The Walk for Judicial Independence — How the cops failed

By Karen Cheah Yee Lynn

25 Jun 2022 12:06pm

Police is said to summon several individuals who had participated in the "Walk for Judiciary Independence" assembly, held at Padang Merbok on June 17

SHAH ALAM - On 17 June 2022, the Malaysian Bar, in fulfilling its resolution adopted during the Extraordinary General Meeting held on 27 May 2022,1 had assembled at the Padang Merbok car park at 10:00 am to walk to Parliament for the purposes of handing over a memorandum in relation to judicial independence to the Prime Minister or his representative.

The assembly and walk, collectively named the “Walk for Judicial Independence” (“Walk”), was meant to be a peaceful protest against interference with the independence of the Judiciary, and breaches of the fundamental principle of separation of powers.

Official correspondence and arrangements were made to hand over the Malaysian Bar’s memorandum containing the views of the Malaysian Bar to the Prime Minister at Parliament, wherein YB Datuk Wira Mas Ermieyati binti Samsudin, Deputy Minister in the Prime Minister’s Department (Parliament and Law), was designated as representative of the Prime Minister.

What was intended to be a walk for judicial independence and upholding the doctrine of separation of powers, ended up becoming an unwarranted and inexplicable display of state power and intimidation by the Royal Malaysia Police (Polis Diraja Malaysia, “PDRM”).

The police turned out in full, if not excessive force — the Light Strike Force in full riot control gear were waiting up the hill of the road, invisible to those of us at the Padang Merbok car park until only later — to unlawfully prevent Members of the Malaysian Bar from walking to Parliament in the event that we were able to penetrate through the barricades and/or the human chain of police officers at both entrances.

The unlawful and obstructionist actions by PDRM became a bootless errand, as YB Datuk Wira Mas Ermieyati binti Samsudin made her way to the assembly at the Padang Merbok car park to receive the Malaysian Bar’s memorandum.

PDRM’s perplexing behaviour did not end there. Later in the day, in a matter of less than two hours after the event, a statement was issued by the OCPD (Officer in Charge of the Police District) of Dang Wangi, stating that the police had “detected” an assembly on 17 June 2022, and an investigation would be conducted in relation to the Walk, and that all those who participated in the Walk would be called in to provide a statement to assist in the investigation.2

The police statement seemed to suggest that PDRM had, through their own efforts, detected an assembly at the Padang Merbok car park, when in fact, the Malaysian Bar had submitted a notification to the police on 7 June 2022 (10 days earlier), that we would be assembling at the car park and we would be walking to Parliament.

In fact, the Malaysian Bar had attempted to give notice to PDRM as early as 3 June 2022, in accordance with section 9 of the Peaceful Assembly Act 2012 (“PAA 2012”). The police had twice refused to accept our notice, thereby contravening PAA 2012.

During our second attempt to give notice on 7 June 2022, despite the refusal to receive the notice by PDRM, Bar Council Secretariat staff left the notice at the counter at IPD (Ibu Pejabat Polis Daerah) Dang Wangi in the presence of two police officers.

Following this, the police wrote to us twice on 10 June and 15 June 2022. In their letter dated 15 June 2022, which we received one day prior to our event, ie on 16 June 2022, they purported to impose an unlawful condition of prohibiting the walk to Parliament.

In our meeting with the OCPD the day before, on 15 June 2022, the police verbally purported to impose this unlawful condition together with further unlawful conditions that only a maximum of 10 representatives would be allowed to go to Parliament, by car, to deliver our memorandum.

There is no legal basis for such imposition by PDRM. Having said that, it was also on 15 June 2022 that the police identified the “tapak perhimpunan” (gathering point) at the Padang Merbok car park as the site for the assembly, and later on the same day, the police had, together with Bar Council Secretariat staff, met at the “tapak perhimpunan” to discuss logistics.

We had also replied in writing to the police on 16 June 2022 to explain why all their conditions and requests were unlawful and that we should not be prohibited from walking.

The Malaysian Bar’s position is that the prerequisites pursuant to PAA 2012 had been complied with and there is no basis for PDRM to conduct investigations pursuant to section 15(3) of PAA 2012, as provided in their media statement dated 17 June 2022.

Further, in referring to their media statement dated 17 June 2022, there also appears to be a misplaced reliance on regulations 6 and 7 of the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (National Recovery Plan) (Transition Phase to Endemic) Regulations 2022 (“the Regulations”).

While regulation 6 of the Regulations prohibits processions, regulation 7 regulates gatherings. Strangely, the media statement provides that investigations are being made under regulations 6 and 7 of the Regulations when PDRM themselves had prevented Members of the Malaysian Bar from proceeding to Parliament — that is to say, since the procession to Parliament did not take place, there could be no breach of regulation 6.

Despite their persistent reference to the Regulations, the police seemed to be guided by the incomprehensible logic that confining participants of the Walk to the designated “tapak perhimpunan” at Padang Merbok was in the interest of preventing the spread of COVID-19. In any event, it is axiomatic that both regulations 6 and 7 are subordinate to PAA 2012 and the Federal Constitution.

Despite the hard-fought progress in the law in the last decade with respect to freedom of assembly via PAA 2012, the police still do not understand and worse still, regressed in this instance, to a pre-PAA 2012 era of authoritarianism and curtailment of fundamental freedoms and civil liberties.

The Malaysian Bar condemns, in no uncertain terms, the manner in which PDRM had obstructed the Walk. The police had failed in their role to ensure that Members of the Malaysian Bar were able to exercise their constitutional right to peacefully assemble, as guaranteed in the Federal Constitution.

This is a form of abuse of power and public misfeasance because instead of facilitating the Walk and ensuring the safety of the participants, they did the converse to frustrate the rights of citizens.

The actions of the police have set a bad example for the citizenry, as it conveys the message that citizens are not free to exercise their constitutional rights even when they comply with the law, and that a law enforcement agency can and will act with impunity and unlawfully, just because they are in a position of power to do so.

The Malaysian Bar cannot countenance this transgression from PDRM.

What’s more, as at the time of issuance of this press release, three persons have been called by the police to give statements — the President of the Malaysian Bar, the Chief Executive Officer of the Bar Council Secretariat, and Roger Chan, Bar Council member.

We had gone to IPD Dang Wangi today at approximately 2:30 pm after insisting that the police issue a section 111 Criminal Procedure Code (“CPC”) Notice.

This notice however, failed to specify the relevant provisions of law under which the police were carrying out investigations on. Upon meeting the police today, we were verbally informed that investigations were purportedly being conducted pursuant to section 15(3) of PAA 2012 and regulations 6 and 7 of the Regulations.

During our meeting with the police in which we were represented by counsel, we asked the police for a copy of the First Information Report (“FIR”). The police asked us to make a written request and told us that the decision to provide us with the FIR is solely at their discretion.

As we were only informed today of the purported section and regulations under which investigations are being carried out, and because we had no sight of the FIR, we decided not to give any statement to the police and informed them that we would write in to request for the FIR, before leaving IPD Dang Wangi.

The Malaysian Bar wishes to reiterate the importance of citizens being aware of their legal rights and that everyone is entitled to have a lawyer accompany them at the police station. Meanwhile, the Malaysian Bar shall courageously take this further, insofar as the laws of our land allow us to do so.

24 June 2022

1 “Resolution Adopted at the Extraordinary General Meeting of the Malaysian Bar Held at Wisma MCA, Kuala Lumpur (Friday, 27 May 2022)”, Malaysian Bar.

2 “Kenyataan Media Ketua Polis Daerah Dang Wangi ACP Noor Dellhan bin Yahaya: Siasatan Berhubung Dengan Perhimpunan Walk for Judicial Independence di Tempat Letak Kereta Padang Merbok, Kuala Lumpur”, Polis Dang Wangi Facebook page, 17 June 2022.

Karen Cheah Yee Lynn is the Malaysia Bar President