regulations 2002 to vote as an advance voter. R 27A further provides that the aforesaid serving members who are unable to vote on the advance polling day may also vote via postal voting.

            By cross-referring this regulation to R 2 Election (Registration of Electors) Regulations 2002 as well as R 3(1) Elections (Postal Voting) Regulations 2003, it can be observed that both the aforesaid members and their spouses have the option to vote via postal or advance voting, but only one of the option may be exercised per election.

Benefits of Postal and Advance Voting

Postal voting allows Malaysians residing abroad to cast their votes even if they are unable to afford the time or expenses to join the voting process in their homeland. This shows that no matter where a Malaysian may be, he/she could still retain his right to vote for the betterment of the country. Moreover, the Priority Envelope comprising Form 2, envelope A and B would not be given to those who did not produce their identification documents. In other words, one is not allowed to collect the envelope on behalf of another. This prevention measure ensures that unclaimed votes would not be misused. Hence, the risk of vote stealing can be reduced, if not eliminated.

Similar to postal voting, advance voting aims to ensure that uniformed personnel still secures their fundamental right to vote despite having to work on the polling day.

Postal Voting: The Drawbacks

Postal voting has always been criticized for its lack of regulations and enforcement. For instance, if abused, postal ballots may be issued improperly to phantom voters on the electoral roll or in the names of those known to be overseas who have not actually applied to vote by post. Apparently, there are allegations that this has been done in the past elections in order to dilute the votes of genuine overseas postal voters.

It is also commonly alleged that in advance voting, uniformed personnel cast their ballots under the heavy scrutiny of their commanding officers. If such allegation is true, this may result in the compromise of the secrecy of votes as it is conducted in a closed area.

Differences between Postal and Advance Voting

First of all, as can be seen based on the regulations, normal citizens who are permanent students or residing with their spouses abroad are only given the option of voting via postal voting. On the other hand, advance voting is an option only exercisable by public officials.

Secondly, unlike postal voting where there are different procedures to adhere to, advance voting is much like an ordinary voting. Voters would cast their votes using the ballot papers; their fingers would be stained with indelible ink; and the ballots would still be opened on the polling day at their respective polling stations in the presence of party agents.

            Moreover, while the regulations for advance voting provide that the ballot boxes shall be kept in a polling station until the commencement of counting of votes, the postal votes, as per R 10(4) Elections (Postal Voting) Regulations 2003, merely requires for the returning officer to make arrangements for the safe custody of such ballot boxes, but not the venue. This issue will be addressed further later on.

Integrity of the Ballot Boxes

While the law provides rules and regulations for the safekeeping of ballot boxes, not all would realize that the relevant regulations are merely general, and certain important details have yet to be regulated by the governing rules. Among others, the most controversial issue would be with regards of the proper safekeeping of the ballots. For instance, what venue can be deemed as a polling station? Who defines the standard of  “safe custody”? Who may have access to the storing room? And most importantly, how can the nation be convinced that the boxes are so well-kept and protected that the chances of tampering with the votes are close to none?

After the collection of votes, the EC will have to transport these ballot papers from overseas to their respective returning officers within the country. It is unclear as to the cut off point for these ballots papers to arrive to their respective returning officers. This uncertainty may open up the door for unjustified delays, thereby leading to opportunities for the ballots to be tampered with.

R 14(1) Elections (Postal Voting) Regulations 2003 provides that each postal voter’s ballot box shall be opened by the returning officer in the presence of the agents. However, the time to open the ballot box is not specified. Instead according to R 14(3), the power is on the returning officer to give 24 hours’ notice in writing to each candidate or his agent about the time and place where the ballot boxes and envelopes within would be opened.

Moreover, as have been mentioned earlier, the regulations merely require for the returning officer to make arrangements to ensure that the ballot boxes are safely kept. However, the regulations do not specify (like what has been done for advance voting) whether the ballot boxes ought to be stored at the polling stations or otherwise. This leads to two concerns: Firstly, what amounts to “safe custody”? In other words, how safe is safe? For some, keeping the ballot boxes in a locked room suffices the condition of safe custody; for others, the storage room ought to be guarded with strong security system or with the supervision of parties’ agent. Due to the uncertainties of the regulation, the returning officers retain the discretion in determining the ambiguities of this matter.

On the other hand, in relation to the safekeeping of advance votes, R 27B Elections (Conduct of Elections) (Amendment) (No.2) Regulations 2012 provides that the ballot box containing the advance ballot papers will be kept in the safe custody of the returning officer of respective election region or in accordance with any arrangement approved by the EC. By cross-referring this regulation to Elections (Advance Voting) Regulations 2012, R 21(g) provides that the ballot boxes must be kept and locked away a safe in the polling station until the day and time fixed for counting to commence.  It is rather doubtful as to the integrity of the polling station in which the ballot boxes will be kept. 

The Elections Act 1958 (Act 19) defines “polling station” as any room, structure, vehicle or vessel at the place appointed under Section 7, set apart and equipped for the purpose of polling and counting of vote. The issue arises as to which exactly is the “polling station” the regulation is referring to?  The integrity of the safekeeping is utmost important and the scope of “polling station” ought to be defined as clear and precise as possible to prevent discrepancies. It may be argued that the wide interpretation of polling station to include any vehicle, vessel or place appointed under section 7 may result in excessive discretion given to the returning officer in deciding the type of place to keep the ballot boxes.

The common practice would be to keep the sealed boxes in the police lock-up in which they will only be taken out for vote counting on polling day. EC workers are at liberty to check on the ballot papers from time to time without the presence of any polling agents. At some instance, the boxes are allowed to be removed from the police lock-up and kept at a different area under the observation of police officers until the polling day. The question arises as to whether the safekeeping under the custody of returning officer is reliable? Who else would have access to the safekeeping until the polling day? What is the integrity of the arrangements approved by EC?

R 27B further provides that the ballot box will be kept until the counting of votes on the polling day. On the same note, there appears to be uncertainty arising from “kept and locked… until…time fixed for counting to commence” as per R 21(g). When exactly should the returning officers open the postal voters’ ballot boxes on the polling day? What happens when the advance ballot boxes failed to arrive in time either for counting or final tally without any valid reason? Furthermore, supervision by parties’ agent during the custody is not allowed. Therefore, there is a need for check and balance mechanism so as to ensure the sanctity and integrity of the safekeeping of postal voters’ ballot boxes.

Suggestions for Postal Voting & Advance Voting

The names of retired police and military personnel should be updated and be removed from the electoral roll of postal voters. We believe that opportunities and allegations for vote manipulation can be reduced if the regulations provide that advance voting for uniformed personnel would only be allowed strictly by way of application to the EC officers. In other words, the eligibility of uniformed personnel to be categorized as advance voter should not be allowed automatically.

Apart from that, it is our opinion that the tallying of postal and advance votes should be completed on the same day or before the actual polling day. This should be conducted in the presence of all political parties, documented, and published, and later reconciled into the main voting list. If the result of the postal ballots is published to the public before the actual polling day, the final outcome of the postal votes would definitely hold more credibility in the eyes of the citizens. Furthermore, the EC should be held accountable to the changes, if any, to the final result of postal votes. By taking this measure, the EC and all relevant officers would be able to negate all allegations of vote-tampering, a practice which have apparently been prevalent in many of the past elections.

The ballot boxes should be kept with a neutral party mutually agreeable by all political parties. In United Kingdom, upon receipt of a postal ballot pack in the post (or of the postal ballot paper and postal voting statement if sent separately), the returning officer would place it inside the postal voters' ballot box allocated to the particular constituency or ward. Candidates and their agents, representatives of the Electoral Commission and observers accredited by the Electoral Commission are entitled to observe the opening of postal ballot packs. The returning officers there are mandated to give candidates and their agents at least 48 hours' written notice of the time and location of every opening session of postal ballot packs.

          Another prevalent issue during the counting of votes is the integrity of the principal counting area. In almost every general election, there would be allegations of loss of electrical supply at the counting areas during the crucial counting period. Sometimes, there would be actual occurrence of an accidental cut in the electrical supply. Unfortunately, the perception which arises out of the scenario would lead to the suspicions among people that acts of tampering with the votes may have taken place during the blackout. In all fairness, probably nothing happened during the alleged blackouts. Nevertheless, the key in any election – especially in a national election which determines the next ruler of a particular nation and with so much at stake, the least EC could do is to address this perception and to find solutions to this recurring issue. For instance, EC may conduct the final calculation of votes at a brightly lit area with stable electrical supply. 

            While we are dealing with the issue of the unstable electrical supplies, we can’t help but wonder, are school halls the best voting venue available? While school halls may provide an easy access and is a cheaper alternative, but cheap and easy doesn’t quite cut it in this situation. The best voting and tallying venue would be a place where there are CCTV settings, with a guaranteed supply of electric all night and monitored by an independent EC. This is cost efficient and at the same time, it provides a recording of the entire voting up to counting process. In addition, we propose for all Vote Tallying Centre to be backed up with a generator in case of unexpected cuts in the electrical supply. This would definitely promote transparency in the process of votes being tallied, and get rid of unnecessary suspicions from the public eye.

               Late arrivals of ballot boxes ought not be allowed to be counted and should be disqualified. The time for the arrivals of ballot boxes should be regulated as specifically as possible. We suggest that all ballot boxes including postal and advance ballots should arrive at 3pm on the polling day. Any late arrivals should not be entertained.  

            Apart from that, in the long run, we believe that Malaysia would be more than capable of running and maintaining a computerized voting system. By relying on technology for citizens to vote, the votes would be tallied instantaneously within the computerized system, thereby leaving little to no space for the database to be tampered with.

However, be it computerized or traditional, every voting system should be heavily regulated and enforced by an independent body or a joint committee. The rules and regulations of election should not only be comprehensive, but also comprehendible – thereby allowing every laymen the platform to be educated about the voting regulations in Malaysia, and also to be so articulate and comprehensive that little discretion is retained by the EC. If the regulations governing the procedures are clear, precise and unambiguous, no party can circumvent the result to their own advantage.

            Ultimately, it is not the people who vote that counts, it is the people who count the votes that matter. Therefore, it is crucial to have a newly elected EC officials selected by a joint committee, participated by both Barisan Nasional and Pakatan representatives in order to call for a fair and clean election. Alternatively, such EC could also be a completely independent body, where its officers are carefully chosen from eligible members of the public to assist in a fair election.

Conclusion

Introducing postal and advance voting is an important, albeit small, step in the right direction for our country. With the necessary tweaks to the system, the future general elections could finally be devoid of all unnecessary suspicions and promote a transparent election. However, we must say that no matter how tight the rule becomes, or no matter how much we tweak the rules, the key to the election process is the integrity of the people behind the EC. The EC, being the referee in such an important process of our governance, must not only be seen to be neutral, but must actually be neutral.

Written By:

1. Wong Jyh Ling

2. Sofia Qaisara Chan

Research Team:

1. Rebecca Pang Huan-Ying 

2. Tan Shwu Yunn 

3. Sofia Qaisara Chan

4. Wong Jyh Ling

Other References:

1.     Lou Joon Yee, “Every Postal Vote Counts”, http://www.fz.com/content/every-postal-vote-counts, Accessed on 22^nd July 2013.

2.     My Overseas Vote, “The EC Chairman and Deputy Chairman Should Not Show Off Their Ignorance of Election Regulations by Blindly Defending the Indefensible”, http://myoverseasvote.org/2013/04/26/the-ec-chairman-and-deputy-chairman-should-not-show-off-their-ignorance-of-election-regulations-by-blindly-defending-the-indefensible/, Accessed on 30^th May 2013.

  Jean Sim, “Overseas Voter: A Malaysian Story Shared”, http://news.malaysia.msn.com/elections/overseas-voter-a-malaysian-story-shared, Accessed on 30^th May 2013.

4.     Asia One News, “Malaysia election: Boxes taken out for inspection of new ballots”,

http://news.asiaone.com/News/AsiaOne+News/Malaysia/Story/A1Story20130504-420237.html, Accessed on 4^th May 2013.

5.     The Star Online, “GE13: Malaysians overseas to vote on April 28”, http://elections.thestar.com.my/story.aspx?file=%2F2013%2F4%2F15%2Fnation%2F20130415222628#.UfdA_dJHIQk, Accessed on 15^th April 2013

6.     Sean Augustin, The Edge Malaysia, “GE13 EC – Don’t Confuse Postal and Advanced Voting”, http://www.theedgemalaysia.com/political-news/237163-ge13-ec--dont-confuse-postal-and-advanced-voting.html, Accessed on 28th May 2013.

The New Section 114A Evidence Act 1950 in Malaysia

Ng Kok Yong, an intern at RWY gives a shot on what he feels about the new 114A

The Evidence Act 1950 operates as conduit to allow any evidence to be tendered into court. The Act operates in an inclusionary method ie. for evidence to be tendered in into court, that evidence must fall within one of the provision in the Evidence Act.

Over and above that, the Evidence Act also provides certain presumption when dealing with evidence and Evidence Act s.114 is one of them.

Recently, Parliament enacted s.114A which reads: -

“Presumption of fact in publication”

114A. (1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

(2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

(3) Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.

(4) For the purpose of this section—

.                 (a)  “network service” and “network service provider” have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998 [Act 588]; and

.                 (b)  “publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.”

‘Hotly-disputed’ and ‘strongly criticised’ are among the phrases used to describe the badly drafted new section 114A of the Evidence Act 2012 and how disastrous the consequences can be. In plain words, the new law raises a presumption that the owner of the websites, networks or computers is the publisher whenever a statement is made and published. Now, how is it detrimental to the society? What kind of impact does the section 114A have on you, me and everyone else within the jurisdiction of Malaysia?

Well, to answer the questions, all individuals are now prone to defamation suits, among other wrongs, when a statement or representation is posted or re-posted out of the genuine expression of concern. With the new law being enforced, everything appears on the screen of a website host could be a potential lawsuit because the onus is on the host to rebut such presumption. In essence, the fundamental rights have been encroached and infringed! Section 114A (1) concerns hosts of website and publishers of any statement or representation, subsection (2) on registered network service providers and subsection (3) on computers owners, which encompasses everyone with a computer and internet connection. To state the obvious, this section restricts our freedom; to state the worst, it may make us liable for wrong committed by others.

Among the implications of the enforcement of the section are:

(1)         Freedom of expression and freedom of speech have been crippled.

(2)         Freedom to information has been infringed. Users now see only what they are ALLOWED to see.

(3)         Presumption of culpability instead of presumption of innocence.

(4)         A great challenge to democracy.

Loose ends the Parliament forgot to tie?

(1)         Hyperlink – hyperlinks connect users from websites to websites. For instance, A, who hosts a website, hyperlinks the website to another website hosted B who makes defamatory remarks of C. Is A liable for the defamatory statement published by a website beyond his control? No to some of the jurisdictions but probably yes if this section is strictly applied!

(2)     Thefts and Hackings – it is not uncommon to have our property stolen every now and then, which includes hacking. Hypothetical scenario, if A’s laptop being unknowingly used by B to post a sensitive comment, A will be presumed to have published the comment himself even though the real culprit is B. Turn to another scenario, if B hacks into A’s network and publishes another compromising statement, A will be presumed to be liable since A is the registered network provider with unique IP address

(3)       Impersonation­ – another extreme yet probable situation would be having A being impersonated by B to publish some defamatory comments. A would simply be liable just because his picture and particulars appear on the screen. Simple trick to sabotage somebody else without getting caught!

Conclusion

If it is apparent to the writer to see these, it will not be difficult for others to realise how vulnerable the new law is to allow one to commit a crime at somebody else’s expense. Unless and until the authority has absolute capability to eradicate the abovementioned weaknesses, section 114A should not be enforced at all. Whether section 114A is a creation of politics or public interest, our wise readers, please decide it yourselves.

Ng Kok Yong

August 2012

Fallacies Spun by Critics of the Bar : by Loyarburok

Taken from Loyarburok.com :-

http://www.loyarburok.com/2012/05/22/fallacies-bar/

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This response is jointly endorsed by Edmund Bon, Fahri Azzat, Janet Chai, K Shanmuga,Mahaletchumy Balakrishnan, Marcus 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.