comment When the Human Rights Commission, or Suhakam, was first set up by the government in June last year, it faced much criticism from several non-governmental organisations.

Part of the criticism stemmed from the provisions of the Human Rights Commission of Malaysia Act 1999 which is the enabling law providing for its establishment.

Critics felt that the provisions of the Act severely limit the ability of Suhakam to function as an effective human rights commission and that it could not be more than a government mouthpiece. Evidence that Suhakam has been more than effective within the constraints under which it came to life is testified to by the criticism of the Prime Minister Dr Mahathir Mohamed recently.

On Suhakam's view that peaceful assemblies were possible if certain steps were taken by the organisers, Mahathir said, "Suhakam seems to be setting up standards of its own. It is not interested in the nation's security"

The remarks were made shortly after Suhakam had been in existence for a little more than a year. In a nation whose leaders have repeatedly asserted that Asian values on human rights are different from those in the West, it is a remarkable phenomenon that a human rights commission like Suhakam, created with restricted powers, could evoke the criticism of the prime minister in such a short space of time.

For example, Section 12(2) of the Suhakam Act expressly prohibits the commission from inquiring into any complaint relating into any allegation of human rights which is the subject matter of any proceedings pending in any court, including any appeals or has been finally determined by any court.

In addition, Section 12(3) restricts the commission by preventing the commission from any ongoing inquiry it is involved in, if during the pendency of the inquiry the allegation becomes the subject matter of any proceedings in any court. The obvious concern was that this section could be used to prevent any inquiry if any interested party had filed an action in court .

During its first year, Suhakam has inquired into matters pending in court and issued its finding. The basis on which it resolved it had the power to do so notwithstanding the ambit of Section 12 was that the court proceedings did not relate to violation of human rights and thus Suhakam was not contravening Section 12 as its inquiry was human rights based

Rights violated

On Nov 8, 2000 Suhakam in accordance with its powers under Section 12(1) decided to conduct an inquiry on its own into the reports of the Nov 5 incident at the Kesas Highway and appointed three of its commissioners to do the task.

On Nov 5, 2000 there was a call for a rally at 2.30 pm at Markas Keadilan in Jalan Kebun, Klang, off the Kesas Highway. The rally was prevented from taking place by police. Media reports the next day claimed that several people were assaulted and injured.

The inquiry panel set about to determine whether there were any violations of human rights and to determine who was responsible for the violations, how the violations came about and what practices/policies contributed to them. The panel was also mandated to look into measures to ensure that the situation improved or the violation did not recur.

Suhakam had in its first annual report in April 2000 highlighted (among others) the citizen's right to peaceful assembly and called for approval of applications for permits to hold indoor meetings and public spaces allocated for peaceful outdoor assemblies.

During the course of the Nov 5 inquiry, the conduct of the police was particularly cause for concern. Suhakam, in a media report, alleged they failed to get cooperation from the police into the inquiry on allegations of police brutality in the Nov 5 Kesas incident. The stalemate was resolved when Deputy Prime Minister Abdullah Ahmad Badawi called on Suhakam to establish a set of procedures for public inquiry.

Police conspiracy

The report from Suhakam shows that when the police witnesses came after notices were issued by Suhakam, their evidence was prepared.

"When questioned, one became defensive, another contradicted himself, while most stated that the answer would be provided by the next witness. The next witness would come well prepared to answer the questions that had been put earlier but would not answer any new questions. The panel had to weigh the answers given in this manner by the police against the spontaneous answers provided by other witnesses."

Suhakam's panel of inquiry learned that there was a meeting of several police district chiefs on Nov 2, 2000. They had met to plan to prevent the gathering from taking place.

"The decision was to take action for 'total denial and domination' which in effect meant 'total control'. This involved preventing the public from getting to Jalan Kebun".

The police also set up 14 road blocks all within Klang on Nov 4 at about 3pm which remained in place until 8pm on Nov 5. Video evidence viewed by the panel in its inquiry showed that the massive traffic jam on the day of the incident was caused by the police road block which left open only one lane on the highway. Many drivers tired of the congestion began parking their cars at the side of the road and some got out to walk around.

Protestors assaulted

Barisan Alternatif representatives (who had called for the rally) arrived at the scene and as they could not proceed to the venue decided to give short speeches on the Kesas Highway itself. The organising chairman was the last speaker and he announced that the group was going to disperse and requested the police to open the road so that the crowd could leave the area. Before they could do so the police had moved in with water cannons and the Federal Reserve Unit (FRU) fired tear gas at the crowd.

A video of the scene produced by a witness showed that several people were assaulted and sustained injuries. Police personnel were seen assaulting the witness for no reason and kicking motorcycles parked by the roadside. The reports of both Suhakam and the media in the inquiry showed that witnesses were assaulted without provocation by FRU personnel.

A trader Mohamed Salim Laidin sustained injuries on his leg while his worker Rahmat Mohd was injured on the nose and lips. They had locked themselves in the car but were forced out by FRU personnel and assaulted before being taken away in a police truck.

A housewife told how she was ordered to strip in custody and do knee bends. Doctors testified about treating patients for wounds, abrasions and fractures consistent with beatings.

A 17-year old girl who had a major public examination (Sijil Pelajaran Malaysia), a week from the day she was detained, was not released despite assurances to the magistrate.

The panel found that there was a clear violation of human rights by the police. The violation arose due to the "total denial and domination" action of the police, during crowd dispersal, while arresting persons at the scene and treatment of the arrested while in detention.

Shortly after the Suhakam report on the Kesas Highway incident was released, the prime minister criticised it saying that the commissioners were not thinking of Malaysia's national interests. He said, "At times the police have to use force because the demonstrators too use force."

He said the rights group should not be influenced by Western thinking and should have given weight to police evidence.

The sanctioning of police brutality by blaming it on the public's use of force despite the independent evidence on a video that the police assaulted the witness for no reason is indicative of a total disrespect for the citizen's rights.

The prime minister's further criticism that "we expect them to be fair", leaves one wondering in what context they have been unfair. Does fairness mean sanctioning of actions of government agencies at the expense of the people?

Independent inquiry

Where do we go from here? Suhakam has clearly laid out that there has been selective application of the law relating to assemblies, by the police and discrimination in granting use of public places by the authorities concerned .

The equal protection of the law and discriminatory practices are prohibited by Article 8 of the Federal Constitution and Article 7 of the Universal Declaration of Human Rights.

As Suhakam does not have any enforcing mechanism to implement its decisions, it will become incumbent on the public to seek enforcement by filing public interest litigation against the police, unless steps are taken by the police to show their willingness to clean out their own stables.

The Suhakam panel of inquiry has called for the police to carry out its own investigations to determine which of its personnel had used excessive force or behaved in a manner not permitted by law.

Many professional agencies including law enforcement in several countries have found that in-house investigation on matters of abuse of power and accountability are best exercised if there is adequate representation from members of the public and other professional bodies like the judicial and legal services in order to be credible to the public.

The alternative for the government and the police would be to heed Suhakam's call and set up an independent investigation on police brutality. The police force is not exclusively made up of rotten apples and in the interests of those who have always protected the public and served the country, it is time that the tarnished image of the police forces be allowed to shine again through a thorough investigative process.

Suhakam has proved its critics wrong by its fearless commitment to truth and justice. It has, within the constraints of the Act it was set up under, managed in just a year to spell out the Malaysian citizen's right to freedom of peaceful assembly - something which since independence has purely been a phrase in the Federal Constitution.

When the tenure of its commissioners comes up for renewal next year, it would be interesting to see whether they are summarily replaced.

CHANDRA KANAGASABAI, who is former secretary-general of human rights organisation Hakam, is currently reading for PhD in law at the University of Kent on a British Chevening scholarship.