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Published by:
SUARAM Kommunikasi
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Email: [email protected]
Website: www.suaram.net
Cover design and layout by:
Bright Lights At Midnight
Printed by:
Polar Vista Sdn. Bhd.
Photograph images on the front and
back covers:
A mob of protestors led by several
Malay- and Islamic-based political
parties and NGOs forcibly halting a
public forum on religious conversions
organised by the Malaysian Bar
Council on 9 August 2008. Intolerance
towards matters of race and religion
was one of the most regressive trends
in 2008, creating an environment
which severely hampered the state of
human rights in the country.
SUARAM © 2009
Contents
Introduction
Acknowledgments
Executive Summary
5
7
9
CHAPTER 1:
Detention Without Trial and Restriction of Movement
13
CHAPTER 2:
Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies
39
CHAPTER 3:
Freedom of Speech and Expression
63
CHAPTER 4:
Freedom of Information
81
CHAPTER 5:
Freedom of Assembly and Association
95
CHAPTER 6:
Freedom of Religion and Matters Pertaining to Religion
111
CHAPTER 7:
Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons
129
CHAPTER 8:
Law and The Judiciary
147
CHAPTER 9:
Human Rights Comission of Malaysia (suhakam)
153
CHAPTER 10:
Free and Fair Elections
175
VOICES OF THE PEOPLE: SELECTED STORIES
Adat and Human Rights in Sarawak
US-Malaysia Free Trade Agreement: Who Benefits?
198
208
CONCLUSION AND GENERAL TRENDS
A Call for Genuine Human Rights Reforms
213
Introduction
Malaysia Human Rights Report 2008
S
uaram’s Human Rights Report be desired. In this crisis, restrictions to free-
2008 is a report card of the ruling dom of assembly and abuse of police powers
Barisan Nasional (bn) government in the
throes of struggling to survive the worst defeat
by Malaysian voters at the 12th General Elections. Thanks to the relentless efforts of 2007,
the grassroots movement for human rights
and democratic change gathered momentum
to deal a decisive blow to the arrogant ruling
coalition that had ruled Malaysia since Independence in 1957. A series of demonstrations
against the rising fuel price, toll fees and inflation, the mammoth rallies of the Coalition
for Clean and Fair Elections (bersih) and the
Hindu Rights Action Force (hindraf) in 2007
set the stage for the political tsunami that
swept the country on 8 March 2008.
The General Elections in 2008 saw the
ruling bn suffering its biggest loss in Malaysian
electoral history and the opposition coalition
Pakatan Rakyat winning 82 seats in the 222-seat
Parliament. This is only the second time since
the country’s independence in 1957 that the
ruling coalition has been denied its two-thirds
majority in the Parliament. The Pakatan Rakyat
also captured five of the thirteen state governments in the country, thus eroding the bn’s
political hegemony and posing a serious challenge to the dominance of the bn coalition of
mono-ethnic based parties in Malaysia.
Did this electoral victory translate into
meaningful reforms, democratisation and
greater respect for human rights in Malaysia?
suaram’s 2008 report is a mirror of the reality.
The post-elections events have been dramatic and reveal the nexus between ethnicity
and power. In 2009, one of the Pakatan Rakyatcontrolled state governments, namely Perak,
lost its power to the bn as a result of the cross
over of three elected representatives under
dubious circumstances. The courts have faced
a barrage of disputes ever since while the role
of the monarchy in the controversy has been
questioned. The manner in which the civil
courts handled the disputes has left much to
6
have been seen.
The 2008 general elections and subsequent events reveal the rising awareness of
civil society in Malaysia. ngos and the alternative media have shown greater confidence
and trust amongst various groups that have
transcended ethnicity and religion. Solidarity
has been shaped by demands for equal justice,
equal opportunity and equal dignity without
discrimination.
The bn is now in a political dilemma.
We are beginning to see an era in which the
leadership of bn is left with little choice but to
reform and respect human rights.
It is indeed gratifying that through this
political change and struggle, suaram has
been able to monitor, to document and to
fight for human rights together with other
ngos and other freedom loving Malaysians.
Our vision is a Malaysia that has broken the
barriers of race and religion and an end to
corruption, cronyism and authoritarian rule.
Finally, the Secretariat of suaram dedicates this year’s Human Rights Report to all
Malaysians who have braved the repression
and created the changes in the last general
elections.
Salam berjuang…
K. Arumugam
Chairperson
June 2009
Acknowledgments
T
he
publication of suaram
uman Rights Report 2008
H
involves efforts and contributions of
numerous individuals and organisations. The
publication of the report was made possible
with the financial assistance from the National E
ndowment for Democracy.
The report was mainly written and coordinated by John Liu. Other contributors are:
Andrew Khoo (Law and the Judiciary); Wong
Chin Huat (Free and Fair Elections); SACCESS
(Adat and Human Rights in Sarawak); and Y.
Kohila (The US-Malaysia Free Trade Agreement:
Who Benefits?). The principal editor of this
report is Dr. Kua Kia Soong, with editorial
assistance from Dr. Yeoh Seng Guan and
Chuah Siew Eng. Various sections were
reviewed by Nalini Elumalai, K. Shan, Tah
Moon Hui and Temme Lee. Yoong Pui Shen
assisted in the proofreading of some portions
of the draft.
Various photos in this report are courtesy of Gerakan Mansuhkan isa (gmi),
Malaysiakini and Jaringan Rakyat Tertindas
(jerit). Wong Chai Yi and Lee Soo Wei provided assistance in selecting and obtaining
some of the photographs in this report.
8
Executive Summary
T
he year
2008 was most notably In 2008, the major regressive trends in human
marked by the 12th General Elections which saw the ruling Barisan
Nasional (bn) coalition’s biggest loss in Malaysian electoral history. The 2008 General
Elections saw the opposition coalition, Pakatan
Rakyat winning 82 seats in the 222-seat Parliament. This is only the second time since the
country’s independence in 1957 that the ruling coalition has been denied its two-thirds
majority in the Parliament.1 In addition, Pakatan Rakyat now controls five of the thirteen
state governments in the country, thus eroding
the bn’s political hegemony and posing a serious challenge to the dominant-party regime
of the bn in Malaysia.
The unprecedented outcome of the
2008 General Elections was a manifestation of the popular aspiration for reforms
and greater respect for human rights in the
country. It had come about through the great
disappointment with the increasing failure of
state institutions, such as the judiciary, the police, the Anti-Corruption Agency (aca), and
the Human Rights Commission of Malaysia
(suhakam), to uphold justice, equality, human
rights and democracy, as highlighted by suaram in 2007.2
Major events in 2007, including the
landmark demonstrations organised respectively by the Malaysian Bar Council, the Coalition for Clean and Fair Elections (bersih),
and the Hindu Rights Action Force (hindraf),
culminated in the huge setback for the bn government in the 2008 General Elections.
But despite the huge loss of popular support, the bn government has still generally
failed to respond to the demands for reforms,
democratisation and respect for human rights.
In recent years, we have noted the deterioration of human rights in Malaysia as a result
of the bn government’s failure to implement
reforms despite having continuously pledged
and reaffirmed its commitment towards the
promotion and protection of human rights.3
10
rights have persisted:
DETENTION WITHOUT TRIAL
The government continued to detain persons
without trial, with 43 individuals still detained
under the isa as of 5 December 2008; 10 arrests were made under the isa in 2008, including a blogger, an opposition Member of Parliament, and a journalist.
RECOMMENDATIONS FOR REFORMS
The government failed to implement most of
the recommendations made by suhakam and
the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police (Royal Police Commission).
POLICE ABUSE OF POWER
Abuse of power by the police remained unchecked while the Government continued to
drag its feet in setting up the Independent
Police Complaints and Misconduct Commission (ipcmc); in 2008, suaram recorded
a staggering number of 44 deaths by police
shootings through media monitoring, with
possibly more cases unreported, while the
government disclosed 13 cases of deaths in
police custody.
PRESS FREEDOM
Press freedom continued its decline in world
rankings with Malaysia placed at an all-time
low position of 132nd out of 195 countries in
2008, dropping from 124th in 2007.
Executive Summary
FREEDOM OF ASSEMBLY
The government was selective in recognising
the right to freedom of assembly; while some
assemblies were tolerated by the government,
those which were held to oppose government
policies were repressed.
REFUGEES, MIGRANTS, AND
ASYLUM SEEKERS
In October 2008, Abdullah Badawi announced that he would retire as Prime Minister in March 2009, following intense pressure
for him to step down both from outside and
also within the bn coalition. The transition
of leadership in the bn and the government’s
response to growing criticisms and political
challenges from both within and outside the
bn will have major implications on human
rights and fundamental freedoms in Malaysia
Refugees, undocumented migrants and asylum-seekers continued to face arrests and
other serious human rights abuses as a result
of the Malaysian government’s refusal to recognise the rights of these groups.
INTERNATIONAL STANDING ON
HUMAN RIGHTS
Malaysia’s credibility at the international level
took a further blow due to its lack of commitment in promoting and protecting human
rights. This was best illustrated in the possible
downgrading of suhakam, as a result of its
lack of compliance with international standards.
The year also saw the perpetuation of
racial and religious intolerance as a result of
heightened politicisation of race and religion
by the bn government after its biggest loss
in the 12th General Elections. Throughout
Malaysia’s modern political history, the racebased ruling coalition has continued to invoke
the “spectre of racial conflict”4 to consolidate
power and to justify its control of power, especially in times of political crises. This was
seen once again in 2008, when the bn coalition’s poor showing in the 12th General Elections resulted in challenges to the leadership
of Abdullah Badawi.
11
12
Chapter 1:
detention without
trial and restriction
of movement
I
of the many
pledges and commitments made by the
Malaysian government to safeguard and
promote human rights, including its statement
to the un Human Rights Council in 2006 that
the government had “[…] made the guarantee
of the individual’s fundamental rights and
liberties, as enshrined in the Constitution
[…]”,1 laws which permit detention without
trial continued to be used extensively by the
government in 2008.
Numerous calls were made for the review
and abolition of laws permitting detention
without trial, particularly the Internal Security
Act 1960 (isa). This included political parties
within the ruling coalition and even a highranking cabinet minister.
Besides the isa, the government has powers
to detain individuals without trial under other
legislations, which include the Emergency
Ordinance (Public Order and Prevention of
Crime) 1969 (eo) – a law enacted after the
racial riots in 1969 – and the Dangerous Drugs
(Special Preventive Measures) Act 1985 (dda).
While not as well known as the isa, these two
laws have nevertheless been used extensively
to arrest and detain suspected criminals
without charging them with any offences.
Ignoring calls for the abolition of such
detention-without-trial laws, the government
instead, on more than one occasion in 2008,
reaffirmed the need for these laws. For
instance, on 15 May 2008, Home Minister
Syed Hamid Albar said, “Malaysia is a
cosmopolitan country comprising various
races, religions and cultures, and this law has
to be retained to thwart any threat before
it emerges. As such, for the moment, the
government has no plan to abolish the isa.”2
One week earlier, on 6 May 2008, the same
minister had said that the government did not
plan to review or abolish the dda, another law
which provides for detention without trial.3
The legislative enactments that provide
for detention without trial have also been a
14
n
contravention
source of major concern for, among others,
(suhakam) and the Royal Commission
to Enhance the Management and
Operations of the Police Force (Royal Police
Commission) in recent years.
In 2003, suhakam released the “Review
of the Internal Security Act 1960”, calling for
the review of the isa, which has “adversely
affected the status of human rights in
Malaysia”.4 suhakam proposed that the
government consolidate all laws pertaining to
national security, including the isa, into one
statute that “takes a tough stand (on) threats
to national security” and yet “conforms (to)
international human rights principles”.5
Specific offences related to threats to national
security must be spelt out clearly in this
proposed anti-subversion law. suhakam also
recommended in its 2003 review that the
government take various interim measures,
including amending the isa, before a new
security law is put in place. This included:6
•
•
•
•
•
Defining clearly the detention criteria
under the isa.
Reducing the detention period from two
years to three months.
Either charging or releasing a detainee
after the three-month period.
Allowing judicial review of detention
orders.
Requiring detaining authorities to submit
an annual isa report to Parliament and
making the detention order valid for one
year only unless reviewed by Parliament
annually.
Echoing the recommendations by
suhakam, the Royal Police Commission (set
up in 2004) in its report submitted to the
King in 2005, also highlighted its concerns
about preventive legislations that provide for
detention without trial. The Royal Police
Commission, stressing the need to respect the
principle of right to trial, recommended:
•
•
•
•
•
Amendments to Section 73 of the isa
1960 requiring a detained person to be
produced before a magistrate within 24
hours, be allowed access to family and
lawyers, and the detention period be
limited to a maximum of 30 days.
Amendments to Section 3 of the dda
1985 requiring a detained person to be
produced before a magistrate within 24
hours and be allowed access to family
and lawyers. The Commission also
recommended limiting the detention
period to a maximum of 30 days.
The repeal of the Restricted Residence
Act (rra) 1933 that allows the preventive
detention of suspected criminals in a
specific residential area that may extend
up to the lifetime of a person.
The repeal of the eo 1969.
The partial repeal the Prevention of
Crime Act 1959.
However, in December 2008, Home
Minister Syed Hamid Albar rejected the
recommendations made by suhakam, saying
that the Commission only looked at the issue
from their perspective when it called for the
isa to be reviewed. The minister said that the
government was looking at the issue from
a much wider plane and had to take into
consideration the over-arching interest of the
public.7
At the end of 2008, there were 43
persons still detained under the isa in addition
to an estimated 1,000 persons under the eo,
while the number of persons detained without
trial under the dda is unknown. Meanwhile,
many others who have been released from
detention still face restrictions on their
movement, under the Restricted Residence
Act 1933 (rra).
Internal Security Act 1960 (isa)
The isa was the extension of a colonial legis
lation enacted to combat the communist
insurgency in the 1940s and 1950s. Ironically,
it was introduced in 1960, the same year the
“Emergency” was declared officially over.
In the post-Independence era, it was used
extensively against political dissidents,
students, and labour activists. Since then,
the isa has been invoked against those who
commit acts deemed to be “prejudicial to
the security of Malaysia” or threatening to
the “maintenance of essential services” or
“economic life”. The government determines
who falls under these categories and, using
a strained interpretation of the legislation,
has detained scores of individuals under
the isa in cases that would normally require
prosecution.
Under the isa, detainees are subject to
an initial 60-day detention period in special
police holding centres, for the purpose of
investigation. No judicial order is required
for such detentions. The locations of these
holding centres are kept secret, and detainees
are transported to and from these centres in
blindfolds. Visits by family members are purely discretionary and, contrary to Article 5(3)
of the Federal Constitution,8 detainees are
denied access to lawyers. During the initial
detention period, detainees are commonly
subjected to torture and other cruel, inhumane and degrading treatment.
At the end of the 60-day period, the
Home Ministry may choose to release a
detainee on restrictive orders, or order further
detention without trial for a term of two years.
The ministry can renew the two-year detentions indefinitely. Some isa detainees were
detained for more than ten years and in one
case, even for sixteen years. Detainees may
also be released with or without conditions
at any time during detention. Conditions can
include restrictions on activities, movement,
15
residence, and employment; orders to remain
indoors during certain hours; and prohibitions against holding public office or taking
part in political activities. In recent years,
detainees who are issued two-year detention
orders are held in the Kamunting Detention
Camp (kdc) in Perak.
Calls for the Review and Repeal of
the isa
In the past, the call to review or repeal the
isa had been made mainly by civil society
and opposition political parties. However, in
2008 various politicians and member political
parties of the ruling-bn coalition have joined
the chorus.
On 14 September, in response to the
arrests of blogger Raja Petra Kamaruddin,
opposition Member of Parliament Teresa
Kok, and journalist Tan Hoon Cheng under
the isa, Zaid Ibrahim, the minister in charge
of law in the Prime Minister’s Department,
strongly criticised the government’s actions
saying that there are “many laws which the
police could have used to detain the three
people without having to use the isa” and that
the government had misused the isa from its
original stated purpose.9
Zaid Ibrahim eventually resigned from
his ministerial post in the cabinet on 16
September. In an open letter to the Prime
Minister after his resignation, Zaid Ibrahim
wrote that the misuse of the isa “has been
made possible because the government and
Malaysians holding a candlelight vigil outside the Kamunting Detention Camp in Perak, in June, calling for the ISA to be abolished and
the detention camp to be closed. (Photograph courtesy of Gerakan Mansuhkan ISA)
16
the law mistakenly allowed the Minister
of Home Affairs to detain anyone for any
particular reason he thinks fit”. He also cited
the cases of the use of isa during Operasi
Lalang in 1997; in 2001 on Reformasi activists; in 2007 on leaders of the Hindu Rights
Action Force (hindraf), and the latest series
of arrests in September 2008, as “instances
[…] [which] strongly suggest that the government is undemocratic”. Zaid Ibrahim went
on to state, “Through its continued use in the
manner described above and in the face of
public sentiment, it is only natural that the isa
has become in the mind of the people an instrument of oppression and the Government
is one that lends itself to oppressiveness.”10
Several political parties within the ruling
bn coalition have also lobbied for the isa to
be reviewed. In October, the Malaysian
Chinese Association (mca) called for the isa to
be reviewed, followed not long after by three
other major component parties in the BN,
namely the Malaysian Indian Congress (mic),
Parti Gerakan Rakyat Malaysia (gerakan), and
the Progressive People’s Party (ppp).
In March, the Bar Council, during its
62nd annual general meeting unanimously
passed a motion for the repeal of the isa and
for the release of those detained under the
Act. On 20 September 2008, in an extraordinary general meeting held in response to
the arrests of three individuals under the isa
on 13 September 2008, the Bar Council once
again unanimously passed a resolution calling
for the repeal of the isa and the release of all
isa detainees.
A wife of an ISA detainee speaking at the Extraordinary General Meeting of the Malaysian Bar Council in September. The Bar Council passed a resolution calling for a repeal of the ISA. (Photograph courtesy of Gerakan Mansuhakna ISA)
17
The Government’s Position on the
isa
Despite the numerous calls and recommendations by individuals, ngos, political parties, as
well as commissions set up by the government
to either repeal or review the isa, the administration under the premiership of Abdullah
Badawi continued to view this law as relevant,
invoking and also threatening to use it in the
name of “national security”.
The bn government has often cited the
maintenance of peace and security of the
general public as a justification for its use
of laws such as the isa. For instance, in July
2007, Prime Minister Abdullah Badawi said,
“[T]he government feels that [the] isa is
significant because we use it to maintain peace
and to ensure the security of the general
public.”11
In 2008, this position was maintained
despite strong calls for the isa to be reviewed
or abolished. In September, Home Minister
Syed Hamid Albar, reiterated “We have
no plans to do away with the isa.”12 The
statement was reported to have been made
based on a decision from a Cabinet meeting.
In November, in its report submitted
to the un Human Rights Council for the
purpose of the Universal Periodic Review
(upr), the Malaysian government argued:
“The isa […] aims to counter the
subversive elements and threats
prejudicial to the national security. Its
purpose is to provide for the internal
security of Malaysia, preventive
detention, the prevention of subversion, the suppression of organised
violence against persons and property
in Malaysia and matters incidental
thereto. The isa is needed to maintain peace, stability and security of
persons in Malaysia.”13
In December, Deputy Prime Minister
Najib Razak said that “the isa has protected
the country from terrorism” and that “the
main reason why there have been no serious
acts of terrorism in this country is because we
have in place the isa”.14
These statements reaffirming the need
for the isa, and also the government’s conti
nued use of the law, are in stark contradiction
to Prime Minister Abdullah Badawi’s proclamations of promoting democracy under
his leadership. In reality, no substantive
improvements have been made as fundamental
liberties and basic human rights based on
universal standards and principles continued
to be ignored. Indeed, scores of individuals
have been detained without trial during his
five years of premiership. They range from
persons spreading rumours through sms,
political dissidents, and alleged “terrorists”.
(Source: SUARAM monitoring)
18
ISA Statistics in 2008
Based on suaram’s monitoring, as of 31
ecember 2008 there were 43 detainees in
D
the Kamunting Detention Camp. Most of
them were alleged members of “religious
extremist groups”, including the Jemaah
Islamiah (ji) while another significant number
comprises those allegedly involved in counterfeiting c urrency and falsifying documents.
To date, none of the detainees have been
charged with any offences. Ten individuals
were arrested under the isa in 2008, while
seven new detention orders and twenty extensions of detention orders were signed by the
Home Minister. Thirty-four detainees were
known to have been released in 2008.
Jemaah Islamiah (ji) and Darul Islam
(di)
Since 2001, the isa has been used extensively
against those alleged by the Malaysiangovernment to be “terrorist-linked” or have “Islamic/
ideological” connections with other groups in
the Philippines, Pakistan, Afghanistan and
Indonesia. The arrested persons are mostly
labelled as members of Jemaah Islamiah (ji),
an alleged Islamic terrorist group based in
Indonesia. A significant number of persons
arrested under the isa were also accused to be
members of the Kumpulan Militan/Mujahiddin
Malaysia (kmm, Malaysian Militant Group).
On 20 October 2006, Deputy Internal
Security Minister Johari Baharum released
a statement claiming all detainees allegedly
linked with JI and Kumpulan Militan/
Mujahiddin Malaysia had been freed. Johari
was quoted as saying, “There will not be any
other kmm and ji members that will be freed, as
all of them have already been freed.”15 Johari
Baharum’s statement was misleading, as
individuals accused of involvementin alleged
Islamic extremist movements continuedto be
the predominant group of isa detainees in
2008.
While all remaining detainees accused of
being members of the kmm had been released
in 2006, those arrested for allegedly belonging to ji continued to comprise the majority of
isa detainees in 2006, 2007 and 2008. As of
December 2008, there were still 12 detainees
accused of being part of ji detained under the
isa. Many of them were initially arrested as
kmm suspects, but their letters of arrest later
accused them of being ji members instead.
Such arbitrariness in the charges raises doubts
about the reliability of the evidence in the
possession of the authorities.
Another alleged Muslim militant group,
Darul Islam (di), has also been the target of
the isa in recent years. At the end of 2008,
a total of 13 di members were detained
under the isa. As in the case of the ji, the di
detainees have been accused of attempting to
overthrow the government through militant
means. The di members have allegedly been
trained in making bombs and using firearms.
It has also been alleged that the group, based
in Sabah is an offshoot of the Indonesian
movement, and aims to create an Islamic state
spanning Indonesia, Malaysia and Southern
Philippines. The government further claimed
that di had helped several Indonesian
militants including two individuals who were
allegedly involved in the Bali bombings in
2001. However, in the absence of judicial
scrutiny, the authorities’ claims have not been
corroborated.
The Hindu Rights Action Force
(hindraf)
Another group that has been labelled as
“terrorist-linked” is hindraf, which on 25
November 2007, organised a massive rally
in the capital Kuala Lumpur, and numerous
other smaller rallies nationwide, demanding
19
equality and fair treatment for ethnic Indians,
a minority group which hindraf claims has
been marginalised and discriminated against
in Malaysia. hindraf had also filed a class
action suit against the British government for
initially bringing the Indians to Malaya as indentured labourers and exploiting them for
150 years. In the run-up to the rally, on 23
November 2007, three hindraf leaders were
arrested under the Sedition Act for alleged inflammatory speeches made while on tour in
several cities and towns around the country.
After the 25 November mass rally, which
drew some 30,000 people, threats to use the
isa on the leaders of hindraf were made by
several top government leaders, including
Prime Minister Abdullah Badawi, Deputy
Prime Minister Najib Razak, and umno
Youth Chief Hishamuddin Hussein.
The government also embarked on an
intensive propaganda campaign to demonise
the organisation, linking it to “terrorists”. On
7 December 2007, Prime Minister Abdullah
Badawi reportedly ordered the police to
monitor hindraf leaders for their links to
“terrorist groups”. When asked whether
hindraf was a terrorist organisation, Deputy
Minister Najib Razak said that they were
certainly an “extremist organisation”.
Minister in the Prime Minister’s Department
Nazri Aziz also said that the Liberation Tigers
of Tamil Eelam (ltte)16 in Sri Lanka and the
Rashtriya Swaymsevak Sangh (rss) in India
were supporting hindraf. Nazri was reported
as saying, “We are monitoring hindraf and
if the links are confirmed, then it is clear that
hindraf is a terrorist organisation.”17
On 13 December 2007, after numerous
threats and warnings, five hindraf leaders
were detained under the isa. Defending the
decision to detain the five under the isa,
the Inspector-General of Police (igp) Musa
Hassan reiterated the government’s allegations that the group “clearly [has] links with
international terrorist organisations”.18 Musa
20
also said that the five hindraf leaders were
trying to sow hatred against the government,
and reiterated warnings by the government
that more hindraf leaders and supporters
could be arrested under the isa.19
Inciting Racial Tension
Ever since its introduction in 1960, the isa
has been used during times of political crisis
faced by the ruling coalition party, bn, which
is made up of race-based political parties.
The bn’s modus operandi has been to
invoke the “spectre of racial conflict” and
censoring discussions deemed “too sensitive”
in a multi-ethnic society. The isa is then
deployed to detain political dissidents deemed
to be guilty of inciting racial tension. Its most
infamous use was in 1987 when “Operasi
Lalang” saw 106 individuals detained under
the isa during a time when the leadership of
the ruling umno under then-Prime Minister
Mahathir Mohamad faced serious political
challenges from another faction within the
same party.
Under a similar backdrop of challenge
to power faced by Prime Minister Abdullah
Badawi in September 2008, three individuals
were arrested within a period of 24 hours
under the isa for allegedly inciting racial
tensions. (A detailed discussion on this will follow in
the section “isa Arrests in 2008”.)
Forgers of Documents and “Foreign
Agents”
In recent years, the government has extended
the use of the isa beyond its original purpose
of combating communist insurgency to cover
also criminal activities such as currency counterfeiting and the forgery of passports and
identity cards. A number of alleged foreign
agents have also been detained under the
isa.
Their detention under the isa exposes
the flimsy justification for the isa since such
alleged criminals clearly exist in every country
in the world. Malaysia already has ample laws
to deal with such crimes without having to
invoke detention without trial.
Of those who were arrested under the
isa in 2008, six individuals were detained
for alleged forgery of documents. As of
December2008, eight of the 43 isa detainees
held in the Kamunting Detention Camp have
been accused of forging documents; another
is alleged to be a foreign agent.
etention Camp. Those who were eventually
D
released were deported back to their home
countries. As of December 2008, there were
eleven foreign nationals incarcerated under
the isa.
ISA Arrests in 2008
Ten individuals were arrested under the isa
in 2008. In May, six individuals were arrested
for allegedly forging documents. All six of
them received two-year detention orders and
were sent to the Kamunting Detention Camp.
Out of those six, four remained incarcerated
Foreign Nationals
under the isa as of December 2008.
On 12 September 2008, the police
There are also a number of foreign nationals launched a series of arrests under the isa. The
detained under the isa in the Kamunting arrests began with Raja Petra, webmaster
Marina, the wife of Raja Petra Kamaruddin, seen here together with supporters and friends at a vigil to demand for the release of Raja
Petra when he was detained under the isa in September. (Photograph courtesy of Gerakan Mansuhkan isa)
21
of Malaysia Today. Raja Petra’s blog is wellknown for uncovering political scandals and
corruption in the government. Prior to his isa
detention, Raja Petra was already facing
charges of sedition and criminal defamation.
On the same day as Raja Petra’s arrest, a
senior journalist for the Chinese-language
newspaper Sin Chew Daily, Tan Hoon Cheng,
was also arrested and detained in connection
to her report regarding derogatory remarks
uttered by a leader of the ruling party, the
United Malays National Organisation (umno)
against the Chinese community in Malaysia.
Home Minister Syed Hamid Albar claimed
that she was detained to ensure her own safety
after her report had led to an uproar! The
Home Minister’s justification attracted a wave
of strong public criticism.20
Opposition Member of Parliament and
Selangor state executive councillor Teresa
Kok, was the third person to be detained
under the isa on 12 September 2008. She was
arrested for allegedly inciting racial and religious tension by making requests to mosque
officials at several locations in the state of
Selangor to tone down their amplified calls to
prayer. This accusation has been denied not
only by Kok but also by the mosque officials
concerned.
In a press statement issued upon her
release on 19 September 2008, Teresa Kok
said that three main questions were asked
to her by the police during her one-week
detention.They were:21
•
•
•
22
Whether she had mobilised a group of
residents to present a petition to oppose
the call to prayer at the Bandar Kinrara
mosque.
Whether she had made a statement that
30 percent of the Selangor state Islamic
Department (jais) allocation be given to
other non-Islamic religious bodies.
Whether she had opposed the Jawi
(Arabic script) road signs in Kuala
Lumpur.
Kok also stated that these questions were
based entirely on a “false and malicious”
article which appeared in the Malay-language
daily, Utusan Malaysia, on 10 September 2008.
Two major problems with the continued
use of the isa were once again obvious in the
series of arrests in September 2008:
•
•
The isa arrests were clear cases of abuse
of police powers, as the arrests were made
based on unsubstantiated allegations and
had no substantial links with “national
security” – a justification commonly
made by the government to defend its
use of the Act.
The isa appears to be invoked by the
government as a convenient legal tool to
assert control of power during times of
internal political crises.
With regards to the latter, it is worth
noting that umno obtained its worst electoral
performance during the March 2008 General
Election. In August, umno also suffered
a huge defeat in the Permatang Pauh by-
election at the hands of the leader of the
opposition People’s Justice Party (Parti Keadilan
Rakyat, pkr), Anwar Ibrahim. The political
crisis within the ruling party worsened when
Anwar Ibrahim publicly announced his intentions to entice members of parliament from
the parties in the ruling coalition to cross over
and join the opposition ranks and to form a
new government.
As a result of intense local and international pressure on the government, Tan Hoon
Cheng was released on 13 September 2008,
one day after her arrest while Teresa Kok was
released on 19 September 2008. Raja Petra
Kamaruddin was released on 7 November
2008 through a habeas corpus application.
On 17 October 2008, in another case
of abuse of powers by the police under the
isa, Cheng Lee Whee, a secretariat member
of suaram’s Johor Bahru branch was arrested
under Section 28 (Dissemination of false
reports) of the isa for “spreading information that could cause fear among the people”, after she had lodged a report against the
police for the arrests of 27 persons during an
attempt to stop a forced eviction operation
in a village near Johor Bahru. Section 28 of
the isa provides for an offence in making and
spreading “false reports” likely to cause public
alarm. She was released on 18 October 2008,
after the police failed to obtain a remand from
the Magistrate.
(Source: suaram monitoring)
23
Renewed Detention Orders in 2008
In 2008, the Home Minister signed the
renewal orders of detention of twenty isa
detainees. Out of that number, one had
been detained since 2001; three since 2002;
another three since 2004, while the remaining
thirteen had been detained since 2006. The
names of those who received renewed detention orders in 2008 are as follows:
24
* Total period in detention upon expiry of the current detention order in
parentheses.(Source: suaram monitoring)
isa
Releases in 2008
In 2008, a total of thirty-four detainees were
released. However, eighteen of them were
given restricted residence orders and twelve
foreigners were deported back to their respective home countries.
25
26
(Source: SUARAM monitoring)
Judicial Review
In December 2007, the five hindraf leaders
detained under the isa – P. Uthayakumar,
M. Manoharan, R. Kenghadharan, V.
Ganabatirau and T. Vasanthakumar –
challenged the detention orders made by the
Internal Security Minister (now known as the
Home Minister) by filing habeas corpus applications at the Kuala Lumpur High Court.
In their habeas corpus applications, the five
hindraf leaders challenged the legality of
their detention orders because there had
been no 60-day investigation period under
Section 73 of the isabefore they were given
two-year detention orders under Section 8.
They contended that their detentions were
a procedural non-compliance as previous
detentions under Section 8 of the isa have
invariably been preceded by arrests under
Section 73. The hearing was conducted
between 24 and 28 January 2008 before
Judicial Commissioner Zainal Azman Abdul
Aziz.
Counsel for the five HINDRAF leaders detained under the ISA,
together with their family members and supporters, at the Kuala
Lumpur High Court before the hearing of the habeas corpus application of the five in January. (Photograph courtesy of Gerakan
Mansuhkan ISA)
The Observatory for the Protection
of Human Rights Defenders, an international human rights group who observed the
hearing, expressed concerns that “a hearing
on such a politically sensitive matter was
conducted by a Judicial Commissioner, a
judicial officer who sits without tenure and
who is therefore more vulnerable to the
perception of bias” and that “the detainees were not present in a court hearing on
the legality of their detention”.22 The inter-
27
national human rights group further noted
that it was not able to make oral and written
submissions in the form of an amicus curiae
brief despite having informed the court of its
intention to do so, as the Attorney-General
had indicated that the respondents would
object to submissions of any kind.23
On 26 February 2008, the court deliver
ed its judgement, rejecting the habeas
applications of the five. In his judgement,
Judicial Commissioner Zainal Azman Abdul
Aziz said that the detention order issued by
the Internal Security Minister was valid and
met all requirements under the isa and that
none of these requirements were violated. He
also noted that the minister could order the
detention of a person under Section 8(1) of
the isa.24
On 4 August 2008, the lawyers of the
five hindraf members filed a new habeas corpus
appeal at the Federal Court, but this too was
dismissed unanimously by the judges on 11
February 2008 who ruled that a detention
order could be issued under Section 8 of the
isa without waiting for full investigation by the
police.
The year, nevertheless, witnessed an
important judgement made by the Shah
Alam High Court which resulted in the
release of an isa detainee. On 7 November
2008, blogger Raja Petra Kamaruddin was
freed in a habeas corpus application as High
Court Judge Syed Ahmad Helmy ruled that
the detention of Raja Petra under the isa
was illegal and unconstitutional as the Home
Minister had not followed proper procedure
under Section 8 of the Act under which Raja
Petra was detained.
Torture, Cruel and Inhuman
Treatment under the ISA
Over the years, suaram has documented
innumerable cases in which detainees
28
are subject to torture and other forms of
inhuman,cruel and other forms of degrading
treatment while in detention under the isa, eo
and the dda.
The reluctance of the Malaysian government to ratify the United Nations Convention
against Torture and Other Cruel, Inhuman
and Degrading Treatment or Punishment
(cat)25 allows a culture of torture and impunity and indicates the government’s disregard
for international human rights standards.
In its 2007 report, suaram highlighted
the court case of Abdul Malek Hussin, who
was detained in 1998. In 2007, Abdul Malek
Hussin won a lawsuit against the government
over his arrest and torture in 1998, and was
awarded RM2.5 million in damages on 18
October 2007. Kuala Lumpur High Court
judge Mohd Hishamuddin Mohd. Yunus
ruled that Abdul Malek’s detention was
unlawful and that he had been assaulted and
tortured under custody.
The judge in
awarding exemplary damages to the plaintiff
said that it was “to show the court’s abhorrence against the gross abuse of power by the
police and the use of the isa”.26
In his judgement, the judge also noted
the existence of “torture chambers” and that
acts of torture committed by police personnel
still went unpunished. International law
unequivocally prohibits torture and all cruel,
inhuman or degrading treatment or punishment.
In 2008, another case of torture while
under isa detention was documented. Sanjeev
Kumar was tortured until he was paralysed
while under isa detention from July 2007 to 9
September 2008.
Box 1.1: Recorded Testimony of Sanjeev Kumar Krishnan
On 28 July 2007, Sanjeev Kumar Krishnan,
Identification Number 830126-08-xxxx,
was arrested at Kedai Motor Sanjeevi, a
motorcycle repair shop, of the address No.
3 Taman Permai, Jalan Slim Lama, 35900,
Tanjung Malim, Perak. He was arrested
by a number a policemen who were not in
uniform and a uniformed police officer.
At the time of arrest, both his hands
were cuffed and he was not told the reason
of his arrest. He was later brought to his
residence in a Proton Wira to the address
No. 799, Taman Bernam, 35900 Tanjung
Malim, Perak. The police ransacked his
house for about 2 hours and confiscated a
parang (machete) and some firecrackers that
were kept in the house. The detainee was
then brought back again to Kedai Motor
Sanjeevi which is owned by the detainee
and his brother. Police officers searched the
shop but did not confiscate anything.
Although the brother of the detainee
had asked police officers the reason for his
brother’s arrest, the police officers failed to
give an answer and merely stated that the
family would be receiving a letter by the
police later in the evening. Sanjeev Kumar
was then brought to the Tanjung Malim
Police Station at around 2pm. Between 2pm
to 3pm, Sanjeev Kumar’s wife, Sharmila
received a detention order from the police
stating that her husband had been arrested
under the isa.
The family was only allowed to see
Sanjeev two weeks after his arrest at the
Bukit Aman police headquarters. During
his 55-day detention period, Sanjeev’s
wife and family were only allowed to see
him three times. Sanjeev was sent to the
Kamunting Detention Camp on 22
September 2007, when he was given a
detention order for 2 years.
Physical and Mental Torture
During the detainee’s period of detention,
he was subject to torture and abuse. Among
the abuses he suffered in the hands of the
Special Branch of the Police :
•
•
•
Interrogations were conducted from
8am to 11pm without any breaks.
Should the detainee fail to answer any
questions directed by the officers, the
Special Branch officers would threaten
him by saying that they would not release him. Sanjeev was also put under
solitary confinement in a small dark
room.
Sanjeev was tortured, kicked and hit
brutally by the Special Branch officers.
His body and head were punched and
kicked. His left hand and leg were hit
several times with a hard object. He
was also often hit with a filled bottle of
water.
The detainee was made to drink his
own urine 3 to 4 times. The Special
Branch officers also hit the detainee’s
penis and a hard object was inserted
into the detainee’s anus. During the
physical abuse, the detainee was also
insulted by the Special Branch officer
using vulgar and obscene language.
At the Kamunting Detention Camp
After he was sent to the Kamunting
Detention Camp, Sanjeev complained that
his left hand and leg were not functioning
properly. Despite his complaints, he did not
receive sufficient medical treatment.
On 11 April 2008, Sanjeev was sent
to a medical clinic, located within the
detention camp. However, as the pain was
29
too serious, he had to be sent to the nearby
Taiping Hospital for treatment. When he
arrived at the hospital, he was deprived of
medical attention as one of the wardens
in the Kamunting Detention Camp by
the name of Sharom said that the doctor
in charge was not available and sent
Sanjeev back to the detention camp. That
same night, on 11 April 2008, Sanjeev
complained of tremendous pain and had
to be admitted into the hospital.
On 18 April 2008, Sanjeev was
discharged from the hospital. Unfortunately, he was discharged in a wheelchair and pronounced paralysed - he was
unable to move his left leg and hand.
Family members of Sanjeev Kumar, who is paralysed as a result
of torture in ISA detention, outside the police station after lodging a report on the torture in detention. (Photograph courtesy of
Gerakan Mansuhkan ISA)
The evidence revealed in October 2007
during Abdul Malek’s civil suit against the
Malaysian government, and the testimony
provided by Sanjeev Kumar on his torture in
detention in 2008, reaffirm the fact that torture and other inhuman or degrading treatment or punishment goes hand-in-hand with
detention without trial.
30
Emergency Ordinance (Public Order
and Prevention of Crime) 1969 (eo)
In 2008, the less well-known eo continued
to be used mainly on alleged underworld
kingpins and suspected criminals. The eo
was originally drafted to curb the spread
of violence and destruction after the May
1969 racial riots. The preamble of the ordinance states, “By reason of the existence of
grave emergency threatening the security of
Malaysia […] immediate action is required
for securing public order, the suppression
of violence and the prevention of crimes
including violence.”27 In 2005, the Royal
Police Commission had recommended the
repeal of the eo because “the law had outlived
its purpose” and had “facilitated the abuse of
fundamental liberties”.28 However, to date, the
eo is still used to detain and restrict suspected
criminals without charging them.
The eo provides the police with the
power to detain persons for up to 60 days
for the purpose of “preventing any person
from acting in a manner prejudicial to public
order” and the “suppression of violence or
the prevention of crimes”.29 According to
the legislation, there is no need to obtain a
remand order from a magistrate. All that is
required is for a police officer of, or above the
rank of, deputy superintendent to report the
circumstances of the arrest to the Inspector
-General of Police (igp) or his designated
officer. After the initial 60-day detention
period, the Internal Security Ministry can
make an order of detention without trial for a
period of two years. If detention is unneces
sary, the Internal Security Ministry may
impose restricted orders on suspects requiring
them to be supervised by the police, to reside
within the limits of an area, to periodically
report to the police, to remain home during
specific hours, and to abide by other restrictions on their movements.
As the majority of individuals detained
without trial under the eo tend not to be
political dissidents or well-known personalities, the legislation is far less well-known
compared to the isa. Consequently, the police have been conveniently using the eo over
the years to arrest thousands of individuals
without ever bringing them to court.
Although the authorities typically characterise
eo detainees as underworld kingpins and
dangerous criminals, suaram has received
numerous reports of individuals arrested
under the eo for alleged petty crimes.
According to former detainees who were
recently released from the Simpang Renggam
detention centre, there are currently over
1,000 people detained under the eo, including minors.30
The detention of minors under the
eo is indeed a matter of grave concern,
especially considering that the conditions
of the Simpang Renggam detention centre
have been widely reported to be deplorable
and highly unsanitary.31 This, and the fact
that detention under the eo can be renewed
indefinitely, contravenes the Convention
of the Rights of the Child (crc),32 of which
Malaysia is a signatory. According to Article
37(b) of the crc, no child shall be deprived
of his rights unlawfully or arbitrarily. The
document also states that the arrest, detention or imprisonment of a child shall be in
conformity with the law and shall only be
used as a measure of last resort and for the
shortest appropriate period of time.
Over the years, a significant number
of eo detainees have successfully won their
freedom through habeas corpus applications
but many were re-arrested immediately after
the court had released them.33 However, it is
difficult to ascertain the exact number of eo
detainees re-arrested throughout the year.
Dangerous Drugs (Special Preventive
Measures) Act 1985 (DDA)
Similar to the isa and the eo, the Dangerous
Drugs (Special Preventive Measures) Act 1985
(dda) also gives powers to the Home Minister
to hand a two-year detention order to any suspect who “has been or is associated with any
activity relating to or involving in dangerous
drugs”.34
On 6 May 2008, in response to a question in the Parliament, Home Minister Syed
Hamid Albar revealed to the Parliament that
between 2002 and March 2008, the dda has
been used against a total of 11,142 persons,
out of which 5,203 persons were given detention orders whilst another 6,019 were given
orders of restricted residence. He also said
that in the same period, the government had
released 10,311 persons, out of which 1,568
persons were given restricted residence orders
after their detention orders had lapsed.35 The
minister, however, did not specify the number
of persons detained in each specific year
during the said period. In the same parliament
proceeding, the Home Minister said that the
dda will not be repealed.36
Restrictive Residence Act and
Deportations after Release
While the three preventive laws provide the
Home Minister with arbitrary powers to
detain and arrest individuals, the Restrictive
Residence Act 1933 (rra) confers the minister
with similar discretionary powers to restrict
the movement of individuals. Under the rra,
the Home Ministry may deem it necessary
that the suspect be required to reside in a
particular district or be prohibited from entering any particular district. As with the other
detention-without-trial laws, these restrictive
residence orders may be renewed by the
minister after every two years.
31
Most detainees released from the isa,
the eo or the dda are given certain conditions before their release, including strict
restrictions on their movements under the
rra. For example, newly released detainees
are prohibited from leaving their residential
districts and are required to report to the
policeon a daily basis.
isa detainees who are foreign nationals,
on the other hand, often face deportation to
their home countries, even when a detainee’s
family resides in Malaysia. In August 2008,
four Indonesians, Shahrial Sirin, Abdullah
Minyak Silam (both alleged ji members and
detained since 2002), Zainuddin Suharno,
and Jaki Hamid (both alleged di members
and detained since 2006), were deported to
Indonesia immediately after being released
from isa detention despite having families
residing in Malaysia.
Other Forms of Restriction of
Movement
Violations of freedom of movement have also
occurred due to the abuses of state autonomy
powers of the East Malaysian states of Sabah
and Sarawak, in relation to powers over
immigration. This autonomy is derived from
an agreement signed during the formation of
Malaysia in 1963. Thus, Sabah and Sarawak
have different immigration laws from those
used in Peninsula Malaysia which provide the
two state government exclusive controls over
who can enter the two states respectively.
In recent years, the states’ autonomy
over immigration controls has been abused
by the Sarawak state government in order to
stifle dissent in the state. This was seen in the
cases of Sarawakian community leaders who
were either denied renewal of their passports
or had applications for a new one denied with
no reason given, while those from outside
Sarawak have been blacklisted and barred
from entering the state.
32
Over the years, scores of other individuals, both from Sarawak and from Peninsula
Malaysia, mainly activists working on issues
relating to Sarawak, have encountered similar
restrictions of movements. In suaram’s 2007
Human Rights Report, two such cases were
documented in that year, while many others
have been recorded since 1999.37
Despite guarantees in Article 9(1) of
the Federal Constitution that no citizen may
be banished or excluded from the country,38
the government has banned Chin Peng, the
former leader of the Communist Party of
Malaysia (cpm), from returning to Malaysia
because of his involvement in the communist insurgency from the 1940s until a peace
agreement was signed in 1989.39 Living in
exile in Thailand, Chin Peng sought to return
to Malaysia by filing a petition to the High
Court in Penang in 2005. However, the High
Court ruled that Chin Peng must submit
identification documents to prove that he was
born in Malaysia. Chin Peng filed an appeal,
and in 2008, the Court of Appeal upheld
the High Court ruling, thus forcing him to
continue to live in exile in Thailand.
In March 2008, hindraf leader
Waythamoorthy had his passport revoked by
the Malaysian government. Since the arrest
of the five hindraf leaders in December 2007,
right after they had organised a massive rally
in Kuala Lumpur, Waythamoorthy has been
living in a self-imposed exile for fear of arrest
if he returned to the country. In response to
Waythamoorthy’s allegation, Home Minister
Syed Hamid Albar claimed that the government had never revoked his passport and
that the government would not revoke the
passport of its citizen unless the person relinquished his citizenship. Syed Hamid also said
that the invalidity of Waythamoorthy’s passport was probably because it had expired.40
However, in a press statement dated 18 May
2008, Waythamoorthy provided detailed
evidence of his itinerary before his passport
became invalid, showing that his passport
only expires in the year 2010 and that the
validity of his passport was indeed cancelled
abruptly.41
Summary
Thus, despite strong calls for the repeal or
review of preventive detention laws, especially
the isa, the government maintained its position that these laws are needed to maintain
peace, stability and security of persons. This
position was reiterated several times throughout the year.
Although more releases were made in
2008 as compared to previous years, the government did not seem to indicate willingness
to either review or repeal the isa. In fact, the
government stated that it will not abolish the
isa, and a similar statement was also made
with regard to the dda. In September 2008,
the arrests of three individuals, all within a
period of 24 hours, manifest an old trend of
invoking the isa under the pretext of curbing
racial tensions. At the end of 2008, 43
individuals still remained in detention under
the isa.
The year saw no less than a Cabinet
minister resign in protest over the arbitrary
use of the isa, clearly demonstrating the
unpopularity of the Act. The physical torture
inflicted upon isa detainee Sanjeev Kumar
resulting in his partial paralysis once again
validated the many testimonies of torture
and other cruel, inhuman, and degrading
treatment suffered by victims of the three
detention-without-trial laws.
33
34
35
End notes
1
2
“Government decides to retain isa
without any amendment”, Bernama, 15
May 2008, http://www.bernama.com/
bernama/v5/newsindex.php?id=333095
(last accessed: 15 June 2009).
3
Syed Hamid Albar, 6 May 2008, First
Meeting of the First Session of the Twelfth
Parliament, Hansard, DR.6.5.2008 (p. 13)
http://www.parlimen.gov.my/hindex/
pdf/DR-06052008.pdf (last accessed 27
November 2008).
4
suhakam (2003) Review of the Internal Security Act 1960, Kuala Lumpur: suhakam (p.
86).
5
Ibid. (p. 88).
6
Ibid. (pp. 90-91).
7
“Syed Hamid: Suhakam’s isa review call’s
perspective not wide enough”, The Star,
13 December 2008, http://thestar.com.
my/news/story.asp?file=/2008/12/13/
nation/20081213150553&sec=nation
8
9
36
Malaysia
(2006)
“Aide-Memoire;
Malaysia’s Candidature to the United
Nations Human Rights Council”, dated
28 April 2006 (p. 1).
Article 5(3) of the Federal Constitution
states, “Where a person is arrested he
shall be informed as soon as may be of
the grounds of his arrest and shall be
allowed to consult and be defended by a
legal practitioner of his choice”.
“Zaid wants isa to be used specifically
for terrorists, communist subversives”,
Bernama, 14 September 2008, http://
www.bernama.com/bernama/v5/newsindex.php?id=359051 (last accessed: 15
June 2009).
10 Zaid Ibrahim’s letter to the Prime
Minister of Malaysia, dated 29 September
2008, published in The Star, 30 September
2008, http://thestar.com.my/news/story.
asp?file=/2008/9/30/nation/2008093
0173730&sec=nation (last accessed: 15
June 2009).
11 Cited in suaram (2008) Malaysia Human
Rights Report 2007: Civil and Political Rights,
Petaling Jaya: suaram (p. 8).
12 “Internal Security Act to stay for now, says
Syed Hamid”, Sunday Star, 21 September
2008.
13 Malaysia (2008) National Report
Submittedin Accordance with Paragraph
15(A) of the Annex to Human Rights
Council Resolution 5/1, “Malaysia”,
Human Rights Council Working Group
on the Universal Periodic Review, Fourth
Session, Geneva, 2-13 February 2009, A/
HRC/WG.6/4/MYS/1/Rev.1 [dated 19
November 2008] (p. 14, para 80-81)..
14 ”Najib: isa has protected country from
terrorism”, New Straits Times, 2 December
2008.
15 “Semua anggota kmm, ji dibebaskan” [All
kmm, ji members released], Utusan Malaysia, 21 October 2006.
16 The ltte is a Tamil nationalist organisation that has fought for a separate state
from Sri Lanka. ltte has been declared
a “terrorist” group in the United States.
17 “Hindraf ‘has links with Tigers’,” New
Straits Times, 8 December 2007.
18 “igp says detention of hindraf leaders
under isa necessary,” New Straits Times, 15
December 2007.
of Crime) Ordinance 1969 (Ordinance
5, 1969), promulgated by the Yang di-
Pertuan Agong under Article 150(2) of
the Constitution.
19 Ibid.
20 See, for instance, suaram’s Human Rights
Reports of 1998, 1999, 2000, 2001, 2002,
2003, 2004, 2005, 2006, and 2007. Other
publicly available accounts of former isa
detainees include Syed Husin Ali (1996)
Two Faces: Detention without Trial, Kuala
Lumpur: insan; Kua Kia Soong (1999)
445 Days Under Operation Lalang: An Account
of the 1987 isa Detentions, Kuala Lumpur:
Oriengroup; and Koh Swe Yong (2004)
Malaysia: 45 Years Under the Internal Security
Act, Petaling Jaya: sird.
28 Royal Commission to Enhance the
Management and Operations of the
Royal Malaysia Police (2005) Laporan
Suruhanjaya Diraja Penambahbaikan Perjalanan
dan Pengurusan Polis Diraja Malaysia [Report
of the Commission to Enhance the
Management and Operations of the
Royal Malaysia Police]. Kuala Lumpur.
(p. 343).
29 Emergency (Public Order and Prevention
of Crime) Ordinance 1969, Section 4(1).
30 Interview with a newly-released eo
detainee, 1 April 2009. See also “Youths
held without trial in Simpang Renggam”,
Malaysiakini, 27 February 2007, http://
22 Observatory for the Protection of
www.malaysiakini.com/news/63806 (last
Human Rights Defenders (2008) Malaysia
accessed: 20 April 2009).
– Mortgaging freedom for Security: Arbitrary
detention of five hindraf leaders, Paris & Ge- 31 See for instance, Human Rights Watch
neva: FIDH & OMCT (p. 12).
(2006) Convicted before Trial: Indefinite Detention under Malaysia’s Emergency Ordinance, Vol.
23 Ibid.
18, No. 9(C). New York: Human Rights
Watch (pp. 28-30).
24 Manoharan a/l Malayalam v. Menteri
Keselamatan Negeri, Malaysia & 32 Adopted and opened for signature, ratification and accession by United Nations
Penguasa, Tempat Tahanan Perlindungan
General Assembly resolution 44/25 of 20
Taiping, Perak, High Court of Malaya
November 1989.
(Criminal Applications no. 44-87-2007).
21 Teresa Kok, Press statement, dated 19
September 2009.
25 Adopted and opened for signature, ratification and accession by United Nations
December 1984.
26 “RM2.5m for ex-detainee,” The Sun, 19
October 2007.
33 See for instance, suaram (2007) Malaysia
Human Rights Report 2006. Petaling Jaya:
suaram (pp. 21-22).
34 Section 6(1) Dangerous Drugs (Special
Preventive Measures) Act 1985 (Act 316).
35 Syed Hamid Albar, 6 May 2008, op. cit.
27 Emergency (Public Order and Prevention
37
36 Ibid. (p. 14).
37 See suaram (2008) op. cit. (pp. 110-113).
38 Article 9(1) of the Federal Constitution
states, “No citizen shall be banished or excluded
from the Federation.”
39 The Haadyai Agreement 1989 stipulated
that the cpm would disband all armed
units, terminate all armed activities,
and destroy all weapons and landmines
placed in Malaysia. The agreement also
stated that cpm members who wanted to
re-establish legal residence in Malaysia
could do so after spending at least 6 months
in pre-designated places in Thailand.
Those taking residence in Malaysia would
have to swear allegiance to the King and
abide by the Federal Constitution and
laws of Malaysia.
40 “Hindraf leader ‘still has passport’”, The
Star, 17 May 2008.
41 Waythamoorthy, Press statement, “Home
Minister lied to cover up the bungle of
Government”, dated 18 May 2008.
38
chapter 2:
ABUSE OF POWERS BY
THE MALAYSIAN
POLICE AND OTHER
LAW ENFORCEMENT
AGENCIES
T
he
Royal Malaysian Police Recommendations for Police Reforms
has been known for its non-compliance with international human
rights standards and in using unacceptable
levels of violence in apprehending and investigating alleged criminals. This can be
attributed to the Malaysian government’s
disregard for international human rights law
and standards, demonstrated by its refusal
to ratify the United Nations Convention
against Torture and Other Cruel, Inhuman
and Degrading Treatment and Punishment
(cat).1 The Malaysian government has also
abstained from voting on the Optional
Protocol to the cat2 that would allow human
rights experts to regularly monitor conditions
of detention.
This situation is compounded by the fact
that the government has consistently failed to
discipline the police for their human rights
violations. Despite numerous recommendations made for police reforms, including by
commissions set up by the government, these
have been ignored. They include the proposal
to set up the Independent Police Complaints
and Misconduct Commission (ipcmc), more
than three years after the recommendation
was made. As a result of this, serious human
rights violations continue to be committed by
the police with increasing impunity in 2008.
The year saw many individuals and
groups – ranging from activists and political
parties to the general public and criminal
suspects – being subjected to threats, harassment, arbitrary arrests, detentions, violence
and brutality. Deaths in police custody continue to be unacceptably high; numbering 13
cases in 2008 and usually attributed to various
diseases. There were also at least 44 deaths by
police shooting in 2008. These were justified
by the police as self-defence shootings. Meanwhile, there were numerous complaints of
violent police reactions to peaceful assemblies,
the arbitrary detention of protestors, abuse
and torture of detainees throughout the year.
40
In 2004, the Royal Commission to Enhance
the Management and Operations of the
Police Force (Royal Police Commission) was
formed with the primary objective to make
recommendations to modernise the force,
improve its service and efficiency, eliminate corruption and police brutality, and
restore public confidence in the police. The
Commission pinpointed three priorities for
reform of the police force – reduce crime,
eradicate corruption, and end human rights
abuses.
In its report submitted to the King in
April 2005, the Commission revealed that
the public was generally dissatisfied with a
number of key areas. These included police
inaction or delays in taking action on reports
lodged, the level of corruption within the
force, its inefficiency and lack of accountabi
lity, poor service (such as refusal to take police
reports, rude responses to complainants who
are illiterate or are not able to write in Malay,
insensitivity towards feelings of victims of a
crime, etc.), and the officers’ abuse of power.3
The Commission concluded that “at all levels
in pdrm [the Royal Malaysian Police], the
corruption awareness is significantly low,
in particular, among the rank and file.”4
With reference to the abuse of power, the
Commission raised concerns about the long
detention and “chain-smoking remand” of
suspects; the issuance of threats and extortion of money from people, particularly from
migrant workers; and acts of inhumanity,
torture and degradation carried out by police
personnel during interrogation.5
Government’s Response
On 12 April 2007, in a parliamentary written
reply to Opposition member of parliament
Wan Azizah Wan Ismail, Prime Miniser
bdullah Badawi said that the government
A
had implemented 69 of the 125 recommendations of the Royal Police Commission while
another 23 were in the process of implementation. However, the Prime Minister did not
specify which recommendations had been implemented.6
In September 2007, several much-
anticipated changes to the Criminal Procedure
Code that strengthen the rights of criminal
suspects were brought into force. These
amendments were based on proposals made
by a Parliamentary Select Committee on
the Penal Code and the Criminal Procedure
Code in 2006. Among the key changes to the
Criminal Procedure Code were:7
•
•
•
A new Section 28A, which require an
arresting officer to inform a detainee of
the reason for his/her arrest and enable
the suspect to contact his/her lawyer or
family free of charge within 24 hours of
arrest.
Amendments to Section 117 of the
Criminal Procedure Code limit the
period the police may hold a person for
investigations and reduce the powers of
the Magistrate to order further detentions. For offences punishable by less than
14 years of imprisonment, the maximum
period is four days during the first detention and three days during the second
detention. For offences punishable by
imprisonment of 14 years or more, the
maximum period is seven days during the
first detention and seven days during the
second detention.
Statements of suspects taken by police
under Section 113 of the Criminal
Procedure Code, often obtained by
way of coercion and torture instead of
professional investigation, have been
made inadmissible in court as evidence,
while the new Third Schedule of the
Criminal Procedure Code sets out
etailed guidelines for body searches by
d
the police or any law enforcement agencies.
However, many other recommendations
relating to human rights protection, especially
those found in Chapter 10 of the Royal Police
Commission report have generally either not
been implemented or not fully implemented.
In 2008, no progress was made with
regards to the recommendations of the Royal
Police Commission. Some of the major
recommendations still unimplemented are:
i. The Independent Police Complaints Misconduct
Commission (ipcmc)
The Royal Police Commission had drafted
a 104-clause for the ipcmc and set May
2006 as the deadline for its establishment.
In November 2007, it was reported that the
draft bill for the setting up of the ipcmc was
being streamlined by the Attorney-General’s
Chambers based on feedback and views from
various quarters and agencies. In November
2007, Minister in the Prime Minister’s
Department Nazri Abdul Aziz said that the
bill would be tabled during the then-ongoing
Parliament sitting.8 By 31 December 2007,
the establishment of the ipcmc was already
more than one and a half years past its deadline set by the Royal Police Commission, with
no signs of it being set up by the government.
Instead of an ipcmc Bill, a Special
Complaints Commission (scc) Bill9 was
proposed by the government in December
2007. The proposed scc Bill was opposed by
civil society groups10 as it was seen as a much
watered-down version of the ipcmc proposed
by the Royal Police Commission.11 The bill of
the newly-proposed complaints mechanism
was also criticised by the chairman of the
Royal Police Commission, who claimed that
it was a major departure from the recommen-
41
dations made by the Commission in 2005.
Mohamed Dzaiddin Abdullah, who headed
the Royal Police Commission, in response to
the scc Bill, said that the government “did
not accept the core recommendation of an
independent oversight body.”12
While the draft ipcmc bill proposed by
the Royal Police Commission was intended
to address the inadequacy and ineffectiveness
of the internal mechanisms in the police
force which failed to ensure supervision and
command accountability in protecting the
rights and the interests of the public, the
proposed scc instead, places three permanent members, namely the Inspector-General
of Police (igp), the Director-General of the
Public Complaints Bureau, and the DirectorGeneral of the Anti-Corruption Agency (aca)
in the oversight governance structure. As
this commission is aimed at dealing with the
misconduct and abuse of powers by enforce
ment agencies officers, the composition of
members from the very same enforcement
agencies in the proposed commission seriously
undermines the independence of this body.
The definition of “misconduct” in the
scc bill is also problematic in that it does not
explicitly include corruption, a major problem
in the country that has led to serious human
rights violations and impunity. In recent
years, a number of allegations of high-level
corruption in the police force have surfaced,
involving no less than the top-ranked and
third highest-ranked police officers (in 2007).
In the Royal Police Commission-proposed
ipcmc, corruption is clearly spelt out in the
scope of police misconduct. Besides these
deficiencies of the scc Bill, the proposed
commission has no powers to conduct independent investigations into the police force as
submissions will be redirected to the police to
investigate complaints received.
After the first reading of the bill in the
Parliament, the scheduled debate on the bill
on 18 December 2007 was deferred. As of
42
31 December 2008, there were no further
developments on the setting up of the ipcmc.
ii. Preventive Laws
Also of concern to the Royal Police Commission is the existence of a range of preventive
legislations that restrict fundamental liberties
and abuse the safeguards provided for human
rights. The Royal Police Commission therefore recommended:
•
•
•
•
•
Internal Security Act 1960 to allow a
detained person to be produced before
a magistrate within 24 hours and to be
allowed access to family and lawyers and
to limit the detention period to a maximum of 30 days.
Dangerous Drugs (Special Preventive
Measures) Act 1985 to allow a detained
person to be produced before a magistrate
within 24 hours and be allowed access
to family and lawyers. The Commission
also recommends limiting the detention
period to a maximum of 30 days.
The repeal of the Restricted Residence
Act 1933 that allows preventive detention of suspected criminals in a specific
residential area that may extend up to the
lifetime of a person.
The repeal of the Emergency (Public
Order and Prevention of Crime)
Ordinance1969.
The partial repeal the Prevention of
Crime Act 1959.
As of 31 December 2008, none of these
recommendations had been implemented,
despite growing calls for the repeal of preventive laws. (See Chapter 1: Detention without Trial.)
iii. Section 27 of the Police Act
Another important recommendation of the
Royal Police Commission is the amendment
to Section 27 of the Police Act 1967, which
requires the obtaining of a police permit to
organise gatherings. In its report, the Royal
Police Commission recommended, inter alia,
the repeal of Sections 27A, 27B and 27C of
the Police Act,13 which means that the police
cannot stop or disrupt assemblies or gatherings in private premises. However, at the end
of 2008, these sections of the Police Act were
still in place. Several ceramah (public gathering
involving political speeches) throughout the
year, held on private premises, were disrupted
by the police.
The
report
also
acknowledges
the fact that freedom of assembly is a
fundamental right guaranteed by the Federal
Constitution.14 Furthermore, the Human
Rights Commission of Malaysia (suhakam)
also made recommendations in its “Report
of suhakam Public Inquiry into the Incident at klcc on 28 May 2006”, stating that
“peaceful assemblies should be allowed without a licence”.15 However, throughout 2008,
public gatherings continued to be clamped
down because groups did not have police
permits. (See Chapter 5: Freedom of Assembly and
Association.)
iv. Code of Practice for Arrest and Detention
A set of “Principles and Code of Practice
Relating to the Arrest and Detention of
Persons” was proposed by the Royal Police
Commission to prevent torture and abuse
of detainees. In the commission’s proposal,
an independent Custody Officer shall be
responsible for the welfare and custody of
every detainee, procedures for police interview including tape recordings, video surveillance and access to lawyers. Failure to comply
with this code, as emphasised by the commission, should be subject to disciplinary actions.
However, as of 31 December 2008, there has
been no information on the adoption and
implementation of this recommendation.
v. Deaths in Police Custody
The Royal Police Commission also made
recommendations relating to deaths in police
custody. The Commission recommended that
for every case of death in police custody, the
police must submit a report of studden death
within one week, and an inquest must be held
within one month. However, inquests into
cases of death in custody have been extremely
slow, with several long overdue cases still
pending in the courts.
In addition to the recommendations
by the Royal Police Commission, the
ParliamentarySelect Committee on the Penal
Code and the Criminal Procedure Code, in its
2006 report, also recommended the legislation
of a Coroner’s Act with a view of establishing a Coroner’s Court and improving the
procedures for inquests into deaths in police
custody.16 This, too, had not been implemen
ted as of December 2008.
Deaths in Prisons and Police Custody:
Recent Official Statistics
A number of official statistics have been
released by the government on different occasions in the past few years.17 However, it has to
be highlighted that the government’s statistics
on deaths in prisons and in police custody are
unreliable.18
On 3 March 2009, the Home Minister,
in a parliamentary written reply, said that
there were 153 cases of death in police
custody in the period between 1999 and 2008.
The minister, however, did not provide the
43
breakdown of cases for each year in the said
period.19
Earlier, on 8 July 2008, the Home
Minister had released statistics on deaths in
police custody and prisons. According to the
Home Ministry, there were 1,535 cases of
deaths in prisons, rehabilitation centres, and
immigration detention centres in the period
between 2003 and 2007, while 85 cases of
deaths in police custody were recorded in
official statistics in the same period.20
In April 2007, the government revealed
that there were 14 deaths under police
custody in 2006. In the parliamentary reply
by the Internal Security Ministry, 108 deaths
occurred under police custody between 2000
and 2006. From that figure, 7 died in 2000, 16
in 2001, 15 in 2002, 23 in 2003, 19 in 2004,
and 14 each in 2005 and 2006 respectively.21
Meanwhile, in March 2007, the government revealed that there had been 95 deaths
in the Simpang Renggam detention centre
in Johor from 2000 to March 2007. Out of
the total number, 77 people died of HIV,
followed by poor health (16), suicide (1) and
electrocution (1).22 The Simpang Renggam
detention centre houses remand prisoners,
and Emergency Ordinance and Dangerous
Drugs Act detainees.
Deaths in Police Custody, 2008
According to official government statistics,
there were 13 deaths in police custody in
2008.23 Not all cases were reported in the
media. The cases documented by suaram
through media monitoring in 2008 were:
i. Goh Yan Peaw
Detained: 9 January 2008
Died: 20 January 2008, Segamat police lockup
According to a news report in Sin Chew Daily,24
Goh Yan Peaw was arrested together with his
wife and brother by the police on 9 January
44
2008 at their house in Segamat. They were
held under the Emergency Ordinance for
allegedly hiding drugs, bombs, porno tapes
and fireworks. Goh was sent to Johor police
headquarters for investigation the next day after his arrest. On 16 January, he was brought
to the magistrate’s court in Segamat, which
granted the police a remand order of seven
days for Goh Yan Peaw.
According to Segamat ocpd Abdul
Majid,Goh was brought back to the Segamat
police lock-up on 19 January 2008. At about
4.00am in the morning, Goh was found unconscious in the detention cell and died after
he was sent to hospital. The police told the
family that Goh had died from a fall in toilet.
However, Goh’s mother showed a
medical certificate which indicated the result
of a recently completed medical check-up of
Goh, certifying that he was in good health.
Goh’s wife, who last met her husband when
they were brought to the Segamat Magistrate’s
court for remand application, said that she
found Goh to have lost a lot of weight, his face
was pale, his lips were in light purple color
and his eyes seemed to have swelled.
ii. Kamarul Ariffin
Detained: 8 July 2008
Died: 13 July 2008, Tanah Merah Police
Headquarters Lockup
Arrested on 8 July 2008 and remanded for
further investigation under Section 3(1)
of the Drug Dependants (Treatment and
Rehabilitation) Act for his alleged involvement
in drug-related activities. On 11 July 2008,
he was taken to Tanah Merah Hospital for
a medical examination after he complained
of pain and cramps and was then brought
back to the police lockup. He fell unconscious
at about 7.50am on 13 July 2008 and was
confirmed dead one hour later by the doctor.25
towel tied to a beam at the prison clinic. State
Criminal Investigation Department chief sac
ii Abdul Samah Mat said that Ong was still
alive when wardens found him. They tried
to revive him by applying cardio pulmonary
resuscitation but he died shortly afterwards.
Burhanuddin Sulaiman was a former Royal The police also claimed that Ong had
Malaysian Air Force lieutenant-colonel, suffered from depression, and often cried
arrested for sexually molesting a 17 year- while being kept in solitary confinement,
old girl. He was arrested and detained at especially during the last few days before his
the Ampang Jaya District Police Station on death.29
1 September 2008 at about 12pm. At about
7pm on the same day, he was found lying on ii. Uthayachandran A/L Gaur
the floor and was pronounced dead by para- Chandran
medics who arrived about 10 minutes later. Died: 18 May 2008, Sungai Buloh Prison
The first post mortem revealed that he had
Uthayachandran, detained since 2005 in the
suffered a heart attack.26
Sungai Buloh Prison pending trial for a drugrelated offence, died on 18 May 2008 after
iv. Suria Ramesh
he was severely beaten up by fellow inmates.
Detained: 20 November 2008, Kulim
Died: 22 November 2008, Kota Setar District Police Another inmate was reported to have
sustained injuries in the same incident.
Headquarters
According to the police chief of Selangor,
Suria Ramesh was arrested in Kulim in Khalid Abu Bakar, Uthayachandran susconnection to several alleged robbery cases. tained severe injuries to his neck and was
The police claimed that he committed pronounced dead when he was sent to the
Sungai Buloh Hospital.30
suicide.27
Uthayachandran’s father claimed that
the deceased had made several requests to
be transferred to another cell block before he
Deaths in Prisons
died as he was threatened by fellow inmates.
The government also disclosed a total of These requests, according to his father, were
255 cases of deaths in prisons in 2008.28 Of denied. The deceased’s family also claimed
these, the following cases were documented that Uthayachandran was not given any
medical attention before he was brought to the
by SUARAM:
hospital.31 However, this claim was dismissed
as “baseless” by Sungai Buloh Prison Director
i. Ong Chee Leong
Narander Singh. According to Narander
Detained: 8 July 2007
Singh, no such request was recorded by the
Died: 18 January 2008, Penang Prison in-house
prison authorities.32
clinic
On 31 July 2008, eight Sungai Buloh
Ong Chee Leong was arrested on 8 July 2007 Prison inmates were charged with the murder
and had been in detention in the Penang of Uthayachandran under the Penal Code.33
Prison since he was charged with the murder
of a girl. He was found dead hanging from a
iii. Burhanuddin Sulaiman
Detained: 1 September 2008, Ampang Jaya District
Police Station
Died: 1 September 2008, Ampang Jaya District
Police Station
45
cases. She said this after quoting the Royal
Commission’s above findings. She also highlighted that although in 39 out of 80 cases the
Sudden Death Report (sdr) was prepared and
Kee was arrested by police for alleged involve- submitted to the magistrate in April 2004,
ment in kidnapping and causing the death of inquests had not yet been initiated.37
his brother-in-law. Kee was on trial, his case In a parliamentary written reply from
was scheduled to resume in the courts on 23 the Internal Security Ministry (now known
June 2008 but he was found unconscious at as the Home Ministry) on 23 April 2007 to a
about 10am (19 May 2008) in his cell and question on the number of inquests held over
was pronounced dead when he was rushed to the cases of deaths in custody from 2000 to
the Sungai Buloh Hospital. According to his 2006, the exact number of inquests was not
familymembers, Kee was kept in a dark room stated. The reply merely stated that all deaths
in custody are investigated.38 Inquests into
from March 2008 until his death.34
deaths in police custody generally take a long
time to resolve with many long overdue cases
iv. Chai Hong Yik
still pending in the courts.
Detained: 24 September 2007
An illustration of the slow progress
Died: 3 June 2008, Sungai Buloh Prison
of inquests can be seen in the case of
Chai Hong Yik was arrested on 24 September Ulaganathan Muniandy who died in police
2007 in connection with the murder of two custody in 2003. Ulagantahan (19 years old
single women. He was charged on 8 October at the time of his death), was held in the
2007 and awaiting trial. He was found uncons KajangPolice Station, initially under Section
cious at about 9am (3 June 2008) by a warden 302 of the Penal Code and later under the
and pronounced dead when he reached the Emergency Ordinance, from 12 May 2003
hospital. Early post mortem report concluded until his death on 21 July 2003. The cause
that the deceased had suffered from a heart of Ulaganathan’s death was classified as “undetermined” by medical authorities at the
attack.35
Kajang Hospital.39 According to his mother,
in her three visits to him in the month of May
2003, she found several bruises on UlagaInquests into Cases of Deaths in
nathan’s body, including swollen eyes, bruises
Police Custody
in the region of the eyes and swellings on
In 2005, the Royal Police Commission report the legs. He was also said to have lost a lot
noted the deaths of 80 persons while in police of weight. The last time he was visited by his
custody between 2000 and 2004. However, mother on 11 July 2003, Ulaganathan was
only six inquests have been carried out at the unable to sit while eating, and his eyes were
time of the publication of the Royal Police still swollen. In March 2006, suaram was
informed that an inquest was to be held
Commission report.36
In April 2006, the then-Chief Judge of into this case of death in custody. However,
Malaya, Siti Norma Yaakob, questioned the since then, neither the family members of
decision by deputy public prosecutors and the deceased nor suaram have been notified
magistrates not to have inquests for 22 deaths of further developments on the case. Finally,
whilst in police custody between 2000 and in October 2007, it was discovered that the
2004 when the law made it mandatory in such inquest into Ulaganathan’s death had already
iii. Kee Lian Kok
Detained: May 2006
Died: 19 May 2008, Sungai Buloh Prison
46
been postponed six times.
In 2008, the inquest into Ulaganathan’s
death was only heard for one day, on 21 July
2008, before being postponed again for the
9th time, to 25 September 2008. As of 31
December 2008, more than five years after
his death, the inquest has yet to be completed.
Ulaganathan’s case underscores two
major problems pertaining to the conduct of
inquests on cases of death in police custody:
•
•
Inquests into cases of deaths in custody
are extremely slow. Ulaganathan’s case is
but one of many which have been postponed for several years.
In many cases, family members are not
notified of the commencement and postponement of inquests. Thus, many other
cases may have had inquests conducted
without the knowledge of the family
members concerned.
However, on 29 July 2008, the family
of Ulaganathan won its civil suit against the
police, two years after filing the suit before the
Kuala Lumpur High Court. In its judgement,
the High Court Judge ruled that the death of
Ulaganathan was caused by the unlawful acts
and negligence of the police. The judge also
ruled that the police had breached its statutory duties in Ulaganathan’s death. However,
the Attorney-General’s Chambers has filed an
appeal on the judgement. As of 31 December
2008, the appeal has yet to be heard in the
Court of Appeal.
required for the performance of their duty.”40
(Emphasis added) Whereas principle 9 of the
United Nations Basic Principles on the Use
of Force and Firearms by Law Enforcement
Officials states:
“Law enforcement officials shall not use
firearms against persons except in selfdefence or defence of others against the
imminent threat of death or serious threat to
life […] In any event, intentional lethal use of
firearms may only be made when strictly
unavoidable in order to protect life.”41
(Emphasis added)
However, the Malaysian police have
tended to be “trigger-happy”42 with minimal
regard to these international standards. In
2008, there were at least 44 deaths by police
shootings reported in the media. There may
well be many more cases of deaths by police
shootings which were unreported. However,
no official statistics on this was made available by the government in 2008. The cases
reported in the media documented by suaram
in 2008 were:
•
Deaths by Police Shootings
International law clearly stipulates the basic
criteria for the use of arms. For instance, in •
the United Nations Code of Conduct for
Law Enforcement Officials it is stated, “Law
enforcement officials may use force only
when strictly necessary and to the extent
On 1 January 2008, a 26-year old man
allegedly involved in a drug syndicate was
shot dead by the police during a special
police operation at a car park in Cheras,
Kuala Lumpur. According to the police,
the man had fired a few shots at the police
when they arrested a member of the
syndicate before trying to flee in his car. A
police patrol car then gave chase and fired
several shots at the car, hitting the 26year old man who lost control of the car
and eventually succumbed to injuries.43
On 26 February 2008, English-language
daily The Star reported that the police
had shot dead three members of a
gang, two of whom were Indonesians,
who had just robbed a bank customer
47
in Kelana Jaya, Selangor. After a chase
by the police, the robbers reportedly got out of their car and attacked
the police with parangs (machete).44
•
•
•
•
48
On 2 May 2008, a murder suspect,
Muhisbudin Isumumin, a 42-year old
from Acheh, Indonesia, was shot dead
by the police. According to a news
report, the police had raided a location in Kuala Lumpur after detecting •
seven suspects of the murder case but
Muhsibudin slipped through the police
cordon. The police then trailed him for
several minutes and a shootout erupted,
resulting in the suspect being shot dead.
It was also reported that the police
had seized two semi-automatic pistols
and a revolver during the operation.45
On 16 June 2008, the police shot dead four
foreigners, believed to be Indonesians,
near a toll plaza in Simpang Pulai, Perak,
after they had robbed a family. The police
claimed that the four had opened fire at
the police who were approaching them.46
On 17 July 2008, a suspected car thief
was shot dead by the police. Trying to
flee from the police with a stolen police
car, the suspect rammed into 30 vehicles
before he tried to attack the police with
a sickle. The police then shot the man
several times and he died on the spot.47
On 5 August 2008, a Liberian national,
suspected to be involved in a money scam
was shot dead while attempting to attack
policemen with a parang. He, together with
two other accomplices, were wanted by
the police for a string of money scams in
Puchong, Kuala Lumpur, after the police
had received at least five reports in the
past six months from several businessmen
who were duped. A team of police officers
confronted them after they were reported
to be spotted outside a workshop in Kampung Baru Puchong, Kuala Lumpur.
When faced by the team of policemen,
the deceased reportedly attacked the
policemen with a parang, resulting in him
being shot twice. The police claimed
that they had fired a warning shot
but he had lunged at the policemen.48
On 26 August 2008, two foreigners,
suspected for robbery in the states of
Selangor and Negri Sembilan were shot
dead by the police in Serendah, Selangor.
The police claimed that they had flagged
down the vehicles and identified themselves but the two men had rushed out
from the van and charged at the policemen
with a parang and a sickle. The police then
opened fire, killing the two on the spot.49
•
On 2 September 2008, four men, suspected to have planned a robbery at a petrol
station, were killed in a shootout with the
police in Shah Alam, Selangor. It was
reported that the suspects had fired three
shots at the police when they were approached, and the police had returned fire.
Two other suspects managed to escape.
The police said that the four persons
killed had previous criminal records.50
•
On 3 September 2008, The Star reported
two men shot dead by the police at a
petrol station along the North-South
Expressway near Bukit Kayu Hitam,
Kedah. The men, aged 29 and 25,
reportedly fired shots at two teams of
policemen when they were stopped
by the policemen. The police claimed
that the two were on the wanted list
for various criminal activities, including robbery, murder and kidnapping.51
•
On 24 September 2008, police in the
East Malaysian state of Sarawak shot
dead three Indonesians who were
suspected of carrying out several armed
robberies during an operation near
Kuching. It was reported that the police
opened fire after one of the men pulled
out a pistol and charged at them during a raid launched after a public tip-off.
According to the police, they seized a
pistol, 10 bullets, two parangs, a knife, a
screwdriver and a face mask from them.52
•
On 26 October 2008, an armed man,
identified as Lim Chee Hiong, suspected
to have robbed three chefs at a restaurant
and a house, was shot dead by the police
in Bandar Seri Alam, Johor. He was killed
on the spot by the police who fired several shots at him when he attempted to
attack a 49-year-old female chef whom
he had stabbed in the hand and leg despite a police warning to surrender.53
•
On 4 November 2008, a suspected
criminal high on the wanted list of the
police was killed in a shootout with police
near Klang, Selangor. The man, in his
20s, was shot dead as he was about to
get into a car after leaving a computer
shop. According to the police, a team of
patrolling policemen approached him
and asked to check his identity card,
but he had opened fire at them instead.
State deputy police chief Senior Asst
Comm I Jamshah Mustafa said the
policemen were forced to retaliate.54
•
On 5 November 2008, the police shot
to death two Indonesians suspected
to be professional assassins in a shootout. The two Indonesians, identified
as Mat Shaari and Andi, were believed
to have killed a few other Indonesians
on orders from fellow countrymen.55
•
On 16 November 2008, four Indonesians wanted by the police for suspected
involvement in 24 armed robberies in
Negri Sembilan, Melaka and Selangor
were shot dead by the police. The police
claimed that the Indonesians were fleeing
in their car from a pursuing police team
after committing a robbery. They allegedly attempted to attack the police after
their car was cornered by the police.56
•
On 30 November 2008, a suspect in
the theft of several luxury cars was shot
to death in a standoff with police in
Larkin, Johor. He was reported to have
been shot dead when he tried to run over
several policemen while evading arrest.
According to a news report, the suspect
hit a policeman’s motorcycle and a police
car, forcing the police to open fire.57
•
On 18 December 2008, Indonesian
newspaper Jakarta Post reported that four
men, two of whom were believed to be
Indonesians, were shot dead by the police.
The other two were local residents. The
four, aged between 30 and 40 years, were
suspected members of a robbery gang.
They were suspected to have broken
into houses and tied up residents before
stealing their valuables. According to
the same news report, in the previous
week, four Indonesians were killed in a
shootout with the police in Sarawak.
Police said they found firearms, knives
and wire-cutters in a car which the men
had driven to the Malaysian border.58
•
On 4 December 2008, the police killed
five suspected armed robbers in a shootout after a high-speed car chase from
Petra Jaya to Samarahan in Sarawak.
According to the police, the policemen
returned fire when one of the armed
men started shooting after their car was
49
blocked by police patrol cars. The second suspect, armed with a shotgun, also
fired at the policemen while the other
three tried to attack them with machetes
and a knife. The police claimed that the
gang was involved in 38 robberies in the
Kuching and Samarahan districts since
July 2008.59
In many of the cases, the circumstances
of police shootings indicate that the police
do not try to apprehend suspects but rather,
shoot to kill. In virtually all cases of shooting
deaths, the police claim that the suspects were
armed and dangerous, and that returning fire
was necessary. However, a closer examination would reveal that a large number of the
suspects shot dead by the police were merely
armed with parangs and knives. These cases
are in clear contravention of the principles of
restraint and proportionality in the international standards on the use of firearms by law
enforcement officers. Principles 5(a) and (b) of
the United Nations Code of Conduct for Law
Enforcement Officials clearly state that whenever the lawful use of force and firearms is
unavoidable, law enforcement officials shall:60
9, law enforcement officials shall identify
themselves as such and give a clear warning
of their intent to use firearms, with sufficient
time for warning to be observed […].”61
Other Cases of Abuse of Powers by
the Police, 2008
i. Police Crackdown
Assemblies
on
Peaceful
Police violence and brutality were seen in a
number of assemblies held in 2008. Police
intolerance towards peaceful assemblies was
demonstrated by numerous arrests made by
the police with reports and accounts of police
violence, either when making arrests or when
dispersing the crowds. Several cases where
injuries were caused by police violence during
assemblies were recorded in the crackdown
on peaceful assemblies in 2008. The year also
saw, on at least two separate occasions, minors
being arrested and detained by the police for
attending assemblies.
Protest against Price Hikes in klcc
On 26 January 2008, in a protest against
• Exercise restraint in such use and act in price hikes, 47 persons were arrested by the
proportion to the seriousness of the of- police. The police had declared the rally
fence and the legitimate objective to be illegal and obtained a court order on 25
achieved.
January2008, banning five people from being
• Minimise damage and injury, and respect within a one-kilometre radius of the venue,
and preserve human life.
Kuala Lumpur City Centre (klcc). About
200 police personnel were present within the
Furthermore, in many cases, the police vicinity of the protest venue. Even before the
were not reported to have observed sufficient protest had actually started at about 2pm, five
warning before firing shots at criminal women and four men were picked up at a train
suspects. This practice goes against the inter- station near the protest venue and brought to
national standards on the use of firearms by the Kuala Lumpur police contingent headlaw enforcement officers, as outlined in the quarters for questioning in connection with
United Nations Code of Conduct for Law the rally. Those picked up included a leader
Enforcement Officials:
of the women’s wing of the Pan-Malaysian
Islamic Party (pas) Aiman Athirah Al-Jundi
“In circumstances provided under principle and the Secretary-General of the Socialist
50
Party of Malaysia (psm) S. Arutchelvan.
Before he was arrested, he was shown a
copy of the court order by one of the police
officers.
At the venue of the protest, about 100
protestors were stopped by a barrier of police
officers as they attempted to march towards
klcc from a nearby area. This resulted in a
scuffle between the protestors and the police,
resulting in one woman sustaining injuries
to her shoulder after being struck during the
pushing and shoving. At one point, Dang
Wangi ocpd Zulkarnain Abdul Rahman was
heard shouting orders to the police officers,
“Drag them back into the trucks! They were
rough against us, be rough against them.”62
Of the 47 arrested by the police, 12
were released on the same day, while the
remaining 35 were charged at the Kuala
Lumpur Sessions Court on 28 January 2008
with taking part in an illegal assembly. Among
those arrested and charged was Malaysiakini
journalist, Syed Jaymal Zahiid, who claimed
that he was punched on the head and had his
hair pulled by the police during his arrest. He
lodged a police report after his arrest.
hours, while suaram’s Lau and Teh were
etained overnight after being remanded
d
for one day for unruly conduct at the police
station.
The seven, released on police bail,
claimed that the police had abused their
power and acted against police procedures
as they had to extend their police bail on two
occasions: They were released on two-week
bail in stages on 11 May 2008 and 12 May
2008 respectively; they were then told their
bail had been extended for another week
when their previous bail expired on 23
May 2008. On 29 May 2008, however, they
were told that their bail was to be extended
yet again by another two weeks. The seven
denounced the delay by the police in
investigating their case and suggested that the
authorities were using scare tactics to hinder
the anti-isa protest. The twice-extended
bail was also criticised as a waste of public
resources by the police.63 As of December
2008, there were no charges against the seven.
Submission of Letter on the isa to the
Prime Minister in Putrajaya
On 23 October 2008, 12 persons, including
Protest against the isa in Penang
the six-year old niece of isa detainee and the
On 11 May 2008, 5 people were arrested Hindu Rights Action Force (hindraf) leader P.
during a 45-minute rally in Penang organised Uthayakumar were arrested when they tried
by hindraf to demand the release of isa to submit a letter to the Prime Minister. The
detainees, while another 2, including suaram group had attempted to submit a handwritten
staff, Lau Shu Shi and Teh Chun Hong, were letter urging the Prime Minister to release all
arrested after they lodged police reports at those detained under the isa.
the Georgetown police headquarters. Lau
was leaving the police station when an officer First Anniversary of the bersih Rally,
allegedly raised his voice against her. When November
she told him to lower his voice and show On 9 November 2008, 23 persons were
respect, a shouting match ensued. Lau was arrested during a peaceful assembly to comthen taken in for questioning under Section memorate the first anniversary of the massive
90 of the Police Act 1976, while Teh was bersih rally held on 10 November 2007.
detained for recording the incident and his These included a member of Parliament,
state assemblypersons and journalists. A 53video camera was seized.
The five arrested during the rally were year old woman named Dian Abdullah was
freed on police bail after being held for seven attacked from behind by a few policemen,
51
causing her to fall and injure the back of her
hand. Member of Parliament Tony Pua and
Selangor state assemblyperson Lau Weng San
also alleged that they were manhandled and
punched respectively.
•
•
Anti-isa Assembly in Ampang, Kuala
Lumpur
On 23 November 2008, 9 persons were
arrested in relation to an anti-isa assembly
organised by the Abolish isa Movement
(Gerakan Mansuhkan isa, gmi). Seven individuals
were arrested during the event while another
two individuals, opposition Member of
Parliament Salehuddin Ayub and Vice •
President of the opposition pas Mohamad
Sabu, were arrested when they visited the
seven arrested at the police station where they
were being held.
Bicycle Campaign
In December, 120 individuals were arrested
during a bicycle campaign organised by the
Network of Oppressed People (Jaringan Rakyat
Tertindas, jerit), held over a period of 15 days,
from 3 December 2008 to 18 December
2008. The campaign, held to demand the
government makes a number of policy and
institutional reforms, kicked off on 3
December 2008 in the northern state of
Kedah and ended on 18 December 2008
at the Parliament in Kuala Lumpur. The
campaigners, comprising teams of cyclists
and volunteers, were harassed by the police at
almost every point of their campaign.
jerit
•
•
52
On 4 December 2008, a volunteer,
Ruben Loganathan was arrested at
Merbau Pulas, Kedah, for distributing
leaflets containing the demands of the
campaign. He was released under police
bail on the same day.
ii.On 5 December 2008, jerit cyclists
were stopped by the police when they
were leafleting at Teluk Kumbar, Penang.
On 6 December 2008, 16 jerit activists were arrested at Skudai, Johor. They
were released on the same day without
charge.
On 9 December 2008, two activists were
arrested at Taiping and another six were
arrested at Kuala Kangsar, Perak. One
of the female jerit activists, Helen Mary
Johnson, was molested and punched
on the face by a police officer while she
was taking photographs. Another jerit
activist, Lee Huat Seng, had his camera
confiscated by the police and he was also
hit on the arm by the police.
On 15 December 2008, two groups of
campaigners, taking different routes on
bicycles, were arrested. The first group,
consisting 39 individuals, were arrested at
Bangi Lama Estate, Selangor, while the
second group, comprising 56 individuals,
including 26 cyclists who were minors,
were arrested and held at the Rawang
police station in Selangor for a night. At
the Rawang police station, the 56 individuals who were arrested claimed that
they were made to stand in heavy rain in
the middle of the night by the police.
Defending the police’s actions, Selangor
Chief Police Officer (cpo) Khalid Abu Bakar
said that the minors were detained by the
police to “save them from being misused and
exploited by irresponsible people”.64 He also
claimed that the minors did not know what
they were participating in despite the fact that
the organisers of the campaign had shown
the police written consent from the parents
of the minors and that they could withdraw
their participation at any point if they wanted
to. The detention of minors by the police also
contravenes the United Nations Convention
on the Rights of the Child (crc),65 of which
Malaysia is a party to.66
Developments after the Batu Buruk
Incident
On 20 January 2008, Suwandi Abdul
Ghani and Muhammad Azman Aziz – two
individualswho were arrested on 9 December
2007 on the grounds of causing injury to a
police officer and participating in an illegal
assembly in Batu Buruk on 8 September
2007 – were finally released after the High
Court granted them bail, setting aside an
earlier rulingby the Sessions Court. As of 31
December 2008, the two were still awaiting
trial for the charges against them.
The incident in Batu Buruk, Terengganu
in September 2007 saw a political gathering
turning into excessive violence, when the
police broke up the gathering and fired shots
at unarmed civilians. The shootings by a
plain-clothed police officer caused serious
injuries to two unarmed civilians.67 Throughout
2008, no investigation was conducted on this
incident of shooting by the police. As such
no one has been held accountable for the
incident.
ii. Torture and Other Forms of Cruel,
Inhuman and Degrading Treatment
Malaysia’s non-compliance with international
human rights standards, demonstrated by its
refusal to sign the Convention against Torture
Other Cruel, Inhuman and Degrading
Treatment and Punishment (cat) has allowed
the police to commit acts of torture and other
forms of cruel, inhuman and degrading treatment with impunity.
Excessive Use of Force, Bandar
Mahkota Cheras
On 27 May 2008, during a protest by residents
of Bandar Mahkota Cheras, Kuala Lumpur
against the actions of a toll company to
Police officers dragging individuals during arrests in the Bandar Mahkota Cheras incident in May. (Photograph courtesy of Malaysiakini)
53
barricade a toll-free route, excessive and
unwarranted force was used by the police
resulting in serious injuries to a 21-year old
man.
On the day of the incident, residents
who had gathered to dismantle a concrete
barrier erected by a highway concessionaire
were met by a group of men alleged by the
residents to have been hired by the concessionaire. This resulted in a clash between the
two groups and the Federal Reserve Unit (fru)
was called in to control the situation.
During the course of the incident, four
individuals in a car nearby were stopped by
the fru personnel, and were assaulted by the
fru and plain-clothed police officers. The
incident left 21-year-old Chang Kiun Haur,
the driver of the car, seriously injured. The
four were subsequently arrested and were
released on the following day.
On 14 June 2008, suhakam decided to
hold a public inquiry on the incident. The
panel of inquiry commenced on 23 July 2008
and adjourned on 25 July 2008, and subsequently resumed its hearing on 27 August
2008. suhakam’s panel of inquiry concluded
its inquiry on 29 August 2008 after hearing
the testimonies of 26 witnesses.
In the public inquiry, Chang Jiun Har
testified that more than ten police officers had
surrounded his car and the side window was
broken by fru personnel and he was subsequently dragged out from the car by at least
five personnel. He further testified that he was
made to lie down on the road and was hit and
beaten on the head, face and arm.
A car with its window smashed by police officers during the Bandar Mahkota Cheras incident. A 21-year-old man who was driving the
car was severely injured due to the excessive use of force by the police. (Photograph courtesy of Malaysiakini)
54
A medical officer who examined Chang
Jiun Har in the emergency ward at the Kajang
Hospital on 28 May 2008 testified that Chang
sustained a deep laceration wound, the loss of
one upper jaw tooth, and suffered concussion.
The medical officers also testified that Chang
was unable to immediately recollect incidents
leading to his injuries. Another doctor, who
examined Chang on 29 May 2008, noted that
he sustained head injury, swelling on his eyes
and chest, and a minor posterior injury to his
head.
In its report, suhakam concluded that
the police had used excessive force and
breached international standards outlined in
the Basic Principles on the Use of Force and
Firearms by Law Enforcement Officers.68
suhakam said:
“Similar
recommendations
made
in
Report of Public Inquiry into
the Incident at klcc on 28 May 2006 and
suhakam’s Report on Freedom of Assembly
have remained unheeded by the Police. This
is evident by the recurrence of excessive use
of force and unprofessional Police conduct
in the dispersal of peaceful assemblies in the
past assemblies and the incidents of heavyhandedness action of fru personnel as found
in this Public Inquiry.”69
suhakam’s
suhakam
•
•
•
made three main conclusions:70
That there was excessive use of force by
the law enforcement personnel against
Chang Jiun Haur and Chan Siew Meng
during the incident;
That the excessive use of force by the law
enforcement personnel had violated the
safety and security of Chang Jiun Haur
and Chan Siew Meng; and
That the police and fru personnel were
responsible for the violation of human
rights in the incident.
suhakam
•
•
•
also recommended that:71
The police and fru urgently implement
the international standards as guidelines
for their personnel on the use of force;
The police and fru require all their
personnel to display their names and
badge numbers visibly and clearly during
field operations; and
The police conduct their own investigations to ascertain which personnel
used excessive violence with a view of
taking disciplinary action against the
said personnel and, where necessary, to
recommend to the Public Prosecutor for
further action.
Torture in Police Detention,
Brickfields, Kuala Lumpur
In December, Prabagaran, a car park
attendant claimed that he was tortured
during police custody when he was detained
from 23 December 2008 to 28 December
2008. He lodged a police report on 11 January
2009 naming 11 policemen, including a chief
inspector, for being responsible for scalding
him with hot water during his detention.
Prabagaran was arrested in Desa Sri
Hartamas, Kuala Lumpur on 23 December
2008 for alleged extortion and released on police bail on 28 December 2008. On 3 March
2009, the Home Minister revealed, in a reply
to a parliamentary question, that 7 of the
police officers named by Prabagaran in his
police report have been charged while the
remaining 4 have been cleared from the case,
after investigations.72
iii. Police Connivance and Brutality in
Forced Evictions
In recent years, suaram has documented
umerous cases of police connivance and
n
brutality in forced eviction operations in
villages of urban settlers. Some previous cases
55
include Kampung Berembang and Kampung
Rimba Jaya in 2007, where activists and
villagers attempting to stop these operations
were arrested and cracked down with force
was due to be heard on 29 October 2008 at
the Johor Bahru High Court.
During the operation, the police force
deployed 533 police officers from various
units including the Federal Reserve Unit,
air police unit, marine police unit, canine
unit and bomb specialist unit against 200
unarmed civilians.73 Among those arrested
was suaram Johor Branch coordinator
Nyam Kee Han, who suffered injuries to
both his hands and had his shirt torn when
the police made arrests. Many other activists
and villagers also suffered from injuries. The
27 arrested, who had their statements taken
by the police, were denied access to lawyers.
They were released on a bail of RM1,000
several hours after their arrests. As of 31
December 2008, no charges had been made
against them.
iv. Abuse of the Internal Security Act
(ISA)
SUARAM activist Cheng Lee Whee arrested by the police under
Section 28 of the ISA following a report lodged by her on a case
of police brutality in Johor. (Photograph courtesy of Malaysiakini)
by the police. Many of the cases involve the
deployment of the Federal Reserve Unit (fru)
of the police force, who cooperated with the
developers in these operations despite court
injunctions and appeals pending in courts.
In 2008, at least one other case of
such police connivance and violence was
seen, in October, when 27 persons were
arrested during a forced eviction operation
in Kampung Plentong Tengah, Johor. On 16
October 2008, developer Bukit Lenang Sdn.
Bhd. carried out a forced eviction operation
after obtaining a court order to demolish the
village. However, the forced eviction operation was resisted by human rights activists and
villagers as an appeal against the court order
56
In response to the arrests of the 27 individuals
in Kampung Plentong Tengah, Johor, on 17
October 2008, Cheng Lee Whee, a secretariat
member of suaram’s Johor branch, lodged a
police report against the police for abusing
its powers. For this, she was arrested by the
police under Section 28 (Dissemination of
false reports) of the isa for allegedly “spreading information that could cause fear among
the people”. Section 28 of the isa provides for,
making it an offence to spread “false reports”
likely to cause public alarm. She was released
on 18 October 2008, after the police had
failed to obtain a remand from the Magistrate.
On 24 October 2008, suaram lodged
a complaint with suhakam on the abuse of
powers by the police in both the arrests of the
27 activists and villagers on 16 October 2008
and also the arrest of Cheng Lee Whee under
the ISA on 17 October 2008. Commenting
on the use of Section 28 of the isa on Cheng
Lee Whee, suhakam commissioner Khalid
Ibrahim said, “[…] I do not see anything
seditious in it because she just said that they
were abusing their power. She did not (add)
any religious or racial sentiments, as far as I
understand.”74 He also noted the possibility
of a public inquiry by suhakam on the abuses
of power by the police in the arrests related
to the forced eviction in Kampung Plentong
Tengah. However, as of 31 December 2008,
no public inquiry was held on this matter by
suhakam.
v. Harassment and Threat
On 6 November 2008, lawyer N. Surendran
was questioned by the police for statements he
allegedly made during proceedings in court.
Surendran was representing those who were
arrested for a public assembly against the
ISA on 24 October 2008. He allegedly told
the Magistrate that the police were negligent
when one of the arrested individuals whom
he represented, Mary Lourdes, a diabetic
patient, had fainted in court as she did not
have access to insulin during detention. In
response to this, the Bar Council came out
calling for an end to harassment of lawyers,
saying that cases of lawyers being harassed or
intimidated are on the increase.75
tion made by the Royal Police Commission
in 2005 to set up the ipcmc and to conduct
inquests into every case of death in police custody.
The partiality and selectiveness of the
police in persecuting groups and individuals was also obvious throughout the year,
especially in the police regulation of public
assemblies, with those organised by opposition
political parties and groups associated with
them targeted for crackdown.
As no substantial efforts and commitments were made by the government to
discipline the police, impunity in the force has
become increasingly rampant.
Summary
Serious abuses of power by the police
continued to occur throughout the year,
ranging from arbitrary arrests to torture.
There were no major improvements in the
government’s and the police’s recognition of
international human rights standards in 2008.
The year saw an alarming increase in the
cases of deaths by police shootings, with at
least 44 deaths reported by the media. Deaths
in police custody also remained high, with 13
cases in 2008. Despite this, the government
has still not implemented the recommenda-
57
End notes
1
2
3
Adopted by un General Assembly resolution 57/199, 18 December 2002. 127
countries voted in favour, 42 abstained
and 4 voted against it.
Royal Commission to Enhance the Management and Operations of the Royal
Malaysia Police (2005) Laporan Suruhanjaya
Diraja Penambahbaikan Perjalanan dan Pengurusan Polis Diraja Malaysia [Report of the
Commission to Enhance the Management and Operations of the Royal Malaysia Police]. Kuala Lumpur. (pp. 37-61).
4
Ibid. (p. 43).
5
Ibid. (pp. 59-61).
6
Parliamentary Written Reply to Wan Azizah Wan Ismail (Permatang Pauh), 12
April 2007.
7
8
58
Adopted and opened for signature, ratification and accession by un General Assembly resolution 39/46 of 10 December
1984.
Parliamentary Select Committee on the
Penal Code and the cpc (2006) Laporan
Jawatankuasa Pilihan Khas Dewan Rakyat
Untuk Mengkaji Rang Undang-undang Kanun
Keseksaan (Pindaan) 2004 dan Rang Undangundang Kanun Tatacara Jenayah (Pindaan)
2004 [Report of the Parliamentary Select
Committee on the Penal Code and the
cpc], Kuala Lumpur.
Nazri Abdul Aziz, 6 November 2007,
Third Meeting of the Fourth Session
of Eleventh Parliament, Hansard,
DR.6.11.07, pp. 43-44, http://www.parlimen.gov.my/hindex/pdf/DR-06112007.
pdf (last accessed: 28 December 2008).
9
Special Complaints Commission Bill,
D.R. 57/2007.
10 See Memorandum of Civil Society Organisations to the Parliament on the Proposed Special Complaints Commission
Bill, 18 December 2007.
11 See Annex to this chapter, for a comparison between the proposed ipcmc and the
scc Bill.
12 “Dzaiddin: It’s not what we had in mind,”
New Straits Times, 14 December 2007.
13 Royal Commission to Enhance the Management and Operations of the Royal
Malaysia Police (2005) op. cit. (p. 340341).
14 Ibid. (p. 339).
15
(2007) Report of suhakam Public
Inquiry into the Incident at klcc on 28 May
2006, Kuala Lumpur: suhakam (p. 97).
suhakam
16 Parliamentary Select Committee on the
Penal Code and the cpc (2006) op. cit. (p.
71).
17 See suaram Human Rights Reports 2005,
2006 and 2007.
18 For example, in October 2002, the Parliament was told that there were six deaths
in 2000, 10 in 2001, and 18 from January to September 2002. In October 2003,
the figure for 2002 was reported to Parliament as 16. In May 2004, the figures
changed yet again to 7 deaths in 2000, 14
in 2001, and 15 for all of 2002. Similar
discrepancies are found in the figures of
deaths in custody for 2003. In May 2004,
Parliament was told that 15 detainees died
in police custody in 2003. The number increased to 23 deaths in a July 2005 report.
It is hard to believe that authorities are
only now learning of custodial deaths that
occurred several years ago. The government’s inconsistent statistics once again
underscores the unreliability of their figures.
Parliamentary reply to Manogaran A/L
Marimuthu (Teluk Intan) at the Dewan
19 Rakyat, 3 March 2009, Question 60, Reference Number 1540.
Wan Ahmad Farid Wan Salleh, 8 July
2008, Second Meeting of the First Ses20 sion of the Twelfth Parliament, Hansard,
DR.8.7.2008 (p. 14) http://www.parlimen.gov.my/hindex/pdf/DR-08072008.
25
“Ex-rmaf officer found dead in police
lock-up”, New Straits Times, 2 September
26 2008.
“Indian M’sians ‘dying in police custody’”,
Malaysiakini, 26 November 2008, http://
27 www.malaysiakini.com/news/93797 (last
accessed: 15 June 2009).
Parliamentary reply to Loh Gwo-Burne
(Kelana Jaya) at the Dewan Rakyat, 30
28 June 2009.
Sin Chew Daily, 19 February 2008.
29 “Gaduh dalam penjara: Seorang banduan mati, satu cedera” [Fight in prison:
30 One inmate dies, one injured], Utusan Malaysia, 19 May 2008.
Parliamentary written reply to Wong Nai
Chee (Kota Melaka) at the Dewan Raky21 at, 23 April 2007, quoted in “108 kematian dalam tahanan polis” [108 deaths in
police custody], Bernama, 23 April 2007;
“108 police custody deaths in six years,”
Malaysiakini, 23 April 2007, http://www.
malaysiakini.com/news/66324 (last accessed: 20 April 2009).
Police report lodged by Kumeresan A/L
Ganesan at the Batu Arang police sta31 tion, Gombak, Selangor, on behalf of
the family of Uthayachandran A/L
Gaur Chandran. Report number: BT
ARANG/000557/08, dated 19 May
2008.
Fu Ah Kiow, 29 March 2007, First Meeting of the Fourth Session of Eleventh Par22 liament, Hansard, DR.29.3.2007, p. 19,
pdf/DR-29032007.pdf (last accessed: 20
April 2009).
32
“Prison: No record of transfer request”,
New Straits Times, 20 May 2008.
“Lapan banduan didakwa bunuh
tahanan” [Eight inmates charged with
33 murder of detainee], Utusan Malaysia, 1
August2008.
Parliamentary reply to Loh Gwo-Burne
(Kelana Jaya) at the Dewan Rakyat, 30
23 June 2009.
“Boy’s suspected killer found dead in prison”, The Sun, 20 May 2008; “Dead mur34 der accused’s family demands answers”,
Sin Chew Daily, 21 January 2008.
“Youth dies in police lock-up”, The Star,
24 14 July 2008.
Sin Chew Daily, 4 June 2008.
Royal Commission to Enhance the Man35 agement and Operations of the Royal
59
36 Malaysia Police (2005) op. cit. (p. 348).
“Inquests not held despite being required,” The Star, 2 April 2006.
37
“Murder suspect shot dead by Malaysian police”, People’s Daily Online, 3
45 May 2008, http://english.people.com.
cn/90001/90777/90851/6402555.html
Parliamentary written reply to Wong Nai
Chee (Kota Melaka), 23 April 2007, op.
38 cit.
“Fatal end for four robbers”, New Straits
Times, 17 June 2008.
46
Department of National Registration,
Death Certificate, Ulaganathan A/L Mu39 niandy (dated 22 July 2003, registration
number C699909).
UN Code of Conduct for Law Enforcement Officials, Adopted by UN General
40 Assembly resolution 34/169, 17 December 1979 (Article 3).
UN Basic Principles on the Use of Firearms by Law Enforcement Officials,
41 Adopted by the Eight UN Congress on
the Prevention of Crime and Treatment
of Offenders, Havana, Cuba, 27 August –
7 September 1990 (Principle 9).
This phrase was first known to be used on
the Malaysian police by then-president
42 of the National Human Rights Society
(HAKAM), Raja Aziz Addruse, in a letter
which appeared in the New Straits Times,
11 April 1998.
“Drug Syndicate Member Shot Dead,
Two Policemen Injured in Shootout”,
43 Bernama, 2 January 2008, http://www.
bernama.com/bernama/v5/newsindex.
php?id=305452
“Three gang members shot dead”, The
Star, 26 February 2008, http://thestar.com.
44 my/news/story.asp?file=/2008/2/26/
nation/20444093&sec=nation (last accessed: 15 June 2009).
60
“Car thief shot dead after 3-hour pursuit”, New Straits Times, 18 July 2008.
47
“African scam gang member shot dead”,
New Straits Times, 6 August 2008.
48
“Two robbers shot dead”, The Star, 27
August 2008, http://thestar.com.my/
49 fightcrime/story.asp?file=/2008/8/27/fi
ghtcrime/22175304&sec=fightcrime (last
”Four Members of Mamak Gang Shot
Dead” Bernama, 2 September 2008,
50 http://www.bernama.com/bernama/
v5/newsindex.php?id=356659 (last accessed: 15 June 2009).
“Wanted: Duo shot dead at petrol kiosk”, The Star, 3 September 2008,
51 http://thestar.com.my/fightcrime/story.
asp?file=/2008/9/3/fightcrime/222261
30&sec=fightcrime (last accessed: 15 June
2008).
“Malaysian police shot dead three Indonesian robbery suspects”, Jakarta Post, 25
52 September 2008, http://www.thejakartapost.com/news/2008/09/25/malaysianpolice-shot-dead-three-indonesian-robbery-suspects.html (last accessed: 15 June
2009) .
“Man who held up three chefs shot
dead”, The Star, 27 October 2008,
53 http://thestar.com.my/news/story.
asp?file=/2008/10/26/nation/200810
June 2009).
“Wanted criminal killed in shootout with cops”, The Star, 5 Novem54 ber
2008,
http://thestar.com.my/
news/stor y.asp?file=/2008/11/5/
“Malaysian police shoot down two suspected Indonesian hitmen”, Antara News, 7 No55 vember 2008, http://www.antara.co.id/
en/view/?i=1225992063&c=NAT&s=
“4 wanted men shot dead”,
The
Straits Times, 17 November 2008,
56 http://www.straitstimes.com/print/
Breaking%2BNews/SE%2BAsia/Story/
STIStory_303303.html (last accessed: 15
June 2009).
62 2008,
http://www.malaysiakini.com/
news/77487 (last accessed: 15 June 2009).
“Anti-isa protestors furious over charge
delay”, Malaysiakini, 3 June 2008, http://
“‘We acted to save under-aged cyclists’”,
Malaysiakini, 16 December 2008, http://
Freedom of expression of the child is
provided for in Article 13 of the crc and
65 freedom of association and peaceful assembly is accorded to the child in Article
15. Article 37 states that the arrest and detention of the child should be used only as
a measure of last resort and for the shortest appropriate period of time; no child
should be subjected to torture; and during arrest and detention, the child should
have prompt access to legal services.
“Dead suspect mastermind”, The Star, 3
December 2008.
Malaysia acceded to the convention in
1995.
57
“2 more Indonesian gangsters shot dead
by Malaysian police”, Jakarta Post, 18 De58 cember 2008, http://www.thejakartapost.
com/news/2008/12/18/2-more-indonesian-gangsters-shot-dead-malaysian-police.html (last accessed: 15 June 2009).
“Foreigners die in shootout with police after high-speed car chase”, The Star, 5 De59 cember 2008.
bn Basic Principles on the Use of Firearms by Law Enforcement Officials, op.
60 cit. (Principle 5).
66
See suaram (2008) Malaysia Human Rights
Report 2007: Civil and Political Rights, Petal67 ing Jaya: SUARAM (p. 45).
Inquiry Into the Allegation of Excessive Use of
68 Force by Law Enforcement Personnel During the
Incident of 27th May 2008 at Persiaran Bandar
Mahkota Cheras 1, Bandar Mahkota Cheras,
Kuala Lumpur: suhakam.
suhakam
Ibid. (p. 36).
69 Ibid. (pp. 39-40).
Ibid. (Principle 10).
“psm’s Aru to be charged, others expect61 ed to go free”, Malaysiakini, 26 January
70 Ibid. (pp. 40-41).
61
71 Parliamentary reply to Manogaran A/L
Marimuthu (Teluk Intan) at the Dewan
72 Rakyat, 3 March 2009, op. cit.
suaram, “Memorandum to suhakam on
Police Brutality in Kampung Plentong
73 Tengah”, dated 24 October2008.
“Inquiry into Kampung Plentong fracas?”
Malaysiakini, 24 October 2008, http://
74 www1.malaysiakini.com/news/91908
Malaysian Bar Council, Press release,
“Harassment of lawyers on the
75 increase”, dated 13 November 2008,
http://www.malaysianbar.org.my/index2.php?option=com_content&do_
pdf=1&id=19369 (last accessed: 3
December 2008).
62
Chapter 3:
freedom of speech
and expression
I
n
2008, Malaysia continued its down- said, “I have told my officers that I want to
ward slide in the Reporters Sans Frontières
(rsf)’s press freedom index – dropping to 132nd position out of 195 countries
– its lowest ranking ever. In 2007, Malaysia
was placed 124th. The international media
watchdog cited Malaysia as one of the countries “where the taboos are still inviolable and
the press laws hark back to another era”.1 In
some countries, including Malaysia, said rsf,
“it is strictly forbidden to report anything that
reflects badly on the president or monarch, or
their family and close associates.”2
The continued decline in the level of
press freedom in Malaysia is a manifestation
of the general worsening of the state of freedom of speech and expression in the country
in 2008. When the Barisan Nasional (bn) suffered its biggest loss in the General Elections
of March 2008, many analysts pointed out
that the unprecedented results was caused
by, among other factors, bn’s failure to carry
out reforms and promises of greater respect
for human rights. Unfortunately, throughout
2008, the bn government still failed to make
substantive reforms. There were, however,
some minor improvements, including relatively fairer coverage to opposition political
parties and leaders in the media, especially
after the General Elections, and the initiative
of having live telecast of parliamentary proceedings and debates. This was in part, due to
the fact that the Opposition coalition was in
control of five states and the mainstream media had no alternative but to cover news about
the new incumbents of these states.
In April 2008, immediately after the
General Elections, in a gesture towards the
freedom of speech and expression, Home
Minister Syed Hamid Albar pledged to uphold media freedom by promising reviews
on restrictive laws pertaining to the press. He
said, “[F]or me, the bottom line is that we
need press freedom in order for us to have a
check and balance in government.”3 He also
64
have a re-look at the Printing Presses and
Publications Act so that we can move with the
times.”4
Despite these pledges, freedom of speech
and expression remained one of the most severely violated of our freedoms in 2008. The
year saw critics and opposition politicians
being harassed and prosecuted. For the very
first time in Malaysia, several individuals were
charged with sedition and criminal defamation for entries posted on their blogs while an
array of repressive laws, including the Printing Presses and Publications Act (pppa), the Official Secrets Act (osa), and the Sedition Act,
remained firmly in place and continued to be
used by the government at its convenience.
Post-2008 General Elections also witnessed the deepening politicisation of race
and religion, thus creating an environment
which further hampered the state of freedom
of expression in the country.
Repressive Legal Framework
Laws like the Printing Presses and Publications Act 1984 (pppa), the Official Secrets Act
1972 (osa), and the Sedition Act 1948 are part
of the powerful legal machinery that represses
free speech in Malaysia. These laws create a
culture of fear and a high level of self-censorship among the local media, even though
freedom of speech and expression in Malaysia is guaranteed by Article 10 of the Federal
Constitution.
In particular, the pppa seriously curtails
freedom of the press. The pppa, which covers
newspapers, books, and foreign publications,
gives the discretion to the Internal Security
Ministry to grant and revoke newspapers’
publishing licenses. This Act makes it compulsory for mass circulation newspapers to have
a publishing permit that must be renewed
annually. Applications for a permit can be re-
jected by the minister whose decision cannot
be challenged in a court of law, and a permit
can be revoked anytime if a publication contains anything that is deemed to be “prejudicial to public order or national security”.
Foreign papers and journals must pay large
deposits that may be forfeited if the publisher
does not appear in court to face charges of
publishing materials deemed to be “prejudicial to national interest”. Ministry officials
have the power to censor or ban offending
foreign publications.
The Sedition Act was introduced during
the British colonial era to pre-empt contempt
for the administration of justice and to quell
popular discontent. The all-encompassing Sedition Act deems unlawful “any act, speech,
words, publication or any other thing” that
has any of the following “seditious” tendencies:
•
•
•
•
to bring into hatred or contempt or to
excite disaffection against any ruler or
against any government; or against the
administration of justice; or against the
Yang di-Pertuan Agong (king) or ruler of
any state;
to excite revolt by unlawful means;
to promote feelings of ill-will and hostility between races or classes of the population;
to question any matter, right, status, position, privilege, sovereignty, or prerogative
established or protected by the provisions
of Part III of the Constitution (provisions
relating to citizenship) or Article 152
(national language), Article 153 (special
rights of the ethnic Malays and natives
of Sabah and Sarawak), or Article 181 of
the Constitution (powers relating to the
ruling chiefs of Negeri Sembilan).
In addition, it is an offence to utter any
seditious words or to print, publish, sell, offer
for sale, distribute, or reproduce any seditious
publications or import any seditious publications. Offenders face a fine of up to RM5,000
and/or imprisonment of up to three years,
and a second offence carries a sentence of
up to five years’ imprisonment. These restrictions work in tandem with the Constitution
(Amendment) Act 1971 that makes it unlawful for anyone, including a Member of Parliament while debating in a parliamentary session, to question issues of citizenship, national
language, ethnic Malay special rights, and
matters pertaining to the rulers.
The osa, in addition, criminalises many
acts and statements in the name of protecting “state secrets”. The provision that affects
fundamental freedoms the most is the one
stating that a “conclusive certificate” may be
produced by the minister or public officer in
charge to categorise any official document as
an “official secret”. Such a classification cannot be questioned in court. This “conclusive
evidence” makes it almost impossible to challenge a charge for any non-authorised possession or use of a document – even though it
may not be a “secret” or security risk, and its
dissemination has public interest value. The
penalty for violating the osa is imprisonment
for up to seven years.
Furthermore, other laws such as the
Trade Unions Act 1959, the Societies Act
1966, the Universities and University Colleges
Act (uuca) 1971 and the Police Act 1967, impose an array of restrictions on the exercise of
freedom of association, freedom of assembly
and related activities, and they also undermine the proper and favourable workings of
the freedom of speech and expression.
State Ownership and Control of the
Media
Compounding the above legal restrictions is
the ownership and control of all mainstream
newspapers, television, and radio channels by
65
the component parties of the ruling coalition,
or held by media owners loyal to the ruling
parties. For instance, Media Prima Berhad,
a corporation which has close links with the
ruling United Malays National Organisation
(umno), owns English-language newspapers
New Straits Times and Malay Mail, Malay-language dailies Berita Harian and Harian Metro,
and television stations tv3, ntv7, 8tv and
tv9. umno, the dominant political party in
the bn coalition, owns Utusan Malaysia, the
largest-selling Malay-language newspaper in
Malaysia, while the Malaysian Chinese Association (mca), another component party of
the bn, owns the largest-selling English-language daily in Malaysia, The Star.
The ruling-bn government thus effectively controls the editorial policies of the media
industry, resulting in the staunch pro-government perspective of the mainstream media in
Malaysia. For instance, an analysis conducted
by media monitoring groups – Centre for Independent Journalism (cij), Writers’ Alliance
for Media Independence (wami) and Charter
2000-Aliran – on news coverage of six major
newspapers in the country during the 12th
General Elections revealed that a majority
of the stories and space in the newspapers
were dominated by bn candidates. The study,
covering The Star, New Straits Times, The Sun,
Utusan Malaysia, Malaysia Nanban and Makkal
Osai, over a period from 25 February 2008
to 8 March 2008, revealed the following proportion of space given to pro-bn stories: Utusan Malaysia (82%), Malaysia Nanban (70%),
Makkal Osai (66%), The Star (63%), New Straits
Times (60%), and The Sun (43%). On the other
hand, the highest percentage of space for proopposition news was found in Makkal Osai,
which allocated 23% of its news on the elections to opposition parties and candidates.5
In recent years, the Rimbunan Hijau timber tycoon Tiong Hiew King has taken control
of four major Chinese-language newspapers
– Sin Chew Jit Poh, Guangming Daily, Nanyang
66
Siang Pau, and China Press. Tiong, who owns
Sin Chew Media Corporation Bhd., in October 2006, acquired Nanyang Press Holdings
after the Malaysian Chinese Association (mca)
announced its decision to sell off 21.02% of
its controlling 44.4% stake in Nanyang Press
Holdings to Tiong. The purchase increased
Tiong’s stake in Nanyang from 23.74% to
44.76%, and cemented Tiong’s monopoly of
the country’s Chinese-language press. Of the
six major Chinese newspapers, Oriental Daily
and Penang-based Kwong Wah Daily are the
only two not under Tiong’s control.
In April 2007, four Chinese-language
dailies – Sin Chew Daily, Guang Ming Daily,
China Press and Nanyang Siang Pau – were
consolidated under one company owned by
Tiong. This consolidation of major Chineselanguage dailies under one company has been
criticised by media watchdogs, saying concentration of ownership under Tiong would
curb competition and threaten press freedom,
and further diminish diversity and plurality of
information in the country.6 Tiong’s commercial interests are dependent on the patronage
of the ruling coalition and this is evident in
the slant of the media he controls.
Racial and Religious Sensitivities
Discussions on topics deemed “sensitive” for a
multi-ethnic society have often been discouraged, censored or banned by the bn government over the years. However, this censorship
does not seem to apply to the ruling party
umno or the press it controls. The bn government has long justified its restrictions on freedom of speech and expression on the grounds
of maintaining racial harmony and social
order. In 2008, there were many instances of
restrictions based on these grounds.
In January 2008, the government renewed the publication licence for the Malaylanguage segment of Catholic weekly The
Herald, reversing the December 2007 decision
to terminate the weekly’s licence of its Malaylanguage segment. Despite the renewal, the
Cabinet decided that the weekly could not use
the word “Allah” in its publications as the use
of the word is deemed by the government to
be exclusive to Islam.7 In March, the weekly
filed a judicial review against the government
to challenge the decision to ban the word “Allah” from being used by The Herald in its publications. (See discussion on The Herald’s judicial
review in Chapter 6: Freedom of Religion.)
In August, The Herald was reported to
have been issued a show-cause letter by the
Home Ministry for publishing political articles.8
As soon as the General Elections ended
in March 2008, umno-owned Malay-language
dailies looked on the results as a threat to the
special position of the Malays and racial
harmony in the country. For instance, on 15
March 2008, just one week after the General
Elections, Malay-language broadsheet Utusan Malaysia carried a news story on its front
page entitled “Pembangkang perlu bertanggungjawab”9 [“Opposition must be responsible”] – a
warning issued by the Prime Minister to opposition leaders to be responsible in making
statements which touched on the sensitivities
of certain ethnic groups in the country, including the special position of the Malays. On
the same page, the paper also published two
other news pieces, entitled “3,000 bantah hapus
deb di. P. Pinang”10 [“3,000 against the abolition of nep in Penang”] and “Mansuh deb hina
Melayu”11 [“Abolition of nep an insult to Malays”], which suggested that the Democratic
Action Party (dap)’s proposal to abolish the
New Economic Policy (nep), an affirmative
action policy introduced in 1971 as a temporary measure aimed to “restructure society”
and “eradicate poverty”,12 would jeopardise
the position of Malays vis-à-vis non-Malays
in Malaysia.
In May 2008, opposition Member of
Parliament, Karpal Singh was summoned by
the police for questioning after police reports
were lodged against him. The umno Youth, in
its police statement on 5 May 2008, had asked
the police to investigate Karpal Singh under
the Sedition Act 1948 for causing “uneasiness
among the people of Perak particularly with
regard to the powers of the Sultan”.13 This
was in response to news reports which quoted
Karpal as saying that the Sultan of Perak had
no jurisdiction over the transfer of Director
of the Perak Islamic Religious Department,
Jamry Sury, out of the department. The issue
surfaced after the Sultan of Perak had intervened14 in the decision of the Menteri Besar
(chief minister) of Perak, a Pakatan Rakyat-led
state, to transfer Jamry Sury out of the Perak
Islamic Department. Karpal was reported
to have responded to this by saying, “Sultan
Azlan Shah did not have any say, as the Ruler
of Perak, in the decision made by the state
government and, by law, the palace cannot order the state government to reinstate Jamry.”15
In June, a forum about the Malaysian
“social contract” organised by the Malaysian
Bar Council prompted calls by individuals
and groups, including umno vice-president
Muhyiddin Yassin and umno Youth Chief
Hishamuddin Hussein, to disallow open forums discussing this issue and those pertaining
to the concept of “Ketuanan Melayu” (Malay
Supremacy). Muhyiddin Yasin was quoted as
saying, “[I]f such a forum is held, it can touch
on sensitive issues and can violate the Sedition Act.”16 The organisers nevertheless went
ahead with organising the forum on 28 June
2008. On 29 June 2008, the Prime Minister
said, “There is no need to discuss these issues
because it gives rise to various reactions from
the Malays, including creating animosity and
racial tension. [...] I do not understand where
the loss is if these issues are not discussed. No
need to discuss.”17
In October 2008, the Conference of
Rulers reiterated the Prime Minister’s state-
67
ment not to question the social contract with
a press statement warning that “[t]he actions
of certain quarters in disputing and questioning these matters […] had caused provocation
and uneasiness among the people”.18
Similar intolerance towards matters of
race and religion was seen in another forum
organised by the Malaysian Bar Council to
discuss the issue of conflict of civil and Syariah
laws facing families caught between the separate jurisdictions of these laws. The forum,
held on 9 August 2008, was forcibly disrupted
by a mob led by members of the ruling United Malays National Organisation (umno), the
opposition People’s Justice Party (Parti Keadilan Rakyat, pkr), Pan-Malaysian Islamic Party
(Parti Islam Se-Malaysia, pas), and also several
other Malay- and Islamic-based ngos. (See also
Chapter 6: Freedom of Religion and Matters Pertaining to Religion.)
On the next day, the Johor umno Youth
lodged a police report against the Bar Council
for organising the forum. This was followed
by a statement by the Prime Minister on 11
August 2008, warning that there should be no
more discussions which touch on the “sensitivities of race and religion”. Commenting on
the Bar Council-organised forum, Abdullah
Badawi also said that the Federal Constitution
must not be questioned.19
Such warnings against discussions of
matters relating to race and religion were not
only made by political leaders, but also by the
police, as was seen in November, when Inspector-General of Police Musa Hassan warned
non-Muslim ngos not to interfere in matters
involving Islamic laws or risk severe actions by
the police.20 This warning was made following
the criticisms made by various ngos against a
fatwa issued by the National Fatwa Council in
October to curb the lifestyle of “teenage girls
who prefer the male lifestyle including dressing up in men’s clothes […and] engage in sexual activities”.21 In response, ngos criticised
the fatwa as “sexist and discriminatory” which
68
could lead to arbitrary arrests and undue harassment towards Muslim women.22 On 7 November 2008, several civil society groups and
individuals staged a protest in Kuala Lumpur
against the issuance of the fatwa. (See discussion
on fatwa in Chapter 6: Freedom of Religion.)
Media Blackout and Self-Censorship
Despite the relative improvement in the coverage given to the opposition in the mainstream
media, especially after the huge inroads made
by the opposition Pakatan Rakyat in the General Elections, there were still a number of cases reported throughout 2008 in which news
“blackouts” were ordered. Various government officials also made known their displeasure towards the press for highlighting unflattering issues concerning the government and
its related interests.
One such instance was documented in
February 2008, just prior to the General Elections, when Chinese-language daily Oriental
Daily was reported to have issued a set of editorial guidelines to its reporters on elections
coverage. This set of guidelines among others, restricted the paper from publishing any
front-page cover stories on opposition parties,
mentioning the opposition’s mission to deny
the incumbent government its two-thirds
majority in the Parliament, and covering any
‘contentious’ issues like the call for more Chinese vernacular schools. At the time when the
guidelines were issued, Oriental Daily was still
awaiting the renewal of its licence which had
been pending since December 2007.
On 14 October 2008, the Malaysian
Communications and Multimedia Commission (mcmc) prohibited private broadcaster
ntv7 from broadcasting live the debate between candidates for the bn-component party
Malaysian Chinese Association (mca)’s vice
president post, citing late application.
Control over Publishing Permits and
Publications
Publishing permits and publications are severely curtailed by the government, especially
through the pppa. Newspapers and organs of
political parties operate within a tight democratic space and are compelled to apply for
publication permits which are renewed annually.
One clear example of this restriction can
be seen in the case of Suara Keadilan, the official news organ of the opposition People’s
Justice Party (Parti Keadilan Rakyat, pkr), which
obtained its publishing permit only on 21
April 2008 – three years after it first made its
application in 2005. Even for other opposition
political parties which are allowed to publish
their official newsletters, their circulation is
strictly limited to party members only.
However, just several days before Suara
Keadilan was granted its permit on 16 April
2008, the Home Ministry refused to grant
Tamil-language newspaper Makkal Osai its
publication permit for allegedly breaching
various guidelines. The newspaper was finally
granted its permit on 24 April 2008. Makkal
Osai is widely perceived to be critical of the
leadership of the Malaysian Indian Congress
(mic), a component member of the ruling-bn.
The paper had given prominent coverage to
the opposition parties and also to the mass
rally organised by the Hindu Rights Action
Force (hindraf) in November 2007. The paper is also linked to the former deputy president of the mic, S. Subramaniam, who has
fallen out of favour with the political party’s
president, Samy Vellu.
This was not the first time that Makkal
Osai faced such difficulties. In August 2007,
its licence was suspended for one month after
the daily’s publication of an image of Jesus
Christ, holding a cigarette in one hand and
a beer can in the other, was published on 21
August 2007 and was deemed unacceptable
and a danger to public order. The suspension
came even after the daily had made a public
apology which was accepted by the Catholic
Church in Malaysia.
In September, three newspapers – Sin
Chew Daily, The Sun and Suara Keadilan – were
issued show-cause letters by the Home Ministry. The three newspapers were asked to
“show cause” why action should not be taken
against them and to provide proof that they
had not breached publication guidelines. The
show-cause letters were issued in the same
week when three individuals – blogger Raja
Petra Kamaruddin, opposition member of
Parliament Teresa Kok, and journalist Tan
Hoon Cheng – were arrested under the isa.
(See Chapter 1: Detention without Trial.)
The banning of book titles and publications, especially with regard to books on religion, is instructive.
Front cover of the book, “Muslim Women and the Challenge of
Islamic Extremism” published by NGO Sisters in Islam, which
was banned by the government in August 2008. (Photograph
courtesy of Malaysiakini)
69
In August 2008, two books, including
one by the ngo Sisters in Islam (sis), were
banned by the Home Ministry because they
contained “twisted facts that can undermine
the faith of Muslims”. According to Publications and Quranic Texts Control Division
principal assistant secretary Abdul Razak Abdul Latif, the two titles, “Pelik Tapi Benar Dalam
Solat” [“Strange but True in Prayers”] and
“Muslim Women and the Challenge of Islamic Extremism”, were banned by a prohibition order
under Section 7(1) of the Printing Presses and
Publications Act 1984.
On 14 January 2008, the Internal Security Ministry seized 163 non-Islamic books
that allegedly had the word “Allah” for the
purpose of “studying” them in an operation
to check publications from tarnishing public order and morality. On 30 January 2008,
A poster by Sisters in Islam for its campaign against the government’s banning of books.
70
eleven books written in English and Malay
about Islam were banned for “deviating”
from “true teachings”.
In 2008, a total of 15 book titles were
banned by the government. The Ministry of
Home Affairs, in its official website, listed a total 1,434 book titles banned in Malaysia since
June 1977 until July 2008.23
(Source: Official Website of the Ministry of Home Affairs)
71
Media Council
On 26 June 2008, Home Minister Syed Hamid Albar said that the government was formulating a national media policy to regulate
press freedom in the country.24 Two months
later, on 6 September 2008, Minister of Information Ahmad Shabery Cheek reported
that the government would set up a National
Media Council “which would function as a
monitoring body for the media and ensure
that media reports were made based on true
journalistic ethics”.25 This was in response to
the controversy surrounding Ahmad Ismail,
an umno division leader in Penang, who was
reported to have made allegedly racist remarks but which he claimed was quoted out
of context by the media.
The idea to set up a statutory body to
regulate the professional conduct of all journalists in print, broadcast, and the Internet
was first put forward by the government in
2003. This proposed body, according to the
draft proposal at that time, would be headed
by a chairperson who must be at least an appellate court judge and made up of media
representatives, academics, professionals, and
representatives from ngos. Their duties were
to include helping to preserve press freedom
in accordance with Article 19 of the Universal Declaration of Human Rights (udhr);
maintaining a certain “standard” of journalism; and hearing complaints with powers to
censure. The proposal was handed over to
(suhakam) for further deliberation. Civil society groups, including the National Union of
Journalists, were of the view that the media
should be independent, self-regulated, and
made up of an equal composition of public
and media representatives. The nuj, at that
time, also held that the pppa should first be repealed before any self-regulating mechanism
is to be instituted.26
In May 2004, the government an-
72
nounced that it would not embark on the
proposal of setting up a media council, citing
“poor response” from editors and journalists
as the reason.27
When the idea of a media council was
revived in 2008, civil society groups working
on media freedom voiced concerns that the
setting up of a media council would create
an additional layer of control over the media.
For instance, two Malaysian media watchdogs described the proposal as a response
from the government “to tighten its control
on the media when the reportage affects its
reputation”.28 Considering that the proposal
for a media council was revived in the midst
of a national controversy arising from an alleged racist statement made by a politician,
the groups also observed, “Every time the
media highlight political statements, they
are sanctioned for being irresponsible.29 The
groups also urged the government to “move
away from its conventional top-down control
on public discussion and the freedom of the
press”.30
In November, the government held a
consultation with journalists, bloggers, and
civil society groups, on its latest proposal. Despite this, according to cij, it is very likely that
the government will ignore the objections of
these groups, and carry on with its plan to establish the media council.31
Attacks on the Media and Journalists
The deteriorating state of freedom of expression in the country is also manifested in the
general lack of respect for the journalism profession and the various efforts by both state
and non-state actors to stifle critical and dissenting views. Journalists are often exposed to
threats, intimidations, arrests, and physical assault while performing their duties.
Attacks by State Actors
In June, journalists were barred from entering
the Parliament lobby where press conferences
are usually held. In a protest against this denial of access, journalists from all print, online
and electronic media boycotted all press conferences held outside the chamber, covering
only the proceedings in the Parliament chamber. The ban was lifted after one day.
On 26 January 2008, Malaysiakini journalist Syed Jaymal Zahiid was arrested by the
police while covering a rally against rising
prices. Fifty-six other people were arrested
at the rally. Despite having identified himself
as a journalist, Syed Jaymal was arrested by
the police when he questioned the police officer on the arrests of the protestors. He was
charged with obstructing a police officer from
performing his duty. (See Chapter 5: Freedom
of Assembly and Association.)
Another journalist from Malaysiakini was
arrested together with 23 others in a peaceful
assembly of about 300 people on 9 November
2008 to commemorate the first anniversary
of the mass rally organised by the Coalition
for Clean and Fair Elections (bersih) on 10
November 2007. The fact that this was the
second journalist from Malaysiakini to be arrested by the police while covering rallies in
2008 suggests that those who give wide coverage to views deemed to be adverse to the government are often targeted for harassment.
Malaysiakini has in the past endured threats by
the government and the police because of its
editorial policies.32
On 6 May 2008, the police questioned
journalists R. Nadeswaran and Terence Fernandez from The Sun after they had exposed the
transferring out of funds by the Association
of Wives of Selangor Assemblymen (balkis)
soon after the bn lost the Selangor state to
Pakatan Rakyat in the General Elections.
On 12 September, a journalist for the
Chinese-language newspaper Sin Chew Daily,
Tan Hoon Cheng, was arrested and detained
under the Internal Security Act 1960 (isa) for
her report regarding the derogatory racist remarks made by a leader of the ruling party,
the United Malays National Organisation
(umno), against the Chinese community in
Malaysia. (See Chapter 1: Detention without Trial.)
Attacks by Non-State Actors
Besides the above-mentioned cases, journalists also sometimes face attacks from non-state
actors. As documented by the local media
watchdog cij, they include the following in
2008:33
•
•
•
On 26 February 2008, Harian Metro reporter Mohd. Rashidi Karim and Berita Harian reporter Adha Ghazali were
physically assaulted by a group said to
be bn supporters while covering the election campaign in the Perlis state capital
Kangar.
On 27 May 2008, around 20 individuals armed with clubs, parangs and clubs
turned on Utusan Malaysia photographer
Roy Azis Abdul Aziz and Merdeka Review journalist Chow Z Lam after the
two caught them in action against residents of Bandar Mahkota Cheras (Kuala
Lumpur) attempting to demolish a barricade preventing access to a toll-free road.
On 15 July 2008, four photographers
covering the televised debate between
pkr adviser Anwar Ibrahim and Information Minister Ahmad Shabery Cheek
were assaulted by security personnel at
the Dewan Bahasa dan Pustaka (Institute
of Language and Literature), where the
debate was held. Photographers Zulkifli Ersal of The Sun, Khairul Hasnor
Mohd Khalili of The Edge, Othman Abu
Bakar from The Edge Financial Daily, and
cameraperson Hanafiah Hamzah from
73
•
•
•
Channel News Asia were also prevented
from taking pictures of the speakers by
security personnel.
On 3 August 2008, a Guang Ming Daily
photographer covering Anwar Ibrahim’s
public speech was assaulted by a group of
people who were alleged to be pkr security personnel. pkr president Wan Azizah
apologised over the incident but the party
denied the attackers were from their security team.
On 18 August 2008, during the Permatang Pauh by-election campaign, two
photographers from New Straits Times and
hbl Press Agency were beaten up by a
group after the former took pictures of
them harassing a passing vehicle belonging to the bn.
On 11 September 2008, pkr barred Utusan Malaysia reporter from covering its
function in Negeri Sembilan.
•
On 16 December 2008, while on duty
covering a meeting of the Malaysian Indian Congress (mic, a component party
of the ruling-bn), Makkal Osai reporter S.
Venugar was warned by mic president S.
Samy Vellu not to publish his story. The
party president also seized a camera from
another photographer.
Tightened Control over the Internet
and Attacks on Bloggers
The government tightened its control over
the Internet in 2008. For the first time, several individuals were charged with sedition for
writings or comments posted on the Internet.
There were also numerous attacks launched
against political bloggers while several websites were shut down in the year under review.
The government’s efforts to tightly control
Raja Petra Kamaruddin arrested by the police in May under the Sedition Act for an article posted in his blog. (Photograph courtesy
of Malaysiakini)
74
the Internet contravenes its 10-point Bill of
Guarantees conceived in 1996 when the government said that it “[will] ensure no Internet censorship”34 and its pledge in the AideMemoire of its candidature to the un Human
Rights Council, that it will ensure “the promotion of a free media, including in cyberspace”.35 (Emphasis added.)
On 2 May 2008, seven policemen raided the home of popular blogger, Raja Petra
Kamaruddin, and seized two of his computers. He was interrogated by the police for two
hours and was told that he was being investigated under the Sedition Act 1948. This was
in connection to an article titled, “Let’s send the
Atlantuya murderers to hell”, posted on his blog
on 25 April 2008. The article, among other
things, alleged that Malaysian Deputy Prime
Minister Najib Razak and his wife, Rosmah
Mansor, were involved in the October 2006
murder of Atlantuya Shaariibuu, a claim that
has been denied by the Deputy Prime Minister himself. On 30 April 2008, the Deputy
Prime Minister issued a statement through his
press secretary, denying all allegations made
by Raja Petra.36 On 6 May 2008, Raja Petra
Kamaruddin was charged with sedition under
Section 4(1)(C) of the Sedition Act.
Another individual, former banker Syed
Akbar Ali was also charged with sedition on
the same day as Raja Petra Kamaruddin.
Syed Akbar Ali has been accused of allegedly
posting seditious comments about Malays and
Islam on one of Raja Petra Kamaruddin’s article entitled, “Malaysia’s organised crime syndicate: All roads lead to Putrajaya”.
Raja Petra Kamaruddin and Syed Akbar
Ali are the first individuals in Malaysia to be
charged under the Sedition Act 1948 for postings in the Internet.
On 17 July 2008, Raja Petra Kamaruddin was again arrested and charged with
Raja Petra Kamaruddin arrested by the police in May under the Sedition Act for an article posted in his blog. (Photograph courtesy
of Malaysiakini)
75
criminal defamation under Section 500 of the
Penal Code for making a statutory declaration on 18 June 2008, which contains allegations implicating Rosmah Mansor, the wife of
Deputy Prime Minister Najib Razak, and two
others, in the high-profile murder of Mongolian national Altantuya Sharibuu. Raja Petra
had stated that the statutory declaration was
intended “to urge all these parties who have
been duly informed and have knowledge of
this matter to come forward to reveal the truth
so that the police are able to conduct a proper
and thorough investigation into the murder
of Altantuya”.37 No investigation appeared to
have been made by the police on those names
who were implicated in Raja Petra’s statutory.
On 17 September 2008, blogger Syed
Azidi Syed Aziz was arrested at his home
in the northern Peninsula Malaysia state of
Kelantan. He was detained for three nights
under the Sedition Act for investigations over
an image of the national flag upside down
published in his blog.
In August, the hugely-popular and widely-read blog, Malaysia Today was blocked by
Internet service providers under the instructions of the Malaysian Communications and
Multimedia Commission (mcmc). mcmc chief
operating officer was reported as saying that
the site was blocked because they found that
“some comments on the website were insensitive [and] bordering on incitement”.38 On 11
September 2008, the ban on the website was
lifted.
Morality and Artistic Expression
Raja Petra Kamaruddin arrested by the police in May under the
Sedition Act for an article posted in his blog. (Photograph courtesy of Malaysiakini)
On 12 September 2008, Raja Petra was
arrested and detained under the isa for allegedly inciting racial tension. He was given
a two-year detention order on 23 September
2008. Two other individuals were arrested on
the same day, one of them a journalist. Raja
Petra, however, was released on 7 November
2008 after Shah Alam High Court Judge Syed
Ahmad Helmy ruled that the Home Minister
who signed the two-year detention order of
Raja Petra had not followed proper procedure, and thus making his detention unconstitutional and illegal. (See Chapter 1: Detention
without Trial.)
76
On 9 August 2008, the Kuala Lumpur pas
Youth called for the ban on Canadian singer,
Avril Lavigne’s concert, scheduled to be held
on 29 August 2008. On 19 August, the Ministry of Unity, Culture, Arts and Heritage
scrapped Avril Lavigne’s concert, but reverted
its decision on 23 August 2008.
Another serious violation of freedom of
expression is the denial of choice of dressing. Under several state Syariah enactments,
it is an offence for men to dress as women.39
Exacerbating the existing restrictions, in October 2008 the National Fatwa Council issued
a fatwa (edict) which ruled that it is forbidden
in Islam for young women to behave like men
and engage in lesbian sex. (See Chapter 6: Freedom of Religion and Matters Pertaining to Religion.)
Summary
After the 12th General Elections, the bn
government attempted to regain support by
pledging to improve press freedom and ensuring fairer reporting by the mainstream media. However, events throughout 2008 have
shown that freedom of speech and expression
remained one of the most severely violated
that year.
2008 saw attacks by the bn government
on bloggers and alternative Internet news portals even when the credibility of governmentlinked mainstream newspapers remained
in question. Individuals were charged with
sedition for postings on the Internet, while
a popular news website was shut down. As
usual, bn government justified its restrictions
on freedom of speech and expression by using
the hackneyed excuse of “maintaining racial
harmony and social order”.
77
End Notes
1
2
Ibid.
3
“pkr finally gets permit for Suara Keadilan after waiting 8 years”, Malaysiakini,
20 April 2008, http://www.malaysiakini.
com/news/81660 (last accessed: 20 April
2009).
4
Ibid.
5
Centre for Independent Journalism, 29
March 2009, Press statement, “Utusan
tops as the most pro-bn paper”.
6
See, for instance, Southeast Asian Press
Alliance, 12 February 2007, Press statement: “Chinese media merger harms
competition at home and abroad”,
http://www.seapabkk.org; Centre for Independent Journalism, 6 February 2007,
Press statement: “Media Merger Harms
Competition Home and Abroad”,
http://www.cijmalaysia.org/index.
php?option=com_content&task=view&i
d=254&Itemid=8 (last accessed: 20 April
2009).
7
“Cabinet: ‘Allah’ for Muslims only”, The
Sun, 4 January 2008.
8
“Herald gets show cause letter”,
Malaysiakini, 11 August 2008, http://
9
78
Reporters Sans Frontières, “Press Freedom Index 2008: Only peace protects
freedoms in post 9-11 world”, http://
www.rsf.org/article.php3?id_article=29031 (last accessed: 20 April 2009).
“Pembangkang perlu bertanggungjawab”, Utusan Malaysia, 15 March 2008,
http://www.utusan.com.my/utusan/info.
asp?y=2008&dt=0315&pub=Utusan_
Malaysia&sec=Muka_
Hadapan&pg=mh_04.htm (last accessed:
15 June 2009).
10 “3,000 bantah hapus deb di P. Pinang”,
Utusan Malaysia, 15 March 2008, http://
www.utusan.com.my/utusan/info.
Malaysia&sec=Muka_
15 June 2009).
11 “Mansuh deb hina Melayu”, Utusan
Malaysia, 15 March 2008, http://
www.utusan.com.my/utusan/info.
Malaysia&sec=Muka_
15 June 2009).
12 Second Malaysia Plan (1971-1975) (p. 1).
13 “Perak Umno Youth Lodges Police Report Over Karpal’s Statement”, Bernama,
5 May 2008, http://www.bernama.com/
(last accessed: 21 April 2009).
14 The Sultan of Perak ordered the retraction of the transfer order made by
the Perak Menteri Besar issued as the
transfer order was made without seeking
prior consent from the Sultan as the head
of Islam and the Raja Muda of Perak as
president of the Perak Islamic Affairs and
Malay Customs Council.
15 “Perak Umno Youth lodges police report
over Karpal’s statement”, Bernama, 5
May 2008, http://www.bernama.com/
16 “Prohibit open forums on social contract”, The Star, 29 June
2008, http://thestar.com.my/
news/story.asp?file=/2008/6/29/
24 “Ministry and press to work on National Media Policy”, The Star, 26
June 2008, http://thestar.com.my/
nation/21664105&sec=nation (last accessed 21 April 2009).
17 “No need for forum on Malay supremacy, says Abdullah”, The Star, 30 June
2008.
25 “Media Urged To Exercise Caution
When Interpreting Certain Issues”,
Bernama, 6 September 2008, http://www.
php?id=357545 (last accessed: 21 April
2009).
18 “Rulers defend social contract”, The Star,
17 October 2008, http://thestar.com.
nation/2303782&sec=nation (last accessed: 18 November 2008).
19 “Amaran kepada semua – Jangan anjur
lagi forum sentuh sensitiviti kaum, agama
– Perdana Menteri” [Warning to all – Do
not organise any more forums which
touch the sensitivities of race, religion
– Prime Minister] Utusan Malaysia, 12
August 2008.
20 “igp to Non-Muslims: ‘Stay out of
Muslim matters’”, The Star, 13 November
asp?file=/2008/11/13/nation/200811
November 2008).
21 “Malaysia Muslim body issues fatwa
against tomboys”, Reuters, 24 October
2008, http://in.reuters.com/article/lifestyleMolt/idINTRE49N2AM20081024
(last accessed: 12 November 2008).
22 See for instance, Sisters in Islam, 21
November 2008, Press statement, “Fatwa
on tomboys is regressive”.
23 See the Ministry of Home Ministry’s
official website: http://www.kdn.gov.my/
index.asp (last accessed: 20 April 2009).
26 See suaram (2006) Malaysia: Human Rights
Report 2005 – Civil and Political Rights,
Petaling Jaya: suaram Kommunikasi (pp.
73-74).
27 Ibid.
28 Centre for Independent Journalism &
Writers Alliance for Media Independence, 8 September 2008, Press statement:
“Media council not a solution to irresponsible politics”.
29 Ibid.
30 Ibid.
31 Centre for Independent Journalism
(2009) Malaysia: Freedom of Expression
2008, Kuala Lumpur: cij (p. 8).
32 For example, in January 2003, the police
raided the office of Malaysiakini and
confiscated 19 computers after the umno
Youth lodged a police report against the
news organisation for publishing an allegedly seditious letter. The letter questioned
the issues of Malay privileges, race relations, poverty and the government. See
suaram (2004) Malaysia: Human Rights
Report 2003 – Civil and Political Rights,
79
Petaling Jaya: suaram Kommunikasi (p.
104).
33 Centre for Independent Journalism
(2009) op. cit. (p. 15).
34
Malaysia Bill of Guarantees (point
7), http://www.mscmalaysia.my/topic/
MSC+Malaysia+Bill+of+Guarantees
msc
35 Malaysia (2006) “Aide-Memoire; Malaysia’s Candidature to the United Nations
Human Rights Council”, dated 28 April
2006 (p. 1).
36 Deputy Prime Minister Dato Seri Mohd
Najib Tun Razak, Press statement,
dated 30 April 2008, http://mt.m2day.
org/2008/content/view/6840/84 (last
37 Raja Petra Kamaruddin, Statutory
Declaration, signed at the Kuala Lumpur
High Court, dated 18 June 2008.
38 “Malaysia Today blocked! Order
from mcmc”, Malaysiakini, 27 August
2008, http://www.malaysiakini.com/
news/88683 (last accessed: 12 November
2008).
39 In suaram’s Human Rights Report 2007,
we documented the case of Ayu, a transsexual, who was seriously beaten by officials from the Melaka Islamic Religious
Affairs Department (Jabatan Agama Islam
Melaka, jaim) for committing the “offence” of “men dressing up as women in
a public space”. See suaram (2008) op.
cit. (p. 127).
80
chapter 4:
freedom of
information
F
federal bn government remained resistant to
Abdullah Ahmad Badawi took over proposals for a freedom of information law.
the leadership of the country in 2003, While some 70 countries have passed freedom
many of his pledges for reforms, particularly of information laws, a Minister in the Prime
those relating to transparency and integrity Minister’s Department said in May 2008 that
were not translated into action. This contri there was no need for such laws because the
buted to the lack of substantial improvements Cabinet could decide at any time to declassify
pertaining to freedom of information in documents as it saw fit.
In recent years, Malaysia’s position in
Malaysia.
th
In 2008, the results of the 12 General Transparency International’s Corruption
Elections dramatically changed the political Perception Index has been continuously low.
landscape of the country. It brought about In 2006, Malaysia was ranked 44th in the
two positive developments with regard to world, a drop of five places from the previous
freedom of information: firstly, there was year, while in 2007, it ranked 43rd. In 2008,
a greater representation of the opposition Malaysia’s placing continued to drop in the
coalition, Pakatan Rakyat, in the Parliament at index, down another four rungs, to 47th place
the federal level, while five states fell under the out of 180 countries surveyed.
control of Pakatan Rakyat; secondly, the overwhelming swing of the popular vote from the
Barisan Nasional (bn) to Pakatan Rakyat signalled A Fundamental Human Right
the electorate’s disapproval of the slow impleFreedom of information is recognised as a
mentation of the BN’s promises.
This new political scenario saw some fundamental human right, as stated in Article
minor improvements relating to freedom of 19(2) of the Universal Declaration of Human
Rights (udhr) 1948,2 “Everyone shall have
information. They were, among others:
the right to freedom of expression; this right
• The pledge by two Pakatan Rakyat state shall include freedom to seek, receive
governments (Penang and Selangor) to and impart information and ideas of
enact state legislation pertaining to free- all kinds, regardless of frontiers.” (Emphasis
added.)
dom of information.
• The announcement by the Works Ministry But although freedom of speech and
to disclose the concession agreements expression is a fundamental right in Article
between the government and 11 private 10(1)(a) of the Federal Constitution of
highway toll companies in November. Malaysia,3 freedom of information is not
explicitly mentioned in the 1957 Constitution.
Still, their pledges remain to be actual- Still, freedom of information, particuised. To date, these two Pakatan Rakyat state larly in relation to government documents, is
governments in Penang and Selangor have not closely linked to transparency, accountability
properly made good their promise to declare and good governance – values pledged by
the assets of their executive council members. Prime Minister Abdullah Ahmad Badawi
The Selangor state government made a feeble When he came into office. The Prime
Minister even set up an Institute of Integrity
attempt which was unacceptable.1
Despite these minor inroads, restrictive in 2004 to support the National Integrity
laws like the Official Secrets Act (osa), enacted Plan, which was aimed at promoting integrity
in 1972, remained firmly in place, while the and battling corruption in the country.4
82
rom
the
time Prime Minister
was the Air Pollution Index (api), which was
classified in 1997 when the country was hit
with the problem of haze. It was reported
Restrictive legislation, particularly the osa, that the information on air pollution was held
and a pervasive culture of secrecy severely back from the public because it could affect
hamper the right to know and freedom of tourism in Malaysia. This information was,
information in the country. Information however, declassified by the government and
ranging from statistics about housing revealed to the public in 2005.7
development to data regarding public funds is Another crucial area of information that
classified. Malaysians have thus been denied is shrouded in secrecy is the Environmental
access to information on matters of public Impact Assessment (eia). The eia is a process
interest. Based on an ordinance in 1911, the of evaluating the costs and benefits of a
project, and allows alternatives to the proosa makes it an offence to publish without
authorisation any information classified as posed project to be considered. Although
“top secret”, “secret”, “confidential” or “re- the process includes public feedback, it has
not always been accessible to the public and
stricted” by public officers.
Section 2 of the osa interprets the term the communities affected by the projects
“official” as “relating to any public service”, proposed. The problems pertaining to the
eia include the lack of transparency in the
while “official secret” is defined as:
“[A]ny document specified in the process of appointing an eia consultant, the
Schedule and material relating thereto language of the report, and the narrowly
and includes any other official document, defined issues dealt with in an eia.8 For examinformation and material as may be classified ple, the eia for the Bakun dam project in the
as ‘Top Secret’, ‘Secret’, ‘Confidential’, or eastern state of Sarawak is also classified as
‘Restricted’, as the case may be, by a Minister, an official secret. Although it was made public
the Menteri Besar or Chief Minister of a when first published, the document became
unavailable during the 1990s.9 This has been
State or such public officer […].”5
Because of the loose definition and broad pointed out as problematic since such changinterpretation of the Act as to what qualifies es to the status of the document could lead
as an “official secret”, it is unclear how much to heavy fines or prison terms for those in
information may be subject to classification possession of a copy.10
as a state secret. This means that any infor- In 2006, the Selangor state’s water tariff
mation, the variety of which is potentially was increased by 15%, raising queries from
unlimited, may be classified by the govern- residents about the justification for the price
ment as “official secret”. There are also no hike. Demands to make public the water
clear exceptions for secrecy as required under concession agreement between the water
international law, such as where disclosure concessionaire and the state government,
would pose a real and serious risk to national along with the audit report on the concessionaire, went unheeded. The state government,
security.6
then under bn rule, insisted that the details of
the agreement could not be made public on
Examples of Undisclosed Information the grounds that the agreement was “secret
and confidential”.
Among crucial information of public inter- Similarly, an agreement between the
est that had been classified under the osa government and a toll concessionaire was
Restrictions on Freedom of
Information
83
classified as “secret” when there were calls
for the document to be made public in the
wake of a hike in toll prices in early 2007. In
February 2007, then-Works Minister Samy
Vellu said that the Prime Minister had agreed
to make the documents public. It took more
than a year, until 17 October 2008, before
the Cabinet declassified the toll concession
documents.
The government’s negotiations with the
United States on the Free Trade Agreement
(fta) since June 2006 have also been
shrouded in secrecy. Various groups and
sectorshave raised their concerns as previous
ftas between the United States and other
countries have had a negative impact on
the latter’s agricultural and manufacturing
sectors. This concern prompted appeals
for the government to call off the talks.
Exacerbating the situation is the reluctance of
the government to disclose any information
about the talks to its own people. A coalition
of various groups and non-governmental
organisations (ngos) urging the government
to halt the talks have persistently requested
that the Ministry of International Trade and
Finance (miti) provide more information
to the Malaysian public regarding the fta
talks, but the ministry has rejected its request
despite the coalition’s willingness to exchange
correspondence on the issue.
The government has also failed to make
public statistical information on the death
penalty in the country despite calls for it to
do so by human rights groups. In April 2008,
Amnesty International, in its report “Death Sentence and Executions in 2007”, noted, “Amnesty
International remains concerned that
executions may have taken place in Mongolia and Malaysia. However, due to the
secretive nature of the use of the death
penalty the organization was unable to
obtain reliable information.”11 This statement
was, however, interpreted by government officials and the police, including Home Minis-
84
ter Syed Hamid Albar and Deputy Inspector
General of Police Ismail Omar, as accusing
Malaysia of carrying out secret extra-judicial
killings. Clarifying that its report merely asserted the fact that information on executions and the death penalty in Malaysia was
shrouded in secrecy, the international human
rights group once again called on the Malaysian government to release all statistics on
executions and death sentences in Malaysia.12
However, as of December, no such information was disclosed by the government.
In May, the government rejected a
request by dap member of Parliament Liew
Chin Tong for a parliamentary written reply
on the maintenance cost for each Royal
Malaysian Air Force fighter plane and the
average aviation duration flown for each year
since 2004, considering the matter an “official
secret”.13
Official information relating to two
significant events in Malaysian ethnic-
relations history has also been kept secret.
The government has refused to make public
the report on the Kampung Medan ethnic
clashes between 8 and 23 March 2001. The
clashes resulted in six reported deaths and
scores of others injured. Not only were official
records of the clashes in Kampung Medan
kept away from the public eye, a book documenting the incident was also banned under
the Printing Presses and Publications Act
(pppa) 1984. Authored by suaram secretariat
memberK. Arumugam based on research and
eyewitness accounts of the incident, the book
titled March 8 was banned in December
2006. To this date, the government has failed
to bring to justice any of the perpetrators who
committed the racist crimes in Kampung
Medan.
Similarly, official information relating
to the nation’s worst racial riot, the “May 13
Incident” which occurred in 1969, have been
classified as secret to this day. The causes
and events of the riot, which resulted in the
loss of lives of 196 persons and wounded
180 according to official figures,14 have been
largely kept secret from the public. In
2007, there were renewed calls to declassify
government documents pertaining to the 1969
riots after the release of a book by suaram
directorKua Kia Soong, based on declassified
documents in Britain.15 However, in July 2007,
a Minister in the Prime Minister’s Department
said that official documents would not be
declassified by the government. In a parliamentary written reply, the minister said that
the documents will not be declassified as
the government has investigated the incidents
and amended policies since the 1969
incident; thus there was no need for another
investigation.16
Persecution and Prosecution of
Whistleblowers
The osa has been often invoked to silence
the opposition and whistleblowers, despite
the existence of the government’s National
Integrity Plan, which specifically encourages
Malaysians to be whistle blowers.
While the opposition and whistleblowers
have been threatened and even prosecuted
for revealing “official secrets”, other quarters
– potential investors, for instance – have
been given access to information that was
otherwise classified as secret. One such case
documentedin recent years was:
In January 2007, the Malaysian police
summoned four opposition party
leaders – Hatta Ramli (Pan-Malaysian
Islamic Party/Parti Islam Se-Malaysia,
pas), Ronnie Liu (Democratic Action
Party, dap), Tian Chua and Khalid
Ibrahim (People’s Justice Party/Parti
Keadilan Rakyat, pkr) – under the
osa for disclosing details concerning
a toll concession agreement between
the government and a highway concessionaire, Lingkaran Trans Kota Sdn.
Bhd. (litrak). The four revealed that
the government had guaranteed profits
to concessionaires at the expense of
road users. The document was exposed
amidst growing calls for the disclosure
of toll concession agreements in the
wake of the steep hikes in toll charges.
Following the revelation of the document,
Works Minister Samy Vellu suggested
to the Cabinet that the Attorney
-General take action against those
who had “stolen and exhibited” the
toll concession agreements.17 The four
politicians were then called for questioning and threatened with charges
for disclosing classified information, an
offence punishable by up to seven years
of imprisonment under Section 8 of
the osa. However, the very same information revealed by the four was said to
have been already published in the toll
concessionaire’s prospectus for institutional investors in 1996.18
Such inconsistent and selective revelation
of information by the government was also
seen when details from a classified agreement
between the Selangor state government and
water concessionaire Syarikat Bekalan Air
Selangor Sdn. Bhd. (syabas) had reportedly
been revealed to potential investors in a report
in 2005 without any consequence. However,
when the Coalition against Water Privatisation
(cawp) and the Malaysian Trades Union
Congress (mtuc) strongly objected to the
November 2006 water tariff increase,
demanding to see the concession agreement
and the audit report on syabas, the same
information was said to be classified. The
groups that demanded the release of the
concession agreement and the audit report
were informed that both documents had been
classified as “secret and confidential”.
85
Another major obstacle to freedom
of information which has been highlighted
by civil society, including suaram in recent
years was the absence of legislation to protect
whistleblowers. In 2007, suaram highlighted
in its annual human rights report the AntiCorruption Agency (aca)’s persecution of
three individuals from pkr who revealed the
V.K. Lingam videotape. Sivarasa Rasiah, Sim
Tze Tzin and Anwar Ibrahim had lodged a
report with the aca regarding the contents
of the videotape which suggested high-level
corruption in the judiciary. Instead of following up on the evidence, the three were given
notice to reveal the source of the videotape.
Failure to do so would be an offence under
the aca Act and punishable by a fine to up
RM10,000 or a maximum two-year jail term.
The three refused to reveal the source of their
videotape on the grounds that there was no
law that would guarantee the latter’s safety.
However, no charges were pressed against the
three.
After much campaigning by civil society
and opposition political parties for legislation
to protect whistleblowers, Prime Minister
Abdullah Ahmad Badawi announced in April
2008 that the government would implement
reforms to boost the fight against corruption, including for the aca to be made a fully
independent body. He also announced that
new laws would be passed to protect whistle
blowers and witnesses.19
However, on 8 May 2008, a different
position was taken by Minister in the Prime
Minister’s Department Nazri Abdul Aziz.
During a parliamentary debate, when asked
by a member of Parliament from pas whether
the government would enact a Whistleblower
Protection Act and Freedom of Information
(foi) Act, Nazri said, “We have no plan to
enact any of these acts because although we
have the Official Secrets, the Cabinet can de-
86
cide on anything that need to be declassified
at anytime.”20
However, he later clarified that what
he meant was that the government had no
intention to amend any existing Act and that
there was as yet no legislation on whistleblower protection. Nazri further clarified that
the government had not made an about-turn
on its plan to enact laws to protect whistle
blowers, as had been announced by himself
and also the Prime Minister.21
On 16 December 2008, the Witness
Protection Bill was tabled for its first reading
in Parliament by Nazri. The proposed bill,
among others, outlined the following:22
•
•
•
•
•
•
•
A witness could apply to be included in
the protection programme.
Besides an individual, an enforcement
agency could also ask in writing for a
witness to be protected.
For a witness below the age of 18, parents
or guardians must apply for the child to
be included in the programme.
The Witness Protection Bill also details
what information a witness is expected
to reveal before being accepted in the
programme and that includes the witness’s
criminal record, earnings, immigration
status, and his or her financial liabilities
and assets.
The director-general of the programme
can also send the witness for a medical,
psychological and psychiatric examination to determine suitability for protection.
If the witness is found to have provided
false information, he or she can be fined
up to RM10,000 and be jailed for not
more than five years or both. However,
only the Attorney-General has the final
word to decide if a person can be included
in the programme or not.
Witnesses whose application have been
•
•
•
•
•
•
•
•
•
rejected can appeal in writing within 14
days.
For those in the programme, a participants’ registry will be compiled which
will have participant details, a new
identity (if one is requested), address,
previousrecords and date of participation
and leaving of the programme.
No one can have access to the registry
except for the minister concerned, the
Attorney-General and other authorised
persons with written permission by the
Attorney-General.
Participants or ex-participants cannot
divulge their involvement in this
programme.
Unless given a written approval, people
can be sentenced to 20 years in jail if they
expose how the programme works or if
they give information regarding officers
were involved.
A person provided with a new identity
cannot divulge his original identity.
A participant (including one given a new
identity and no longer a participant) can
use the new identity for any proceedings
or any other matter.
A programme participant or ex-partici
pant, if needed to be a witness in a
criminal proceeding under the new
identity,must declare his status before the
proceeding begins.
If the witness’ true identity has to be
revealed, it must be done in a closed
proceeding or else an order has to be
issued that the true identity not be
revealed.
Anyone who flouts the requirement can
be fined RM50,000 or jailed up to 10
years or both.
As of end December 2008, the bill
was still pending in the Lower House of the
Parliament.
Campaign for Freedom of
Information Legislation
In 2004, a coalition calling for a Freedom of
Information (foi) Act came into being. The
coalition, which was comprised of various
organisations, including women, environmental and human rights groups, launched
a campaign in September 2006 to lobby for
the drafting and legislation of an foi Act in
Malaysia.
In February 2007, the coalition took its
campaign to the state of Kelantan, holding
several meetings with parliamentarians and
state assemblypersons to push for an foi
Act in the state, which is governed by the
federalopposition pas. An foi Bill, based on 10
principles,23 was drafted and received positive
responses from state legislators, who pledged
to study the draft bill and planned to table
it in the Kelantan State Assembly.24
There were no substantive developments
in the remaining months of 2007. However,
the results of the 12th General Elections
in March 2008, which saw Pakatan Rakyat
winning 82 seats in the Parliament at the
federal level and also forming five of the 13
state governments, increased the possibilityof
much-needed improvement relating to freedom of information.
Throughout 2008, civil society groups
engaged with the Pakatan Rakyat-led state
governments to push for the enactment of
state-level foi legislations.
At the federal level, in the first parlia
mentary sitting in May, pkr Member of
Parliament Sivarasa Rasiah tried to table a
private member’s bill on freedom of information. Although it appeared in the order
paper, the House never reached the item as
government bills were prioritised. Sivarasa
re-submitted the bill twice during the year, but
with no success. This was compounded by the
bn’s position, as articulated by Minister in the
87
Prime Minister’s Department Nazri that there
was no need for an foi law.25
At the state level, after the 12th General
Elections, the state governments in Selangor
and Penang – two of the five states which fell
under the control of Pakatan Rakyat – made
public announcements to enact foi legislations in these states.
However, on 16 June, Selangor Menteri
Besar Khalid Ibrahim in an interview,
appeared to have backtracked on his
commitment to enact an foi legislation. He
was quoted as saying:
“[T]here is a provision in the Federal
Constitution [that state laws which are not
consistent with federal legislation] can be
declared null and void. So it would be a
waste of time [to bring in a Freedom of
Information Bill to replace the osa]. We can
make [information] available. I think we are
making things quite open compared with the
previous group of people.”26
In response to Khalid’s statement,
59 civil society groups released a public
statement which pointed out that Item 7 of
the State List in the Ninth Schedule of the
Federal Constitution gives state governments
jurisdiction over “machinery of state government”. As such, an foi Enactment in the state
of Selangor would clearly be within the ambit
of the constitutional jurisdiction given to state
governments.
The civil society groups emphasised
that while the osa provides for the automatic
classification of specified categories of
documents,it in no way compels or forces the
government and its officers to use it in respect
of other types of documents. In any event,
there is a clear provision that enables a state
government to declassify documents that had
previously been classified.
The civil society groups further urged
the Selangor state government to make a
policy statement that it will not apply the osa
to classify documents as secret, followed by a
88
clear plan and timeline for the declassification
process of important public documents and
broad-based public consultations on the
public's access to information. The groups
also called for the establishment of a task
force to review existing practices and a draft
law for the state.
In 2008, the Selangor state government,
heeding civil society’s call, set up a task force
that included civil society groups to review
practices and policies pertaining to public
access to information and to draft an foi law
for the state. As of 31 December 2008, the
task force was still drafting the legislation.
In June 2008, the Penang state government formed an ad-hoc committee to set
guidelines on information that the public
and the media can access directly from
government departments. Chief Minister
Lim Guan Eng said that the committee would
direct departments to categorise and classify
information that can be released to the
public. He also said that the committee would
hold discussions with media representatives
and civil society for their feedback.27 In
December , he announced that the Penang
state government will liaise with the Selangor
state government on its plans to enact an foi
Act in the state.28
Summary
While the change in political landscape after
the 12th General Elections brought about
a new momentum in the push for greater
openness and transparency, genuine reforms
have yet to be realised. In 2008, freedom of
information continued to be hindered by
a deeply-rooted culture of secrecy and the
existence of restrictive laws, in particular the
osa. For instance, we learnt that even the
maintenance cost of airplanes was refused
disclosure by the federal government.
Another major setback was the fed-
eral government’s resistance to reform the
laws and policies which restrict freedom of
information. This was clearly seen in 2008,
when the bn government publicly stated that
it would not repeal the osa nor enact an foi
legislation at the federal level.
Nevertheless, new inroads have been
made in civil society’s freedom of information campaign. The Pakatan Rakyat coalition
has pledged to uphold principles, implement
reforms and enact legislations to guarantee
access to information and to ensure openness
and transparency in governance. At the end
of 2008, the Pakatan Rakyat-led Selangor had
set up a task force to draft an foi legislation.
The Penang state government had promised
to enact an foi legislation but there has been
no further positive development. Other
Pakatan Rakyat-led states have made even less
progress.
It remains to be seen whether pledges
will be translated into genuine reforms in the
following year, failing which, the prospects of
an open and transparent society in Malaysia
will remain as distant as ever.
89
10 Principles for a
Malaysian Access to
Information Law
By the Coalition for a Freedom of Information Act
1. Principle of Maximum Disclosure
The government should pass a comprehensive freedom of information law based on the
right to information which establishes the principle of maximum disclosure.
Access to information is a basic necessity and right, not a luxury, indispensable to the aim
of Malaysia to become an information society. The right to information is relevant to all
members of society and their concerns.
2. Routine Publication
Public bodies should routinely make available a wide range of information of public interest. A commitment should be made, over time, to publish all information which anyone
might wish to access. This information should be made available on an equal, non-discriminatory basis. Documents of significant public interest should be available in Bahasa
Malaysia.
A specific commitment should be made to ensure that all individuals and groups affected
by a project, development or policy are provided with all relevant information about that
project, development, or policy.
This information should be provided in an appropriate language and medium.
3. Independent Administrative Oversight Body
An independent administrative body should be established with a mandate to oversee implementation of the freedom of information law and to adjudicate appeals against refusals
to disclose information.
Members of this body should be elected on the basis of credibility, expertise, and qualifications. The elections process should be open and transparent and involve civil society.
This body should have the power to make binding decisions in relation to any appeals
against refusals to grant access to information.
90
4. Promotion of Open Government
Public bodies should be required to make adequate provision for training of their officials on the application of the freedom of information law. In addition, the administrative
body with responsibility for oversight of the law should be given a mandate and adequate
resources to provide central training resources and support. Training manuals should be
developed in association with civil society.
Public bodies should be required to adopt procedures to maintain records in an orderly
fashion.
The law should make it a criminal offence to obstruct access to information wilfully, including by destroying or altering documents, or by providing incomplete disclosure
5. Exceptions
Exceptions to the right of access should be set out clearly and narrowly in the law, and
should be limited to protection of legitimate interests in the areas of law enforcement,
privacy, national security, commercial, and other relationships premised on confidentiality,
public or individual safety, and the effectiveness and integrity of government decisionmaking processes. Access to information should not be refused unless disclosure would
pose a real risk of significant harm to one of the protected interests. Furthermore, information should be disclosed notwithstanding the requisite risk of harm where this is in the
overall public interest.
Non-disclosure of information should be subject to an overall time limit of 20 years, to run
from the date of creation of the document.
6. Processes and Costs
The law should set out minimum procedural rules relating to the processing of requests,
for example, in relation to time limits, notice of, and grounds for refusals to grant access
and the like.
Costs for access to information should be limited to the cost of duplication of the information. Public bodies should have the discretion to waive costs for public interest requests or
other reasons. Rules for charging should be required to be approved by the independent
administrative oversight body.
7. Open Meetings
The law should establish a general presumption that official meetings are open to the public. This presumption may only be overridden by a specific decision of the meeting and
that such a decision is to be made in public.
91
Details regarding the time, date, and venue of these meetings should be made easily available to the public.
8. Secrecy Laws and Practices
The freedom of information law should prevail in case of conflict between it and any secrecy law. All secrecy provisions in other laws and guidelines should be reviewed, amended,
and/or repealed within three years or they should lapse. In this regard, the Official Secrets
Act, 1972 should be prioritised, as a matter of urgency.
9. Whistleblowers
Individuals should be protected from any legal, administrative or employment-related
sanctions for releasing in good faith information on wrongdoing.
10. Review of the Law
The freedom of information law should provide for its own comprehensive review by parliament at least every five years. This review should be transparent and involve civil society.
92
End Notes
1
2
3
4
In March 2009, the Selangor state
government disclosed the official income
and liabilities of the Menteri Besar (chief
minister) and ten state executive councillors on its official website. However, other
information, for example bank savings,
interest in private companies or shares,
was not revealed.
United Nations General Assembly Resolution 217 A (III), adopted 10 December
1948.
Section 10(1)(a) of the Federal Constitution of Malaysia states, “[E]very citizen
has the right to freedom of speech and
expression.” For a detailed discussion
of the state of freedom of speech and
expression in Malaysia in 2007, please
see Chapter 3: Freedom of Speech and
Expression.
See Institut Integriti Malaysia (2006), Pelan Integriti Nasional: Edisi Ringkas [National Integrity Plan: Concise Edition].
This document is available at: http://
www.parlimen.gov.my/transfer/Ringkasan_Mengenai_Pelan_Integriti_Nasional.
pdf (last accessed: 15 June 2009).
5
Section 2 Official Secrets Act 1972 (Act
88).
6
Article 19(3) of the International Covenant on Civil and Political Rights states
that the exercise of the right to freedom
of expression, including freedom to seek,
receive and impart information and ideas
of all kinds, “may be subject to certain
restrictions but these shall only be such
as are provided by law and are necessary:
(a) For the respect of the rights or reputations of others; (b) For the protection of
national security or of public order, or
of public health or morals.” (United National General Assembly resolution 2200
A (XXI), adopted 16 December 1966)
7
See Article 19 & Centre for Independent
Journalism (2007) A Haze of Secrecy: Access
to Environmental Information in Malaysia.
London and Kuala Lumpur: Article 19
and Centre for Independent Journalism.
(pp. 83-85).
8
See Ibid. (pp. 55-63).
9
See Article 19 & suaram (2005) Freedom
of Expression and the Media in Malaysia. London and Kuala Lumpur: Article
19 and suaram. (pp. 90-91).
10 Article 19 & Centre for Independent
Journalism (2007) A Haze of Secrecy: Access
to Environmental Information in Malaysia.
London and Kuala Lumpur: Article 19
and Centre for Independent Journalism.
(p. 63).
11 Amnesty International (2008) Death Sentence and Executions in 2007, London: Amnesty International (p. 6). The document
is available at http://www.amnesty.org/
en/library/asset/ACT50/001/2008/
en/b43a1e5b-ffea-11dc-b092-bdb020617d3d/act500012008eng.pdf (last
12 Amnesty International Malaysia,
press statement (17 April 2008) “Press
Statement on Death Penalty Report”,
http://www.aimalaysia.org/index.
php?option=com_content&task=view
&id=287&Itemid=46 (last accessed: 15
June 2009).
13 “Question on ‘secret’ issue rejected,
mp sees red”, Malaysiakini, 2 May
93
2008, http://www.malaysiakini.com/
news/82286 (last accessed: 15 June
2009).
14 Malaysia, National Operations Council
(1969) May 13 Tragedy: A Report. Kuala
Lumpur: National Operations Council.
15 See Kua Kia Soong (2007) May 13: Declassified Documents on the Malaysian Riots of
1969. Petaling Jaya: suaram.
16 Nazri Abdul Aziz, Parliamentary written
reply, 3 July 2007, cited in “Government
won’t declassify documents,” The Star, 4
July 2007.
17 “Cabinet says toll agreements to remain
secret”, The Sun, http://www.sun2surf.
com/article.cfm?id=16815 (last accessed:
15 June 2009).
18 “‘Secret’ of toll agreement was out 10
years ago”, The Sun, 28 February 2007.
19 “PM: ACA to be fully independent”,
Malaysiakini, 21 April 2008, http://www.
malaysiakini.com/news/81664 (last accessed 15 June 2009).
20 Nazri Abdul Aziz, First Meeting of the
First Session of the Twelfth Parliament,
Hansard, DR.8.5.2008, (p. 6) http://
www.parlimen.gov.my/hindex/pdf/
DR-08052008.pdf (last accessed: 15 June
2009).
21 “Whistleblower Act: No U-turn, clarifies
Nazri”, Malaysiakini, 8 May 2008, http://
22 The Witness Protection Bill 2008 is available on the official website of the Malaysian Parliament: http://www.parlimen.
94
gov.my/billindexbi/pdf/DR312008E.
23 See Annex to this chapter, “10 Principles
for a Meaningful Malaysian Access to Information Law,” Coalition for a Freedom
of Information Act.
24 “Kelantan to table FoI bill in June,”
25 “Nazri: No need for law to protect
whistleblowers”, The Sun, 8 May 2008,
http://www.sun2surf.com/article.
cfm?id=22159 (last accessed: 15 June
2009).
26 “Selangor ‘on track’ with pledges”,
Malaysiakini, 16 June 2008, http://www.
malaysiakini.com/news/84569 (last accessed: 15 June 2009).
27 “Penang sets up ‘freedom of info’
committee”, The Star, 11 June 2008,
http://thestar.com.my/news/story.
asp?file=/2008/6/11/nation/2008061
June 2009).
28 “Penang to work with Selangor on Freedom of Info Act”, The Star, 16 December
asp?file=/2008/12/16/nation/200812
June 2009).
chapter 5:
FREEDOM OF
ASSEMBLY AND
ASSOCIATION
T
he demonstrations and rallies
which were organised in 2007 carried over into 2008. Compounded
by significant electoral losses in the 12th
General Elections in March 2008, the Barisan
Nasional (bn) government sought to stop demonstrations and assemblies which were critical of its policies and legislations. In stark
contrast, public rallies held to highlight issues
which were not critical of the government
were tolerated.
The right to assemble in Malaysia is severely circumscribed by the Police Act 1967,
which confers wide discretionary powers to
the police to regulate assemblies, despite the
clear provision in the Federal Constitution
under Article 10 for the freedom of assembly
and association. The Police Act 1967 inter alia
requires a license to be obtained from the police for any public assemblies, meetings and
processions. The application for the license
can be refused but, even if issued, conditions
can be imposed or the licence may be cancelled by the police at any time. Without such
a license or upon the breach of conditions
attached, the police can stop the assembly,
meeting or procession and order its stoppage.
Amendments were made to the Act in
1987, providing the police with even wider
powers to stop and disperse activities in private places if the activity is “directed to, or is
intended to be heard or participated by persons outside the premises”, or “attracts the
presence of 20 persons or more outside the
premises”, or is “prejudicial to the interest of
Malaysia or […] excite[s] a disturbance of
the peace”.1 The amendments also provided
the police with power to use force against participants in thwarting these events, whether in
public or private places. The police may “do
all things necessary for dispersing them and
for arresting them and, if any person makes
resistance, may use force as is necessary for
overcoming resistance”.2
The Act, in addition, provides the police
96
with powers to regulate the playing of music
in public places, and to prohibit the display
of flags, banners, emblems or placards3 and
the use of loudspeakers, amplifiers and other
devices.4 Violators, including those participating in illegal assemblies, can be fined between
RM2,000 and RM10,000 and can be imprisoned for up to one year.5
Recommendations Relating to
Freedom of Assembly
The Human Rights Commission of Malaysia
(suhakam) has, in several of its reports, stated
that the ban on general assemblies is a violation of human rights, and reiterated that the
right to assemble peacefully is a fundamental
human right guaranteed by the Malaysian
Constitution. For instance, in the “Kesas Highway Incident” Report in 2001, suhakam recommended, inter alia, that:6
•
•
•
•
•
•
the right to hold assemblies should be applied equally;
road-blocks should not be used to prevent
assemblies from taking place;
the police should exercise restraint when
dispersing assemblies;
the police should give warnings to disperse loudly and clearly for three times at
10 minute intervals;
sufficient time should be given by the police for the crowd to disperse; and
people who are trying to get away after
the warning to disperse should not be
chased and/or assaulted.
In 2001, suhakam also released a report
titled “Freedom of Assembly”, calling for amendments to regulations and legislation pertaining
to public assemblies. It also stated that freedom of assembly does not necessarily disrupt
peace or lead to public disorder and called for
a relaxing of police control on rallies.7
Then in March 2007, suhakam released
another report on the freedom of assembly – its public inquiry into alleged human
rights violations during a public demonstration against increased fuel prices in Kuala
Lumpur on 28 May 2006. In the report, the
Commission recommended that “peaceful assemblies should be allowed to proceed without a licence”.8 The commission concluded
that the police had used excessive force; that
they had infringed the rights of some of the
participants; and that certain officers could be
charged under the Penal Code.9
The serious and repeated violations of
freedom of assembly in 2008 clearly demonstrate the Malaysian government’s disregard for not only the recommendations by
suhakam but also the safeguards of this right
under Article 20 of the Universal Declaration
of Human Rights 1948 and Article 10 of the
Federal Constitution.
Public Assemblies, Demonstrations
and the Government’s Response
In 2008, the government used various means
to deter public assemblies, especially those
organised by opposition political parties or
groups affiliated to opposition political parties, and those held to highlight issues critical
of the government. These included obtaining
court orders to restrain certain individuals
from attending demonstrations, denying bail
for those arrested during demonstrations and
demonising organisers of demonstrations and
public assemblies.
Organisers and participants of a demonstration against the rise in toll prices in January being arrested by the police. A total of 47 people
were arrested during the demonstration on that day. (Photograph courtesy of Malaysiakini)
97
The year started with a crackdown on a
protest against price hikes held on 26 January
2008, during which 47 persons were arrested
by the police. On the previous day, the police
had declared the rally illegal and obtained a
court order banning five people from being
within a one-kilometre radius of the protest
venue, viz. Kuala Lumpur City Centre (klcc).
Even before the protest had commenced at
about 2pm, the police started arresting individuals. This included the Secretary-General of the Socialist Party of Malaysia (psm)
S. Arutchelvan, one of the five individuals
named in the court order, at a train station
near the protest venue. Of the 47 arrested by
the police, 12 were released on the same day,
while the remaining 35 were charged at the
Kuala Lumpur Sessions Court on 28 January
2008 with taking part in an illegal assembly.
Among those arrested and charged was Malaysiakini journalist, Syed Jaymal Zahiid, who
claimed that he was punched on the head and
had his hair pulled by the police during his
arrest.
On 11 May 2008, five individuals were
arrested during a 45-minute rally in Penang
organised by hindraf to demand the release
of isa detainees, while another two, including
suaram’s Lau Shu Shi and Teh Chun Hong,
were arrested after they lodged police reports
at the Georgetown police headquarters. The
five arrested during the rally were freed on
police bail after being held for seven hours
while suaram’s Lau and Teh were detained
overnight after being remanded for one day
for unruly conduct at the police station. As
98
of December 2008, there were no charges
against the seven arrested in relation to the
protest.
Then on 27 May 2008, during a protest by residents of Bandar Mahkota Cheras,
Kuala Lumpur against the actions of a toll
company to barricade a toll-free route, excessive and unwarranted force was used by the
police resulting in serious injuries to a 21-year
old man. On the day of the incident, residents
who had gathered to dismantle a concrete
barrier erected by a highway concessionaire
were met by a group of men whom residents
alleged to have been hired by the concessionaire. This resulted in a clash between the two
groups and the Federal Reserve Unit (fru)
was called in to control the situation. During the course of the incident, four individuals in a car nearby were stopped by the fru
personnel, and were assaulted by the fru and
plain-clothed police officers. The incident left
21-year-old Chang Kiun Haur, who was driving the car, seriously injured. The four were
subsequently arrested but were released on
the following day.
In July, suhakam conducted a public inquiry into the incident and concluded that the
police had used excessive force and breached
international standards outlined in the Basic
Principles on the Use of Force and Firearms
by Law Enforcement Officers.10 suhakam also
reiterated its recommendations in two of its
previous public inquiries related to public assemblies, saying:
“Similar recommendations made in suhakam’s Report of Public Inquiry into the
Incident at klcc on 28 May 2006 and suhakam’s Report on Freedom of Assembly
have remained unheeded by the Police. This
is evidenced by the recurrence of excessive
use of force and unprofessional Police conduct in the dispersal of peaceful assemblies
in past assemblies and the incidents of heavyhandedness action of fru personnel as found
in this Public Inquiry.”11
Again on 1 June 2008, during a walk organised by media reform groups and journalists to press for greater freedom of the press,
the police required the participants to walk
in pairs if they wanted to proceed with the
event. This requirement of breaking up participants into pairs was to prevent the event
from resembling a rally.
Another march organised by groups of
indigenous peoples to submit a memorandum
on the rights of the indigenous peoples to the
King on 13 September 2008, was originally
planned to proceed from the Central Market to the Palace in Kuala Lumpur. This
was halted by the police despite having been
given assurance earlier that the event would
be allowed to proceed. The march and the
submission of the memorandum was to mark
the first anniversary of the Declaration on the
Rights of the Indigenous Peoples, adopted
by the United Nations General Assembly in
2007. Their demands included the establishment of an Orang Asli native court in Peninsular Malaysia, the repeal of laws which marginalise the Orang Asal or indigenous people
and an end to the government’s practice of
leasing native customary rights land without
consulting native communities. According to
the police, the march was stopped because the
organisers did not have a police permit. However, the organisers said that they had already
sent letters to the police two weeks earlier but
the police only responded two days before the
event. The organisers also claimed that they
had been assured by the police on the morning of the event that the march would be allowed to proceed.
On 23 October 2008, 12 persons, including the six-year old niece of isa detainee
and the Hindu Rights Action Force (hindraf)
leader P. Uthayakumar were arrested when
they tried to submit a letter to the Prime Minister. The group had attempted to submit a
handwritten letter urging the Prime Minister
to release all those detained under the isa.
99
arrested during a peaceful assembly to commemorate the first anniversary of the massive
bersih rally held on 10 November 2007. They
included a Member of Parliament, state assemblypersons and journalists. A 53-year old
woman named Dian Abdullah was attacked
from behind by a few policemen, causing
her to fall and injure the back of her hand.
Member of Parliament Tony Pua and Selangor state assemblyperson Lau Weng San
also alleged that they were manhandled and
punched respectively.
arrested in relation to an anti-isa assembly organised by the Abolish isa Movement (Gerakan
Mansuhkan isa, gmi). Seven individuals were
arrested during the event while another two
individuals, opposition Member of Parliament Salehuddin Ayub and Vice President of
the opposition Pan-Malaysian Islamic Party
(Parti Islam Se-Malaysia, pas) Mohamad Sabu,
were arrested when they visited the seven arrested at the police station where they were
being held.
In December, 120 individuals were arrested during a bicycle campaign organised
by the Network of Oppressed People (Jaringan Rakyat Tertindas, jerit), held over a period
of 15 days. The campaign was to call on the
government to make a number of policy and
institutional reforms. It kicked off on 3 December 2008 in the northern state of Kedah
and ended on 18 December 2008 at the Parliament in Kuala Lumpur. The campaigners,
comprising teams of cyclists and volunteers,
100
were harassed by the police at almost every
step of their campaign. (See Chapter 2: Abuse of
Powers by the M
alaysian Police.)
As in 2007, when the police linked
h
indraf to the Liberation Tigers of Tamil
Eelam (ltte) after the former had organised
a massive rally in November that year, 2008
also saw police efforts to demonise the organisers of demonstrations. In December, the Inspector General of Police (igp) Musa Hassan
described those who participated in demonstrations as “hypocrites” who did not observe
the democratic process. He also said that organisers of demonstrations are “engrossed
with demonstrations” and “demo crazy”.12 In
response to a bicycle campaign organised by
jerit, which saw the arrests of minors, the police branded the organisers as “irresponsible
people” who “misuse and exploit” minors.13
Double Standards in Regulating
Assemblies
In contrast to these cases above, other demonstrations and assemblies, especially those
which did not target the ruling government,
were tolerated. Several examples in 2008
demonstrate the double standards applied by
the police in regulating assemblies.
On 23 November 2008 – the same day
that nine participants of the anti-isa assembly were arrested – another rally, held by
the Heritage Associations, Malay Cultural
Organisations and Related Bodies Cooperation Network (Pewaris) in support of the use
101
of the isa, was granted a permit and allowed
to proceed without any interruption by the
police.
That same month, the youth wing of the
Malaysian Indian Congress (mic), one of the
main component parties in the ruling bn coalition, was allowed to hold a demonstration
against the Sri Lankan government’s military
offensive against the Tamil minority in northern Sri Lanka.
Assemblies pertaining to Malay rights
and Islam were also tolerated by the police. At
least three such assemblies were held in 2008.
All of these assemblies, although racial and
religious in nature – issues often considered
“sensitive” by the government – were allowed
to proceed:
On 9 August 2008, in protest against a
forum organised by the Malaysian Bar Council to discuss the issue of families caught between the separate jurisdictions of civil and
Syariah laws, a demonstration was held by
members of the ruling United Malays National Organisation (umno), the opposition
People’s Justice Party (Parti Keadilan Rakyat,
pkr) and Pan-Malaysian Islamic Party (Parti
Islam Se-Malaysia, pas), and also several other
Malay and Islamic-based ngos. Despite the
fact that several demonstrators had broken
into the venue to forcibly stop the forum, the
demonstration and break-in was allowed by
the police. (See Chapter 6: Freedom of Religion and
Matters Pertaining to Religion.)
On 13 August 2008, the police granted
a permit to students organising a march to
oppose a proposal to allocate a quota of 10
percent for non-Malays in the admission to
Universiti Teknologi Mara (uitm), a university
which has been opened only to Malays since
its inception.
On 29 December 2008, a rally organised
by Yayasan Aminul Ummah Malaysia in Penang
to protest against those who question Malay
rights and matters especially “ketuanan Melayu”
(“Malay supremacy”) was held with a police
permit.
102
Judiciary and Military Collusion in
the Crackdown on Assemblies
Organisers and participants of a demonstration against the rise
in toll prices in January being arrested by the police. A total of
47 people were arrested during the demonstration on that day.
(Photograph courtesy of Malaysiakini)
Since 2007, the government has also attempted to stop public assemblies by obtaining court
orders barring individuals from access to places surrounding the venues of planned assemblies. These court orders allow the police to
arrest individuals named in the court orders
if they are spotted in the prohibited areas. In
2008, such court orders were obtained on at
least two occasions.
In January, the police obtained a court
order barring five individuals identified as organisers of a demonstration against the rise in
fuel prices from being within a one-kilometre
radius of the Kuala Lumpur City Centre
(klcc), the protest venue. During the demonstration, 35 persons were arrested, including
the five who were subsequently charged with
violating the court order.
In July, pkr leader Anwar Ibrahim received a court order barring him and his
supporters from being within 5 kilometres of
the Parliament building. The court order was
obtained after Anwar had expressed his intention of attending a parliament debate session
on a non-confidence motion by the opposition
coalition Pakatan Rakyat against the leadership of Prime Minister Abdullah Badawi.
Also in July, a joint military-police exercise was held four days before an anti-fuel
price hike rally, raising serious concerns of an
unprecedented involvement of the military in
public assemblies. On 3 July 2008, InspectorGeneral of Police Musa Hassan stated the
possible inclusion of the military to assist the
police to maintain order.14 This proposal was
strongly criticised by civil society organisations as it was seen as an effort to create an
artificial environment of insecurity and to
generate fear among Malaysians on the eve
of a planned massive rally against the government’s hugely unpopular policies.15
Freedom of Association
The right to freedom of association in Malaysia is severely restricted by laws such as the Societies Act 1966, under which any association
consisting of seven or more members must
register as a society. The government may
refuse to register a new society, impose conditions in registering new societies, or deregister
a society.
Restrictions in breach of the fundamental right of freedom of association are also
imposed on trade union officials through the
Trade Unions Act 1959. Under Section 27 of
the legislation, public officers are prohibited
from joining any trade union, while Section
28 states that officers of trade unions cannot
hold office in political parties unless exemptions are sought.
Likewise, officials of the Bar Council,
the professional body of the legal profession,
face similar restriction under Section 46(A)(1)
of the Legal Profession Act, which states, “A
person shall be disqualified for being a member of the Bar Council or a Bar Committee
[…] if he holds office in any trade union, any
political party, or any organisation […] which
has objectives or carries on activities which
can be construed as being political in nature
[…].”
The Universities and University Colleges Act 1971 (uuca) is another violation of the
freedom of association for university students
and academics. Under this Act, students and
faculty members are not allowed to express
support, sympathy or opposition to any political party or trade union, nor any action that
may be construed as such.
Registrar of Societies and Obstacles
to Political Parties and Movements
In 2008, the Socialist Party of Malaysia (Parti
Sosialis Malaysia, psm) was finally registered as
a political party, 10 years after it first filed its
application.
psm first submitted its application in
1998, but the bid was rejected by the Registrar of Societies (ros) in January 1999. psm
brought the Home Ministry to court in November 2002 after the ministry rejected their
appeal against the ros decision not to register
them as a political party. psm said that they
sent numerous letters to the ministry reminding them of their request, only to have their
application rejected.
In January 2003, psm’s application for
judicial review was rejected by the Kuala
Lumpur High Court. Justice Abdul Hamid
Said ruled that the Societies Act 1966 provides
for the ros to impose conditions as it deems
fit before registering a society. One condition
that was allegedly not fulfilled was the establishment of at least seven state branches for
a national organisation. The court also accepted the ros’s “security” concerns based on
information from the police that could not be
reviewed by the courts.
In February 2003, psm filed an appeal to
the Court of Appeal, but the case was only
heard in April 2006. On 16 August 2006,
103
psm’s appeal to be registered as a national level
political party was dismissed by the Court of
Appeal. The court ruled that the government
cannot cite grounds of national security to
defend its decision not to register psm. However, the court also ruled that the party must
have representatives from at least seven states,
as required by the ros, to be registered as a
national political party. Instead of granting
them registration at the national level, Justice
Gopal Sri Ram said that the party could be
registered at the Selangor state level.
However, in September 2006, the party
found out that the Selangor state ros had never received any directives to register psm, and
thus the party remained unregistered even at
the state level. Following this, psm filed an application to the apex court. On 23 April 2007,
the party took their case to the Federal Court
and was granted leave to appeal against their
failure to be registered as a political party.
On 28 May 2008, psm sent a memorandum to Home Minister Syed Hamid Albar
regarding its registration status. In response
to this, psm received an email from the minister on 4 June 2008 which in summary indicated the ministry’s approval of psm’s registration. This was followed up two days later
by another email to psm in which the minister
stated that the Home Ministry would write to
inform the party on the steps to be taken to
finalise the registration.16
On 17 June 2008, psm secretary-general
S. Arutchelvan received another letter from
the ministry. The letter, dated 16 June 2008,
made reference to the memorandum by psm
which was submitted to the Home Minister
on 28 May 2008 and asked the party’s representatives to re-submit a new application following conditions set by the ros.
The party was finally given official approval of its application for registration as a
political party in an ros certificate dated 19
August 2008. psm announced its official registration in a press conference held in Kuala
104
Lumpur on 10 September 2008.
Another political party which has faced
similar problems in its application to be registered under the ros is the Malaysian Dayak
Congress (mdc) in the East Malaysian state
of Sarawak. The mdc first submitted its application for registration in May 2005 but was
rejected by the ros in July 2006. In August
2008, the pro tem committee filed a formal
appeal to review the decision which was still
pending as of December 2008.
The years of delays and obstacles faced
by psm in its efforts to register as a political
party are an example of the government’s
selective application of the freedom of association. While opposition parties typically
confront red tape, delays, and dismissal by the
ros, component parties of, or parties which
make known their intent to cooperate with
the ruling coalition, do not find them in such
a predicament, and their applications are
normally promptly approved. This was seen
in the case of the Malaysian Indian United
Party (miup), a newly-formed political party
which had pledged to work closely with, and
give support to, the ruling bn coalition in
2007.17 The party’s application for registration was approved within weeks, as compared
to the case of the mdc and psm’s 10-year wait
for registration.
On 15 October 2008, the government
banned hindraf, a movement which had
organised a massive rally in Kuala Lumpur
on 25 November 2007, and numerous other
smaller rallies nationwide, demanding equality and fair treatment for ethnic Indians in
Malaysia. After the 25 November mass rally,
which drew some 30,000 people, the government detained five leaders of hindraf under
the isa. The government had also embarked
on an intensive propaganda campaign to demonise the organisation, linking it to “terrorists”.18 (See also suhakam’s position on the ban of
hindraf in Chapter 9: Human Rights Commission
of Malaysia.)
Workers’ Right to Association
Although most Malaysian workers are able
to participate in trade union activities, there
are many restrictions on the right to organise
under the Trade Union Act 1959. The Act requires all trade unions to be registered in order for their activities to be considered lawful.
The Act further limits unions to representing
workers in a “particular establishment, trade,
occupation, or industry or within similar
trades, occupations and industries.”19 This restriction has encouraged the setting up of inhouse and enterprise-level unions – keeping
the labour movement fragmented. The Director General of Trade Unions has absolute discretion to determine what “similar trades”20
refer to. He may also refuse to register a trade
union, and in some circumstances, may also
withdraw the registration of a trade union.
Such decisions are discretionary and not subject to challenge in court.
Compounding these restrictions, workers employed under categories labelled “confidential”, “managerial”, “executive”, and
“security”, are prohibited from joining trade
unions. Similarly, non-clerical police and military personnel are also prevented from unionising.21
In 2007, amendments to two labour
laws, the Industrial Relations Act 1967 and
the Trade Unions Act 1959, were passed
swiftly by the Parliament, putting more restrictions on the workers’ rights.
Under the amended Section 9 of the
Industrial Relations Act, if a union submits a
request for its recognition to its employer and
there is no reply from the employer after 21
days, the union must within 14 days submit an
appeal to the director-general of the Industrial Relations Department, failing which the
union will not be recognised. In comparison,
before the amendments, if a union submits
a request for its recognition to its employers
and there is no reply from the employer after
21 days, the union can inform the directorgeneral of Industrial Relations Department to
take action.
Amendments to Section 40 of the same
legislation, meanwhile, prohibits unions from
holding pickets during or pending the proceedings of a Board of Inquiry (appointed by
the Minister) and within seven days after the
conclusion of such proceedings. For instance,
when there are delays in cases like the recognition of unions, workers are now prohibited
from picketing. Before the amendments, if a
case like the recognition of a union process is
delayed, workers can hold a picket as a protest
and demand the case to be expedited.
The amendments of the two labour laws
were swiftly passed by the Lower House of
the Parliament (Dewan Rakyat) in end August
2007. It was then passed by the Upper House
(Dewan Negara) in December 2007. The
amendments to the legislation were made
without consultation with the Malaysian
Trade Congress (mtuc) and other civil society
organisations.22
Students / Youth Organisations and
Restrictions on Freedom of
Association
The Universities and University Colleges Act
1971 (uuca) severely restricts students and
university staff in their exercise of free speech
and expression, assembly and association.
The uuca targets mainly public university
students, imposing a variety of prohibitions
against students. These include, among others, prohibiting student bodies and organisations in affiliating with, or dealing in any way
with, any society, political party, trade union,
or organisation – whether on campus or elsewhere, in or out of the country – without the
prior approval in writing from the vice chancellor.
105
In addition to the restrictions under the
uuca, undergraduate students and civil servants, including teachers, university lecturers,
are also compelled to sign a loyalty pledge,
“Akujanji”, promising “loyalty” and “good
conduct”. Then-Prime Minister Mahathir
Mohamad, who introduced this pledge in
2001, said that signing the pledge would
help check the “poisoning of the minds” of
students, and to ensure that they “stick to
the original purpose of entering universities to gain knowledge, and not indulge in
anti-government activities”.23 Since then, students and educators have received numerous
threats and warnings regarding the repercussions for not signing the pledge. The penalties
range from warnings, fines, and the stripping
of monetary benefits such as allowances, to
demotions and termination of employment.
The restrictive provisions in the uuca
and the pledge which they are required to
sign make it extremely difficult for students in
public universities to exercise their freedom
of association. Compounding these legal and
procedural restrictions for students to form associations and carry out activities, numerous
cases in the past show that authorities in public universities often victimise students who
are involved in societies and groups which are
not overtly “pro-establishment”.
In October 2008, a group of students
from the National University of Malaysia
(Universiti Kebangsaan Malaysia, ukm) alleged
that they were subjected to mistreatment and
abuse of powers by the university’s security
guards when they tried to meet Minister of
Higher Education Khaled Nordin to hand
over a memorandum on campus elections.
One of the students, Mohd Farid Hamlud,
claimed that he was punched, clawed, elbowed and slapped by the guards. On 23
October 2008, the students submitted a complaint to suhakam on this case.24
Meanwhile, members of the Chinese
Language Society in Universiti Putra Ma-
106
laysia (upm) have failed in their attempts to
register the banned society. After numerous
applications to register the society had been
rejected by the university, in November 2006,
the students brought their case to the Higher
Education Ministry, urging a review of the
ban. In March 2007, the Higher Education
Ministry announced that a government-appointed committee would review the guidelines of registration for societies in public universities. However, there has been no further
progress on this matter up until the end of
2008.
UUCA Still Restrictive After
Amendments
In October 2007, then-Minister of Higher
Education Mustapa Mohamed announced
that the uuca would be amended to provide
for greater freedom of speech for university
students and to “loosen up the environment
in universities”.25 Then in May 2008, Mustapa’s successor, Mohamed Khaled Nordin,
in announcing that the amendments to the
Act would be tabled said, “The amendments
are to improve on the existing provisions while
the objective is to produce more creative and
innovative graduates and create a conducive
learning environment.”26 The minister added
that the government “[will] take into account
the views of all stakeholders including students and parents” in amending the uuca.27
In August 2008, Khaled revealed that
the Ministry of Higher Education had submitted its proposal to the Attorney-General
for amendments to the uuca. He also revealed several changes that were proposed,
including:
University students will only face disciplinary action by their university authorities.
Before the amendments, students faced prosecution if they were involved in political parties or “unlawful” organisations.
Politicians will be allowed to enrol for
courses in universities without needing to give
up their political career, with the discretion of
the vice-chancellor of the university.
University students facing criminal
charges, detention, restriction or imprisonment for offences committed outside campus
may also be permitted to sit for examinations. Prior to this, the law provided for the
immediate suspension of students upon being
charged with a criminal offence. This provision had been used by university authorities
to suspend students who were charged with
“political” offences especially for participating
in “illegal assemblies”.
However, Khaled said that students
would still not be allowed to join political parties even after the amendments. These proposals for amendments were met with criticisms from human rights and student groups,
who viewed them as inadequate and that
students’ political expression would still be
curtailed even with the amendments. On 18
August 2008, a group of students representing 13 student groups staged a demonstration
outside the entrance of the Parliament and
submitted a memorandum to the Ministry
of Higher Education, stressing that students
should be given the freedom to voice their
opinions on political issues.
When the amendments were debated
in Parliament on 11 December 2008, similar
concerns were raised by several Members of
Parliament, from both the ruling and opposition coalitions. Democratic Action Party (dap)
Member of Parliament Tony Pua proposed
a series of changes to the wordings in the
amendments based on consultation with student groups and academicians but they were
outvoted in the bn-dominated Parliament. A
bn Member of Parliament, Khairy Jamaluddin, also voiced his disagreement with the
banning of students from political activities,
saying that he would vote in favour of the
amendments but nevertheless expressed con-
cerns on the ban on political activities of university students, pointing out the existence of
clubs for Malaysian university students set up
by the ruling-United Malays National Organisation (umno) in several countries. He also
pointed out that politics was already a part
of students’ activities in universities, with the
existence of the so-called “pro-establishment”
and “anti-establishment” groups, according
to the media.28 The bn Member of Parliament
said, “We should let the students have a free
flow of political ideas so they can excel in the
arena […].”29
During the parliamentary debate on
the amendments, a group of student activists
showed up at the lobby of the Parliament to
urge parliamentarians to reject the amendments which they deemed as “cosmetic” in
nature. They also called for a parliamentary
select committee to be set up to review the
amendments.30
Despite the criticisms and protests, these
amendments were passed in the Parliament:
•
•
•
Part-time and graduate students, who
were previously exempted, will come
underthe ambit of the Act.31
Students can join outside bodies but are
still banned from joining political parties.
Similarly, student organisations can be
affiliated to other organisations, but not
political parties. They are also prohibited
from expressing support for, or opposition
to, any political party. Under the amendments, the minister will issue a list of
organisations which students are banned
from joining.32
Students and student organisations are
banned from expressing support for, or
opposition to, any political party. The
minister is also given powers to “amend,
vary or revoke” a campus order, or
campus internal regulations after the
amendments.33
107
Summary
The year 2008 saw a continuation of the
2007 repressive trend. Again, many arrests,
detentions and violent reactions by the police
during assemblies, demonstrations, protests
and rallies were recorded. The methods used
by the government to suppress assemblies
in 2007 continued to be employed in 2008.
These included court orders to bar individuals
from being present at certain locations where
assemblies were held; violent reactions by the
police using teargas and water cannons, and
arrests and charges against those who had
attended public assemblies. While most assemblies were clamped down, others which
targeted non-governmental bodies were tolerated. This practice of selective and inconsistent recognition of fundamental freedoms was
also evident in the government’s approval of
societies’ registration.
Two disturbing trends were discerned in
2008: firstly, the government’s double standards in its recognition of the right to assembly
and association; secondly, the use of the judiciary besides the police to regulate, prevent
or discourage the exercise of the freedom of
assembly, and the threat of involving the military in keeping order. Other patterns of violations of these two fundamental liberties by
the government, such as restrictive laws which
contravene the freedoms of assembly and association continue to persist.
108
End notes
14 “Army to help maintain order if need
arises”, The Star, 3 July 2008, http://thestar.com.my/news/story.asp?file=/2008
/7/3nation/21723936&sec=nation (last
accessed 3 December 2008).
1
Section 27A(1) Police Act 1967.
2
Ibid.
3
Section 30 Police Act 1967.
4
Section 28 Police Act 1967.
5
Section 27A(7) Police Act 1967.
6
(2001a) Inquiry on its Own Motion into the November 5th Incident at the Kesas
Highway, Kuala Lumpur: suhakam (pp.
64-66).
7
suhakam
16 S. Arutchelvan, 17 June 2008, “Menteri
dalam e-mail setuju daftarkan psm” [Minister agrees to register psm in email],
Official psm website, http://www.partisosialis.org/posts/317/menteri-dalame-mail-setuju-daftarkan-psm/ (last accessed: 15 June 2009).
8
Inquiry into the Incident at klcc on 28 May
2006, Kuala Lumpur: suhakam (p. 97).
17 See “New Indian-based party to back bn”,
Malaysiakini, 25 November 2007, http://
9
Ibid.
10
suhakam
Force by Law Enforcement Personnel During the
suhakam
(2001b) Freedom of Assembly: A
Report, Kuala Lumpur: suhakam.
suhakam
11 Ibid. (p. 36).
12 “Jerit Indoctrinates Younger Generation To Become Protestors”, Bernama,
21 December 2008, http://www.bernama.com/bernama/v5/newsindex.
php?id=379762
13 “‘We acted to save under-aged cyclists’”,
www.malaysiakini.com/news/94930
15 See, “Reject calls for the use of armed
forces in the preservation of public order”, 4 July 2008, Joint statement of 27
Malaysian civil society organisations.
20 Ibid.
21 Section 27, Trade Unions Act 1959.
22 See Kulasegaran, M., 27 August 2007,
Third Meeting of the Fourth Session
of Eleventh Parliament, Hansard, D.R.
27.8.07, p. 56 http://www.parlimen.gov.
my/hindex/pdf/DR-27082007.pdf (last
23 “Undergrads to sign good-conduct
pledge,” New Straits Times, 25 January
2002.
24 “20 ukm Students Submit Complaint To
Suhakam Over Mistreatment By Secu-
109
24 rity Guards”, Bernama, 23 October 2008,
http://www.bernama.com/bernama/
v5/newsindex.php?id=366907 (last accessed: 15 June 2009).
25 “More freedom of speech after uuca
amendment”, The Star, 24 October
2007,
26 “uuca Amendments Expected This
Year”, Bernama. 8 May 2008, http://www.
php?id=331712 (last accessed: 15 June
2009).
27 Ibid.
28 Khairy Jamaluddin, 11 December
2008, Third Meeting of the First Session of the Twelfth Parliament, Hansard, DR.11.12.08 (pp. 65-69) http://
DR-11122008.pdf (last accessed: 15 June
2009).
29 Ibid. (p. 68).
30 “Amendments
to
uuca
passed”,
31 Section 2, uuca (Amendments)
110
chapter 6:
FREEDOM OF
RELIGION AND
MATTERS PERTAINING
TO RELIGION
F
reedom of religion is guaranteed The year 2008 saw a heightened politi-
under Article 11 of the Federal
Constitution.In recent years, however,
the country has witnessed controversy because
of sectors who contend that Islamic Syariah
laws should have supremacy in matters of
faith. This trend continued in 2008.
According to the latest available government figures compiled by the Department of
Statistics, the religious makeup of Malaysians
in 2000 was as follows: 60.4% Muslims;
19.2% Buddhists; 9.2% Christians; 6.3%
Hindus; and 2.6% Confucianists, Taoists and
practitioners of other traditional Chinese religions. The remaining 2.4% were followers of
other faiths, including animism, Sikhism, and
the Baha’i faith.1
Although relations between the peoples and among the leaders of the many
faiths practiced in Malaysia are generally
amicable, full acceptance of religious diversity and equality still remains unattainable.
Interfaith dialogue between Muslim groups
and non-Muslim groups has been elusive,
while the discourse among Muslim groups is
dominated by the conservative sector. Thus,
advocates of human rights perspectives in
religion constantly face difficulties, are treated
with distrust, and are often accused of being
“un-Islamic” and even “anti-Islam”.
As the Federal Constitution defines a
“Malay” as, among other things, “a person
who professes the religion of Islam”,2 vying for the
Malay majority vote for political power necessarily entails “championing” Islam. As such,
there is a longstanding competition on this
front between the opposition Pan-Malaysian
Islamic Party (Parti Islam Se-Malaysia, pas), and
the United Malays National Organisation
(umno), the dominant party in the Barisan
Nasional (bn) ruling coalition. This contestation has led to the politicisation of Islam in
the country, accompanied by policies and
practices that violate international human
rights standards.
112
cisation of religion, especially after the 12th
General Elections. After suffering significant
losses in both the Parliament and state assemblies, umno-dominated bn government sought
to regain the Malay majority vote by asserting
itself as the defender of Islam and the Malays.
This was seen for instance, in the repeated
threats by its leaders against those who raised
and discussed about Syariah laws and the position of Islam in Malaysia.
Controversies over Apostasy
Although freedom of religion is guaranteed
by Article 11 of the Federal Constitution, it
is nearly impossible for individuals who have
renounced Islam and embraced another faith
to obtain official recognition of their decision.
Legal and constitution experts hold
divergent views on whether the Federal Constitution allows action to be taken
against apostates. Some argue that the freedom of religion guaranteed by Article 11 of
the Federal Constitution is conditional on
Article 3(1), which states that Islam is granted
special status as the country’s official religion.
Hence, they argue, to take legal action against
Muslims who choose to depart from Islam or
convert to other religions does not contravene
the provisions of the constitution. Those who
advocate this view also draw on Article 11(4)
to support their argument. The clause stipulates that state and federal law “may control
or restrict the propagation of any religious
doctrine or belief among persons professing
the religion of Islam”.
On the other hand, detractors hold that
the court should adhere to the spirit of the
Constitution. While Article 3(1) makes clear
the state’s commitment to promote Islam, the
clause should not override other provisions
that guarantee citizens’ fundamental rights,
including personal liberty and the freedom
to associate and disassociate. Furthermore,
Article 12(3), which holds that “no person
shall be required to receive instruction in or
take part in any ceremony or act of worship
of a religion other than his own” in fact provides for freedom of religion. While Article
11(4) permits restriction to propagation of
other religions among Muslims, it does not
restrict a Muslim from studying other religions and converting to another religion of
his/her own free will.
Some legal experts maintain that it is a
commonly held misconception that Muslims
are legally prohibited from renouncing their
faith. They point out that it is not within the
competence of the state legislature to make
laws to this effect. The Syariah courts have
jurisdictions only over persons who profess
Islam. Likewise, the state can only enforce
Islamic laws upon persons who profess Islam.
One who no longer professes Islam following
his/her renunciation is supposed to be free
from the jurisdiction of Syariah courts
and Islamic laws. However, in practice, it is
virtually impossible for Muslims to officially
renounce the Sunni faith. The civil courts
have largely taken the view that the Syariah
courts have jurisdiction over the issue of
apostasy.
On 17 February 2008, a follower of the
teachings of Ayah Pin, 57-year old Kamariah
Ali who had declared herself an apostate in
2005 was convicted on charges of apostasy
under Section 7 of the Syariah Criminal
Offence Enactment (Takzir) Terengganu –
an offence punishable by a fine of RM5,000
or a jail term of up to three years, or both.
After deferring sentencing to the month of
March, the Terengganu Syariah High Court
sentenced Kamariah to a jail term of two
years on 3 March 2008. The Terengganu
Syariah High Court Judge Mohamad Abdullah reportedly delivered the sentence based
on grounds of “public order”, as he found
Kamariah’s activities and actions impact-
ing on the sensitivities of the multi-religious
society in Malaysia.3
In May 2008, the Penang Syariah Court
allowed an application by Siti Fatimah Tan
Abdullah to renounce Islam and return to
Buddhism. Siti Fatimah, whose Chinese name
is Tan Ean Huang, filed an application in
May 2006 to renounce Islam. She converted
to Islam in July 1998 to marry an Iranian,
Ferdoun Ashanian. After a few months of
marriage, however, they separated and Siti
Fatimah claimed that she had maintained her
Buddhist faith.
Although the judgement was welcomed
by many, as Siti Fatimah was allowed to
professher Buddhist faith, civil society groups
have expressed their concern at the fact that
she had to obtain permission from the Syariah
Court in order to do so.
“Deviationist” Islam
State laws provide for a close surveillance and
tight policing of Islamic beliefs and practices
in various states of Malaysia. For instance, in
the Administration of Islamic Law Enactment
1989 for Selangor, exclusive powers are
given to the mufti to issue, amend, or revoke
fatwa (religious decrees that are binding and
enforceable once gazetted). In addition, the
Syariah criminal offences legislation makes it
an offence for anyone to have an opinion or
even own books contrary to the fatwa. These
restrictions can be found, for example, in
Section 9 of the Syariah Criminal Offences
Act 1997 for the Federal Territories, which
makes it a criminal offence if any person
“[…] acts in contempt of religious authority
or defies, disobeys or disputes the orders or
directions of the Yang di-Pertuan Agong
(king) as Head of the religion of Islam, the
Majlis or the Mufti, expressed or given by
way of fatwa”. In addition, Section 12 of the
same act makes it an offence for any person
113
to give, propagate, or disseminate any opinion
concerning Islamic teachings, Islamic law, or
any issue contrary to any fatwa when it is in
force.
Islamic authorities have powerful influence over the administration of religious
matters at the state and federal levels,
including what is considered to be “true”
Islam. Small Islamic sects are often labelled
“deviationist” although what qualifies as being
“deviationist” remains arbitrary. Members
of “deviationist” groups can be arrested and
detained in order for them to be “rehabilitated” and returned to the “true path of Islam.”
Over the years, there have been various
arrests, detentions, and announcements of
“successful” rehabilitation of deviationists
and the curbing of deviationist activities.
As of 31 December 2008, 56 “deviant”
groups and teachings in Malaysia have been
identified and blacklisted by Department of
Islamic Development in Malaysia (Jabatan
Kemajuan Islam Malaysia, jakim) (See Table 6.1).
* Names of individuals or deviant teachings repeated twice in jakim’s list
114
Agama Islam Pulau Pinang, jaipp). 51 persons
were arrested in the raid, out of which 43
In 2004, the Malaysian government released face charges of acting in contravention of the
Ashaari Muhammad, former leader of the state Islamic enactments. As of 31 December
Al-Arqam movement, who had been detained 2008, the hearings for their charges have yet
under the isa since September 1994. Al- to commence.
Arqam,also known as Darul Arqam, was banned In 2008, the government continued its
by the Malaysian government through a surveillance on the activities of groups and
ruling issued by the National Fatwa Council persons purportedly linked with Al-Arqam
on 5 August 1994. Ten aspects of Al-Arqam’s and Rufaqa. In December 2008, the Johor
teachings were considered to be deviant by the state assembly was told that the Johor Islamic
National Fatwa Council. Established in 1968, Affair Council (maij) had found that remnants
the movement grew in strength and influence, of the Al-Arqam and another religious sect,
setting up its own business enterprise by the Qadiyani, were still active in the southern Pe1980s. Several researchers have pointed out ninsula Malaysia state. The Chairman of the
that Al-Arqam was politically significant since Johor Religious Committee, Zainal Abidin
it had questioned the political system, Malay Osman, told the Johor state assembly that Alnational leadership, and Malaysian socio- Arqam under the guise of a company named
economic practices.4 After being banned Global Ikhwan was still active in the towns of
in 1994, the movement suffered an abrupt Johor Baru, Muar, Batu Pahat, Segamat,
demise with many of its leaders and members Kluang and Kota Tinggi. He also said that
the Johor religious authorities had started
being sent for religious “rehabilitation”.
However, since the release of Ashaari informational programmes to “strengthen
Muhammad, the government alleged that faith (in Islam)”, shut down premises and
there were various attempts to revive Al- confiscated printed materials which are
Arqam. At the end of 2006, several raids “against Islamic religious laws”.5
were conducted on the premises of Rufaqa
Corporation, the business arm of a movement
called Rufaqa, which has been alleged to be a Ayah Pin
revival of Al-Arqam under a different guise.
In 2007, the Selangor Islamic Affairs In 2005, following constant threats, warnings,
Department (jais) raided the premises of and harassment, the government unleashed
Rufaqa Corporation, seizing several items, a series of actions against the spiritual leader
including books and posters of former Al- Ayah Pin and his followers. Accompanied
Arqam leader Ashaari Muhammad. Selangor by the police, the Terengganu Religious Afstate executive councillor in charge of reli- fairs Department (jheat) arrested a total 80
gious affairs said that the raid and seizure of of Ayah Pin’s followers on two separate occaitems were carried out in accordance with a sions in 2005.
state gazette which bans all publicity materials Ayah Pin, a spiritual leader based
in Besut, Terengganu, claimed to be the
of Al-Arqam and Rufaqa.
In November 2007, a Hari Raya reincarnation of holy figures of major
gathering attended by staff, employers and religions in the world, and allegedly comguests of Rufaqa Corporation was interrupted manded some 40,000 multiracial followby a group of officials from the Penang ers, including some Orang Asli. Ayah Pin’s
Islamic Religious Affairs Department (Jabatan group was characterised by Minister in the
Al-Arqam and Rufaqa
115
Prime Minister’s Department Abdullah Md
Zin in 2004 as a threat to Muslim society
because some of his followers had renounced
Islam. The group was said to pose a threat to
national security comparable to that of AlMa’unah and Al-Arqam even though the former
are not seen as a “militant” group.6
In November 2008, Terengganu police
chief Mohd Shukri Dahlan said that the
police still considered Ayah Pin a threat and
that he may be arrested in view of reports that
the spiritual leader was back in Terengganu
after disappearing from the state since the
crackdown on his commune in 2005.7 Home
Minister Syed Hamid Albar however clarified
that Ayah Pin would only be arrested if the
Terengganu Islamic Religious Department
asked the police to do so.8 No arrest was made
in 2008 as Ayah Pin is believed to be living in
exile in southern Thailand.9
Shi’ite Islam
The ruling government also prohibits the
teachings of Shi’ite Islam, a major mazhab
(denomination) of Islam, leaving Sunni Islam
as the only faith to be practiced by Muslims in
the country. In October 2004, Minister in the
Prime Minister’s Department Abdullah Md
Zin contended that the ban was necessary to
maintain the unity of Muslims in the country
considering the differences between the two
mazhab.10 In the past, Shi’ite followers have
been detained under the Internal Security Act
1960 (isa). According to Abdullah Md Zin,
from 2 November to 7 November 1997, 10
Shi’ite followers were arrested under the isa.11
At present, suaram monitoring has found no
isa detainee held for involvement in Shi’ite or
other “deviationist” movements.
116
Legislating Islamic “Norms”,
“Values”, and “Morals”
The codification of Islamic “norms”,
“values”, and “morals” into state legislation imposes restrictions directly on Muslims
and indirectly on non-Muslims. The Syariah
criminal laws are enforced throughout the
country and govern a wide sphere of the
lives of Muslims. Muslims are subject to
restrictions on “immorality” through prohibition of alcohol consumption, gambling, and
khalwat (close proximity between men and
women who are not related to each other by
blood); the enforcement of fasting during the
month of Ramadan; observance of prayers;
“decency” requirements (they must dress in
a “decent” way, socialise at “decent” places,
and pass their leisure time with “decent”
activities); and other stipulations.
Some state Syariah criminal offences
laws are clearly discriminatory. The
Terengganu Syariah Criminal Offences
(Takzir) 2001 has provisions that specifically
discriminate against and persecute women.
Section 48 makes it an offence for “a virgin
woman who, without any reasonable excuse
under Hukum Syarak (Syariah laws), to abscond
from the custody of her parents or legal
guardian”. In addition, Section 35 states that
any woman, who in any public place exposes
any part of her body that “arouses passion” is
liable for a fine of RM1,000 or a jail term of
up to six months. This contravenes Article 8
of the Federal Constitution which guarantees
equality before the law.
The Syariah criminal laws for these
offences are applicable throughout the
country, although enforcement is not as
consistent or widespread as it is for secular
criminal laws. On many occasions, the arrests
and raids are covered by members of the press
who sensationalise the stories and Muslim
women often become easy targets of humiliation, intimidation, and selective punishment.
Under Section 19(1) of the Syariah
Criminal Offences Act (Federal Territory)
1997, Muslims found guilty of consuming
alcohol are subject to a maximum jail term
of two years and/or a RM3,000 fine. Under
Section 19(2), those found guilty of abetting
in the sale of alcohol can face a jail term of up
to three years and/or a RM5,000 fine. Under
Section 35, those found guilty of committing
maksiat (vices) are subject to a jail term of up
to three years and/or a RM5,000 fine.
Over the years, concerned organisations
have repeatedly called on the government
to review and suspend the Syariah Criminal
Offences Enactment in view of the violation
of citizens’ rights during “moral raids” and
arrests. They have argued that the legislation is too vaguely and broadly formulated
and prone to manipulation and abuse by
enforcement officers. Religious departments
and municipality officers often conduct moral
policing operations to round up and punish
Muslims for “indecent behaviour”.
In 2007, suaram documented the case
of Ayu, a transsexual who was detained by
officials from the Melaka Islamic Religious
Melaka, jaim) for committing the “offence”
of “men dressing up as women in a public
space” under Section 72 of the Melaka
Syariah Offences Enactment. When arrested
and while in detention, Ayu was seriously
beaten by the officials of the religious
department. As a result of the assault, she
had to undergo a surgery for a pre-existing
abdominal hernia condition which was
aggravated by the assault.12
In October 2008, the National Fatwa
Council issued a fatwa which ruled that young
women who behave like men and engage in
lesbian sex are forbidden in Islam. According
to the National Fatwa Council chairman
Abdul Shukor Husin, the fatwa was issued
because “[t]here are teenage girls who prefer
the male lifestyle including dressing up in
men’s clothes […and] [m]ore worryingly, they
have started to engage in sexual activities”.13
The fatwa was criticised by various
civil society organisations, including Sisters
in Islam (sis), who described the fatwa as
“sexist and discriminatory”, warning that
it could lead to arbitrary arrests and undue
harassment of Muslim women and girls. sis
pointed out the problematic definition of the
fatwa’s ban on women who behave like men
as “many Malaysian women sport short hair,
wear pants, shirts and do not wear make up”
and that it is “culturally normal for Malaysian
women to […] hold hands, hug their friends
or kiss their friends on the cheek”.14 The ngo
further argued:
“[I]t is not Islam's obsession to police people's morality, find people's
fault or to spy on its followers. Islam
is also totally against defaming one's
character. In fact, Islam regards privacy and preserving one's dignity as
an intrinsic basic right. Thus any
human-made law cannot violate
these basic rights enshrined in Islam.”15
On 7 November 2008, several civil
society groups and individuals staged a
protest in Kuala Lumpur against the issuance
of the fatwa. In response to this, InspectorGeneral of Police Musa Hassan warned
non-Muslim ngos not to interfere in matters
involving Islamic laws or risk severe actions
by the p
olice.16
Barely a month after the fatwa on
women behaving like men was issued, the
National Fatwa Council, on 22 November
2008, declared that yoga practices which
involve physical movements, worshipping and
chanting was forbidden in Islam. National
Fatwa Council Chairman Dr Abdul Shukor
said that the ban on yoga was because the
Hindu elements of worshipping and chanting
117
is “against Islam” and “can erode one’s faith
or aqidah”.17
Malaysia’s federalist system places
Islamic law under state jurisdiction, as stated
in List II, Ninth Schedule of the Federal
Constitution. As such, a fatwa is only enforce
able once it is gazetted by the respective state
governments. Nevertheless, not all fatwa
that are gazetted become public knowledge,
resulting in gaps between enforcement and
public awareness of such laws. Furthermore,
fatwa which rule on issues of morality and
regulate a person’s private life to the smallest
detail, such as those on women dressing up
as men and the practice of yoga, are difficult
to enforce and often only lead to selective
prosecution and victimisation.
On 9 December 2008, it was reported
that the East Malaysian state of Sarawak
had agreed to gazette the fatwa on yoga. The
Assistant Minister in charge of Islamic affairs
in the Sarawak Chief Minister Office, Daud
Abdul Rahman, said that the Sarawak State
Attorney-General’s Office was in the process
of gazetting the fatwa. Nevertheless, he said
that he could not ascertain when the fatwa
would be implemented. It was also reported
that the state of Melaka has agreed to implement the fatwa, while other states namely
Penang, Kedah, Terengganu, Perak and
Selangor were still in discussion on whether to
gazette the fatwa.18 On 4 December 2008, the
chairman of the Johor Religious Committee,
Zahid Abidin Othman, told the Johor state
assembly that the Johor state government
will legislate the ban on yoga “in the near
future”.19
Freedom of Worship and the Position
of Non-Muslims
Proselytising of Muslims by members of
other religions is strictly prohibited although
proselytising of non-Muslims face no such
118
r estrictions. According to Islamic Syariah
laws, it is a crime to attempt to convert
Muslims to other religions.
The federal and state governments
discourage and forbid the circulation in
Peninsular Malaysia of Malay-language
translations of the Bible and the distribution
of Christian tapes and printed materials in
the Malay language. Malay-language Bibles
are required to carry the words “Not for
Muslims” printed on the cover. Christian
books translated into Malay and the East
Malaysian indigenous Iban languages have
been banned in the past.
In January 2008, several Christian
children’s books were confiscated by officials
of the Internal Security Ministry (now known
as the Home Ministry) from several bookstores for allegedly containing pictures of
Moses and Noah deemed offensive to Muslim
sensitivities, as they were considered to be
“caricatures of the prophets”. In response
to the seizures, the Malaysian Council of
Churches (ccm) questioned the rationale of
the ministry’s actions, saying that there was
nothing sensitive about the book as they
were meant for Christians. On the following
week, the ministry returned the books with no
further action.20
On 28 January 2008, thirty-two bibles
carried by missionary Juliana Nicholas were
confiscated by officials from the Customs
Department upon her arrival at the Kuala
Lumpur airport from the Philippines. When
she arrived at the airport, she was told to
declare and open the contents of the two
boxes which contained the thirty-two bibles,
meant to be distributed to her church group.
Despite showing the Customs Department
officials a letter from her parish priest stating
that the texts were for use by the church,
Nicholas was told that the bibles would
need to be checked by the Internal Security
Ministry’s Publications and Al-Quran Texts
Control Division. Nicholas was only allowed
to collect the bibles after a follow-up call to
the ministry on 4 February 2008. Nicholas
had insisted that the ministry issue an official
apology to her for the inconvenience caused
and a letter of assurance that the incidence
would not recur. However, no official public
apology was issued throughout 2008.
In response to the incident, the Council
of Churches Malaysia (ccm) condemned the
actions of the authorities, stating that “no
authority […] should deny Christians the
right to possess, read and travel with their
bibles”. The Council’s general secretary
Hermen Shastri also called upon the Prime
Minister, who was then also the Internal
Security Minister, to “assure Christians in
the country that they will not be subject
to the scrutiny of the Control Division of
Publications and Al-Quran Texts of the
Internal Security Ministry”. The Council
also deplored the latest incident of the seizure
of bibles as “another example of how the
unilateral actions of certain government
agencies are undermining the government’s
stated claims of protecting religious freedom in the country”.21 Nevertheless, no such
statement was made by the government
throughout the year.
In December 2007, The Herald, news
organ of the Roman Catholic Church in
Malaysia faced problems in renewing its
yearly publishing permit over the use of
the word “Allah” in the weekly’s Bahasa
Malaysia (Malay-language) section. Deputy
Internal Security Minister Johari Baharum
said that the word “Allah” could only be used
in the context of Islam and not any other
religion. The ministry reportedly asked the
weekly to remove the entire Bahasa Malaysia
section or the permit would not be renewed
when it expired. Johari Baharum said, “The
Herald can use other words but not ‘Allah’.
That will confuse people”.22 On 30 December
2007, the Internal Security Ministry reversed
its earlier decision to allow the weekly to
continue to print without any condition.23
Despite renewing its permit, on 4
January2008, the cabinet once again decided
that The Herald could not use the word
The Herald, the weekly publication of the Roman Catholic
Church in Malaysia, faced restrictions from using the word “Allah”, a word which is deemed as the exclusive right of Islam
“Allah” in its publications. Minister in the
Prime Minister’s Department Abdullah
Mohd Zin said that one of the reasons for
the government to impose the restriction
was because “the word ‘Allah’ refers to God
according to the Muslim faith. […] The use of
the word ‘Allah’ by non-Muslims may arouse
sensitivity and create confusion among
Muslims in the country”.24
On 9 March 2008, the Roman Catholic
Archbishop of Kuala Lumpur Murphy
Pakiam filed a judicial review on behalf
of The Herald against the Internal Security
Minister (now known as the Home Minister)
and the government, seeking declarations
from the court:
•
•
•
for the ministry to declare that its
decision to prohibit the Herald from
using the word “Allah” in its publication
is null and void; the Herald is entitled
to use the word “Allah” in the publication and that the word “Allah” is not
exclusive to the religion of Islam.
to quash the ministry's decision to
prohibit the Herald from using the word
“Allah” in its publication.
for an order to allow the Herald to
119
On 24 January 2008, the remains of
Gan Eng Gor was released to the Negeri
Sembilan Islamic Religious Council for burial
On 5 May 2008, despite objections by under Islamic rites after the Syariah Court
the federal counsel, the High Court ruled in ruled that he had embraced Islam in 2007.
favour of The Herald, thus granting the weekly On 21 January 2008, the police took away the
leave to challenge the government’s decision.25 deceased’s body from a Chinese funeral parOn 21 November 2008, the High Court set lour after his son, a Muslim convert, lodged
27 February 2009 as the mention date of the a police report, claiming that his father had
case.26
converted to Islam in July 2007. However, the
This was not the first time that the use deceased’s wife and seven other children, all
of the word “Allah” had stirred controversy of whom are Buddhists, claimed that they had
in Malaysia. In 2003, the Bible in the Iban no knowledge of the purported conversion.
language was banned because it translated They filed a petition in the High Court on 29
the word “God” as “Allah Taala”, as is used January 2008, insisting that it was impossible
in Islam. The ban, however, was lifted after for the deceased to have embraced Islam as
he had been bedridden and unable to speak
protests from the Christian community.
On 11 August 2008, The Herald received from the time of the alleged conversion. The
a show cause letter from the Home Ministry High Court, however, rejected the petition on
for allegedly publishing articles that were 29 January 2008, ruling that it had no jurispolitical and degrading to Islam. The letter diction on the matter since a Syariah court
also stated that The Herald’s publication was already declared Gan a Muslim.
not in accordance with the terms in the Another dispute over the religion of
permit to publish religious news although a deceased surfaced in the same month. In
the weekly’s editor had pointed out that the January 2008, Ngiam Tee Kong disputed
permit application form did not stipulate the claims of the Federal Territory Islamic
Council that his wife, Wong Lau San, had
what constitutes religious articles.27
converted to Islam. The religious authorities
prevented Ngiam from claiming his wife’s
body after her death. However, Ngiam
Civil and Syariah Courts and
disputed the declaration and claimed that
Disputes over Conversions
the council’s letter did not state his wife’s
A number of cases of disputes over the Muslim name and that the conversion was
religion of persons who had purportedly therefore not done in accordance with the
converted into Islam without the knowledge law. On 4 January 2008, Ngiam was granted
of their families have surfaced in recent an interim injunction preventing the hospital
years. In most cases, decisions were made from releasing Wong’s body to the Islamic
by Syariah courts without the knowledge of council.
the non-Muslim families, while civil courts After a three-week long dispute over the
have “no jurisdiction in respect of any matter religion of the deceased, the Kuala Lumpur
withinthe jurisdiction of the Syariah courts”, High Court ruled on 18 January 2008 that
as stipulated in Article 121(1A) of the Federal Ngiam had the right to claim his wife’s
Constitution. Article 121(1A) was inserted in body following the Federal Territory Islamic
1988 to prevent overlapping jurisdiction and Council’s admission that Wong’s conversion
conflicting decisions by the civil and Islamic to Islam from Christianity was not done in
courts.
c ontinue using “Allah” in its publication
until the court decides on the matter.
120
a ccordance with the Islamic law and provisions in the Administration of Islamic Law
(Federal Territories) Act.
In July, religious authorities in the state
of Penang claimed that B. Elangesvaran, a
34-year old man who had committed suicide
by hanging himself on 22 June 2008, was a
Muslim and should be buried according
to Islamic rites. However, the family of the
deceased said the family had no knowledge of
the conversion and that Elangesvaran died as
a practising Hindu. His family also claimed
that there was no proof of the purported
conversion. According to the deceased’s
stepbrother, S. Selvam, the Perak Islamic
ReligiousDepartment produced “only a police
report alleging that [his] brother had embraced Islam at the Penang Islamic religious
department […] and a letter with some
scribbling allegedly done by Elangesvaran
that he had converted”. Selvam further
claimed that the letter was unsigned and did
not indicate any witnesses to the conversion.28
On 25 June 2008, Elangesvaran’s family
applied for an interim injunction at the
Penang High Court to stop the Islamic
authorities from taking the body to be buried
under Islamic rites. At the same time, on 4
July 2008, while the application for interim
injunction was pending at the Penang High
Court, the Parit Buntar Syariah Court in
Perak ruled that Elangesvaran was a Muslim.
This led the Penang High Court judge
to rule that it had no jurisdiction over an
earlier Syariah Court ruling and therefore
dismissed the application. Nevertheless, the
High Court granted a stay to file another
injunction pending a hearing to allow
another application to be filed to the Court
of Appeal. However, on 7 July 2008, the
Penang High Court upheld its own earlier
decision that it could not overrule the Syariah
Court decision, thus allowing the Islamic
religious authorities to bury the deceased as
a Muslim.
Karpal Singh, the counsel for the
deceased brother, criticised the actions of
the religious authorities of bringing the case
to the Syariah Court when it was pending
at the High Court as putting “unwarranted
and undesired” pressure on the High Court
judge. He also said that the judgement by the
Syariah Court was “a direct interference by
the Syariah Court into the judicial powers of
the civil court”.29
In the light of the many recent cases of
disputes over the religion of the deceased,
on 10 April 2008, Prime Minister Abdullah
Badawi announced a proposal to introduce
a regulation requiring non-Muslims wanting
to embrace Islam to inform their family
before doing so. This must be done through
a form or letter declaring that their family
had been informed of their conversion.30
However, this proposal was rejected by the
Allied Coordinating Committee of Islamic
ngos (accin), a coalition of 16 Islamic ngos,
who contended that such a move would deny
individuals the right to convert into Islam,
citing that converts may face rejection by
the family members.31 On 14 April 2008,
the government said that the Department of
Islamic Development Malaysia (jakim) and
the National Unity Department would
study the Prime Minister’s proposal.32 As of
31 December 2008, the Prime Minister’s
proposal had still not been implemented.
There was also no proposal or discussion on
the protection of the rights of those who wish
to convert out of Islam.
On 15 May 2008, the government
announced that an Islamic conversion card,
a document to verify a person’s conversion
to Islam, would be issued immediately to
a convert upon conversion. Minister in the
Prime Minister’s Department Ahmad Zaid
Hamidi said that the move was in response
to problems which arise due to the delays in
the issuance of such cards. The same minister
also commented that the Prime Minister’s
121
proposal to compel converts to inform their
family about their conversion was apt but
stressed that they be allowed to take time to
do so in order to maintain their good relations
with the family.
Following numerous such cases, concerned groups have called for Article 121(1A)
to be amended.33 However, such calls and
even discussions on the matter have been seen
by some to be provoking Malay and Muslim
sentiments and causing uneasiness and public
disorder.
On 9 August 2008, a forum organised by
the Malaysian Bar Council to discuss the issues
of conversion to Islam and the separate jurisdictions of civil and Syariah laws was forcibly
disrupted by a mob, led by members of the
ruling United Malays National Organisation
(umno), the opposition People’s Justice Party
(Parti Keadilan Rakyat, pkr) and Pan-Malaysian
Islamic Party (Parti Islam Se-Malaysia, pas), and
also several other Malay- and Islamic-based
ngos. Several leaders of the mob, including
pkr Member of Parliament Zulkifli Nordin,
instigated the crowd to force its way into the
Bar Council building to stop the event, forcing
the Bar Council to halt the event abruptly.
Two days before the forum, Deputy
Prime Minister Najib Razak criticised the
forum as unsuitable to be held in an open
manner, saying that it could incite emotions
among those with differing views.34 The
forum was also opposed by pas leaders, who
called for the forum to be cancelled.35 pkr,
however, distanced itself from the actions of
its Member of Parliament Zulkifli Nordin in
leading the crowd to forcibly stop the forum.36
On 10 August 2008, one day after the short-
Angry protestors led by leaders of Malay- and Islamic-based political parties and NGOs denouncing Bar Council for organising a
forum discussing the issue of religious conversions. Leaders have warned non-Muslims not to “challenge Islam”.
122
Angry protestors led by leaders of Malay- and Islamic-based political parties and NGOs denouncing Bar Council for organising a
forum discussing the issue of religious conversions. Leaders have warned non-Muslims not to “challenge Islam”.
lived forum, Najib Razak once again criticised sewerage tanks, or had deities removed from
the Bar Council for being “stubborn” in going its premises in Malaysia between February
ahead with its forum.37
2006 and June 2007.38
The demolition of temples in Malaysia
throughout the year had also received the
Places of Worship and Religious
attention of the United States Commission
Symbols
on International Religious Freedom in 2007.
The commission expressed its concern over
Recent years have also seen a number of Hindu the recent temple demolitions and other
temples being demolished by the local coun- forms of discrimination faced by religious
cils, an issue which has raised public alarm minorities in Malaysia. It called on the United
especially among non-Muslims. According States government to raise the matter with
to Hindu Rights Action Force (hindraf)- the Malaysian government and “insist that
initiated memorandum to the Attorney- immediate measures be taken to protect
General on 30 June 2007, 79 temples had sacred sites and prevent further destruction”.39
either been demolished, served notices to be On 15 January 2008, a suit filed by
demolished, burnt down, relocated next to Temiar Orang Asli villagers’ suit against the
123
Kelantan state government and the Gua
Musang district council for demolishing their
village church commenced at the Kota Bharu
High Court. On 1 July 2007, four Temiar
Orang Asli villagers filed the suit after their
church, which they claimed was built on
ancestral land, was demolished by state
authorities on 4 June 2007. Kelantan state
authorities, on the other hand, claimed that
the building of the church contravened
Section 425 of the National Land Code
and Section 72 of the Street, Drainage and
Building Act 1974, with regard to structures built without the permission of the
authorities.40
In their suit, the Temiar villagers sought
declarations that they have a right over the
land as well as the constitutional right to practise their religion, which includes the right to
set up a church on the land; that the demolition was unlawful and an “abuse of power”
amounting to interfering in the religious rights
of the Orang Asli. They also filed for damages
and other costs.41 The case remained pending
at the end of 2008.
Summary
Longstanding issues in contravention of the
Constitutional guarantees of freedom of
religion continued to be unresolved in 2008.
These included the right of Muslims to leave
Islam and the rights of non-Muslims with
regard to matters of religion in civil and
Syariah courts. At the same time, new laws
and policies which violate freedom of religion
were formulated. For instance, certain words
which are deemed to be exclusive to Islam
were banned from use by non-Muslims.
At the same time, repeated threats were
issued by Muslim leaders on both sides of
the political divide against those who raised
questions or discussed about matters pertaining to freedom of religion and the position of
124
I slam in Malaysia, pointing to an increasingly
regressivetrend of religious intolerance
End Notes
1
Malaysia, Department of Statistics, Population and Housing Census 2000.
2
Article 160, Federal Constitution of Malaysia.
3
“Bekas ustazah murtad dipenjara dua
tahun” [Former religious teacher turnedapostate jailed for two years], Utusan
Malaysia, 3 March 2008, http://www.
utusan.com.my/utusan/special.asp?pr
=PR11&y=2008&dt=0303&pub=Utu
san_Malaysia&sec=Terkini&pg=bt_06.
htm (last accessed: 15 June 2009).
4
5
6
7
See, for instance, Sharifah Zaleha (1995)
“Islamic Revival in Malaysia: A Case Study
on Al-Arqam”, Seminar paper presented
at the 1st euroseas Conference, Leiden,
June 1995; Ahmad Fauzi Abdul Hamid
(2005) “The Banning of Darul Arqam”, Review of Indonesian and Malaysian Affairs, vol. 39, no. 1 (pp. 87-128); Ahmad
Fauzi Abdul Hamid (2006) “Southeast Asian
Response to the Clampdown on the Darul Arqam
Movement in Malaysia, 1994-2000”, Islamic
Studies, Vol. 25, No. 1 (pp. 83-119).
“maij Detects Al-Arqam And Qadiyani
Active In Johor”, Bernama, 4 December
2008,
http://www.bernama.com/bernama/v5/newsgeneral.php?id=376373
“Action imminent against Ayah Pin,
says minister,” Malaysiakini, 11 October
2007,
“Police: Ayah Pin still a threat”, Bernama,
14 November 2008, http://www.bernama.com/bernama/v5/newsgeneral.
2009).
8
“Ayah Pin will be arrested on religious
authority’s request – Syed Hamid”, Bernama, 17 November 2008, http://www.
2009).
9
“Sky Kingdom’s Ayah Pin living
in Thailand”, The Star, 14 November
2008,
10 Abdullah Md. Zin, 11 October 2004,
Third Meeting of the First Session
of the Eleventh Parliament, Hansard,
DR.11.10.2004 (pp. 11-12), http://
DR11102004.pdf (last accessed: 15 June
2009).
11 Ibid.
12 See suaram (2008) Malaysia Human Rights
Report 2007: Civil and Political Rights, Petaling Jaya: suaram (p.127).
13 “Malaysia Muslim body issues fatwa
against tomboys”, Reuters, 24 October
2008, http://in.reuters.com/article/lifestyleMolt/idINTRE49N2AM20081024
(last accessed: 12 November 2008).
14 Sisters in Islam, 21 November 2008, Press
statement, “Fatwa on tomboys is regressive”.
15 Ibid.
16 “IGP to Non-Muslims: ‘Stay out of Muslim matters’”, The Star, 13 November
asp?file=/2008/11/13/nation/200811
June 2009).
125
17 “Fatwa Council says yoga with
worshipping, chanting is prohibited”, The Star, 22 November 2008,
asp?sec=nation&file=/2008/11/22/nation/20081122111842 (last accessed: 15
June 2009).
18 “Yoga ruled “haram” for Muslims
in Sarawak”, Bernama, 9 December
2008,
http://www.bernama.
com.my/bernama/state_news/news.
php?id=377297&cat=sre (last accessed:
15 June 2009).
19 “maij detects Al-Arqam and Qadiyani active in Johor”, Bernama, 4 December 2008,
http://www.bernama.com/bernama/
v5/newsgeneral.php?id=376373 (last accessed: 15 June 2009).
20 “Christians laud ministry for stepping in”,
The Star, 23 January 2008,
h t t p : / / t h e s t a r. c o m . m y / n e w s /
s t o r y. a s p ? f i l e = / 2 0 0 8 / 1 / 2 3 /
nation/20086090&sec=nation
21 “Bibles confiscated by Customs Dept”,
22 “Johari: Only Muslims can use ‘Allah’”,
www.malaysiakini.com/news/76302
126
25 “Herald wins right to challenge ‘Allah’
ban”, Malaysiakini, 5 May 2008, http://
26 “Herald vs gov’t: ‘Allah’ suit to be mentioned on Feb 27”, Malaysiakini, 21 November 2008, http://www.malaysiakini.
com/news/93503 (last accessed: 15 June
2009).
27 “Herald gets show cause letter”, Malaysiakini, 11 August 2008, http://www.malaysiakini.com/news/87604 (last accessed:
15 June 2009).
28 “Man challenges dead half-brother’s
conversion to Islam”, The Star, 25 June
asp?file=/2008/6/25/nation/2008062
June 2009).
29 “Family loses battle in ‘bodysnatching’
dispute”, Malaysiakini, 7 July 2008, http://
accessed: 15 August 2009).
30 “Govt to have regulation for converts to
inform family”, The Star, 10 April 2008,
asp?file=/2008/4/10/nation/2008041
June 2009).
23 “Gov’t backs down, Herald gets new
permit”, Malaysiakini, 30 December
2007,
news/76512
31 “Islamic ngos disagree to having nonMuslims inform family before embracing
Islam”, Bernama, 13 April 2008, http://
www.bernama.com/bernama/v3/news_
lite.php?id=326570 (last accessed: 15 June
2009).
24 “Cabinet: ‘Allah’ for Muslims only”, The
Sun, 4 January 2008.
32 “More time needed to study law on converts”, New Straits Times, 14 April 2008.
33 See suaram (2007) Malaysia Human Rights
Report 2006: Civil and Political Rights, Petaling Jaya: suaram (p. 103-104).
41 Ibid.
34 “Bar Council forum could incite emotions: Najib”, The Star, 7 August 2008,
asp?file=/2008/8/7/nation/200808071
52827&sec=nation (last accessed: 15 June
2009).
35 “pas strongly opposes Bar Council’s conversion to Islam forum”, Bernama, 7 August 2008, http://www.bernama.com/
36 “pkr rebuffs Zulkifli’s actions at Bar
Council forum”, New Straits Times, 13
August
2008,
http://www.nst.com.
my / C u r re n t _ N e w s / P p a u h / n e w s /
ppauh/20080813153233/Article/index_
html (last accessed: 15 June 2009).
37 “Najib: Bar Council was ‘stubborn’”, The
Star, 10 August 2008, http://thestar.com.
my/news/story.asp?file=/2008/8/10/na
tion/20080810151726&sec=nation (last
38
hindraf,
30 June 2007, Memorandum to
the Attorney General on Demolition of
Hindu Temples in Malaysia.
39 United States Commission on International Religious Freedom, 5 December
2007, Press release: “Malaysia: uscirf
Concerned Over Destruction of Hindu
Temples and Need for Protection of
Freedoms.”
40 “Submissions ordered in church demolition suit”, Malaysiakini, 15 January
2008,
127
128
chapter 7:
REFUGEES, ASYLUm
SEEKERS,
UNDOCUMENTED
MIGRANTS AND
TRAFFICKED PERSONS
I
n
2008, the U.S. Committee for Refu- tain, and eventually deport undocumented
gees and Immigrants (uscri), an international refugee rights watchdog, in its
“World Refugee Survey 2008”, ranked Malaysia
as one of the ten worst places for refugees.1
The uscri survey was based on four categories:
1. the country’s track record on refoulement
(deportation of refugees to their countries of origin where conflict or persecution may still occur) and physical protection for refugees and asylum-seekers;
2. the extent of refugees’ detention and access to the courts;
3. refugees’ freedom of movement and residence; and
4. refugees’ right to earn a livelihood.
The report gave Malaysia an “F” grade
(the worst of 5 assessment grades) in the categories of refoulement/physical protection; detention and access to courts; and the right
to earn a livelihood; while a “D” grade (the
second worst assessment grade) was given to
Malaysia in the category of freedom of movement and residence of refugees.2
The grading by the uscri was hardly surprising, as the Malaysian government has yet
to ratify the 1951 un Convention relating to
the Status of Refugees3 and its 1967 Protocol,
and refugees and asylum seekers are still not
recognised as a special category of people who
need international protection under domestic
laws. The Malaysian government maintains
a policy that blankets all undocumented migrants, including refugees and asylum seekers,
as “illegal migrants”. All persons found to be
undocumented, regardless of their circumstance and how they become undocumented,
are subject to harsh immigration laws, namely
the Immigration Act 1959/1963.
The Immigration Act 1959/19634 provides the Malaysian police and immigration
authorities widespread powers to arrest, de-
130
persons. Furthermore, under the Emergency
(Essential Powers) Act 1979, as amended by
the Essential (Ikatan Relawan Rakyat) (Amendment) Regulations 2005, the government has
empowered a highly controversial civilian
force known as the People’s Volunteer Corps
(Ikatan Relawan Rakyat, rela), to arrest and
detain any “undesirable persons” or those
suspected of being “illegal immigrants”. The
deployment of these members of civilian
“volunteers” have caused much controversy
and public outcry over instances of serious
human rights abuses against undocumented
migrants (including refugees and asylum seekers) during raids and arrests.
Throughout 2008, cases of exploitation of documented and undocumented migrant workers, and the arrest and detention
of refugees and asylum seekers continued to
be reported on a regular basis. Whipping as
a punishment was also carried out on undocumented migrants throughout the year,
including those with valid United Nations
High Commission for Refugees (unhcr)
cards. Under Section 6 of the Immigration
Act 1959/1963, persons without documents
or valid visa can be sentenced up to five years
in prison, fined up to RM10,000 and given up
to six strokes of the cane.
The Malaysian government is generally distrustful of, and prejudiced against
migrants and this is manifested in its policies
and statements. It is common for migrants to
be blamed for crime and security problems
in the country.5 Despite recent statistics provided by the Inspector-General of Police (igp)
Musa Hassan (in 2007)6 and Home Minister
Syed Hamid Albar (in 2008)7 that showed that
only 2% to 3% of the crimes committed in
the country were by migrants, the general tendency to blame foreigners persists.
The government’s prejudice, particularly against refugees, was reflected in Foreign
Minister Rais Yatim’s statement in December
(Source: unhcr)
2008, requesting the United Nations High
Commissioner for Refugees (unhcr) to speed
up the process of resettlement of refugees to
other countries as they are “a sap on our national benefits like public hospitals, schools,
food and utilities”.8 This statement is highly
inaccurate as refugees in Malaysia pay for
their medical treatment while children of
refugees are not allowed access to public education.
Despite all these cases of non-compliance
with international standards, Deputy Prime
Minister Najib Razak defended Malaysia’s
poor track record on the protection of refugees by saying that Malaysia to date has been
quite cooperative with “some refugees who
make their way to Malaysia” seeking shelter9
in response to the uscri’s failing grades given
to Malaysia. Deputy Foreign Minister Abdul
Rahim also denied that Malaysia mistreats
refugees and said that refugees are treated
well before being resettled to a third country.10
unhcr, Government Policies and the
Status of Refugees in Malaysia
The unhcr office in Kuala Lumpur remains
the principal actor in the protection and assistance of refugees and asylum seekers. According to the unhcr, there were 22,547
recognised refugees registered under the
international agency in Malaysia as of 31
December 2008 while asylum seekers11
numbered 45,411, giving a total of 67,958
registered refugees and asylum seekers in the
country. The recognised groups of refugees
in Malaysia are predominantly from Burma
with the rest coming from Sri Lanka, Somalia, Afghanistan, Iraq, and other countries.
131
In 2008, 17,019 new refugees and asylum
seekers were registered by the unhcr (See Table
8.2), while a total of 5,865 refugees were resettled to third countries (See Table 8.3).
(Source: unhcr)
(Source: unhcr)
132
Government’s Non-Recognition of
unhcr’s Refugee Status
“Refugee” status is not officially recognised in
Malaysian law and recognition by unhcr in
itself generally does not provide any special
rights under the immigration laws.
Although refugees do not receive formal recognition or protection from the government, recognition from the unhcr does
provide them with protection under international law and some very limited exemptions
from the enforcement of immigration law in
Malaysia. This refugee status, however, remains vague in reality as the law enforcement
authorities continue to arrest and detain refugees and asylum seekers due to their undocumented status under the immigration laws.
unhcr’s work is hampered as the government uses its non-ratification of the Refugee
Convention as the basis for not protecting
refugees. This results in unhcr acting in a
“semi-official” capacity in the protection of
refugees in the country. In practice, unhcr
generally works on the basis of some ad-hoc
understanding with officials at the Immigration Department and police. As a result, its
ability to provide protection to refugees and
asylum seekers is restricted.
Intervention in cases of arrest and detention is difficult, as unhcr must go through
the lengthy process of obtaining letters from
the immigration headquarters before refugees
can be released. Normally, refugees are not
released until unhcr can find a third country
willing to take the refugees for resettlement. In
many cases, due to the delays and overcrowding conditions in detention centres, refugees
are often deported before their release can be
obtained.
Temporary Residence Permit IMM 13
Besides the unhcr, the Home Minister, under
powers provided by Section 55 of the Immigration Act can provide some semblance of
protection to refugees or asylum seekers by
exempting groups from punishment under
the Immigration Act and issuing the temporary residence permit called the imm 13 permit. The imm 13 lasts for a year and must be
renewed annually.
Although the imm 13 permit does provide some benefits – for instance, it may allow imm 13 holders to seek lawful employment
and send their children to public schools –
there have been cases where access to education was denied as the Education Ministry required a student visa for the enrolment of imm
13 holders’ children in public schools. The
same was required by private schools. This
was because there is no coordination between
the Immigration Department and the Education Ministry.12
One of the key problematic features
of the imm 13 permit is that, in practice,
the decision to issue the permit is based on
an unknown set of criteria and the Home
Minister has full discretion in the issuance or
cancellation of the permit.13
In August 2008, the Malaysian government told more than 25,000 Indonesian tsunami refugees from Acheh to leave the country
by early January 2009 or face deportation.14
The Malaysian government had, in 2005, issued more than 30,000 imm 13 permits15 to
Achehnese refugees which legalised their stay
in the country in the aftermath of the tsunami
which swept Acheh in 2004.16 According to
the government, these permits were issued on
humanitarian grounds. In August 2007, the
Malaysian government announced that the
imm 13 permits of some 27,000 Achehnese
still in Malaysia after the tsunami could be
renewed for another year. Then-Immigration
Department director-general Wahid Md Don
133
said the extension was made based on humanitarian grounds as many tsunami victims
were reluctant to return to Acheh due to lack
of job opportunities.
Abuses of Power by RELA Personnel
and Immigration Department Officers
The People’s Volunteer Corps (rela), an
agency under the Home Ministry which has
been helping in the enforcement of immigration laws in Malaysia, has been criticised by
local and international human rights groups
for its human rights abuses during the government’s crackdown on refugees and undocumented migrants in recent years. Formed in
1972 under the Emergency (Essential Powers)
Act 1964, it was originally established to assist, maintain and safeguard peace and security in the country.
Since the amendment of the Essential
(Ikatan Relawan Rakyat) Regulations in 2005,
the powers of rela have expanded tremendously. The amendments give the agency the
“right to bear and use firearms, stop, search
and demand documents, arrest without warrant, and all these powers can be exercised
when the rela personnel has reasonable belief that any person is a terrorist, undesirable
person, illegal immigrant or an occupier”.
They have also been given wide powers to
raid premises and arrest refugees and undocumented migrants without warrant.
Since the amendments to the legislation
in 2005, the core activity of the approximately
500,000-strong rela has been to conduct raids
and arrest “illegal” migrants. Throughout the
course of the year, raids on neighbourhoods
suspected of housing “illegal immigrants”
saw premises being forcibly-entered and refugees being arrested and detained.
In addition, reports of rela personnel
involved in criminal activities such as robbery
134
and extortion when they are on duty are not
uncommon. One of the cases documented
by suaram in 2008 was on the trafficking of
migrants. The rela member concerned was
arrested on 19 May 2008 for transporting six
Burmese to Padang Besar, a town bordering Thailand, in the northern state of Perlis.
He confessed to transporting undocumented
migrants three times previously, being paid
RM1, 000 for helping to get each migrant
into Malaysia.17 It must be noted that the extent and number of cases of abuse of power
by rela personnel may well be worse as many
cases are unreported.
Furthermore, as rela personnel do not
receive proper and adequate training, wrongful arrests and detentions by rela beyond
their mandate are also not uncommon. In
May 2008, a staff member of the Pakistan
embassy in Kuala Lumpur was detained by
rela personnel when travelling to work. The
rela personnel did not recognise his identity
card that was issued by Ministry of Foreign
Affairs. He was released after intervention by
the embassy and his identity card was verified.18
Based on the high number of reports that
many rela’s untrained personnel have abused
their powers, local and international human
rights groups have over the years urged the
disbanding of the agency. On 5 December
2008, the Malaysian Bar Council once again
called for the abolition of the volunteer corps
in view of the fact that the situation has not
improved from previous years.
However, Home Minister Syed Hamid
Albar responded by saying that the government had no plans to disband rela but instead
will improve the organisation. Syed Hamid
also remarked, “The Bar Council surely have
[sic] better things to do than to call rela to be
disbanded.”19 Syed Hamid Albar’s response to
the Bar Council’s call was comparable to that
of rela director-general Zaidon Asmuni, who
in 2007 called for suaram to be closed down
when the latter urged the government to abolish rela.20
Notwithstanding the concerns raised by
various human rights groups, the government
has repeatedly proposed that rela be upgraded into a full-fledged department with greater
powers. In June 2007, the Home Ministry announced its plans to restructure rela into a
separate department with greater authority
and powers to source its own funding. The
Ministry announced that it plans to table a bill
on rela in Parliament which will make rela
a full-fledged law enforcement department.21
To date, however, the bill has not been made
public.
On 21 April 2008, Home Minister Syed
Hamid Albar said that a draft proposal to
upgrade rela to an enforcement agency was
being finalised for consideration by the government.22 Rights groups have expressed fears
that these proposals to empower rela with
further enforcement powers will legitimise
and strengthen the powers of arrest, search,
and detention functions of a body which has
been known to act arbitrarily and in an overzealous manner.23
Since 15 January 2008, 1,840 rela personnel were placed in 13 Immigration Detention Centres nationwide to oversee the
security aspect of these detention centres.
This was following the handing over of Immigration Detention Centres from the Prisons Department to the Immigration Department.24 The use of rela personnel to manage
the Immigration Detention Centres is due to
the shortage of personnel faced by the Immigration Department. Although supposedly
a temporary measure,25 it has been a major
concern among rights groups who pointed
out this move may worsen the situation in the
centres considering the volunteer corps’ tarnished reputation as well as its inexperience in
the handling of detention centres. Since rela
personnel were put in charge of the security
aspect of the Immigration Detention Centres,
two major riots have been recorded to date,
in Lenggeng (April 2008) and Semenyih (June
2008).
On 3 July 2008, Deputy Home Minister
Chor Chee Heung revealed that RM15 million was approved as budget for conducting
operations on undocumented migrants for the
year 2008. During operations, rela members
are given an allowance of RM4 an hour and
rela members with positions of platoon leaders and above are given RM5.80 an hour. He
also stated that a rela Disciplinary Committee has been formed and disciplinary action
will be taken against any members or officers
who abuse their powers during duty. In the
period between 2007 and April 2008, disciplinary actions have been taken against nine
rela members.26
In July 2008, Immigration Department
director-general Wahid Md. Don and deputy
director-general Abdul Rahman Rothman
were arrested and investigated by the AntiCorruption Agency (aca) for alleged graft
involving the issuance of permits and extensions of stay for foreign workers.
Mass Arrests, Detentions,
Prosecutions and Deportations of
Undocumented Migrants in 2008
Throughout 2008, Malaysia continued its intensive crackdown on “illegal immigrants”,
resulting in the arrest, detention and deportation of thousands of undocumented migrants,
including refugees and asylum seekers. Massscale operations to nab undocumented migrants have resulted in serious human rights
abuses, including cases where detainees were
beaten up by the authorities and detained under inhumane conditions in detention centres.
In one case in November 2008, an undocumented migrant died while trying to flee from
a rela raid in Shah Alam, Selangor.
During a parliamentary debate on 3 De-
135
A house where refugees stay in the northern state of Penang. Raids and mass arrests by Malaysian government authorities are commonplace in makeshift homes of refugees like this one.
cember 2008, Deputy Home Minister Chor
Chee Heung revealed that 55,618 undocumented migrants (24,093 Indonesians, 9,512
Filipinos, 7,115 Bangladeshis, 4,510 Burmese,
2,024 Indians and 1,772 Thais) were arrested
in 5,804 operations in the period between
January 2008 and September 2008. In the
same period of time, 42,389 were deported
and RM1,059,534 was spent on deportation costs.27 Earlier in May 2008, Immigration Department enforcement director Ishak
Mohammad stated that a total of 20,098 undocumented migrants were arrested in 2,050
operations between January and April 2008.
This number was a 15% increase compared
to the same period in the previous year. About
15,000 were deported while over 7,500 were
charged in court, mainly for immigration
136
o ffences.28
On 14 June 2008, 48 refugees (45 Burmese, including six women, two Indonesians,
and one Nepali) were arrested during a raid
by the Immigration Department and rela
at a jungle camp in Kepong, in the outskirts
of Kuala Lumpur.29 According to reliable
information received by suaram, two of the
45 Burmese refugees arrested were registered
with unhcr.
On 17 June 2008, 80 undocumented
migrants, including 16 women were arrested
in a joint-raid conducted by the Immigration Department, the Ampang Jaya Town
Council, rela, the Selangor Islamic Religious
Selangor, jais) and the police in Ampang,
Kuala Lumpur.30
A refugee who sustained injuries to his neck while trying to escape
from being arrested by the authorities.
On 21 June 2008, The New Straits Times
reported that three Rohingya unaccompanied
minors had been detained at Kuala Lumpur
International Airport’s Immigration Detention Centre for more than two weeks. After
they were arrested at Ampang, their mothers
took their unhcr cards to the police station
where they were detained but the cards were
not recognised by the police.31
On 24 June 2008, Deputy Prime Minister Najib Razak announced that the Federal
Government would “flush out the illegal immigrants from the East Malaysian state of
Sabah and deport them to their home country”.
In August 2008, Sabah Deputy Police
Commissioner Abdul Razak Abdul Ghani
revealed that at least 200 personnel from the
police, the army, the Immigration Department, the National Registration Department
and rela would be deployed during the op-
eration. It was also revealed that that around
RM50 million had been allocated for the
crackdown.32 According to Philippine Foreign
Undersecretary Esteban Conejos, there are at
least 200,000 undocumented Filipino workers
in Malaysia.33
Within 72 hours of the mass operation, it was reported that more than 1,000
Filipinos and Indonesians had been detained
by Malaysian authorities in Sabah. Over
3,000 people were brought to the screening
centres, out of which 1,032 were found to be
undocumented. They were sent to temporary
immigration detention centres in Menggatal
and newly-opened Kota Belud while awaiting deportation.34 On 14 August 2008, Najib
Razak was reported as saying that 500 people
without valid immigration papers had been
detained in Sabah within a week of the mass
operations.35
In response to the crackdown of migrants
in Sabah, 21 civil society organisations, in a
memorandum to the Malaysian government,
called for an immediate halt to the crackdown.
The civil society organisations expressed their
concerns that “the drastic measures and the
massive scale of operation taken by the government in dealing with such a complex issue
without proper study, planning and training
will only be a recipe for massive human rights
violations”.36
The simplistic but drastic measure of
“flushing out” all “illegal immigrants” from
Sabah was indeed problematic as those who
were considered “illegal” as non-document
holders may be legitimate residents or citizens
under the Federal Constitution and the law,
including persons who fulfill the criteria for
neutralisation, persons married to Malaysians,
children of mixed marriages, and children of
persons who may otherwise be stateless (i.e.
not citizens of other countries). There are
also groups such as indigenous peoples who
are not registered with the authorities and
rendered stateless; refugee and asylum seek-
137
ers who have fled from political persecution in
their countries; migrant workers who are exploited and become undocumented migrants;
and victims of trafficking.37
In October, a fact-finding committee
in the Philippines revealed that Filipino immigrants deported from Sabah have been severely beaten by the Malaysian police while in
detention. The committee also revealed that
thousands of Filipino remained in detention
centres under inhumane conditions.38
In September, 600 undocumented workers were rounded up at a market in Selayang,
Kuala Lumpur.39 In November 2008, 34
undocumented migrants were arrested by
the police after 1,038 were screened during
a crackdown operation on undocumented
migrants in Malacca. The group comprised
15 Indonesians, 9 Bangladeshis, 7 Nepali and
3 Burmese.40
On 26 November 2008, an undocumented Indonesian migrant died while another
was injured when they fell from a flat in Shah
Alam, Selangor during a rela raid which resulted in 103 undocumented migrants being
detained.41
In a parliamentary session on 12 November 2008, Deputy Foreign Affairs Minister
Abdul Rahim Bakri revealed that there were
106 asylum seekers from Southern Thailand
detained in the Ajil Immigration Detention
Centre in the eastern Peninsula Malaysia
state of Terengganu. In 2007, 11 Thais volunteered for repatriation and in 2008, 14
followed suit. He said that he hoped that the
remaining 106 would do the same.42
Access to Justice
From December 2006 to March 2007, 14 Sessions Courts were set up at Immigration Detention Centres to speed up the processing of
immigration cases. In many cases, migrants
facing charges who were brought to court
138
were either unable to understand the charges
read to them, secure legal assistance, or obtain necessary assistance to prove their legal
status in the country. Many had pleaded guilty
either unknowingly or in order to avoid prolonged and indefinite detention, despite being
innocent of charges brought against them.
Between March and May 2007, volunteer lawyers and pupils from the Bar Council
Legal Aid Centres held watching briefs in six
of such courts, namely in the Immigration
Detention Centres in Semenyih, Langkap,
Juru, Pekan Nenas, Belantik (Kedah) and
Machap Umboo (Malacca). In the watching
briefs, lawyers observed that 94.8% of the
migrants facing charges at these courts were
unrepresented while 89.9% pleaded guilty;
74.4% of the accused were not told of the
consequences of their plea while in 82.5% of
the cases, the judge did not ask questions for
clarification as to their age, sickness or family
background.
Between January and April 2008 alone,
more than 7,500 migrants were charged in
court, mainly in relation to immigration offences, including not having valid travel documents, overstaying and abusing their visit
passes.43
Conditions of Detention
In 2008, raids continued to be conducted
by rela and sometimes jointly with the Immigration Department, the police and other
law enforcement agencies. The problem of
overcrowding at immigration detention centres has now reached a critical stage. Former
detainees in the Semenyih camp, for example,
reported to suaram that up to 400 inmates are
housed in a cell measuring 50 by 25 square feet
with only four toilets available for all inmates.
It has further been reported that several centres, including those in Semenyih and Sepang
in Selangor, and others in Johor and Melaka,
are operating at up to 30 percent over capacity.44 This has resulted in deplorable living
conditions, giving rise to concerns regarding
the lack of adequate access to healthcare and
to risks of diseases and possible deaths as a result of exposure to unsanitary environments.
Detainees report about frequent ethnic
violence among inmates, abuse by guards,
deplorably deficient diet, unhygienic environment and insufficient water supply in detention centres. While the situation varies from
one detention centre to another, conditions in
the remotely located depots are reported to
be worse. Based on a series of interviews with
former detainees in 2007, it was revealed that
detainees in the Pekan Nenas detention camp,
located in Johor near the Singaporean border,
faced inadequate water supply and grossly
insufficient diet. Similarly, those detained at
the Thai border or other immigration camps
far away from Kuala Lumpur have regularly
complained of such problems.45
Severe shortage of clean water supply
was also reported in the Lenggeng camp in
Negeri Sembilan where only two big pails of
water are given to each block of detainees
each day. This is shared among the block detainees who number more than 200 people.
As a result of this, some detainees resort to
drinking water from the toilet cisterns.46
On-site medical facilities are unavailable
in most of the immigration depots. Detainees
who complain of illness are given two aspirins
or penicillin-based pills. Detainees are only
brought to a hospital after they are critically
ill. The spread of communicable disease is
another area of serious concern among detainees held at various immigration camps.
While blood tests are required for every inmate entering a prison, there is no such practice in place for those detained at immigration
depots. Thus, many detainees contract diseases such as tuberculosis and other skin diseases
as a result of living in a congested environ-
Refugees and undocumented migrants in the compounds of an Immigration Detention Centre. Inhuman conditions have led to at least
two major riots in these detention centres throughout 2008.
139
ment and sleeping on concrete floors without
blankets or beddings.47
Because immigration detention centres
are filled to capacity, migrants and refugee
children have been placed together with adult
inmates.48 This practice contravenes the Convention on the Rights of the Child (crc),49 to
which Malaysia is a signatory. Article 37(c)
of the convention specifically states, “[…]
every child deprived of liberty shall be separated from adults unless it is considered in the
child’s best interest not to do so […].”
According to unhcr, as at 31 December
2008, approximately 60 minors were still detained in immigration detention centres in the
country.
On 8 July 2008, Deputy Home Minister
II Wan Ahmad Farid revealed that there were
1,535 cases of deaths in prisons, rehabilitation
centres and immigration detention centres in
the period between 2003 and 2007. However,
he did not specify the number of deaths in immigration detention centres alone. The main
causes of the deaths in these places of detention are diseases such as hiv/aids, septicemia,
pulmonary tuberculosis, acute myocardial infection,
cancer, asthma and infection of the intestines,
liver, lungs, throat and so on. There are also
cases of death caused by suicide, fights with
other detainees, internal bleeding in the brain
and slips in toilets.50
In its 2008 annual report, suhakam,
based on 37 visits to Immigration Detention
Centres throughout the year, validated the
grave problems in relation to conditions of
detention. With regard to Immigration Detention Centres, the Commission highlighted,
among others:51
•
•
•
140
the problem of overcrowding;
unaccompanied children being placed
with adults at various Immigration Detention Centres, except at the Menggatal
Centre in Sabah;
no medical officers in most Immigration
•
Detention Centres and in cases of emergency, the detainees are sent to the nearest clinic or hospital; and
a shortage of officers and staff at almost
all prisons and Immigration Detention
Centres.
Riots in Immigration Detention
Centres
Over the years, many riots have occurred
in various Immigration Detention Centres.
Most of the riots occur following incidences
of abuses and violence against detainees or
unbearable conditions of detention.
On 21 April 2008, a riot involving 60
Burmese broke out at the Lenggeng Detention Centre. According to mainstream press,
the riots were started by 60 Myanmar detainees after they were told that their applications
for resettlement to a third country had been
rejected by unhcr. Fourteen detainees were
arrested under Sections 148 (possession of
dangerous weapons) and 438 (committing
mischief by fire or use of explosive substance)
of the Penal Code.52 However, the unhcr denied having rejected any applications made by
the refugees at the Lenggeng Detention Centre, the supposed cause of the riot as claimed
by the Immigration Department.53
Testimonies by detainees in the Lenggeng
Detention Centre reveal that nine detainees
were badly beaten on 20 April 2008, one day
before the riot which purportedly sparked anger amongst the other detainees.
On 24 April 2008, suhakam commissioner Siva Subramaniam, after visiting the
Lenggeng Detention Centre, said that overcrowding was the cause of tension which resulted in a riot at the detention centre. Siva
Subramaniam revealed that the detention
centre was overcrowded with 1,090 detainees
from 14 countries and that there was a lack
of personnel to manage and guard the deten-
tion centre, with only 40 positions out of the
required 208 immigration personnel being
filled. Furthermore, most of the immigration
personnel at the Lenggeng Detention Centre
were newly-recruited and had not been properly trained. The suhakam commissioner described the situation in the detention centre as
a “timebomb”,54 thus revealing that the Immigration Department had diverted the responsibility for the riot to the unhcr.
Upon receiving a memorandum on the
Lenggeng riots from three civil society groups
– suaram, Tenaganita, and the Bar Council’s
human rights committee – on 15 May 2008,
Siva Subramaniam was quoted as saying,
“The events that took place were simply torture.”55 He also revealed that when suhakam
visited the detention centre in April 2008,
detainees showed the Commissioners burnt
marks inflicted by cigarettes. They claimed
to have been beaten as well. Moreover, in its
2008 annual report, suhakam revealed that
Immigration Department officers had inflicted injuries on eight detainees after finding a
cigarette butt in a cell.56
On 24 June 2008, detainees at another
Immigration Detention Centre in Semenyih
rioted as they were dissatisfied with the overcrowded condition of the detention centre.57
Each block was meant to accommodate 350
58
people but up to 400 were placed in each
block. According to an interview with an exdetainee from Semenyih, before the riot on
20 June 2008, 42 Burmese were beaten up
by immigration officers. They were whipped
with rubber hose all over the body, from the
soles of their feet to their head. Many detainees were bleeding after the beatings.
On 7 September 2008, English-language
daily The Star reported that a Malaysian citizen, M. Rajeshvari, was detained in Lenggeng
Immigration Detention Centre for 11 months.
She was arrested for being unable to prove
that she was a Malaysian citizen as she had
lost her identification card and forgotten her
number. She was six months pregnant when
she was arrested and detained and had to give
birth in detention.59 In response to the news
report, suhakam lambasted the Immigration
Department for allowing a citizen to be held
in the detention centre for 11 months.60
Trafficking in Persons
In June 2007, the United States Department
of State in its “Trafficking in Persons Report”61
placed Malaysia on “Tier 3” – the lowest of
three categories of countries relating to human trafficking. Countries which are placed
in Tier 3 are those “whose governments do
not fully comply with the minimum standards
and are not making significant efforts to do
so”.62
In the report, it was also noted that many
migrants who enter Malaysia voluntarily are
later subjected to conditions of forced labour.
Sex trafficking victims in Malaysia, mainly
from Indonesia, Thailand, the Philippines,
Cambodia, Vietnam, Burma, and the People’s Republic of China, are frequently recruited with the promise of a job as a domestic worker, food service or factory worker.63
According to the United States Department
of State report:
“The Government of Malaysia does not
fully comply with the minimum standards
for the elimination of trafficking and is not
making significant efforts to do so. Malaysia is placed on Tier 3 for its failure to show
satisfactory progress in combating trafficking
in persons […]. The Malaysian government
needs to demonstrate stronger political will to
tackle Malaysia’s significant forced labour and
sex trafficking problems”.64
This prompted the Malaysian government to legislate an anti-trafficking law. The
Anti-Trafficking in Persons Bill was tabled
and passed in Parliament in April 2007. The
new law makes human trafficking an offence
141
punishable with a jail term of up to 20 years
and a fine of up to RM500,000. Before the
creation of the Act, Malaysian laws made no
distinction between trafficked persons and
“illegal” immigrants in the country. Further,
Malaysia has also not signed or ratified the
2000 United Nations Protocol to Prevent,
Suppress and Punish Trafficking in Persons
Especially Women and Children.65
However, despite the legislation of the
Anti-Trafficking in Persons Act in 2007, the
government does not appear to be serious
in tackling the issue of trafficking. This was
clearly illustrated in the government’s lackadaisical response to a national television exposé in May 2008 of Malaysian immigration
officers’ involvement in human trafficking
in the Malaysia-Thai border. The exposé,
aired on national television station ntv7, was
brought up by opposition Member of Parliament Charles Santiago in July 2008. In response, the government said that it would set
up a special committee to investigate the matter.66 However, in October 2008, Home Minister Syed Hamid Albar, in a parliamentary
reply to Charles Santiago, said that the special
committee did not find any officers involved
in such trade, despite the existence of concrete evidences of human trafficking activities
involving Malaysian immigration officers.67
After the broadcast of the documentary
on national television station ntv7, suaram
received a report from one of the refugees interviewed in the documentary who claimed to
be threatened and nearly kidnapped by trafficking agents as a result of his exposé.
Summary
142
The continued use of the controversial and
inadequately trained-rela in mass-scale operations to arrest and detain undocumented
migrants and the government’s non-recognition of the status of refugees registered with
the unhcr are but two of the many aspects
of the government’s blatant disregard for international norms and standards relating to
the rights of refugees, asylum seekers and undocumented migrants.
No improvement was made with regard
to conditions of detention with problems of
overcrowding reaching critical levels. Undocumented migrants continue to be hoarded
into increasingly overcrowded and insanitary
immigration detention centres. To make matters worse, rela, despite its tarnished record
of serious human rights abuses, has been
mandated to manage the security aspect of
Immigration Detention Centres nationwide.
The year 2008 saw two major riots in Immigration Detention Centres – a manifestation
of the unbearable conditions in the badlymanaged places of detention.
These serious human rights violations,
made worse by the Malaysian government’s
unwavering position not to disband rela and
its refusal to ratify the 1951 Convention relating to the Status of Refugees and its 1967
Protocol, leave little doubt on the assessment
made by an international watchdog that
Malaysia was one of the ten worst places for
refugees in 2008.
has applied for recognition as a refugee in another
country, and is awaiting a decision on their application”. unhcr official website http://
www.unhcr.org.au/basicdef.shtml (last accessed: 15 June 2009).
End Notes
1
U.S. Committee for Refugees and Immigrants (2008) World Refugee Survey 2008:
Worst Places for Refugees, Washington DC:
uscri (pp. 3-7).
2
Ibid. (pp. 22-23).
3
Adopted on 28 July 1951 by the United
Nations Conference of Plenipotentiaries
on the Status of Refugees and Stateless
Persons convened under the General Assembly resolution 429 (V) of 14 December 1950.
12
4
Act 155, as amended by Immigration
Regulations 1963 (Act A719).
5
For instance, “Rise in crime? Blame
the foreigners,” Malaysiakini, 8 March
2007,
6
Ibid.
7
“Kadar jenayah naik bukan sebab pati”
[Rise in crime rate not caused by “illegal
immigrants”], Utusan Malaysia, 21 May
2008.
8
“Asean fund by February”, The Star, 17
December 2008.
9
“Malaysia Disagrees with World Refugee
Survey”, Bernama, 20 June 2008, http://
www.bernama.com/bernama/v3/news_
lite.php?id=340875 (last accessed 27 November 2008).
10 “No mistreatment of refugees”, New Straits
Times, 23 July 2008.
11
unhcr’s definition of an asylum seeker is
“a person who has left their country of origin,
fidh & suaram (2008) Undocumented migrants and refugees in Malaysia: Raids, Detention and Discrimination, Paris and Kuala
Lumpur: fidh & suaram.
13 In August 2006, the government started
a registration process for approximately
12,000 Rohingya refugees, some of whom
had been in Malaysia since 1982, with
the purpose of issuing imm 13 permits
to them. However, after only two weeks
the registration process was suddenly suspended indefinitely, following allegations
of bribery, fraud and corruption in the
registration process. Among others, there
were accusations that non-Rohingyas
were registered with the help of agents
who were alleged to have taken bribes.
The government’s decision to leave out
the unhcr from the registration or identification process could have contributed to
allegations of fraud and its eventual suspension. To date, the imm 13 registration
process for the Rohingyas is still indefinitely suspended and the government has
not given any indication for its resumption. It is unclear as to how many Rohingyas were issued the permits during the 17
days registration before it was aborted.
14 “Jan 2 deadline for Aceh tsunami refugees
to leave”, New Straits Times, 26 August
2008.
15
imm 13 is a temporary permit which provides legal recognition to holders. The
permit is issued by the Home Minister
under Section 55 of the Immigration Act.
See discussion on this in the following sec-
143
tion on “unhcr and Refugees and Asylum
Seekers in Malaysia”.
16 However, as the government allowed
the Achehnese community to handle the
process instead of unhcr, not all of the
refugees recognised by the unhcr received the permits.
18 “Pakistan embassy man held by Rela personnel”, The Star, 10 May 2008.
27 Chor Chee Heung, 12 December 2008,
Third Meeting of the First Session
of the Twelfth Parliament, Hansard,
DR.12.12.2008 (p. 22) http://www.
parlimen.gov.my/hindex/pdf/DR.%20
3.12.2008.pdf (last accessed 15 June
2009).
19 “No plans to disband Rela, says Syed Hamid”, The Star, 8 December 2008.
28 “Increase in arrests, says Immigration”,
20 Zaidon Asmuni, interview, “Soal Jawab:
Kritikan tak jejas semangat Rela jaga keamanan”
[Q&A: Criticisms will not affect Rela’s
determination to ensure peace], Berita
Minggu, 3 June 2007.
29 “Penempatan haram pati dalam hutan
digempur” [Illegal jungle settlement of
migrants raided] Utusan Malaysia, 15 June
2008; “Village of illegals exposed”, The
Star, 15 June 2008.
21 Abdul Rahman Ibrahim, 25 June 2007,
Second Meeting of the Fourth Session of Eleventh Parliament, Hansard,
DR.25.6.07 (p. 3) http://www.parlimen.
gov.my/hindex/pdf/DR-25062007.pdf
(last accessed: 15 June 2009). See also
“Rela dept bill to be tabled,” The Star, 26
June 2007.
30 “80 pati dicekup” [80 illegal immigrants
nabbed], Utusan Malaysia, 18 June 2008;
“80 held in raid on illegal immigrants”,
New Straits Times, 18 June 2008.
17 “Rela man caught helping illegals”, New
Straits Times, 20 May 2008.
22 “Rela may be upgraded to an enforcement agency” The Star, 21 April 2008.
23 For instance, Amnesty International Malaysia, 5 July 2007, Press statement: “rela
Bill will worsen the climate of arbitrary
law enforcement”.
24 “Handover of depots for illegal”, The Star,
16 January 2008.
25 Ibid.
144
26 Chor Chee Heung, 3 July 2008, Second
Meeting of the First Session of the Twelfth
Parliament, Hansard, DR.3.7.2008 (p. 14)
pdf/DR-03072008.pdf (last accessed: 3
December 2008).
31 “Boys held despite having documents”,
New Straits Times, 21 June 2008.
32 “Days are numbered for Sabah illegals”,
The Sun, 1 August 2008.
33 “Says Chief Minister: Flushing out of illegals in Sabah will be done humanely”,
Asia News Network, 4 August 2008, http://
globalnation.inquirer.net/news/breakingnews/view/20080804-152596/Flushing-out-of-illegals-in-Sabah-will-be-donehumanely (last accessed: 15 June 2009),
34 “1,000 Filipino, Indonesian illegals jailed 3
days in Sabah”, Asia News Network, 11 August
2008, http://globalnation.inquirer.net/
news/breakingnews/view/20080811153982/1000-Filipino-Indonesian-illegals-jailed-3-days-in-Sabah (last accessed:
15 June 2009).
45 Series of interviews with former detainees, January-April 2007.
35 In the massive 2002 crackdown, some
half a million irregular migrants left Malaysia en masse to avoid being arrested
under the immigration laws which
47 Series of interviews with former detainees, January-April 2007.
36 “Memorandum on the Government
Crackdown on Irregular Migrants in
Sabah”, memorandum signed by 21 civil
society organisations, dated 6 August
2008.
46 Interview with Burmese refugee, 2 May
2008.
48 Series of interviews with refugees and
former detainees, January-April 2007 and
May 2008.
49 Adopted and opened for signature, ratification and accession by United Nations
November 1989.
37 Ibid.
38 “Filipino deportees beaten up by police”,
Malaysiakini, 4 October 2008, http://
39 “War on illegal foreign workers”, The Star,
21 September 2008.
40 “34 illegal immigrants nabbed in Malacca”, The Star, 10 November 2008.
41 “Illegal dies during raid”, New Straits
Times, 27 November 2008.
42 Abdul Rahim Bakri, 12 November
2008, Third Meeting of the First Session of the Twelfth Parliament, Hansard,
43 “Increase in arrests, says Immigration”,
44 “Detention centres bursting at seams,”
New Straits Times, 22 July 2007.
50 Wan Ahmad Farid Wan Salleh, 8 July
2008, Second Meeting of the First Session of the Twelfth Parliament, Hansard,
51
suhakam (2009) Annual Report 2008, Kuala
Lumpur: suhakam (pp. 41-46).
52 “Illegals riot at Lenggeng detention facility”, The Star, 22 April 2008.
53 “unhcr: No rejection of applications by
illegals at Lenggeng”, The Star, 23 April
2008.
54 “Infrastructure at Detention Camps Must
Be Improved – Suhakam”, Bernama, 24
April 2008; “Lenggeng detainees in a
state of tension”, Malaysiakini, 24 April
2008,
55 “Suhakam: It was ‘simply torture’ in
Lenggeng detention camp”, Malaysiakini,
15 May 2008, http://www.malaysiakini.
145
com/news/82902 (last accessed: 15 June
2009).
56
suhakam
(2009) op. cit. (p. 45).
57 “20 held in detention camp riot”, New
Straits Times, 26 June 2008.
58 The ex-detainee who spoke to suhakam is
a Burmese asylum seeker who was one of
those who were beaten.
59 “Malaysian spends 11 months at depot for
illegals”, The Star, 7 September 2008.
60 “Suhakam raps Immigration”, The Star, 8
September 2008.
61 United States, Department of State
(2007) Trafficking in Persons Report, Washington D.C: us Department of State.
62 Ibid. (p. 27).
63 Ibid. (pp. 143-144).
64 Ibid. (p. 143).
65 Adopted and opened for signature, ratification and accession by the un General
Assembly resolution 55/25 of 15 November 2000.
66 “Special Committee Investigates Alleged
Trafficking Of Myanmars”, Bernama, 9
July 2008, http://www.bernama.com/
67 “Pemberitahuan pertanyaan bagi jawab
lisan Dewan Rakyat” [Dewan Rakyat
parliamentary reply to Charles Santiago,
Klang], question number 33, reference
number 1294, dated 22 October 2008.
146
chapter 8:
LAW AND THE
*
JUDICIARY
T
wo decades on, the 1988 Judicial
Crisis was revisited not by the usual
civil society watchdogs but, in a significant breakthrough, by the Barisan Nasional
(bn) government itself when the exposé of the
notorious V.K. Lingam videotape forced the
authorities to establish a Royal Commission
of Inquiry on the matter. This was followed
by the Prime Minister announcing ex-gratia
payments to the six affected judges in the
1988 Judicial Crisis and the creation of a Judicial Appointments Commission.
Ex-gratia Payments to Affected
Judges
At a dinner hosted by the Malaysian Bar on
17 April 2008, the Prime Minister Abdullah
Ahmad Badawi announced two measures to
restore confidence in the Malaysian judiciary.
One was to award goodwill ex-gratia payments to the six judges who were suspended
(three were eventually dismissed) in the 1988
Judicial Crisis. The payments were not compensation and there was no outright apology
from the government to the judges. However,
the Prime Minister’s acknowledgement of
the dismissed judges’ contributions, pain and
loss was the closest to regret expressed by any
member of the government in the 20 years
since their dismissal. The second measure
was the creation of a Judicial Appointments
Commission to evaluate and vet candidates
in a systematic and credible manner based on
clearly defined criteria.
At first, the government steadfastly refused to disclose the amount of the ex-gratia
payment. However, in November, the de facto
Minister for Law Nazri Aziz (who resumed
his old job after Zaid Ibrahim – who was appointed after the 8 March General Election in
Malaysia – resigned) told Parliament that the
total amount paid out was RM10.5 million,
which was allocated as follows: former Lord
President (Chief Justice) Salleh Abbas (RM5
million), Azmi Kamaruddin and George Seah
(RM2 million each), and Wan Hamzah Mohd
Salleh, the late Eusoffe Abdolcadeer and the
late Wan Suleiman Pawanteh (RM500,000
each).
Independent Panel of Eminent
Persons
Not waiting for the Government to get its act
together, the Malaysian Bar Council, together
with lawasia and the International Bar Association’s Human Rights Institute, established
a Panel of Eminent Persons to review the
events of the 1988 Judicial Crisis. The Panel
comprised the Honourable Mr. Justice (Retd.)
J.S. Verma, former Chief Justice of India; the
Honourable Justice (Retd.) Fakhruddin G. Ebrahim, former Judge of the Supreme Court
of Pakistan; Dr. Asma Jahangir, an advocate
of the Supreme Court of Pakistan and the un
Special Rapporteur on Freedom of Religion
or Belief; Abdul Aziz Abdul Rahman, a senior legal practitioner from Malaysia; Dr. Gordon Hughes, a senior legal practitioner from
Australia and former lawasia President; and
Bill Davidson, a senior legal practitioner from
Malaysia.
The Panel of Eminent Persons, chaired
by Justice Verma, met in the course of 2008
and released its own report dated 26 July. The
Panel concluded that not only was the Lord
President Salleh Abbas totally innocent and
none of the charges against him had any merit, but in fact, he was performing his constitutional duty to uphold and protect the doctrine
of separation of powers and the rule of law
in the larger interest of the country. The conclusion was inevitable – that the removal of
Lord President Salleh Abbas was non est., not
a legitimate act.
On a review of the findings and the reports of the First and the Second Tribunals,
*This chapter was written by Andrew Khoo, co-Chair of the Malaysian Bar Council’s Human Rights Committee.
148
and on consideration of the definition and
meaning of “judicial misbehaviour” as above,
the Panel concluded that the composition of
the Tribunals, the process adopted by them,
and the findings and conclusions arrived at
against the Lord President Salleh Abbas, and
the two Supreme Court judges, Wan Suleiman
and Datuk Seah, as well as their recommendation for removal of the Lord President and
the two judges, were not justified or otherwise
appropriate in the circumstances of the two
cases. Accordingly, the removal of the three
from their offices was unconstitutional and
again not a legitimate act.
Hurriedly passed Judicial
Appointments Commission
•
•
•
•
The Government tabled the Judicial Appointments Commission Bill in Parliament on 11
December. The main features of the Bill are:
•
•
•
it applies to the appointment of judges
of the superior courts - Federal Court,
Court of Appeal, High Court, judicial
commissioners and appointments of
Chief Judges of Federal Court, High
Court in Malaya, High Court in Sabah
and Sarawak and President of the Court
of Appeal;
the Prime Minister must uphold the continued independence of the judiciary
and support the judiciary and the need
for public interest to be properly represented;
apart from the Chief Justice, the President of the Court of Appeal and the
Chief Judges of the High Courts of Malaya and Sabah and Sarawak, the Commission shall consist of a Federal Court
judge and four eminent persons, who are
not members of the executive or other
public service (appointed by the Prime
Minister) who shall not hold office for
•
•
•
•
•
•
more than two years but who are eligible
for reappointment. However no member
is allowed to hold office for more than
two terms;
Commission members shall be paid such
allowances as the Prime Minister may determine;
the President of the Court of Appeal
shall act as the Commission Chairman
temporarily for the period when the office of the Chairman is vacant, Chairman is absent or for any reason unable to
perform his functions;
Commission shall determine its own procedure and may set up any committee it
deems fit to assist in the implementation
of its functions;
No Commission members shall incur
personal liability for any loss or damage
caused by any act or omission in administering the affairs of the Commission, unless the loss or damage is occasioned by
an intentionally wrongful act or omission
on their part;
To select suitably qualified persons who
merit appointment as judges of the superior court for the Prime Minister's consideration;
To formulate and implement mechanisms for the selection and appointment
of judges of the superior court;
A candidate is qualified for selection if
they fulfil the criteria under Article 123
of the Federal Constitution;
All judicial commissioners appointed
before the coming into effect of this Act
may apply to be High Court judges;
Commission members, officers and servants are obliged to ensure the secrecy of
all information and documents whether
during or after the tenure of office. Offenders are liable to a fine not exceeding
RM100,000 or imprisonment for a term
not exceeding two years or both; and
No prosecution in respect of any offence
149
under the Act shall be instituted except
by or with the consent of the Public Prosecutor.
The Bill was criticised for still vesting
too much power in the hands of the Prime
Minister. It is he who appoints the four “eminent persons” and can remove them at will.
And by also having the power to choose which
Federal Court judge sits as a member of the
Commission, the Prime Minister effectively
controls the appointment of the majority of
the Commission. Further, the Prime Minister
is not bound to choose a candidate for high
judicial office from among those shortlisted
by the Commission. (Any fetter on the Prime
Minister’s discretion would have required
an amendment to the Federal Constitution,
which the Barisan Nasional government
wanted to avoid now that it did not have a
two-thirds majority in Parliament). The
Judicial Appointments Commission Act was
passed on 13 December.
150
Court during the 1988 Judicial Crisis. It was
he who had asked the court registry to lock
up the Supreme Court seal, which prevented
the judges from convening an urgent sitting
to hear an interim stay application by former
Lord President Salleh Abbas against a tribunal which had been set up to decide on his
alleged misconduct.
The other members of the Royal Commission of Inquiry were former Chief Judge
of Sabah and Sarawak Steve Shim Lip Kiong,
retired Court of Appeal Judge Mahadev
Shankar, former Solicitor-General Zaitun Zawiyah Puteh and Human Rights Commission
of Malaysia commissioner Professor Emeritus
Dr Khoo Kay Kim.
The terms of reference of the Royal
Commission of Inquiry were to:
•
•
Royal Commission of Inquiry
•
The second event related to the 1988 Judicial
Crisis was the commencement of the hearings
of the Royal Commission of Inquiry established to investigate the video clip showing a
senior lawyer by the name of V.K. Lingam
speaking over the telephone allegedly with the
then-Chief Judge of Malaya Ahmad Fairuz
Sheikh Abdul Halim (who eventually became
the Chief Justice of Malaysia and who retired
on 31 October 2007) on the issue of the appointment and promotion of judges. The video clip was supposed to have been recorded
sometime in 2001 or 2002, but contained references to incidents dating back to 1995.
The Royal Commission of Inquiry was
chaired by Haidar Mohd Noor, a former
Chief Judge of Malaya and who, interestingly
enough, was Chief Registrar of the Supreme
•
•
Enquire and ascertain authenticity of the
video clip;
Enquire and identify the person in the
video clip, to whom he was speaking and
the persons mentioned in the conversation;
Enquire and ascertain the truth of the
content of the conversation;
Determine whether there is misconduct
by the person or persons identified or
mentioned in the clip; and
Recommend appropriate action against
the person or persons identified or mentioned in the clip if found to have committed any misconduct.
All the members of the Royal Commission of Inquiry at some stage in the proceedings faced calls to recuse themselves on
the basis of past or present connection with
one or more of the personalities involved or
mentioned in the video tape, or with potential
witnesses, or with cases involving such personalities or witnesses. The list of witnesses
ultimately included former Prime Minister
Dr. Mahathir Mohamad, three former Chief
Justices, a former Chief Secretary to the Government, a current Cabinet minister, a prominent entrepreneur, V.K. Lingam himself, his
estranged brother, his former secretary, and
various officers of the Anti-Corruption Agency. In all, 21 witnesses were called.
The hearings of the Royal Commission of Inquiry began on 14 January 2008
and continued until 15 February, sitting for
17 days. Written submissions from various
counsels were received until 5 March. Although the Royal Commission of Inquiry was
supposed to have produced its report by 11
March, it was granted several extensions until
9 May to do so. The Royal Commission of
Inquiry found that:
•
•
•
•
•
•
It was indeed former Chief Justice Tun
Ahmad Fairuz who was talking to prominent lawyer Datuk V.K. Lingam on the
telephone.
The video clip was authentic and that the
conversation was true in substance.
It was lawyer Loh Mui Fah whom Lingam was speaking to after his telephone
conversation with Ahmad Fairuz.
There was sufficient evidence of misbehaviour by certain persons mentioned or
identified in the clip.
There was sufficient reason for the relevant authorities to take appropriate action against those implicated for breaches
of the Sedition Act, the Penal Code, the
Official Secrets Act, the Legal Profession
Act and other laws.
The Royal Commission of Inquiry recommended that the Government set up a
Judicial Appointments Commission and
to undertake other necessary reforms.
The evidence presented during the Royal
Commission of Inquiry showed that the
promotion and appointment of judges in
the upper echelon of the Judiciary was
open to interference and manipulation
by the Executive and private citizens.
•
The Royal Commission of Inquiry also
recommended to the Government that
judicial powers be returned to the civil
courts.
On 16 May, the Cabinet ordered the
Attorney-General to immediately direct
agencies to investigate allegations levelled at
Dr Mahathir, Ahmad Fairuz and Lingam,
as well as former chief justice Mohd Eusoff
Chin, former minister in the Prime Minister's
Department Tengku Adnan Tengku Mansor,
prominent entrepreneur Vincent Tan. The
report was eventually made public on 20 May.
On 21 May, the Attorney-General announced
that he had ordered a thorough follow-up on
all the findings of the Royal Commission of
Inquiry.
The findings of the Royal Commission
of Inquiry were then made the subject of a
leave application for judicial review by five
out of the six persons highlighted in the report (the exception being the former Prime
Minister Dr. Mahathir). The leave application
for judicial review was rejected by High Court
judge Kadir Musa on 12 December.
Compromising the Independent
Police Complaints and Misconduct
Commission
The Government unveiled the Special Complaints Commission Bill to Parliament on 13
December 2007. The (then) de facto Minister
for Law Nazri defended the Bill from accusations that the Special Complaints Commission (scc) was a watered-down version of the
Independent Police Complaints and Misconduct Commission (ipcmc) by saying that it was
only right that the scc address the complaints
of misconduct not just against the police but
on all enforcement agencies. The Government did not want the police to be the only
agency on the receiving end of public com-
151
plaints. He said the Government could not
have a special commission for each agency.
He added that the scc would not address allegations of corruption as stipulated under the
ipcmc as any wrongdoing which had an element of corruption would be dealt with by the
Anti-Corruption Agency. There was no need
for a parallel body to address corruption. The
ipcmc would only play an investigative role. It
was akin to a complaints bureau with investigative powers, and not another court.
However, despite these brave words, the
scc Bill was subsequently withdrawn from
consideration by Parliament and was only
reintroduced after the General Elections of 8
March 2008. In May, the Government announced that it was withdrawing the scc Bill.
Summary
In 2008, we see a less than wholehearted attempt to revise and reinvigorate the judicial
system in Malaysia. The Judicial Appointments Commission on the surface appears to
be a positive move forward. Yet the fact that
the Prime Minister remains fully in control
of the appointees to the Judicial Appointments Commission and is not bound by the
recommendation of the Judicial Appointments Commission takes us no further from
the statement by former Prime Minister Dr.
Mahathir, who testified to the Royal Commission of Inquiry that it was he who ultimately
nominated judges for appointment by the
Yang DiPertuan Agong and he did not have
to explain or justify his choices to anyone.
Similarly, the government’s failure to
bring the original ipcmc bill before Parliament, and its inability to produce an alternative that would be acceptable to civil society,
reveals an inability or unwillingness to come
to grips with the underlying problem in the
area of law and order in Malaysia – namely
the unchecked impunity of the police force.
152
The government has clearly shown that it
lacks the concerted political will to rein in the
police force, which continues thus to abuse its
powers. The lack of public confidence in the
police force is fast reaching crisis proportions.
chapter 9:
HUMAN RIGHTS
COMMISSION OF
MALAYSIA
(SUHAKAM)
S
ince its establishment in 2000,
the Human Rights Commission of
Malaysia (suhakam) has been viewed
by critics as lacking independence and
effectiveness in fulfilling its functions and
obligations as a national human rights institution (nhri), i.e. promoting and protecting
human rights in the country. This view has
been supported by a general lack of commitment by the government to make suhakam
an independent and effective body, as illustrated by a statement made in Parliament by
Minister in the Prime Minister’s Department
Nazri Abdul Aziz in 2006. He said, “We have
never planned to give any teeth to suhakam. It
does not have prosecuting powers because this
can be done by other enforcement agencies.
Thus, to give them more teeth has never been
our proposal.”1
In April 2008, the International
Coordinating Committee of National Human
Rights Institutions (icc), the international
coordinating body of nhris around the
world, in its review of suhakam’s accreditation,2 found that the Commission had
failed to fully comply with the international
standards relating to the establishment and
performance of nhris. In its review, the
icc informed suhakam of “its intention to
recommend to the icc status B, and gives the
Commission the opportunity to provide in
writing, within one year of such notice, the
documentary evidence deemed necessary to
establish its continued conformity with the
Paris Principles”.3 The one-year notice given
to suhakam by the icc reaffirms the concerns
regarding suhakam’s independence and effectiveness which have been articulated by various human rights ngos in the country since
the Commission’s establishment.
The implications of a possible downgrading from “A” status to “B”, as a result of its
lack of compliance with the Paris Principles,
is that suhakam will lose its right to participate
in the regular sessions of the United Nations
154
Human Rights Council – a serious blow to
Malaysia’s human rights record at the international level, especially in view of Malaysia’s
membership in the un Human Rights
Council. In Malaysia’s Aide-Memoire on its
candidature to the un Human Rights Council
in 2006, the government unequivocally
stated that its commitment to human rights is
demonstrated by the establishment of
suhakam.4
On 25 July 2008, 44 Malaysian civil
society organisations released a joint press
statement, urging the government of Malaysia
to take measures to ensure the independence
and effectiveness of the Commission, in
accordance with the Paris Principles.5 In
response to this, Deputy Prime Minister
Najib Razak, in a statement read out by
Tourism Minister Azalina Othman during
the AnnualMeeting of the Asia Pacific Forum
of National Human Rights Institutions (apf)
in Kuala Lumpur on 29 July 2008, said,
“[A]ny move to amend the Act will, of course,
have repercussions and, therefore, needs to be
studied carefully.”6
However, as of 31 December 2008, there
was no progress both by the Commission
and the government of Malaysia in fully
implementing the recommendations made
by the icc. The failure of the government
of Malaysia in making appropriate amendments to its enabling law, the Human Rights
Commission of Malaysia Act 1999, to make
it more independent is all the more disappointing, considering that civil society groups
have made numerous proposals on different
occasions since 19997 for amendments to
the aforementioned legislation, including the
Commission itself in 2002.8
suhakam, in response to the icc’s review
in April 2008, was reported to have written to the government of Malaysia with regard to the findings of the Sub-Committee.9
However, since then no further developments
have been brought to our attention. This is
Human Rights Commission of Malaysia
because none of suhakam’s efforts to lobby
the government of Malaysia to amend the
Act 1999 have involved civil society groups.
Where the implementation of the icc’s recommendations is concerned, civil society
groups have been kept in the dark and left out
from providing inputs to suhakam.
Section 5(3) of the Act states that commissioners “shall be appointed from amongst
prominent personalities including those from
various religious backgrounds”. The definition of “prominent personalities” is not specified. Indeed, this criterion is of concern as the
meaning of “prominent personalities” is not
synonymous with integrity and competence.
More importantly, human rights knowledge
and experience in human rights work are not
stated as criteria in such appointments.
Recommendations by the ICC
These weaknesses of suhakam, which
The Paris Principles10 state that the have been long highlighted by civil society
compositionof an nhri and the appointment groups, were brought up by the icc in its
of its members must “afford all guarantees accreditation review on suhakam in April
to ensure the pluralist representation of the 2008. The icc, in its review, gave a one-year
social forces (of civilian society) involved in notice to suhakam to make improvements
the protection and promotion of human based on four recommendations, failing which
rights […].”11 It must therefore have repre- the Commission will be downgraded from
sentation of various sectors, including ngos, “A” status to “B”. The recommendations and
trade unions, and concerned social and observations made by the icc Sub-Committee
professional organisations; universities and on Accreditation in relation to suhakam were:
qualified experts; Parliament; and government departments.
• The independence of the Commission
Although the composition of suhakam
needs to be strengthened by the provision
seems to have fulfilled the criterion of
of clear and transparent appointment
plurality to a certain extent, the competence
and dismissal process in the founding
and independence of some commissioners
legal documents, more in line with the
remain open to question. There is no
Paris Principles.
prescribed manner in which the public or • With regard to the appointment, the
public-interest organisations can participate
Sub-Committee notes the short term of
in the selection process. As such, there is no
office of the members of the commission
(two years).
consultation with, or participation of, civil
• The importance of ensuring the represociety groups.
sentation of different segments of society
Another major problem is that the Act
gives the prime minister unfettered discretion
and their involvement in suggesting or
in appointing commissioners. Section 5 of
recommending candidates to the governthe Act states that the King is to appoint
ing body of the Commission.
the members, based on the prime minister’s • The need for Suhakam to interact more
recommendation. This means that there are
with the International Human Rights
no checks and balances to ensure that the
System and participate in human rights
appointment process is politically neutral.
mechanisms and making recommendaThe Act also does not specify limits on
tions at national level.
re-appointments.
155
Implementation of the first three of
the four recommendations made by the icc
requires the amendments to the enabling law
of suhakam, the Human Rights Commission
of Malaysia Act 1999. Despite these recommendations, on 30 April 2008, 16 of the 18
commissioners from the previous term were
re-appointed for another term of two years
by the Yang di-Pertuan Agong (King) on the
recommendation of the Prime Minister. The
16 are currently serving their first of their
two-year terms, which will respectively end
in April 2010. Out of those 16, 10 are either
retired civil servants or from state-run universities or academic institutions.12
In its fourth recommendation relating to
suhakam’s engagement to the international
system, the icc in its General Observations,
noted that it “would like to highlight the
Human Rights Council and its mechanisms
(Special Procedures Mandate Holders) and
the United Nations Human Rights Treaty
Bodies. This means generally nhris making
an input to, participating in these human
rights mechanisms and following up at the national level to the recommendations resulting
from the international human rights system.
In addition, nhris should also actively engage
with the icc and its Sub-Committee on
Accreditation, Bureau as well as regional coordinating bodies of nhris”.13
In this respect, suhakam is engaged in
the un Human Rights Council’s Universal
Periodic Review (upr) process, in which
Malaysia was scheduled to be reviewed in
February 2009. The Commission submitted a report which was compiled in the
Stakeholders’ Summary Report for the upr
on Malaysia. The Commission held a consultation with civil society on 14 August 2008.14
However, it is still too early to fully assess the
Commission’s engagement in the upr process.
In the same respect, with regard to
s
uhakam’s mandate to encourage the ratification of international human rights treaties
156
and instruments,15 results have been severely
lacking. Out of the nine core international
human rights treaties, Malaysia has only
ratified two, both of which with reservations.
The critically low number of ratification
of international human rights treaties and
instruments by the government of Malaysia
underscores the weakness of the Commission
in this aspect of its mandate.
OTHER SETBACKS AND
DEFICIENCIES
Besides the recommendations made by the
icc to improve suhakam’s independence and
effectiveness, there are also a number of other
setbacks and deficiencies in suhakam. These
are the Commission’s lack of structural auto
nomy, the narrow definition of “human rights”
in its enabling law, the limitation in its powers
of inquiry and visits to places of detention,
and the government’s non-implementation of
the Commission’s recommendations.
Lack of Structural Autonomy
When suhakam was established in 2000,
it was placed under the jurisdiction of the
Ministry of Foreign Affairs. Jurisdiction was
then transferred to the Prime Minister’s
Department in 2004. Being under the
direct supervision of the Prime Minister’s
Department has further undermined the
Commission’s credibility and dispels claims
that it has any semblance of structural
autonomy from the Executive branch of the
government.
Under Section 5(4) of the Act, commi
ssioners hold office for two years and are eligible
for re-appointment. As re-appointments are
the prerogative of the prime minister, there is
a real danger that commissioners will practise
self-censorship and conduct themselves in
such a way to secure renewal of tenure.
and attendance of witnesses. However, Section 12(2) of the Act bars it from inquiring
Another glaring weakness in the Commission into any complaint relating to any allegation
is that it does not have enforcement powers of infringement of human rights which (a)
and it has a very limited mandate. According is the subject matter of any proceedings
to the Paris Principles, an nhri “shall be given pendingin any court, including any appeal; or
as broad a mandate as possible”.16 However, (b) has been finally determined by any court.
Section 2 of the Human Rights Commission This can be problematic as it may restrain
of Malaysia Act 1999 confines the definition the Commission from investigating if a case
of “human rights” to such fundamental involves any other forms of violation apart
libertiesas enshrined in Part II of the Federal from the subject matter in the courts. This
Constitution. This sets limits on suhakam’s could possibly give the Commission justification to refrain from investigating cases taken
mandate.
Although Section 4(4) of the Act states to court, without considering if these involve
that “regard shall be had to the Universal any other forms of violation. This means
Declaration of Human Rights [udhr] 1948 that there is a possibility that the Commisto the extent that it is not inconsistent with the sion would have to refrain from inquiry even
Federal Constitution”, there is no provision when the alleged violator initiates legal action
for incorporation of rights embodied in inter- to frustrate an inquiry by the Commission.17
national conventions to which Malaysia is a
party. The definition should be in accordance
with the udhr and other international human Visits to Places of Detention
rights laws.
It must be pointed out that Part II is not Another restriction the Commission faces
the only section of the Federal Constitution relates to visiting places of detention. While
that enshrines human rights. Many critical Section 4(2)(d) provides it with the power to
matters like rights of citizenship, right to do so, the visits have to be “in accordance
universal adult franchise, eligibility to contest with procedures as prescribed by the laws
a seat in the Lower House of the Parliament, relating to the places of detention […]”. In
and protection for detainees under preven- order to inspect conditions of prisons, for
tive detention laws are stated in other parts example, suhakam must first write to the
of the document. Yet, these have been delib- Prison Department for permission. It is
erately excluded from the Act. Even the few pertinent to stress that such notification only
fundamental liberties in Part II can be easily gives time to the authorities to clean up
circumscribed as the Constitution subordinates their act, which defeats the basic reason for
individual rights to the need for social stabil- checks on conditions in prisons and detention
ity, security and public order. It permits the camps. suhakam should be given the powers
Executive and Legislature to impose many to conduct spot checks in order to get a more
realistic view of conditions and to ensure that
restrictions on fundamental liberties.
the level of maintenance and treatment of
detainees are on par with stipulated standards
at all times.
Powers of Inquiry
Narrow definition of Human Rights
suhakam has powers similar to those of
a court
of law in the matter of discovery of documents
157
Recommendations and advice ignored
Although suhakam is frequently criticised by
ngos for its incompetence, it has – to its credit
– occasionally come up with considerably
good reports and recommendations. However,
these initiatives to promote human rights are
routinely ignored by the government and its
agencies.
For example, suhakam has since its
inception been consistent on its position on
freedom of assembly. In several comprehensive reports,18 it has made recommendations
supporting the right to peaceful assembly in
line with international human rights standards. These include professional procedures in
situations where crowd dispersal is justifiable;
for instance, that an audible order to disperse
should be given three times at 10-minute
intervals before the police move into action.
Frustrations over the general lack of
seriousness in the government’s attitude
towards the work of suhakam was voiced
by the Commission’s Chairman Abu Talib
Othman, in an interview given in August
2008, when he said, “[Y]ear after year, our
reports to parliament detailing our activities
and recommendations are never debated
in Parliament, much less acted upon by the
relevant ministries. On the contrary, there is a
tendency to undermine our independence by
certain ministries.” 19
At another level, the ratification of
international covenants and treaties is one of
the benchmarks of human rights promotion
and protection. suhakam’s recommendations
since 2000 to the government to sign several
key international documents have been
ignored. Ratification of the International
Covenant on Civil and Political Rights (iccpr),
International Covenant on Economic, Social
and Cultural Rights (icescr), and Convention
Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (cat)
remains as distant as ever.
158
SUHAKAM’S POSITION ON HUMAN
RIGHTS ISSUES, RECOMMENDATIONS AND ACTIVITIES
From January to December 2008, the
Commission received a total of 1,136
complaints. Of these, 532 are in relation to
human rights violation, which includes complaints on law enforcement officers/police
abuse of power, detention under the Internal
Security Act (isa), the Dangerous Drugs Act
(dda), trafficking in persons, asylum seekers
and refugees, migrant workers, etc. The other
604 complaints involved administrative inefficiency of government agencies, crimes that
require investigation and cases that were either
pending trial or had been disposed by Courts
which are not within the ambit of their jurisdiction. The bulk of the complaints are from
the Eastern Malaysian state of Sabah, with
314 cases recorded as compared to Peninsular
which recorded 168 cases, and Sarawak with
only 50 cases. Similarly, the majority of these
cases are in relation to customary and native
land rights followed by complaints against
the National Registration Department. From
the 532 complaints related to human rights
violations that it received, 217 cases were
investigated and completed while the rest
are still under investigation. There are 44
complaints against police abuse of power,
inaction towards report lodged and brutality
during interrogation.20
In 2008, key issues highlighted by
suhakam related to freedom of assembly,
freedom of expression and information, free
and fair elections, freedom of religion, misuse
of the isa, police inaction, administration of
justice,law enforcement and the rights of vulnerable groups.
Public Inquiry
In 2008, suhakam conducted one public
inquiry – on the allegations of excessive use of
force during a protest by residents of Bandar
Mahkota Cheras, Kuala Lumpur against
the actions of a toll company to barricade
a toll-free route, during which excessive and
unwarranted force was used by the police,
resulting in serious injuries to a 21-year old
man. (See also Chapter 2: Abuse of Powers by the
Malaysian Police.)
On 14 June 2008, suhakam decided to
hold a public inquiry on the incident. The
panel of inquiry commenced on 23 July 2008
and was adjourned on 25 July 2008, and
subsequently resumed its hearing on 27
August 2008 and concluded on 29 August
2008. 26 witnesses were called by the panel
of inquiry.
In its report, suhakam concluded that
the police had used excessive force and
breached international standards outlined in
the Basic Principles on the Use of Force and
Firearms by Law Enforcement Officers.21 The
Commission made three main conclusions:22
•
•
•
That there was excessive use of force by
the law enforcement personnel against
two individuals during the incident;
That the excessive use of force by the law
enforcement personnel had violated the
safety and security of two individuals;
and
That the police and fru personnel were
responsible for the violation of human
rights in the incident.
suhakam
•
•
also recommended that:23
The police and fru urgently implement
the international standards as guidelines
for their personnel on the use of force;
The police and fru require all their
personnel to display their names and
•
badge numbers visibly and clearly during
field operations; and
The police conduct their own investigations to ascertain which personnel used
excessive violence with a view of taking
disciplinary action against the said
personnel and, where necessary, to recommend to the Public Prosecutor for further action.
In cases of public inquiries, suhakam is
clearly reactive, not pro-active. Section 12(1)
of the Act states that “[t]he Commission may,
on its own motion or on a complaint made
to it […]” inquire into allegations of human
rights infringement. However, in practice, the
Commission does not open an inquiry until
a complaint is lodged. Since suhakam started
operating in 2000, a total of 6 public inquiries
have been conducted – all of which were
held after complaints were lodged with the
Commission.
In some instances, even when a complaint
had been made and Suhakam furnished with
irrefutable evidences of serious human rights
violations, the Commission chose not to hold
public inquiries. This was seen in May, when
suaram, the Bar Council’s Human Rights
Committee and Tenaganita submitted a joint
memorandum on violations of human rights
and mistreatment of detainees related to a fire
incident at Lenggeng Detention Centre. The
memorandum revealed an incident of severe
mistreatment and violence used against nine
detainees by Immigration officers on 20 April
2008.24
Upon receiving the memorandum,
suhakam commissioner Siva Subramaniam
stated that the Commission had visited the
victims and their findings concurred with
the findings in the memorandum. He also
commentedthat the root cause of the incident
was violation of human rights and that the
authorities tried to “hide everything that has
happened”. He also made a strong statement
159
saying that the incident is “one of the worst
incidents that have taken place in Malaysia”
and that action must be taken against the
officers who took part in the violation of
human rights.
Despite such strong statements by the
commissioner, suhakam, in its June monthly
meeting decided to reject calls by civil society
groups for a public inquiry into the matter.
variousinterim measures, including amending
the isa, before a new security law were put in
place. The proposed amendments include:27
•
•
•
•
Detention without Trial
•
In 2003, suhakam released the “Review of the
Internal Security Act 1960”. In its review of the
isa, the Commission called for the repeal of the
draconian act and for a new comprehensive
25
law to be enacted that would
redress the
situation that is “disproportionately weighted
in favour of national security”. suhakam
said, “History has shown that the law and
practice in relation to the isa have adversely
affected the status of human rights in
Malaysia.”26
In the review, the Commission proposed
that the government consolidated all laws
pertaining to national security, including the
isa, into one statute that “takes a tough stand
[on] threats to national security” and yet
“conforms [to] international human rights
principles”. This new anti-subversion law
must spell out the specific offences related to
threats to national security. It said that the
list of offences would best be prepared by
experienced judges and all offences on the list
should be tried in the High Court. To avoid
abuse of power, the new law should be only
valid for one year, with its renewal thereafter
to be determined by Parliament. Detention
for investigation purposes must not be more
than 29 days, after which detainees must be
charged or released. Each remand order must
be obtained from a High Court judge.
The Commission also recommended
in its 2003 review that the government take
160
Defining clearly the detention criteria under the isa.
Reducing the detention period from two
years to three months.
Either charging or releasing a detainee
after the three-month period.
Allowing judicial review of detention
orders.
Requiring detaining authorities to submit
an annual isa report to Parliament and
making the isa valid for one year unless
reviewed by Parliament annually.
In its 2008 annual report, suhakam, in
reiterating its recommendations in its 2003
“Review of the Internal Security Act 1960”, noted:
“Despite calls for review and repeal
of [the isa], the government maintains that the legislation is necessary
to ensure peace and security. In this
regard, it is to be appreciated that
it is a central tenet of international
human rights law that all persons
are entitled to the protection
of certain fundamental rights,
irrespective of their nationality,
status or the crime they are alleged
to have committed, and no matter
how grave the threat posed to the
wider community. States are not
permitted to fulfil their obligations
to protect the rights of the wider
population merely by disregarding
the rights of suspects.”28
The Commission went on to state:
“suhakam reiterates its stand that
all forms of preventive legislations should be repealed as these

are
contrary to Article 9 of the
[Universal Declaration of
Human Rights]. suhakam again
recommends that the government
releases all detainees or brings
them to justice if there is sufficient
evidence of their involvement in
the alleged activities for which they
are being detained. In the interim,
the government should consider
releasing detainees who are of old
age or in fragile health.”29
udhr
noted with concern “the extension
of detainees detained under the
isa and the Emergency Ordinance,
some of whom have been detained
for more than six years. suhakam
holds the view that it is vital to ascertain if the original rationale of
detention is still valid after so many
years.”31
However, in December 2008, Home
Minister Syed Hamid Albar rejected these
recommendations made by suhakam, saying
In 2008, suhakam received 70 com- that the Commission only looked at the issue
plaints regarding detention without trial. In from their perspective when it called for the
response to this, suhakam noted in its report: isa to be reviewed and affirmed that the
government was looking at the issue at a
“Concerned by the rise in commuch wider perspective and had to take into
plaints relating to preventive laws,
consideration the over-arching interest of the
suhakam proposed a ‘Closed-door
public.32
Discussion on Issues of Prevention
In response to this, suhakam issued
Law’ with relevant government
a press statement on 15 December 2008,
agencies on 26 November 2008.
expressing its “surprise [over] the comments
Invitations were sent to various
made by the Minister of Home Affairs, Datuk
ministries and agencies to particiSeri Syed Hamid Albar on suhakam’s views
pate in the discussion. However,
on the Internal Security Act (isa) […]”. It
s
uhakam had to call off the discusadded, “suhakam reiterates that its stance
sion as those concerned declined
on the ISA is consistent with the Universal
the invitations.”30
Declaration of Human Rights in particular
and other international human rights norms
On 13 October 2008, suhakam released in general, that preventive detention without
a statement calling for the repeal of the isa and trial is an infringement of human rights.”33
the release of the detainees. It the statement In previous years, suaram has criticised
released by commissioners Simon Sipaun, suhakam for its lack of vigorous efforts to
Michael Yeoh and Denison Jayasooria, apply pressure on the government to repeal
suhakam reiterated its stance that the isa
preventive detention laws despite its consistent
should be repealed and be replaced by a recommendations through its reports. Howspecific Anti-Terrorism Act. The press state- ever, in 2008, as a result of an increased
ment read:
popular call for the repeal of these laws,
suhakam finally responded by issuing five
“suhakam holds the view that the
press statements reiterating its call for the govisa must not be abused and the use
ernment to abolish detention without trial.
of the isa should conform to its
Despite its consistent position on the
original intent and objective”. In
isa and its increased reiteration of the call
the same statement, suhakam also
to repeal preventive detention laws, the work
161
of suhakam on this area still lacks proactive
effort, for instance in exercising its power
to visit places of detention, as provided in
Section 4(2)(d) of the Human Rights Commission of Malaysia Act 1999.
In 2008, suhakam did not make any
visit to isa detainees during the first 60 days
of detention, when detainees are often held
incommunicado and at greatest risk of being
tortured, in order to ensure their safety and
wellbeing. As some of the isa arrests made in
2008 were high-profile and widely reported
by the media, there was no reason for the
Commission’s lack of proactive and
immediateresponse apart from making public
statements.
Deaths in Police Custody
In 2005, the Commission pledged to conduct
public inquiry into all cases of death in
custody should the police fail to conduct an
inquest.34 In its 2008 annual report, with
regard to deaths in custody, suhakam noted,
“Article 10(1) of the udhr which provides
that all persons deprived their liberty shall be
treated with humanity and with respect for
their inherent dignity of the human person.”
suhakam further recommended the amendment to the Criminal Procedure Code (cpc)
to make it mandatory for Magistrates to hold
an inquiry into deaths in custody unless a person has been charged for an offence in respect
of the death.35
suaram members filing a complaint with suhakam on the death
of Goh Yan Peaw in police custody in January.
While these pledges were commendable,
suhakam’s implementation of these recommendations has been far from satisfactory.
Given the abysmal record of the government’s
implementation of suhakam’s previous
recommendations, it is difficult to foresee
much speedy implementation by the
government to amend the cpc to make it
mandatory for inquests to be held into all
deaths in custody. However, contrary to its
pledge in 2005, throughout 2007 and 2008,
suhakam itself failed to conduct any public
inquiry into any of the cases of death in
police custody despite the fact that a number
of these cases remain unresolved.
Conditions of Prisons and Detention
Centres
suaram members filing a complaint with suhakam on the death
of Goh Yan Peaw in police custody in January.
162
Pursuant to Section 4(2) (d) of the Human
Rights Commission of Malaysia Act 1999,
which provides suhakam with powers to make
visits to places to detention, suhakam visited
37 prisons and detention centres in 2008,
of which eight were visits to prisons, 23 to
immigration detention centres and six to
police lockups.36 This was a decrease from 48
visits made by suhakam in 2007. From these
visits, suhakam made several observations,
including:37
4. Young Inmates and Unaccompanied
Children
In contravention with basic human rights
principles, suhakam found that unaccompanied children were being placed with adults
in various Immigration detention centres. It
stated that children should only be detained
1. Overcrowding
at detention centres as a measure of last
Citing the Sungai Buloh Prison as an resort and for the shortest appropriate period
example, which housed 5,600, exceeding of time. On this, the Commission further
its gazetted capacity of 2,200, suhakam reiterated the recommendations made by the
reiterated the problem of overcrowding in Committee on the Rights of the Child to
detention facilities. It recommended that the the Malaysian government – that “legislation
government considers alternatives in addition is enacted to deal with the issue of unaccompanied
to existing mechanisms such as the parole sys- children [in detention]”.38
tem, including the Electronic Tagging System
for those charged with minor offences, where 5. Healthcare
offenders are monitored using a computer suhakam observed that there were no medisystem instead of being held in prisons.
cal centres in most of the Immigration
suhakam also noted its concerns detention centres. The Commission noted
regarding overcrowding in immigration that in cases of emergency, detainees at these
detention centres which were attributed to Immigration detention centres are sent to
the delays in confirming the nationality of the nearest clinic or hospital. In view of this
detainees and in the issuance of relevant problem,the Commission recommended that
travel documents by their respective foreign all Immigrationdetention centres should have
missions. To reduce the number of detainees a doctor or medical officer.
at Immigration detention centres, suhakam
recommended that the government reviews 6. Management of Places of Detention
related legislation to allow for immediate suhakam observed a shortage of officers and
repatriation of undocumented immigrants.
staff at almost all prisons and immigration
detention centres. The Commission also
2. Facilities
recommended that the Immigration
suhakam also recommended that the facilities Departmentprovides training on the rights of
at old prisons be upgraded. It specifically detainees for its personnel.
highlighted the need to install a sanitary toilet
facility in each cell in the Penang and Johor As these problems have been highlighted
Bahru prisons.
by suhakam in previous years,39 the fact that
they persist once again underscores the lack of
3. Quality of Food
effectiveness in suhakam’s recommendations
The Commission also noted its concern for to the government.
the quality of food in places of detention and
recommended that the quality be brought in
line with the Ministry’s dietary guidelines.
163
Freedom of Assembly
In March 2007, suhakam released a
commendable report on the public inquiry
into alleged violations of human rights during
dispersal of a public demonstration against
increased fuel prices held on 28 May 2006 in
Kuala Lumpur40 and referred to as “Bloody
Sunday” in reference to injuries that some
participants sustained.
In the report, the Commission
recommended that “peaceful assemblies
should be allowed to proceed without a
licence”.41 The Commission concluded that
the police had used excessive force; that
they had infringed the rights of some of
the participants; and that certain officers
could be charged under the Penal Code.42
To date, however, no legal action has been
taken against any of the personnel said to be
involved.
In its 2008 annual report, suhakam once
again reiterated its position on freedom of
assembly:
“The right to peaceful assembly is
guaranteed under the Federal Constitution and stated in Article 20(1)
of the udhr and Article 21 of the
iccpr. suhakam therefore calls on
the government to consider the recommendations in the Commission’s
report on ‘Freedom of Assembly’
published in 2001.”43
The Commission also recommended:44
•
•
164
A review of crowd-dispersal methods and
procedures and a restraint on the use of
violence, teargas, batons and chemicallaced water;
Consultation with suhakam and ngos
over issues pertaining to freedom of
assembly in order to foster understanding;
and
•
Repealing provisions of the Police Act
1967 that require an application for
a police permit to hold an assembly or
activity in public places.
Despite the commendable recommendations, as in most of other recommendations made by suhakam, there is a lack of
implementation by the government. This was
reflected once again in May 2008, when the
police used excessive force during a protest
in Bandar Mahkota Cheras, Kuala Lumpur,
and caused serious injuries to a 21-year old
man. suhakam held a public inquiry into
that particular case and noted the failure of
the government to implement the previous
recommendations made by suhakam with
regards to freedom of assembly. In the report
of suhakam’s public inquiry on the Bandar
Mahkota Cheras incident, it said:
“Similar recommendations made in
Report of Public Inquiry
into the Incident at klcc on 28
May 2006 and suhakam’s Report
on Freedom of Assembly have
remained unheeded by the police.
This is evident by the recurrence
of excessive use of force and unprofessional police conduct in the
dispersal of peaceful assemblies
in the past assemblies and the
incidents of heavy-handed action
of fru personnel as found in this
Public Inquiry.”45
suhakam’s
Aside from the failure of the government
to implement the recommendations made by
suhakam, another setback with regard to freedom of assembly is that the Commission has
not made monitoring of assemblies as part
of its work. Despite the fact that suhakam
has noted the excessive and unwarranted use
of force by the police in assemblies on various occasions, to date, it has not been visible
uring public assemblies to ensure that its
d
recommendations are observed by the police
and other law enforcement agencies. None
of the suhakam commissioners were known
to be present in any of the public assemblies
which involved arrests and use of force by the
police in 2008.
Freedom of Association
In its 2008 report, suhakam stated that it
is “guided by the principle that everyone
has the right to freedom of association
with others”. Based on this principle, on
16 October 2008, when the Hindu Rights
Action Force (hindraf) was banned by the
government, the Commission, through three
of its commissioners, released a press statement which stated its position that the ban
of the organisation constituted a violation of
human rights. In calling for the lifting of the
ban, the press statement read, “Democracy
provides the avenue for respect of divergent
views and opinions. There must be tolerance
of this within a multi cultural society like
Malaysia, as long as violence is not the means
for social change.”46
However, on the very next day, 17
October 2008, suhakam Chairman Abu Talib
Othman released another press statement
clarifying that the press statement released on
the previous day on the ban of hindraf was not
an official statement of suhakam. Citing the
Human Rights Commission of Malaysia Act
1999 that “the members of the Commission
shall use the best endeavours to arrive at all
decisions of the meeting by consensus failing
which the decision by a two-thirds majority
of the member shall be required”, the
suhakam Chairman said that “the issue
was never placed for a discussion before the
Commission and hence no decision arrived
on its stand on the ban of hindraf” and therefore “the statement released was purely the
personal view of the three commissioners and
not the official stand of suhakam”.47
Freedom of Religion
Since its establishment, one of the major
criticisms on suhakam’s performance has
been that it has maintained ‘safe’ positions
on several issues which are seen as ‘sensitive’
in the context of Malaysian politics and
society. One example is on the issue of
freedom of religion. Although suhakam
acknowledges freedom of religion as
embodied in the Federal Constitution and
the udhr, in response to several controversial
cases relating to religious freedom in recent
years – such as that involving Lina Joy – the
Commission only went as far as to “recommend [that] the court delivers its judgment
as soon as possible to enable the government
to examine the procedure and mechanism
related to the issues.”48
The Commission has also not taken a
clear stand on several other cases that have
caused contention – that of M. Revathi, who
was sent to rehabilitative detention by Islamic
authorities; S. Kaliammal, whose deceased
husband’s body was taken away by Islamic
authorities who claimed that he had converted
to Islam; and R. Subashini, who was denied
her right to custody of her elder son when her
husband had converted to Islam.
This ‘safe’ position on the issue of
religionwas also once again reflected in 2008,
when suhakam, in its annual report, noted:

“Over the year, several thorny issues
were raised that involved religion.
Allegations involving the azan and
articles purportedly defaming Islam
led to the arrests and detention
under the isa. The Bar Council, on
9 August, organised an open forum
to discuss the legal problems related
165
putera status to Malays and indigenous peoples
of Sabah and Sarawak.
The report also called for an urgent
The Commission went on to state:
review of the National Land Code, the
Sarawak Land Code, and the Sabah Land
“suhakam supports the right to
Ordinance to ensure that native customary
freedom of speech and expression.
land rights are properly recognised. The
However, it is mindful that, when
Commission further recommended that the
dealing with a sensitive subject like
Orang Asli Act 1954 be amended to give indigreligion in a plural society, there is a
enous peoples permanent land titles instead
need to respect the rights of everyof 99-year leases.53
50
one involved.”
Other suggestions included the appointment of a minister responsible for Orang Asli
affairs in the peninsular and the establish
Freedom of Expression and Informa- ment of a department operated by the
tion
indigenous people themselves in Sabah and
Sarawak; political representation for native
Freedom of expression and information, communities; greater consultation with the
which is enshrined in Article 19 of the udhr, communities on land development projects;
was also listed as one of the key issues by consultation with the Orang Asal with regards
suhakam in 2008. suhakam, in its annual to the issue of resettlement; ensuring Orang
report, also voiced its concerns about the Asal the right to choose and practice the
number of books that have been banned by religion of their own choice; acknowledgement
the government over the years. Citing the of the Orang Asli culture as an aspect of
cases of book banning as an example of national culture; improved access to free
how the Printing Presses and Publications health and education for indigenous peoples;
Actt 1984 (pppa) can undermine freedom of and more systematic registration of Orang Asal
expression and information, suhakam recom- birth and citizenship documents.54
mended that the government reviews the pppa The year 2007 saw the release of a report
and the Official Secrets Act 1972.51
by suhakam titled “Penan in Ulu Belaga: Right
to Land and Socio-Economic Development”.55 The
report was based on visits made following
Indigenous Rights
complaints received from two Penan headmen
from Ulu Belaga, Sarawak, pertaining to
In 2003, suhakam released its report on logging, oil palm plantation and reforestation
the rights of the indigenous peoples in activities by a company and their impact on
Malaysia.52 While the term “Orang Asal” the right to land and the life of the Penan
refers to all indigenous peoples in Malaysia community.
(including those of Sabah and Sarawak), In its report, suhakam concluded that
“Orang Asli” specifically means the indige- the Penan’s historic custom of ownership and
nous peoples of Peninsular Malaysia. In the stewardship of land is not considered in the
report, the Commission called for the Federal Sarawak Land Code 1958 despite being an
Constitution to be amended to recognise indigenous group in Sarawak. As a result, the
Orang Asli as bumiputera. Currently, Section Penan’s claim to land has often been neglected
153(1) of the constitution only accords bumi- and not taken into consideration in the
to conversion, but this was stopped
owing to strong protest.”49
166
issuing of logging licences and the carrying
out of plantation activities. suhakam, therefore, made several recommendations in its
report, including: 56
•
•
•
•
That the Sarawak Land Code 1958, in •
particular, section 5(2) regarding Native
Customary Rights, be amended to take
into consideration the unique custom of
the Penans in ownership and stewardship
of land.
That the Government alienates areas
where there is evidence of Penan paths
and burial sites which clearly reflects
Section 5(2)d and 5(2)e of the Sarawak
Land Code 1958.
That sufficiently sized land is provided for
the Penans who have lost their ancestral
land following narrowly interpreted
legislation and logging and plantation
activities. Provision of land should take
into consideration increasing family size
and their dependence on jungle produce
for food and daily necessities.
On 12 August 2008, suhakam launched
its report, “Legal Perspectives on Native Customary
Land Rights (nclr) in Sarawak”. The report is the
result of a research undertaken by suhakam,
which examined the gap between provisions
in the Sarawak Land Code 1958 and claims
to native land. In its research, suhakam found
that the Sarawak Land Code has weakened
recognition of customary laws and practices
such as land ownership. It noted that certain customs and practices are not reflected
in the Sarawak Land Code, thus imposing
an unreasonable burden on native groups in
establishing the claim to native customaryland
rights. suhakam concluded that customary
rights and laws which have existed should be
the foundation of statutory laws. In relation to
this, suhakam recommended that:
The Sarawak Government should review
the Code to ensure that it promotes and
continually protects the rights of the
indigenous groups to their customary
land.
Such a review should include:

- Customs and practices governing the
establishment of ownership to land
and subsequent inheritance; these
should be codified to ensure that such
rights are not eroded in future;t
- Recognition of methods of land
occupation that arise out of native
customs and tradition is proof
of ownership and therefore not
subjected to the Code, which creates
a burden in establishing ownership via
documentaryevidence;
- Protection of native title rights
which cannot be taken away except
in accordance with law and upon
paymentof adequate compensation;
- The
fiduciary
obligation
of
Government officials to consult and
obtain consent of native communities
prior to taking action that may infringe
on native title rights.
Amendments to the Enabling Law to
Strengthen SUHAKAM
In 2002, suhakam conducted a review
on its enabling law and recommended
several amendments to the Human Rights
Commission of Malaysia Act 1999 to make
the Commission more independent and
effective. Among the key recommendations
made by suhakam in 2002 were:57
•
To strengthen the appointment process
of commissioners by ensuring the
independence and pluralism in the
composition of suhakam and greater
167
•
•
transparency and consultation. In this
respect, suhakam recommended that the
members of Commission be appointed
by the Yang di-Petuan Agong (King), on
the recommendation of a Committee
consisting of the Prime Minister as the
Chairperson, the relevant Minister, the
leader of the Opposition in the House
of Representatives, the Chairman of
suhakam and a representative of the ngo
community. suhakam also proposed that
a provision be made to reflect that this
Committee has the equivalent role in the
dismissal of a member of suhakam.
For the commissioners to play a more
effective role in the Commission, a longer
term of tenure was recommended,
instead of the two-year term with
unlimited re-appointments as provided
in the existing law. The Commission
proposed that the term of office should
ideally be for five years or in the alternative, for a minimum period of three years.
To ensure greater effectiveness in fulfilling
its mandate to visit places of detention,
the Commission recommended that it
should be given unrestricted powers to
visit prisons without having to comply
with procedures of places of detention
in its visits. suhakam therefore recommended that the phrases “in accordance
with procedures as prescribed by the
laws relating to the places of detention”
and “if the procedures provided in the
laws regulating such places are complied
with” in Section 4(2)(d) and 4(3) of the
Act 1999, respectively, be deleted.
However, as at the end of 2008, none of
these recommendations have been taken up
by the government.
In 2008, as a response to the recommendations and one-year notice of possible downgrading given by the icc, suhakam
168
reiterated its 2002 call for the government
to amend its enabling law. In its annual
report,the Commission said that it had, on 2
September 2008, recommended that the
government amends the Human Rights
Commissionof Malaysia Act 1999 to comply
with the Paris Principles as interpreted by the
Sub-Committee on Accreditation of the icc.58
On 15 December 2008, suhakam released
a press statement, once again urging the
government to amend the enabling law of the
Commission, noting that despite having made
recommendations to amend the law to make
it Paris Principles compliant, suhakam has not
received any response from the government
on the matter.59
ENGAGEMENT WITH CIVIL SOCIETY
While in the past, suhakam has generally had
an ambivalent relationship with human rights
ngos, many still see the importance of the
Commission and continue to cooperate with
it. One reason is because suhakam has access
to locations, such as places of detention, where
human rights violations frequently occur and
which are not easily accessible to civil society
groups. However, the level of cooperation
between suhakam and ngos varies from one
group to another.
In May 2008, suhakam set up a new
working group on Civil and Political Rights,
whose work include, “to organise dialogues
and roundtable discussions with civil society
organisations and political parties” and “to
obtain views and feedbacks from the public
on civil and political rights”, as explicitly spelt
out in its terms of reference.60 This working
group held four consultations or roundtable
discussions with civil society throughout 2008,
some jointly with other working groups of the
Commission. They were:
resident facilitators, held from 9-10 August
2008.63
•
On a less institutionalised level, suhakam
collaborated with some ngos, in conducting
•
trainings and workshops on various human
rights issues. For instance, in June 2008,
•
suhakam invited suaram to assist them in
their human rights training session for police
officers, an activity in which the former has in
Besides these events, suhakam, through recent years engaged with the latter periodiits working groups, for example the Economic, cally on several occasions.
Social and Cultural Rights Working Group, However, in most other areas of
had also organised other consultations with suhakam’s work, its cooperation and
civil society groups in 2008.61 While the consultation with civil society groups can be
Commission was beginning to be seen as described as irregular and lacking followmaking some efforts to improve its coopera- up. In the past few years, suhakam has held
tion with civil society organisations with the roundtable discussions with civil society
setting up of the Civil and Political Rights groups on numerous discussions. In 2008,
Working Group, this working group was these included a consultation with ngos on
merged with the Economic, Social and Cul- the upr held on 14 August 2008 although
tural Rights WorkingGroup on 10 November many of these have not resulted in further
2008. The merged working group was re- action or feedback on proposals made durnamed Economic, Social and Cultural Rights ing the discussions. In the case of suhakam’s
& Civil and Political Rights Working Group, work on the upr, for example, its consultamaking it unclear as to the future direction of tion with ngos held in August remained the
suhakam’s cooperation with civil society oronly one, with no further follow-up meetings.
ganisations.
The problem of a lack of follow-up action
On some specific issues, there was some in suhakam’s consultations with ngos was
form of institutionalised cooperation between raised by several ngo representatives present
suhakam and certain civil society groups in
at a roundtable discussion organised by the
2008. For instance, in its work on the rights newly-merged Economic, Social and Cultural
of women, particularly in monitoring the Rights and Civil and Political Rights working
implementation of the Convention on the groups on 11 March 2009.
Elimination of All Forms of Discrimination The year 2008 also saw instances when
against Women (cedaw), the Human Rights suhakam chose not to engage at all with civil
Education and Promotion Working Group society groups on some important issues. This
of suhakam established a Sub-Committee was seen, for example, in the response to the
on Women’s Rights in February 2008.62 This icc’s recommendations, when these groups
Sub-Committee comprises representatives of were kept in the dark and left out of providthe Ministry Women, Family and Community ing inputs to the Commission. Moreover, the
Development, ngos working on women’s is- Commission did not engage with civil society
sues and a number of gender and women’s groups on the implementation of the icc’s
rights experts. Among the major activities recommendations despite the fact that various
of this Sub-Committee in 2008 was a cedaw civil society organisations – some of which
Orientation Course for suhakam staff and have long been working on issues relating
•
Dialogue session with ngos in Sabah on
12 June 2008;
Dialogue session with ngos in Kuala
Lumpur on 17 July 2008;
Roundtable discussion with trade unions
on 11 August 2008; and
Dialogue session with ngos and the
media in Sarawak on 12 August 2008.
169
to national human rights institutions – had
earlier made proposals to the government to
help strengthen and improve suhakam.64
Summary
The one-year notice given by the icc in April
2008 and the possibility of downgrading
uhakam’s international status served as
s
a reaffirmation of the concerns raised by
suaram regarding suhakam’s independence
and effectiveness. This has resulted in renewed
calls for the government to ensure suhakam’s
independence and greater compliance with
the Paris Principles.
In 2008, possibly as a show of commitment, suhakam set up a new working
group to improve engagements with civil
society. However, while seeking to improve
engagements with civil society in its work,
civil society was kept in the dark and left out
of the process to provide inputs to suhakam
regarding the icc’s implementation. At the
same time, other areas of its work did not see
major improvements.
At the end of 2008, the Malaysian
government had not made any genuine efforts
to improve suhakam, thus demonstrating its
lack of commitment to the promotion and
protection of human rights. Consequently,
suhakam’s international standing remains
precarious. Likewise, Malaysia’s reputation,
especially having been a un Human Rights
Council member and having pledged its
commitments to promote and protect human
rights, would also suffer as a result of its
disregardfor international standards.
170
End Notes
1
“Govt: We don’t intend to give Suhakam teeth”, Malaysiakini, 27 March
2006,
news/48965 (last accessed: 26 April
2009).
2
National human rights institutions (nhris)
are accorded certain status by the icc and
this status is reviewed periodically. An
nhri may be given either “A”, “B”, or “C”
status based on its compliance with the
Paris Principles – the international standards set by the UN for the establishment
and performance of nhris in promoting
and protecting human rights. The status
of an nhri determines its standing in the
un Human Rights Council, with only
those with “A” status given the right to
participate in the regular sessions of the
Council.
3
4
5
6
International Coordinating Committee
of National Institutions for the Promotion
and Protection of Human Rights, “Report and Recommendations of the SubCommittee on Accreditation”, Geneva,
21-24 April 2008, (p. 5).
Malaysia (2006) “Aide-Memoire; Malaysia’s Candidature to the United Nations
Human Rights Council”, dated 28 April
2006 (p. 1).
Joint press statement by 44 Malaysian civil society organisations, “Imminent downgrading of suh: Government must take
action”, 25 July 2008. This document is
reproduced here in the Annex.
“Najib: Suhakam Act review will have
repercussions”, Malaysiakini, 29 July
2008,
news/86924 (last accessed: 23 February
2009).
7
See, for instance, Joint press statement by
44 Malaysian civil society organisations,
op. cit. See also, “Memorandum on the
proposed Malaysian National Commission on Human Rights (Submitted by
non-governmental organisations to the
Minister of Foreign Affairs, Malaysia)”
(1999) in Tikamdas, R. and S.S. Rachagan (eds.), Human Rights and the National
Commission, Kuala Lumpur: hakam (pp.
264-270).
8
suhakam (2003a) Annual Report 2002, Kua-
la Lumpur: suhakam (pp. 46-48).
9
“suhakam treads an arduous path”, New
Sunday Times, 3 August 2008.
10 Principles Relating to the Status of National Institutions (Paris Principles).
Adopted by un General Assembly Resolution 48/134 of 20 December 1993.
11 Ibid. (Composition and guarantees of independence and pluralism).
12 The commissioners’ profiles are available on the Commission’s official website: http://www.suhakam.org.my/en/
about_com_member.asp (last accessed 23
February 2009).
13 International Coordinating Committee
of National Institutions for the Promotion
and Protection of Human Rights, op. cit.
(p. 10).
14 See suhakam (2008a) “Report for the Universal Periodic Review (upr) on Malaysia,
4th Session, February 2008 from the Human Rights Commission of Malaysia (suhakam)”. In its upr report, suhakam made
several key recommendations, namely, for
the government to:
171
i. Amend the Human Rights Commission of Malaysia Act 1999, to be more
in line with the Paris Principles;
ii. Repeal all preventive detention legislations;
iii. Review all legislations that are in conflict
with human rights principles;
iv. Uphold Constitutional right to freedom
of speech, assembly and association;
v. Ensure better access to basic amenities
and infrastructure for rural communities
in line with the Millennium Development
Goals (MDGs);
vi. Consider suhakam’s proposal on National
Human Rights Action Plan;
vii. Develop capacity building and technical
assistance in cooperation with suhakam
as well as civil society;
viii. Provide continual human rights training
to enforcement personnel;
ix. Fulfil the commitments and obligations
made in its pledge to the Human Rights
Council in 2006;
x. Withdraw reservations on cedaw and crc;
xi. Ratify the core human rights instruments
and their additional protocols; and
xii. Submit periodic reports on time to the
treaty monitoring bodies and to follow-up
on their recommendations.
15 Section 4(1)(c) Human Rights Commission of Malaysia Act 1999 (Act 597).
16 Paris Principles, op. cit. (Competence and
responsibilities).
17 Tikamdas & Rachagan provided a formulation in that an inquiry would be discontinued only if the complainant initiates
an action in the courts, the subject matter
of which is identical to the Commission’s
inquiry. See Tikamdas, R. & Rachagan,
S.S. (1999) “Human Rights Commission
of Malaysia Act: a critique,” In Tikamdas, R. & Rachagan, S.S. (eds.) Human
172
Rights and the National Commission. Kuala
Lumpur: hakam (pp. 194-195).
18 See for instance, suhakam (2001) Freedom
of Assembly, Kuala Lumpur: suhakam; suhakam (2002) Inquiry on its Own Motion
into the November 5th Incident at the Kesas Highway, Kuala Lumpur: suhakam;
and suhakam (2007a) Report of suhakam
Public Inquiry into the Incident at klcc on 28
May 2006. Kuala Lumpur: suhakam.
19 “Suhakam treads an arduous path”, New
Straits Times, 3 August 2008.
20
suhakam (2009a) Annual Report 2008,
Kuala Lumpur: suhakam (p. 35).
21
suhakam
(2009b) Report of suhakam Public
Force by Law Enforcement Personnel During the
22 Ibid.
23 Ibid.
24 See “Memorandum Submitted to suhakam on the Fire Incident at the
Lenggeng Immigration Detention Centre”, submitted by the Bar Council Human Rights Committee, suaram, and
Tenaganita on 15 May 2008.
25
(2003b) Review of the Internal Security Act 1960. Kuala Lumpur: suhakam.
(p. 83).
suhakam
26 Ibid. (p. 86).
27 Ibid. (pp. 90-91).
28
suhakam
(2009a) op. cit. (p. 3).
29 Ibid.
46
suhakam Press Statement, “suhakam: Restrictions and Bans on the Rights to Association is a Violation of Human Rights”,
dated 16 October 2008.
47
suhakam Press Statement, “Press Statement”, dated 17 October 2008.
30 Ibid. (p. 38).
31
Press Statement, “suhakam
Calls for the Release of the isa and the
Release of the Detainees”, dated 13 October 2008.
suhakam
48
32 “Syed Hamid: Suhakam’s isa review call’s
perspective not wide enough”, The Star,
13 December 2008.
suhakam (2007b) Annual Report 2006,
49
suhakam
33
50 Ibid.
Press statement, “suhakam:
Government Should Repeal the isa and
Amend Act 597”, 15 December 2008.
suhakam
34 “Custodial Deaths: We’ll hold public inquiries,” New Straits Times, 14 December 2005.
(2009a) op. cit. (p. 1).
51 Ibid. (p. 4).
52
(2003c) Laporan Hak Asasi Orang
Asal. Kuala Lumpur: suhakam.
suhakam
53 Ibid.
35
suhakam
(2009a) op. cit. (p. 81).
36
suhakam
(2009a) op. cit. (p. 41).
54 Ibid.
55
37 Ibid. (pp. 43-46).
(2007c) Penan in Ulu Belaga: Right
to Land and Socio-Economic Development.
suhakam
38 Ibid. (p. 44).
56 Ibid. (p. 22-23).
39 See for instance, suhakam (2008b) Annual
Report 2007, Kuala Lumpur: suhakam
(pp. 70-76).
57 For the full set of recommendations, see
suhakam (2003a) op. cit. (pp. 46-48).
suhakam (2009a) op. cit. (pp. 6-7).
40 See suhakam (2007a) op. cit.
58
Press Statement, “suhakam:
Government Should Repeal the isa and
Amend Act 597”, dated 15 December
2008.
59
suhakam
41 Ibid. (p. 97).
42 Ibid.
43
suhakam
(2009a) op. cit. (p. 81).
44 Ibid.
45
suhakam
suhakam
(2009a) op. cit. (p. 73).
60 Ibid. (p. 47-59).
(2009b) op. cit. (p. 36).
61 Ibid. (p. 55).
173
63 Ibid. (p. 31).
64 See, for instance, Joint press statement by
44 Malaysian civil society organisations,
“Imminent downgrading of suhakam:
Government must take action”, 25 July
2008.
174
chapter 10:
FREE AND FAIR
ELECTIONS*
*This chapter was written by Wong Chin Huat, a political scientist by training and a journalist lecturer by trade, based in Monash
University Sunway Campus. He is also the resource person for the Coalition for Clean and Fair Elections (bersih) and has assisted in
some of Malaysian For Free and Fair Elections (mafrel). In writing this chapter, he thanks the support of bersih, mafrel and Malaysia
Voter Union (malvu) for their assistance in data collection.
T
8 March 2008 General Elections was not only the most important political event of the year, but
perhaps also a milestone development since
1969 when Malaysia in her infancy endured a
cataclysmic racial riot. In 2008, the ruling National Front (Barisan Nasional, bn) coalition was
deprived of both its customary parliamentary
two-thirds and the control of four more state
governments on top of Kelantan which has
been under the rule of the opposition PanMalaysia Islamic Party (pas). (See Table 10.1)
Having failed to recoup its machinery
and redefine its role in a new Malaysia, the bn
initially seemed to have lost its plot for the job
until 16 September 2008.2 Hanging on with
an initial majority of 30 seats in a 222-member parliament, the bn was so afraid that it
might be toppled by defection of lawmakers
– especially from the economically marginalized but politically over-represented states of
Sabah and Sarawak – to the newly formed
opposition coalition People’s Alliance (Pakatan Rakyat) which consists of pas, the Malaymajority multiethnic People’s Justice Party
(Parti Keadilan Rakyat, pkr) and the Chinesedominant multiethnic Democratic Action
Party (dap). Pakatan Rakyat leader Anwar Ibrahim promised the defections would happen
on 16 September 2008 but eventually failed
to deliver.
For some, the 8 March election debacle
of bn provided the evidence that the electoral system and process in Malaysia were fair.
Logically, such argument is as flawed as saying
that smoking tobacco does not kill since some
people survive lung cancer. Empirically, Malaysia’s electoral system and process remained
neither free nor fair in the 8 March elections,
he
176
a fact this chapter will demonstrate with facts
and figures. Even the post-8 March Permatang Pauh by-election in August saw the usual
electoral fraud, abuse of government apparatus and control of the media.
The changes in 2008 happened despite
the fraud and manipulation. As argued in last
year’s Human Rights Report, any account of
the state of human rights in Malaysia cannot
be complete without an understanding and
assessment of the electoral process. Elections
are used to complement the iron-fist human
rights violations – such as detention without
trial and suppression of civil and political
rights – in maintaining the authoritarian system, which may be called “electoral one-party
state”.3
Elected Institutions
Being a parliamentary polity, Malaysia has
neither federal nor state executive elections.
The federal parliament is bicameral but only
the 222-seat lower house – House of Representatives (Dewan Rakyat) – is popularly elected. All the 70 senatorial seats in Dewan Negara
are appointed, with 44 seats by the federal
government and two seats by each state government.
All the states have popularly-elected state
unicameral legislative assemblies, producing a
total of 582 state assemblypersons. In Sabah,
the state government may appoint additional
members to strengthen its majority.
At the third level, the city, municipality
and district authorities are all appointed, either by the state government or, in the case of
federal territories, by the federal government.
The office bearers of village/community level
governing bodies, which have no taxing authority and little administrative power, are
also appointed.4 Introduced in 1951 by the
British colonial government, local elections
were suspended by the national government
14 years later under the pretext of national security. Then, the newly-expanded Federation
of Malaysia5 was enduring the confrontation
by Indonesia which also had territorial claims
to North Borneo. While the Indonesian confrontation ended only months later, grassroots democracy has never been revived since.
Most Malaysians hence have only two
ballots to cast, one for the parliamentary representative and the other for the state legislator. Some 700,000 voters, constituting 6-7%
of the national electorate, were however disenfranchised at the state level as they were
registered in the three federal territories of
Kuala Lumpur, Labuan and Putrajaya.
While the federal and state governments
may opt to dissolve their legislatures anytime
before the expiry of five years term, except for
the first post-independence election in 1959,
almost all the state governments have chosen
to follow the federal government’s decision on
the date of dissolution.
In 2008, all states except Sarawak held
their state elections together with the federal
one. bn which ruled both the federal government and all states except Kelantan preferred
a single battle. Despite the nominally federalist structure in the Constitution, the bn state
Note: Sarawak did not hold its legislative elections in 2008.
177
governments function as branches, rather
than partners, of the federal government.
The state chief executive (titled Chief Minister or Menteri Besar) is anointed by the Prime
Minister, rather than elected by the state legislative party.6 Entrusted with the electioneering
command in the state, the chief executive of
the state also presides over the choice of parliamentary candidates.
The demarcation of constituencies reflects the intended integration – rather than
division – of the federal and state powers.
Federal constituencies are divided into state
constituencies. Hence, the federal candidate
leads the state candidates to form an operational unit during election campaigns.
Ironically, the opposition state governments in Kelantan (1964, 1969, 1995, 1999
and 2004) and Terengganu (2004), both
headed by the Pan-Islamic Party of Malaysia
(Parti Islam Se-Malaysia, pas) likewise preferred
to have concurrent federal and state elections.
Their consideration is however different,
driven by the fear that having a separate state
election would expose them to a nationallymobilized campaign by bn and lead to possible defeat.
Electoral System
As part of the British legacy, elections in Malaya/Malaysia have always been run under
the “simple member plurality” (smp) system,
what is more commonly known as first-pastthe-post (fptp) system. Interestingly, ethnic
minorities once proposed proportional representation systems in the pre-Independence
years but the idea was rejected by the dominant Malay parties.7
The fptp system has a defining characteristic which is democratically problematic, severe vote-seat disproportionality. This
may simply be the natural outcome of noncorresponding geographical distribution of
178
party support,8 but may also be due to two
independent forms of manipulations: malapportionment and gerrymandering. Malapportionment of constituencies refers to
unequal division size of electorate, resulting
in very large and very small constituencies.
This can be the outcome of following certain
administrative, socio-cultural or economic
boundaries, or simply due to deliberate manipulation. In gerrymandering, constituencies are deliberately drawn in some partisan
manner so that particular contestants may be
rewarded disproportionately in allocation of
seats, whether or not the constituencies are
mal-apportioned. For example, a party will be
under-represented if its supporters are concentrated in a few constituencies where they
form 80% majority while the supporters of its
rival party are well distributed to many constituencies to form just a comfortable majority
of around 60%.
The current Malaysian laws have no
restriction on the inequality of electorate
size. In the last elections in 2008, the largest constituency Kapar was nearly 17 times
the smallest one, Putrajaya. Technically, the
over-representation of Federal Territory of
Putrajaya is “innocent” since as a state-level
unit itself, it cannot form part of a larger constituency in the neighbouring state of Selangor. This argument however fails to justify the
overall disparity.
In 2008, the most privileged 20% of
Malaysian electorate controlled 75 parliamentary seats or slightly more than a third
of the parliament. If we were to measure this
political inequality as how economists measure income disparity using Gini coefficient,
the electoral inequality in 2008 was as high
as 0.20. Had the ‘one-person-one-vote’ principle been faithfully implemented, the perfect
equality should yield a value of 0 in Gini Coefficient (whereas perfect inequality yields the
value of 1).
The constituencies are mal-apportioned
at two levels, between and within the states.
In the delineation process for the inaugural
1955 elections, a ‘rural weightage’ was built
in to allow over-representation of the rural
population to the extent where the smallest constituency may be as small as half of
the largest constituency within a state. Such
over-representation, was in theory justified on
the ground of difficulties in communication
and other aspects faced by the rural voters,
but in reality driven by the calculation to ensure the electoral dominance of the Malays
who constituted the bulk of rural residents.
The Reid Constitutional Commission tasked
with preparing for Malaya’s independence
in 1957 capped the within-state disparity to
15% and restricted between-state parity with
considerations to both the sizes of electorate
and population. Both restrictions on mal-apportionment were however undone in 1962
via a constitutional amendment. In 1973, any
specified limit of the rural weightage was removed in another constitutional amendment.9
Free from any between-state and within-state
constraints, the principle of “one person one
vote” has long been thrown out of the window. (See Table 10.2).
Even though gerrymandering cannot
be quantified in the same way as mal-apportionment, the total effect of gerrymandering,
mal-apportionment and partisan support distribution can be captured by different values
of votes enjoyed by different parties.
In the worst instance in 2004, when bn
enjoyed a 42% premium in seats by winning
91% of parliamentary seats with only 64%
of votes, the opposition parties were grossly
under-represented: the non-Muslim-based
Democratic Action Party (dap) gained only
0.55 portion of what its popular votes warranted, pas was under-represented by 83%
while the Malay-based multiethnic People’s
(Source: Wong and Norani, 2007, for data until 2004)
179
Justice Party (Parti Keadilan Rakyat, pkr) was
hard hit with a 95% discount of its rightful
representation (See Table 10.3). This effectively means that one vote for BN in 2004
carried the same weight as 2.58 votes for dap,
8.15 votes for pas and 26.08 votes for pkr. (See
Table 10.4)
Historically, Malaysia’s fptp elections
were most discriminatory against two types
of parties : first, the leftwing parties such as
the Socialist Front (sf), Parti Sosialis Rakyat Malaysia (psrm), Parti Keadilan Masyarakat Malaysia
(Pekemas); secondly, the third Malay parties
which compete with both the nationalist umno
and Islamist pas: Parti Negara (pn), Parti Semangat
46 (S46) and pkr. This perhaps explains both
why the left-right cleavage could not emerge
at the expense of ethnic politics and why the
opposition parties failed to formed a lasting
coalition led by a middle-ground Malay party
prior to 2008. Unlike in Anglo-American democracies, the fptp system did not only fail
to bring about party alternation in Malaysia,
the resultant gross vote-seat disproportionality might have suppressed political pluralism,
which in turn helped sustain the “electoral
one-party state” which perpetuated the violations of human rights documented in previous chapters.
In 2008, the under-representation of
the opposition was not eliminated though significantly reduced by the phenomenal swing
against the ruling coalition. dap was underrepresented by only 10% while pkr and pas
by about 30%. All in all, a vote for bn was still
over-valued to equate 1.37 votes for dap, 1.67
votes for pkr and 1.70 votes for pas. As a double-edged sword, the fptp became bn’s enemy
at the state level in a few states in which pr
did well. In Penang, bn only obtained 27.50%
180
of state seats despite 40.96% of valid votes,
losing about a third of its rightful representation. Notably, bn won 95.00% of Penang state
legislative seats with only 63.15% of votes in
2004. fptp is therefore only a fair-weather
friend for any ruling party.
If anything, the glaring mal-apportionment of constituencies has hurt the legitimacy
of bn’s victory. The Coalition for Clean and
Fair Elections (bersih), an umbrella group of
70 over civil society groups and opposition
parties, argued that the opposition parties
were only 56,822 votes away from wresting
bn’s 30 weakest seats and forming the federal
government. The group alleged that bn’s wafer-thin margins in these constituencies were
“likely aided by fraudulent means”.10
Abbreviations for party names:
Alliance – The Alliance Party
BN – Barisan Nasional
DAP – Democratic Action Party
Gerakan – Gerakan Rakyat Malaysia
NAP – National Association of Perak
PAP – People’s Action Party
PAS – Parti Islam Se-Malaysia
PBS – Parti Bersatu Sabah
Pekemas – Parti Keadilan Masyarakat Malaysia
PKN – Parti Keadilan Nasional
PKR – Parti Keadilan Rakyat
PN – Parti Negara
PPP – Perak Progressive Party/People’s Progressive Party
PRM – Parti Rakyat Malaysia
PSRM – Parti Sosialis Rakyat Malaysia
S46 – Parti Semangat 46
SF – Socialist Front
SNAP – Sarawak National Party
UDP – United Democratic Party
181
An Elections Commission counter checking the registration of voters in Kuala Lumpur. Opposition parties and voters have frequently
complained about electoral roll contamination. (Photograph courtesy of Malaysiakini)
Electoral Roll Contamination
The greatest threat to the probity of Malaysian elections is the contamination of the electoral rolls. Manipulations of other forms like
ballot stuffing, large scale ballot spoliation or
systematic miscounting of votes are uncommon in Malaysia. In contrast, both opposition
parties and voters have frequently complained
about disappearance of names from electoral
rolls, unauthorised transfer to another constituency, or authorised registration of illegitimate voters.
One embarrassing fact for the Election
Commission was the suspicious existence of
8,666 centenarians on the electoral rolls nationwide, which the ec secretary Kamaruddin
182
Mohd Nor could only argue that “they are
still alive” as of 31 December 2007 when the
rolls were revised.11
Domestic election observer group
Malaysians for Free and Fair Elections (mafrel) found 46 persons by the same name of
Ismail Ibrahims – “all born in the year 1962
but registered as having different identity
cards (ic) and living in 46 different localities
– who have been registered to vote in various
places throughout the country”. While not
claiming that all the 46 names were duplications, mafrel president Abdul Malek Hussin
took it to highlight the seriousness of multiple
regressions, which involved 195 postal voters.12
In yet another instance, a 35-year-old
housewife, Sharmila Thuraisingam who has
lived all her life in Selangor, found she had
been registered as a voter in Kelantan since
2004.13 Her cousin, Dr V Sunderalingam,
who registered as a voter in 2003 based on
his address on the MyKad (national identity
card) in the Federal Territory of Labuan similarly found himself assigned to vote in Rantau
Panjang, Kelantan across the South China
Sea.14 In other cases, family members registered at the same addresses were arbitrarily
assigned to different constituencies, which led
to bersih’s allegation that this practice could
have been used as an alternative to constituency re-delineation in changing the electoral
geography.15
Interestingly, bn as the state-level opposition party also complained about phantom voters. In Kelantan, the coalition state
chairman Datuk Annuar Musa claimed that
its machinery encountered difficulty in identifying more than 118,000, or 15%, of the
751,000 registered voters in the state.16
From 2004 to March 2008, the Election Commission had received a total of 235
complaints about missing names from the
electoral rolls.17 Some voters, including bersih
activist Liau Kok Fah, were unable to register as voters despite numerous attempts to do
so. Many others were frustrated by computer
failure or shortage of registration forms when
they tried to register at post offices.
These irregularities documented above
have two consequences: the disenfranchisement of legitimate voters and the dilution
of their votes by so-called “phantom voters”.
“Phantom voters” originally referred to the
imposters who voted on behalf of dead voters
on the electoral rolls, but over the years, this
term has been extended to include all illegitimate voters. As the winning margin in a fptp
constituency may be only a few thousand or
even hundred votes, deployment of phantom
voters is both feasible and appealing to political parties, intent on winning the election.
As a matter of fact, deployment of phantom voters has also served as a substitute to
constituency redelineation, which can only
be held once in eight to ten years, in changing the electoral geography. It is important to
also note that there were over 4 million eligible citizens who were not registered as voters.
Should they register, they would further transform the electoral geography.18
A complete elimination of phantom
voters would require a thorough clean-up of
the electoral rolls. This in fact had been proposed by bersih as one of the four conditions
that Malaysia’s constitutional monarch, the
Yang DiPertuan Agong Tuanku Mizan Zainal Abidin should impose on his consent to
bn’s request to dissolve parliaments. bersih’s
three other conditions, articulated in a memorandum submitted to the King by a rally of
50,000 citizens on 10 November 2007, were
the use of indelible ink, the abolition of postal
votes and fair access to state-owned media especially television and radio.19
Phantom Voters and Indelible Ink
The use of indelible ink, while unable to
eliminate phantom voters, would help to win
the battle largely by stopping the recycling
of phantoms. In other words, if a total of
15,000 phantoms were needed in three constituencies, 15,000 non-voters would need to
be employed. This poses challenges to both
the supply and deployment of “fresh” phantom voters, reducing its edge and appeal over
democratic campaigning.
The Election Commission agreed to the
use of indelible ink in 2007 and had spent
about RM2 million to buy 47,000 bottles of
India-made indelible ink. It however did not
make any attempt to amend the election bylaws to spell out how this safeguard measure
would be administered. Just four days before
polling day, the Election Commission can-
183
celled the use of indelible ink, claiming that
it had no right to deny a citizen’s constitutionally-enshrined voting right should the voter
refuse to be marked with ink or have his/her
nail marked. 20
Election Commission chairman Abdul
Rashid also cited the police’s intelligence
report that some quarters had purchased
some indelible ink from overseas to create
“confusion and suspicion”. Opposition leaders slammed this as an ec’s plot to “allow bn
cheating”.21 His house was splashed with red
paints by unknown persons following the controversial decision.22 Two months later, Abdul
Rashid revealed that it was actually the Cabinet that did not approve the use of indelible
ink, citing the legal and security concerns.23
The Prime Minister claimed that the cabinet
had only made a suggestion, not an instruction, to the Election Commission.24 This did
not change the fact that the cabinet had interfered in the work of the Election Commission, which should have been constitutionally
independent. Consequently, mafrel, the election observer group which was accredited by
and working with the Election Commission,
immediately withdrew all its 333 observers in
protest against the cancellation on the following day, delivering another flow to the Commission’s fragile credibility.25
Without the indelible ink, the opposition resorted to their traditional method of
countering phantom voters – stopping buses
that were suspected to be ferrying the phantoms into the targeted constituencies. pas had
threatened to resort to public arrest of the
phantoms which were allegedly trafficked into
Kelantan and Terengganu, the party’s strongholds. Eventually, in Kuala Ibai, Terengganu,
as many as nine buses were stopped by pas
supporters and later escorted away by the
police.26 It was not known if the voters were
indeed phantoms and if the pas supporters
involved were eventually charged. Such incident nevertheless suggests that the absence of
184
safeguard measures such as the use of indelible ink may hurt the legitimate voters by both
making impersonation possible and causing
distress to legitimate voters who are suspected
to be imposters.
Postal Voting
Under Malaysian laws, absentee voting is
administrated in two different ways. Election workers technically and temporarily
opt out of normal voting but remain on the
electoral roll just like other citizens. Absentee
voters, namely, military and police personnel
and their spouses as well as civil servants and
students overseas are separately registered as
postal voters. The practice of having permanent postal voting for security force voters
was once justified during the communist insurgence in the 1950s and 1960s. However,
the communist threat no longer exists and
the war has officially ended with a permanent
peace accord between the warring parties in
1989. Traditionally, the military and police
votes had been the ruling coalition’s staunch
supporters. Retaining the archaic the separate electoral rolls for postal voters is therefore
seen by bn critics as a means of manipulation,
not least because of the manner postal voting
is carried out.
The first issue is the uneven distribution
of postal voters. In 2008, postal voters – the
majority of whom were from the military and
police quarters – totaled about 220,000 or 2%
of the entire electorate nationwide. They were
however not evenly distributed in all constituencies and can therefore easily tip the balance
in marginal constituencies or produce strongholds for the bn. In one of the most severe
cases, the parliamentary seat of Setiawangsa
in the Kuala Lumpur Federal Territory, postal
voters amounted to 14,000, slightly more than
a quarter of the total voters. Meanwhile, pas
leader Husam Musa claimed that a number
of army voters were possibly registered in
both the ordinary and postal rolls.27
The second issue is the lack of secrecy
and transparency in the postal voting in the
military barracks and police stations, which
leads to allegations of intimidation, proxy
voting or even ballot stuffing. pkr’s candidate
for the Setiawangsa seat, Ibrahim Yaacob
charged that the votes may not be secretive
as the voters were required to fill up an enveloped “Identity Declaration Form” that accompanied the ballot paper. The compromise
of secrecy was affirmed by the accredited
observers from mafrel.28 The suspicion of
foul play was not allayed despite the Election
Commission’s permission for one agent per
candidate to monitor voting in the military
barracks and police contingents.29
The third issue is the high number of unreturned ballots, which the Election Commission admitted stemmed from postal voting.30
Despite the ballots being normally given to the
voters five days after the nomination to allow
ample time for the security force personnel to
cast their votes, every year, a high percentage
of postal votes were simply not returned. In
2008, as many as 2,948 ballots were not returned in the Parliamentary seat of Lumut,
Perak where a naval base is located. While
the failure to return could be purely technical and does not involve any criminal intent,
the legitimacy of the election was in question since the winner from bn, Datuk Kong
Cho Ha, won only with a 298-vote margin or
10% of the unreturned ballots.31 In 1999, the
number of missing ballots in Lumut reached
the astonishing figure of 8,176 votes while the
winning margin was only 605, a mere 7% of
the former. 32
In August 2008, Minister in the Prime
Minister Department Nazri Abdul Aziz announced that postal voting would continue,
citing enfranchisement for all including the
members of the security forces as a pretext.
bersih’s persistent demand that the security
force voters be transferred from postal voter
rolls to ordinary voter rolls went unheeded.
Nomination
Under the Malaysian constitution and laws,
any citizen aged 21 years and above, who is
not an undischarged bankrupt, not declared
to be of unsound mind, not convicted and
sentenced to imprisonment of one year or
more or to a fine of RM 2,000 or more and
unpardoned in the last five years, and has not
resigned from the Parliament in the last five
years, can run for a parliamentary seat. Similar conditions apply to the candidature for
state legislatures. One is allowed to concurrently hold a parliamentary and state legislative seat as only double membership for both
houses of the Parliament is prohibited.33
Contestation is however hindered by a
huge deposit totalling RM15,000 for contesting a parliamentary and RM8,000 for a state
seat, arguably dissuading resource-poor citizens from standing in elections. Aimed at discouraging frivolous candidates, the first part
of the deposit, RM10,000 and RM5,000 for
federal and state contests respectively, is paid
to the Election Commission and refundable
if the candidate garners at least one eighth of
the valid votes.34
The second part of the deposit,
RM5,000 and RM3,000 for a parliamentary
and a state contest respectively, is paid to the
local authority and refundable if the candidate cleans up his/her electoral materials on
the street promptly after the election.
Another obstacle during nominations
is the inconsistent application of regulations which lead to disqualification of certain – mostly opposition – candidates and
sometimes walkovers. Starting from the 2004
election, candidates are permitted to pull out
within three days after nomination, opening
the door to withdrawals and walkovers which
185
are allegedly fuelled by corruption. These two
problems, which were part of the reasons for
the 17 walkovers in parliamentary contests
in 2004, ceased to be a major issue in 2008.
There were only eight walkovers nationwide,
all but one in East Malaysia this time. However, in one of the vacant seats, Pensiangan, one
of the disqualified candidates filed an election
petition claiming that he was obstructed from
reaching the nomination centre.35
In 2008, a controversial new measure was introduced just four days before the
nomination day. Taking instruction from the
Attorney-General, the Election Commission
initially announced that all candidates must
pay stamp duty for the statutory declaration
forms that accompanied their nomination
forms. The Commission however withdrew
the requirement on the morning of nomination day. The opposition alleged that the requirement was meant to create a hurdle for
the opposition candidates but in the process,
it would likely disqualify more bn candidates
than the opposition ones.36
The most serious hurdle to participation
affects not individuals but political parties.
Party registration lies within the jurisdiction
of the Registrar of Societies (ros) under the
control of Home Ministry and not the Election Commission (ec). The approval of ros on
party formation is arbitrary and partisan that
certain parties are simply denied registrations.
Virtually Malaysia’s only leftist party, Socialist
Party of Malysia (Parti Sosialis Malaysia, psm),
has been denied registrations ever since 1998.
The fate was similar for the Sarawak-based
Malaysia Dayak Union (mdu). (See Chapter 5:
Freedom of Assembly and Association.) Deprived
of the right to contest under its own banner,
psm had to fight the 2008 elections using other
names – under the ticket of pkr for one parliamentary and one state seat, and standing as
an independent in another state seat.37
186
Campaign Freedom
By the joint effect of Article 55(4) of the
Constitution and Section 2 of the Election
Offences Act 1954, the campaign period (defined as the period from the closing of nomination to the eve of polling day) is capped between 7.5 days and 55.5 days. Historically, the
period has been gradually shortened, from six
weeks in 1955, to five weeks in 1959-1969,
to about two weeks in 1970s, to 8.5-9.5 days
during the pm Mahathir’s rule and finally to a
minimum of 7.5 days in 2004. Such a short
campaign period has effectively handicapped
the opposition which controls neither mass
media nor government apparatus (except in
Kelantan) in reaching out to the voters. While
bersih had demanded a minimum of 21 days,
half the length in 1955, the Election Commission eventually only provided a short period
of 12.5 days in 2008.
Beyond the length of the campaign period, electioneering is generally restricted. In
the first nine days of the campaign period,
16 campaigners had been arrested for various offences including alleged involvement in
physical conflicts. The police also threatened
to use the Sedition Act against those who
“played up racial sentiments”.38 Besides general restriction, certain groups were restrained
by the authorities from participation. For instance, university and college students – who
are governed by the restrictive University and
University College Act – were categorically
warned by the Higher Education Ministry to
stay away from politics or face disciplinary action including expulsion and suspension.39
Administrative Neutrality
One major challenge in the electioneering
process is the absence of administrative neutrality. It is a common phenomenon that laws
are selectively observed, handicapping the
opposition parties since the bn can campaign
under the pretext of carrying out official
functions. For example, Malaysian Human
Rights Commission (suhakam) points out that
“opposition parties have usually been denied
permits to hold ceramah (public gatherings
involving political speeches); […] issuance of
permits should not be discriminatory and rejection should be based on evidence, not on
speculation, suspicion or fear. Procedures for
application and approval of permits should
be clear and transparent”.40
Because administrative neutrality is non-existent, the worry of post-election witch-hunts
- in the form of job transfer, tax investigation,
and denial of state aid - has caused many state
employees and ordinary citizens to shy away
from supporting the opposition.
The second and larger issue is vote-fishing using state resources and national policies.
Voters are targeted with pledges and delivery
of development projects by the caretaker governments – at both the federal and state levels
– during general elections. To win back the
Kelantan state which has been ruled by pas
since 1990, Kelantan Barisan Nasional election
director Awang Adek Hussin went as far as
offering to forfeit RM26 million of land tax,
RM34 million of assessment and RM16 million of water bill arrears.41 In Sarawak, a state
ruling party leader openly declared that the
constituencies that elected in the opposition
dap lawmakers in the 2006 state elections
would be cut off from government projects
and development grants.42
Until and unless administrative neutrality is imposed and enforced, there can be no
level-playing field for democratic competition
to take place.
Media Access
The opposition enjoys little access to the
mainstream media, both print and broadcast,
thanks to the concentration of media ownership in the hands of bn interests. This happens
partly because of entry barriers. Under the
Printing Presses and Publication Act (pppa),
any newspaper requires a publication permit,
renewable annually and revocable anytime by
the Minister in his absolute discretion. Such
power has been justified under the pretext of
protecting communal harmony and public
morality, resulting in the suspension of three
newspapers in 2006 (for publishing the infamous Danish cartoons) and one newspaper in
2007 (for a special issue on sex).
The free-to-air television industry is
practically a duopoly of the state-owned
Radio and Television Malaysia (rtm) and the
umno-controlled Media Prima, which owns
all four private free-to-air channels, tv3,
ntv7, 8tv and tv9. Not surprisingly, there has
been no airtime for election broadcast or televised debates in either the state or private television channels. As a matter of fact, the last
time the opposition were given some meagre
airtime – on radio – was in 1990. The popular
satellite television provider, Astro, is also controlled by a well-linked businessman although
it has many channels with news reporting and
talk shows that are quite critical by Malaysian
standards.
The pro-bn bias in the mainstream media was evident. According to a media report
exercise conducted by media watchdog Centre for Independent Journalism (cij, supported
by Charter2000-Aliran and Writer Alliance
for Media Independence (wami), the most proestablishment English “quality” daily The Star
dedicated 63.12% of its space to the ruling
coalition, while neutral stories only took up
31.31%, while pro-opposition reports trailed
with only 5.5%. Even the more critical The
Sun was largely dominated by pro-bn stories
(42.8%) and neutral reports (40.87%), in contrast to pro-Opposition articles (16%). The
situation in the Malay and Tamil newspapers
187
was worse, with the Malay-language Utusan
Malaysia giving 82.29% of its space, and the
Tamil-language Malaysian Nanban using 70%
of its space for pro-bn stories. 43
In view of the bias in the private conventional media, bersih and the Opposition
parties called for televised election debates but
the idea was squarely rejected.44 In overcoming the blockade in mainstream media, the
opposition have depended heavily on the internet and new media – both online newspapers like Malaysiakini and Malaysian Insider and
popular blogs like Malaysia Today. The political use of technology had long begun in 1998
when the wave of Reformasi swept the nation
following Anwar Ibrahim’s purge from umno
and imprisonment on charges of corruption
and sodomy. While free from licensing requirement, the online journalists and bloggers
are however not free from investigation and
prosecution under laws on national security,
official secrets, sedition or defamation.
Campaign Finance
Under the Election Offences Act 1954, a parliamentary candidate is allowed to spend a
maximum of only RM200,000 while a state
assembly candidate can only spend up to
RM100,000. This cap is pointless considering the accounting unit here is the individual
candidate and not the parties. Hence, the parties spend collectively on costly and shareable
items such as advertisements. The law also
fails to regulate contributions in kind, making
it possible for business men to buy influence
through political donation.
Should the law be effective, then a party
that contests all 222 parliamentary seats and
505 state seats in the 12th election must not
spend more than RM94.9 million in the election. However, according to an industry insider, bn has spent altogether nearly RM29
million in advertisements in newspapers and
188
free-to-air television and radio alone, amounting to about 30% of the RM94,800,000 its
candidates collectively are allowed to spend in
total. If the cost for cable television commercial, outdoor billboards, flaglines and posters
are all taken into account, it is likely the advertising budget itself would have exceeded
the spending limit.
The Election Commission
A key and long standing concern has been the
lack of neutrality and impartiality on the part
of the Election Commission, which consists
of former civil servants. Largely seen as a bn
tool, it was even dubbed “the 15th member
of the ruling coalition” by some opposition
politicians. According to suhakam, “Since
EC members are currently appointed by the
Prime Minister, the agency is unlikely to be
able to act independently. To be fully independent, the EC should be made directly accountable to Parliament.”45
The two controversies created by the
Election Commission in the 2008 elections,
viz. the issues of stamp duty and, later more
importantly, the use of indelible ink, have further cast doubt on the independence of the
ec.
The Right to Observe Elections
There is no legal provision for the right
to observe elections, whether the observers
are from the international community or from
within civil society. However, the local watchdog Malaysians for Free and Fair Elections
(mafrel) had managed to convince the Election Commission to allow for official electoral
observation in the 2007 Ijok by-election and
eventually the 2008 general elections. Despite
the restrictions imposed by the Election Commision, mafrel’s participation has managed
Civil society representatives tearing up the photographs of Elections Commission Chairman. Civil society groups have claimed that the
Elections Commission has failed to act impartially and independently. (Photograph courtesy of Malaysiakini)
to provide some insights from within the polling centres including the conduct of postal
voting.46
Election Petitions and Redress
Theoretically, candidates and voters have adequate channels for electoral redress. A High
Court Judge will preside to hear election petitions that may lead to (a) the election being
declared void; (b) the election result being
overturned; or (c) a scrutiny. Appeals may be
filed at the Federal Court. The laws also stipulate a period within which the petitions and
appeals must be heard and ruled.
Major limitations, however, erode the
effectiveness of the legal recourses available.
Firstly, the law does not allow any challenge
of the validity of electoral rolls, which is at
the core of problems in most constituencies.
Deletion of names from the principal electoral rolls is subject to neither inspection nor
objection. The ec-appointed Adjudicating
Officer has the final discretion regarding any
claim or objection in the revision of supplementary electoral roll. Electoral rolls are not
to be questioned, appealed against, reviewed,
quashed or set aside by any court under Section 9A of Election Act 1958, once they are
certified and published.
Secondly, an election may only be declared void in relation to corrupt practices
and non-compliance of law, if such practices
and non-compliance have affected the election outcome.47 But even if the petition has
proven its case, the petitioner may not win relief if there is no evidence of the pivotal effect
of his/her vote.
Thirdly, the Election Commissioners
have the final decision in some other matters.
Under Section 41 of Election Offences Act
189
1954, the Returning Officer or Presiding Officer has the final and unquestionable say in
the determination of reject votes. Similarly,
the decision of the ec’s enforcement team
leader is final and binding on all team members under Sub-section 27G(4) when consensus cannot be achieved.
Fourthly, the Election laws specifically do
not govern the conduct of media, police and
other institutions, even though they may have
immense implications on the freeness and
fairness of campaign.
Lastly and fundamentally, the prospect
of judicial review relating to elections has not
been encouraging so far.48
In 2008, all but two election appeals
were struck off forthwith. One of the exceptions was the Perlis state seat of Sanglang.
pas candidate Hashim Jasin claimed that his
victory was deprived by a miscount. On 18
June, the Election Court in Kangar ruled that
the bn candidate’s victory was null and void
but refused to declare Hashim the winner,
claiming he had no such power.49 The Federal
Court however ruled that he was the rightful
representative for the seat on September 16,
thus avoiding a by-election.50
The other case was the Pensiangan parliamentary seat in Sabah where Parti Bersatu
Rakyat Sabah’s Joseph Kurup had won uncontested after challenging and disqualifying
his two opponents on the ground of lateness.
The petitioner, pkr candidate Danny Anthony Andipai, claimed that he and the other
candidate were blocked on the way to nomination centre. Even the Sabah Deputy Director of Election Commission had instructed
the Returning Officer to accept their nomination, but the instruction was later disobeyed
after Kurup’s protest. Initially, the High Court
ruled against Joseph Kurup to declare the seat
vacant on September 8, affirming the petitioner’s constitutional right to contest, making possible the first by-election since March
8 because of an election suit.51 However, the
190
Supreme Court eventually overturned the decision half a year later, leaving no by-election
to be called because of an election appeal.52
Otherwise, Pensiangan would have contributed to the seventh by-election since 8 March
2008.
The Permatang Pauh By-election
The first by-election after March 8 happened
in Permatang Pauh on August 27 after the incumbent Datin Seri Wan Azizah Wan Ismail
resigned to pave the way for the return of her
husband, Anwar Ibrahim, to Parliament. Anwar Ibrahim was the semi-rural Malay-dominant constituency’s parliamentarian since
1982 until he was convicted of corruption in
a sodomy-related trial in 1999. Wan Azizah
had stood in and won the seat in three elections. Anwar had been eyeing an opportunity
for a by-election through an election appeal.
One possibility was in Kulim-Bandar Baru, a
seat held by pkr’s Zulkifli Nordin who eventually kept his seat. As Anwar was accused of
sodomy for the second time – this time by a
young aide, Shaiful Bahri – necessitating him
even to seek refuge temporarily at the Turkish
mission, returning to Parliament through an
election was seen as a political lifeboat.53
In this context, the Permatang Pauh byelection was almost a mini replay of the March
8 general elections, leading it to be called by
some as “mother of all by-elections.” As the
stakes were high for both sides, so was the intensity of electoral competition and manipulation.54 For a start, the Election Commission
picked a Tuesday as the polling day which
was seen as a deliberate move to effect a lower
turnout rate – Anwar was tipped to benefit
from a higher turnout. While Anwar’s allies
in the Penang State Government announced
a public holiday on polling day as a counter measure, a few thousand workers in the
neighbouring state of Kedah were still likely
affected. The bn-umno candidate Arif Shah
was reported to have paid some voters, which
he first called “paying the spies” and denied
that it was vote buying.55 There were the
usual electoral handouts – for example, RM 1
million was announced to help five Chinesemedium schools by the Education Ministry
in an effort to win over the crucial Chinese
minority votes.56 There were also the standard
complaints of missing voters and standard action of stopping “phantom voters”.57
The Need and Prospect for Electoral
Reform
It is clear that the entire electoral system and
process in Malaysia needs an overhaul. At the
systemic level, at least constituency delineation needs to be free from the perils of gerrymandering and mal-apportionment, if a more
proportional system is not to be introduced.
The electoral rolls are so contaminated that
it warrants a complete re-registration exercise, which the Election Commission once
pondered but did not pursue.58 Automatic
registration for all eligible voters should also
be considered. Until the electoral rolls are
cleaned up, the use of indelible ink seems to
be the only way to stop the rampant phantom
voters. The archaic postal voting for security
force voters should be abolished to enable
them to vote like civilians in a freer and more
confidential setting, which would be fairer for
both the parties and these voters.
To ensure a level playing field, an ad-
A bus which PKR members alleged to be ferrying phantom voters to the Permatang Pauh by-election in August. (Photograph courtesy
of Malaysiakini)
191
ministrative neutrality law should top the list
alongside the call for fair access to state-owned
broadcast media. No less important but perhaps requiring a longer time is the reform in
electoral financing, including the introduction
of state funding. Finally, the Election Commission itself must be subject to reform, with
more representative membership beyond the
pool of former civil servants and all parliamentary parties should be given the power to
nominate the suitable candidates.
For a fuller democracy, elections should
be introduced for both the local authorities
and the House of Senate at the federal level.
Thanks to the pressure from civil society, two
of the Pakatan Rakyat governments, those of
Selangor and Penang, are now studying the
possibility of introducing local elections, despite resistance from the bn federal government on one hand, and the Pakatan Rakyat
state governments themselves on the other.
Summary
Despite the sea-change 2008 elections, the
electoral system and process in Malaysia remain neither free nor fair, as shown in the
Permatang Pauh by-election held about half
a year later. Thus, the opposition had won despite the manipulations and frauds.
Electoral reform should therefore be a
key focus of civil society’s efforts to democratize Malaysian. bersih has made several
demands for the setting up of a Royal Commission on Electoral Reform (rcer) to draw
up a comprehensive and well-thought plan
of electoral reform, acceptable to all political
parties and civil society.
A cross-party consensus on electoral
reform is vital for democratic transition and
consolidation. It may prevent Malaysia sinking into post-election political unrest as in
Thailand, Iran and Georgia.
192
End Notes
2
16 September is the anniversary of Malaysia’s formation but is not celebrated as
a national holiday. The official discourse
is much centred on the West Malaysian
political history, a point of contention for
many East Malaysians.
3
Wong Chin Huat and Norani Othman
(forthcoming) “Malaysia at 50 – an ‘electoral one-party state’?” in Abdul Razak
Baginda (ed.) Governing Malaysia, Kuala
Lumpur: Pelanduk.
4
One exception was Perak under the
Pakatan Rakyat where heads of Malay villages were elected. These appointments
were however terminated by the successive “Barisan Nasional state government”
which controversially overthrown the
former in February 2009 through defections and a palace coup.
5
6
7
LAYSIAFINAL.PDF
8
Examine this hypothetical example. For
an electorate that gives 60% support to
party A and 40% support to party B, perfect seat-vote proportionality can only be
achieved if party A supporters happen to
constitute the majority in 60% of the constituency while party B supporters dominate the remainder 40%. Should 5% of
the electorate swing from party B to party
A, the perfect seat-vote proportionality
can be restored only if the swing changes
the winners in exactly 5% of the constituencies.
9
See Lim (2002) op. cit. (pp. 5-11).
10 “Malaysian watchdog claims fraud bars
opposition from taking power, demands
reforms”, Associated Press, 18 March 2008,
http://bersih.org/?p=1168 (last accessed:
9 June 2009).
Before 1963, what constituted Federation
of Malaysia later was the independent
Federation of Malaya and three British
colonies: Singapore which has had home
rule, and Sabah and Sarawak with only
nascent representative politics. Singapore
left the Federation with constitutional
monarchies and became an independent
republic on 9 August 1965.
11 See “8,666 voters aged over 100 still listed
on electoral roll”, New Straits Times, 28 February 2008, http://bersih.org/?p=1183
Technically, the appointment is made by
the state’s monarch. In 2008, the rulers
of two states, Perlis and Terengganu have
chosen their own candidates, in place of
the Prime Minister’s favourites, as the
Menteri Besar.
13 See “She’s a voter in Kelantan, although she’s never registered”, New Straits
Times, 13 February 2008, http://bersih.
org/?p=971 (last accessed: 9 June 2009).
Lim Hong Hai (2002) “Electoral Politics
in Malaysia: ‘Managing’ Election in a
Plural Society”, (p. 4), http://www.fesspore.org/pdf/Electoral%20Politics/MA-
12 See “46 Ismail Ibrahims born in ’62 to
vote”, Malaysiakini, 6 March 2008, http://
bersih.org/?p=1094 (last accessed: 9 June
2009).
14 See “Bersih offers EC proof of fraud”,
bersih.org/?p=960 (last accessed: 9 June
2009).
15 See
bersih
Press statement: 17 March
193
2008, “Opposition parties may have
won the General Election outright if it
was truly clean and fair”, http://bersih.
23 See “ec Chairman: Cabinet didn’t approve of indelible ink”, The Star, 17 May
2008, http://bersih.org/?p=1213 (last
accessed 16 June 2009).
16 See “Kelantan bn: Where are the
118,000?”, The Star, 4 March 2008,
http://bersih.org/?p=1066 (last accessed: 15 June 2009).
24 See “Cabinet only ‘suggested’ scrapping use of indelible ink in poll”, New
Straits Times, 18 May 2008, http://bersih.org/?p=1239 (last accessed: 16 June
2009).
17 “EC Receives 235 Complaints of Names
Missing From Electoral Roll Since 2004”,
Bernama, 8 May 2008, http://bersih.
org/?p=1218 (last accessed: 15 June
2009).
25 See “ec’s fragile reputation suffers another
blow”, Malaysiakini, 5 May 2008, http://
bersih.org/?p=1134 (last accessed: 16
June 2009).
18 See “The four million who are eligible
to vote, but won’t”, New Straits Times, 1
March 2008, http://bersih.org/?p=1194
26 See “pas mob stops nine buses ferrying
voters”, New Straits Times, 7 March 2008,
http://bersih.org/?p=1248
19 See bersih Memorandum, 10 November 2007, “Memorandum to His Majesty
Yang diPertuan Agong ”, http://bersih.
27 See “Husam claims discrepancy in army
electoral roll”, New Straits Times, 1 March
20 See “ec cancels use of indelible ink”, The
Star, 4 March 2008, http://thestar.com.
my/election/story.asp?file=/2008/3/4/
election2008/20080304175316&sec=El
ection2008 (last accessed: 14 June 2009).
28 See “bersih decries postal votes fraud”,
Malaysiakini, 2 March 2008, http://bersih.org/?p=1058 (last accessed: 16 June
2009); and “Postal voting secrecy compromised: poll watchdog”, Malaysiakini, 6
March 2008, http://bersih.org/?p=1107
21 See “U-Turn on ink: A Black Mark for
ec”, Malaysiakini, 4 March 2008, http://
accessed: 14 June 2008); and “IGP: Four
reports on smuggled ink”, New Straits
Times, 5 March 2008, http://bersih.
2009).
22 See “ec Chairman’s house splashed with
paint”, The Sun, 6 March 2008, http://
bersih.org/?p=1105 (16 June 2009).
194
29 See “Agents now allowed to verify
postal votes”, The Star, http://bersih.
org/?p=1048 (last accessed: 16 June 2009.
30 See “72058 ballots not returned”, New
Straits Times, 16 March 2008, http://bersih.org/?p=1153 (last accessed: 16 June
2009).
31 See “Thousands of ballot papers unreturned”, The Sun, http://bersih.
2009).
32 See “Missing Ballots, Ijok not an isolated
case”, Malaysiakini, 3 May 2008, http://
33 See Articles 48 and 49 of the Federal
Constitution.
34 See Regulation 5, Elections (Conduct of
Elections) Regulations 1981.
35 See details in the section on election appeals in this chapter.
42 See “Grants only in bn-held seats”, Borneo Post, 28 February 2008, http://www.
theborneopost.com/?p=31830 (last accessed: 17 June 2009).
43 Centre for Independent Journalism (2008)
Report on the Quantitative Analysis of the Media
Monitoring Initiative for the 12th General Elections, Kuala Lumpur: cij. See: www.cijmalaysia.org.
44 See “Malaysia’s government reject call for
televised debate”, Associated Press, 2 March
45 Ibid. (p. 15).
36 See “Uproar over ec rule change”, New
Straits Times, 26 February 2008, http://
bersih.org/?p=1050 (last accessed: 17
June 2009).
37
psm was eventually approved as a political
party only in early 2009. The party fought
the 1999 elections under dap’s banner and
the 2004 ones under pkr’s.
38 See “16 arrested for various offences during campaign”, Bernama, 4 March 2008,
http://bersih.org/?p=1067 (last accessed:
16 June 2009).
39 See “Stay out of politics, students
warned”, The Star, 18 February 2008,
http://bersih.org/?p=1032 (last accessed: 16 June 2009).
40 See suhakam (2008) Annual Report 2007,
41 See “bn pledges to write-off taxes”,
The Star, 7 March 2008, http://bersih.
2009).
46 See “Postal voting secrecy compromised:
poll watchdog”, Malaysiakini, 6 March
47 Section 32 of Election Offences Act 1954.
48 See Puthucheary, M. & Norani Othman
(2003) The Electoral System of Malaysia: A
Report, Bangi: ikmas, ukm (pp. 34-36).
49 See “umno’s Sanglang state seat
win ‘invalid’”, Malaysiakini, 18 June
2008,
50 See “pas’ Hashin Jasin declared Sanglang winner”, The Star, 16 September
asp?file=/2008/9/16/nation/2008091
June 2009).
51 See “Kurop’s Pensiangan seat declared
vacant”, Malaysiakini, 8 September
2008,
195
52 See “Kurop gets to keep Pensiangan”, The
Star, 14 March 2008, http://thestar.com.
53 See “Anwar eyes possible Kulim by-election”, Malaysiakini, 18 July 2008, http://
bersih.org/?p=1297 (last accssed: 17 June
2009).
54 See “Asian polls watchdog sniffs out
wrongdoing”, Malaysiakini, 25 August
55 See “Arif Shah clarifies ‘paid spy’ issue”,
Malaysiakini, 23 August 2008, http://
www1.malaysiakini.com/news/88388
56 See “Goodies roll in, RM1 mil for Chinese schools”, Malaysiakini, 15 August
57 See “Four names missing from electoral list”, Malaysiakini, 26 August 2008,
http://bersih.org/?p=1477; and “5
‘phantom’ buses stopped, mp arrested”,
Malaysiakini, 26 August 2008, http://bersih.org/?p=1483, both accessed on 17
June 2009).
58 See “Malaysia mulls mass voter registration to stop frauds, report”, afp, 26 May
196
VOICES OF
THE PEOPLE:
SELECTED
STORIES
Adat and Human Rights in
Sarawak
SACCESS1
P
rior to the Brooke rule and
subsequent colonial administration,
the indigenous communities, particularly the Dayak groups of Sarawak, were
governed by their own respective adat. Over
time, this adat has been forcibly changed into
a homogenous state-based institution, thereby
eliminating its uniqueness to the particular
indigenous community. Among other functions, the adat is used by Sarawak’s indigenous
communities to claim rights over land, forest
resources and their livelihood. The failure to
understand the importance of adat to precolonial Dayak indigenous communities of
Sarawak would render the discourse on human rights futile.
Clifford Sather said that adat:
“[…] covers all of the various customary norms, jural rules, ritual
interdictions and injunctions that
guide an individual’s conduct, and
the sanctions and forms of redress
by which these norms and rules are
upheld…these rules apply to virtually all spheres of human life, social,
economic, religious and political.”2
In this sense, adat is an all-encompassing
institution that presides over activities such
as marriages, religious festivals, death and
mourning, childbirth, dance and music, construction of new longhouses, and even traditional past-times such as music and weaving.
It is also important to note that unlike
the Malay notion of adat, the concept of adat
among many Dayak communities of Sarawak
is not distinct from religious rituals and prac-
198
tices. It is one and the same thing. According
to Ter Haar (1948), the adat is not restricted
to what we commonly regard as “customary
law”.3 The concept of adat mentioned in this
report is not restricted to the notion of adat
as law or rules. Because the adat resembles
the generic concept of ‘customs’, it includes
all the activities people customarily practise
in their society. It also covers the individual’s
behavior and personal habits, whether he/she
is practising good or bad adat.
Generally, the function of the adat is to
ensure harmonious relationship among members within the community and also maintain
the general state of wellbeing with the spirit
world. Breaching this adat would risk a breakdown in social relationship which is punishable in both the secular and spiritual senses.
The adat and state formation
Before Sarawak came under colonial rule, the
indigenous communities did not define their
social identities based on ‘ethnicity’ as we understand it today (e.g. Iban, Bidayuh, Kayan).
Their social identities were defined by their
geographical space, such as people belonging a particular river tributary, hill/mountain
or watershed areas. Their social loyalty was
based on these geographical spaces and its
own kinship system. As such, each community living within a specific geographical space
would be governed by its own unique adat.
However, with the formation of the
state that began with the Brooke administration, the adat – as a concept and its traditional
functions – was changed to fit the requirements of the state constitution. The evolution
of the adat from its unique traditional form
to its constitutional profile today is primarily
caused by the adoption of the values of the
colonial and post-colonial governments.
When the Brooke administration began
to strengthen its grip on Sarawak in the mid-
Voices of The People: Selected Stories
19th century, the structure of the adat was
altered and it was constituted as ‘customary
law’. For instance, during the Brooke administration the Iban tunggu (fines) according to the
adat were systematised and assigned monetary
values. Also, they introduced courts to replace
the Iban bechara (hearing) that was usually
carried out in a longhouse ruai (verandah)
and witnessed by the longhouse inhabitants.
These new colonial practices, in replacing the
traditional adat, eventually spread to all the indigenous communities in Sarawak.
The adat then became an institution
sanctioned by the state. The adat at the local
level is administered by the Penghulu or chiefs
who receive a salary from the state. Clifford
Sather said that due to this ruling and the replacement of traditional adat by the state, the
Brookes began to eliminate some aspects of
the adat that seemed negative or morally bad
by their standards. These included the death
penalty for incest, forcible seizure of property,
slavery and headhunting. What is left of the
adat now is akin to the precious antique collections stored in a government-run institution at
the Majlis Adat Istiadat, under the umbrella of
the Sarawak Chief Minister’s Office.
Alteration of the adat inevitably affected
land use system as well. The Land Order
in Sarawak was first introduced in 1863,
changed in 1920, and amended to what we
know today as the Sarawak Land Code 1958.
This has far-reaching implications for the indigenous communities in Sarawak. For example, in the cases affecting the Orang Ulu and
Penan in particular, jungle clearing is not an
option to acquire land rights. The various Orders, Ordinance and the Land Code sought
to, and effectively restrict the acquisition of
land rights through the practice of local adat
by the various indigenous communities and,
ironically, a prior permit in writing from a
Superintendent of the Land and Survey Department is required for any attempt to create
customary rights upon land after 1958.
When it comes to land rights issues, it is
often assumed that the adat merely plays an
aesthetic role and the Land Code 1958 is used
as the authority over the people’s claim to
rights over land. The fact that the local indigenous communities have lost their customary
rights to land through the alteration of the adat
at the advent of the Brooke administration
shows how the concept of ‘rights’ as we know
it today cannot be effective in dealing with the
issues affecting Sarawak’s indigenous people.
From the cases presented in this report, we argue that dispossession of indigenous communities’ land resources, rape, murder and other
existing social problems correlates with the
alteration of the traditional adat, which is the
essence of indigenous communities’ rights.
Adat and human rights
The issues dealing with human rights abuse in
Malaysia had begun to pick up pace 20 years
ago. Unlike their counterparts in the Peninsula, most of Sarawak’s human rights issues
relate directly with dispossession of customary rights land of the indigenous peoples.
This paved the way for logging companies
and large-scale oil palm plantations to enter
the indigenous people’s land under the guise
of ‘development’. Despite the availability of
human rights instruments, the problems associated with the elimination of indigenous
peoples’ customary rights to land and thus,
neglecting their adat, have not been addressed
effectively.
In fact, the available human rights instruments have curtailed the essence of rights at
the local level, starting with the alteration and
the subsequent elimination of the indigenous
people’s adat. We also argue that the abuse of
human rights cannot be restricted to statutory
rights. This is because although common law
rights such as the customary rights to land
may be recognised, clear statutory provision
199
can take them away.
The case of Sarawak with regard to human rights issues is no different from the abuse
of indigenous peoples’ rights in the US in the
19th century. In the 19th century, us “[Chief
Justice] Marshall viewed tribal societies as not
qualifying as nations or states and therefore
without rights to ancestral lands”.4 Without
being recognised as a nation-state, the indigenous peoples cannot enjoy their rights.
Anaya (2004) further argues that indigenous
peoples must be recognised as a nation-state
in order to benefit from these rights.5 The only
problem with this example in the context of
Sarawak is that once her indigenous peoples
become a “nation-state”, they are regarded as
‘citizens’ and no longer ‘indigenous people’
with traditional rights and adat that existed
before formation of a nation-state.
Even with the establishment of various
international organisations to protect human
rights, the state still systematically abuses human rights through its institutions and these
cases of abuse continued to be ignored at the
local, national and international levels. For
instance, the United Nations (un) General
Assembly adopted three treaties that are concerned with human rights issues, namely the
International Convention on the Elimination
of All Forms of Racial Discrimination (icefrd
1965), International Covenant on Civil and
Political Rights (iccpr 1966) and International Covenant on Economic, Social and Cultural Rights (icescr 1966). These treaties do
not only cover the rights of minority groups
but also address problems faced by indigenous
peoples.6
Yet, these international human rights establishments do not have any power to protect
the rights of indigenous peoples in Sarawak;
nor are they effective in doing so. For instance,
iccpr concentrates on the rights of all individuals to humane and equal treatment by
the state under the law as stated in its Article
1 “…the right to self-determination (defined
200
as the right to ‘freely determine their political
status and freely pursue their economic, social
and cultural development’)”.
However, according to Yogeswaran Subramaniam (2007) this right to “self-determination” has been interpreted cautiously by
the un and international community.7 The
argument says that indigenous peoples cannot be regarded as ‘peoples’ for the purpose
of self-determination under Article 1 because
this right is equated with the decolonisation
process and the right to form an independent state. In other words, the traditional rights
or adat of indigenous peoples have been annulled with the formation of the state following independence from its colonial masters.
Hence, those who were once ‘indigenous peoples’ under colonisation have been reduced
to ‘citizenship’ following decolonisation and
political independence.
In 2007, the un General Assembly
adopted the United Nations Declaration on
the Rights of Indigenous Peoples (undrip),
to which Malaysia became one of its signatories, i.e. agreed to abide by the provisions
constituted in the declaration. Malaysia has
no qualms accepting undrip because the notion of protecting indigenous people’s rights
can be blurred. For instance, Article 26(1) in
the undrip secures the right of indigenous
peoples to the lands and resources they have
traditionally owned, occupied, used, or acquired.8 But in the context of Sarawak, the
whole idea of ‘indigenous peoples’ may be
subsumed under the concept of Bumiputra,
whose land and resources have already been
provided and protected by the state (e.g. the
notion of Bumiputra privileges but in actual
fact, these rights have been transferred to the
elite Bumiputra).
Furthermore, in Sarawak, the 1958 Statutory
Sarawak Land Code defines Native Customary Land as, “land in which native customary
rights, whether communal or otherwise, have
lawfully been created prior to the 1st day of
January 1958, and still subsist as such.”9
The keyword “lawfully” is further defined under Section 5, specifying methods in
which Native Customary Rights may be created as:10
of the indigenous peoples are ignored. Consequently, the absence of such adat leaves the
indigenous peoples vulnerable to all kinds of
criminal, social and economic problems, such
as unemployment, poor formal education,
sexual abuse, landlessness and alienation.
Unless this problem is addressed, the whole
struggle to safeguard human rights among the
indigenous communities of Sarawak (Sabah
and Peninsular Malaysia, for that matter) remains elusive because of the government’s
disregard for the key rights as practiced in the
Adat.
•
The following are cases of such abuses:
The “Lawful” Violation of Native
Customary Rights
•
•
•
•
The felling of virgin jungle and the occupation of the land thereby cleared;
The planting of land with fruit trees;
The occupation or cultivation of land;
The use of land for burial ground or
shrine; or
The use of land of any class for rights of
way.
In 2000, wide-ranging amendments
were introduced and passed by the Sarawak
State Legislative Assembly, among which, an
existing mode for the creation and acquisition
of native customary land rights by “any other
lawful method” was deleted. This particular
amendment has yet to be gazetted, but it remains only one administrative act away to remove the enabling sub-provision most directly
associated with the use of adat to create and
acquire native customary rights over land.
The Malaysian Courts have ruled and
expressly affirmed that the native customary land rights of the indigenous peoples in
Sarawak have survived all the Land Orders,
Ordinances and Land Code, but the Sarawak
State Government has chosen and continues
to ignore this judicial enunciation.
Therefore, no matter how the Malaysian
government claims to protect the rights of the
indigenous peoples, it would still be regarded
as ineffective as long as the traditional adat
Land is Life & Rights vs Adat
•
•
•
Colonial and statutory ncr divided into
land, marriage, death, usage, acquiring
of rights, with time-frame (such as “before 1958”) etc;
Alien concepts and value system, such
as calls for land titles and the monetary
value put on lands in compensation negotiations;
The state and corporations override, and
refuse to recognize, adat.
Beyond Rights (Constitutional/Legal/
Common)
•
•
•
In logging cases, licences are issued to allow the loggers to move in and establish
camps, which, among others, completely
ignore any indigenous people’s rights;
Destruction of life and its resources –
forests, water, animals, medicine, food
source;
Rights of the people to adat disappear,
but ‘rights’ are exerted by loggers and
governments. Thus, these ‘rights’, which
include workers’ rights, benefit the loggers and the state;
201
•
•
Right to rape and sexually abuse minors
and women, following which perpetraters
merely use the payment of monthly
maintenance as per legal/statutory institutional rights requirements;
Therefore, the whole idea of universal
human rights with all their instruments,
charters, declarations etc do not affect
the state’s and corporate “rights”.
Symptoms of Deprivation of Adat
(among others)
•
•
•
•
•
•
•
•
•
Logging;
Plantations;
Loss of land;
Alienation of communities;
Rape;
Arrests and imprisonment;
Value system breakdown;
Communities being evicted and uprooted; and
Compensation based on supposed market value, grounded in the law that legalises State acquisition of lands as long as
there is compensation.
Indiscriminate logging has led to the destruction of life and resources of the indigenous peoples in the Sarawak.
202
Two recent cases
The following are two recent cases to illustrate the arguments put forward above; they
are certainly not the only two. In fact, cases
11
reported previously in suaram’s Annual Human Rights Reports on abuses suffered by the
Sarawak indigenous communities continue.
Some incidents have even involved the forceful evictions of indigenous communities from
their ncr lands along the Bakun road.
1.Bengoh Dam – Quarry and Upper
Bengoh Communities
The Quarry
Bengoh Dam is a water reservoir dam being
constructed supposedly to provide enough
water to the state capital Kuching until 2030.
Studies to justify the dam are known only to
the government. The project was contracted
without tender to Naim Cendera, a company
in which the Sarawak Chief Minister’s first
cousin is one of the main shareholders. This
federally funded project had been awarded at
RM310.65 million. However, Naim Cendera
later subcontracted it out to the mainland
China dam builder, Sinohydro, for RM145
million.
Kampong Bengoh is about one hour’s
drive away from Kuching. A Bidayuh settlement, it has a history that dates back way before the proclamation of the Land Code. The
Bengoh mountain range displays some of the
most beautiful limestone mountains and has
provided the people their source of livelihood.
Naim Cendera, armed with a quarry
permit from the Sarawak Government,
cleared a path through the Bengoh villagers’
lands right up to the foot of the Derod Mawah (or Mawah Mountain). Trees once covered the mountains but the mainland Chinese
and local workers have logged them while
constructing the path for the quarry operation.
In the process of clearing, the company
disregarded the fruit trees and other crops cultivation on the people’s farms. The company’s
workers bulldozed their way through claiming
that they were clearing “state” land.
By the time the local villagers had organised to challenge the outsiders’ activities, their
farm trees had already been cut down, their
lands cleared, and new buildings and other
physical structures had been erected on the
people’s ncr lands.
Police reports were lodged and protests
brought to the local Member of Parliament
and State Legislative Assembly representative
of the area. Despite these actions, the company workers continued to bulldoze the area
and carried on with the work. Faced with no
other alternatives, the people took out a court
injunction to stop the work. They managed
to stop the destruction for about six months
before the Kuching High Court judge lifted
the injunction. An appeal is pending.
Meanwhile, the company workers have
continued to work, disregarding the people’s
land rights.
The Dam
At the dam site itself, work continues on
the river that is still feeding water to Kuching. Four Bidayuh villages within the Bengoh
mountain range have been forced to be resettled to other ncr land downstream. Resettlement details are minimal, except the official
rhetoric of providing “a better life for the people”. Once resettled, the people from these
four settlements will experience the same fate
as that of their fellow Orang Asal in the infamous Bakun dam project, i.e. the Sungai Asap
Resettlement Scheme.
While Kg. Rejoi, Kg. Bojong and Kg.
Sait will be submerged by the reservoir, Kg.
Semban, located at a higher altitude and actually not affected by the flood, will also be
relocated.
Kg. Semban houses have been compensated while those villagers whose lands will
be submerged have also been paid. Nineteen
families from Rejoi and ten from Bojong had
turned down any form of compensation, protesting that more land had been left out of
the perimeter survey. Many were only compensated for their crops but not for their land.
The value of land that is determined by the
government is also questionable.
The people had agreed to their land being submerged provided a fair compensation
was paid through an open and transparent
process to determine the value of land areas,
crops, farm houses, houses, etc, and on the
condition that the people could move further
up the water level to their own ncr lands.
After all, the people’s elected representatives
from the federal and state governments had
promised the villagers that they would be able
to do just that.
Two primary schools serving the four villages had informed parents that the schools
would be closed by mid-2009, even though
no concrete resettlement plans are in place. It
is yet another example of communities being
forced, one way and another, out of their adat
lands in the name of development.
2.Rape of Penan minors and women
The Penan and other indigenous peoples of
Sarawak have been struggling publicly for
land rights for more than two decades now.
Without these rights being respected and protected, communities have either lost or continue to lose their lands to timber companies,
mono-crop plantations and other supposed
development projects.
Along with such “development” come
workers from outside, who suddenly impinge
203
on the lives of the indigenous communities.
With mainly male workers around, it wasn’t
long before rape and sexual abuses occurred.
The first known case was documented by
an ngo Fact-Finding mission in 1995, with a
follow-up mission in 1996. The final report,
published in 2000, documented the rape of a
minor, a Penan girl in Long Mobui in Upper
Baram River in the Miri Division. Two police
reports were subsequently lodged. The case
was noted as nfa (No Further Action) for lack
of direct evidence.
The latest cases that have come to light
were when the Switzerland-based ngo, the
Bruno Manser Fund (bmf), broke the news in
early October 2008. When the mainstream
Malaysian media published the story with
details after a visit to several Middle Baram
Penan communities, the nation was finally
aware of the rape and sexual abuse of vulnerable Penan girls.
And from Ulu Baram, rape and sexual
abuses of Penan girls have now extended to
Middle Baram.
Two young Penan mothers lodged police
reports at the Police Headquarters in Kuala
Lumpur. The Penan have valid reasons not
to trust the local Sarawak police when senior
retired police personnel are employed by the
logging companies concerned, not to mention
the logging companies’ close connection with
the local Sarawak police establishment. Not
surprisingly, several police reports lodged by
the Penan against logging companies on land
rights encroachment had never yielded any
action. Furthermore, it was a fact that local
support groups such as ngos would not be
able to protect the victims after they had arranged to make police reports.
Not all victims could lodge reports
in Kuala Lumpur as most victims or their
children do not have identification papers,
which prevents them from travelling to Kuala
Lumpur. This lack of official identity cards
further erodes the people’s rights.
204
The collusion between the government
and logging companies result in the blatant
disregard of the people’s adat and it is the root
cause of the human rights abuses we are addressing.
The Penan thrive and survive on the jungle. And yet logging companies, armed with
licences can enter and clear the forests in the
name of development.
The police have the unenviable duty of
taking care of a huge countryside area with
so many native village settlements. The logging companies also employ retired senior
police officers as “security officers”. It is also
commonly known by the Penan that thugs are
used by these companies to handle local opposition.
With the inland rivers and streams cut
off to make way for logging roads, the Penan are dependant on mostly logging vehicles
plying these logging roads for their access to
any place outside their settlements. The native people living in the realm of the logging
companies are forced to accept the small concessions by the companies in the supply of
materials to build their houses and occasional
festive gifts in return for giving up tracts of
their jungles for logging.
It is therefore not surprising that the logging company workers have taken advantage
of the circumstances to perpetrate sexual
abuses on Penan women.
The gravity of the problem of sexual
abuses is reflected in that first reported instance of rape in Long Mobui in 1993, as
mentioned above. No one was charged,
whereupon the matter was completely forgotten by the Human Rights Commission
of Malaysia (suhakam) (which received an
official complaint on 4 November 2000 and
publicly claimed that it had not received such
complaint before).
Amidst the public outcry after the publication of the rape cases, community feedback
revealed heavy police presence in Penan set-
tlements in the Middle Baram. Members of
the community were asked if any “outsider”
had been to their settlement. This was known
to mean ngos and media personnel. Logging
camp workers were also reported to be frequenting villages, in their efforts to silence the
villagers.
into the rape cases but its report, submitted
to the cabinet since January 2009, is still not
released to date. No specific action has come
from the federal government.
The Sarawak Government has responded with rhetoric at best and outright dismissal
at worst. It has played up its propaganda rhet-
Civil society groups highlighting the rape cases of Penan women and the inaction of the police in Sarawak in a press conference held
in Kuala Lumpur in the month of December.
Sarawak-based media published numerous front-page reports that attempted to
white-wash the rapes and sexual abuses. Instead, a perpetrator was reported as a “concerned” father even though it was known
locally that he had other wives, a criminal offence in Malaysia. To date, he is still free and
is reported by villagers to be enforcing more
control over villagers and, together with the
logging companies he is employed under, controlling movement in and out of the area.
The federal government, through the
Ministry of Women, Family and Community
Development, carried out a mission to look
oric about development and about how much
funds had been allocated to the Penan. In the
process, it has only exposed the government’s
failure to protect one of the most vulnerable
communities in the country.
suhakam responded by announcing
a mission to the area but it remains an announcement with no known further action.
A proposed ngo-Police mission is yet
to take place. The mistrust of the police is a
problem that has not been addressed by the
police who insist on the victims going to police stations rather than the police visiting the
victims’ settlements. Such mistrust will con-
205
tinue as long as the police remain insensitive
to rape victims – in this case, marginalized
rural indigenous communities. In the meantime, several more sexually abused victims
who cannot go to Kuala Lumpur to make police reports due to lack of identity cards are
waiting for the government to bring justice to
their abused conditions, while other women
and minors have little choice but to hope that
they will not be victims.
To date, rapists are still roaming the ncr
lands of the Penan, while victims and their
families remain fearful of authorities and the
loggers. The Penan and other indigenous minors in the same vulnerable situation face this
threat every single day.
206
End Notes
1
SACCESS is a Kuching-based NGO
working on information, communication and documentation of indigenous
people's struggle for Native Customary
Rights (NCR) lands specifically and on
justice and equality in general.
2
Sather C. (1980) “Introduction”, in
Benedict Sandin, Iban Adat & Augury,
Penang: Universiti Sains Malaysia (pp. xixii).
3
Cited in Ibid. (p. xii).
4
Yogeswaran Subramaniam (2007) International Indigenous Rights: Evolution, Progress and
Regress, Subang Jaya: Center for Orang
Asli Concerns, (p. 8).
5
Cited in Ibid. (pp. 7-8).
6
See Ibid (pp. 14-18).
7
Ibid. (p. 17).
8
Ramy Bulan & Locklear, A. (2008). Legal
Perspectives on Native Customary Land Rights in
Sarawak, Kuala Lumpur: SUHAKAM.
9
Sarawak
State
Attorney-General’s
Chambers (1999) Laws of Sarawak: Land
Code, Chapter 81 (1958 Edition), Kuching:
PNMB (p. 21).
10 Ibid. (p. 27).
11 See for instance SUARAM (2008) Malaysia
Human Rights Report 2007: Civil and Political
Rights, Petaling Jaya: SUARAM.
207
The US-Malaysia Free
Trade Agreement: Who
Benefits?
•
Sovereignty: After the fta is signed, subsequent laws enacted in Malaysia which
are not in compliance will allow American companies to sue the Malaysian government if these laws are seen as reducing their profit margins. The Malaysian
government has only 2 choices; either to
rescind these laws or pay compensation.
•
Agriculture: Under the fta, tariff
for agricultural products from America
will be substantially reduced. The Malaysian market will be flooded with
cheaper American goods compared to
local products, causing Malaysian farmers to lose out to American farmers.
•
Access to cheap medicine: Under
the fta, more medicines will be patented. Patents give exclusive rights to the
company that created these medicines,
allowing a high degree of price control.
Furthermore, the time period for patents
will be increased to 20 years. This means
that patients will have to wait a long time
for cheaper medicines to emerge as the
fta does not allow generic medicines to
be imported. In this situation medicinal
costs will increase and access to cheap
medicine will be limited.
Y. Kohila1
I
March 2006, then-Minister of International Trade and Industries Rafidah Aziz, announced that the Malaysian
and the u.s. governments were going to sign a
Free Trade Agreement. She said that the Malaysian people would benefit from this agreement and that the country’s economy would
expand because of it. In the subsequent intense negotiations between the two countries,
it would appear that the usa has attained the
upper hand despite denials by the Malaysian
government.
Nonetheless, civil society groups have
raised concerns about this Free Trade Agreement. They include the following:
•
•
208
n
Jobs: Many Malaysian workers will lose
their jobs as local products will not be
able to compete with cheaper American
products due to the latter’s economies of
scale. Based on the research conducted
by the European Union and Ecuador’s
experience, an increase in unemployment
rates will also cause a fall in wages due to
the exploitation of the fear of losing jobs.2
Worker’s Rights: Currently, Malaysia does not have a minimum wage act
to protect low paid workers. Nor does
it have laws to control the influx of migrant workers. Trade unions are not
strong. Labour laws have been amended
to become more and more flexible in order to enable employers to hire and fire
as they like. This situation will become
worse if the us-Malaysia fta is signed.
The People’s Coalition against USAMalaysia FTA
The People’s Coalition against us-Malaysia
was formed in 2006 to create awareness
and to register the people’s protest against
these inter-governmental initiatives. More
than 40 organizations are members of this
coalition led by the Oppressed People’s Network (jerit).
The first protest against fta was held on
30 October 2006 in front of Sheraton Hotel,
Kuala Lumpur. More than 500 people from
fta
various backgrounds came to voice their protests. Since then, memoranda sent to both the
Malaysian government and the us Embassy
have elicited no response from both sides. Instead, the Malaysian government and the US
government have continued to propagate the
notion that the fta is good for the country and
its people.
The campaign against fta was intensified when there were news that the fta would
be signed by March 2007 but then the Malaysian government announced that there were
58 contentious issues to reconsider despite the
haste with which then-Minister of International Trade and Industries Rafidah Aziz was
promoting the fta.
A fax campaign was launched by the
coalition to register its protest directly to the
Prime Minister’s office. More than 400 letters were sent by various organisations to the
Prime Minister’s office. During the fourth
round of talks in Washington, the coalition organized a series of protests in Kuala Lumpur,
Ipoh and Penang to continue the pressure on
the Malaysian government to stop the talks.
This subsequently forced the Prime Minister to appear on tv to try to convince the
Malaysian public. Nevertheless, the protests
continued. The first victory for the coalition
came when the fast track period expired and
the Malaysian government had not signed the
us-Malaysia fta on March 2007.
Despite this campaign success, the pressure on the government continued. One week
before the 50th Merdeka anniversary in August 2007, a rally was organized near Da-
Malaysians demanding that Free Trade Agreement talks between the Malaysian and US governments be stopped. They carry posters
and banners urging the Malaysian government to “defend our country’s independence”. (Photograph courtesy of JERIT)
209
Malaysians demanding that Free Trade Agreement talks between the Malaysian and US governments be stopped. They carry posters
and banners urging the Malaysian government to “defend our country’s independence”. (Photograph courtesy of JERIT)
taran Merdeka to demand that the Malaysian
government did not pawn the country’s independence to foreigners through economic
neo-colonialism. After the sixth round of talks
held in Kuala Lumpur, there has not been
much progress on the US-Malaysia fta negotiations. We can only claim final victory for
the coalition when the Malaysian government
halts its talks with the US on the fta.
210
End Notes
1
Y. Kohila is a member of the Network
of Oppressed People (Jaringan Rakyat
Tertindas, JERIT) and the SUARAM
secretariat.
2
Kirkpatrick, C., George, C. & Scrieciu,
S. (2006) Sustainability Impact Assessment of
Proposed WTO Negotiations, Manchester:
Institute for Development Policy and
Management, University of Manchester.
211
212
CONCLUSION:
A CALL FOR GENUINE
HUMAN RIGHTS
REFORMS
A
t the end of
2008, Prime Min- Emergency (Public Order and Prevention of
ister Abdullah Badawi announced
that he would retire in March 2009,
bringing an end to his five-year premiership
of Malaysia. As we review the year 2008, we
note the many unimplemented reforms promised by Abdullah Badawi when he first came
into power in October 2003.
While the watershed 2008 General
Elections brought about new political realities which reignited and rejuvenated popular
calls for reforms and greater respect for human rights, at the end of our review of 2008,
it is clear that the regressive trend of human
rights in Malaysia has persisted.
suaram therefore urges the new administration of Najib Razak at the federal level,
as well as both the Barisan Nasional (bn) and
Pakatan Rakyat governments at the state level,
to implement genuine human rights reforms
to meet the aspirations of the Malaysian
people. In formulating and implementing
reforms, both bn and Pakatan Rakyat should
revisit the “Human Rights Demands for the Coming
General Election 2008”, a document which was
endorsed by 51 civil society organisations during the 2008 General Elections. The 12 demands below serve as a reminder to the political leadership of the country of the peoples’
demands:
214
Crime) Ordinance 1969 (eo) and the Dangerous Drugs (Special Preventive Measures) Act
1985 (dda), which provide for indefinite detention without trial. We also demand that all
those detained under the emergency laws be
charged in court or be released immediately.
3. Respect and Protect Freedom of
Expression, Assembly and
Association
Abolish the Sedition Act and enact a Whistleblowers’ Protection legislation to protect freedom of expression. The right to freedom of
assembly and association should be allowed
to be exercised without hindrance while all
authorities' decisions should be subjected to
judicial scrutiny. We call for the abolition of
Section 27 of the Police Act that subject public assemblies to the approval of the police.
4. Reform the police force
Implement all 125 recommendations made
by the Royal Commission on police reform,
especially the formation of the Independent
Police Complaint and Misconduct Commission (ipcmc).
1. Reject Racialised Politics and
Racism
Enact a Race Relations Act and a permanent
Race Relations Commission to outlaw racism
and incitement of racial hatred.
5. Stamp out Corruption
All ministers and public servants should declare publicly their assets before taking office.
The Malaysian Anti-Corruption Commission
(macc) must be made independent and report
only to the Parliament.
2. Repeal All Emergency Laws and
Laws that permit Detention without
Trial
Immediately repeal all emergency and antisubversion laws and measures, especially
the Internal Security Act 1960 (isa) and the
6. Uphold the Independence of the
Judiciary
Restore judicial independence by rescinding the constitutional amendment of Article
121(1) that undermines the separation of
powers in a functioning democracy.
Conclusion: A Call for Genuine Human Rights Reforms
7. End the New Economic Policy
Immediately abolish the New Economic Policy (nep) and replace it with an affirmative action policy that is based on individual needs
and merits regardless of race or religion.
11. Ensure Gender Equality
Ensure equal representation of women in all
fields and key decision-making positions and
equal treatment of men and women before
the law.
8. Reform the Electoral System
Set up a royal commission on electoral reforms with the aims to restore the ‘one person
one vote’ principle, clean up the electoral roll,
abolish postal votes and ensure equal access
to the media by all parties. Local government
election must be restored. Appointment of
members of the Election Commission must
be done in a transparent and accountable
manner with public consultation.
12. Protect the Environment
Enact and enforce more stringent environmental protection legislations to protect rivers, oceans, forests, and clean air and water.
An efficient, accessible and affordable public
transportation system should be a priority in
town planning to avoid over reliance on personal vehicles.
9. Uphold Press Freedom
Repeal the Printing Presses and Publication
Act (pppa), the Official Secret Act (osa), the
legislation of a Freedom of Information (foi)
Act, and set up a parliamentary select committee to review all other legislations which
relate to press freedom.
10. Respect Economic, Social and
Cultural Rights
Comply with economic, social and cultural
rights standards and a national minimum
wage policy in order to ensure an adequate
standard of living for all. Furthermore, religion, culture and the mother tongue languages of minorities should be respected and
allowed to be practiced and developed freely.
The building of Chinese and Tamil schools
should be allowed according to needs and
with fair allocation of public funds. Malaysia
is a secular state under the Federal Constitution with Islam as the official religion, while
other religions must be respected and allowed
to be practiced freely.
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