Such a relief to inhale 'safe' tear gas
COMMENT The Royal Malaysia Police (PDRM) are to be congratulated for complying with international standards.
As reported in Star yesterday, the PDRM's Logistics Department (Weaponry) assistant chief director Syed Mustafa Raja Syed Nordin stated that the tear gas used to disperse participants of the Bersih 3.0 assembly on April 28 was “safe” and “complied with international standards”.
This must come as a great relief to the many who were on the receiving end of that tear gas, who, (unlike a comment once made by former US president Bill Clinton), may not have smoked it but who certainly inhaled the tear gas.
No expense was spared in order to ensure that only “international standard” tear gas was utilised, manufactured in the US, Canada and Switzerland.
Indeed, Syed Mustafa is reported to have made reference to the fact that the tear gas grenades, tear gas canisters, liquid eye irritants and pepper spray, all of which were deployed on April 28, had complied “with international standards set by the United Nations”. However he does not appear to have clarified to which particular UN standard he was referring.
It certainly could not have been the Code of Conduct for Law Enforcement Officials, which was adopted by the UN General Assembly via Resolution 34/169 of Dec 17, 1979:
- Article 2 states: In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.
- Article 3 states: Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.
- Article 5 states: No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.
Torture has been defined in the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - itself adopted by the UN General Assembly via Resolution 3452 of Dec 9, 1975 - as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons’.
Indeed, as Article 6 of the Code of Conduct states: Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.’ In this regard we should be comforted in knowing that the Malaysian government has taken medical advice and has been assured that the tear gas is not injurious to our health.
In Article 8, law enforcement officials are enjoined to ‘respect the law and the present Code. They shall also, to the best of their capability, prevent and rigorously oppose any violations of them.’
The commentary to Article 8 states: (I)n some countries, the mass media may be regarded as performing complaint review functions .... (l)aw enforcement officials may, therefore, be justified if, as a last resort and in accordance with the laws and customs of their own countries and with the provisions of Article 4 of the present Code, they bring violations to the attention of public opinion through the mass media.
As we all know, rather than using the mass media to bring violations by law enforcement officials during the Bersih 3.0 assembly to the attention of public opinion, the mass media was itself violated by law enforcement officials. Allegedly.
These constitute one set of international standards.
Disregard for human rights
Another would be the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which were adopted in September 1990. Could Syed Mustafa have been referring to those instead?
Paragraph 3 states: The development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimise the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled.
Paragraph 4 states: Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.
Paragraph 5 states: Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
(b) Minimise damage and injury, and respect and preserve human life;
(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;
(d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.
Paragraph 7 states: Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.
If these were the kind of “international standards” that Syed Mustafa meant and to which the PDRM adhered as part of its Standard Operating Procedures, the outcome of the Bersih 3.0 assembly would have been very different. As it is, there is confusion between the home minister and the inspector-general of police as to what exactly are the PDRM's Standard Operating Procedures.
Paragraphs 23-26 of the Basic Principles are also instructive:
23. Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.
24. Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.
26. Obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the superiors who gave the unlawful orders.
Malaysian has until today chosen not to accede to the International Covenant on Civil and Political Rights (entered into force in 1976), the International Covenant on Economic, Social and Cultural Rights (entered into force in 1976), the International Convention on the Elimination of All Forms of Racial Discrimination (entered into force in 1969) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force in 1987).
Yet, it found time in May 2000 to accede to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (entered into force in 1997), and to bring the provisions of this convention into law.
At least we the rakyat can now see the priority and importance that the government accords to human rights in Malaysia. And we can rest happy knowing that the use of tear gas is not prohibited by both international and Malaysian law.
ANDREW KHOO is a practising advocate and solicitor and a member of the Bersih steering committee.
As reported in Star yesterday, the PDRM's Logistics Department (Weaponry) assistant chief director Syed Mustafa Raja Syed Nordin stated that the tear gas used to disperse participants of the Bersih 3.0 assembly on April 28 was “safe” and “complied with international standards”.
This must come as a great relief to the many who were on the receiving end of that tear gas, who, (unlike a comment once made by former US president Bill Clinton), may not have smoked it but who certainly inhaled the tear gas.No expense was spared in order to ensure that only “international standard” tear gas was utilised, manufactured in the US, Canada and Switzerland.
Indeed, Syed Mustafa is reported to have made reference to the fact that the tear gas grenades, tear gas canisters, liquid eye irritants and pepper spray, all of which were deployed on April 28, had complied “with international standards set by the United Nations”. However he does not appear to have clarified to which particular UN standard he was referring.
It certainly could not have been the Code of Conduct for Law Enforcement Officials, which was adopted by the UN General Assembly via Resolution 34/169 of Dec 17, 1979:
- Article 2 states: In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.
- Article 3 states: Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.
- Article 5 states: No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.
Torture has been defined in the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - itself adopted by the UN General Assembly via Resolution 3452 of Dec 9, 1975 - as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons’.
Indeed, as Article 6 of the Code of Conduct states: Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.’ In this regard we should be comforted in knowing that the Malaysian government has taken medical advice and has been assured that the tear gas is not injurious to our health.
In Article 8, law enforcement officials are enjoined to ‘respect the law and the present Code. They shall also, to the best of their capability, prevent and rigorously oppose any violations of them.’The commentary to Article 8 states: (I)n some countries, the mass media may be regarded as performing complaint review functions .... (l)aw enforcement officials may, therefore, be justified if, as a last resort and in accordance with the laws and customs of their own countries and with the provisions of Article 4 of the present Code, they bring violations to the attention of public opinion through the mass media.
As we all know, rather than using the mass media to bring violations by law enforcement officials during the Bersih 3.0 assembly to the attention of public opinion, the mass media was itself violated by law enforcement officials. Allegedly.
These constitute one set of international standards.
Disregard for human rights
Another would be the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which were adopted in September 1990. Could Syed Mustafa have been referring to those instead?
Paragraph 3 states: The development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimise the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled.Paragraph 4 states: Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.
Paragraph 5 states: Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
(b) Minimise damage and injury, and respect and preserve human life;
(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;
(d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.
Paragraph 7 states: Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.
If these were the kind of “international standards” that Syed Mustafa meant and to which the PDRM adhered as part of its Standard Operating Procedures, the outcome of the Bersih 3.0 assembly would have been very different. As it is, there is confusion between the home minister and the inspector-general of police as to what exactly are the PDRM's Standard Operating Procedures.Paragraphs 23-26 of the Basic Principles are also instructive:
23. Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.
24. Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.
26. Obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the superiors who gave the unlawful orders.
Malaysian has until today chosen not to accede to the International Covenant on Civil and Political Rights (entered into force in 1976), the International Covenant on Economic, Social and Cultural Rights (entered into force in 1976), the International Convention on the Elimination of All Forms of Racial Discrimination (entered into force in 1969) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force in 1987).
Yet, it found time in May 2000 to accede to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (entered into force in 1997), and to bring the provisions of this convention into law.
At least we the rakyat can now see the priority and importance that the government accords to human rights in Malaysia. And we can rest happy knowing that the use of tear gas is not prohibited by both international and Malaysian law.
ANDREW KHOO is a practising advocate and solicitor and a member of the Bersih steering committee.
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