Who Is Liable?

"Courting Trouble" by Nizam Bashir, Malaysian Insider

AUG 7 — Much has been said and written about last Saturday’s Gabungan Mansuhkan ISA (“GMI”) rally.

Most notably, the discussions centred on the question of whether traders along Jalan Tuanku Abdul Rahman in Kuala Lumpur are entitled to file a suit and seek damages against the demonstrators for losses they supposedly sustained on the day of the rally.

Some legal eagles were consulted and quotable quotes began to fly quick and furious on the possibility of such actions being grounded on nuisance and negligence.

However, in the midst of all this riveting and compelling narrative, I was a little puzzled that little mention was made about the police use of their weapon of choice — tear gas and water cannons. Well, little negative mention that is.

The media has actually gone on to report that the police were “congratulated” by the “authorities”. (Suffice to say, my puzzlement has given way to something else.)

No matter. Let’s start by asking some rhetorical questions — rhetorical only because answers to them could be obtained from reports from here and there.

Was the assembly peaceful? Yes, at least until the police started firing tear gas and water cannons. (Source: Reports by observers from the Human Rights Committee of the Malaysian Bar, Aug 2)

So, why did the police opt to fire their weapons of choice? The police were apparently forced to use tear gas “... disperse some 10,000 people from participating in gatherings organised by the Abolish the ISA Movement (GMI) ...”. (Source: Bernama, Aug 1)

Was the order to disperse essential because there were two rival groups (i.e. pro-ISA and GMI) vying to deliver a memorandum regarding the use of the ISA and this was a possible threat to public order? No, because by 2.15 pm, the pro-ISA rally was cancelled. (Source : The Star, Aug 1)

So, when did the police start using tear gas and water cannons? At approximately 2.27pm onwards. (Source: The Star, Aug 1)

This much is now clear. Tear gas and water cannons were used merely to force the participants to disperse from a peaceful assembly. That was the crime — a peaceful assembly.

No matter. Let’s now consider the propriety of the “sentence” — tear gassing and water cannons:

Is it appropriate to use tear gas? The most common form of tear gas is o-chlorobenzylidenemalononitrile (CS) and chloroacetophenone (CN).

According to a study conducted by a number of medical doctors, including those from Harvard Medical School and Duke University Medical School, and reported in the Journal of the American Medical Association:

CS has a number of toxic effects. Broadly speaking, "... oral toxicology studies have noted the ability of CS to cause severe gastroenteritis with perforation. Metabolic studies indicate that absorbed CS is metabolised to cyanide in peripheral tissues."

More worryingly, the same study also expressed caution at the fact that "... studies have not adequately examined the possibility that CS at less than high concentrations can cause lasting pulmonary effects."

CN is said to be "... more likely to cause permanent corneal damage on contact with the eye and primary and allergic contact dermatitis ..." (Source: Journal of the Americal Medical Association Vol. 262 No. 5, Aug 4, 1989)

Is appropriate to use water cannons? Water cannons have been known to cause serious internal injuries and even broken bones. (Source: Wikipedia)

Was tear gas merely used on demonstrators? No. Tear gas, like any airborne chemical agent, is indiscriminate in its effect. It affects anyone coming in close contact with it. Case in point — Masjid Jamek batik trader Fusaini Kuno complained of irritation in his eye when the police fired tear gas without any warning. (Source: Malay Mail, Aug 3)

Were water cannons merely used on demonstrators? No. Water cannons, like tear gas, cannot target indiscriminately. (Source: Wikipedia)

Consequently, it is manifest that the “sentence” is inappropriate given its propensity to cause harm, known or unknown.

This is why since 1981 and 1987 respectively, Britain no longer considers CS gas (tear gas) and water cannons as suitable tools for crowd control.

So, what actually happened that Saturday? A number of Malaysians felt very strongly that the ISA should be abolished — not amended.

They were so impassioned by their convictions that they took to the streets to peaceably express their sentiments and did so pursuant to an express right guaranteed by the Federal Constitution.

They did just that and nothing more. Until the police tear gassed them and used water cannons on them and so much more.

So, should the police be “congratulated” for their actions? Well, to paraphrase Lord Scarman’s words from his report on the Brixton Disorders, not if their tactics aggravated a public order situation. What more when the assembly was peaceful.

This does however leave us with one final tantalising question — should the traders sue the demonstrators or should the traders sue those who would be more worthwhile to pursue? Maybe it is time to call those legal eagles again.