On 5^th November 2000, a rally was to be held at 2.30p.m. at Markas Parti Keadilan Nasional in Jalan Kebun, Klang, off the Kesas Highway. The organizers had hoped to attract 100,000 people. Media reports on the 6^th November 2000 showed that the rally was prevented from taking place by police action, that several people had been arrested and that some people had been assaulted and injured, a few somewhat seriously.

The reports of the November 5^th incident at the Kesas Highway were brought to the attention of SUHAKAM. At its meeting on 8^th November 2000, SUHAKAM, in accordance with its powers under section 12(1) of the Human Rights Commission of Malaysia Act 1999, Act 597, (hereinafter referred to as "the Act") decided to conduct an Inquiry on its own motion into the incident. Three commissioners, hereinafter referred to as the Panel, were given the task of conducting the Inquiry:

The terms of reference for the inquiry are :

2. If violations of human rights occurred, to determine :-

1. which person or agency is responsible;
2. how such violations came about;
3. what practices, arrangements or policies contributed to them;
4. what measures should be taken to ensure that the situation improves or the violations do not recur.

The Inquiry began on the 29^th November 2000. The hearing was spread over twenty days and a total of 46 witnesses gave evidence. Initially, 22 persons who had been present at the scene of the incident came forward to testify. The Panel called seven expert witnesses to give evidence – four of the doctors who treated persons who were injured in the incident, the magistrate who remanded the persons arrested, a forensic chemist and an expert on weapons to provide information about the tear gas canisters.

From the evidence adduced, there were several complaints made against the Police. The Panel issued notices to thirteen police personnel to appear in the Inquiry to give evidence. Of the thirteen called by the Panel, only one witness identified as Arman was not able to be present. The Panel was informed that there was no Arman in the FRU. A total of fifteen police personnel gave evidence. One witness, Inspector Azmi bin Yahya (W44), came forward to give evidence that he had been assaulted in the incident. The Police also produced as a witness the Area Commander of the St. Johns Ambulance Brigade (W41) to testify that First Aid was available on the 5^th November 2000.

Following media reports of the testimony of some police officers about a particular incident, Encik Zainur Zakaria (W46) came forward to give evidence as to what he saw of the incident. On the 23^rd July 2001, The Panel visited the Kemuning Toll Plaza, Lot 7362 Jalan Kebun where the rally was scheduled to be held, and the Kapar Police Station Lockup. The Panel recorded evidence from seven staff members of the Kesas Highway Authority and viewed a video they had recorded. The Panel also recorded evidence from the owner of Lot 7362, and the Ketua Balai Polis Kapar.

This summary is gleaned from the evidence of police personnel, other witnesses and from media reports and video tapes produced as exhibits.

The rally scheduled for 5^th November received a great deal of publicity in the media. The Police declared the assembly unlawful and warned the public not to attend. The evidence of several senior police officers disclosed that on the 2^nd November, there was a meeting at the Selangor Contingent Headquarters chaired by the Deputy Police Chief of Selangor, and attended by several senior police officers from Selangor, Chief of Special Branch, Officer in charge of Criminal Investigations (OCCI), Chief of Internal Security and Traffic, Officer in charge of Police District (OCPD) Kelang and OCPD from other districts in Selangor, DSP Bahwandi, and representatives of the commanders of Unit Udara (Air Wing of Police), Federal Reserve Unit (FRU) and Pasukan Gerakan Am (PGA). Also present were enforcement officers from Majlis Perbandaran Kelang and Dewan Bandar Raya Shah Alam, a representative from the District Officer’s Office and from the St. John’s Ambulance Brigade.

The purpose of the meeting was to plan integrated action 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 venue of the gathering. According to the police evidence, the decision was based on several factors – the venue was too small to accommodate 100,000 people, the roads leading to the place were not "big" and there would be traffic congestion, the residents of Jalan Kebun had objected to the gathering and had lodged a police report complaining about their concern that the gathering would cause public disorder and inconvenience to them.

On the 4^th November 2000, police personnel led by Deputy Police Chief Selangor, SAC 1, Dato’ Johar bin Che Din, together with enforcement officers from Dewan Bandar Raya Shah Alam, went to the venue of the proposed gathering, Lot 7362 Jalan Kebun, where some traders were setting up stalls. The traders were told to dismantle their stalls and leave the place. Some refused to do so and were arrested. Four men, one woman and the owner of Lot 7362, Encik Sd. Mohamad Johari bin Haji Yasin, were arrested.

Fourteen road-blocks, all within the Klang district, were set up on the 4^th November at around 3p.m. and remained in place until about 8p.m. on the 5^th November.

On the 5^th November 2000, five groups from five directions converged on Jalan Kebun from about 11a.m. The first group of about 100 people was dispersed by 12 noon. At 2.15p.m. there were about 1000 cars parked for about 3-4 kilometres along the Kesas highway. Several other cars were "trapped" in the area and were not able to leave. From the video viewed by the Panel at the Kemuning Toll, the traffic jam was caused by the police road-block which left open only one lane on the highway. Many drivers, tired of waiting for the congestion to clear, began parking their cars on the side of the road. Several got out of their cars and walked around. By about 3p.m. there were about 5,000 people present. Water canons and tear gas were used to disperse the crowd. "Kembalik" tow trucks were used to tow away some of the cars and the divider in the middle of the highway was removed with the help of workers from the Kesas Highway Authority to enable people to leave the area.

Leaders of the Barisan Alternative arrived at the scene at about 5.30 p.m. As they could not proceed to the venue where the rally was originally scheduled to take place, they decided to give short speeches on the Kesas Highway itself. The last speaker was the organizing chairman who announced that the group was going to disperse and that four representatives would meet with the Police to inform them that they were dispersing and to request that the road be opened so that the crowd could leave the area. Before they could do so, the police had moved in with water canons and the FRU were firing tear gas at the crowd. Several people were arrested, some of whom were assaulted and sustained injuries. Others were suffering from the effects of the tear gas and chemically laced water. From a video of the scene, produced by a witness (W4) who had been arrested, and marked Exb.5, police personnel were seen assaulting the witness for no apparent reason while others were seen kicking motorcycles parked by the roadside.

The Panel identified several issues arising from the evidence adduced. They are :

1. No police permit for proposed rally.
2. Opposition to the proposed rally by residents of Jalan Kebun.
3. Preventing public from proceeding to private property.
4. Road-blocks causing traffic congestion.
5. Innocent passers-by at scene of assembly due to road-blocks.
6. Use of force/excessive force on persons attempting to disperse.
7. Causing damage to property / Confiscating private property.
8. Causing injury to persons arrested / in detention.
9. Delay in providing medical treatment for injured detainees.
10. Conditions of detention and treatment in detention.
11. Remand Proceedings / remand of juvenile.
12. Taking of statements from detainees.
13. Police Bail.
14. Provocation of police / Injuries to Police personnel.
15. Police personnel on duty for unduly long period.

The issues were dealt with by referring to all evidence relating to them and to relevant provisions of international instruments and local laws. Related issues were dealt with together. The Panel then decided on its findings and recommendations. Besides the abovementioned issues, the Panel also dealt with the issues of the jurisdiction and powers of SUHAKAM, the procedure for the Inquiry and whether the matter was sub judice.

The Panel arrived at its findings by weighing the evidence adduced at the Inquiry, the demeanour of the witnesses and the manner in which they answered questions. The Panel notes that many of the Police witnesses gave evidence that had been prepared. When questioned, one became defensive (W30), one contradicted himself (W37), 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 pat answers given in this manner by the Police against the spontaneous answers provided by other witnesses.

As a Human Rights Commission, the Panel is entitled to consider information from any source apart from the direct evidence presented at the Inquiry. When doing so, the Panel first evaluates the probity of the source of information, weighs the information against the other evidence adduced at the Inquiry and then decides whether to consider it in the Panel’s deliberations. Through this process, the Panel has included in its decision some facts that were not presented at the Inquiry.

The Panel has reached the following conclusion in relation to its Terms of Reference:

1. Were there any violations of human rights?

1. the use of force on persons present at the scene of the assembly;
2. causing damage to private property;
3. confiscating private property;
4. causing injury to persons in detention;
5. delay in providing medical treatment for injured detainees and failure to provide medication prescribed for injured detainees;
6. the cruel and inhuman treatment of detainees;
7. taking advantage of the situation of a detained person for the purpose of compelling him/her to confess or otherwise incriminate himself / herself.
8. Gathering security intelligence from persons detained for a specific offence.

1. the selective application of the law relating to assemblies by the police;
2. the discrimination by the authorities, in particular the manager of a public place, against a group that requested the use of the place for the assembly;
3. the "total denial and domination" action of the police against the organizers of an assembly on private property;
4. the crowd control and crowd dispersal methods of the police;
5. the practice of gathering security intelligence from detained persons.

1. The law relating to assemblies should be applied equally and without discrimination.
2. Opposing groups should be allowed to demonstrate within sight and sound of each other. The police should be present to ensure that the demonstration and counter-demonstration are carried out peacefully.
3. The authorities, including managers of public places, should allow the use of public places, if they are suitable, for gatherings organized by all sectors of society without any discrimination.
4. Road-blocks should not be used to prevent assemblies from taking place.

1. Crowd dispersal methods
   1. The Police should review the methods of crowd dispersal.
   2. Police personnel on duty should be ordered to exercise restraint when dispersing assemblies, especially in the use of canes and batons, tear gas and water canons.
   3. Warnings to disperse should be given loudly and clearly, three times at 10 minute intervals.
   4. Sufficient time to disperse should be given. The time given should depend on the size of the crowd – the larger the crowd, the longer the time given to enable them to disperse.
   5. People who are trying to get away after the warning to disperse has been given, should not be chased and/or assaulted.
2. Treatment of persons arrested/ in detention
   1. When arresting women, their headgear (tudung, hijab or scarf) should not be pulled off and women should not be manhandled.
   2. Persons who have been arrested should not be assaulted or subjected to other cruel and inhuman treatment.
   3. Persons arrested should not be required to strip and squat. An ordinary body search should suffice.
   4. If persons who have been arrested are injured, medical treatment should be provided without delay.
   5. The police should ensure that the use of lockups comply with the gazette notification in terms of numbers of detainees and proper places for juveniles.
   6. Investigation of an arrested person should be in accordance with the provisions of the Criminal Procedure Code. The Police should not gather security intelligence while investigating a specific offence.
3. Confiscation or destruction of property
   1. Property belonging to members of the public should not be destroyed or confiscated without a justifiable reason.
4. Remand of arrested persons
   1. Police should seek remand orders only if there is a real need to investigate a crime. Arrested persons should not be remanded for the purpose of gathering security intelligence or for "turning over".
   2. Magistrates should exercise discretion when making remand orders. They should take into consideration the circumstances of each case, the seriousness of the alleged offence and whether or not there is a real need for investigation.
5. Training for remand proceedings
   1. The Police should have a training or retraining programme for all personnel who are involved in obtaining remand orders
   2. The Judicial Training Institute (ILKAP) should conduct a training or retraining course for magistrates in relation to remand proceedings.
6. Police Bail
   1. If persons on police bail are not charged within one month, they should be released unconditionally.
7. Police Investigation