2009 (download here)

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SUARAM_HRR2009.indb 1
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Published by:
SUARAM Kommunikasi
433A, Jalan 5/46
Gasing Indah
46000 Petaling Jaya
Selangor
Malaysia
Tel: +603 7784 3525
Fax: +603 7784 3526
Email: [email protected]
Website: www.suaram.net
Cover design and layout by:
Bright Lights at Midnight
Printed by:
Polar Vista Sdn. Bhd.
ISBN: 978-983-44070-6-3
SUARAM © 2010
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Staff and Secretariat of SUARAM 2009/2010
Staff
Nalini Elumalai – Right to Trial Campaign Coordinator
Yap Heng Lung – Right to Justice Campaign Coordinator
Tah Moon Hui – Local Democracy Campaign Coordinator
Temme Lee – Refugee Rights Campaign Coordinator
John Liu – Documentation and Monitoring Coordinator
Ili Farhana – Outreach and Events Coordinator
Diane Savari – Accounts and Administration Manager
Ong Jing Cheng – Penang Branch Coordinator
Fang Pei Fen – Johor Branch Coordinator
Secretariat Members
Arumugam, K.
Cynthia Gabriel
Edmund Bon
Kohila, Y.
Kua Kia Soong
Lee Khai Loon
Masjaliza Hamzah
Puspawati Rosman
Shan, K.
Yeoh Seng Guan
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Contents
Foreword
Acknowledgments
Executive Summary
7
11
13
CHAPTER 1:
Detention Without Trial and Restriction of Movement
17
CHAPTER 2:
Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies
39
CHAPTER 3:
Freedom of Speech, Expression and Information
67
CHAPTER 4:
Freedom of Assembly and Association
91
CHAPTER 5:
Freedom of Religion and Matters Pertaining to Religion
113
CHAPTER 6:
Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons
131
CHAPTER 7:
Law and The Judiciary
157
CHAPTER 8:
Human Rights Comission of Malaysia (suhakam)
165
CHAPTER 9:
Free and Fair Elections
187
VOICES OF THE PEOPLE: SELECTED STORIES
207
Development and Human Rights in Sarawak
208
Campaign against the Teaching of Mathematics and Science in English:
A Multi-Ethnic Struggle for the Right to Mother-Tongue Education in
Malaysia
218
Oral statement delivered by Norlaila Othman at the 11th Session of the
United Nations Human Rights Council
224
Donations
227
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FOREWORD
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Malaysia Human Rights Report 2009
“You are a human being. You have rights inherent
in that reality. You have dignity and worth that exist
prior to law.” - Lyn Beth Neylon
T
2009 was indeed a significant
one for Malaysia, as we saw the
change of the country’s top political
leadership, with Najib Razak succeeding
Abdullah Badawi as the Prime Minister,
after the Barisan Nasional (bn) had lost its
traditional two-thirds majority in Parliament
in the previous year. This change, of course,
brought about several significant events
which impacted greatly on the state of
human rights in Malaysia. Not least is the
fact that the country’s new leadership sought
to regain its loss of political control through
all means, including the undemocratic and
unconstitutional. The Perak political crisis
was one such example which resulted in the
serious undermining of fundamental civil and
political rights in Malaysia.
2009 was also significant for suaram for
a very different reason. suaram celebrated its
20th anniversary in 2009. Founded in 1989,
in the aftermath of the 1987 Operasi Lalang
during which 106 opposition politicians, ngo
activists, and trade unionists were arrested
and detained under the isa, our campaign
against detention-without-trial laws has been
a key area of our work.
Thus, when Najib Razak announced the
release of 13 isa detainees on the very first day
of his premiership, it was one of the many
small victories that suaram had achieved
during our 20 years of existence. Besides the
announcement of the release of isa detainees,
the new premier also announced his
“1Malaysia” concept, promising to do away
with policies of racial discrimination and
bringing about reforms and greater respect
for human rights.
he year
Our 20 years of struggle for human
rights in Malaysia has taught us that such
pledges of commitment to human rights
by the bn Government were largely hollow
and unfulfilled in the end. As such, suaram
remains committed to defending human rights
and is aware of the need for far-reaching and
meaningful reforms, rather than cosmetic and
piecemeal ones.
Sadly, it was not long before suaram
began to record an increased level of
intolerance towards dissent and opposition
compared to Najib’s predecessor. In 2009,
there was a massive number of arrests by
the police over peaceful protests against the
bn government and its policies, seriously
undermining the freedoms of speech,
expression and assembly, and compromising
the integrity of several institutions, including
the judiciary, the police, and the Malaysian
Anti-Corruption Commission (macc).
suaram’s Human Rights Report on
Malaysia 2009 documents the numerous
cases of human rights violations which
occurred throughout the year. Authoritarian
governments around the world – past and
present – have sought to undermine the
value of human rights and discredit human
rights defenders and in all probability we will
continue to see such attempts by the current
government.
Today, human rights has come to be
considered universally as a vital aspect in
the resolution and prevention of conflicts.
It is now largely accepted that human rights
protection and promotion are important for
the long-term stability and development of
societies.
In Malaysia, inequality, injustice and
insecurity faced by Malaysians have become
institutionalised. Thus, our work has to focus
on the creation and strengthening of the
institutions, mechanisms and processes for
participatory governance based on democracy
and freedom.
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Foreword
suaram is dedicated to a vision “to uphold
human rights for a society that is equal, just and
democratic”, with a mission “to build a human
rights movement through empowerment, advocacy and
solidarity”.
Our annual human rights report
on Malaysia is merely one of the many
accomplishments by suaram in advancing
human rights in the country. We monitor and
document all violations of human rights in
the country, and report it in a comprehensive,
objective and accurate manner to the wider
public. This is a task we have embarked upon
since 1998.
Through this publication, suaram hopes
the people of Malaysia and the world will
be more aware of the many human rights
violations by the bn Government and join us
in our movement to uphold human rights in
the country.
“All that is necessary for the triumph of evil is that
good men do nothing.”
- Edmund Burke
Salam berjuang…
K. Arumugam
Chairperson
June 2010
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Acknowledgments
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T
he publication of suaram’s
Human
Rights Report 2009 involved efforts
and contributions of numerous individuals
and organisations. The publication of the
report was made possible with the financial
assistance from the National Endowment for
Democracy.
The report was mainly written by John
Liu. Other contributors are: Andrew Khoo
(Law and the Judiciary); Wong Chin Huat (Free
and Fair Elections); saccess (Development and
Human Rights in Sarawak); and Nyam Kee Han
(Campaign against the Teaching of Mathematics and
Science in English).
The principal editor of this report is
Dr. Kua Kia Soong, with editorial assistance
from Dr. Yeoh Seng Guan, John Liu and
Alexander Blocker. Various sections were
reviewed by Tah Moon Hui, Nalini Elumalai
and Temme Lee. Alexander Blocker assisted
in proofreading the draft.
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Executive Summary
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In
April
2009,
Najib
Razak
succeeded Abdullah Badawi as
the Prime Minister of Malaysia.
Like his predecessors, Najib promised reforms
and greater respect for human rights and
civil liberties by announcing the release of
13 Internal Security Act (isa) detainees, the
lifting of the ban on two news publications,
and the review of the isa – all on the very first
day of his premiership.
While announcing a review of the isa
in 2009, the government has not indicated
any intention to repeal the law, which is the
demand of 83 organisations in Malaysian
civil society. At the end of 2009, nine
detainees still remained in detention under
the isa while two other detention-withouttrial laws, namely the Emergency (Public
Order and Prevention of Crime) Ordinance
1969 (eo) and the Dangerous Drugs (Special
Preventive Measures) Act 1985 (dda), were
not mentioned for review by the government
despite their similarities with the isa. Thus, it
is clear that the government has no intention
of repealing the isa.
As soon as the new Prime Minister
assumed power, the Barisan Nasional (bn)
government acted to recover its losses suffered
during the 2008 General Election. In this
process, they have incurred various human
rights violations and further compromised the
integrity of several institutions, including the
judiciary, the police, and the Malaysian AntiCorruption Commission (macc).
This was notably seen in the Perak
constitutional crisis, during which the
Pakatan Rakyat-controlled state government
fell under the control of the bn as a result
of the defection of three Pakatan Rakyat
state representatives to become “bn-leaning”
independent assemblypersons.
In this crisis, the police, state civil
servants, the judiciary and the monarchy have
all played questionable roles. The Sultan of
Perak, in February, issued a statement ordering
the incumbent Menteri Besar of Perak from
Pakatan Rakyat, Mohd Nizar Jamaluddin, to
resign, thus in effect consenting to the BN’s
takeover of the Perak state government. While
the Kuala Lumpur High Court later ruled
that the Sultan of Perak could not dismiss
the Menteri Besar, this decision was quickly
overturned by the Court of Appeals. Even
while this dispute was still unresolved, Mohd
Nizar and his state executive councillors from
Pakatan Rakyat were denied entry into the
Perak State Secretariat building. In another
instance, Perak State Assembly Speaker
Sivakumar from Pakatan Rakyat was forcibly
dragged out from State Assembly Hall by
several uniformed police personnel when he
presided over a State Assembly session during
this dispute.
The Perak crisis also saw a massive
crackdown on the freedoms of speech,
expression and assembly. In May alone, a
total of 167 arrests were made in Kuala
Lumpur, Perak and Penang – all within a
period of 20 days – in relation to protests
against the unconstitutional regime change
in Perak, including for wearing black, fasting
and holding candlelight vigils. This marks
an increased level of intolerance shown by
the government under Najib Razak towards
dissent and opposition as compared to that of
his predecessor.
Law enforcement agencies continued
to operate with lack of accountability and
impunity despite numerous recommendations
by bodies like the Human Rights Commission
of Malaysia (suhakam) and the Royal
Commission on the Police. suaram recorded
7 cases of death in custody through media
monitoring between 1 January 2009 and 31
December 2009. In July, Teoh Beng Hock,
an aide of a politician from the Democratic
Action Party (dap), fell to his death from the
fourteenth floor while in the custody of the
macc.
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Executive Summary
The bn government has tried to silence
Malaysians such as Raja Petra Kamaruddin
who raised questions surrounding the murder
of the Mongolian national, Altantuya
Shaariibuu and her alleged liaison with the
present Prime Minister. Raja Petra has been
charged with sedition but he has since evaded
arrest. The disappearance of the private
investigator, Balasubramaniam soon after his
statutory declaration implicating the Prime
Minister and his recent exposé on Youtube
further brings into suspicion an attempt
by the powers-that-be to cover up the truth
behind the murder of Altantuya and her
links to kickbacks surrounding the Scorpene
submarine deal by the Ministry of Defence
when Najib was the defence minister.
Religious intolerance also continued to
be tolerated, as was seen in August, when the
government initially tolerated the actions of a
group of Muslims who carried a slaughtered
cow’s head to protest the relocation of a
Hindu temple to a predominantly Muslim
neighbourhood. Only after widespread
protests and indignation did the authorities
change its attitude and the ringleaders were
finally apprehended.
In the treatment of refugees, at least two
international reports in 2009 have highlighted
the collusion of Immigration Department
authorities in the trafficking of refugees to the
Malaysia-Thailand border.
The government’s efforts to restore the
integrity and independence of the judiciary
fell short of the expectations of civil society
including the Bar Council. The Judicial
Appointments Commission set up in 2009
vests too much power in the Prime Minister
and lacks civil society representation. Justice
was not seen to be done when the government
decided to drop the case of senior lawyer V.K.
Lingam, who was exposed in a video clip
in 2007 attempting to influence the former
Chief Justice over the appointments of judges.
The government also attempted to avoid
international embarrassment over its human
rights record by amending the enabling
law of suhakam twice in 2009, when the
Commission was facing possible downgrading
by the International Coordinating Committee
of National Human Rights Institutions (icc).
Still, the government’s abysmal record at the
international level remains – it has to date
only ratified two of the nine core international
human rights treaties and still refuses to ratify
the rest despite being urged to do so by the
international community.
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Chapter 1:
detention without
trial and restriction
of movement
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P
of
calls for the abolition of the Internal
Security Act (isa) in 2008, when even
component parties of the ruling coalition1
and a Cabinet Minister (who later resigned)2
spoke out against the isa, the year 2009 saw
the biggest anti-isa protest to date when more
than 30,000 took part in a demonstration in
the capital Kuala Lumpur on 1 August.
As a result of increasing public calls
for the isa to be abolished, the government
announced that it would amend the Act.
However, despite pledging commitment to
amend the isa, the government has shown
no intention to repeal the isa. Indeed, the
Malaysian government continued to invoke
the isa throughout the year, making seven
known arrests in 2009.
Furthermore, as of 31 December 2009,
the Malaysian government did not indicate
any intention to review the other emergency
and anti-subversion laws and measures,
namely, the Emergency (Public Order and
Prevention of Crime) Ordinance (eo) and
the Dangerous Drugs (Special Preventive
Measures) Act (dda), which also provide for
indefinite detention without trial.3
At the end of 2009, there were nine
persons still detained under the isa. In
addition to that number, a total of 1,122
persons were held without trial under the eo
and the dda.4 Meanwhile, many others who
have been released from detention still face
restrictions on their movement, under the
Restricted Residence Act 1933 (rra).
Over the years, suaram has also
documented innumerable cases in which
detainees are subject to torture and other
forms of inhuman, cruel and degrading
treatment while in detention under the isa, eo
and dda.5 The reluctance of the Malaysian
government to ratify the United Nations
Convention against Torture and Other
Cruel, Inhuman and Degrading Treatment
or Punishment (cat)6 allows for a culture
icking up from the momentum
of torture and impunity and indicates the
government’s disregard for international
human rights standards.
Detention-without-Trial Laws in
Malaysia
i. The Internal Security Act (isa)
The isa was the extension of colonial
legislation 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,7 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
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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. The courts
can only review habeas corpus applications
on the basis of procedural technicalities of
the detention and not the substantive grounds
of the detention itself.
Detainees may also be released with
or without conditions at any time during
detention. Conditions can include restrictions
on activities, movement, 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.
ii. The Emergency Ordinance (Public
Order and Prevention of Crime) 1969
(eo)
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.”8 In 2005, the Royal
Commission on the Police had recommended
the repeal of the eo because “the law had
outlived its purpose” and had “facilitated the
abuse of fundamental liberties.”9 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
The Kamunting Detention Camp in Perak which holds isa detainees. (Photograph courtesy of Gerakan Mansuhkan isa)
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acting in a manner prejudicial to public order” and
the “suppression of violence or the prevention of
crimes”.10 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 Home Ministry
can make an order of detention without trial
for a period of two years. If detention is
unnecessary, the Home 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 public is far less familiar with
the eo 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.
iii. 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 police to
arrest and detain any suspect who “has been or
is associated with any activity relating to or involving
the trafficking in dangerous drugs” for up to 60 days
without an order of detention. At the end of
the 60-day detention, the Home Minister is
provided powers to hand a two-year detention
order, if he is satisfied that “it is necessary in the
interest of public order that such person be detained”.11
Section 11A of the dda provides powers to the
Home Minister to extend a detention order,
for a period not exceeding two years, but the
number of extensions is not limited.
The dda has further similarities to the eo
in that the detainees are often not well-known
personalities and that the legislation is lesser
known compared to the isa, resulting in many
abuses of the legislation by the police to arrest
and detain individuals conveniently without
trial.
Further, Section 6(3) of the legislation
also states that the Home Minister may order
the restriction of movement of individuals if
the Minister “is satisfied that […] it is necessary
control and supervision should be exercised over any
person” who is suspected to be associated with
dangerous drugs-related activities.
Recommendations by SUHAKAM, the
Royal Commission on the Police and
the UN Human Rights Council
The legislative enactments that provide
for detention without trial have also been a
source of major concern for, among others,
the Human Rights Commission of Malaysia
(suhakam) and the Royal Commission to
Enhance the Management and Operations
of the Police Force (Royal Commission on the
Police) 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”.12
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 [with] international human rights
principles”.13 Specific offences related to threats
to national security must be spelt out clearly
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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. These included:14
• 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.
In
its subsequent annual reports,
has repeatedly called for the isa, the
eo and the dda to be repealed.
suhakam
suhakam,
isa
in its 2003 review of the
be abolished.
isa,
recommended that the
Echoing the recommendations by
suhakam, the Royal Commission on the
Police (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 Commission on the Police, stressing the
need to respect the principle of right to trial,
recommended:
• Amendments to Section 73 of the isa 1960
to require 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.
In February 2009, Malaysia’s human
rights record was reviewed by the United
Nations Human Rights Council under the
newly-established Universal Periodic Review
(upr) mechanism. Among the key concerns
and recommendations made during the review
was for the repeal of detention-without-trial
laws. The Malaysian government was also
urged by United Nations member states to
extend invitations to the United Nations’
Special Procedure Mandate Holders (experts
or groups of experts on various respective
human rights areas), including the Working
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Group on Arbitrary Detention, which in 2008
made a request for a country visit to Malaysia
in light of the many arbitrary detentions made
under the three detention-without-trial laws.
In June 2009, during the adoption of
the review of Malaysia by the United Nations
Human Rights Council, the Malaysian
government said that it was “positively
considering” extending an invitation the
United Nations Working Group on Arbitrary
Detention to undertake a country visit to
Malaysia.15 However, up until December
2009, no invitation had been made.16
Proposed Amendments to the ISA
Pressured by the growing calls from both
within and outside the country for the review
and repeal of the isa, and further pushed by
the massive anti-isa rally in August, Home
Minister Hishammuddin Hussein on 29
October 2009 announced that five areas
of the isa would be amended, namely, 1)
the length of detention periods, 2) rights
and treatment given to detainees and their
families, 3) the power of the Home Minister
in issuing detention orders, 4) the use of isa
for political reasons, and 5) detention without
trial under the isa.17
The Home Minister also said that
feedback had been obtained from various
parties and that the amendments were
being fine-tuned so that they could be
tabled before the end of the then-ongoing
session of Parliament, which ended on 17
December 2009.18 As of 31 December 2009,
the amendments have yet to be tabled in
Parliament or made public.
Despite announcing that feedback on
the proposed amendments had been obtained
from various stakeholders, details of the
proposal have not been made available to
ngos, including those monitoring detentions
The biggest ever anti-isa rally, held on 1 August 2009 and attended by more than 30,000 people. (Photograph courtesy of Merdeka
Review)
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without trial. Most importantly, relevant
stakeholders such as former detainees and
their families, as well as groups monitoring
detentions under the isa, were not consulted.
In October 2009, the government held
a series of consultative meetings with a
selected number of groups, which included
organisations such as cable news channel Astro
Awani and the ruling-umno-owned newspaper
Utusan Malaysia, but not the Abolish isa
Movement (Gerakan Mansuhkan isa, gmi), which
is a coalition of 83 organisations opposing the
isa and directly monitoring isa detentions.
Malaysian Government’s Position on
the Detention without Trial
Despite the numerous and repeated calls
and recommendations by the international
community, ngos, political parties, as well
as commissions set up by the government to
either repeal or review all detention-withouttrial laws, the government continued to view
these laws 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, December
2008, then-Deputy Prime Minister Najib
Razak, who is currently Malaysia’s Prime
Minister, 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”.19
The government maintained this position
in 2009 despite pledging its commitment to
amend the isa. On 16 September, Home
Minister Hishammuddin Hussein said, “[The]
Kamunting [Detention Camp] is there for a reason
because it is to protect [the country] against threat[s] to
security.” The minister added, “If there are people
The biggest ever anti-isa rally, held on 1 August 2009 and attended by more than 30,000 people. (Photograph courtesy of Merdeka
Review)
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The biggest ever anti-isa rally, held on 1 August 2009 and attended by more than 30,000 people. (Photograph courtesy of Malaysiakini)
out there who are threats to national security, I will
fill Kamunting to the brim.”20 (Emphasis
added)
When Malaysia’s human rights record
was reviewed by the United Nations Human
Rights Council under the Universal Periodic
Review in February 2009, 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.” 21
In response to the recommendations made
by other un member states on the abolition
of detention without trail, the government
stated:
“The Government considers existing preventive
detention legislation to be of vital importance
to national security. These laws are to prevent
subversive elements and protect the security
of the nation and its people, as recognised in
international law. At the same time, proper
and sufficient safeguards are provided to ensure
compliance with the rule of law.
“The Government considers that safeguards for
the protection of the human rights of persons
detained under such legislation are sufficiently
provided under existing legislation. That
notwithstanding, the Government plans to
undertake a comprehensive study to review the
Internal Security Act.” 22
24
7/15/10 11:57 AM
Notwithstanding the government’s
continued defence of its detention-withouttrial laws, in June, Prime Minister Najib Razak
condemned the detention of two Malaysians
at the Guantanamo prison, describing the
treatment of detainees there as “horrific”.
He said, “How we treat the isa detainees is really
a walk in the park compared to Guantanamo
Bay.”23 (Emphasis added) Over the years,
various accounts of torture in the isa have
been made public, including by suaram. As
such, Najib’s statement is indeed preposterous
and insulting, especially towards those who
have been tortured while in isa detention.24
Further defending the isa, Najib said, “If
not for the isa […] there would have been terrorists in
Malaysia. We were able to nip it in the bud and in the
process we were able to save lives, countless lives.”25
Thus, despite the highly publicised
proposal of amendments to the isa in 2009,
the government has repeatedly indicated that
the isa as well as the other detention-withouttrial laws remain relevant and that they will
be invoked whenever government deems it
necessary.
Cases and Statistics of Detentions
without Trial under the ISA
As of 31 December 2009 there were nine isa
detainees, including one detainee who has
been detained since 2002, in the Kamunting
Detention Camp. (For the list of names of the
detainees, see Table 1.6: Detainees in Kamunting
as of 31 December 2009) To date, none of
the detainees have been charged with any
offences. Seven individuals were arrested
under the isa in 2009, while 40 detainees were
known to have been released in 2009.
Categories of ISA detainees
In recent years, the government has extended
the use of the isa beyond its original purpose
of combating communist insurgency to cover
alleged terrorism-related activities, incitement
of racial hatred, and also criminal activities
such as currency counterfeiting and the
forgery of passports and identity cards. The
use of the isa, particularly in these instances,
cannot be justified as these offences are
covered under other existing legislations,
including:• Counterfeiting money, covered under
Section 489B Penal Code;
• Falsifying passports, covered under Section
56 Immigration Act;
• Inciting religious hatred, covered under
Section 298A Penal Code;
• Inciting racial hatred, covered under
Section 499 Penal Code;
Table 1.1 ISA Statistics, 2009
Category
Number
Arrests made
7
Renewed detention order given
1
Releases made
40
Number of detainees as at December 2009
9
(Source: SUARAM monitoring)
25
7/15/10 11:57 AM
• Spreading false news, covered under
Section 499 Penal Code; and
• Terrorist offences, covered under Chapter
via of Penal Code.
As of 31 December 2009, two main
groups of isa detainees remain detained in
the Kamunting Detention Camp, namely
individuals allegedly linked to terrorist
activities of the Jemaah Islamiah (ji) and suspects
of documents forgery. Those detained under
the isa include foreign nationals.
i. Jemaah Islamiah (JI)
Since 2001, the isa has been used extensively
against those alleged by the Malaysian
government 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). 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 the authorities possess.
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 the period between 2006
and 2009. As of December 2009, there were
still six detainees accused of being part of ji
detained under the isa.
ii. Forgers of Documents
A large number of alleged forgers of
documents have also been detained under
the isa in recent years. Their detention under
the isa exposes the flimsy justification for the
isa since Malaysia already has ample laws
to deal with such crimes without having to
invoke detention without trial. For example,
the crime of falsifying passports is already
covered in Section 56 of the Immigration
Act. As of 31 December 2009, three of the
nine isa detainees held in the Kamunting
Detention Camp have been accused of
forging documents.
iii. Foreign Nationals
There are also a number of foreign nationals
detained under the isa in the Kamunting
Detention Camp. Those who were eventually
released were deported back to their home
countries. As of December 2009, there
were three foreign nationals incarcerated
under the isa. They were Shadul Islam
(Bangladeshi), Mahamad Nakhrakhel (Thai),
and Muhammad Zahid Haji Zahir Shah
(Pakistani). All three of them were alleged to
be involved in forgery of documents.
ISA Arrests, 2009
Seven individuals were arrested under the isa
in 2009. All of them, with the exception of
one whose details of arrest remain unknown,
are alleged to have been involved in JI-related
activities.
In April 2009, suaram and the Abolish
isa Movement (Gerakan Mansuhkan isa, gmi)
received information that there had been
three isa arrests in the months of March and
April. These arrests were not made public by
the government until suaram revealed it to
the media and submitted a memorandum to
suhakam protesting these arrests. The three
isa detainees were:
26
7/15/10 11:57 AM
• Agus Salim, an Indonesian cook in Larkin,
Johor, who was believed to be detained on 5
March 2009 and escorted away by five police
cars. The entire process of his deportation
was also recorded on video by the police.
However, no reasons were provided for his
detention. His sister Fatin contacted the
police but was informed that there was no one
known as Agus Salim being detained at the
Bukit Aman police headquarters.
• Abdul Martin Anol Rahmat, who was
arrested by the police on 1 April 2009 for his
alleged involvement in Jemaah Islamiyyah (ji).
The self-employed man was escorted away by
12 policemen.
• Johar Hassan, whose age, background and
detention details were not known. He was
believed to have been detained sometime
between March and April.
In July 2009, suaram and gmi once again
received information that three more arrests
were made in Ulu Tiram, Johor. The three,
identified as Sulaiman Bohari, Abd Latif
Omar and Samsudin Hussein, were arrested
on 25 June 2009.
While the government’s announcements
of its release of isa detainees were widely
publicised and reported by the media,
arrests were largely kept away from public
knowledge. All the isa arrests made in 2009,
with the exception of Mas Selamat Kastari’s
arrest, were not revealed by the government
to any media organisation until suaram and
gmi publicised them. Table 1.2 lists the names
of those who were arrested under the isa in
2009.
ISA Releases, 2009
In 2009, the government released a total of 40
isa detainees. However, 22 of them were given
restricted residence orders and 16 foreigners
were deported back to their respective home
countries. Table 1.3 lists the names of those
who were released from the isa in 2009.
Cases and Statistics of Detentions
without Trial under the EO
Syed Ibrahim (left), chairman of the Abolish isa Movement,
submits a memorandum to an Indonesian diplomat urging the
embassy to intervene in the isa case of Agus Salim. Agus, an
Indonesian national, was arrested in March 2009. (Photograph
courtesy of Gerakan Mansuhkan isa)
On 9 May 2009, the government
announced that it had arrested Mas Selamat
Kastari, an alleged ji leader, under the isa.
On 27 May 2009, he was given a two-year
detention order and sent to the Kamunting
Detention Camp.
Meanwhile, the more obscure eo continued to
be used widely, mainly on alleged underworld
kingpins and suspected criminals in 2009.
Among the higher profile cases of eo
detention in 2009 were that of Bunya Ak
Sengoh, Marai Ak Sengoh and Melati Ak
Bekeni, three indigenous Iban who were
actively involved in a struggle to keep a
plantation company out of their Native
Customary Rights (ncr) land in Batu Lapan,
Bintulu, Sarawak. The three were among 12
individuals arrested and remanded by the
police under Section 117 of the Penal Code on
27
7/15/10 11:57 AM
Table 1.2: ISA Arrests in 2009
No
Name
Allegation
Arrest
1.
Status
Agus Salim
JI
5 March 2009
Released on the 30 April 2009
after spending 56 days
under ISA
2.
Abdul Martin Anol Rahmat
JI
1 April 2009
Sent to KDC on 23 May 2009
3.
Johar Hassan
Unknown
April 2009
4.
Mas Selamat Kastari
JI
7 May 2009
5.
Sulaiman Bohari
JI
25 June 2009
Sent to KDC on 20 August 2009
6.
Abd Latif Omar
JI
25 June 2009
7.
Samsudin Hussein
JI
25 June 2009
Unknown
Sent to KDC on 23 May 2009
(Source:
(Source: SUARAM
SUARAMmonitoring)
monitoring)
Table 1.3: ISA Releases in 2009
No
28
Name
Allegation
Date of
Arrest
Date of
Release
Detention
Period
1
Suhaimi Mokhtar
JI
29 Dec 2001
12 Feb 2009
7 years
2
Zaini Zakaria
JI
Mid-Dec 2002
12 Feb 2009
6 years
3
Mohammad Khaidir
Khadran
JI
2004
12 Feb 2009
5 years
4
Wan Amin bin
Wan Hamat
JI
2003
4 April 2009
6 years
5
Pakana Selama
(Indonesian)
Darul Islam
2006
4 April 2009
3 years
6
Mohd Arasad
Patangari
Darul Islam
2006
4 April 2009
3 years
7
Idris Lanama
Darul Islam
2006
4 April 2009
3 years
8
Idris Bin Lanama
Darul Islam
2006
4 April 2009
3 years
9
Binsali Omar
(Filipino)
Darul Islam
2006
4 April 2009
3 years
10
Mohd Nasri Bin
Dollah
Darul Islam
2006
4 April 2009
3 years
11
Francis Indanan
Darul Islam
2006
4 April 2009
3 years
12
Amir Hussain
Forgery of
documents
2007
4 April 2009
1 year
13
Sundaraj Vijay
(Indian)
Forgery of
documents
2007
4 April 2009
1 year
14
San Khaing
(Burmese)
Forgery of
documents
2007
4 April 2009
1 year
R. Kenghadharan
HINDRAF
13 Dec 2007
4 April 2009
1 year and 5 months
Ganabathi Rao
HINDRAF
13 Dec 2007
4 April 2009
1 year and 5 months
15
16
7/15/10 11:57 AM
5
Pakana Selama
(Indonesian)
Darul Islam
2006
4 April 2009
3 years
6
Mohd Arasad
Patangari
Darul Islam
2006
4 April 2009
3 years
7
Idris Lanama
Darul Islam
2006
4 April 2009
3 years
8
Idris Bin Lanama
Darul Islam
2006
4 April 2009
3 years
9
Binsali Omar
(Filipino)
Darul Islam
2006
10
Mohd Nasri Bin
Dollah
Darul Islam
2006
4 April 2009
3 years
11
Francis Indanan
Darul Islam
2006
4 April 2009
3 years
12
Amir Hussain
Forgery of
documents
2007
4 April 2009
1 year
13
Sundaraj Vijay
(Indian)
Forgery of
documents
2007
4 April 2009
1 year
14
San Khaing
(Burmese)
Forgery of
documents
2007
4 April 2009
1 year
15
R. Kenghadharan
HINDRAF
13 Dec 2007
4 April 2009
1 year and 5 months
16
Ganabathi Rao
HINDRAF
13 Dec 2007
4 April 2009
1 year and 5 months
17
P. Uthayakumar
HINDRAF
13 Dec 2007
4 April 2009
1 year and 5 months
18
M. Manoharan
HINDRAF
13 Dec2007
4 April 2009
1 year and 5 months
19
T. Vasanthakumar
HINDRAF
13 Dec 2007
4 April 2009
1 year and 5 months
20
Zainun Rashid
(Indonesian)
JI
Dec 2002
7 May 2009
6 years and 5 months
21
Sufian Salih
(Filipino)
JI
2004
7 May 2009
5 years
22
Hashim Talib
JI
2004
7 May 2009
5 years
23
Adzmi Pindalun
Darul Islam
2006
7 May 2009
3 years
24
Abdul Ghafar
Shahril (Indonesian)
Darul Islam
2006
7 May 2009
3 years
25
Jeknal Adil (Filipino)
Darul Islam
2006
7 May 2009
3 years
26
Husin Alih (Filipino)
Darul Islam
2006
7 May 2009
3 years
27
Yusoff Mohd Salam
(Filipino)
Darul Islam
2006
7 May 2009
3 years
28
Abdul Jamal Azahari
(Filipino)
Darul Islam
2006
7 May 2009
3 years
29
Zulkifli Marzuki
JI
2007
7 May 2009
2 years
30
Mahfudl Saifuddin
(Indonesian)
JI
2005
5 May 2009
4 years
31
Mulyadi (Indonesian)
JI
2005
5 May 2009
4 years
32
Agus Salim
(Indonesian)
JI
1 March 2009
30 April 2009
60 days
33
Zulkifli Abu Bakar
Foreign agent
2007
N/A
N/A
34
Tan Choon Chin
Forgery of
documents
2007
N/A
N/A
35
Abdullah Daud
JI
2002
15 Sept 2009
7 ½ years
36
Mat Sah Satray
JI
18 April 2002
15 Sept 2009
7 ½ years
37
Mohd Amir
Mohd Hanafiah
JI
2007
15 Sept 2009
2 ½ years
38
Mohd Kamil
Mohd Hanafiah
JI
2007
15 Sept 2009
2 ½ years
39
Mohd Nasir Ismail
@ Hassan
JI
2007
15 Sept 2009
2 ½ years
Forgery of
documents
14 May 2008
15 Sept 2009
1 year and 4 months
40
Abdul Sathar
Mohammad Sarjoon
SUARAM_HRR2009.indb (Sri
29 Lankan)
4 April 2009
3 years
Detention
Without Trial and
Restriction of Movement
29
7/15/10 11:57 AM
31
Mulyadi (Indonesian)
JI
2005
5 May 2009
4 years
32
Agus Salim
(Indonesian)
JI
1 March 2009
30 April 2009
60 days
33
Zulkifli Abu Bakar
Foreign agent
2007
N/A
N/A
34
Tan Choon Chin
Forgery of
documents
2007
N/A
N/A
35
Abdullah Daud
JI
2002
15 Sept 2009
7 ½ years
36
Mat Sah Satray
JI
18 April 2002
15 Sept 2009
7 ½ years
37
Mohd Amir
Mohd Hanafiah
JI
2007
15 Sept 2009
2 ½ years
38
Mohd Kamil
Mohd Hanafiah
JI
2007
15 Sept 2009
2 ½ years
39
Mohd Nasir Ismail
@ Hassan
JI
2007
15 Sept 2009
2 ½ years
40
Abdul Sathar
Mohammad Sarjoon
(Sri Lankan)
Forgery of
documents
14 May 2008
15 Sept 2009
1 year and 4 months
26 December 2008, for alleged involvement
in a series of gang robberies in Bintulu, before
being released in two batches on 7 January
2009 and 14 January 2009 respectively.
While the all of them were released, Bunya
Ak Sengoh, Marai Ak Sengoh and Melati Ak
Bekeni were re-arrested under the eo on 15
January 2009.
While the police alleged that the three
were detained in connection with a series
of gang robberies, no evidence has been
produced of their involvement. Furthermore,
an Iban village chief Tuai Rumah Sengoh,
who is also the father of Bunya Ak Sengoh
and Marai Ak Sengoh, claimed that none of
them had been involved in the alleged crimes,
and suspected that the arrests and subsequent
detentions of his family members were a
result of the many reports he had made to the
police regarding the encroachment into their
ncr land by a plantation company.26
On 15 March 2009, at the end of the
initial 60-day detention, Melati Ak Bekeni
was released by the police, but the two others,
Bunya Ak Sengoh and Marai Ak Sengoh were
sent to the Simpang Renggam Detention
Centre in Johor for two-year detentions under
eo. As of 31 December 2009, the two were
still detained without trial.
According to a parliamentary written
reply by the Home Ministry during the Third
Meeting, Second Session of the Twelfth
Parliament
(October-December
2009),
there were 759 persons detained under the
eo without trial in the Simpang Renggam
Detention Centre.27 On 23 February 2010,
this number increased to 819, according to
a news report published in the New Straits
Times.28
In a separate parliamentary written reply,
the Home Ministry revealed the numbers
of those arrested and detained without trial
under the eo, in the period between 2000 and
2009, as follows:29
Table 1.4 EO Arrests,
2000-September 2009
Year
Number of persons
arrested
2000
147
2001
311
2002
221
2003
226
2004
279
2005
327
2006
543
2007
498
2008
601
2009
548
(as of September)
Total
3,701
(Source:
(Source:Home
HomeMinistry,
Ministry,Malaysia)
Malaysia)
30
7/15/10 11:57 AM
In the same parliamentary reply, the
Home Ministry revealed the number of
minors arrested and detained without trial
under the eo, in the period between 2000 and
September 2009, as follows:30
Table 1.5 Arrests of Minors under the EO, 2000-September 2009
Year
Number of minors arrested
2000
2
2001
5
2002
7
2003
15
2004
12
2005
13
2006
9
2007
12
2008
22
2009 (as of September)
36
Total
133
(Source: Ministry,
Home Ministry,
Malaysia)
(Source: Home
Malaysia)
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 to 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 as
31
7/15/10 11:57 AM
no such updated official statistics have been
made publicly available by the government in
2009.
Statistics of Detentions without Trial
under the DDA
On 6 May 2008, in response to a question in
the Parliament, then-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.34 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.35
According to a parliamentary reply by
the Home Ministry during the Third Meeting,
Second Session of the Twelfth Parliament
(October-December 2009), there were 363
persons detained under the dda without trial
in the Simpang Renggam Detention Centre.36
On 23 February 2010, this number increased
to 412, according to a news report published
in the New Straits Times.37
Restricted Residence Act and
Deportations after Release
While the three preventive laws provide the
Home Minister with arbitrary powers to
detain and arrest individuals, the Restricted
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.
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 Restricted
Residence Act (rra). For example, Mat Sah
Satray, who was released on 15 September
2009, is required to report to the police on
every Monday and prohibited from leaving
his residential area of Ampang and being
outdoors from 9pm to 6am daily. He is also
barred from speaking at public events and
taking part in activities of political parties
and trade unions. Besides Mat Sah, 21 other
individuals were given similar restrictions
upon their release in 2009.
isa detainees who are foreign nationals
often face deportation to their home
countries, even when the detainee’s family
resides in Malaysia. All 16 foreign nationals
were deported upon their release from isa
detention in 2009.
Other Forms of Restriction to
Freedom of Movement
Violations of freedom of movement continue
to occur through the abuse of autonomous
powers of the East Malaysian state of Sarawak
over immigration controls. This autonomy is
derived from an agreement signed during the
formation of Malaysia in 1963. Thus, the
East Malaysian states of Sabah and Sarawak
have different immigration laws from those
used in Peninsula Malaysia which provide the
two state governments exclusive controls over
who can enter the two states respectively.
32
7/15/10 11:57 AM
In recent years, the Sarawak state’s
autonomy over immigration controls has
been abused by the Sarawak state government
in order to stifle dissent in the state. There are
many instances of individuals, mainly human
rights defenders, from Peninsular Malaysia
being barred from entering Sarawak by the
state authority pursuant to the exercise of
autonomous state immigration controls.38
On 14 February 2009, federal opposition
People’s Justice Party (Parti Keadilan Rakyat, pkr)
Member of Parliament Sivarasa Rasiah was
prevented from entering the East Malaysian
state of Sarawak. He was informed that he
had been blacklisted by the state government
and was served with an official notice stating
that he was not entitled to enter the state
without a permit under Section 66(1) of the
Immigration Act. His blacklist followed a
similar ban on another PKR Member of
Parliament, N. Gobalakrishnan, who was
denied entry into the state on similar grounds
in December 2008.
Despite guarantees in Article 9(1) of
the Federal Constitution that no citizen may
be banished or excluded from the country,39
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 1989.40 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’s lawyers filed an
appeal, contending that proof of citizenship
was not required for the applicant to exercise
his right to enter Malaysia, as it could also be
proved by calling his brother or teacher to
testify. On 20 June 2008, the Court of Appeal
upheld the High Court ruling.
Subsequently in 2009, Chin Peng
appealed against the Court of Appeal’s
decision in the Federal Court, and on 30
April 2009, Justices S. Augustine Paul,
Hashim Yusof and Ghazali Mohd Yusof of
the Federal Court dismissed Ching Peng’s
motion for leave to appeal, thus forcing him
to continue to live in exile in Thailand.
Another Malaysian citizen restricted
from returning to Malaysia is hindraf leader
leader Waythamoorthy who has claimed that
his passport was revoked by the Malaysian
government in April 2008. 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 returns 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.41 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.42
Conclusion
As a result of the growing calls to repeal the
which culminated in the biggest antiisa rally to date, the government had no
choice but to announce that the isa would
be amended. Notwithstanding the release
of 40 detainees and the highly publicised
commitment to amend the isa in 2009, the
government has clearly indicated its position
that detention-without-trial laws would
isa,
33
7/15/10 11:57 AM
remain and would be invoked whenever the
government considers necessary. While more
isa detainees were released in 2009 compared
to previous years, the government continued
to arrest and detain individuals without trial
under the same legislation, although these
arrests were mostly kept away from public
knowledge. Indeed, the fact that there were
still more than 1,000 individuals detained
without trial at the end of 2009 underscores
the government’s continued reliance on these
laws.
Prime Minister Najib Razak’s attempts
to project an image of a reformer has been
shattered with his unambiguous defence
of the isa and claim that detention under
the isa is “a walk in the park” compared to
detention in Guantanamo Bay in the US.
Such a baseless defence of the isa has also
exposed the hypocrisy of the Malaysian
government, which has to date refused to
ratify the Convention Against Torture (cat).
Given the long history of well-documented
gross human rights violations, and the fact
that there are ample existing laws to cover
the various offences for which the detention-
without-trial laws are purportedly used to
curb, the continued existence of the isa, the
eo and the dda cannot be justified.
Table 1.6: Detainees in Kamunting as of 31 December 2009
No
Name
Allegation
Date of Arrest
JI
17 April 2002
1
Shamsuddin Sulaiman
2
Shadul Islam (Bangladeshi)
Forgery of documents
22 May 2008
3
Mahamad Nakhrakhel (Thai)
22 May 2008
4
Muhammad Zahid Haji Zahir Shah (Pakistani)
22 May 2008
5
Abdul Matin
JI
1 April 2009
6
Mas Selamat Kastari
JI
1 April 2009
7
Samsuddin Hussein
JI
25 June 2009
8
Abd Latif Omar
JI
25 June 2009
9
Sulaiman Bohari
JI
25 June 2009
34
7/15/10 11:57 AM
End notes
1
In October 2009, 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).
2
On 14 September 2009, Zaid Ibrahim, who
was then 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. Zaid eventually resigned from his
ministerial post in the cabinet on 16 September
2009.
3
4
5
However, on 20 March 2010, the Cabinet
decided that the ISA amendments will
be tabled in Parliament together with
amendments to other related laws. These
include the Prevention of Crime Act 1959,
Section 27 of the Police Act 1960, Banishment
Act 1959 (Revised 1972), Restricted Residence
Act 1933, Dangerous Drugs Act (Special
Preventive Rules) 1985 and the Emergency
Ordinance (Public Order and Crime
Prevention) 1969.
Pemberitahuan Pertanyaan Bagi Jawab Bukan
Lisan, Dewan Rakyat; Soalan nombor: 387;
Rujukan: 2251 [Reply to Parliamentary
Written Question, Dewan Rakyat; Third
Parliament
(October-December
2009)
Question number: 387; Reference: 2251].
See, for example, the most recent case of
Sanjeev Kumar, who was tortured until he was
paralysed while under isa detention from July
2007 to 9 September 2008, as documented in
suaram (2009) Malaysia Human Rights Report
2008: Civil and Political Rights, Petaling Jaya:
suaram Kommunikasi (pp. 29-30). See also, for
example, the case of Abdul Malek Hussin, as
documented in suaram (2008) Malaysia Human
Rights Report 2007: Civil and Political Rights,
Petaling Jaya: suaram Kommunikasi (pp. 1921), as well as Dr. Munawar Anees’s statutory
declaration dated 7 November 1998 which
was recently reproduced in Aliran Monthly
2010: Vol. 30, No. 2.
6
Adopted and opened for signature, ratification
and accession by United Nations General
Assembly resolution 39/46 of 10 December
1984.
7
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.”
8
Emergency (Public Order and Prevention of
Crime) Ordinance 1969 (Ordinance 5, 1969),
promulgated by the Yang di-Pertuan Agong
under Article 150(2) of the Constitution.
9
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).
10 Emergency (Public Order and Prevention of
Crime) Ordinance 1969, Section 4(1).
11 Section 6(1) Dangerous Drugs (Special
Preventive Measures) Act 1985 (Act 316).
12 SUHAKAM (2003) Review of the Internal Security
Act 1960, Kuala Lumpur: SUHAKAM (p. 86).
13 Ibid. (p. 88).
14 Ibid. (pp. 90-91).
35
7/15/10 11:57 AM
15 Malaysia (2009) “Statement by H.E. Othman
Hashim, Pemanent Representative of
Malaysia on the Adoption of Malaysia’s
Universal Periodic Review Outcome Report,
11th Session of the United Nations Human
Rights Council, 2-18 June 2009”, Geneva,
Switzerland, 12 June 2009.
16 In February 2010, however, Malaysia accepted
the invitation and the Working Group of
Arbitrary Detention conducted its visit 7-18
June 2010.
17 “Even sceptics will be pleased with ISA
changes: Hisham”, The Star, 29 October
2009,
http://thestar.com.my/news/story.
asp?file=/2009/10/29/nation/20091029194
025&sec=nation (accessed on 20 April 2010).
leader
slams
U.S.
for
23 “Malaysian
Guantánamo”, Associated Press, 3 June 2009.
24 See, for example, the most recent case of
Sanjeev Kumar who was tortured until he was
paralysed while under ISA detention from July
2007 to 9 September 2008, as documented
in SUARAM (2009) Malaysia Human Rights
Report 2008: Civil and Political Rights, Petaling
Jaya: SUARAM Kommunikasi (pp. 29-30).
See also, for example, the case of Abdul
Malek Hussin, as documented in SUARAM
(2008) Malaysia Human Rights Report 2007:
Civil and Political Rights, Petaling Jaya:
SUARAM Kommunikasi (pp. 19-21), as well
as Dr. Munawar Anees’s statutory declaration
dated 7 November 1998 which was recently
reproduced in Aliran Monthly 2010: Vol. 30,
No. 2.
18 Ibid.
19 ”Najib: ISA has protected country from
terrorism”, New Straits Times, 2 December
2008.
20 “Government will maintain Kamunting
to combat threat to security”, Bernama, 16
September 2009, http://www.bernama.com/
bernama/v5/newsgeneral.php?id=440888
(accessed on 20 April 2010).
21 Malaysia (2008) National Report Submitted
in 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).
22
Report of the Working Group on the
Universal Periodic Review, “Malaysia” –
Addendum: Views on conclusions and/or
recommendations, voluntary commitments
and replies presented by the State under
review, A/HRC/11/30/Add.1, dated 3 June
2009.
leader
slams
U.S.
for
25 “Malaysian
Guantánamo”, Associated Press, 3 June 2009.
26 Communication with Jok Jau Evong, field
officer of Sahabat Alam Malaysia, Sarawak,
19 April 2010. See also “Iban activists held
for ‘gang robbery’”, Malaysiakini, 23 January
2009, http://malaysiakini.com/news/97029
27 Pemberitahuan Pertanyaan Bagi Jawab Bukan
Parliament
(October-December
2009)
28 “Turn over a new leaf here, or never”, New
Straits Times, 23 February 2010.
Parliament
(October-December
2009)
36
7/15/10 11:57 AM
30 Ibid.
31 See for instance, Human Rights Watch (2006)
Convicted before Trial: Indefinite Detention under
Malaysia’s Emergency Ordinance, Vol. 18, No.
9(C). New York: Human Rights Watch (pp.
28-30).
32 Adopted and opened for signature, ratification
Assembly resolution 44/25 of 20 November
1989.
33 See for instance, SUARAM (2007) Malaysia
Human Rights Report 2006. Petaling Jaya:
SUARAM (pp. 21-22).
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 six
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.
41 “Hindraf leader ‘still has passport’”, The Star,
17 May 2008.
42 Waythamoorthy, Press statement, “Home
Minister lied to cover up the bungle of
Government”, dated 18 May 2008.
34 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).
35 Ibid. (p. 14)
Parliament
(October-December
2009)
37 “Turn over a new leaf here, or never”, New
Straits Times, 23 February 2010.
38 In SUARAM’s 2007 Human Rights Report,
two such cases were documented in that year,
while many others have been recorded since
1999. See SUARAM (2008) Malaysia Human
Rights Report 2007: Civil and Political Rights,
Petaling Jaya: SUARAM (pp. 110-113).
39 Article 9(1) of the Federal Constitution states,
“No citizen shall be banished or excluded from the
Federation.”
40 The Haadyai Agreement 1989 stipulated
37
7/15/10 11:57 AM
7/15/10 11:57 AM
chapter 2:
ABUSE OF POWERS BY
THE MALAYSIAN
POLICE AND OTHER
LAW ENFORCEMENT
AGENCIES
7/15/10 11:57 AM
D
continued
to occur with seven cases recorded
in 2009, according to official
government statistics.1 One death occurred in
the custody of the Malaysian Anti-Corruption
Commission (macc), while another death
was possibly caused by police negligence, in
2009. There were also 88 deaths caused by
police shooting in 2009 according to official
government statistics.2 These were justified by
the police as self-defence shootings.
During the year, there were numerous
complaints of violent police reactions to
peaceful assemblies, arbitrary detention
of protestors, and threats and harassment
against human rights defenders.
These abuses of power by the police
and other law enforcement agencies continue
to occur mainly due to the Malaysian
government’s failure to implement any
significant reform of the police force and
other law enforcement agencies. Substantive
recommendations made by governmentappointed bodies such as the Royal
Commission to Enhance the Operation and
Management of the Royal Malaysian Police
(Royal Commission on the Police) and the
Human Rights Commission of Malaysia
(suhakam), as well as international bodies such
as the United Nations Human Rights Council,
have been largely ignored by the government.
This has resulted in the continued noncompliance with international human rights
standards and various serious violations by
the police and other law enforcement bodies.
The Malaysian government also
continued to disregard international human
rights laws and standards, demonstrated by its
refusal to ratify most of the core international
human rights treaties, such as the International
Covenant on Civil and Political Rights
(iccpr) and the Convention against Torture
and Other Cruel, Inhuman and Degrading
Treatment or Punishment (cat). Thus, the
police force and other law enforcement
eaths in police custody
bodies continued to operate with a high level
of impunity while using unacceptable levels
of violence in apprehending and investigating
alleged criminals in the country. Many
individuals and groups – ranging from human
rights defenders and political parties to the
general public and criminal suspects – were
subjected to threats, harassment, arbitrary
arrests, detentions, violence and brutality by
the police.
Recommendations for Reforms and
the Government’s Response
In the period between 2005 and 2009,
numerous recommendations were made to
the Malaysian government to reform the
police force in view of its notorious reputation
of disregarding human rights standards.
These recommendations have come from
both within and outside the country, including
by government appointed bodies such as the
Royal Commission on the Police (in 2005)
and suhakam (on numerous occasions since
its existence in 2000), as well as United
Nations member states at the United Nations
Human Rights Council (during the review
of Malaysia’s human rights record in 2009).
That these concerns are voiced on numerous
occasions at different levels underscore the
urgent need for the Malaysian government
to implement genuine reforms regarding its
enforcement bodies.
In 2005, the Royal Commission on the
Police, 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,
submitted a report to the King. The report
revealed that the public was generally
dissatisfied with the police in a number of key
areas. These included police inaction or delays
in taking action on reports lodged; the level
40
7/15/10 11:57 AM
of corruption within the force; its inefficiency
and lack of accountability; 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 abuse
of power by the officers.3 With reference to
the abuse of power, the Commission raised
concerns about the long detention period and
“chain-smoking remand”4 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
On numerous occasions in the same
period suhakam had furthermore expressed
its concerns over the lack of compliance
by the police and other law enforcement
agencies with international human rights
standards. For instance, in each of its annual
reports, concerns over the abuse of power by
the police were raised and recommendations
pertaining to these concerns were made. Since
suhakam started operating in 2000, it has held
seven public inquiries. Out of the seven public
inquiries, five have been on cases related to
abuse of power by the police. (See also Chapter
8: Human Rights Commission of Malaysia)
In February 2009, when Malaysia’s
human rights record was scrutinised by
the international community at the United
Nations Human Rights Council’s Universal
Periodic Review (upr), the government
of the Netherlands recommended that
the Malaysian government establish an
independent and impartial police commission
in accordance with the recommendations of
the Royal Commission on the Police.
In response, during the formal adoption
of the United Nations Human Rights
Council’s review of Malaysia in June 2009,
the Malaysian government said:
“The Government is in the process of establishing
an independent and impartial commission that
has been designated the Enforcement Agencies
Integrity Commission (eaic) as an alternative to
the police complaints commission proposed by the
Royal Commission.”
“The proposed eaic will have wider jurisdiction
as it is given the power to investigate complaints
of misconduct not only by the police force but
also other federal enforcement agencies.”
“Currently, the establishment of the proposed
eaic is undergoing the necessary legislative
process through Parliament.”
On 21 June 2009, Home Minister
Hishammuddin Hussein announced that
the government would revisit all 125
recommendations of the Royal Commission
on the Police to see if the recommendations
had been carried out and if they had made an
impact. However, two days later on 23 June,
the minister retracted his position by saying
that the Home Ministry would come up with
a new strategy to boost public confidence in
the police force instead of revisiting the 125
recommendations.6
In reality, all of the most important
recommendations made by the Royal
Commission on the Police with regards to
the police’s human rights compliance have
not been implemented. In 2009, the pending
recommendations yet to be implemented
were:
(i) The Independent Police Complaints
Misconduct Commission (IPCMC)
The Royal Commission on the Police had
drafted a 104-clause bill 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
41
7/15/10 11:57 AM
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.7
Instead of an ipcmc Bill, a Special
Complaints Commission (scc) Bill8 was
proposed by the government in December
2007. The proposed scc Bill was opposed
by civil society groups9 as it was seen as a
much watered-down version of the ipcmc
proposed by the Royal Commission on the
Police.10 The bill of the newly-proposed
complaints mechanism was also criticised by
the chairman of the Royal Commission on
the Police, who claimed that it was a major
departure from the recommendations made
by the Commission in 2005. Mohamed
Dzaiddin Abdullah, who headed the Royal
Commission on the Police, in response to the
scc Bill, said that the government “did not accept
the core recommendation of an independent oversight
body.”11 Because of the criticisms against the
scc Bill, the government has since shelved it.
While the scc Bill was shelved, the
government proposed another body instead
of the ipcmc as recommended by the Royal
Commission on the Police. In 2009, the
Enforcement Agencies Integrity Commission
Bill was tabled and then passed in the Lower
House of Parliament on 30 June 2009 and
later by the Upper House on 9 July 2009. The
Bill was gazetted on 3 September 2009.
The new law enables the establishment
of the Enforcement Agencies Integrity
Commission (eaic). This falls short of
the recommendation made by the Royal
Commission on the Police for the government
to set up an independent oversight mechanism
to monitor the police force. Unlike the ipcmc
which was originally proposed by the Royal
Commission on the Police, the eaic does not
have powers to prosecute and instead can
only refer its investigations to the AttorneyGeneral for prosecution. The Commission
will also cover 21 law enforcement agencies
instead of concentrating on the police, despite
the fact that most human rights violations are
committed by the police force. The wide scope
of the Commission raises concerns regarding
its effectiveness in handling complaints of
abuses of power especially by the police.
However, as of 31 December 2009, the
eaic was not yet established. It has, however,
been revealed that the Commission would
be put under the jurisdiction of the Prime
Minister’s Department when it starts its
operation.12
(ii) Detention-without-Trial Laws
Also of concern to the Royal Commission
on the Police is the existence of a range
of preventive legislations that restrict
fundamental liberties and abuse the
safeguards provided for human rights. The
Royal Commission on the Police therefore
recommended:
• Amendments to Section 73 of the Internal
Security Act 1960 to require a detained
person to be produced before a magistrate
within 24 hours; to be allowed access to
family and lawyers; and to limit the deten‑
tion period to a maximum of 30 days.
• Amendments to Section 3 of the Dangerous
Drugs (Special Preventive Measures) Act
1985 to require a detained person to be
produced before a magistrate within 24
hours and be allowed access to family and
lawyers. The Commission also recommen‑
ded 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 and which may extend up to the life
time of a person.
42
7/15/10 11:57 AM
As of 31 December 2009, none of these
recommendations had been implemented,
despite growing calls for the repeal of
preventive laws. In 2009, the government
announced intentions to amend the isa but
to date, no amendments have been tabled
in Parliament. The government has also
remained silent on other preventive detention
laws. (See Chapter 1: Detention without Trial.)
Section 27 of the Police Act would be reviewed
to “recognise the right of the public to
gather peacefully”. Notwithstanding this, the
minister also said that such public gatherings
would only be allowed if they are confined to
“suitable areas” to ensure “national security
and stability”.16
As of 31 December 2009, no amendments
to Section 27 of the Police Act had been
tabled in Parliament and throughout 2009,
public gatherings continued to be harassed by
the police because the organising groups did
not have police permits. (See Chapter 4: Freedom
of Assembly and Association.)
(iii) Section 27 of the Police Act
Another important recommendation of
the Royal Commission on the Police is the
amendment to Section 27 of the Police Act
1967, which requires a police permit to
organise gatherings. In its report, the Royal
Commission on the Police recommended, inter
alia, the repeal of Sections 27A, 27B and 27C
of the Police Act,13 which would prohibit the
police from stopping or disrupting assemblies
or gatherings in private premises. However,
at the end of 2009, these sections of the
Police Act were still in place. Several ceramah
(public gatherings involving political speeches)
throughout the year held on private premises
were disrupted by the police. The Royal
Commission on the Police’s report in 2005
also acknowledged 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 numerous reports.
In its “Report of suhakam Public Inquiry
into the Incident at klcc on 28 May 2006”,
suhakam stated that “peaceful assemblies should
be allowed without a licence”.15
In August 2009, Home Minister
(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
Commission on the Police to prevent torture
and abuse of detainees. In the Commission’s
proposal, an independent Custody Officer
should be responsible for the welfare and
custody of every detainee, in addition to
overseeing procedures for police interviews
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 action.
In February 2009, following public
outrage over the death of A. Kugan in police
custody, the federal police introduced a new
set of guidelines on arrest and interrogation
procedures. One of the most significant
changes is the requirement that a video
recording be made before and after a suspect
is questioned. Another requirement is that
every time a new team of police officers takes
over the questioning of a suspect, they are to
note the suspect’s physical condition in three
different books or files. It was reported that a
memo was issued by the top brass of the police
at the federal headquarters to all state police
• The repeal of the Emergency (Public Order
and Prevention of Crime) Ordinance 1969.
• The partial repeal the Prevention of Crime
Act 1959.
43
7/15/10 11:57 AM
chiefs who, in turn, sent copies to district police
chiefs and officers-in-charge of stations. In the
memo, a senior police officer noted that there
were weaknesses in police procedures which
made it difficult for the police to defend itself
against allegations of abuse of detainees while
in detention. However, the memo did not state
when the video cameras will be sent to state
or district police headquarters. The extent of
the implementation of this new policy in all
police stations could not be ascertained as of
the end of 2009.
The year also saw numerous instances
in which persons arrested and detained
were denied access to lawyers. Despite the
amendments to the Criminal Procedure
Code (cpc) in 2007 – which included a new
Section 28A, requiring an arresting officer to
inform a detainee of the reason for his/her
arrest and enabling the suspect to contact his/
her lawyer or family free of charge within 24
hours of arrest – many detainees have been
denied access to their lawyers. This was seen,
for example, in the arrests of 15 individuals
during a candlelight vigil in Brickfields, Kuala
Lumpur on 7 May 2009. When five lawyers
insisted on meeting those who had been
arrested, they were themselves arrested by the
police. (See also the section “Other Cases of Abuse of
Powers by the Police, 2009” in this chapter)
(v) Deaths in Police Custody
The Royal Commission on the Police
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 sudden 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 Commission, the Parliamentary
Select 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 towards
establishing a Coroner’s Court and improving
the procedures for inquests into deaths in
police custody.17 This, too, had not been
implemented as of 31 December 2009.
As a result of the failure of the government
to implement these recommendations, deaths
in custody remain rampant and in most cases,
the police have not been held accountable as
was demonstrated in the cases of death in
custody documented by suaram throughout
the year.
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.18 However, it
has to be highlighted that the government’s
statistics on deaths in prisons and in police
custody are unreliable.19
During the First Meeting, Third Session
of the Twelfth Parliament (26 April 2010 – 6
May 2010), the government disclosed seven
deaths in police custody which occurred in
2009.20 In the same Parliamentary session,
the government also revealed that there were
66 deaths in custody from 2005 to April 2010.
The government claimed that out of these 66
deaths, only one was allegedly due to excessive
force by the police.21
Earlier in June 2009, the government
disclosed that there were 13 deaths in police
custody in 2008.22
In 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 breakdown of
cases for each year in the said period.23
44
7/15/10 11:57 AM
In April 2007, the government revealed
that 108 deaths occurred under police custody
between 2000 and 2006. From that figure,
seven died in 2000, 16 in 2001, 15 in 2002, 23
in 2003, 19 in 2004, and 14 each in 2005 and
2006 respectively.24
Tables 2.1 and 2.2 below show the official
number of deaths in custody in different
periods, and according to year, respectively.
These numbers are taken directly from the
government’s official statements made in
Parliament on four different occasions in
April 2007, March 2009, June 2009 and April
2010.
As for the number of deaths of prisoners,
there were 2,587 cases between 2000 and 23
November 2009. The government claimed
Table 2.1: Deaths in Police Custody under Different Periods
Period
Number of Deaths
2005 to April 2010 (5 years)
66
2003 to 2007 (5 years)
85
2000 to 2006 (6 years)
108
1999 to 2008 (10 years)
153
Table 2.2: Deaths in Police Custody According to Year, 2000-2009
Year
Number of Deaths
2009
7
2008
13
2007
N/A*
2006
14
2005
14
2004
19
2003
23
2002
15
2001
16
2000
7
(Source:
(Source:Home
HomeMinistry,
Ministry,Malaysia)
Malaysia)
**N/A:
N/A:Official
Officialstatistics
statisticsnot
notavailable
available.
45
7/15/10 11:57 AM
that only 32 of those cases actually occurred
in prisons while the rest of the deaths
occurred in hospitals. The government
also claimed that in those 32 deaths which
occurred in prisons, 31 were suicides
while the remaining fatality was caused by
electrocution. Meanwhile, according to the
government, 60% of prisoners who died in
hospitals during this period were hiv-infected,
and the rest succumbed to diseases and health
conditions such as septicaemia, tuberculosis,
cancer, heart disease and asthma. 25
Earlier statistics of deaths in prisons have
also been made available in recent years:
• On 30 June 2009, the government disclosed
a total of 255 cases of deaths in prisons in
2008 alone.26
• On 8 July 2008, the Home Ministry’s
statistics on deaths in police custody and
prisons showed that 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.27
• 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).28 The Simpang Renggam
detention centre houses remand prisoners,
and Emergency Ordinance and Dangerous
Drugs Act detainees.
Cases of Deaths in Police Custody,
2009
According to official government statistics,
there were seven deaths in police custody in
2009.29 The cases documented by suaram
through media monitoring were:
(i)Kugan Ananthan (23 years old at
time of death)
Detained: 15 January 2009, Puchong police station
Died: 20 January 2009, Taipan police station,
Subang Jaya
Kugan was arrested in Kajang, Selangor, in
relation to several car theft cases in the Subang
Jaya district. He was held at the Puchong
police station under a two-week remand order
before being transferred to the Taipan police
station in Subang Jaya. He reportedly suffered
from an asthma attack while being taken to
the Taipan police station for questioning on
20 January 2009, and vomited and collapsed
at about 11am the same day. Following this, a
doctor from a nearby clinic was brought to the
police station and confirmed Kugan’s death.
On 23 January 2009, the police removed
11 personnel with the ranks of constables
and lance corporals from the Subang Taipan
police station in relation to Kugan’s death.
A post-mortem and a statement given
by the police right after Kugan’s death stated
that Kugan had died of fluid accumulation in
his lungs. Dissatisfied with the findings of the
post-mortem, Kugan’s family commissioned
an independent post-mortem on 25 January
2009, which concluded that Kugan had died
of kidney failure due to severe beatings and
that Kugan had sustained more than 10
severe burn wounds on his back.
In April, an independent committee
found that the cause of death was due to acute
pulmonary oedema (the swelling of the lung
tissue and/or the accumulation of fluid in the
lungs) due to acute myocarditis (inflammation
of the heart muscles), compounded by blunt
force trauma.
Due to immense public pressure, on 1
October 2009, a policeman V. Navindran
with the rank of constable was charged at the
Petaling Jaya Magistrate Court with causing
grievous hurt to Kugan while trying to coerce
confession from the latter. The accused
claimed trial.
46
7/15/10 11:57 AM
The government’s sincerity in ensuring
full accountability of the police in the death of
Kugan was questioned as Navindran was the
only policeman to be charged. The decision
to charge only one policeman was explained
by Attorney-General Abdul Gani Patail who
said that out of 92 witnesses questioned by the
police, four identified Navindran as the one
who had inflicted the injuries on Kugan on
those occasions.
To quell criticisms over the decision not
to charge Navindran with murder, Abdul
Gani said that there was no evidence that the
deceased suffered instant death and instead
died four days after he was allegedly beaten.
(ii) Gnanaprakasom Anthony
Detained: 10 June 2009
Died: 14th June 2009, Bandar Sri Damansara
police station
Gnanapragasam, a 53-year-old burglary
suspect, was arrested in Damansara Damai on
10 June 2009. The police initially claimed that
his death was related to drug addiction. A postmortem later concluded that Gnanapragasam
died because of a massive stomach infection.
Before his death, he reportedly told his wife
that he had been beaten by the police while
in detention.
(iii) Choong Soy Soy (56 years old)
Detained: Bercham police station lockup
Died: 30 June 2009, Raja Permaisuri Bainun
Hospital
According to Azisman Alias, the Officer in
Command of the Police District of Ipoh,
56-year-old drug suspect Choong Soy Soy
slipped and fell in the toilet at the Bercham
police station lockup where he was being held
on the morning of 27 June 2009. Azisman
said that the inmates heard a loud noise
and found Choong on the floor. The police
chief also claimed that the Choong was still
conscious and was able to talk when the police
found him after the alleged accident and that
he had declined to go to the hospital, insisting
that he was alright. According to the police
chief, Choong was sent to the hospital after
officers noticed that he was bleeding from the
nose. Choong subsequently fell into a coma
two days after being admitted to the Raja
Permaisuri Bainun Hospital where he died on
30 June 2009.
(iv) R. Gunasegaran (31 years old)
Detained: 16 July 2009, Sentul police station
Died: 16 July 2009, Sentul police station (7.30pm)
Mourners of A. Kugan’s death, which occurred in police custody,
gather around his body at his funeral march in January 2009.
(Photograph courtesy of Malaysiakini)
According to the police, Gunasegaran had
died from drug abuse. However, his sister, R.
Ganga Gowri, disagreed with this account in
her police report in which she alleged that he
may have died after being assaulted by police.
Her police report stated that three inmates
47
7/15/10 11:57 AM
who were detained in the same lockup with
Gunasegaran had witnessed that the deceased
was kicked in the chest, and hit with a hose and
a piece of wood, all by police. Gunasegaran
died within two to three hours of his arrest at
about 7.30pm.
Death Due To Alleged Police
Negligence
On 30 May 2009, 27-year-old Thilak
Chellapan was severely beaten by a group of
men after he was allegedly caught trying to
rob a house in Port Dickson, Negeri Sembilan.
Several hours later, Thilak was pronounced
dead at the Port Dickson Hospital. The
deceased’s sister-in-law claimed that one of
Thilak’s brothers received a text message
around 6am that day, apparently from the
group who beat him up, stating that the
deceased was first sent to the Port Dickson
police station and then to the hospital.
Following this, Thilak’s family members
rushed to the police station around 7am and
found that he was severely injured and could
barely stand. His sister-in-law further claimed
that the family had pleaded with the police
to allow them to take him to the hospital
but they were barred from doing so and had
to wait for a police van to transport Thilak
to the hospital. Thilak was reportedly only
transported to the hospital at 8.30am, more
than one hour after he was first sent to the
police station.
Thilak’s family claimed that the police’s
failure to promptly provide the deceased with
medical attention despite his serious injuries
amounts to negligence on the part of the
police, which could have possibly caused his
death.
Cases of Deaths in Prisons
The official number of deaths in prisons in
2009 has not been disclosed by the government.
However, suaram has documented several
cases which were reported by the media. Many
other cases could have possibly occurred but
were unreported. The following cases were
documented by suaram in 2009:
(i) Name unknown (18 years old)
Detained: Unknown
Died: 17 July 2009, Bandar Hilir Prison, Melaka
According to the national news agency
Bernama, the juvenile was found dead in his
cell at about 8.50pm on 17 July 2009. The
news agency also quoted the Melaka cid chief
acp Salehhudin Abd Rahman as saying that
the police’s initial investigation found no foul
play and that “the case has been classified as
sudden death”.
(ii) J. Saravanan
Detained: Arrested by the police on 17 October 2009;
Charged with murder of his mother on 11 November
2009
Died: 15 November 2009, Air Molek Prison, Johor
Saravanan, a murder suspect awaiting trial,
was found dead, hanging from a grill with a
pillow case and towel, in the Air Molek Prison
on 15 November 2009. While the family
suspects foul play, suhakam found that the
deceased committed suicide and that there was
no sign of foul play or negligence in his death.
suhakam commissioner Siva Subramaniam
said that this conclusion was made based on
a probe done by suhakam, which involved
interviews with prison personnel on duty at
that time.
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7/15/10 11:57 AM
Inquests into Cases of Deaths in
Police Custody
Inquests into deaths in police custody
generally take a long time to resolve with
many long overdue cases still pending in the
courts.
In 2005, the Royal Commission on the
Police report noted the deaths of 80 persons
while in police custody between 2000 and
2004. However, only six inquests have been
carried out at the time of the publication of
the Royal Commission on the Police report.30
In April 2006, the then-Chief Judge of
Malaya, Siti Norma Yaakob, questioned the
decision by deputy public prosecutors and
magistrates not to have inquests for 22 deaths
whilst in police custody between 2000 and
2004 when the law made it mandatory in such
cases. She said this after quoting the Royal
Commission’s findings. She also highlighted
that in 39 out of 80 cases, although the
Sudden Death Report (sdr) was prepared and
submitted to the magistrate in April 2004,
inquests had not yet been initiated.31
In a parliamentary written reply from
the Internal Security Ministry (now known
as the Home Ministry) on 23 April 2007 to a
question on the number of inquests held over
the cases of deaths in custody from 2000 to
2006, the exact number of inquests was not
stated. The reply merely stated that all deaths
in custody are investigated.32
The claim that inquests are conducted
on all deaths in custody was reiterated by
Home Minister Hishammuddin Hussein in
a parliamentary written reply in 2010. Even
if this claim is true, many cases of death in
custody – some dating back to 2003 – remain
unresolved to date.
An illustration of the slow progress
of inquests can be seen in the case of
Ulaganathan Muniandy who died in police
custody in 2003. Ulagantahan (19 years old
at the time of his death), was held in the
Kajang police station, initially under Section
302 of the Penal Code and later under the
Emergency Ordinance, from 12 May 2003
until his death on 21 July 2003. The cause
of Ulaganathan’s death was classified as
“undetermined” by medical authorities at the
Kajang Hospital.33 According to his mother,
on her three visits to see him in the month
of May 2003, she found several bruises on
Ulaganathan’s body, including swollen eyes,
bruises in the region of the eyes and swellings
on the legs. He was also said to have lost a
lot of weight. The last time he was visited by
his mother, on 11 July 2003, Ulaganathan
was unable to sit while eating, and his eyes
were still swollen. In March 2006, suaram
was informed that an inquest was to be held
into this case of death in custody. However,
since then, neither the family members of the
deceased nor suaram were notified of further
developments on the case. Finally, in October
2007, it was discovered that the inquest
into Ulaganathan’s death had already been
postponed six times.
As of 31 December 2009, more than six
years after his death and after being postponed
13 times since its commencement, 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:
1. Inquests into cases of deaths in custody
are extremely slow. Ulaganathan’s case is
but one of many which have been post‑
poned for several years.
2. In many cases, family members are not
notified of the commencement and post‑
ponement of inquests. Thus, many other
cases may have had inquests conducted
without the knowledge of the family
members concerned.
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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 required
for the performance of their duty.”34 (Emphasis
added) Whereas Principle 9 of the United
Nations Basic Principles on the Use of Force
and Firearms by Law Enforcement Officials
states:
Deaths Caused by Police Shootings,
2009
In 2009, there were at least 88 deaths caused
by police shootings, according to official
government statistics. The government also
“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.” 35 (Emphasis added)
However, the Malaysian police have
tended to be “trigger-happy”36 with minimal
regard to these international standards.
On 30 October 2009, 29-year-old
Norizan Salleh was shot five times by police
while she was travelling in a car. The police
shot at the car from behind, and the bullets
penetrated the body of the car and hit Norizan
who was seated at the back seat. After being
shot, Norizan was then kicked and stepped
on by the police personnel despite bleeding
profusely from her wound. As a result,
Norizan was seriously injured, with a bullet
lodged close to her heart which had to be
removed by surgery. On 16 November 2009,
Norizan lodged a police report accusing the
police of attempted murder, but no action has
been taken against the police officers involved
as of 31 December 2009.
Norizan Salleh, who was repeatedly shot and subsequently beaten
by the police, presents her Memorandum of Protest in February
2010. (Photograph courtesy of Malaysiakini)
disclosed 82 deaths caused by police shootings
in 2008 and 13 in 2007, giving a total of
183 deaths caused by police shootings in the
period between 2007 and 2009.37 The cases
documented by suaram in 2009 were:
• On 3 February 2009, the police shot dead
three out of four members of a robbery
and burglary gang and wounded another
in Sungai Merah, Bandar Baru Bangi. The
four men, believed to be Indonesians, were
reported to have tried to attack the police
officers with machetes when the car they were
in was stopped by a police patrol car. The
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police claimed that they were forced to open
fire.38
• On 8 February 2009, four members of a
suspected armed robbery gang were shot to
death by the police at Dengkil, Selangor. It
was reported that the police from the Selangor
Serious Crime Division spotted their car and
despite the order to stop, the suspects rammed
into the police vehicles. The four suspects then
reportedly got out of the car and charged at
the police officers with machetes. According
to the police, this forced the police to open
fire, killing all four suspects on the spot.39
• On 13 February 2009, three Indonesians
who were suspected to be involved in 11
robbery cases in the state of Terengganu
were shot dead by the police. Terengganu
Police Chief for criminal affairs Mohd Fauzi
Abduri claimed that five suspects tried to flee
in a car when the police raided their hideout.
The police claimed that one of them was shot
dead when he tried to attack the police with a
machete. Four others fled but were later found
and shot at, resulting in the death of two
while the remaining two sustained injuries but
managed to escape.40
• On 17 February 2009, two persons
suspected to be involved in a luxury car
theft gang – Rizlan Ahmad @ Jack and
Mohd Fadzil – were shot dead by the police
in a shootout. It was reported that the two
suspects opened fire at the police when they
were stopped while driving in a stolen car,
prompting the police to return fire and killing
both of the suspects.41
• On 7 March 2009, five suspected
Vietnamese robbers were shot dead by the
police after a car chase on the ButterworthKulim Expressway. It was reported that a
police patrol car had earlier flagged the car
down but it sped off before the police could
perform a search. A car chase then ensued
during which the suspects allegedly fired a
shot at the police. The police fired back and
subsequently killed all five in the car in an
ensuing shootout.42
• On 5 March 2009, four men – two
Malaysians and two Indonesians – were shot
dead by the police in Kuala Krai during a
shootout with the police. They were believed
to be involved in a series of armed robberies
in the state of Kelantan since 2005.43
• On 10 May 2009, five suspected armed
robbers were shot dead at their hideout in
Sungai Buloh, Selangor. The police claimed
that the suspects charged at them with
machetes during a police ambush at which the
suspects were asked to surrender. The police
further claimed that one of them had a gun
and a shot was fired at the police. The police
also claimed that the group was responsible
for about 20 burglaries and robberies in the
state of Selangor and in Sitiawan, Perak.44
• On 14 May 2009, a burglary suspect was
shot dead during a scuffle with the police.
Mohd Nur Syadiqin Sharudin, 20, who was
reportedly accompanied by three others,
was spotted “behaving suspiciously” in their
car. Upon approach by the police, the four
sped off and crashed into several cars before
coming to a stop. At that point, two men got
out of the vehicle and fled while another was
nabbed by the police. The fourth suspect,
Mohd Nur Syadiqin, allegedly tried to snatch
a pistol from the policeman who was going
to handcuff him. In the scuffle, the pistol
reportedly went off, killing the youth on the
spot.45
• On 19 May 2009, two wanted suspects
were gunned down by the police after a
high-speed car chase and a shootout near
Damansara Kim, Kuala Lumpur. It was
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reported that a Myanmar national who was
kidnapped by the two suspects earlier was
saved. Following a tip-off, the police found
the car of the two suspects and gave chase
for more than 1.5 kilometres, before the
suspects allegedly rammed into the police car.
One suspect, it was reported, identified as S.
Sivanesan, got out from the car and charged
at the police with a machete, prompting the
police to shoot him dead. The other suspect
attempted to escape with the car but was
intercepted by the police. The trapped suspect
then allegedly fired at the police and was killed
in the ensuing shootout.46
• On 22 May 2009, the police shot dead
two men in Johor believed to be involved in
a shooting spree in the same state earlier on
30 March 2009. Johor police chief Mohd
Mokhtar Mohd Shariff claimed that one of
the two men pulled out a revolver when asked
to stop by the police, who were acting on a
tip-off, thus forcing the police to open fire at
the suspects.47
• On 23 May 2009, a robber, who was
reportedly armed with a shotgun, an
ammunition belt and a machete and was
holding a family of five hostage for more than
13 hours, was shot dead by the police while he
was trying to escape.48
• On 26 May 2009, the police fired three
shots at a man who allegedly ran amok
when his car collided with another vehicle
in a highway in the state of Kelantan. It was
reported that the man, Mohd Jafri Ibrahim,
33, threatened the driver of the other vehicle
with a sickle and attacked police personnel
when a police patrol car arrived at the
scene of the accident, prompting the police
to fire three shots at him. Mohd Jafri then
stopped a passing car and fled the scene. He
then reportedly had another accident about
2 kilometres from the initial scene and was
killed in the crash.49
• On 8 August 2009, two persons suspected
to be involved in a series of armed robberies
and car thefts – Chen Kien Foo, 28, and
Jackson Liong Chan Fei, 24, were killed by the
police in a shootout in Cheras, Kuala Lumpur.
Kuala Lumpur deputy police Chief Abdul
Samah Mat said the two were suspected of
robbing a goldsmith in Cheras on that day.
Following the robbery, the police spotted their
car and upon seeing the police approaching,
one of the two fired a shot at the police. A
shootout then reportedly ensued, resulting in
both suspects killed.50
• On 11 August 2009, four Indonesian
nationals, who were suspects in a series of
robbery and rape cases, were shot dead by the
police when they reportedly charged at the
police with machetes and sickles following a
car chase in Rawang, Selangor.51
• On 20 August 2009, two Indonesian
nationals, who allegedly broke into a luxury
bungalow armed with a machete, were shot
dead by the police in Shah Alam, Selangor.
It was reported that the police had received
a tip-off that the robbers had been spotted
after the robbery. The police claimed that
they tried to stop the robbers but were instead
attacked by the two robbers with a machete,
forcing the police to fire in self-defence. The
two, later identified as Roy and Andre, were
killed on the spot.52
• On 13 October 2009, the police shot
dead a Thai woman who was purportedly
involved in a gang suspected of involvement
in armed robbery, murder, drug and arms
trafficking, and kidnapping. The woman, it
was reported, was shot dead after she opened
fire at the police when cornered in a car chase
in Penang.53
• On 8 November 2009, the police shot
dead five men, alleged to be members of a
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gang behind at least 10 armed robberies
and assault cases in the state of Selangor.
The incident took place in Klang, Selangor,
after a high-speed car chase during which
the suspects purportedly tried to force the
police car off the road while firing shots at the
police.54
• On 13 November 2009, the police gunned
down a 37-year-old suspected leader of the
“Deva Gang” – a robbery gang reportedly
responsible for many robberies in several states
in Malaysia – after a high speed car chase on
a highway in the state of Penang. According
to Penang state police chief Ayub Yaakob,
the police, acting on a tip-off, had trailed the
suspect until the latter suddenly opened fire
at the police, forcing them to intercept the
suspect’s car and return fire. The state police
chief also said that there was an exchange of
about 12 shots between the police and the
suspect, resulting in the death of the latter.55
• On 14 November 2009, the police shot
dead a man who ran amok with a dagger at
Guar Sanji in the northern state of Perlis. Perlis
acting police chief Jamshah Mustapa said
that the man, identified as Mohamad Taufik
Norizan, 21, attacked a police constable who
tried to calm him down. The police chief said
that Mohamad Taufik was shot at close range
after he ignored a warning shot.56
• On 20 November 2009, Herri Berong, a
leader of a suspected robbery gang, was shot
dead in a shootout with the police in Shah
Alam. Selangor cid chief Hasnan Hassan was
reported as saying that the suspect, who was
high on the police’s wanted list, was spotted
by the police. He also said that the police
believed that the suspect trailed his targeted
victim to his home in Shah Alam, Selangor
and had planned to rob the victim. However,
no details were reported as to how the
shootout happened.57
In many of the cases, the circumstances
of police shootings indicate that the police
did not try to apprehend suspects but instead
followed a ‘shoot to kill’ policy. 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 revealed that a large
number of the suspects shot dead by the police
were merely armed with machetes 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:58
a. Exercise restraint in such use and act in
proportion to the seriousness of the
offence and the legitimate objective to be
achieved.
b. Minimise damage and injury, and respect
and preserve human life.
Furthermore, in many cases, the police
did not seem to give sufficient warning before
firing shots at criminal suspects. This practice
goes against the international standards on the
use of firearms by law enforcement officers,
as outlined in the United Nations Code of
Conduct for Law Enforcement Officials:
“In circumstances provided under principle 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 […].”59
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Torture and Other Forms of Cruel,
Inhuman and Degrading Treatment
Malaysia’s non-compliance with international
human rights standards, demonstrated by
its refusal to ratify the Convention against
Torture and Other Forms of 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.
In many of these cases, the police officers
involved are often not held accountable.
In December 2009, 28-year-old S. Isai
Kumar was tortured in police custody when
he was arrested and held by the police from
6 December to 14 December 2009.60 Isai
Kumar was arrested after a female relative
lodged a police report against him. He was
not informed by the police of the grounds
of his arrest. Arrested at Pekan Nilai, Negeri
Sembilan on the morning of 6 December,
Isai Kumar was brought to the Seremban
police station where he claimed to have
been kicked and beaten up by six police
officers until 4pm that day. He was forced to
confess to committing robbery and criminal
intimidation. He also alleged that the police
had forced him to strip naked and to have
photographs of him taken in the nude.
On the following day, Isai Kumar was
brought to the Magistrate Court where the
police obtained a three-day remand order to
detain him further. When he was sent back to
the police lockup, the police told Isai Kumar
that the police report lodged against him was
false.
Nevertheless, the police once again
obtained another remand order – this time
allowing the police to detain him for another
six days – when the previous remand order
expired on 10 December.
He claimed that the police threatened
him so he would not speak to the magistrate
when the police were obtaining the new
remand order. In the following days, Isai
Kumar was again tortured – including being
forced to kneel and beaten with filled pvc and
rubber pipes. He was kicked on his chest,
slapped on his face and had his hair pulled.
In one instance, a female police officer sat on
his chest and forced a boot into his mouth.
The female police officer was also alleged to
have sexually harassed Isai Kumar, saying
that she was more attractive than his female
relative who had lodged the report against
him and attempted to take off her clothes and
headscarf.
When he was brought back to his lockup
cell, Isai Kumar was in pain and developed a
fever. His requests for medicine were denied
by the police. He was also given very little food
during the entire length of his detention. Isai
Kumar claimed that he was put in a cell with
seven detainees but the police only provided
three packets of food.
He was released on 16 December 2009
and on the following day, Isai Kumar and
his lawyer went to the Negeri Sembilan
police headquarters in Seremban to lodge a
complaint with the Negeri Sembilan police
chief. They were initially not allowed to do
so and were denied entry into the building.
Isai Kumar subsequently managed to lodge a
police report there and then later submitted
a memorandum to the federal police
headquarters.
Policemen Charged in 2008 Torture
Case
On 15 January 2009, seven policemen were
charged under the Penal Code at the Kuala
Lumpur Sessions Court today for scalding
27-year-old B. Prabakar and 18-year-old
C. Solomon with hot water when they were
detained at the Brickfields police station
in December 2008. The seven policemen
pleaded not guilty to the charges of “collectively
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committing an act of criminal intimidation” and
“voluntarily causing hurt to extort a confession”
under Sections 506 and 304 of the Penal
Code, respectively.
Prabakar and Solomon were arrested by
the police on 23 December 2008, and were
interrogated at the Brickfields police station.
During the interrogation, Prabakar alleged
that he was beaten, kicked and stepped on by
at least 10 police personnel. He also claimed
that he was beaten up and had boiling water
splashed on him when he failed to identify
some people in photographs which were
shown to him by the police. During his
detention, the police had hung a long piece
of cloth from the interrogation room ceiling,
tied it around his neck while he stood on a
chair, and threatened to knock away the
chair. When Prabakar appeared before the
magistrate on 28 December 2008, he was
warned by the police not to show his injuries
to the magistrate and was threatened with
“severe action” if he did so. He was released
on police bail on 28 December 2008.
Prabakar then submitted a memorandum
to the federal police headquarters on 31
December 2008, and on 2 January 2009, he
had his statement recorded by the federal
police. Despite identifying nine police officers
involved in subjecting him to torture, only
seven were subsequently charged. The
prosecution of the seven policemen was still
pending at the end of 2009.
Video of Alleged Police Violence
during Interrogation
In June 2009, Malaysia Today, a popular
political website, posted a link to a YouTube
video titled, “Modern interrogation methods of the
Malaysian police”. Malaysia Today claimed that
the video was a depiction of “how the Malaysian
police gets you to confess to crimes, even if you never
committed them” and that the “‘interrogation’ does
not stop” even when a confession is made.61
Responding to this allegation, however,
Inspector-General of Police Musa Hassan
B. Prabakar, at a suhakam hearing in January, displays his burn marks from being splashed with boiling water by police. (Photograph
courtesy of Malaysiakini)
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immediately denied that those in the video
were policemen. The police chief further
criticised Malaysia Today editor Raja Petra
Kamaruddin who has been in exile and facing
sedition charges, saying, “[Raja Petra] should be
more responsible in his postings next time. He should
take a good look at himself before accusing [the police].
[…] He’s not the right person to denigrate us when he
is on the run from the police.”62
Police Crackdown on Peaceful
Assemblies and Human Rights
Defenders
Police intolerance towards peaceful assemblies
was demonstrated by the arrests of almost a
thousand individuals who had participated
in peaceful assemblies in 2009. There were
also accounts of police violence when making
arrests and dispersing the crowds. The year
also saw, on at least two occasions, minors
being arrested and detained by the police for
attending assemblies. (See Chapter 4: Freedom of
Assembly and Association for a more comprehensive
list of arrests and crackdown on public assemblies)
(i) Protest against the Israeli Bombing
of Gaza
On 10 January 2009, 21 persons including
three elected representatives and three
suaram coordinators – Tah Moon Hui,
Enalini Elumalai and Wong Chai Yi – were
arrested for organising and participating in a
vigil held in Kuala Lumpur to protest against
the Israeli bombing of Gaza. One of the 21
persons arrested was a 13-year-old minor.
(ii) Arrests Related to Protests against
the BN’s takeover of Perak
On 5 May 2009, Wong Chin Huat, an
academic and an activist of the Coalition for
Clean and Fair Election, was arrested under
the Sedition Act. His arrest was believed to
be in connection with a press conference held
on the morning of his arrest, during which
he had urged all Malaysians to wear black in
protest against the BN’s takeover of the Perak
state government from Pakatan Rakyat, a move
seen by many as unconstitutional. Scores of
others were arrested in relation to similar
protests in the following weeks.
On 6 May 2009, 14 people, including
suaram staff John Liu and Temme Lee,
were arrested in Kuala Lumpur for holding
a candlelight vigil demanding the release
of Wong Chin Huat who had been earlier
arrested under the Sedition Act.
On the following day, another 20
individuals were arrested for holding another
candlelight vigil for Wong Chin Huat who was
still being detained. The 20 arrested included
five lawyers who were on duty to provide legal
assistance to those arrested. The five lawyers
were Puspawati Rosman (who is also a suaram
secretariat member), Fadiah Nadwa Fikri,
Murnie Hidayah Anuar, Ravinder Singh
Dhalliwal and Syuhaini Safwanwere
In the Perak state capital of Ipoh, the
police obtained a court injunction on 6 May
which prohibited the public from being within
500 metres of the Perak State Secretariat
building while the controversial state assembly
was in session. The injunction empowered the
police to arrest on sight any member of the
public seen within the vicinity of the building
where the state assembly sitting was scheduled
to take place. The police also warned the
public not to wear black – a symbol of
popular protest against the BN’s takeover of
the state government of Perak – or to gather
at the state assembly sitting on 7 May 2009.
On 7 May 2009, during the state
assembly sitting in Ipoh, then-Perak State
Assembly Speaker, Sivakumar, from Pakatan
Rakyat was forcibly dragged out from the state
assembly hall by several uniformed police
personnel. The police’s actions in forcibly
56
7/15/10 11:57 AM
These five lawyers were arrested in May after trying to meet with protestors who had been detained. From left to right: Murnie
Hidayah Anuar, Fadiah Nadwa Fikri, Ravinder Singh Dhalliwal, Syuhaini Safwan, and Puspawati Rosman. (Photograph courtesy of
Malaysiakini)
dragging out Sivakumar appeared to be in
collusion with the BN’s attempt to remove
him as the speaker of the assembly, thus
putting the police’s political impartiality in
doubt. Outside the state assembly building,
a total of 69 individuals were arrested for
protesting against the BN’s takeover of the
Perak state government and thus breaching
the court order obtained by the police on
the previous day. Those arrested included 10
elected representatives. In Kuching, Sarawak,
another 10 individuals were arrested at
a similar gathering to protest against the
usurpation of state power in Perak.
In Penang, suaram branch secretariat
member Ng Eng Kiat was arrested during a
candlelight vigil attended by some 100 people
on 8 May 2009 to show support for Wong
Chin Huat who had been arrested under the
Sedition Act.
On 21 May 2009, another 16 individuals,
including Selangor state representative for
Teratai, Janice Lee, were arrested in Kuala
Lumpur for holding another candlelight vigil
outside Lee’s service centre. The organisers
had made an application for a police permit
for the gathering but their application was
rejected by the police. About 40 police
personnel, along with members of the light
strike force unit, were deployed to the area.
The 16 were remanded for two days and were
released on police bail upon the expiration of
their remand order.
On 25 May 2009, 19 individuals were
arrested by the police in Ipoh for holding a
hunger strike to protest the political takeover
in Perak.
57
7/15/10 11:57 AM
(iii) Arrests for Allegedly Trespassing
onto University Grounds
On 12 June 2009, two members of the
Malaysian Youth and Students Democratic
Movement (dema), Ong Jing Cheng and Yap
Heng Lung (currently suaram coordinators),
were detained overnight by the police for
allegedly trespassing onto the Universiti
Malaya campus in Kuala Lumpur. The two
were stopped by university security officers
while visiting a friend and a memorandum
addressed to the Prime Minister titled “Making
our streets safe” was found in their possession.
The officers then contacted the police and
the two dema members were brought to the
police station to be detained under Section
447 of the Penal Code for “criminal trespass”.
On the following day, Ong and Yap were
remanded for two days. During the two-day
remand period, the two were subjected to
interrogation by the Special Branch of the
police. They were questioned about various
issues and warned not to attend the antiISA rally, which was scheduled to take place
on 1 August 2009. They were subsequently
released on 15 June 2009 without being
charged.
(iv) Arrests at the Anti-ISA Rally
During the Anti-isa Rally on 1 August 2009,
589 individuals, including 44 minors were
arrested. The police used batons, shields,
water cannons and teargas to disperse the
crowd during the rally.
Out of the 589 individuals arrested,
a total of 32 individuals were remanded
for periods of two, three and four days
respectively; 17 individuals were remanded
for two days; 2 were remanded for three days,
while the remaining 13 were remanded for a
period of four days. The 13 held by the police
staff and secretariat members lodge a police report against the police for their unlawful arrests and detention of anti-isa
demonstrators in August 2009.
suaram
58
7/15/10 11:57 AM
for a period of four days included a 16-year-old
boy. All 13 were denied legal representation.
Some of the arrested women demanded to
see lawyers but were told by a police officer
that there were no lawyers present outside
the police station. This deliberate act of
preventing access to legal representation is a
clear breach of Section 28 of the Criminal
Procedure Code (cpc) and Article 5(3) of
the Federal Constitution. The 16-year-oldboy who was remanded was also denied the
opportunity for legal representation when an
order for remand was granted while he was
asleep. He was detained overnight together
with adults at Petaling police station, which
is a violation of Section 85 of the Child Act
2001 that requires minors to be separated
from adults during police custody. Moreover,
the police did not inform his father of the
arrest immediately as required under Section
87(a) of the Act. Two other minors, a 16-year-old and
a 13-year-old, were detained overnight at
Petaling police station. They were arrested on
the afternoon of 1 August before the assembly
began. They were not remanded but were
only released on 2 August. The minors were
not given food until lawyers from the Kuala
Lumpur Legal Aid Centre brought food to the
police station for them at around 10.00pm.
Although the 13-year-old boy had a fever at
the time, his medical needs were not attended
to until the following day (2 August).
In
November,
Home
Minister
Hishammuddin Hussein revealed that 663
police officers had been deployed during the
demonstration while 442 were on standby
at various locations around Kuala Lumpur;
182 Federal Reserve Unit (fru) personnel had
been deployed to disperse the demonstrators,
while 973 teargas canisters costing RM89,000
were used by the police at the rally.63
(v) Crackdown on Land Rights
Activists in Sarawak
Throughout 2009, the police also arrested
scores of land rights activists and indigenous
leaders in relation to protests and resistance
against encroachment of ancestral lands,
especially by logging and palm oil companies
in Sarawak.
In January, three Ibans – Bunya ak
Sengoh, Marai ak Sengoh, and Melati ak
Bekeni – who were actively involved in a
struggle against the encroachment of their
Native Customary Rights (ncr) land by a
plantation company, were detained under the
Emergency (Public Order and Prevention of
Crime) Ordinance 1969 (eo) for suspected
“gang robbery”. The three were initially
arrested together with four others on 26
December 2008. While four of those arrested
were eventually released after a period under
remand, three others were re-arrested under
EO on 15 January 2009.64 (See Chapter 1:
Detention without Trial)
On Malaysia Day (16 September 2009),
15 Sarawakians – mostly from indigenous
groups – were arrested by the police while
handing over a memorandum to the Sarawak
Chief Minister in Kuching to highlight
their problems and their opposition to the
construction of the Baram and Murum
dams in Sarawak. The 15 arrested were
Mark Bujang (Executive Director of Borneo
Research Institute, brimas), Hellan Empaing
(President of Wanita Desa Sarawak, wadesa),
Dominic Ng, Johannes Ya, Rukka anak Laku,
Philan Yau, Nan Evan, Simon Saging, Ramly
anak Datuk, Abin Bira, Sui Alloh, Nang
Buleng, Panai Irang, Bujang Dalong, and
Koleh Ngo.
On 19 September 2009, 15 individuals
from the indigenous Iban community in
Sarawak’s Pantu District were arrested by
the police after being accused by a palm oil
company of attempting to harvest oil palm
fruits grown on the Ibans’ ncr land. After
59
7/15/10 11:57 AM
detaining them for about 12 hours, the police
released them all.65 On 24 October, nine
people, including an Iban indigenous leader
who had mounted a blockade against loggers
in their community’s native customary land
area, were arrested by the police.66
On 23 October 2009, Ondie Anak
Jugah, an indigenous Dayak-Iban, was
arrested and remanded for two days after
Melukun Sdn Bhd, a logging company,
lodged two police reports against him for
mounting a blockade to prevent the logging
company from encroaching on his ncr land in
Kapit, Sarawak. Nine people, including two
women, were at the blockade when Ondie was
arrested. The police arrested Ondie despite a
court decision in 2003 in favour of Ondie in
his dispute over the land with Melukun Sdn
Bhd. Ondie’s arrest on 23 October 2009 was
his second in the same month. He was also
arrested by the police earlier in the same
month for a period of seven days.67
(vi) Other Forms of Harassment and
Threats against Human Rights
Defenders
On 14 October 2009, suaram’s Johor branch
secretariat member Cheng Lee Whee was
charged under Section 182 of the Penal Code
for “false information, with intent to cause a public
servant to use his lawful power to the injury of another
person”, punishable by a maximum jail term of
six months, a fine of up to RM200, or both.
Cheng claimed trial. The charge against
Cheng was in relation to a police report that
she lodged in October 2008 against the police
for arresting 27 persons during an attempt to
stop a forced eviction operation in a village
near Johor Bahru. Shortly after lodging the
report, she was arrested under Section 28
(Dissemination of false reports) of the isa for
“spreading information that could cause fear among
the people” but was released the next day after
the police had failed to obtain a remand order
from the magistrate.
Police Connivance and Brutality in
Forced Evictions
In recent years, suaram has documented
numerous cases of police connivance and
brutality in forced eviction operations in
villages of urban settlers. Some previous
cases included Kampung Berembang and
Kampung Rimba Jaya in 2007, where
activists and villagers attempting to stop these
operations were assaulted and arrested by
the police. Many of the cases involved 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 2009, at least one such case was
seen on 3 September, when 18 persons were
arrested during a forced eviction operation in
Kampung Buah Pala, Penang. They were all
released on the same day.
Police Inaction in Allegations of
Rape of Penan Women and Children
While the police was quick to arrest
participants of public assemblies, it dragged
its feet on the alleged rape cases of Penan
women and girls in Sarawak that surfaced in
2008.
On 2 January 2009, the police invited
several ngo representatives working on these
cases to a meeting with the Inspector-General
of the Police (igp) and other senior officers at
the police headquarters in Bukit Aman, Kuala
Lumpur. At the meeting, the igp pledged that
Bukit Aman would give its fullest support to
a Police-ngo joint investigation mission. This
was followed by another meeting between the
police and Sarawakian ngos on 20 January
2009 in Kuching to discuss logistics and
terms of references for the proposed joint
investigation mission.
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Seven months later, in August 2009, the
police then announced that its investigation
mission to Sarawak would exclude ngos
because of a lack of funds. Then on 9
September 2009, the head of Sarawak’s
police criminal investigations department
announced that it had probed three of the
complaints but found “nothing with proper
evidence for [the police] to proceed in court.” He
implied that this was partly because “the [ngo]
activists did not give specific details to support their
claims”.68
taken to the macc headquarters on 15 July
2009 for questioning in relation to a probe
concerning several Pakatan assemblypersons.
Despite calls for a Royal Commission to be
set up to investigate into the death of Teoh,
the government set up a Royal Commission
to study instead the investigative procedures,
leaving the investigation of Teoh’s death to an
inquest which is headed by only a magistrate.
Abuse of Power by Other
Enforcement Agencies
Malaysian Anti-Corruption
Commission (MACC)
On 16 July 2009, Teoh Beng Hock, an aide of
a politician from the opposition Democratic
Action Party (dap), died while in the custody of
the Malaysian Anti-Corruption Commission
(macc). He had fallen from the fourteenth
floor of the macc headquarters. Teoh was
aide Teoh Beng Hock lies dead after falling from the 14th
floor window of the Malaysian Anti-Corruption Commission
headquarters during questioning.
dap
Friends and relatives seek answers in the unexplained death of
Teoh Beng Hock, a political assistant who fell 14 stories during
interrogation at the Malaysian Anti-Corruption Commission.
On 22 July, Kajang councillor Tan Boon
Hwa filed a suit claiming that the macc had
falsely imprisoned him when he was detained
for questioning during odd hours. He said
that he was questioned late into the night
together with Teoh Beng Hock on 16 July
2009. On 19 November, the Kuala Lumpur
High Court ruled that the macc is not entitled
to interrogate witnesses beyond normal office
hours.69
The anti-corruption body in Malaysia
has had a history of human rights abuses by
its officers. In 2007, suaram documented the
case of a man who died three weeks after being
brutally assaulted during an interrogation
by officers of the Anti-Corruption Agency
(aca),70 as the anti-corruption body was then
known.71
61
7/15/10 11:57 AM
Conclusion
In 2009, the grave problem of impunity and
lack of accountability of the police force
and other law enforcement agencies was
demonstrated by numerous cases of serious
abuse of power, ranging from arbitrary
arrests to deaths in custody. No substantive
efforts and commitments were made by the
government to reform and improve law
enforcement bodies’ compliance with human
rights standards.
The year saw an alarmingly high number
of 88 deaths by police shootings, while seven
persons died in police custody. While deaths
in police custody have already been a matter
of serious concern in previous years, 2009 saw
one case of death that occurred while under
the custody of the macc. Systemic noncompliance with and disregard for human
rights standards has led to gross human
rights abuses not only in the police force but
also in other law enforcement agencies. The
government’s failure to ensure accountability
in the operations of these enforcement bodies
has contributed to this dismal state of affairs.
While strong public pressure throughout
the year had prompted the government to
prosecute a few perpetrators of serious human
rights violations, these actions still fall short of
a satisfactory solution as other perpetrators
have not been held accountable thus far.
62
7/15/10 11:57 AM
End notes
1
2
3
4
Pemberitahuam Pertanyaan Bagi Jawab Bukan
Lisan, Dewan Negara, Mesyuarat Pertama,
Sesi Ketiga, Parlimen Kedua Belas, Rujukan
No: 2659] Parliamentary written reply, Dewan
Negara, First Meeting, Third Session of the
Twelfth Parliament, Reference No: 2659.
Pemberitahuan Pertanyaan Bagi Jawab
Lisan, Dewan Rakyat, Rujukan No: 2357
[Parliamentary Oral Reply, Dewan Rakyat,
Reference No: 2357]], 18 March 2010.
9
See Memorandum of
Civil Society
Organisations to the Parliament on the
Proposed Special Complaints Commission
Bill, 18 December 2007.
10 See Annex to this chapter, for a comparison
between the proposed IPCMC and the SCC
Bill.
11 “Dzaiddin: It’s not what we had in mind,” New
Straits Times, 14 December 2007.
Royal Commission to Enhance the
Malaysian 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 Malaysian
Police]. Kuala Lumpur. (pp. 37-61).
12 Parliamentary oral reply, Dewan Negara, 4
May 2010.
This is where a person who is arrested for
the purposes of an investigation into an
offence committed in the jurisdiction of a
Magistrate Court, is taken, after a remand
order is obtained, to another Magistrate Court
outside jurisdiction to obtain a further remand
order on the basis of investigating some other
purported offence.
15 SUHAKAM (2007) Report of SUHAKAM
Public Inquiry into the Incident at KLCC on
28 May 2006, Kuala Lumpur: SUHAKAM (p.
97).
5
Ibid. (pp. 59-61).
6
“Home Minister backtracks on revisiting
Royal Commission report on police”, The
Malaysian Insider, 23 June 2009, http://
t h e m a l ay s i a n i n s i d e r. c o m / i n d ex . p h p /
malaysia/30298-home-minister-backtrackson-revisiting-royal-commission-report-onpolice (accessed on 1 May 2010).
7
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 (accessed on 28 December
2008).
8
Special Complaints Commission Bill, D.R.
57/2007.
13 Royal Commission to Enhance the
Malaysian Police (2005) op. cit. (p. 340-341).
14 Ibid. (p. 339).
16 “ISA and Police Act to see changes”, New
Straits Times, 21 August 2009.
17 Parliamentary Select Committee on the Penal
Code and the CPC (2006) op. cit. (p. 71).
18 See SUARAM Human Rights Reports 2005,
2006 and 2007.
19 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 seven 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
63
7/15/10 11:57 AM
of custodial deaths that occurred several years
ago. The government’s inconsistent statistics
once again underscores the unreliability of
their figures.
20 Parliamentary written reply, Dewan Negara,
First Meeting, Third Session of the Twelfth
Parliament, Reference Number 2659.
21 “66 died in police custody since 2005, says
Hisham”, The Star, 14 April 2010.
22 Parliamentary reply to Loh Gwo-Burne
(Kelana Jaya) at the Dewan Rakyat, 30 June
2009.
23
Parliamentary reply to Manogaran A/L
Marimuthu (Teluk Intan) at the Dewan
Rakyat, 3 March 2009, Question 60, Reference
Number 1540.
24 Parliamentary written reply to Wong Nai Chee
(Kota Melaka) at the Dewan Rakyat, 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 (accessed
on 20 April 2009).
25 Pemberitahuan Pertanyaan Bagi Jawab Lisan
Dewan Negara, Rujukan 2288 [Parliamentary
Reply Dewan Negara, Reference Number
2288], 14 December 2009.
26 Parliamentary reply to Loh Gwo-Burne
(Kelana Jaya) at the Dewan Rakyat, 30 June
2009.
27 Wan Ahmad Farid Wan Salleh, 8 July 2008,
Second Meeting of the First Session of the
Twelfth Parliament, Hansard, DR.8.7.2008
(p. 14) http://www.parlimen.gov.my/hindex/
pdf/DR-08072008.pdf (accessed on 3
December 2008).
Hansard, DR.29.3.2007 (p. 19) http://www.
parlimen.gov.my/hindex/pdf/DR-29032007.
pdf (accessed on 20 April 2009).
29 Parliamentary written reply, Dewan Negara,
First Meeting, Third Session of the Twelfth
Parliament, Reference Number: 2659.
30 Royal Commission to Enhance the
Malaysian Police (2005) op. cit. (p. 348).
31 “Inquests not held despite being required,”
The Star, 2 April 2006.
32 Parliamentary written reply to Wong Nai Chee
(Kota Melaka) at the Dewan Rakyat, 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://
on 20 April 2009).
33 Department of National Registration, Death
Certificate, Ulaganathan A/L Muniandy
(dated 22 July 2003, registration number
C699909).
34 UN Code of Conduct for Law Enforcement
Officials, Adopted by UN General Assembly
resolution 34/169, 17 December 1979 (Article
3).
35 UN Basic Principles on the Use of Firearms
by Law Enforcement Officials, Adopted by
the Eight UN Congress on the Prevention of
Crime and Treatment of Offenders, Havana,
Cuba, 27 August – 7 September 1990
(Principle 9).
36 This phrase was first known to be used on
the Malaysian police by then-president of the
National Human Rights Society (HAKAM),
Raja Aziz Addruse, in a letter which appeared
in the New Straits Times on 11 April 1998.
28 Fu Ah Kiow, 29 March 2007, First Meeting of
the Fourth Session of the Eleventh Parliament,
64
7/15/10 11:57 AM
37 Pemberitahuan Pertanyaan Bagi Jawab
Lisan, Dewan Rakyat, Rujukan No: 2357
[Parliamentary Oral Reply], 18 March 2010.
38 “3 violent robbers shot dead”, New Straits
Times, 4 February 2009.
39 “Four members of Ah Boy gang shot dead”,
The Star, 9 February 2009, http://thestar.
com.my/news/story.asp?file=/2009/2/9/
nation/3224087&sec=nation (accessed on 1
May 2010).
40 “Three Indonesians shot to death in
Malaysia”, Antara News, 14 February
2009,
http://www.antara.co.id/en/
view/?i=1234621742&c=NAT&s= (accessed
on 1 May 2010).
41 “Head of car theft gang shot dead”, New Straits
Times, 18 February 2009.
42 “Five Vietnamese killed in shootout with
Malaysian police”, The Star, 7 March
2009,
http://www.asiaone.com/News/
AsiaOne%2BNews/Crime/Story/
A1Story20090307-126871.html
(accessed
on 1 May 2010); “Vietnamese robbers shot
dead”, New Straits Times, 8 March 2009.
43 “Dead robbers were on ‘fund-raising’ trip”,
New Straits Times, 10 March 2009.
44 “5 robbers shot dead in hideout”, New Straits
Times, 11 May 2009.
45 “Youth shot dead in scuffle with policeman”,
New Straits Times, 15 May 2009.
46 “Wanted men gunned down in high-speed
chase”, The Star, 20 May 2009, http://thestar.
May 2010).
47 “Gunmen in March shooting spree shot
dead”, The Star, 23 May 2009, http://thestar.
com.my/news/story.asp?file=/2009/5/22/na
tion/20090522190141&sec=nation (accessed
on 1 May 2010).
48 “M’sian ‘Rambo’ robber shot dead after hostage
drama”, The Star, 24 May 2009, http://www.
asiaone.com/News/AsiaOne%2BNews/
Crime/Story/A1Story20090524-143423.
html (accessed on 1 May 2010).
49 “Shot 3 times then dies in crash”, New Straits
Times, 27 May 2009.
50 “ “2 gunmen shot dead, cop wounded”, New
51 Robbers shot dead after car chase”, The
Star, 12 August 2009, http://thestaronline.
com/news/story.asp?file=/2009/8/12/
May 2010).
52 “Two Indonesian robbers shot dead”, New
identify
four
Thailand-based
53 “Cops
gang members”, The Star, 18 October
2009,
http://thestar.com.my/
n e w s / s t o r y. a s p ? f i l e = / 2 0 0 9 / 1 0 / 1 8 /
May 2010).
54 “Five killed in shootout with cops after
car chase”, 9 November 2009, The Star,
9 November 2009, http://thestar.com.
my/news/story.asp?file=/2009/11/9/
May 2010).
55 “Deva Gang leader shot dead after chase”,
New Straits Times, 14 November 2009.
56 “Police shoot dead ‘amok’ Kangar man”, The
Malaysian Insider, 14 November, 2009, http://
web1.themalaysianinsider.net/index.php/
malaysia/43450-police-shoot-dead-amokkangar-man (accessed on 1 May 2010).
65
7/15/10 11:57 AM
57 Police shoot dead leader of ‘Berong Gang’”,
The Star, 21 November 2009, http://thestar.
May 2010).
58 UN Basic Principles on the Use of Firearms by
Law Enforcement Officials, op. cit. (Principle
5).
59 Ibid. (Principle 10).
60 All following information are based on a
police report lodged by Isai Kumar A/L
Sathyieyananthan, dated 19 December 2009.
See also news reports, “Man alleges torture
by cops in detention”, The Sun, 6 January
2010,
http://www.sun2surf.com/article.
cfm?id=42050 (accessed on 14 April 2010);
and “I was abused in Seremban lock-up”, New
Straits Times, 7 January 2010.
61 “Modern interrogation methods of the
Malaysian police”, Malaysia Today, 6 June
2009, http://mt.m2day.org/2008/content/
view/22854/84/ (accessed on 14 April 2010).
The video, however, has been removed by
YouTube.
62 “IGP furious at Raja Petra over ‘beating’
video”, New Straits Times, 8 June 2009.
66 “Iban leader detained over anti-logging
blockade”, Malaysiakini, 24 October 2009,
http://www.malaysiakini.com/news/115804
67 Email communications with Nicholas Mujah
of Sarawak Dayak Iban Association (SADIA),
26 April 2010. See also “Malaysian native
leader detained over anti-logging”, AFP, 24
October 2009, http://www.bangkokpost.
com/news/asia/158012/malaysian-nativeleader-detained-over-anti-logging (accessed on
14 April 2010).
68 “Loggers raped Borneo girls”, Associated
Press, 9 September 2009, http://www.
s t r a i t s t i m e s. c o m / B re a k i n g % 2 B N e w s /
SE%2BAsia/Story/STIStory_427600.html
69 “High Court: MACC’s night interrogation
illegal”, Malaysiakini, 19 November 2009,
70 See SUARAM (2008) op. cit. (p. 54).
71 In 2009, the MACC was set up under the
Malaysian Anti-Corruption Commission Act
2009, thus replacing the ACA.
63 “973 Tear-gas Canisters Used To Disperse
Anti-ISA Protestors”, Bernama, 11 November
2009, http://www.bernama.com/bernama/
v5/newsgeneral.php?id=454390 (accessed on
14 April 2010).
64 “Iban activists held for ‘gang robbery’”,
Malaysiakini, 23 January 2009, http://www.
malaysiakini.com/news/97029 (accessed on
14 April 2010).
65 “Iban natives accused of ‘trespassing’ on
own land”, Malaysiakini, 19 September 2009,
66
7/15/10 11:57 AM
Chapter 3:
freedom of speech,
expression AND
INFORMATION
7/15/10 11:57 AM
On
of his
premiership on 3 April,
2009, Prime Minister Najib
Razak announced the lifting of a ban earlier
imposed on two opposition parties’ news
publications, Harakah and Suara Keadilan. This
gesture, however, did not result in a sea change
in the freedom of expression in Malaysia.
Throughout the year, the media remained
tightly controlled with no substantial reforms
implemented. Various forms of restrictions
were imposed by the government to curb
the freedom of speech and expression of
individuals and groups, especially those who
held dissenting views.
The ruling Barisan Nasional’s (bn)
efforts to regain its electoral losses in the
2008 General Election seemed to have played
a big part in the tightening of control over
dissenting views and media reporting on the
activities of the opposition parties. This was
seen in the political crisis in Perak, which
returned to bn following the defections of
three state assemblypersons elected under the
Pakatan Rakyat banner.
Even though freedom of speech and
expression in Malaysia is guaranteed by
Article 10 of the Federal Constitution, laws
like the Printing Presses and Publications Act
1984 (PPPA), the Official Secrets Act 1972
(osa), and the Sedition Act 1948 remain firmly
in place (See Box 3.1: pppa, Sedition Act and osa).
Not surprisingly, these laws create a culture of
fear and a high level of self-censorship among
the local media. In 2009, these laws were
invoked on numerous occasions.
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 other related activities.
They undermine the proper workings of
democracy.
the very first day
With the press operating in the context
of restrictive laws, racial and religious
tensions, and tightened political control,
Malaysia maintained its dismal position in
the Reporters Sans Frontières (rsf)’s 2009 Press
Freedom Index at 131st position compared to
132nd last year. The rsf said:
“The authoritarianism of existing governments,
for example in Sri Lanka and Malaysia,
prevented journalists from properly covering
sensitive subjects such as corruption or human
rights abuses. […] In Malaysia, the interior
ministry imposed censorship or self-censorship by
threatening media with the withdrawal of their
license or threatening journalists with a spell in
prison.”1
Scores of other individuals and groups
of individuals, ranging from opposition
politicians to bloggers, faced various threats,
harassment, arrests and prosecution under
various restrictive laws when they exercised
their constitutional rights to free speech and
expression.
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7/15/10 11:57 AM
Box 3.1: PPPA, Sedition Act, and OSA
Printing Presses and Publications Act
1984
The Printing Presses and Publications
Act, which covers newspapers, books,
and foreign publications, gives the Home
Ministry discretion 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 rejected 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.
Sedition Act 1948
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 allencompassing Sedition Act deems unlawful
“any act, speech, words, publication or any
other thing” that has any of the following
“seditious” tendencies:
1. 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;
2. to excite revolt by unlawful means;
3. to promote feelings of ill-will and
hostility between races or classes of the
population;
4. 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.
Official Secrets Act 1972
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 nonauthorised 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.)
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7/15/10 11:57 AM
Ownership and Control, Media
Blackout, and Self-Censorship
Virtually all mainstream newspapers,
television, and radio channels are either
owned by 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 Malaylanguage newspaper in Malaysia, while the
Malaysian Chinese Association (mca), another
component party of the bn, owns the largestselling 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 progovernment perspective of the mainstream
media in Malaysia. In recent years, there have
been numerous reports that the bn leadership
or media owners ordered news “blackouts”
or made their displeasure known to the press
for highlighting unflattering or controversial
issues concerning the bn and its interests.
On 15 April 2009, Internet news portal
Malaysiakini reported that the state-owned
public broadcaster Radio Televisyen Malaysia
(rtm) blacked out news on the absence of 10
Terengganu umno state assemblypersons from
a state assembly sitting on 14 April 2009. This
was speculated to be part of a plan to unseat
the Terengganu Menteri Besar Ahmad Said
in an intra-party conflict in the umno-ruled
state. Three of the 10 state assemblypersons
who were absent from the sitting had earlier
received death threats, warning them against
a motion of no-confidence against the
Terengganu Menteri Besar.
Malaysiakini observed that the issue of
the absence of the 10 was not mentioned in
any of RTM’s TV1 news – Tamil, Mandarin,
and Malay – on that day, even though it made
headlines in every other primetime private
news broadcasts. Malaysiakini, citing unnamed
sources, said that respective news desks within
TV1 were given verbal instructions not to
report the issue. However, RTM directorgeneral Ibrahim Yahaya denied that there
was a directive from “the top”, and said that
a decision of that nature could have been
made by the RTM news and current affairs
director.2
Three days later, on 18 April 2009, four
private stations owned by Media Prima was
reportedly ordered by the latter not to name
political analyst Abdul Razak Baginda when
reporting the murder case of Mongolian
national Altantuya Shaariibuu. Abdul Razak
Baginda, who is known to be a close adviser
to Najib Razak (then Deputy Prime Minister
and now Prime Minister), was being charged
with abetting the murder of Altantuya.
Malaysiakini reported that the directive was
part of an email sent on behalf of Media
Prima’s director of news and current affairs
(television networks) Kamarulzaman Zainal.
The television stations were ordered not to
mention Abdul Razak Baginda’s name or
air visuals of him, and were instead told to
focus their reports on two other individuals
who were being accused of murder in the
trial. The television stations were also barred
from giving coverage to statements linking
Najib Razak and his wife, Rosmah Mansor,
with the murder case.3 Abdul Razak Baginda
was subsequently acquitted from all charges
and was freed while the two others were found
guilty and sentenced to death.
On the following month, another similar
“blackout” directive was again purportedly
issued by Media Prima. On 13 May 2009,
Malaysiakini reported that a television station
owned by Media Prima had a video footage
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7/15/10 11:57 AM
of the controversial 7 May Perak state
assembly sitting where speaker Sivakumar of
Pakatan Rakyat was forcibly removed from
his chair and dragged out of the hall, but the
station was ordered by its owner Media Prima
not to air the clip or footages of the arrests
of about 100 people who protested outside
the Perak state assembly building. Media
Prima reportedly ordered the four television
stations which it owns to use footages other
than those from the 7 May assembly, such as
archived visuals, in their reports. Malaysiakini,
citing an anonymous source, reported that
the directives were given verbally as there
was not enough time for the management to
issue a written notice. Despite the directives,
one of the television stations under the Media
Prima group “accidentally” aired the footage
of Sivakumar being dragged out of the state
assembly hall. Because of the purported
breach of the directive, staff members in
charge of the programme were instructed
to write an explanation to the management
of Media Prima as to why the footage was
broadcast and to determine who should be
blamed for it.4
Prohibition on Use of Arabic Words
by Non-Muslims
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 2009, there were several
instances of restrictions based on these
grounds.
On 16 February 2009, the government
gazetted a prohibition on the use of four
Arabic words – “Allah”, “Kaabah”, “Baitullah”
and “Solat” – by non-Muslims. The order,
signed by the Home Minister, stated:
“The printing, publishing, sale, issue, circulation
and possession of any document and publication
relating to Christianity containing the words
‘Allah’, ‘Kaabah’, ‘Baitullah’ and ‘Solat’
are prohibited unless on the front cover of the
document and publication are written the words
‘For Christians’.”5
In the previous year, the government
imposed the restriction of the use of the word
“Allah” in Christian publications because the
use of the word “Allah” by non-Muslims “may
arouse sensitivity and create confusion among Muslims
in the country”.6 Roman Catholic newspaper
The Herald challenged the prohibition by
filing a judicial review in 2008. (For a detailed
discussion, see Chapter 5: Freedom of Religion and
Matters Pertaining to Religion.)
Thousands of copies of the bible were
seized throughout the year because they
carried the word “Allah”. In March, 5,000
copies were confiscated; while in September,
10,000 copies of Indonesian-language bibles
were seized by airport authorities in Sarawak.7
Harassment of Human Rights Groups
on Islamic Issues
In July, Kartika Sari Dewi Shukarno, a
32-year-old woman was sentenced to six
strokes of the cane by the Syariah Court in
the state of Pahang after she pleaded guilty
to consuming alcohol. The Joint Action
Group for Gender Equality (jag) and Sisters in
Islam (sis) campaigned against this sentence
and in October, several Malay- and Islamicbased groups, including the United Malays
National Organisation (umno), the Muslim
Youth Movement of Malaysia (abim) and
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7/15/10 11:57 AM
Jamaah Islah Malaysia (jim), lodged police
reports against these two women’s groups.
They accused jag and sis of insulting Islam
and called for the use of the Sedition Act
against them and on 4 November 2009, two
representatives of sis were called by the police
to give their statements for investigations
under the Sedition Act. (See also Chapter 5:
Freedom of Religion and Matters Pertaining to
Religion)
Clampdown on Dissenting Islamic
Views
On 1 October 2009, a former mufti (the
highest-ranking religious official appointed to
advise a state Ruler on Islamic laws) of the
northern state of Perlis, Dr. Mohd Asri Zainul
Abidin, was arrested by some 25 Selangor
State Department of Religious Affairs (jais)
and 30 police personnel when he was giving
a religious lecture to more than 500 people at
house in Kuala Lumpur. The authorities later
explained that the arrest was made because
Asri was giving a lecture in the Selangor state
without a tauliah (authorisation) from the
Selangor state religious department. Mohd
Asri was released by the police but was asked
to present himself to the Gombak Timur
Syariah Lower Court on 3 October 2009,
where a notice was given for jais to question
him on a later date.
On 18 October 2009, Mohd Asri was
charged with conducting a religious lecture
without a certification of authority under
Section 119(1) of the Selangor Islamic
Religious Administration Enactment 2003,
which carries a jail sentence of up to two
years or a fine of up to RM3,000 or both
upon conviction. Mohd Asri claimed trial.
Mohd Asri served as a mufti of Perlis from
2006 to 2008 and is widely known for his
liberal approach to Islam, which has caused
different opinions on certain issues between
him and other Islamic religious institutions,
such as the National Fatwa Council.8 As of
31 December 2009, his trial was still pending.
(See also Chapter 5: Freedom of Religion and Matters
Pertaining to Religion)
Curbing Freedom of the Press
In September, online news website
Malaysiakini was investigated by the Malaysian
Communication and Multimedia Commission
(mcmc) for a video clip of demonstrators
carrying cow heads in protest of the relocation
of a Hindu temple to a predominantly MalayMuslim neighbourhood in Shah Alam posted
on its website. The mcmc ordered Malaysiakini
to take down the video clip or face charges
under the Communications & Multimedia
Act 1998. mcmc officers went to the office
of Malaysiakini on separate occasions in
September to make copies of the videos
stored in Malaysiakini’s servers and to record
statements from the online newspaper’s staff.
(See the section “Curbing Freedom of Expression on
the Internet” in this chapter)
On 18 November 2009, the Home
Ministry issued a warning letter to Tamillanguage daily Tamil Nesan over its reporting
of the killing of five suspected armed robbers
by the police. The ministry accused the daily
of arousing racial sentiments in its coverage
of the police shooting. It also said that it
found a statement by the Youth Wing of the
Malaysian Indian Congress (mic) published in
the daily provocative. The Home Ministry’s
letter warned that the daily’s publishing
license could be revoked if they continued
publishing such articles.9
Double Standards in Allowing Racism
in UMNO Press
In contrast, umno-owned newspaper Utusan
Malaysia continued to publish provocative and
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7/15/10 11:57 AM
even blatantly racist news and articles. The
editorial piece by Zaini Hassan which was
published on 9 December 2009, titled “Alkisah
India di India dan India di Malaysia” [“Of
Indians in India and Indians in Malaysia”]
is one example. In that piece, the author
asserted that Indians are “kecoh” [“noisy”
or “loudmouthed”] and “sering buat bising”
[“always making noise”]. He claimed that
ethnic Indians in Malaysia as well as Indians
in India were equally “noisy”. The author
attributed this to their culture:10
“India tetap India. Orang India ialah
masyarakat yang begitu unik. Jika kita sering
tengok wayang Tamil atau Hindi, itulah budaya
mereka. Kecoh, kecoh dan kecoh..
“Namun, kita di Malaysia pun ada orang
India. Kecohnya pun lebih kurang sama.
Mereka ini rata-ratanya terdiri daripada ahliahli profesional, peguam dan kini menjadi ahli
politik.”
[“India is India. The Indians are unique.
If we watch Tamil or Hindi movies, [we
would be able to observe] their culture.
Noisy, noisy and noisy.
“There are also Indians in Malaysia.
They are just as noisy. They are mainly
the professionals, lawyers and now they
have become politicians.”]
The author then turned his attention to
opposition Democratic Action Party’s (dap)
Member of Parliament M. Kulasegaran,
a Malaysian of Indian ancestry, and
reprimanded the latter for questioning the
special privileges accorded to the Malays. The
author wrote:11
“Dia tahukah apa yang dia cakap? Tapi yang
pasti kenyataannya itu cukup sensitive dan akan
membuat kumpulan lain marah. Tapi seperti
biasa orang Melayu marahnya tidak lama.”
[“Is he aware of what he is saying?
Certainly, his statement is sensitive and
will anger others. But, as usual, the anger
of the Malays will not last long.”]
The author went to state:12
“Tak apalah. Orang Melayu tidak seperti orang
India, walaupun ada juga Melayu yang darah
keturunan keling (dkk), tapi darah Melayu yang
lembut banyak menguasai mereka.”
[“Never mind. The Malays are not like
the Indians, although some of them have
the blood of the ‘keling’, the ‘soft’ Malay
blood in them prevails.”]
Despite these racist remarks published
by Utusan Malaysia, no action was taken
against the author or the newspaper by the
authorities.
In the case of Teoh Beng Hock who died
while under the custody of the Malaysian
Anti-Corruption Commission (macc) in July
2009, Berita Harian, a Malay-language daily
which is owned by Media Prima, published
an editorial piece which racialised the death
of Teoh. It questioned the opposition Pakatan
Rakyat-ruled Selangor state government’s call
for an independent investigation to investigate
the case:13
“Kenapa, contohnya perlu kerajaan Selangor
mahukan pakar bedah swasta untuk siasat
kematian Teoh? Adakah pakar hospital kerajaan
tidak layak? Atau tidak boleh dipercayai?
“Kenapa Menteri Besar Selangor, seorang
Melayu, meragui kebolehan orang sebangsanya
bertindak dengan tulus dan adil?
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7/15/10 11:57 AM
“Bukankah banyak pegawai agensi atau
institusi kerajaan orang Melayu? Adakah
polis, hakim, guru, penyiasat, doktor, pensyarah
Melayu semuanya tidak boleh dipercayai?”
[“Why, for example, must the Selangor
state government insist on a private
surgeon to investigate into Teoh’s death?
Are the surgeons in government hospitals
unqualified? Or cannot be trusted?
“Why does the Selangor Menteri Besar, a
Malay, doubt the ability of people of his
own race in acting sincerely and fairly?
“Are there not many officers from
government agencies and institutions
who are Malays? Are all Malay police,
judges, teachers, investigators, doctors,
and lectures not trustworthy?”]
Restriction and Suspension of
Pakatan Rakyat Newspapers
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.
On 23 March 2009, the same
publication, together with Harakah, the official
news organ of another opposition political
party, the Pan-Malaysian Islamic Party (Parti
Islam Se-Malaysia, pas), were given a threemonth suspension for allegedly publishing
stories that were “wrong, sensational and sensitive
in nature”. Then-Home Minister Syed Hamid
Albar, defending the suspension, said:
“We have no problem if the articles in Harakah
and Suara Keadilan are to promote their political
ideologies. But what cannot be tolerated is when
the stories confuse and cause anger among the
people. We also do not tolerate wrong and
sensational reporting. This is detrimental in a
multi-racial society like Malaysia.”14
Then-Deputy Home Minister Chor
Chee Heung also said that the suspension was
“quite normal” as the two publications had
allegedly breached the rules and guidelines
attached to their permits. One example of this
breach was that Harakah had been sold to the
public at newsstands and bookshops despite
having a permit which allows circulation to
party members only. Leaders of the opposition
political parties expressed their suspicions
over the reasons of the ban, questioning the
reasons of the suspensions which were timed
just before two by-elections which were to
be held in April 2009. They claimed that
the suspension could possibly be an attempt
to deny the two newspapers from covering
the two by-elections. Media watchdogs also
condemned the move by the government,
stating that the suspension violated normal
procedures in which publications are first
issued a show-cause letter prior to action
being taken.15
On 3 April 2009, after Najib Razak
had become the new Prime Minister, he
announced the lifting of the ban on the two
opposition news organs. Nevertheless, the
suspension and subsequent lifting of the two
publications reveal that such decisions are
made arbitrarily by the BN government.
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7/15/10 11:57 AM
Titles Banned or held by the BN Government
The year also saw 25 titles being banned by the government. Table 3.1 lists the titles which
were banned by the government in 2009.
Table 3.1: List of Banned Titles, 2009
No
Title
Author
Publisher
Printer
Language
Date of Ban/
Gazette Number
1
Khazanah
Mutiara
Hikmah Suami
Isteri & Bakal
Pengantin
Ustaz Hj
Ibrahim
Muhammad
Darul
Nu’man
-
Malay
9 July 2009 /
P.U. (A) 244
2
Permata
Gemilang
Hj. Wan
Halim
Bashah
(IBHAR)
Percetakan
S.T. Sdn.
Bhd.
Percetakan
S.T. Sdn.
Bhd.
Malay
9 July 2009 /
P.U. (A) 244
3
Menyingkap
Rahsia
Keistimewaan
Wanita
Ain Aina
ZANzan
Production
ZANzan
Production
Malay
9 July 2009 /
P.U. (A) 244
4
Serakah
Anak-Anak
Zombie
Ron Sikana
Penerbitan
Karang
Media
Percetakan
Maju Jaya
Sdn. Bhd.
Malay
9 July 2009 /
P.U. (A) 244
5
Oh Fazrah
-
Teras Perkasa
Ent.
Maju Selalu
Sdn. Bhd.
Malay
9 July 2009 /
P.U. (A) 244
6
Rintihan Jiwa
Seorang
Lesbian
-
M&S Production
Percetakan
Megah
Malay
9 July 2009 /
P.U. (A) 244
7
Senggama
Kubur
Abdullah
Harahap
Seramsit
-
Malay
9 July 2009 /
P.U. (A) 244
8
Suami Romantik di Kamar
yang Indah
Fahmi
Marwan
Jasmine
Enterprise
Berinovatif
Dan Berkreatif
-
Malay
9 July 2009 /
P.U. (A) 244
9
Isteri Romantik
di Kamar yang
Indah
Fahmi
Marwan
Jasmine
Enterprise
Berinovatif
Dan Berkreatif
-
Malay
9 July 2009 /
P.U. (A) 244
10
Rahsia Dalam
Rahsia Di
Sebalik Tirai
Kamar Suami
Isteri
Othman Haji
Jaafar
Darul
Nu'man
-
Malay
9 July 2009 /
P.U. (A) 244
11
55 Masalah
Seksual Yang
Anda Malu
Tanya
Rosaida
Roslan
B.Sc
Kalam Ilham
Sdn. Bhd.
FZ Enterprises
Sdn. Bhd.
Malay
09 July 2009 /
P.U. (A) 244
12
Pengantin
Remaja
Puteri Izma
Progressive
Publishing
House
Sdn. Bhd.
Percetakan
Haji Jantan
Sdn. Bhd.
Malay
9 July 2009 /
P.U. (A) 244
13
Cinta Awak
dalam sehari
-
Penerbitan
Maju Jaya
Center Sdn.
Bhd.
VT Technology (M)
Sdn. Bhd.
Malay
9 July 2009 /
P.U. (A) 244
75
7/15/10 11:57 AM
9
10
Malaysia Human
Isteri Romantik
di Kamar yang
Indah
Fahmi
Marwan
Rahsia Dalam
Othman Haji
Rahsia Di
Jaafar
Sebalik Tirai
Kamar Suami
RightsIsteri
Report 2009
Jasmine
Enterprise
Berinovatif
Dan Berkreatif
-
Malay
9 July 2009 /
P.U. (A) 244
Darul
Nu'man
-
Malay
9 July 2009 /
P.U. (A) 244
11
55 Masalah
Seksual Yang
Anda Malu
Tanya
Rosaida
Roslan
B.Sc
Kalam Ilham
Sdn. Bhd.
FZ Enterprises
Sdn. Bhd.
Malay
09 July 2009 /
P.U. (A) 244
12
Pengantin
Remaja
Puteri Izma
Progressive
Publishing
House
Sdn. Bhd.
Percetakan
Haji Jantan
Sdn. Bhd.
Malay
9 July 2009 /
P.U. (A) 244
13
Cinta Awak
dalam sehari
-
Penerbitan
Maju Jaya
Center Sdn.
Bhd.
VT Technology (M)
Sdn. Bhd.
Malay
9 July 2009 /
P.U. (A) 244
14
The Qur’an:
A New Translation
Thomas
Cleary
Starlatch
Press
Printed in the
US
English
30 July 2009 /
P.U. (A) 271
15
Islam and the
West:
The Making of
an Image
Norman
Daniel
Oneworld
Publications
(Sales and
Editorial)
Printed in the
UK
English
30 July 2009 /
P.U. (A) 271
16
God is Not
Great:
How Religion
Poisons
Everything
Christopher
Hitchens
Twelve
Hachette
Book Group
USA
Printed in the
US
English
30 July 2009 /
P.U. (A) 271
17
Antichrist:
Islam’s Awaited
Messiah
Joel Richardson
Pleasant
Word
(a division of
Wine Press
Publishing)
Printed in the
US
English
30 July 2009 /
P.U. (A) 271
18
The Politically
Incorrect Guide
to Islam
(And The
Crusades)
Robert
Spencer
Regnery
Publishing
Printed in the
US
English
30 July 2009 /
P.U. (A) 271
19
The Trouble
With Islam
Today
Irshad Manji
St. Martin's
Press
Printed in the
US
English
30 July 2009 /
P.U. (A) 271
20
Ibrahim a.s.
And Sarah
S. Aneesa
Little Angels'
World
Little Offset
Works
English
30 July 2009 /
P.U. (A) 271
21
Qabil & Habil
Qabil & Habil
Little Angels'
World
Little Offset
Works
English
30 July 2009 /
P.U. (A) 271
22
The Jewel of
Medina
Sherry Jones
Beaufort
Books,
New York
Printed in the
US
English
30 July 2009 /
P.U. (A) 271
23
Allah Paling
Hebat
HF Rahadian
PTS One
Sdn. Bhd.
BS Print (M)
Sdn. Bhd.
Malay
22 October
2009 /
P.U.(A) 373
24
Hamka
Bercerita Kisah
Nabi & Rasul,
Jilid 2
M. Saribi Afn
Pustaka Dini
Sdn. Bhd.
Percetakan
Rahim Razak
Sdn Bhd
Malay
22 October
2009 /
P.U. (A) 373
25
Hamka
Bercerita Kisah
Nabi & Rasul,
Jilid 1
M. Saribi Afn
Pustaka Dini
Sdn. Bhd.
Percetakan
Rahim Razak
Sdn Bhd
Malay
22 October
2009 /
P.U. (A) 373
(Source:
(Source:Home
HomeMinistry,
Ministry,Malaysia)
Malaysia)
76
7/15/10 11:57 AM
The process of determining the banning
of book titles and publications is problematic,
especially with regard to books on religion.
On 12 June 2007, during a dialogue between
civil society groups and the Internal Security
Ministry, it was revealed that most of the
assessments of books on religion and the
decision to ban are made by the Department
of Islamic Development, Malaysia (Jabatan
Kemajuan Islam Malaysia, jakim), a
department separate from the ministry.
The banning of books is also very arbitrary
in nature as there is no transparency in the
process of determining whether or not a book
should be banned nor is there an independent
review of the decisions.
Sisters In Islam (sis), whose book
“Muslim Women and the Challenge of Islamic
Extremism”16 was banned by the government
in 2008, filed a judicial review at the Kuala
Lumpur High Court in December of that
year to challenge the government’s decision.
On 25 August 2009, the High Court allowed
SIS’s application for a review of the ban. The
hearing commenced on 28 October 2009
and the decision was still pending as of 31
December 2009.
Another judicial review of a banned
book that was still pending in 2009 was that
of “March 8”, a book authored by suaram
Chairperson K. Arumugam and banned in
December 2006. The book documents the
ethnic clashes in Kampung Medan between
8 March and 21 March 2001. The book was
based on research and eyewitness accounts of
the incident, which had left six dead and more
than 40 seriously injured. Arumugam filed his
review in February 2007, and on 10 July 2007
the Kuala Lumpur High Courty granted leave
for the judicial review of the ban of the book.
As in the case of sis’s review, the decision of
the review of the ban of Arumugam’s “March
8” was also still pending as at 31 December
2009.
On 25 August 2009, the Home Ministry
confiscated 408 copies of the inaugural issue
of the political satire magazine “Gedung
Kartun” from the publisher’s office in Kuala
Lumpur. Officials from the Home Ministry
said that the confiscation was due to violation
of Section 5(1) of the Printing Presses and
Publications Act (pppa) as the magazine was
published without a permit.17 The magazine
featured a caricature of Prime Minister Najib
Razak waving a Mongolian flag (alluding
to links between him and the murder of
Mongolian national Altantuya) and shouting
Merdeka (Independence) on its front cover.
The satirical comic also touched on various
controversial current affairs, such as the death
of Teoh Beng Hock while under the custody
of the macc, as well as the Internal Security
Act (isa).
Front cover of the political satire magazine, “Gedung Kartun”.
408 copies of the magazine were confiscated by officials from
the Home Ministry in August 2009. (Photograph courtesy of
Malaysiakini)
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7/15/10 11:57 AM
Zunar, the editor of the political satire magazine, “Gedung
Kartun”. (Photograph courtesy of Malaysiakini)
In December 2009, 800 copies of the
book “Malaysian Maverick: Mahathir Mohamad in
Turbulent Times”18 by former Asian Wall Street
Journal editor Barry Wain were confiscated
by the Customs Department when they
were delivered at Port Klang for distribution
in Malaysia. The book, a study of former
Prime Minister Mahathir Mohamad’s 22year premiership from 1981 to 2003, received
much attention from the Malaysian public
after it was reviewed by news website Asian
Sentinel and soon after by Malaysiakini before
its public release. The book discloses a loss of
some RM100 billion through various financial
scandals during Mahathir’s premiership.19 On
23 December 2009, the Customs Department
confirmed that 800 copies of the book were
being held “pending approval” by the Home
Ministry for distribution in Malaysia.20 The
Home Ministry was reported by national
news agency Bernama as saying that this was a
“normal procedure” and that the checks were
to ensure that the books “would not affect the
prevailing peace and security in the country”.21 As of
31 December 2009, the said books remained
in government custody and the approval for
distribution was still pending.
Front cover of the book “Malaysian Maverick”, authored
by Barry Wain. 800 copies of the book were held up by the
government in December 2009 for checks when they arrived
in Malaysia
Barring Journalists from Press
Events by BN and PR
There were also instances where journalists
were barred by both the bn and Pakatan
Rakyat respectively from covering their press
conferences and events. In March, during the
annual umno general assembly, online media
Malaysiakini, The Malaysian Insider, Siasah,
Merdeka Review, The Nut Graph, and Laksou were
barred from covering the proceedings. umno
Secretary-General Tengku Adnan Tengku
Mansor was reported as saying that the online
news portals were not given passes because of
their “negative and irresponsible reporting”
on umno leaders and the party.22
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7/15/10 11:57 AM
On 9 April 2009, a journalist from
Merdeka Review, an online news website, was
barred from covering Najib’s announcement
of the new cabinet line-up. It was reported
that when Merdeka Review contacted one
of Najib’s aides to seek clarification on the
matter, it was informed that the decision was
made by the Prime Minister’s Office.23
A similar restriction was imposed by the
Penang Chief Minister Lim Guan Eng of
the opposition dap, who told a reporter from
Utusan Malaysia to leave a press conference
on 4 June 2009 following the swearingin ceremony of the new Seberang Perai
Municipal Council president in the state of
Penang. Lim apparently did so on the grounds
that Pakatan Rakyat in Penang has a pending
civil suit against Utusan Malaysia. Lim later
said that it was Pakatan Rakyat’s policy to ban
the umno-owned newspaper from attending
its functions.24 This policy was apparently
made because of the racialisation of issues
in the newspaper’s reporting. (See also section
on “Double Standards in Allowing Racism in umno
Press” in this chapter)
On 25 November 2009, the Selangor
Pakatan Rakyat Elected Representatives
Officers Association (selproa) barred an
Utusan Malaysia journalist from covering its
press conference, claiming that the daily was
a “federal government agent”. It was reported
that a representative of selproa was heard
saying, “We can’t allow government propaganda
machines into the press conference”.25
Use of Repressive Laws to Intimidate
Dissidents
The deteriorating state of freedom of
expression in the country is also manifested
in the government’s use of various repressive
laws, including the Sedition Act and the
Universities and University Colleges Act
(uuca) to intimidate, arrest and prosecute
individuals or groups of individuals, including
activists, students, bloggers and opposition
political parties who express dissenting views.
On 17 March 2009, dap leader Karpal
Singh was charged under the Sedition Act for
allegedly making a seditious statement against
the Sultan of Perak during a press conference
at his office on 6 February 2009. The charge
was based on Karpal’s statement that the
Sultan of Perak could be taken to court for
consenting to the appointment of the new
Menteri Besar of Perak from bn and thus
removing Pakatan Rakyat’s Nizar Jamaluddin
from that position following the defection
of three elected state assemblypersons from
Pakatan Rakyat and losing majority control
of the Perak state government. Karpal’s trial
was still pending as of 31 December 2009.
On 31 March 2009, the Home Ministry
barred political parties from bringing up the
murder of Mongolian national Altantuya
Shaaribuu, to whom Najib had been allegedly
linked, in their campaigning during the three
by-elections in April 2009 in Bukit Gantang
(Perak), Bukit Selambau (Kedah) and Batang
Ai (Sarawak).
On 23 May 2009, the police raided
the headquarters of the dap and seized a
computer and several DVDs ostensibly to
facilitate investigations into the content
of a leaflet which was circulated during a
candlelight vigil on 21 May 2009, where 16
dap activists were arrested.
On 21 June 2009, the police disrupted
a dinner organised by the dap in Klang,
Selangor. The police had earlier withdrawn a
permit issued for the event which had specified
that no political speeches would be allowed
at the dinner. The event was eventually held
under heavy police surveillance and the
venue was cordoned off by the police. After
negotiations between the organisers and the
police, the dinner was allowed to proceed but
was disrupted when the police confiscated
the amplifiers at the dinner to prevent the
speakers from continuing with their speeches.
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7/15/10 11:57 AM
On 22 June 2009, the police warned
the dap that the permit issued to the party to
hold its annual dinner under Section 27(2)
of the Police Act was on the condition that
only one speech, by the party treasurer, would
be allowed throughout the entire event. The
police also reminded the party not to utter
seditious statements at the gathering.
On 5 May 2009, Wong Chin Huat, an
activist of the Coalition for Clean and Fair
Election, was arrested under the Sedition Act.
His arrest was believed to be in connection
with a press conference held on the morning
of his arrest, during which he had urged all
Malaysians to wear black in protest against the
bn’s takeover of the Perak state government
from Pakatan Rakyat, a move seen by many
as unconstitutional. Scores of others were
arrested in relation to similar protests in
the following weeks. On 25 May 2009, 19
individuals were arrested by the police in
Ipoh for holding a hunger strike to protest the
political takeover in Perak. (See also Chapter 4:
Freedom of Assembly and Association)
In October, eight students from Universiti
Malaya were served notices threatening
disciplinary action for allegedly contravening
the uuca by inviting politicians to two separate
events at the university. On 19 November, an
inquiry was conducted by the university to
determine whether they had breached the
uuca and if action could be taken against
them. Although the inquiry decided that the
eight were not guilty of breaches of the uuca,
the students were given a warning and were
advised to follow the rules provided in the
Universiti Malaya statute. (See also Chapter 4:
Freedom of Assembly and Association)
Curbing Freedom of Speech on the
Internet
The government continued its tight control
over the Internet in 2009, contravening its
10-point Bill of Guarantees conceived in 1996
when the government said that it “[will] ensure
no Internet censorship”26 as well as other pledges
made to guarantee freedom in cyberspace.27
Wong Chin Huat (in black t-shirt), after being released from police custody on 8 May 2009. He was arrested by the police on 5 May
2009 for investigations under the Sedition Act. (Photograph courtesy of Malaysiakini)
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However, in contravention of these
guarantees and pledges, on 6 August 2009
the government said that it was considering
imposing an Internet filter to block
“undesirable” websites. A senior official from
the National Security Council was reported
as saying that the plan to filter the Internet
was to “keep out pornographic materials and bloggers
who inflame racial sentiments”.28 Information,
Communications, Culture and Arts Minister
Rais Yatim further said that the plan was
not to suppress political dissent but to ensure
that the country is “free from the culture of
pornography among children”.29 Notwithstanding
this, on 8 August 2009 Prime Minister Najib
Razak, apparently concerned about the
opposition against the proposal, reiterated the
government’s pledge that the Internet would
not be censored. He said, “Such a policy (to filter
the Internet) will usually be decided by the Cabinet,
but we have no intention to do it because it will be
ineffective. So far, there is no change in the Government’s
policy in this issue.” Najib added, “If we put a
form of control, the people cannot accept it.”30 On
12 August 2009, the government announced
the cancellation of its plan because there were
sufficient existing laws to prevent Internet
abuse.31
In March 2009, six bloggers were charged
under Section 233(1) of the Communication
and Multimedia Act 1998 (See Box 3.2: Sections
211 and 322 of the Communication and Multimedia
Act) and Section 34 of the Penal Code for
“insulting” the Perak royalty in their blogs.
The six had allegedly criticised the Sultan
of Perak for his role in consenting the BN’s
takeover of the Perak state government from
Pakatan Rakyat.
On 3 September 2009, Malaysiakini
was ordered by the mcmc to remove two
video clips in relation to an incident in
which demonstrators carried cow heads to
protest against the relocation of a Hindu
temple to a predominantly Malay-Muslim
neighbourhood. In the letter ordering the
removal of the video clips, the mcmc said
that the videos “contain offensive contents with the
intent to annoy any person, especially Indians”. The
letter further stated that publishing the clips
was an offence under Sections 211 and 233
of the Communication and Multimedia Act
1998. (See Box 3.2: Sections 211 and 233 of the
Communication and Multimedia Act)
However, Malaysiakini refused to remove
the videos, saying that the videos were news
events which are of public interest. Steven
Gan, editor-in-chief said:
“Our intent in putting up the videos was not to
‘annoy’ anyone, but to do our job as journalists
to draw attention to the protest and to ensure
action is taken so that incidents like this will not
happen again in Malaysia.”32
As a result of its refusal to remove
the videos, Malaysiakini was subjected to
harassment by the mcmc on several occasions
in September. On 5 September 2009, three
mcmc officers went to the Malaysiakini office
to record a statement from the Internet
news portal’s editor-in-chief, Steven Gan.
Then, on 8 September 2009, eight mcmc
officers interviewed 12 members of staff of
Malaysiakini in an eight-hour long session. The
mcmc officers visited the Malaysiakini office a
third time on 10 September 2009, together
with three digital forensic experts, and
demanded the original tapes of the two videos
and sought to copy certain parts of the hard
disk from two Malaysiakini computers used
to edit and upload the videos. Photographs
were taken of the hard disks and their serial
numbers.33
On 31 December 2009, Malaysiakini’s
video editor Shufiyan Shukur and Jason Yong,
a staff member from the website’s server
hosting company, were both interviewed by
the mcmc at its headquarters in Cyberjaya.
Yong was reportedly asked whether the videos
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Malaysian Communications and Multimedia Commission (mcmc) officials search the computers of Malaysiakini. Malaysiakini was
investigated by the mcmc in September 2009 for posting a video of a demonstration in which protestors carried a slaughtered cow’s
head. (Photograph courtesy of Malaysiakini)
were uploaded from the Malaysiakini’s Internet protocol (IP) address, while Shufiyan was asked
to name the person responsible in making the decision not to comply with mcmc’s request to
remove the videos from Malaysiakini and YouTube.34
Box 3.2: Sections 211 and 233 Communication and Multimedia Act
Section 211
Prohibition on provision of
content
offensive
1. No content applications service provider
or other person using a content applications
service, shall provide content which is
indecent, obscene, false, menacing, or
offensive in character with intent to annoy,
abuse, threaten or harass any person.
2. A person who contravenes subsection
(1) commits an offence and shall, on
conviction, be liable to a fine not exceeding
fifty thousand ringgit or to imprisonment
for a term or to both and shall also be liable
to a further fine of one thousand ringgit for
every day or part of a day during which the
offence is continued after conviction.
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7/15/10 11:57 AM
Section 233
Improper use of network facilities or
network service, etc.
1. A person who –
(a) by means of any network facilities or
network service or applications service
knowingly –
i. makes, creates or solicits; and
ii. initiates the transmission of,
(b) any comment, request, suggestion or
other communication which is obscene,
indecent, false, menacing or offensive in
character with intent to annoy, abuse,
threaten or harass another person; or
(c) initiates a communication using any
applications service, whether continuously,
repeatedly or otherwise, during which
communication may or may not ensure,
with or without disclosing his identity
and with intent to annoy, abuse, threaten
or harass any person at any number or
electronic address, commits an offence.
2. A person who knowingly –
(a) by means of a network service or
applications service provides any obscene
communication for commercial purposes
to any person; or
(b) permits a network service or
applications service under the person’s
control to be used for an activity described
in paragraph (a), commits an offence.
3. A person who commits an offence
under this section shall, on conviction,
be liable to a fine not exceeding fifty
thousand ringgit or to imprisonment for
a term not exceeding one year or to both
and shall also be liable to a further fine
of one thousand ringgit for every day
during which the offence is continued
after conviction.
Besides its harassment of Malaysiakini,
the mcmc also issued a warning to a blogger in
September, over the content of a post which
was deemed offensive. The blogger, Tan Teck
Chin, reportedly received an email dated 9
September 2009 from the mcmc’s Content
Regulation Department which stated that his
posting on 25 July 2009 titled “Teoh Beng Hock’s
Death (3): Malaysia Bodoh” contained offensive
content. In the email, Tan was cautioned
by the mcmc to ensure that the content of
his blog does not contravene Section 211 of
the Communication and Multimedia Act
1998. (See Box 3.1 Section 211 and 233 of the
Communication and Multimedia Act 1998)35 No
further actions were known to have been
taken against Tan as of 31 December 2009.
In November, blogger Bernard Khoo was
questioned by the police under the Sedition
Act in relation to a posting on his blog on 8
August 2009 titled “Childish Police Bullying
Again”, which featured a modified logo of the
Royal Malaysian Police. As of 31 December
2009, there were no charges against him.
In 2009, the government continued
its pursuit of Raja Petra Kamarudin who
has been charged with sedition for making
allegations implicating the current Prime
Minister and his wife Rosmah Mansor in the
high-profile murder of Mongolian national
Altantuya Shaariibuu. The police issued
two arrest warrants in 2009 – in March and
October – against Raja Petra, who has since
evaded arrest. On 11 November 2009, Raja
Petra was given a discharge not amounting
to acquittal by the Petaling Jaya Sessions
Court because the police could not trace him.
Nevertheless, Federal Territories Criminal
Investigation Department Director Bakri
Zinin said that Raja Petra was still wanted by
the police and that he would most likely face
the sedition charge when the police locate
him.36
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7/15/10 11:57 AM
Banning of Films, Concerts and
Cross-dressing
In 2009, at least one film was banned by
the government. In September, the Home
Ministry announced a ban on the movie
“Bruno”, because it was said to contain
sexually explicit scenes and vulgar language.37
On 26 August 2009, the Ministry of
Information, Communications, and Culture
announced that Muslims were banned from
attending a concert by popular US music
performers Black Eyed Peas in Kuala Lumpur
as it was sponsored by a beer company. The
Ministry, however, reversed the decision but
alcohol sales were restricted to fenced-off
areas which Muslims were prohibited to enter.
On 29 August 2009, the pas-led state
government of Kedah announced a blanket
ban on concerts featuring the music genres
of rock, reggae, pop, and dangdut as such
shows are said to have a negative influence on
youths.
The rights to sexual expression and
choice of dressing are also seriously violated
in Malaysia. Under several state Syariah
enactments, it is an offence for men to
dress as women.38 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.
In December 2009, several newspapers
in Malaysia covered the story of Fatine,
a Malaysian-born transsexual who has
married a Briton in May 2009 and was
facing deportation back to Malaysia after her
visa was rejected by the British government
over an “incorrect” photograph. She filed a
second application but that too was rejected
and was awaiting the outcome of her third
application, citing the right to family life under
the Human Rights Act in Britain. Fatine has
expressed her worries over her safety if she
was deported back to Malaysia. In Malaysia,
homosexuality is criminalised, same sex
marriages are not recognised, while “crossdressing” is an offence under several Syariah
state enactments. On 15 December 2009,
Minister in the Prime Minister’s Department
said that the government was yet to decide
on its action against Fatine, as confirmation
of her civil marriage in the UK needed to be
obtained by religious authorities in Malaysia.39
(See also Chapter 5: Freedom of Religion and Matters
Pertaining to Religion)
Deterring Whistleblowers with the
OSA
Restrictive legislation, particularly the osa,
and a pervasive culture of secrecy severely
hamper the right to know and freedom of
information in the country. Information
ranging from statistics about housing
development to data regarding public funds is
classified. Malaysians have thus been denied
access to information on matters of public
interest. Based on an ordinance in 1911, the
osa makes it an offence to publish without
authorisation any information classified
as “top secret”, “secret”, “confidential” or
“restricted” by public officers.
Section 2 of the osa interprets the term
“official” as “relating to any public service”,
while “official secret” is defined as:
“[A]ny document specified in the Schedule and
material relating thereto and includes any other
official document, information and material
as may be classified as ‘Top Secret’, ‘Secret’,
‘Confidential’, or ‘Restricted’, as the case may
be, by a Minister, the Menteri Besar or Chief
Minister of a State or such public officer […].” 40
Because of the loose definition and
broad interpretation of the Act as to what
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7/15/10 11:57 AM
qualifies as an “official secret”, it is unclear
how much information may be subject to
classification as a state secret. This means
that any information, the variety of which is
potentially unlimited, may be classified by the
government as “official secret”. There are also
no clear exceptions for secrecy as required
under international law, such as where
disclosure would pose a real and serious risk
to national security.41
In addition to the osa, another major
obstacle to freedom of information in
Malaysia is the absence of legislation to protect
whistleblowers. As a result, whistleblowers in
Malaysia are vulnerable to arbitrary actions
of threats and harassment by the government
for revealing “official secrets”. Indeed, a many
whistleblowers have been persecuted and
prosecuted in Malaysia in recent years.42
In September 2009, the government
threatened to use the osa against those who
were responsible for leaking classified Cabinet
papers on the financial scandal in the multibillion dollar Port Klang Free Zone (pkfz)
project. The documents were posted on
popular political blog, Malaysia Today. In
response, Prime Minister Najib Razak said
that the exposé “cannot be accepted” and
that the police would investigate the matter
under the osa.43 On 24 September 2009, the
police said that the case was being investigated
under the osa and that several individuals
would be called up to assist investigations into
the exposé. Inspector-General of Police Musa
Hassan said that the police “will call whoever is
connected, or involved, in exposing the documents”.44
Despite the continued persecution
of
whistleblowers,
the
government
has announced its intention to enact a
whistleblower protection law on several
occasions in the past two years. The latest
instance was on 23 October 2009, when
Prime Minister Najib Razak, in his 2010
national budget speech, announced that
the government will enact a whistleblower
protection law by the year 2010, aimed at
encouraging informers to expose cases of
corruption. However, at the end of 2009, no
substantive developments were made on the
enactment of such legislation.
This was not the first time that such
commitments have been made. In April
2008, then-Prime Minister Abdullah Ahmad
Badawi announced that the government
would implement reforms to boost the fight
against corruption, including the enactment
of new laws to protect whistleblowers.45
However, this pledge was still unfulfilled by
Abdullah by the time he stepped down as
Prime Minister in 2009.
PR State Governments Have Still to
Legislate FoI Acts
At the state level, although the Pakatan
Rakyat-led state governments of Selangor
and Penang had pledged in 2008 to enact
state legislations pertaining to freedom of
information, they remain to be actualised.
While there have been some developments in
the Selangor state government, other Pakatan
Rakyat-led states have made little progress.
In March 2009, in an apparent show of
commitment to the principles of freedom of
information, 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 on
their other assets, for example bank savings,
interest in private companies or shares, was
not revealed.
The Selangor state government,
nevertheless, made several more substantial
efforts in upholding freedom of information.
On 10 November 2009, the Selangor state
government, through its Menteri Besar
Khalid Ibrahim, declassified documents under
Section 2C of the osa, exposing three failed
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joint venture programmes under the tenure of
the previous Selangor state government held
by bn. Section 2C of the osa provides powers
to the Menteri Besar to declassify official
documents.46 On that same day, the Selangor
state government also announced that it
would enact a Freedom of Information Act by
March 2010. However, this was not the first
time that the Selangor state government has
announced such. Its earlier announcement
that the Freedom of Information Bill would
be tabled in the state assembly by November
2009 did not materialise.
On 18 November 2009, the Selangor
state government released the findings of
the Bukit Antarabangsa landslide disaster
of 6 December 2008. In a preliminary
summary of the report, it was revealed that
a burst water pipe was the main cause of
the landslide that had killed five people and
destroyed 14 houses. While announcing the
declassification, Khalid said copies of the
report would be made available to the public
and he instructed the Ampang Jaya Municipal
Council to make copies for sale to the public.
However, on 23 November 2009, the
Selangor state government was forced to
withhold its decision to reveal the details
after the Federal Government challenged
the decision and cautioned the state not to
declassify the documents. According to the
Selangor Menteri Besar, the state government
had written to the Works Ministry – which
had prepared the report on the landslide –
and requested the ministry to also declassify
the document, but the ministry claimed that
it had no jurisdiction to decide on the matter
as the classification was the prerogative of
the Cabinet. Deputy Minister in the Prime
Minister’s Department even suggested that
the Selangor Menteri Besar had breached
the OSA for “illegally” releasing the 4-page
summary of the said report, and as such,
he could be penalised with a jail term and a
fine.47 No further action, however, was taken
against the Selangor Menteri Besar and on 6
December 2009, Works Minister Shaziman
Abu Mansor announced that the Cabinet had
agreed to declassify the full report. While it
appears that the pressure put on the Cabinet
by the Selangor state government resulted in
the declassification of the report, the Works
Minister nonetheless said, “We have nothing to
hide […] as long as the procedures are followed, we
will make the information available to the people.”48
At the local council level in Selangor,
the Petaling Jaya City Council was criticised
in April 2010 for threatening to use the osa
against an individual who had distributed
a letter which was attached with the
city council’s classified meeting minutes.
Governed by the Local Government Act
1976, the city council’s full board meeting
minutes are accessible to the public, but not
the minutes of its sub-committee meetings.
The said classified sub-committee meeting
minutes of the city council was leaked out
by an individual alleging favouritism in the
Petaling Jaya City Council’s implementation
of its new billboard regulation.49
While the Selangor state government has
committed to enacting a state level legislation
pertaining to freedom of information by the
year 2010, the Penang state government, on
1 December 2009, said that it cannot yet do
so because the Penang state legal advisor had
apparently informed the state government
that matters pertaining to information
fall under the Federal list of the Federal
Constitution and not within the jurisdiction
of the state government.50
Conclusion
The change of the country’s top political
leadership in 2009 did not improve the
deteriorating state of freedom of speech
and expression in Malaysia despite the new
Prime Minister’s promise. The year saw the
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persecution and prosecution of numerous
individuals and groups of individuals under
various restrictive laws, such as the Sedition
Act and the Communication and Multimedia
Act, while publications and the media
remained tightly controlled.
Freedom of information continued to
be hindered by a deeply-rooted culture of
secrecy and the existence and use of restrictive
laws, in particular the osa. While two Pakatan
Rakyat-led states have pledged to uphold
principles, implement reforms and enact
legislations to guarantee access to information
and to ensure openness and transparency in
governance, substantive reforms have yet to
materialise. Other Pakatan Rakyat-led states
have made even less progress, while the bn has
remained resistant to reforms.
The heightened politicisation of race
and religion were repeatedly used by the
government as a justification to restrict
the freedoms of speech, expression and
information in 2009, while the bn’s attempts
to regain its political control in the country
resulted in the stifling of dissenting views and
opinions.
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7/15/10 11:57 AM
End Notes
1
2
3
Reporters Sans Frontières (2009) Press Freedom
Index – Asia: Authoritarianism prevents press freedom
progress in much of Asia, http://www.rsf.org/
en-classement1003-2009.html (accessed on 20
April 2010).
“rtm blackout out T’ganu revolt”, Malaysiakini,
15 April 2009, http://www0.malaysiakini.
com/news/102460 (accessed on 20 April
2010).
“Razak Baginda is taboo, TV stations told”,
Malaysiakini, 18 April 2009, http://www0.
20 April 2010).
4
“Footage of ‘speaker being dragged out’
banned”, Malaysiakini, 13 May 2009, http://
www0.malaysiakini.com/news/104175
5
Internal Security (Prohibition on Use of
Specific Words on Document and Publication)
Order 2009.
6
Cited in suaram (2009) Malaysia Human Rights
Report 2008: Civil and Political Rights, Petaling
Jaya: suaram Kommunikasi (p. 119).
7
“‘Allah’ ban: 15,000 copies of bible seized”,
Malaysiakini, 29 October 2009, http://www.
20 April 2010).
8
For example, Mohd Asri criticised the National
Fatwa Council’s decision to announce a fatwa
(edict) banning Muslims from practising yoga
in 2008.
9
“Tamil daily warned over shooting reports”,
Malaysiakini, 14 November 2009, http://www.
20 April 2010).
10 Zaini Hassan, “Alkisah India di India dan India
di Malaysia”, Utusan Malaysia, 9 December
2009.
11 Ibid.
12 Ibid.
13 Zainul Ariffin, “Kematian Teoh timbulkan
spekulasi politik”, Berita Harian, 19 July 2009.
14 “Suara Keadilan, Harakah banned over
‘sensational and wrong’ articles”, The
Star, 24 March 2009, http://thestar.com.
April 2010).
15 “Parliament: Banned papers were warned”,
The Star, 24 March 2009, http://thestar.com.
my/news/story.asp?file=/2009/3/24/nation
/20090324131646&sec=nation (accessed on
20 April 2010).
16 Norani Othman (2005) Muslim Women and the
Challenge of Islamic Extremism, Petaling Jaya:
Sisters In Islam.
17 “Comic mag with Najib waving Mongolian
flag seized”, Malaysiakini, 25 August 2009,
18 Wain, B. (2009) Malaysian Maverick: Mahathir
Mohamad in Turbulent Times, Basingstoke,
Hampshire, UK: Palgrave Macmillan.
19 See “Mahathir squandered RM100 bil,
says new book”, Malaysiakini, 25 November
2009,
http://www0.malaysiakini.com/
news/118340 (accessed on 20 April 2010).
20 “Mahathir book ‘pending approval’ by Home
Ministry”, Malaysiakini, 23 December 2009,
21 “Home Ministry Still Studying Barry
Wain’s Book”, Bernama, 26 December 2009,
http://www.bernama.com/bernama/v5/
newsgeneral.php?id=464590 (accessed on 20
April 2010).
88
7/15/10 11:57 AM
22 “Online media barred from covering
proceedings”, The Star, 25 March
2009,
u m n o / s t o r y. a s p ? f i l e = / 2 0 0 9 / 3 / 2 5 /
umno/3547323&sec=umno (accessed on 20
April 2010).
30 “No censorship of the Internet”, The
Star, 8 July 2009, http://thestar.com.
my / n e w s / s t o r y. a s p ? f i l e = / 2 0 0 9 / 8 / 8 /
April 2010).
23 “Online daily barred from Najib’s cabinet
event”, Malaysiakini, 9 April 2009, http://www.
20 April 2010).
31 “Govt cancels Net filter plan”, The Star, 12
August 2009, http://star-techcentral.com/
tech/story.asp?file=/2009/8/12/technology/
20090812145638&sec=technology (accessed
on 20 April 2010).
24 “Guan Eng tells Utusan reporter to leave”,
Malaysiakini, 4 June 2009, http://www.
20 April 2010).
32 “Cow-head videos: mcmc to interview M’kini
7”, Malaysiakini, 7 September 2009, http://
w w w. m a l ay s i a k i n i . c o m / n e w s / 1 1 2 2 9 7
25 “‘Govt propaganda machine’ journalist
gets
PKR
boot”,
The
Star,
26
November
2009,
http://thestar.com.
April 2010).
33 “Cow-head videos: mcmc comes a-calling
again”, Malaysiakini, 10 September 2009,
26
Malaysia Bill of Guarantees (point
7),
http://www.mscmalaysia.my/topic/
M S C + M a l ay s i a + B i l l + o f + G u a r a n t e e s
(accessed on 15 June 2009).
msc
27 In 2006, the Malaysian government, in the
Aide-Memoire of its candidature to the un
Human Rights Council, pledged that it will
ensure “the promotion of a free media, including
in cyberspace” (Emphasis added) See
Malaysia (2006) “Aide-Memoire; Malaysia’s
Candidature to the United Nations Human
Rights Council”, dated 28 April 2006 (p. 1).
28 “Gov’t mulls China-style Net censorship”,
Malaysiakini, 6 August 2009, http://www.
20 April 2010).
29 “Malaysia denies Internet filter will
curb dissent”, Reuters, 8 July 2009,
h t t p : / / w w w. r e u t e r s . c o m / a r t i c l e /
idUSTRE5763JF20090807 (accessed on 20
April 2010).
34 “mcmc continues probe on cow-head videos”,
Malaysiakini, 31 December 2009, http://www.
20 April 2010).
35 “Blogger gets warning from mcmc”,
Malaysiakini, 15 September 2009, http://www.
20 April 2010).
36 “Raja Petra still a wanted man”, The Star,
11 November 2009, http://thestar.com.my/
news/story.asp?file=/2009/11/11/nation/2
0091111185105&sec=nation (accessed on 20
April 2010).
37 “’Bruno banned in Malaysia”, The Star, 28
September 2009, http://thestar.com.my/
news/story.asp?file=/2009/9/28/nation/20
090928201614&sec=nation (accessed on 20
April 2010).
38 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
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7/15/10 11:57 AM
(Jabatan Agama Islam Melaka, jaim) for
committing the “offence” of “men dressing
up as women in a public space”. See suaram
(2008) Malaysia Human Rights Report 2007:
Civil and Political Rights, Petaling Jaya: suaram
Kommunikasi (p. 127).
39 “Action against Fatine undecided yet”, Malay
Mail, 15 December 2009, http://www.mmail.
com.my/content/21956-action-againstfatine-undecided-yet (accessed on 20 April
2010).
45 “pm: aca to be fully independent”, Malaysiakini,
21 April 2008, http://www.malaysiakini.com/
news/81664 (accessed on 15 June 2009).
46 Section 2C of the osa states, “A Minister or
public officer charged with any responsibility in respect
of any Ministry, department or any public service or the
Menteri Besar or the Chief Minister of a State or the
principal officer in charge of the administrative affairs
of a State may, at any time, declassify any document
specified in the Schedule or any official document,
information or material as may have been classified
and upon such declassification, the said document,
information or material shall cease to be official secret.”
40 Section 2 Official Secrets Act 1972 (Act 88).
41 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)
42 See the chapter on Freedom of Information in
suaram’s 2006, 2007 and 2008 Human Rights
Reports.
43 “PM: Police to probe pkfz Cabinet paper
posted on the net”, The Star, 18 September,
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.
asp?file=/2009/9/18/nation/20090918151
311&sec=nation (accessed on 22 April 2010).
47 “Jail for Khalid”, The Malay Mail, 25
November 2009, http://www.mmail.com.
my/content/19884-jail-khalid (accessed on 22
April 2010).
48 “Bukit Antarabangsa report declassified”,
The Star, 6 December 2009, http://thestar.
April 2010).
49 “Declassify document, PJ folk tell mbpj”,
The Star, 15 April 2009, http://thestar.com.
my/metro/story.asp?file=/2009/4/15/
central/3685773&sec=central
50 “Penang not following Selangor plan”, The
Star, 1 December 2009, http://thestar.
April 2010).
44 “igp: Several people will be quizzed
over pkfz paper leak”, The Star, 24
September
2009,
http://thestar.com.
my/news/stor y.asp?file=/2009/9/24/
April 2010).
90
7/15/10 11:57 AM
chapter 4:
freedom of
ASSEMBLY
AND ASSOCIATION
7/15/10 11:57 AM
In
2009, there were mass arrests
of
participants
of
public
assemblies in numbers which
significantly exceeded those in previous
years, signalling the government’s increasing
intolerance of dissent. Although numerous
recommendations have been made by the
(suhakam) as well as the international
community in relation to freedom of
assembly, the government and the police force
continued to flout this fundamental right.
Almost a thousand individuals were arrested
for participating in peaceful assemblies
throughout 2009.
The massive anti-Internal Security Act
(isa) rally held on 1 August 2009 saw 589
individuals, including 44 juveniles, arrested.
This is possibly the greatest number of
persons arrested in a single public assembly
in recent years.
The Perak political crisis, which was
caused by the Barisan Nasional (bn)’s
questionable takeover of the Perak from
Pakatan Rakyat following the defection of
three elected state assemblypersons from
Pakatan Rakyat, sparked a wave of protests
around the country in May 2009. These
protests were met by a police crackdown
and 167 arrests were made in May alone.
Numerous other protests, rallies, vigils,
and gatherings held throughout the year,
particularly those critical of the ruling
BN government and its policies, were also
disrupted by the police, including with the use
of water cannons and teargas.
Many land rights activists and indigenous
leaders were also arrested by the police
throughout 2009, in relation to protests and
resistance against encroachment of ancestral
lands, especially by logging and oil palm
companies in Sarawak.
In contrast, several other demonstrations
which did not target the BN were tolerated
by the police. The contrasting response of
the police to these assemblies as compared
to those which were critical of the ruling-bn
government reveal the partiality of the police
force and its double-standards in regulating
public assemblies in the country.
At the same time, the freedom of
association of societies, organisations,
movements, political parties, students,
and workers continued to be restricted by
various laws, such as the Societies Act, the
Trade Unions Act, and the Universities and
University Colleges Act. The year saw at least
one ngo being targeted by the government
with a threat of deregistration following its
critical views on the government’s policies.
Legal Restrictions on Freedom of
Assembly
The right to assemble in Malaysia is severely
circumscribed by the Police Act 1967, which
confers wide discretionary powers on 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 interrupt
the assembly, meeting or procession and order
its stoppage. (See also Box 4.1)
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
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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
In addition, the Act provides the police
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
imprisoned for up to one year.5
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. These court orders, issued
under Section 98 of the Criminal Procedure
Code, are aimed at “[preventing] obstruction,
annoyance or injury to any persons lawfully employed,
or danger to human life, health or safety, or a riot or
any affray.”
Box 4.1: Sections 27, 27A and 27B of the Police Act 1967
27. Power to regulate assemblies,
meetings and processions.
“… [A] police officer may at any time on any
ground for which the issue of a licence under this
subsection may be refused, cancel such licence.”
(Section 27, subsection 2)
been issued or having been issued was subsequently
cancelled under subsection (2) or which contravenes
any of the conditions of any licence issued […];
and any such police officer may order the persons
comprising such assembly, meeting or procession to
disperse.” (Section 27, subsection 3).
“No licence shall be issued under subsection (2)
on the application of an organisation which is not
registered or otherwise recognised under any law in
force in Malaysia.” (Section 27, subsection
2D)
27A. Power to stop certain activities
which take place other than in a
public place.
“(1) Where any activity takes place on or in any
land or premises which do not constitute a public
place and –
(a)
the activity is directed to, or is intended to
be witnessed or heard or participated in by, persons
“Any police officer may stop any assembly, meeting
or procession in respect of which a licence has not
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7/15/10 11:57 AM
outside the land or premises, or is capable from all
the circumstances of being understood as being so
directed or intended; or
(b)
the activity attracts the presence of twenty
persons or more outside the land or premises; or
(c)
the activity is likely to be prejudicial to the
interest of the security of Malaysia or any part
thereof or to excite a disturbance of the peace, any
police officer may order the persons involved in the
activity to stop the activity and may order all persons
found on or in or outside the land or premises to
disperse.”
Recommendations Relating to
Freedom of Assembly and the
Government’s Response
The Human Rights Commission of Malaysia
(suhakam) has, in several of its reports, stated
that the ban on public 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.
27B. Use of force in dispersing or
arresting persons pursuant to section
27 or 27A.
“If persons are ordered to disperse […] and do
not disperse, any police officer or any other person
acting in aid of a police officer may do all things
necessary for dispersing them and for arresting them
[…], and, if any person makes resistance, may use
such force as is reasonably necessary for overcoming
resistance.”)
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
In May 2008, the police, ignoring
suhakam’s
previous
recommendations,
again 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 the
case and noted the failure of the government
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7/15/10 11:57 AM
to implement the previous recommendations
made by suhakam with regards to freedom of
assembly:
“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 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 heavyhanded action of fru personnel as found in this
Public Inquiry.” 10
The serious and repeated violations
of freedom of assembly in 2009 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.
As a result of the deteriorating situation
pertaining to freedom of assembly in the
country and the Malaysian government’s
failure to implement most recommendations
made by suhakam, the international
community has also taken interest and made
further recommendations with regard to the
right to assembly in Malaysia. In February
2009, when Malaysia’s human rights
record was scrutinised by the international
community at the United Nations Human
Rights Council’s Universal Periodic Review
(upr), several United Nations member states
recommended the following:
“That the Police Act be reformed in such a
way that the requirement of a police permit
for public assemblies of three or more persons
does not violate the right to peaceful assembly
(Netherlands); Repeal or amend the Internal
Security Act and the Emergency Public Order
and Preventive Ordinance in accordance with
its international human rights obligations, and
in the meantime refrain from applying them to
political activists, journalists or others engaged
in peaceful activities (Canada).” 11
In response to this, in June 2009, during
the formal adoption of the United Nations
Human Rights Council’s review of Malaysia,
the Malaysian government said:
“The right to peaceful assembly is fully
guaranteed by the Federal Constitution.
However, as is the practice in other countries,
the government considers that the requirement for
permits or approval from the relevant authorities
to hold such assemblies or gatherings is essential
for the maintenance of security, public order,
morality, and to avoid incitement to disturbances
of peace.” 12
In August 2009, Home Minister
Section 27 of the Police Act would be
reviewed to “recognise the right of the public to gather
peacefully”. But the minister also said that such
public gatherings would only be allowed if
they are confined to “suitable areas” to ensure
“national security and stability”.13 However,
as of 31 December 2009, no amendments to
Section 27 of the Police Act had been tabled
in Parliament.
Protest against Israeli Bombing of
Gaza
On 10 January 2009, 21 persons including
three elected representatives and three
suaram coordinators – Tah Moon Hui,
Enalini Elumalai and Wong Chai Yi – were
arrested for organising and participating in a
vigil held in Kuala Lumpur to protest against
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7/15/10 11:57 AM
the Israeli bombing of Gaza. They were all
released on the same day without charges.
Protest against BN Takeover of Perak
State Government
In February 2009, three elected Perak
state assemblypersons resigned from their
respective parties which are part of the
federal opposition Pakatan Rakyat coalition.
While they became independent state
assemblypersons, the three pledged support
for bn in matters of confidence in Perak the
state assembly. Thus, Pakatan Rakyat, which
had ruled the state of Perak since the 2008
General Election, lost its majority in the Perak
state assembly.
Following this, then-Perak Menteri Besar,
Nizar Jamaluddin from Pakatan Rakyat,
requested for the Sultan of Perak to dissolve
the Perak state assembly to make way for statewide elections as both Pakatan Rakyat and
bn did not command a clear majority. Both
Pakatan Rakyat and bn held 28 seats each at
the state assembly, but the latter commanded
additional support from the three defecting
state assemblypersons. However, instead
of heeding the request to dissolve the state
assembly, the Sultan of Perak asked Nizar
Jamaluddin to resign. When Nizar failed to
resign, the Sultan of Perak appointed Zambry
Kadir from bn as the new Menteri Besar, thus
effectively dismissing Nizar Jamaluddin from
the position. (See more details, including the court
cases relating to this crisis, in Chapter 6: Law and
the Judiciary)
The bn’s takeover of the Perak state
government and the dismissal of Pakatan
Rakyat’s Nizar Jamaluddin as the Menteri
Besar of Perak were thus widely seen
as undemocratic and unconstitutional.
Numerous protests, rallies, vigils, and
gatherings were held in response to the
bn’s takeover, which were met with harsh
crackdown by the police. One hundred sixtyseven arrests were made by the police during
these protests and gatherings in May alone.
On 6 February 2009, nine people were
arrested in Kuala Kangsar during a protest
march of about 3,000 Pakatan Rakyat
supporters to stop the swearing in ceremony
of Zambry Kadir from bn as the new Menteri
Besar of Perak, replacing Nizar Jamaluddin
from Pakatan Rakyat. During the march, the
police also fired several rounds of teargas at
the protestors. All nine arrested were only
released on a bail of RM4,000 each after four
days in detention. They were charged with
participation in an illegal assembly under the
Police Act. As of 31 December 2009, their
trials were still pending.
At the installation ceremony of the Perak Menteri Besar on 6
February 2009, protestors faced tear gas from police. (Photograph
On 6 May 2009, 14 people, including
suaram staff John Liu and Temme Lee,
were arrested in Kuala Lumpur for holding
a candlelight vigil demanding the release of
academic and activist Wong Chin Huat who
was arrested on 5 May 2009 under the Sedition
Act in connection with a public campaign
against the bn’s takeover of the Perak state
government from Pakatan Rakyat (See Chapter
3: Freedom of Speech and Expression). All 14 who
were arrested during the candlelight vigil on 6
May 2009 were subsequently released on the
same day without any charges.
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7/15/10 11:57 AM
Campaigners are released from police lock-up on 8 May 2009 after being arrested the previous day at a candlelight vigil in support of
detained human rights activist Wong Chin Huat. (Photograph courtesy of Malaysiakini)
The following day, another vigil was
held for Wong Chin Huat who was still being
detained. The police once again disrupted the
vigil and arrested 14 individuals. Upon the
arrests, five lawyers went to the police station
to provide legal representation to the arrested
individuals. While the five lawyers were
requesting to meet the arrested individuals,
the police issued another order for the crowd
to disperse, and subsequently arrested the five
lawyers and a journalist. All 20 arrested that
night were released on 8 May 2009. suhakam
later held a public inquiry into the arrest of
the five lawyers. (See Chapter 8: Human Rights
Commission of Malaysia)
Then on 6 May 2009, the police obtained
a court injunction which prohibited the
public from being within 500 metres of the
Perak State Secretariat building in the Perak
state capital of Ipoh while the controversial
state assembly was in session. The injunction
empowered the police to arrest on sight any
member of the public seen within the vicinity
of the building where the state assembly
sitting was scheduled to take place. The police
also warned the public not to wear black – a
symbol of popular protest against the bn’s
takeover of the state government of Perak –
or to gather at the state assembly sitting on 7
May 2009.
On 7 May 2009, a total of 69 individuals
were arrested in Ipoh for breaching this court
order. Those arrested included 10 elected
representatives. In Kuching, Sarawak, another
10 individuals were arrested at a similar
gathering to protest against the usurpation of
state power in Perak.
In Penang, suaram branch secretariat
member Ng Eng Kiat was arrested during a
candlelight vigil attended by some 100 people
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7/15/10 11:57 AM
on 8 May 2009 to show support for Wong
Chin Huat who had been arrested under the
Sedition Act.
On 21 May 2009, another 16 individuals,
including Selangor State representative for
Teratai, Janice Lee, were arrested in Kuala
Lumpur for holding another candlelight vigil
outside her service centre. The organisers
had made an application for a police permit
for the gathering but their application was
rejected by the police. About 40 police
personnel, along with members of the light
strike force unit, were deployed to the area.
The 16 were remanded for two days and were
released on police bail upon the expiration of
their remand order.
Anti-PPSMI Rally
On 7 March 2009, the police fired teargas at
some 8,000 people14 who had gathered for
a march from the National Mosque to the
Istana Negara (National Palace) in Kuala
Lumpur to protest against the government’s
policy on the teaching of mathematics and
science in the English-language in schools.
Various groups have opposed this policy,
more popularly known by its Malay acronym
PPSMI (Pengajaran dan Pembelajaran Sains
dan Matematik dalam Bahasa Inggeris)
[Teaching and Learning of Science and
Mathematics in English-Language], with
several demands, including the guarantee
of the right to education in mother-tongue
languages. (See also the chapter “Campaign against
the Teaching of Mathematics and Science in English:
A Multi-Ethnic Struggle for the Right to Mother
Tongue Education in Malaysia” in this report.)
While most of the protestors succeeded
in marching to the National Palace to deliver
its memorandum to the palace officials, the
police arrested at least three protestors during
the march.
Police fire tear gas on 7 March 2009 during the demonstration in Kuala Lumpur supporting the right to be educated in one’s mothertongue. (Photograph courtesy of Malaysiakini)
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Anti-ISA Rally
On 1 August 2009, a massive rally
participated by an estimated 30,000 people
was held in Kuala Lumpur to demand the
repeal of the Internal Security Act (isa). In
the week preceding the rally, both the police
and the government issued warnings to the
organisers to call off the event. On 27 July
2009, an umbrella group of ngos which
support the isa also urged the Abolish isa
Movement (Gerakan Mansuhkan isa, gmi) to
cancel its rally, threatening a counter-rally
in support of the isa should the anti-isa rally
proceed. Then on 28 July 2009, the Kuala
Lumpur police chief warned that the police
would arrest participants of either rallies on
the spot as organisers of both the pro- and
anti-isa rallies did not obtain police permits.15
Furthermore, on 30 July 2009, Home Minister
Hishammuddin Hussein warned that “stern
action” would be taken against those who
participated in either rallies, saying that he
would “not compromise on this [matter] until the
security and interests of the country are assured”.16
On 1 August 2009, the anti-isa rally
proceeded as planned but the counter-rally
in support of the isa failed to materialise.
Even before the start of the anti-isa rally, the
police mounted road blocks and disrupted
train services in an attempt to deter the
public from participating in the rally. As
early as 11:00am, even before the rally had
begun, the police had already arrested over
25 individuals at one of the meeting points
for the rally. The police used batons, shields,
water cannons and teargas to disperse the
crowd and arrested a total of 589 individuals,
including 44 juveniles. Out of the 589, at least
29 were charged with illegal assembly. (See also
Chapter 2: Abuse of Power by the Police and Other
Law Enforcement Agencies) Their trials were still
pending as of 31 December 2009.
Police deployed water cannons, among other equipment, against the 30,000 protestors who attended the anti-isa rally on 1 August 2009
in Kuala Lumpur. (Photograph courtesy of Malaysiakini)
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7/15/10 11:57 AM
At the 1 August 2009 anti-isa rally, police made 589 arrests, including 44 of minors. Prior to the event, the government announced it
would take “stern action” against participants. (Photograph courtesy of Malaysiakini)
In November 2009, Home Minister
Hishammuddin Hussein revealed that 663
policemen had been deployed during the
demonstration while 442 were on standby
at various locations around Kuala Lumpur;
182 Federal Reserve Unit (fru) personnel had
been deployed to disperse the demonstrators,
while 973 teargas canisters costing RM89,000
were used by the police at the rally.17
The government deployed large contingents of police personnel
to suppress the anti-isa protest. According to the Home Ministry,
on hand were 663 police officers and 182 Federal Reserve
Unit personnel, in addition to 442 police officers on standby.
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7/15/10 11:57 AM
Protest against MACC over the Death
of Teoh Beng Hock
Harassment of Public Speeches and
Gatherings
On 17 July 2009, the police forcibly dispersed
about 300 protesters who had gathered outside
the Malaysian Anti-Corruption Commission
(macc) Selangor office in Shah Alam, Selangor,
demanding that the macc be investigated for
the death of Teoh Beng Hock, an opposition
politician’s aide who was found dead in the
compound of the macc headquarters on 16
July 2009 after he was interrogated by the
Commission over the alleged misuse of the
Selangor state government’s funds.
In March 2009, in the run-up to the byelections – in Bukit Gantang (Perak), Bukit
Selambau (Kedah), and Batang Ai (Sarawak)
– the government imposed various forms of
restrictions on political parties in their election
campaigns. These included the ban on
political parties from bringing up the murder
of Mongolian national Altantuya Shaaribuu,
to whom Najib had been allegedly linked. In
Bukit Selambau, Kedah, the police restricted
ceramah (public political speeches) by political
parties to indoor venues.18
On 23 March 2009, 31 people were
arrested by the police during a ceramah in the
run-up to the Bukit Selambau by-election
which was held on a field in Sungai Petani,
Kedah. The Federal Reserve Unit (fru) used
water cannons and tear gas to disperse the
crowd who had gathered to hear Opposition
leaders, including Anwar Ibrahim, speak. The
fru started to fire tear gas and water cannons
at the crowd as soon as Anwar Ibrahim took
the stage.
On the following day, 24 March 2009,
the police again disrupted another ceramah
given by Anwar Ibrahim. The ceramah was
held in Bukit Gantang, Perak, as part of
the opposition’s campaign for the Bukit
Gantang by-election. Two hundred riot police
personnel reportedly ordered the crowd to
disperse soon after Anwar Ibrahim arrived at
the venue and was slated to speak. Following
this, the crowd dispersed without any arrests
made during the night.
On 18 June 2009, the police issued a
permit under Section 27(2) of the Police Act
to the opposition Democratic Action Party
(dap) to hold its annual dinner on 27 June
2009 in Kuala Kangsar, Perak. However, the
permit was issued on the condition that only
one speech, by the party treasurer, would be
allowed throughout the entire event. The
Fellow protestors tend to Lu Chuan Boon, an aide of Selangor
executive councillor Elizabeth Wong, after he was dragged
30 metres by the police at a July protest outside the Malaysian
Anti-Corruption Commission’s Shah Alam office. (Photograph
Merely 10 minutes into the protest, the
Federal Reserve Unit (fru) began dispersing
the crowd and arrested at least seven protesters,
including parliamentarian S. Manikavasagam
and Selangor executive councillor Dr Xavier
Jayakumar. Lu Chuan Boon, an aide of
Selangor executive councillor Elizabeth
Wong, was dragged by the police for about 30
metres when he refused to budge and sat on
the ground. However, he fainted while he was
being pulled and the police decided to carry
him into the macc building. Selangor state
assemblyperson Gan Pei Nee was beaten on
the head while trying to help the protestor
who was being dragged by the police.
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police also warned the party not to utter
seditious statements at the gathering.
On 21 June 2009, the police disrupted
another dinner organised by the dap in Klang,
Selangor. The police had earlier withdrawn a
permit issued for the event which had specified
that no political speeches would be allowed
at the dinner. The event was eventually held
under heavy police surveillance with seven
water cannons and the venue was cordoned
off by the police. After negotiations between
the organisers and the police, the dinner was
allowed to proceed but was disrupted when the
police confiscated the amplifiers at the dinner
to prevent the speakers from continuing with
their speeches.
Arrests of Land Rights Activists at
Blockades and Demonstrations
On Malaysia Day, 16 September 2009,
15 Sarawakians – mostly from indigenous
groups – were arrested by the police while
handing over a memorandum to the Sarawak
Chief Minister in Kuching to highlight
their problems and their opposition to the
construction of the Baram and Murum
dams in Sarawak. The 15 arrested were
Mark Bujang (Executive Director of Borneo
Research Institute, brimas), Hellan Empaing
(President of Wanita Desa Sarawak, wadesa),
Dominic Ng, Johannes Ya, Rukka anak Laku,
Philan Yau, Nan Evan, Simon Saging, Ramly
anak Datuk, Abin Bira, Sui Alloh, Nang
Buleng, Panai Irang, Bujang Dalong, and
Koleh Ngo. They were eventually released
on police bail on the same day. The 15 were
initially ordered to appear in court on 29
September 2009 to face charges of illegal
assembly, but none of them had been charged
as of 31 December 2009.19
On 19 September 2009, 15 individuals
from the indigenous Iban community in
Sarawak’s Pantu District were arrested by
the police after being accused by a palm oil
company of attempting to harvest oil palm
fruits grown on the Ibans’ ncr land. After
detaining them for about 12 hours, the police
released them all.20 On 24 October 2009, nine
people, including an Iban indigenous leader
who had mounted a blockade against loggers
in their community’s native customary land
area, were arrested by the police.21
Protests Staged by Foreign Nationals
On 15 June 2009, the police fired teargas to
disperse some 700 Iranians who protested in
front of the United Nations office in Kuala
Lumpur against the alleged vote-rigging
during the elections in Iran. The Iranians,
however, managed to submit a memorandum
to the United Nations officials before being
forcibly dispersed by the police.
On 19 June 2009, 16 Burmese refugees
were arrested by the police during a gathering
in Petaling Jaya, Selangor to celebrate the
64th birthday of the imprisoned Burmese
opposition leader Aung San Suu Kyi. A
team of 30 police officers broke up the
gathering even before the start of the event,
jointly organised by Pakatan Rakyat and the
Petaling Jaya City Council. The police also
mounted road blocks in an attempt to stop
the celebration. The 16 arrested were initially
detained at the Petaling Jaya police station
but were subsequently handed over by the
police to the Immigration Department. They
were denied access to lawyers while in police
detention. (See also Chapter 6: Refugees, Asylum
Seekers and Undocumented Migrants.)
UMNO Protest against Opposition
Leader Karpal Singh
As in the previous year, assemblies purportedly
held in defence of “Malay rights”, Islam and
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the monarchy were tolerated by the police.
Unlike other demonstrations, the police did
not make any arrest or use violence to disperse
the crowd.
Examples included the simultaneous
rallies, held in Perak and Melaka on 8
February 2009, to protest against Opposition
politician Karpal Singh who had said that the
Sultan of Perak could be brought to court for
issuing a statement ordering the incumbent
Menteri Besar of Perak from Pakatan Rakyat
to resign, thus in effect consenting to the bn’s
takeover of the Perak state government from
Pakatan Rakyat following the controversial
defections of three Pakatan Rakyat state
assemblypersons.
The rally in Perak was organised by
Barisan Bertindak Perpaduan Melayu Malaysia
(Malay Unity Action Front of Malaysia).
During the rallies, protestors carried banners
with slogans such as “Daulat Tuanku” (“Long
live your majesty”), “Lucutkan Kerakyatan Karpal
Singh” (“Revoke Karpal Singh’s citizenship”),
and “Nizar menderhaka” (“Nizar is a traitor”).
The group of protestors was stopped from
marching to the Perak palace because they
had no police permit and was advised by
the police to hold their protest at the original
venue, which was on a private property.22
At the same time, the participants of
the rally in Melaka, organised by youth
organisation Melaka 4B, were allowed to
protest for one hour before being dispersed
peacefully by the police.23
“Cow Head” Protest
On 28 August 2009, a protest was held
by some 50 Malay-Muslim residents over
the relocation of a Hindu temple to a
predominantly Muslim neighbourhood in
Six men were charged with wrongful assembly and sedition for marching with this severed cow’s head in August 2009 to protest the
relocation of a Hindu temple to their Muslim neighbourhood. Cows are considered sacred in Hinduism. (Photograph courtesy of
Malaysiakini)
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7/15/10 11:57 AM
Shah Alam, Selangor. The protestors carried
a slaughtered cow’s head – a grave insult
to Hindus as the cow is a sacred animal in
their religion. They gathered in front of the
Selangor state secretariat building and placed
the cow’s head at the entrance of the building.
Several speeches were made, warning the
Selangor state government against the
relocation of the Hindu temple to the
protestors’ neighbourhood. Before dispersing,
several protesters spat and stomped on the
cow’s head.
The government initially tolerated this
incident and even appeared to condone the
actions of the protestors. On 2 September
2009, Home Minister Hishammuddin
Hussein publicly defended the protestors by
saying that the protestors “just wanted their
voices to be heard”. The minister further said
that there was no police action against the
protestors despite not having obtained a
permit for the gathering because “the protest
was not big and [the protestors] were very respectful of
the Selangor Sultan”.24
However, the government soon changed
its position after a public outcry and charged
six individuals who had taken part in the
protest with wrongful assembly and sedition
on 9 September 2009. They pleaded not
guilty and the trial was still pending as of 31
December 2009.
Nevertheless, human rights groups
have expressed their opposition to the use of
Section 27 of the Police Act and the Sedition
Act against these protestors as both these laws
undermine fundamental human rights. On
numerous occasions in the past, suaram has
called for the enactment of a Race Relations
Act and the setting up of a permanent Race
Relations Commission to deal with issues
related to racism such as this. (See also Chapter
5: Freedom of Religion and Matters Pertaining to
Religion)
HINDRAF Candlelight Vigil and
Protest
Sixteen individuals were arrested during
a candlelight vigil which was organised by
the Hindu Rights Action Force (hindraf)
on 5 September 2009 in Kuala Lumpur in
response to the cow-head protest. The vigil
was held to call for peace and solidarity
among Malaysians. The participants of the
vigil, carrying red and white candles and
roses, planned to march from Masjid Jamek in
Kuala Lumpur towards the nearby Dataran
Merdeka (Independence Square). However,
they were stopped by the police before they
could reach their destination. The police
ordered the crowd to disperse, giving them
only 10 seconds to do so. After counting
to 10, the police swiftly moved in to arrest
several individuals including hindraf leader
S. Jayathas. After the arrests, the crowd
began to disperse, but the police continued
to arrest others, including hindraf leader
P. Uthayakumar, who was walking away
from Dataran Merdeka with his wife. He was
reportedly pinned to the ground by the police
and was hoarded into a police truck nearby.
Uthayakumar’s wife was also arrested by the
police. Later, two other individuals who were
sending out SMS alerts on the arrests some
distance away from Dataran Merdeka were also
arrested by the police.25
This was not the first time that a
hindraf-organised event had been marred by
police violence and arrests. On 28 February
2009, about 300 hindraf supporters, who
had gathered at the Brickfields police station
in Kuala Lumpur to demand that medical
attention be given to hindraf leader and
then-isa detainee P. Uthayakumar, were
sprayed with chemical-laced water by the
police when they failed to comply with a
10-second order to disperse. The hindraf
supporters were there to lodge police reports
over the government’s alleged lack of medical
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attention to then-detained Uthayakumar who
was suffering from ill health in detention.
Seventeen individuals were arrested during
that gathering.
had indeed violated the rights of peaceful
assembly.
Other Cases of Prosecution of
Participants in Public Assemblies
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.
In recent years, opposition parties and
ngos have faced difficulties, including delays
and dismissal by the Registrar of Societies
(ros) in their efforts to register as political
parties or societies. One example is that of
the Socialist Party of Malaysia (Parti Sosialis
Malaysia, psm), which only obtained its legal
registration as a political party in 2008 – 10
years after it first filed its application. ngos also
face such difficulties, for example Amnesty
International, which remains unregistered
despite numerous applications since 1998. Its
latest application, made in 2006 – the sixth
time since 1998 – was rejected by the ros.
Restrictions in breach of
the
fundamental right to 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:
On 23 January 2009, 21 individuals were
charged under Section 27 of the Police Act
for participating in an “illegal assembly” in
Petaling Jaya, Selangor on 9 October 2008.
They were also charged with failing to adhere
to a police officer’s order to disperse during the
assembly. All 21 individuals, including Petaling
Jaya Utara Member of Parliament Tony Pua,
Selangor executive councillor Ronnie Liu,
Kampong Tunku state assemblyperson Lau
Weng San, Petaling Jaya city council member
Tiew Way Keng, and Catholic priest Paulino
Francesco Miranda, claimed trial. If found
guilty, they can be fined up to RM10,000
and jailed up to one year. The trial was still
pending as of 31 December 2009.
On 26 March 2009, 14 people who had
earlier pleaded guilty to participating in the
25 November 2007 massive rally organised by
the Hindu Rights Action Force (hindraf) were
sentenced to a fine of RM750 each.
On 6 October 2009, the Ampang
Sessions Court in Kuala Lumpur acquitted
11 individuals from charges of taking part in
an illegal assembly and refusing to disperse
during the assembly at the Kesas Highway
in November 2000. At the demonstration
organised by the opposition coalition, thenknown as Barisan Alternatif in 2000, police
arrested 126 participants, of whom 11 were
charged while 115 others were released
unconditionally. suhakam subsequently held
a public inquiry into the alleged violations
by the police when dispersing and arresting
participants of the said assembly and released
a report in 2001, which stated that the police
Freedom of Association
“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
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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.
Harassment of NGOs
On 28 December 2009, the ros threatened
that it could deregister Sahabat Alam
Malaysia (sam) and other ngos which “act
extremely in fighting for their cause” and “if there is
proof that they are involved in activities which threaten
the nation’s interest”.26 sam is an ngo working
on environmental issues and has opposed
commercial logging, plantation development
and building of dams in the country. The
organisation has also been actively involved
in the protection of the rights of indigenous
peoples. The warning, however, was
apparently made without any substantial basis,
as ros director Mohd Alias Kalil was reported
as saying that the ros had not received an
official complaint against sam. Nevertheless,
Mohd Alias said that the ros will monitor sam
closely. Various ngos, including suaram27 and
the Sarawak Conservation Alliance Network
for the Environment (scane),28 criticised the
threat made by the ros and defended sam’s
legitimate activities as an ngo defending
environmental and indigenous peoples’ rights.
No further actions were taken by ros on sam
at year’s end.
Meanwhile, the ros revealed that
705 organisations had been deregistered
throughout 2009. In relation to this, ros
director Mohd Alias said that relevant
agencies under the Home Ministry should
ensure that the organisations do not operate
illegally after their registration with ros has
been cancelled.29
Restrictions on Freedom of
Association of Workers
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.”30 This restriction has
encouraged the setting up of in-house and
enterprise-level unions – keeping the labour
movement fragmented. The Director General
of Trade Unions has absolute discretion to
determine what “similar trades”31 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.32
Restrictions on Freedom of
Association of Students
The Universities and University Colleges Act
1971 (uuca) severely restricts students and
university staff in their exercise of free speech
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and expression, assembly and association. The
targets university students, imposing a
variety of prohibitions against students. These
include, among others, prohibiting student
bodies and organisations from 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.
In addition to the restrictions under
the uuca, undergraduate students and civil
servants, including teachers and 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”.33 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 forfeiture 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 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
universities often victimise students who are
involved in societies and groups which are not
overtly “pro-establishment”.
In December 2008, amendments were
made to the uuca and were passed by the
Parliament. When the amendments were
debated in Parliament on 11 December
2008, concerns were raised by several
uuca
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 concerns 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.34 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 […].”35
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.36
However, even after the 2008
amendments, the uuca remains restrictive.
Among the amendments made were:
• Part-time and graduate students, who were
previously exempted, will come under the
ambit of the Act.37
• 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
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from expressing support for, or opposition
to, any political party. Under the amend‑
ments, the minister will issue a list of
organisations which students are banned
from joining.38
• Students and student organisations are
banned from expressing support for, or op
position 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.39
In 2009, the un Special Rapporteur on
the Right to Education in the report of his
mission to Malaysia said:
“The Special Rapporteur urges the Parliament
of Malaysia urgently to amend this Act so
as to recognize and give effect to the freedom
of expression and association of university
students, as required by any modern and humane
developed society. […] It is necessary that
their rights within and outside the university be
guaranteed and that they be given the opportunity
to participate fully in the discussion of the
reform agenda.” 40
The report of the Special Rapporteur also
recommended the Malaysian Government to:
“Introduce amendments to the Universities and
University Colleges Act, so as to guarantee
recognition of the right of teachers and pupils
to freedom of expression, freedom of assembly
and their right to participate in political activity
[…].” 41
In February 2009, three students from
Universiti Utara Malaysia (uum) were charged
under the uuca for allegedly flouting the law.
Two of them, Choo Kok Wei and Medecci
Lineil Repong, were charged for planning an
online petition to protest against the increase
in the bus fare in uum and also releasing
statements to the media on the issue. The
third student, Tengku Hasrul, was charged
for criticising the uum vice-chancellor Nordin
Kardi on his personal blog. They were initially
called to face charges before the university’s
disciplinary board, but their cases were not
pursued further by the university authorities
following protests by fellow students and
several postponements of their disciplinary
hearings.
In October 2009, eight students from
Universiti Malaya were served notices
threatening disciplinary action for allegedly
contravening the uuca by inviting politicians
to two separate events at the university. On 19
November 2009, an inquiry was conducted
by the university to determine whether they
had breached the uuca and if action could
be taken against them. Although the inquiry
decided that the eight were not guilty of
breaches of the uuca, the students were given
a warning and were advised to follow the rules
provided in the Universiti Malaya statute.
Conclusion
The frequency and scale of public assemblies
have seen a continuous increase in the past
two years, and the government has responded
by clamping down even more on the
constitutionally enshrined right to freedom of
assembly through various means, including
police arrests and violence, prosecution, and
the issuance of judicial orders. Almost one
thousand individuals were arrested during
public assemblies in 2009. This is an increase
from the number of individuals arrested
during public assemblies in the past two years.
Besides the harassment of numerous
public assemblies which were held to protest
against many of the government’s policies,
the year also saw several rallies held in defence
of the ruling government and its existing
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policies, the entrenchment of “Malay rights”
and Islam in Malaysia, and the monarchy.
However, these rallies were largely tolerated
by the government and the police, exposing
the double-standards in the application
and enforcement of laws relating to public
assemblies. While the right to peaceful
assembly should be applied fairly, such
rallies have tended to racialise various issues,
contributing to an environment which further
provides justification for the government
to flout fundamental rights on the grounds
of maintaining peace and harmony in a
multi-ethnic and multi-religious society. In
the absence of laws which outlaw racism,
racial discrimination and other forms of
intolerance, existing repressive laws were used
to curb fundamental rights such as freedom
of assembly in the pretext of maintaining
peace and harmony.
The mass scale of arrests made
during assemblies in 2009 is a measure of
the heightened political control by the bn
government. The government’s attempts to
strengthen its political control also took the
form of threats and harassment against groups
and organisations which were critical of the
ruling bn government and its policies. This
was clearly seen in the government’s threat to
deregister an ngo working on environmental
issues.
109
7/15/10 11:57 AM
End Notes
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
suhakam
7
suhakam (2001b) Freedom of Assembly: A Report,
Kuala Lumpur: suhakam.
8
(2007) Report of suhakam Public Inquiry
into the Incident at klcc on 28 May 2006, Kuala
Lumpur: suhakam (p. 97).
9
Ibid.
10
suhakam
(2001a) Inquiry on its Own Motion into
the November 5th Incident at the Kesas Highway,
Kuala Lumpur: suhakam (pp. 64-66).
suhakam
(2009) Report of suhakam Public Inquiry
Into the Allegation of Excessive Use of Force by Law
Enforcement Personnel During the Incident of 27th
May 2008 at Persiaran Bandar Mahkota Cheras
1, Bandar Mahkota Cheras, Kuala Lumpur:
suhakam (p. 36).
11 Report of the Working Group on the
Universal Periodic Review of Malaysia,
review, A/HRC/11/30/Add.1, 3 June 2009
(p. 7, no. 16).
12 Ibid.
13 “ISA and Police Act to see changes”, New
14 Estimates according to Malaysiakini. See
“Demo anti-ppsmi dihujani gas polis” [Antippsmi Demo fired with teargas by the police],
Malaysiakini, 7 May 2009, http://www.
malaysiakini.com/news/99785 (accessed on 1
May 2010).
15 “isa rallies: Cops warn participants as both
groups refuse to budge”, Malay Mail, 29 July
2009.
16 “Nazri vows bn will keep isa, pro-isa man gets
to palace”, The Malaysian Insider, 2 August
2009, http://www.themalaysianinsider.com/
index.php/malaysia/33916-helter-skelter-aspolice-crush-protest (accessed on 1 May 2010).
17 “973 Tear-gas Canisters Used to Disperse
Anti-isa Protestors”, Bernama, 11 November
v5/newsgeneral.php?id=454390 (accessed on
1 May 2010).
18 “Opposition banned from raising Altantuya”,
Malaysiakini, 31 March 2009, http://www.
1 May 2010).
19 Communication with Mark Bujang, Executive
Director of brimas, 10 May 2010.
20 “Iban natives accused of ‘trespassing’ on
own land”, Malaysiakini, 19 September 2009,
(accessed on 1 May 2010).
21 “Iban leader detained over anti-logging
blockade”, Malaysiakini, 24 October 2009,
22 “Pro-royalty groups protest”, The Star,
8 February 2009, http://thestar.com.
my / n e w s / s t o r y. a s p ? f i l e = / 2 0 0 9 / 2 / 8 /
nation/20090208145014 (accessed on 1 May
2010).
23 Ibid.
24 “Hisham: Don’t blame cow-head protesters”,
Malaysiakini, 2 September 2009, http://www.
1 May 2010).
110
7/15/10 11:57 AM
25 “16 arrested at Hindraf candlelight march
in KL”, Malaysiakini, 5 September 2009,
26 “ros threatens to ban anti-logging ngo”,
1 May 2009).
27 “Malaysia’s Moral Bankruptcy: Legitimising
Loggers and Demonising ngos”, suaram,
2 January 2010, http://www.suaram.net/
node/254 (accessed on 1 May 2010).
38 Section 15, uuca (Amendments)
40 Report of the Special Rapporteur on the
right to education, Vernor MuñozVillalobos,
Addendum: Mission to Malaysia, A/
HRC/11/8/Add.2, 20 March 2009 (para. 76,
p. 23).
41 Ibid. (para. 87, p. 27).
28 “Group: ROS threat mars country’s image”,
The Star, 31 December 2009, http://thestar.
May 2010).
29 “ros threatens to ban anti-logging ngo”,
1 May 2009).
30 Section 2, Trade Unions Act 1959.
31 Ibid.
32 Section 27, Trade Unions Act 1959.
33 “Undergrads to sign good-conduct pledge,”
New Straits Times, 25 January 2002.
34 Khairy Jamaluddin, 11 December 2008, Third
Meeting of the First Session of the Twelfth
Parliament, Hansard, DR.11.12.08 (pp. 65-69)
DR-11122008.pdf (accessed on 15 June 2009).
Ibid. (p. 68).
35
“Amendments to uuca passed”, Malaysiakini,
36 11 December 2008, http://www.malaysiakini.
com/news/94741 (accessed on 15 June 2009).
111
7/15/10 11:57 AM
7/15/10 11:57 AM
chapter 5:
Freedom of
Religion and
Matters
Pertaining
to Religion
7/15/10 11:57 AM
R
Malaysia
continued to worsen in 2009 as a
result of the heightened politicisation
of religion in the country. While freedom of
religion is guaranteed under Article 11 of the
Federal Constitution, there are sectors that
contend that Islamic Syariah laws should have
supremacy in matters of faith. As a result,
various controversies in matters pertaining
to religion have surfaced. Furthermore,
interfaith dialogue between Muslim and
non-Muslim groups has been elusive, while
discourse among Muslim groups is largely
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”,1 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 two largest Malay/
Muslim political parties in Malaysia – 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.
This politicisation of religion has
heightened since 2008, 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. This
trend worsened in 2009.
eligious intolerance in
Meanwhile, longstanding issues in
contravention of the constitutional guarantees
of freedom of religion, including the right of
Muslims to leave Islam and the rights of nonMuslims with regard to matters of religion
in civil and Syariah courts, continued to be
unresolved, with several new cases surfacing
in 2009. Groups who contend that Muslims
have exclusive rights over the use of certain
Arabic words during worship have also put
the relations between the different religious
groups in Malaysia to a serious test.
Civil and Syariah Courts and
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
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7/15/10 11:57 AM
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 extremely uncommon for Muslims to
successfully renounce Islam. The civil courts
have largely taken the view that the Syariah
courts have jurisdiction over the issue of
apostasy.
In May 2008, in an extremely rare
judgement, 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.
The Penang state Islamic Council
appealed against the Syariah High Court
decision but on 19 March 2009, the Syariah
Appellate Court upheld a decision of the
Penang State Syariah Court permitting Tan
Ean Huang to return to Buddhism.
Although the judgements of the Syariah
High Court and the Appellate Court were
welcomed by many, as Siti Fatimah was
allowed to profess her 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.
Civil and Syariah Courts and
Disputes over Conversions
An increasing number of disputes over the
religion of persons who had purportedly
converted to Islam without the knowledge of
their families have surfaced in recent years. In
most of these cases, decisions were made by
the Syariah courts without the knowledge of
the non-Muslim families, while it is stipulated
in Article 121(1A) of the Federal Constitution
that civil courts have “no jurisdiction in respect
of any matter within the jurisdiction of the Syariah
courts”. Article 121(1A) was inserted in 1988
to prevent overlapping jurisdiction and
conflicting decisions by the civil and Islamic
courts.
On 6 July 2009, the Shah Alam High
Court in Selangor ruled that it had no
jurisdiction to determine the religion of
Mohan Singh, who had died on 25 May 2009.
According to religious authorities, Mohan
had converted to Islam in 1992, but this was
disputed by his family. The High Court’s ruling
thus allowed religious authorities to bury the
remains of Mohan according to Islamic rites.
The High Court’s decision was based on the
existence of a conversion certificate which
served as “sufficient proof ” that Mohan had
converted in 1992.
In April 2009, the nation witnessed yet
another controversial case of conversion
– that of three children of Indira Gandhi,
who were converted to Islam by their father,
Mohd Ridzuan Abdullah (formerly known
as K. Patmanathan, who had converted in
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7/15/10 11:57 AM
March 2009). Mohd Ridzuan had converted
the three children using their birth certificates
without the children themselves being present.
The case soon turned into a legal tussle, with
the Ipoh High Court granting Indira an
interim custody of her three children and
an injunction preventing her husband from
entering their home on 24 April 2009. Her
case remained pending at 31 December 2009.
Following this, the cabinet announced its
decision that children’s religious conversion
would not be allowed without both parents’
consent. In the cabinet’s decision, a child’s
religion must be in accordance with the
common religion at the time of marriage
between the parents if there is any dispute.
The cabinet also decided that a marriage
under the civil court could only be dissolved
under the civil law. In announcing this
decision, Minister in the Prime Minister’s
Department Nazri Aziz said that the
Attorney-General’s chambers would be asked
to look into all relevant laws that needed to be
amended. However, this decision was strongly
condemned by Muslim groups, including the
federal opposition Pan-Malaysian Islamic
Party (pas) and other Islamic ngos, which
contended that the decision goes against
Islamic laws and the Constitution, denying
the parent who converts to Islam his or her
right and responsibility over the future of
the children, and that this decision had been
made without proper consultation with all
parties.
On 16 June, Nazri Aziz announced that
amendments to three pieces of legislations,
namely the Law Reform (Marriage and
Divorce) Act 1976, the Administration
of Islamic Law (Federal Territories) Act
1993 and the Islamic Family Law (Federal
Territories) Act 1984, were being finetuned by the Attorney-General and were
due to be tabled at the Lower House of the
Parliament the following week. According
to the minister, the proposed amendments
included the provisions on the dissolution of
marriage, the right to custody of children, the
maintenance of children and wife, and the
division of matrimonial assets. Among the
proposed amendments were those pertaining
to the conversion of a child’s religion which
was expected to follow the cabinet decision in
April, barring parents from secretly converting
their children.
However, on 29 June 2009, the
amendments were put on hold after the
Conference of Rulers decided that any
amendments to legislation pertaining to
matters of religious conversion must first be
referred to the state religious authorities. The
rulers decided that the proposed amendments
should be adjourned pending feedback from
the state religious authorities.
On 23 December 2009, 27-year-old S.
Banggarma, who was converted by Islamic
authorities when she was seven, filed a suit at
the Penang High Court, seeking a court order
to nullify her conversion. Banggarma, whose
Muslim name is Siti Hasnah Vangarama
Abdullah, claimed that she was converted
to Islam while she was placed under the
care of a welfare home. She alleged that she
was made to sign a certificate of conversion
into Islam at the welfare home in 1989.
However, the Welfare Department claimed
that Banggarma’s conversion into Islam was
done by her natural father in 1983. This claim
has been denied by Banggarma herself. The
Welfare Department’s assertion has also been
challenged by her lawyer, who pointed out
that she would not have been converted by
the welfare home in 1989 if she was indeed
already a Muslim. Banggarma contends that
her conversion was unlawful as Section 80 of
the Penang Administration of Islamic Affairs
Enactment 1993 states that no child under the
age of 18 can be converted to Islam without
the parents’ permission. Banggarma’s suit
was still pending at the end of 2009.
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7/15/10 11:57 AM
S. Banggarma with her birth certificate and conversion certificate.
Banggarma claims that she was converted to Islam without her
consent when she was placed under the care of a welfare home.
“Deviationist” Teachings and
“Unauthorised” Islamic Practices
and Expressions
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 (the highest-ranking religious
official appointed to advise a state Ruler
on Islamic laws) 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
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 many arrests, detentions, and
announcements of “successful” rehabilitation
of deviationists and the curbing of deviationist
activities.
As of 31 December 2009, 55 “deviant”
groups and teachings in Malaysia have been
identified and blacklisted by the Department
of Islamic Development in Malaysia (Jabatan
Kemajuan Islam Malaysia, jakim) (See Table 5.1).
On 9 August 2009, it was reported that
20 followers of a “deviant teaching” were
arrested in Seremban, Negeri Sembilan
under Section 53 of the Negeri Sembilan
Syariah Criminal Enactment in an operation
held by the Negeri Sembilan state religious
affairs department. According to the religious
authorities, the group has been in operation
since 1998, and since 2003 the group has
been actively recruiting members numbering
up to 2,000 individuals around the state of
Selangor.2
On 16 September 2009, Abdul Kahar
Ahmad, a self-proclaimed “Malay prophet”,
was arrested by the Selangor Islamic Affairs
Department (jais) and was charged with five
counts under the Selangor Syariah Criminal
Enactment for 1) proclaiming himself to be
a Malay prophet, 2) conducting deviationist
teachings, 3) violating the Selangor Mufti’s
order, 4) blasphemy, and 5) spreading false
beliefs. He pleaded guilty to all five charges
and was sentenced to 10 years in jail, six
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7/15/10 11:57 AM
Table 5.1: JAKIM’s list of “deviants”
1
Nasrul Haq
29
Roslan Katimun / Ajaran Wali Sembilan*
2
Budi Suci
30
Tariqat Naqsyabandiyah Kadirun Yahya
3
Al-Watan
31
Wali Sembilan*
4
Budi Suci Sejati
32
Khatijah binti Ali @ Puan Tijah
5
Jawa Faradin
33
Syed Mutalib bin Syed Mohd Nordin
6
Silat Sunda Pukulan Ghaib
34
Ajaran Mohd Seman Al-Banjari
7
Tusuk Hikmat
35
Al-Arqam
8
Ilmu Kebatinan*
36
Golongan Anti Hadis
9
Potong Maya
37
Ajaran yang disampaikan oleh Juruzon bin
Abdul Latif atau dikenali juga sebagai
(Hj) Ahmad al-Walidie (Pak Su)
10
Naluri
38
Syiah
11
Kaula
39
Ajaran Hj. Ghazali Othman Hulu Kelang
12
Haqqullah Syahadah
40
Ajaran Hj.Kadar Ahmad
13
Rampai
41
Ajaran Ilmu Tajalli Ahmad Laksamana
14
Wali Suci
42
Ajaran ilmu Hakikat@
Jahar Dumin Hulu Langat
15
Kalimat Sakti
43
Tarikat Mufaridiah
16
Silat Pukulan Jarak Jauh
44
Ajaran Hassan Anak Rimau
17
Ilmu Tenaga Dalam Hikmat
45
Tarikat Aurad Ismailiah
18
Zikir Sha`ban Islam Haq
46
Ajaran Martabat Tujuh
19
Asal Wujud Garis Laksmana
47
Tarikat Samaniah Ibrahim Bonjol
20
Al-Ma`zat
48
Ajaran Sulaiman
(Bahtera Nabi Noh) [Noah’s Ark]
21
“Trancendentel Meditation” Maharisi Mahish Yugi
49
Ajaran Ilmu Hakikat Hassan bin Jonit
22
Ilmu Kebatinan*
50
Ajaran Ahmadiah/ Qadiani
23
Abdul Manan bin Harun - Tolak Hadis
51
Ajaran Mohd Nor Seman
24
Nasrun S.T.Qahar - Ilmu Mentauhidkan Allah
52
Ajaran Ayah Pin
25
Kumpulan Ikhwan/al-Mas
53
Al-Ma`unah
26
Kuasa Ghaib
54
Ajaran Azhar Wahab
27
Mohd Nordin Putih
55
Ajaran Hj.Banuar
28
Nasrun S.T.Qahar
*names
* Names of individuals or deviant teachings repeated twice in JAKIM’s
list. of individuals or deviant teachings repeated twice in jakim’s list
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7/15/10 11:57 AM
strokes of the cane and a fine of RM16,500
in October. Judge Abu Zaky Mohammad
said Abdul Kahar’s actions were “a threat to the
security of the religion, society and nation”.3
Religious lectures are also regulated
and controlled by state religious authorities.
Those who give religious lectures without
authorisation from religious authorities can
be penalised, as was seen in the arrest of Dr.
Mohd Asri Zainul Abidin, the former mufti of
the northern state of Perlis, in 2009.
On 1 October 2009, Dr Asri was
arrested by the Selangor State Department of
Religious Affairs (jais) and 30 police personnel
when he was giving a religious lecture to
more than 500 people at house in Kuala
Lumpur. The authorities later explained that
the arrest was made because Asri was giving
a lecture in the Selangor state without a
tauliah (authorisation) from the Selangor state
religious department. Mohd Asri was released
by the police but was asked to present himself
to the Gombak Timur Syariah Lower Court
on 3 October 2009, where a notice was given
for jais to question him on a later date.
On 18 October 2009, Mohd Asri was
charged with conducting a religious lecture
without certification of authority under
Section 119(1) of the Selangor Islamic
Religious Administration Enactment 2003,
which carries a jail sentence of up to two years
or a fine of up to RM3,000 or both upon
conviction. Mohd Asri claimed trial. His trial
was still pending as of 31 December 2009.
Mohd Asri served as a mufti of Perlis
from 2006 to 2008 and is widely known for his
liberal approach to Islam, which has caused
different opinions on certain issues between
him and other Islamic religious institutions,
such as the National Fatwa Council. For
example, Mohd Asri criticised the National
Fatwa Council’s decision to announce a fatwa
(edict) banning Muslims from practising yoga
in 2008. His arrest also came just several
days after the Malaysian Syariah Lawyers
Association submitted a memorandum to the
King opposing the proposed appointment of
Mohd Asri as the new president of the Islamic
Dakwah Foundation, claiming that he rejects
the teachings of several Islamic scholars. This
claim, however, was denied by Mohd. Asri.
Most books banned by the government
are those with religious themes or related to
questions pertaining to religion. In 2009, out
of the 25 books banned by the government,
12 were religious-themed. Most of the
assessments of books on religion and the
decision to ban are made by the Department
of Islamic Development, Malaysia (Jabatan
Kemajuan Islam Malaysia, jakim). (See also
Chapter 3: Freedom of Speech, Expression and
Information)
On 7 June 2009, the Pan-Malaysian
Islamic Party (pas) adopted a resolution at its
Muktamar (annual general assembly of the
party) which called for ngo Sisters in Islam
(sis) to be investigated and banned if it is
found to be “anti-Islam”. The party stated
that sis’s liberal views had caused confusion
and were a threat to Muslims’ faith, “especially
to the younger generation and to those who have a
secular education”.4 In addition, numerous
police reports were lodged against the ngo by
various Malay-Muslim groups following sis’s
call for a review of Syariah laws which allow
whipping as punishment for Muslims. In
November 2009, several staff members of sis
were summoned for questioning by the police
following these police reports.
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.
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7/15/10 11:57 AM
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, 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, for example, 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”.
Corporal Punishment for Alcohol
Consumption
On 20 July 2009, the Syariah High Court
in the Malaysian state of Pahang sentenced
Kartika Sari Dewi Shukarno, 32, to six
strokes of the cane and fined her RM5,000
after she pleaded guilty to consuming alcohol
in the previous year at a hotel there. It
led to a public outcry and international
condemnation. Questions were raised as to
whether a woman can be caned by the state.
While Section 289 of the Criminal Procedure
Code exempts women from the whipping
sentence, no such exemptions are provided
under the Syariah law.5 Following the public
outcry over Kartika’s sentence, the Syariah
Court reviewed its own decision and on 28
September 2009, the court’s appeals panel
upheld the caning sentence. At the end
of 2009, Kartika was still awaiting for her
sentence to be carried out.6
In September 2009, Indonesian national
Nasarudin Kamaruddin was sentenced by the
Kuantan Syariah High Court to one year in
jail and six strokes of the cane for consuming
alcohol on 27 Aug 2009. He pleaded guilty
to the charges. On 12 November 2009,
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Nasarudin’s caning sentence was carried out
and on 31 December 2009, he was serving his
one-year sentence in jail.
Restrictions on “Indecent Dressing”
and Cross-Dressing
Since 2008, Muslim women employees in
Kota Bharu, the capital of the Pan-Malaysian
Islamic Party of Malaysia (pas)-led state of
Kelantan, have been banned from wearing
thick make-up, bright coloured lipstick and
high-heeled shoes which made a tapping
sound to work. A circular issued by the Kota
Bharu Municipal Council in June 2008 stated
that the directive was to prevent incidents
like rape and illicit sex as well as to safeguard
the morals and dignity of Muslim women in
Kelantan. These restrictions are in addition to
the 2006 ban on “sexy or indecent” dressing
for all women and the compulsory wearing
of scarves covering the chest, long and loose
blouses with long sleeves, as well as socks for
Muslim women. Those who do not adhere
to the regulation can be fined up to RM500
under the municipal council’s by-law.7
In December 2009, several newspapers
in Malaysia covered the story of Fatine, a
Malaysian-born transsexual who had married
a British national in May 2009 and was
facing deportation back to Malaysia after her
visa was rejected by the British government
over an “incorrect” photograph. She filed a
second application but that too was rejected
and was awaiting the outcome of her third
application, citing the right to family life
under the Human Rights Act in Britain.
Fatine expressed her worries over her safety if
she was deported back to Malaysia as “crossdressing” is an offence under several Syariah
state enactments. On 15 December 2009,
Minister in the Prime Minister’s Department
said that the government was yet to decide
on its action against Fatine, as a confirmation
of her civil marriage in the uk needed to be
obtained by religious authorities in Malaysia.8
In recent years, many transsexuals have
been subjected to various serious human
rights abuses in Malaysia.
In 2007, suaram documented the case
of Ayu, a transsexual who was detained 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”
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.9
Fatwa Regulating Private Lives of
Individuals
In October 2008, the National Fatwa Council
issued a fatwa which ruled that Islam forbids
young women from behaving like men and
engaging in lesbian sex. 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”.10
On 22 November 2008, the National
Fatwa Council 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 is “against Islam” and “can erode
one’s faith or aqidah”.11
Malaysia’s federalist system places Islamic
law under state jurisdiction, as stated in List II,
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Ninth Schedule of the Federal Constitution.
As such, a fatwa is only enforceable 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.
Prohibition on Proselytising of
Muslims
Article 11(4) of the Federal Constitution
prohibits the proselytising of Muslims by
members of other religions. The preaching
of other religious doctrines to Muslims is
regulated by state law. According to Islamic
Syariah laws, it is a crime to attempt to convert
Muslims to other religions, punishable by
different penalties in the various state Syariah
laws in Malaysia. In Kelantan, for example,
the punishment for those found guilty of
trying to convert Muslims to other faiths may
face a maximum penalty of up to six strokes
of the cane and five years in prison. However,
there are no such restrictions on proselytising
non-Muslims in Malaysia.
On 14 July 2009, nine Christian students
were reportedly arrested by the police after
a Muslim student filed a complaint alleging
that the nine were trying to convert Muslim
students at Universiti Putra Malaysia. The
nine were handed over to the police by the
university security personnel. However, the
police found that the nine were handing out
forms and questionnaires on Christianity
instead of propagating the religion to Muslims
at the Universiti Putra Malaysia campus.
The police later clarified that the nine had
their statements recorded by the police for
investigations into allegations of trespassing
into the grounds of the university. They were
released after recording their statements.12
Restrictions on Christian
Publications and the Use
of the Word “Allah”
The federal and state governments also
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.
Thousands of copies of the bible were
seized throughout the year because they
carried the word “Allah”. In March 2009, 5,000
copies were confiscated; while in September
2009, 10,000 copies of Indonesian-language
bibles were seized by airport authorities in
Sarawak.13
Contentions surrounding the right to use
the word “Allah” by non-Muslims remained
unresolved in 2009. Following a January 2008
cabinet decision barring The Herald from using
the word “Allah”, the Catholic newspaper filed
a judicial review in March 2008, challenging
the Internal Security Ministry (now the
Home Ministry) and the government over its
decision, 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.
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7/15/10 11:57 AM
• 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 continue
using “Allah” in its publication until the
court decides on the matter.
On 16 February 2009, the government
gazetted an order titled “Internal Security
(Prohibition on Use of Specific Words on
Document and Publication) Order 2009”,
permitting the Roman Catholic newspaper
The Herald to use the word “Allah”, together
with the use of words “Kaabah”, “Baitullah”
and “Solat” in its publications albeit on the
condition that the publication carries the
words “For Christians Only” on its cover.
However, on 28 February 2009, the
government rescinded its gazette, thus
reinforcing the ban the use of the word
“Allah” in The Herald’s publications until the
court decided otherwise. The reversal in the
government’s decision was reportedly due to
a mistake when enacting the gazette. ThenHome Minister Syed Hamid Albar said,
“There is a judicial review on the matter and we leave
it to the court to decide. I think there was a mistake
in enacting the gazette.”14 On the previous day,
the Malaysian Islamic Da’wah Foundation
had urged the government to withdraw its
permission for the conditional use of the
word “Allah” in Christian publications, saying
that the government had not acted wisely
and warned that such decisions could anger
Muslims.
Meanwhile, ten states issued a fatwa
prohibiting non-Islamic uses of the word
“Allah” in 2009. The states which have
gazetted the fatwa are Johor, Malacca,
Negri Sembilan, Pahang, Perak, Kelantan,
Terengganu, Kedah, Perlis and Selangor.15
The fatwa was gazetted by the ten states
despite the then-pending court decision on
The Herald’s judicial review. Furthermore, it is
unclear as to how the fatwa can be enforced on
non-Muslims, since the ban on the use of the
word “Allah” is on non-Muslims.
On 12 November 2009, The Herald
claimed that it had received a letter from the
Home Ministry stating that its application
for a publishing permit for 2010 had been
rejected. However, on 15 November 2009,
the editor of the newspaper said that the
government had withdrawn its decision to
cancel its publishing permit. It was later
clarified that the publishing permit for the
Kadazandusun (language of an indigenous
ethnic group in Sabah) edition of The Herald
had been rejected by the Home Ministry.
On 31 December 2009, the Kuala
Lumpur High Court ruled in favour of The
Herald in its judicial review, thus declaring
that the Home Minister’s order prohibiting
the publication from using the word “Allah”
as “illegal, null and void”.16 Justice Lau Bee Lan
ruled that The Herald had the Constitutional
right to use the word “Allah” in its publications
under Article 3(1) of the Federal Constitution.
She further ruled that the Constitution, which
states Islam as the country’s religion, did
not empower the minister to make such a
prohibition.17
Demolition and Relocation of Places
of Worship
Recent years have also seen a number of
Hindu temples demolished by the local
councils, an issue which has raised public
alarm especially among non-Muslims. In
April 2009, the government announced plans
to relocate 29 Hindu temples in and around
Kuala Lumpur to several locations provided
by the Kuala Lumpur City Hall. However,
while 28 of the 29 temples agreed to relocate,
committee members at the Sri Muniaswarar
Temple located in Setapak, Kuala Lumpur
refused to comply with the government’s
proposal.18 The government has a policy that
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temples which refuse to relocate would be
given a 30-day notice to vacate, after which
the buildings would be demolished.
The Human Rights Party of Malaysia, a
party led by the banned Hindu Rights Action
Force (hindraf) leaders, in its 2008 report on
human rights violations against ethnic Indian
Malaysians, claimed that an average of one
Hindu temple was being demolished every
week in Malaysia in that year. However, this
claim was disputed by the leader of ruling
BN component party Malaysian Indian
Congress, Samy Vellu, who reportedly said,
“Demolition of one temple a day is an old tune which
[the Human Rights Party of Malaysia and hindraf
leader Waythamoorthy] is still singing. If one temple
a day [is demolished], it means in the last 25 years
there won’t be any Hindu temple[s] left.”19 Although
the Human Rights Party of Malaysia claimed
that one temple was being demolished every
week on average, Samy Vellu’s refutation
was against that of the purported average of
one temple demolition per day, which was
inaccurately attributed to the former.
In 2009, the Human Rights Party of
Malaysia, citing a news report in the Tamillanguage daily Malaysian Nanban, claimed that
an average of one Hindu temple, Hindu burial
ground, Tamil school, Indian settlement or
Indian squatter homes is relocated, damaged,
demolished or scheduled to be demolished
everyday.20 The Human Rights Party of
Malaysia, however, did not provide the details
of the places which it claimed were relocated,
damaged, demolished or scheduled to be
demolished in 2009.
The year nevertheless witnessed the
demolition of several Hindu temples,
including the Veera Muneswarar Alayam
temple in Jalan Yap Kwan Seng, Kuala
Devotees carrying a statue of a deity after the demolition of the Veera Muneswarar Alayam temple on Jalan Yap Kwan Seng, Kuala
Lumpur on 28 June 2009. (Photograph courtesy of Malaysiakini)
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Lumpur on 28 June 2009; and the Mathurai
Veeran Temple in Shah Alam, Selangor in
October 2009.
The “Cow-Head” Protest and Other
Acts of Religious Insensitivity
Certainly, the most high-profile case of temple
relocation in 2009 was the proposed relocation
of a Hindu temple to a predominantly MalayMuslim neighbourhood in Shah Alam,
Selangor. On 11 August 2009, the Selangor
state government announced that the proposed
relocation of the temple was final. The temple
was planned to be situated 200m from the
nearest house and 400m from a surau at its new
location. This announcement sparked protests
among Malay-Muslim residents there and
on 28 August 2009, some 50 Malay-Muslim
residents carried a slaughtered cow’s head – a
grave affront to Hindus as the cow is a sacred
animal in their religion – during a protest
against the relocation of the Hindu temple to
their neighbourhood. They gathered in front
of the Selangor state secretariat building,
placing the cow’s head at the entrance of
the building. Several speeches were made,
warning the Selangor state government
against the relocation of the Hindu temple
to the protestors’ neighbourhood. One
of the speakers even threatened violence,
saying, “If there is blood[shed], [the Selangor state
government] will be responsible if you are adamant
about building the temple.”21 Before dispersing,
several protesters spat and stomped on the
cow’s head.
The government was initially unmoved
by the issue and even appeared to condone
the actions of the protestors. However, the
government soon changed its position after
a public outcry and charged six individuals
who took part in the protest with wrongful
assembly and sedition on 9 September 2009.
Two protestors carrying the head of a slaughtered cow outside the Selangor state government building to protest the proposed relocation
of a Hindu temple to a predominantly Muslim area in Shah Alam in August 2009. (Photograph courtesy of Malaysiakin)
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7/15/10 11:57 AM
One of the leaders of the Malay-Muslim residents in Shah Alam who protested against the proposal to relocate a Hindu temple to
their residential area in August 2009. The protestors carried a slaughtered cow’s head and warned of possible violence. (Photograph
They pleaded not guilty and the trial was still
pending as of 31 December 2009. (See also
Chapter 4: Freedom of Assembly and Association)
On 5 September 2009, the Selangor state
government organised a public dialogue in an
attempt to seek a solution to the controversial
relocation of the Hindu temple in Shah
Alam. However, the event was marred by
the shouting of profanities and hurling of
insults at the leaders of the Selangor state
government by Malay-Muslim residents who
opposed the move to relocate the Hindu
temple to their neighbourhood. One of the
participants even threatened to rape Selangor
state executive councillor Rodziah Ismail.22
The dialogue came to an end after two hours
with the Selangor Menteri Besar announcing
that the state government would be looking
for an alternative site for the temple. Then
on 7 September 2009, the Selangor state
government announced that it had identified
a new site for the relocation of the Hindu
temple which is some distance away from the
originally-planned location.
In April 2009, jais claimed that a YouTube
video that allegedly offends Islam was being
circulated in the Internet. The video content
showed a man prostrating before a sheet of
paper containing a Quranic verse with an
audio background of the azan (Islamic call
to prayer). The video clip also purportedly
asserted that Muslims are allowed to eat pork.
jais subsequently lodged a police report on the
matter.
In May 2009, magazine Al-Islam
published a report of its investigations at
two Catholic churches in Kuala Lumpur on
allegations that young Muslims were being
converted to Christianity. The undercover
journalist who attended a church mass also
took part in the Holy Communion disguised
as a Christian, then spat out the holy wafer,
took a photograph of it and published it in
the Al-Islam magazine. Two Catholics lodged
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7/15/10 11:57 AM
a police report against the magazine in July
2009, saying that they were “outraged that these
Muslim men had consumed [the communion] only to
spit it out later, photographed it, and then publishing
it.”23 The two Catholics also held that the
actions of the journalist and the magazine
were in “total disrespect” for what Catholics
regard as sacred.
Conclusion
Religious intolerance continued to worsen in
2009 while other longstanding issues relating
to freedom of religion remained unresolved.
Post-2008 Malaysia has seen a heightened
politicisation of religion, as a result of the
umno-dominated bn government’s attempts to
regain the Malay majority vote by posturing
as the defender of Islam and the Malays.
This regressive trend continued in 2009. As
in the previous year, 2009 saw numerous
manifestations of Malay-Muslim groups
who propagate the supremacy of Islam and
Syariah laws over other religions and laws in
the country and those who promote freedom
of religion and equality among religions.
Sources of major contentions pertaining
to religious matters in Malaysia, such as
those concerning disputes over conversions
out of Islam and controversies over apostasy,
continued to surface without any adequate
solution, while the threat of violence in
the “cow-head” protest in August 2009 is
a manifestation of the worsening religious
intolerance in the country and double
standards in law enforcement by the police.
As the growing animosity between Muslim
and non-Muslim groups becomes increasingly
apparent, the failure to achieve an amicable
solution through open dialogues between
different faiths threatens to exacerbate the
worsening ethno-religious relations in the
country.
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End notes
1
Article 160, Federal Constitution of Malaysia.
2
“20 pengikut ajaran sesat ditahan” [“20
followers of deviant teaching arrested”],
Utusan Malaysia, 10 August 2009, http://
w w w. u t u s a n . c o m . m y / u t u s a n / i n f o .
asp?y=2009&dt=0810&pub=Utusan_
Malaysia&sec=Dalam_Negeri&pg=dn_19.
htm (accessed on 15 May 2010).
3
4
“’Prophet’ gets 10 years’ jail”, The Star,
22 October 2009, http://thestar.com.
courts/4952990&sec=courts (accessed on 15
May 2010).
“pas wants Sisters in Islam investigated”,
The Nut Graph, 7 June 2009, http://www.
thenutgraph.com/pas-wants-sisters-in-islaminvestigated (accessed on 15 May 2010).
5
Section 125 of the Syariah Criminal Procedure
Enactment even specifies how a woman should
be caned.
6
In March 2010, however, Kartika had her
caning sentence commuted by the Sultan of
Pahang to three weeks’ community service.
7
“kb council bans lipstick, high heels”, The
Star, 24 June 2008, http://www.thestar.
nation/21636718&sec=nation (accessed on
15 May 2010).
8
“Action against Fatine undecided yet”, Malay
Mail, 15 December 2009, http://www.mmail.
com.my/content/21956-action-againstfatine-undecided-yet (accessed on 20 April
2010).
9
See suaram (2008) Malaysia Human Rights Report
suaram (p.127).
10 “Malaysia Muslim body issues fatwa against
tomboys”, Reuters, 24 October 2008, http://
i n . re u t e r s. c o m / a r t i c l e / l i f e s t y l e M o l t /
idINTRE49N2AM20081024 (accessed on 12
November 2008).
11 “Fatwa Council says yoga with worshipping,
chanting is prohibited”, The Star, 22 November
2008,
asp?sec=nation&file=/2008/11/22/
nation/20081122111842 (accessed on 15 June
2009).
12 “Selangor police deny nine Christians detained
at UPM”, New Straits Times, 16 July 2009.
13 “‘Allah’ ban: 15,000 copies of bible seized”,
20 April 2010).
14 “Home minister rescinds new gazette on
‘Allah’”, Bernama, 28 February 2009.
15 “Remaining states to gazette ruling for
non-Muslim publications”, The Star, 10
March
2009,
http://www.thestar.com.
May 2010).
16 Home Minister Hishammuddin Hussein
responded by saying that the government
would appeal against the High Court decision.
On 8 January 2010, in an apparent response
to the High Court decision, three churches
were fire-bombed, while several other places
of worship of various faiths were vandalised in
the following days.
17 “High Court grants Catholic publication
Herald the right to use ‘Allah’ word again”,
The Star, 1 January 2010, http://thestar.
May 2010).
18 Human Rights Party of Malaysia, “Malaysian
Indian Minority & Human Rights Violations
Annual Report 2008”, presented by
Waytha Moorthy Ponnusamy at the Global
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7/15/10 11:57 AM
Organisation of People of Indian Origin
(GOPIO) and Pravasi Bharatiya Divas
International Conference, Chennai, India, 7-9
January 2009 (p. xviii).
19 “Hindraf Under Fire For Smearing Malaysia’s
Image”, Bernama, 8 January 2009.
20 Human Rights Party of Malaysia, “Malaysian
Indian Minority & Human Rights Violations
Annual Report 2009: Malay-sia Truly Racist”,
presented by Waytha Moorthy Ponnusamy
at Pravasi Bharatiya Divas International
Conference, Vigyan Bhawan New Delhi, 7-9
January 2010 (p. 24).
21 “Temple demo: Residents march with cow’s
head”, Malaysiakini, 28 August 2009, http://
22 “‘Charge those who threatened Rodziah
with rape’”, Malaysiakini, 8 September 2009,
23 Joachim Francis Xavier & Sudhagaran Stanley
(2009) “Muslim Men Spying in Catholic
Churches”, Press statement, 9 July.
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7/15/10 11:57 AM
chapter 6:
REFUGEES,
ASYLUM SEEKERS,
UNDOCUMENTED
MIGRANTS AND
TRAFFICKED PERSONS
7/15/10 11:57 AM
In
2009, Malaysia had still to
ratify the 1951 un Convention
relating to the Status of Refugees1
and its 1967 Protocol and recognise refugees
and asylum seekers as a special category of
people who need international protection
under domestic laws. This was despite
recommendations to do so by un member
states when Malaysia’s human rights record
was reviewed by the un Human Rights
Council under the Universal Periodic Review
in February 2009.
Thus, the Malaysian government
maintains its policy that blankets all
undocumented migrants, including refugees
and asylum seekers, as “illegal migrants”.
All persons found to be undocumented,
regardless of their circumstances and how
they become undocumented, are subject to
the harsh stipulations of the Immigration Act
1959/1963.2
This Act provides the Malaysian police
and immigration authorities widespread
powers to arrest, detain, and eventually
deport undocumented 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 civilian volunteers has 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 2009, 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 Commissioner for Refugees (unhcr)
cards. Under Section 6 of the Immigration
Act 1959/1963, persons without documents
or a valid visa can be sentenced to up to five
years in prison, fined up to RM10,000 and
subjected to six strokes of the cane.
Not surprisingly, Malaysia was once
again named as one of the worst places for
refugees by international watchdog, the U.S.
Committee for Refugees and Immigrants
(uscri) in 2009.3 In 2008, the same watchdog
ranked Malaysia as one of the ten worst places
for refugees.4 According to the World Refugee
Survey 2009, “Malaysian immigration officials
continued to sell deportees to gangs that operate along
the Malaysia-Thailand border. […] At least 1,00
0 refugees and asylum seekers were among the
deportees in 2008.” 5 The report also stated that
a child refugee was sentenced to whipping for
immigration violations. The report graded
Malaysia’s treatment of refugees as follows
(on a scale of “A” to “F”, F being the worst
category):6
1. Refoulement/Physical
Protection – F
There were over 100 refoulements
(deportation of refugees to their countries of
origin where conflict or persecution may still
occur) and severe governmental violence.
2. Detention/Access to Courts – F
There were more than 200 arbitrarily
detained refugees and they were impeded
from seeking redress in the courts.
3. Freedom of Movement and
Residence – D
There were harassment and restrictions in
policy and practice.
4.Right to Earn a Livelihood – F
There were severe restrictions in policy and
practice.
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Refugees, Asylum Seekers, Undocumented Migrants And Trafficked Persons
Detainees in the klia Immigration Depot, where living conditions
are deplorable. In Malaysia, refugees and asylum seekers are
detained as criminals, with unhcr having only limited ability to
assist them. The U.S. Committee for Refugees has repeatedly
ranked Malaysia as one of the worst places in the world to be a
refugee. (Photograph courtesy of Amnesty International)
UNHCR, Government Policies and
the Status of Refugees in Malaysia
As the “refugee” status is not officially
recognised in Malaysian law, recognition
by the United Nations High Commissioner
for Refugees (unhcr) in itself generally does
not provide any special rights under the
immigration laws.
During the Universal Periodic Review
of Malaysia at the un Human Rights Council
in February 2009, the United Kingdom
recommended that Malaysia “takes further steps
towards protecting human rights of migrant workers,
refugees and their dependents, including through the
signature and ratification of the 1951 Convention
relating to the status of Refugees”,7 while the
Netherlands recommended that Malaysia
“develops with unhcr an administrative framework to
distinguish refugees and asylum seekers from irregular
migrants and apply international standards for the
treatment of foreign nationals”.8
However, the Malaysian government did
not accept these recommendations and thus
maintained its position of non-recognition of
refugees and asylum seekers. In its response
to these recommendations, the Malaysian
government unambiguously stated that it “is
not party to the 1951 United Nations Convention
relating to the status of refugees and as such does not
recognise persons claiming refugee status or asylum
seekers”.9
The Malaysian government, however,
asserted that it “has instituted administrative
arrangements to provide assistance and protection to
persons claiming refugee status and/or asylum seekers
in possession of identification documents issued by
unhcr, based on humanitarian grounds on a case-bycase basis”.10
It further claimed that it is “improving
its legislative framework to establish an appropriate
mechanism for the treatment of such persons”.11 The
government, however, did not elaborate on
this assertion.
Notwithstanding this claim, law
enforcement authorities continue to arrest
and detain refugees and asylum seekers due
to their undocumented status under the
immigration laws.
As the government uses its nonratification of the Refugee Convention as
the basis for not protecting refugees, unhcr
only acts 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.
Nevertheless, from March and April
2009, access to immigration detention centres
by unchr improved dramatically. unhcr was
allowed to go into detention centres to register
asylum seekers and verify those who were
registered with them previously. Refugees and
asylum seekers whose asylum claims were
verified by unhcr would be released by the
Immigration authorities to unhcr although
the waiting period usually takes anywhere
from a month to more than six months.
However, unchr’s intervention in cases of
arrest and detention can still be difficult, as it
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is still largely subject to the discretion of the
Police and Immigration authorities.
In October 2009, Immigration officers
demanded a sum of RM500-700 each from
24 Chin refugees and asylum seekers at the
Lenggeng Immigration Detention Centre if
they wanted to meet unhcr officers. They
were told that they would not be allowed to
meet with unchr if they did not pay.
Since mid-2009, refugees and asylum
seekers reported increasing recognition of
unhcr cards and documentation, although
many with such documentation are still
arrested on a daily basis.
Refugees and Asylum Seekers in
Malaysia, 2009
According to unhcr, there were 65,350
recognised refugees registered under the
international agency in Malaysia as of 31
December 2009 while asylum seekers12
numbered 10,267, giving a total of 75,617
registered refugees and asylum seekers in
the country. Of the 65,350 refugees, 13,370
were women while another 16,162 were
minors.13 The recognised groups of refugees
in Malaysia are predominantly from Burma
with the rest coming from Sri Lanka, Somalia,
Afghanistan, Iraq, and other countries. (See
Table 6.1)
Rohingya Boatpeople
At the beginning of 2009, news of Rohingya
asylum seekers who had boarded boats and
were headed for Malaysia to seek asylum hit
international headlines. Some of the asylum
seekers claimed that the Thai Navy abused
them before towing their boats back to sea and
abandoning them in open waters. Eventually,
some of the boats found their way to Southern
Thailand, Malaysia and the Andaman Islands
in Indonesia. On 27 February 2009, thenPrime Minister Abdullah Ahmad Badawi
commented on the Rohingya boatpeople,
stating that “We have to be firm at all borders. We
have to turn them back.”14
The issue of the movements of the
Rohingya asylum seekers was discussed during
the 14th asean Summit, held from 26 February
to 1 March 2009. However, the Chairman’s
Statement of the 14th ASEAN Summit failed
to give recognition to the Rohingyas, referring
Table 6.1 Asylum Seekers and Refugees Registered with UNHCR in Malaysia
Country of
Origin / Ethnicity
Asylum-Seekers
Refugees
Total
MYANMAR
134
Chin
2,485
29,627
32,112
Rohingya
1,074
16,335
17,409
Muslim
514
3,597
4,111
Burmese
715
838
1,553
Kachin
234
3,004
3,238
Karen
502
2,086
2,588
Arakanese
506
1,117
1,623
Mon
806
2,646
3,452
Shan/Thai Yai
771
651
1,422
Kayah
145
352
497
Others
509
1,140
1,649
8,261
61,393
69,654
Myanmar Total
OTHER COUNTRIES
7/15/10 11:57 AM
MYANMAR
Chin
2,485
29,627
32,112
Rohingya
1,074
16,335
17,409
514
3,597
4,111
Muslim
Burmese
715
838
1,553
Refugees,
Asylum Seekers, Undocumented
Migrants
And Trafficked Persons
Kachin
234
3,004
3,238
Karen
502
2,086
2,588
Arakanese
506
1,117
1,623
Mon
806
2,646
3,452
Shan/Thai Yai
771
651
1,422
Kayah
145
352
497
Others
509
1,140
1,649
8,261
61,393
69,654
837
2,132
2,969
99
450
549
Somalia
166
647
813
Afghanistan
296
248
544
Others
608
480
1,088
2,006
3,957
5,963
10,267
65,350
75,617
Myanmar Total
OTHER COUNTRIES
Sri Lanka
Iraq
Others Total
GRAND TOTAL
(Source:
UNHCR)
(Source:
unhcr)
to them as “illegal migrants in the Indian
Ocean”.15 The statement also referred the
issue to the Bali Ministerial Conference on
People Smuggling, Trafficking in Persons and
Related Transnational Crimes (also known as
the Bali Process).
Consequently, the Ad-Hoc Group of
the Bali Process held a meeting from 27 to
29 July 2009 at Bali, Indonesia to discuss
irregular migration in the region. The Bali
Process mainly focused on migration from the
perspective of security, which did not address
the root causes of the outflow of refugees and
asylum seekers in the region. Thus, the need
for protection for victims of trafficking and
asylum seekers, refugees and stateless persons
was also addressed only minimally.
Onward Movements of Refugees and
Asylum Seekers from Malaysia to
Indonesia and Australia
Throughout 2009, there were many cases of
Afghan, Sri Lankan and Burmese refugees
and asylum seekers leaving Malaysia on
boats. This trend can be seen in the arrests
throughout the year.
On 26 April 2009, 33 foreigners – 16
Afghans, 14 Pakistanis and three Iraqis – were
arrested by Malaysian marine authorities on
a boat off the coast of Kuala Langat, some
30km from Port Klang, Selangor. One of
the Afghans was a unhcr card holder. It was
reported that initial investigations revealed
that the 33 refugees and asylum seekers were
on their way to Australia.16
On 27 June 2009, six Pakistanis and
36 Afghans were arrested after two boats
which were on the way to Australia via
Indonesia were detained by Malaysian
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7/15/10 11:57 AM
marine authorities. Central Selangor marine
police Chief Marzuki Ismail was reported as
saying that a total of 93 migrants had been
arrested for attempting to sail to Australia via
Indonesia from January 2009 to June 2009.17
On 8 September 2009, the Immigration
Department said that it had arrested 116 Sri
Lankans at a condominium in Johor Bahru
who were believed to be using the place
as a transit point before they headed off to
Indonesia and then on to Australia.18 While
the media reported 116 persons arrested,
suaram received information that the actual
number of those arrested was 122. Those
arrested included unhcr card holders; 108
were subsequently sent to the Pekan Nenas
Immigration Detention Centre, while the
remaining 14 who did not have unhcr cards
were sent to the Simpang Renggam Detention
Centre (See also section on “Mass Arrests, Detentions
and Deportations” in this chapter).
Following the increase in the number
of boats of asylum seekers, the Australian
government initiated meetings with the
Malaysian government to seek cooperation
in preventing more boats from leaving
Malaysia.19 On 28 October 2009, it was
reported that the Australian government was
preparing to dispatch police to Indonesia,
Malaysia, Sri Lanka and Pakistan in an effort
to resolve the issue.20
The pressure that the Australian
government has placed on the Malaysian
government to curb onward movements of
asylum seekers from Malaysia to Australia
has thus resulted in many asylum seekers
arrested in the process and being detained
indefinitely in immigration detention centres.
The situation is exacerbated by the fact that
protection for asylum seekers and refugees
in Malaysia is absent. Refugees and asylum
seekers are not allowed to live and work in
Malaysia legally and are at risk of arrest,
detention and deportation daily. Living in
such desperation and fear, refugees and
asylum seekers are more vulnerable towards
trafficking syndicates who would offer them
false promises of resettlement in a more
hospitable country such as Australia, in
exchange for large sums of money and a
dangerous journey by sea.
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 enforce 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.
As of 31 December 2009, there were
682,749 rela members nationwide.21 This
number has increased from 475,000 in 2007.22
Since the amendment to the legislation in
2005, the core activity of 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 arrested and detained.
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7/15/10 11:57 AM
officers (civilian volunteers) lack adequate training and discipline, yet are given broad law enforcement powers, including in
immigration matters. As a result, rela has a track record of violating the rights of migrants and citizens alike. (Photograph courtesy
of Amnesty International)
rela
Before 2008, RM80 was awarded to
the rela personnel for every arrest of an
undocumented migrant. This was one of the
motivational factors for the rela personnel
to conduct raids. However, since 2008, rela
members are given an allowance of RM4 an
hour during operations while rela members
with positions of platoon leaders and above
are given RM5.80 an hour.23
Still, reports of abuses of power such as
bribery and extortion are not uncommon. For
instance, in February 2009, two rela members
were charged at the Seremban Sessions Court
in Negeri Sembilan for allegedly receiving
bribes amounting to RM850 in 2006 in
exchange for not lodging a police report
against a migrant whose passport had expired.
This instance is merely one of many, with
numerous others unreported and thus not
charged, especially when refugees and asylum
seekers are reluctant to lodge police reports
for fear of possible reprisals. Furthermore,
as rela personnel do not receive proper
and adequate training, wrongful arrests and
detentions by rela beyond their mandate
have also been reported.24
Based on the high number of reports
that many of 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, then-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.” 25 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.26
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
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7/15/10 11:57 AM
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.27
To date, however, the bill has not been made
public.
On 9 February 2009, then-Home
Minister Syed Hamid Albar reiterated that
rela would not be disbanded stating, “I do not
deny some of the allegations [of abuse] although it is
done by one or two personnel only. But this does not
reflect the whole organisation.”28
On 21 April 2008, Syed Hamid Albar
said that a draft proposal to upgrade rela to
an enforcement agency was being finalised
for consideration by the government.29
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.30
Despite the tainted track record of
rela, on 18 August 2009, the government
announced that rela members, together with
the Civil Defence Department, will be put in
charge as volunteer policemen, as part of the
government’s efforts to reduce street crimes.
This proposal, however, was criticised by civil
society. suaram and Amnesty International
Malaysia, for example, pointed out that the
proposal would legitimise and strengthen
rela’s powers of arrest, search and detention
of rela, which could worsen the current
climate of arbitrary law enforcement in
Malaysia and increase the abuses of power.
The two human rights ngos also criticised
the government for giving rela such wide
and discretionary powers and further noted
that such enforcement powers should only
be given to competent and specially-trained
full-time officers, instead of a part-time and
inadequately-trained volunteer corps like
Notwithstanding the ngos’ call, in
October 2009, the government announced
that its proposal would be implemented and
that an additional 3,000 rela members would
be trained for the purpose of public policing.32
In addition, Home Minister Hishammuddin
Tun Hussein announced that the ministry
would increase the number of rela members
from 556,286 to 2.5 million in five years.33
In
mid-2009,
the
Immigration
Department gradually replaced the parttime rela personnel with its own officers
specifically tasked to handle these centres.
Some detainees claim that conditions have
improved since rela was replaced. Amnesty
International, which conducted a study
on migrant workers in Malaysia, quoted a
migrant held in the Semenyih Immigration
Detention Centre as saying, “The conditions
have improved a lot after rela stopped taking care
of it.” 34 However, it cannot be ascertained if
improvements were also observed in all other
immigration detention centres around the
country.
Prior to that, 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.35 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,36 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
rela.31
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7/15/10 11:57 AM
riots have been recorded to date, in Lenggeng
(April 2008) and Semenyih (June 2008).37
Before 2008, the Immigration Detention
Centres had been handled by the Prisons
Department.
Table 6.2 Total number of
detainees (including adults)
Year
2004
2005
2006
2007
2008
Total 43,814 31,537 34,166 65,080 60,800
(Source:Home
HomeMinistry,
Ministry, Malaysia)
Malaysia)
(Source:
Mass Arrests, Detentions and
Deportations
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. Mass-scale operations to
nab undocumented migrants have resulted
in serious human rights abuses. Those
arrested were held in inhumane conditions
in detention centres. According to unhcr
records, 3,500 unhcr-recognised refugees
and asylum seekers were arrested throughout
Malaysia in 2009.38
According to the government, a total
of RM11.7 million was spent in 2008 to
repatriate some 60,800 undocumented
migrants, including refugees and asylum
seekers – an increase from RM9.8 million
which was spent for the same in the previous
year. The government also revealed that
14,338 operations were conducted nationwide
to nab undocumented migrants in between
2007 and 2008, which resulted in 131,979
undocumented migrants being arrested
and 125,080 were sent back to their home
countries.39
On 23 March 2009, the government
disclosed that 216,373 undocumented
migrants, including refugees and asylum
seekers, were detained between 2005 and
2008, out of which 191,583 were deported.40
In a parliamentary written reply during
the June/July 2009 session, the Home
Ministry revealed that they had detained
43,814 persons in 2004; 31,537 in 2005;
34,166 in 2006; 65,080 in 2007; and 60,800
in 2008, in 13 Immigration Detention Centres
around the country (See Table 6.2). Of the total
number of those detained between 2004 and
2008, a total of 3,675 were children below the
age of 18.
In 2008 alone, 2,397 children were
detained at Immigration Detention Centres
around the country – a sharp increase from
470 in the previous year (See tables 6.3 and 6.4).41
This is despite the fact that the Malaysian
government has ratified the Convention on
the Rights of the Child (crc), which obligates
the government to provide protection to
asylum seeking and refugee children.42 The
Convention also states that detention of
children should only be a measure of last
resort and for the shortest time possible.43
In March 2009, then-Home Minister
Syed Hamid Albar announced that the
government would intensify raids to rid
the country of “illegal foreign workers”.
The minister said that the raids would be
increased daily at various locations in the
country and would involve the joint efforts
of the police, the Immigration Department,
and rela.44 Syed Hamid Albar also said
that the “illegal immigrants” should pay
the compounds and return to their home
country as the government was already facing
high costs involved in repatriation of “illegal
immigrants”.45
Operations held jointly by the police,
the Immigration Department and rela are
common and often result in the mass arrests
of migrants, refugees and asylum seekers.
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7/15/10 11:57 AM
Table 6.3 Child detainees according to nationality
Year
Nationality
2004
2005
Bangladeshi
2006
2007
2008
Total
2
2
44
48
Burmese
55
73
63
58
812
1,061
Cambodian
16
6
18
54
77
171
22
24
29
43
Chinese
2
Filipino
14
French
1
Indian
1
Indonesian
75
Pakistani
14
179
158
Sri Lankan
Thai
237
1
1
12
21
17
107
Timor Leste
Vietnamese
32
Stateless
2
31
934
1,583
8
8
11
12
226
383
3
3
61
99
2
2
Unspecified
Total
4
16
158
304
346
52
154
206
470
2,397
3,675
(Source:
(Source:Home
HomeMinistry,
Ministry,Malaysia)
Malaysia)
Table 6.4 Child detainees according to gender
Year
Gender
2004
2005
2006
2007
2008
Total
Boy
118
176
198
318
1,842
2,652
Girl
40
128
148
152
555
1,023
158
304
346
470
2,397
3,675
Total
(Source:
(Source:Home
HomeMinistry,
Ministry,Malaysia)
Malaysia)
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7/15/10 11:57 AM
Immigration detainees display the identification cards issued to
them by Lenggeng Immigration Detention Centre. (Photograph
courtesy of Amnesty International)
receives cases of arrest of migrants,
refugees and asylum seekers during these
raids on a frequent basis. One example is
the arrest of about 300 migrants, refugees
and asylum seekers during a special joint
operation held by the police, the Immigration
Department, and rela at Jalan Imbi, Kuala
Lumpur on 22 April 2009. Most of the 300
were nationals from Burma, Indonesia and
Bangladesh. Among those arrested were
124 Chin refugees and asylum seekers, out
of which 33 individuals were registered with
unhcr. Those who had legal documents were
later released while the others were detained
further.
On 20 October 2009, officials from the
Sri Lankan High Commission were allowed
access to the Pekan Nenas Immigration
Detention Centre where 108 Sri Lankan
unhcr-recognised
refugees were being
detained. The 108 refugees were part of
12246 Sri Lankans who were arrested on 8
September 2009 at a hotel in Johor. They
were believed to be in Johor on a transit
before they headed off to Indonesia and
then on to Australia. The 108 refugees were
sent to Pekan Nenas Immigration Detention
Centre while the remaining 14 asylum seekers
who did not have unhcr cards were sent to
suaram
Simpang Renggam Detention Centre. It
was reported that the Sri Lankan diplomatic
representatives visited the detention centre
and forced the refugees to sign a repatriation
agreement. Individuals from Persahabatan
Semparuthi and suaram who were also
visiting the detention centre were informed
by some detainees that the Sri Lankan
High Commission representatives assaulted
and forced some of the Sri Lankan asylum
seekers and refugees there to sign repatriation
agreements. suaram immediately released
an urgent appeal to urge the Malaysian
government to stop the repatriation of the Sri
Lankan refugees.47 Following this, the issue
became highly publicised and subsequently
saw attempts by unhcr and suhakam to
intervene.
At least six of the 108 Sri Lankan
refugees went on a hunger strike for more
than a week to protest their detention despite
holding unhcr cards.48 On 29 October 2009,
due to the publicity and pressure by civil
society, it was reported that 66 of the 105
refugees were released and handed over to
unhcr with another 21 in the process of being
released, while the rest would be charged with
immigration offences.49
In a separate incident, 207 Sri Lankan
refugees and asylum seekers were arrested
on 7 October 2009 and detained at the klia
Immigration Detention Centre. While the
Sri Lankan High Commission was allowed
access into the Pekan Nenas Immigration
Detention Centre, suhakam was initially
refused access into the klia Immigration
Detention Centre, where another group
of Sri Lankan asylum seekers and refugees
were being held. suhakam had written to
the Immigration authorities at the klia
Immigration Detention Centre requesting a
visit on 16 October 2009. This request was
denied by the authorities. While the Home
Ministry alleged that no application was made
by suhakam to visit the detention centre,
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7/15/10 11:57 AM
this claim was refuted in Parliament when
opposition Member of Parliament Sivarasa
Rasiah stated that suhakam Commissioner
Siva Subramaniam had indeed applied
to the Immigration Department but was
informed by the Immigration Department
on 19 October 2009 that his application was
denied.50 Despite the Home Ministry’s refusal
to allow suhakam access, on 23 October 2009,
suhakam Commissioner Siva Subramaniam
decided to proceed with his visit and was
eventually allowed into the detention centre.51
On 19 June 2009, 16 Burmese refugees
were arrested by the police during a gathering
in Petaling Jaya, Selangor to celebrate the
64th birthday of the imprisoned Burmese
opposition leader Aung San Suu Kyi’s. A
team of 30 police officers broke up the
gathering even before the start of the event,
jointly organised by Pakatan Rakyat and the
Petaling Jaya City Council. The police also
mounted road blocks in an attempt to stop
the celebration. The 16 arrested were initially
detained at the Petaling Jaya police station
where they were denied access to lawyers.
All 16 were subsequently handed over by the
police to the Immigration Department. While
being detained at the immigration detention
centre, they were registered by the unhcr and
were released thereafter.
In April 2009, the Department of
Social Welfare and Development (dswd) of
the Philippines revealed that the Malaysian
government had deported 2,264 Filipinos
during the first quarter of 2009.52
In October 2009, Home Minister
Hishammuddin Hussein said that a total
of 610,614 undocumented migrants were
detected in the East Malaysian state of
Sabah. The minister warned of an aggressive
operation to nab these undocumented
migrants, “[…] [A] more aggressive operation
against illegal immigrants will be carried out and
those who are unregistered will be detained and action
will be taken under the law.” 53 This was not the
first time that the government had planned
a mass-scale operation to arrest and detain
undocumented migrants in Sabah.
Earlier in June 2008, then-Deputy Prime
Minister Najib Razak (now Prime Minister)
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”. 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.54 In
October 2008, a fact-finding committee in the
Philippines revealed that Filipino immigrants
deported from Sabah had been severely
beaten by the Malaysian police while in
detention. The committee also revealed that
thousands of Filipinos remained in detention
centres under inhumane conditions.55
The simplistic but drastic measure
of “flushing out” all “illegal immigrants”
from Sabah was 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 fulfil the criteria for
naturalisation, 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 seekers who
have fled from political persecution in their
countries; migrant workers who are exploited
and become undocumented migrants; and
victims of trafficking.
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7/15/10 11:57 AM
Access to Justice
From December 2006 to March 2007, 14
Special Immigration 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 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.
Migrants facing charges in these courts also
face difficulty obtaining representation as
they have limited access to people outside
of the detention centre. Further, the remote
locations of the Immigration Courts also
make it difficult for lawyers to provide legal
aid to these migrants. As such, many have
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.56 The statistics for 2009 have not yet
been made available.
In October 2009, a news report revealed
that the Special Immigration Court in the
Semenyih Immigration Detention Centre
processes an average of 200 to 300 cases a
month. The report covered the hearings of
three migrants who were being charged with
immigration offences, and noted that all three
cases were heard with sentences passed in
under 20 minutes. The report also revealed
that most migrants are denied bail even when
they decide not to plead guilty. This fact was
confirmed by an officer at the Immigration
Department, who was quoted as saying, “We
do not allow bail because most of the time, the accused
will ‘run away’”.57
Whipping, Torture and Other Cruel,
Inhuman or Degrading Treatment or
Punishment
Malaysia has not ratified the Convention
against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment
(cat). Thus, whipping remains a punishment
for persons found guilty of contravening the
Immigration laws of Malaysia. Section 6 of
the Immigration Act 1959/1963, provides for
persons without documents or valid visa to be
sentenced up to five years in prison, fined up
to RM10,000 and given up to six strokes of the
cane.
In June 2009, the Malaysian government
announced that they had sentenced 47,914
migrants to be caned for immigration
offences since amendments to its Immigration
Act came into force in 2002. At least 34,923
migrants have so far been caned between
2002 and 2008, according to the Prison
Department’s records.58
Some detainees have also reported
various forms of cruel, inhuman and
degrading
punishments
while
being
detained. One former detainee claimed that
punishments by authorities at the immigration
detention centres are commonplace:
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7/15/10 11:57 AM
“[W]e get punished a lot. There are three main
types of punishment:
“1. The first one is the helicopter. This one
we have to make a noise with our mouth like a
helicopter. Then we are forced to take our shirt
off and swing it around with one arm like a
propeller. That is why they call it the helicopter.
Maybe we have to do this for one hour. Your arm
and your throat are in so much pain, but you
have to keep going. They say, “Do the helicopter
or you will be beaten!” It is really a humiliation,
that one — doing the helicopter in front of all
these people.
“2. Sometimes they just beat you for punishment.
They don’t even ask you to do the helicopter.
“3. Press-ups, maybe 50 or 100 press-ups, I
mean push-ups, in the sun.” 59
In October 2009, several Sri Lankan
refugees who were detained at the Pekan
Nenas Immigration Detention Centre were
reportedly kicked and beaten up by officials
from the Sri Lankan High Commission, who
were controversially allowed access into the
detention centre, when the detainees refused
to sign a repatriation agreement forced upon
them by the Sri Lankan High Commission
officials.
On 10 April 2009, a 23 year old Burmese
asylum seeker was arrested at a bus station in
Alor Star by Police and Immigration officers.
During his arrest, he showed his unhcr card
to the officers but the card was not accepted by
the officers. Consequently, two Immigration
officers slapped and punched him on the spot.
He was then sent for detention at the Belantik
Immigration Detention Centre.
On 25 November 2008, a 36 year
old Burmese asylum seeker and his four
colleagues were arrested at a shopping mall
at Butterworth when they were on the way
home after work. They were arrested by 12
police officers. When they could not produce
documents when asked by the police, all five
of them were beaten and kicked.
Conditions of Detention
The problem of overcrowding at immigration
detention centres has become critical in recent
years, with no significant improvement in
2009. While the problem of overcrowding in
detention centres persists, raids and arrests of
refugees, asylum seekers, and undocumented
migrants continue to be conducted by rela
on a large scale, thus compounding the dire
situation. The problem of overcrowding was
reinforced by suhakam in its report on the
state of prisons and immigration detention
centres in Malaysia. The Commission stated:
“In comparison with the situation in prisons,
overcrowding in immigration detention centres
is generally more severe, to a large extent due
to Malaysia’s strict immigration policies and
lengthy immigration procedures.
“[…] [T]he reality is that there is simply not
enough infrastructure to accommodate such large
numbers of detainees.” 60
Former detainees in the Semenyih
Immigration Detention Centre, 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.61 This has resulted
in deplorable living conditions, giving rise
to concerns regarding the lack of adequate
access to healthcare and to risks of diseases
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7/15/10 11:57 AM
Immigration detention centres are notorious for the dismal
conditions in which detainees are held, such as the overcrowding
shown here. (Photograph courtesy of Amnesty International)
and possible deaths as a result of exposure
to unsanitary environments. The Semenyih
detention centre, however, underwent repairs
following a riot there in July 2009, and at the
end of the year, renovations were still being
carried out.
Detainees report frequent ethnic violence
among inmates, abuse by guards, a 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.62
A severe shortage of clean water was
also reported by a former Burmese detainee
in 2008 who was held in the Lenggeng
Immigration Detention Centre 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.63
Tun (not his real name), a former
Burmese detainee who was held in the
Belantik Immigration Detention Centre from
2 July 2009 to 26 November 2009, stated that
out of eight toilet cubicles in the block where
he was detained, only four of the toilet bowls
were usable. He recounted that once during
his detention, the septic tank (containing
human waste) behind the toilets of the block
overflowed and the villagers living near the
detention centre complained of the foul
smell. Due to the complaints, four of the toilet
cubicles were closed. He stated that the block
he was in (approximately 120 ft by 22ft) held
from 500 to 800 detainees at any given time.
Tun stated that detainees were not provided
drinking water and that they had to drink
from the tap. During his detention, the water
supply to the detention centre would be cut
for at least two days a week. Also, he stated
that lunch was not provided at least three
times due to lack of water supply to clean the
trays. Sometimes, water from a fire hydrant
would be channelled when there was no water
supply. There were also occasions when the
water pipes were blocked, causing a flood in
the blocks of about three to four inches high.
The highly unhygienic condition in
immigration detention centres was recounted
by a former detainee, who was detained
for four months and was interviewed by a
journalist upon his release in August 2009:
“The toilets are a big problem. There is no door
and only four toilets for 700 people! If you are
lucky, you can do your toilet needs in the middle
of the night when people are asleep. The toilets
are so terrible because nobody cleans them. You
can imagine, 700 people using these four toilets!
Oh, it is terrible.
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7/15/10 11:57 AM
“Sometimes the only place to sit in the shade is
near the toilets. The smell can make you sick.
But still, it is better than being in the sun all
day, because some days we don’t have any water.
“There is one tank of water. This is disgusting.
[There was] no faucet. We have to dip into this
water. [There were] 700 people [in detention].
Can you imagine how dirty and oily this water
gets from everyone using it to clean? And there
is sometimes no water for the toilet, so, I mean,
people are getting very dirty. I think you get
the idea. And skin diseases. Skin diseases are
rampant because the conditions are so bad. So
these people with the diseases are also dipping
their bodies into the water tank. Oh, it is so
bad. So we are all catching everything from each
other.” 64
On-site medical facilities are unavailable
in some of the immigration depots, where
detainees who complain of illness are given
aspirin or penicillin-based pills and are only
brought to a hospital after they are critically
ill.65 suhakam, in its report on the state of
prisons and immigration detention centres
in Malaysia, also noted that the detention
centres in Semuja, Tawau, Sandakan, Kota
Belud, and Lenggeng do not have any medical
personnel on site.66
A former detainee who was interviewed
by a journalist upon his release in August
2009 also revealed that a female detainee
had died at an immigration detention centre
as the authorities at the detention centre had
failed to provide immediate medical attention
to those in need:
“You can be sick but they are not going to let you
see the doctor. It can be really bad. One night a
girl was crying a lot. Then we heard a lot of
girls screaming for help. For a couple of hours
they were shouting like this. But the detention
people wouldn’t let the first girl see the doctor
or take her to the hospital. She died that night,
because her appendix had burst. I was also sick.
I have a heart tension problem. But they do not
want to give you any medical [treatment], so you
just have to suffer there.” 67
Lwin (not his real name), a 54 year old
former detainee, was prescribed medication
for hypertension when serving his prison
sentence for unlawful entry at Pokok Sena
Prison. He brought his medication with him
when he was transferred to the Belantik
Immigration Detention Centre. On 22
September 2009, an Immigration Officer
known as Pin confiscated the medication
and threw it away. When the medication
went missing from the rubbish bin, Lwin was
accused by Pin of taking the medication. The
Immigration officers searched his allocated
place in the block but when they could not
find the medication, they confiscated some
food that belonged to Lwin. Consequently, he
was beaten with a 1 inch cane and a 3 feet
long baton by several Immigration officers,
including Pin. He was beaten on the head,
shoulders, thighs, throat and ribs. An officer
also pressed his head to the floor with his
feet. Following this, Lwin could not eat, drink
or sleep properly for a week. Lwin was later
released on 26 November 2009 after unhcr
registered him in the detention centre. In
addition, during his stay there was an incident
where detainees were given rotten beef with
their lunch. After consuming the beef, many
people had diarrhoea, to the point that 4
people had to share 1 toilet bowl.
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. On this matter, suhakam
has noted that “there is no medical officer stationed
146
7/15/10 11:57 AM
at an immigration detention centre. Instead, any
arrangements for providing medical care and services
are at the discretion of the officer-in-charge.”68 As
a result of the lack of medical access and
the absence of regulation which compels
detainees to undergo medical check-ups,
which are compounded by the unhygienic
conditions at the immigration detention
centres, many detainees contract diseases
such as tuberculosis and other skin diseases as
a result of living in a congested environment
and sleeping on concrete floors without
blankets or beddings.69
In a parliamentary written reply by the
government, it was revealed that a total of
2,571 detainees had died while being held in
the country’s prisons, rehabilitation centres,
and immigration detention centres between
1999 and 2008. The causes of death included
illnesses such as hiv/aids, septicaemia,
tuberculosis, cancer, heart and blood diseases,
and asthma, as well as suicides and fights.70
In May 2009, it was reported that there
was an outbreak of Leptospirosis (an infectious
disease that occurs through contaminated
water or food) at the Juru Immigration
Detention Centre. Two Burmese detainees
had died of the disease at the detention
centre that month.71 The outbreak of the
disease attests to the deplorable conditions
at immigration detention centres around the
country, a problem long highlighted by various
quarters, including suhakam and civil society
groups. suaram has documented extensively
on the conditions in these detention centres in
our previous reports.
Besides the deaths of the two Burmese
asylum seekers at the Juru Immigration
Detention Centre, other cases of deaths in
immigration detention centres documented
by suaram in 2009 were:
• In April, a Liberian died of Rectoviral
Infection at the Lenggeng Immigration
Detention Centre;72
• In August, a Togolese detainee died in the
klia Immigration Detention Centre due to
Influenza A (H1N1). It was reported that
this death was the fourteenth death at the
klia Immigration Detention Centre in
2009;73
• On 29 August, a Burmese detainee at the
klia Immigration Detention Centre died
of an unknown illness and six other detainees
with similar symptoms were hospitalised at
the Putrajaya General Hospital;74
• On 25 September, it was reported
that six Burmese detainees died at an
undisclosed detention centre, allegedly due
to Leptospirosis.75
• On an unknown date between April and
November 2009, a female detainee at the
Belantik Immigration Detention Centre
died on the way to the hospital after
complaints of a pain in the stomach.
On 9 November 2009, the Home
Ministry informed Parliament that there were
a total of 70 deaths in immigration detention
centres from 2006 to September 2009.76 In the
same reply, the ministry said that there was
only one death at the Lenggeng Immigration
Detention Centre in 2009. However, it
was reported that another Bangladeshi
migrant worker detained at the Lenggeng
Immigration Detention Centre died days
after being tortured by the Malaysian police.77
This inconsistency is possibly due to the fact
that the information provided by the ministry
discounted those who died in medical centres
while under custody of the Immigration
Department. As such, the statistics on deaths
of those under the custody of the Immigration
Department could possibly be much higher
than those provided by the Home Ministry.
Furthermore, migrants and refugee
children have been placed together with
adult inmates because immigration detention
centres are often filled to capacity.78 This
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7/15/10 11:57 AM
practice contravenes the Convention on the
Rights of the Child (crc),79 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
[…].” On this note, suhakam noted, “The
prevalence of unaccompanied children in immigration
detention centres is a matter of serious concern.”80
The Commission further provided evidence
of its visit to the Sandakan Detention Centre
which it visited on 6 September 2009, noting
that the children were not separated from the
adults there “due to the lack of space”.81
Over the years, many riots have occurred
in various Immigration Detention Centres.
Two such cases were recorded in 2008, at
the Lenggeng Detention Centre (in April
2008) and at the Semenyih Detention Centre
(in June 2008).82 Most of the riots occur
following incidences of abuses and violence
against detainees or unbearable conditions of
detention.
On 1 July 2009, another riot broke out at
the Semenyih Immigration Detention Centre
involving 30 detainees, who broke the walls of
their rooms. It was reported that the riot was
caused by dissatisfaction of several Burmese
detainees over the transfer of 17 other
Burmese detainees to the klia Immigration
Depot.83
In October 2009, Sabah Deputy Chief
Minister Yahya Hassan announced that a new
temporary detention centre would be used to
facilitate the deportation of migrants from
Sabah. The new detention centre, located in
Papar, Sabah, has a capacity of 5,000 and
consists 14 blocks on an eight hectare site. The
Deputy Chief Minister said that the centre
would be used to temporarily house detainees
from the Menggatal detention centre in the
same state which was to undergo renovation
works due to problems related to congestion.84
Trafficking in Persons
In 2009, Malaysia was once again downgraded
by the United States Department of State to
“Tier 3” of countries which do not do not
comply with the minimum standards for the
elimination of human trafficking. Malaysia
was first put in “Tier 3” (the lowest of three
categories of countries relating to human
trafficking) in 2007, but was assessed to
have improved in 2008, largely due to the
enactment of an anti-trafficking law.
In the United States Department of
State’s 2007 report which first downgraded
Malaysia to “Tier 3”, 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.85 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.” 86
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 punishable with a jail term of up to 20
years and a fine of up to RM500,000. Before
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7/15/10 11:57 AM
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.87
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.88 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.89
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.
In 2008, Malaysia was upgraded to
“Tier 2” due to the legislation of the AntiTrafficking in Persons Act, but in June 2009,
in the United States’ “Trafficking in Persons
Report”, Malaysia was again dropped back to
“Tier 3” due to the lack of significant efforts
by the government to eliminate trafficking
despite the legislation of the anti-trafficking
law. The report stated:
“Malaysia is a destination and, to a lesser
extent, a source and transit country for women
and children trafficked for the purpose of
commercial sexual exploitation; and for men,
women, and children trafficked for the purpose
of forced labour.” 90
The report further noted:
“Malaysia does not fully comply with the
minimum standards for the elimination of
trafficking and is not making significant efforts
to do so, despite some progress in enforcing the
country’s new anti-trafficking law.” 91
Another report on trafficking, titled
“Trafficking and Extortion of Burmese
Migrants in Malaysia and Southern
Thailand”, released by the Committee on
Foreign Relations of the United States Senate
in April 2009 revealed Malaysian immigration
officials’ involvement in the trafficking of
Burmese refugees to the Malaysia-Thai
border. It reported:
“Burmese migrants are reportedly taken by the
Malaysian Government personnel from detention
facilities to the Malaysia-Thailand border for
deportation. […] Upon arrival at the MalaysiaThailand border, human traffickers reportedly
take possession of the migrants and issue ransom
demands on an individual basis. Migrants
state that freedom is possible only once money
demands are met. […] [O]n some occasions,
the ‘attendance’ list reviewed by traffickers at
the Thailand-Malaysia border was identical to
the attendance list read prior to departure from
Malaysian detention facilities”. 92
As in the past, the Malaysian government
has denied the allegations of involvement of
Immigration authorities in trafficking. For
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7/15/10 11:57 AM
instance, Immigration Department directorgeneral Mahmood Adam said, “We have been
monitoring the situation over the last six months after
earlier reports surfaced. But I can assure you that the
reports are not true.” 93
Nevertheless, following the downgrading
of Malaysia in the United States’ “Trafficking
in Persons Report” and the release of the United
States Senate report, by mid-2009, significantly
fewer cases of trafficking of Burmese refugees
and migrants by Immigration officers have
been reported. Despite the government’s
ongoing denial of Immigration officers’
involvement in the trafficking of Burmese
refugees and migrants, on 11 July 2009, it
was reported that five Immigration officers
from Pekan Nenas Immigration Detention
Centre were arrested for alleged involvement
in trafficking of Rohingya refugees.94
Nevertheless, the five arrests are a very small
number compared to the actual number of
cases of trafficking of refugees that involved
Immigration officers, which were widespread
throughout the country and have largely
occurred with impunity.
Conclusion
Throughout the year, refugees, asylum
seekers and undocumented migrants were
arbitrarily detained by the government on a
mass scale. As a result of this, immigration
detention centres have become highly
overcrowded and unsanitary, reaching critical
levels in 2009. The deplorable conditions
in detention centres have caused outbreaks
of diseases, which have led to deaths. While
the government claimed that there were
70 deaths in immigration detention centres
between 2006 and September 2009, several
inconsistencies suggest that official figures are
unreliable, and thus the actual number could
possibly be much higher.
Trafficking in persons remains a
huge problem, as was confirmed by an
international report, which revealed the
involvement of Malaysian immigration
officials in the trafficking of Burmese refugees
to the Malaysia-Thai border.
Thus, the year once again saw Malaysia
being graded as one of the worst places for
refugees by an international watchdog – a
dubious international record for Malaysia
which was also blacklisted by the United
States Department of State for its lack of
efforts in eliminating trafficking in persons.
In 2009, despite recommendations by
several UN member states, the Malaysian
government unambiguously stated its refusal
to ratify the 1951 Convention relating to the
Status of Refugees. Thus, gross violations
of the rights of refugees and asylum seekers
continued, as was seen in the mass arrests of
undocumented migrants and even unhcrrecognised refugees. One example of the
Malaysian government’s blatant disregard
for international customary law was when
Sri Lankan High Commission officials were
allowed access into an immigration detention
centre, where they forced refugees from Sri
Lanka to sign repatriation agreements.
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7/15/10 11:57 AM
End Notes
1
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.
2
Act 155, as amended by Immigration
Regulations 1963 (Act A719).
14 “Abdullah: We must be firm in turning
back Rohingya”, Bangkok Post, 27 February
2009, http://www.bangkokpost.com/news/
local/12370/abdullah-we-must-be-firm-inturning-back-rohingya (accessed on 20 May
2010).
3
U.S Committee for Refugees and Immigrants
(2009) World Refugee Survey 2009, Arlington VA:
USCRI.
15 Chairman’s Statement of the 14th asean
Summit, “asean Charter for asean Peoples”,
Cha-am, 28 February - 1 March 2009, http://
www.aseansec.org/22328.htm (accessed aon
20 May 2010).
4
U.S. Committee for Refugees and Immigrants
(2008) World Refugee Survey 2008: Worst Places for
Refugees, Washington DC: uscri (pp. 3-7).
16 “Signs that show Malaysia on human
trafficking route”, New Straits Times, 30 April
2009.
5
U.S Committee for Refugees and Immigrants
(2009) op. cit. (p. 6).
6
Ibid. (p. 51).
7
Report of the Working Group on the
Universal Periodic Review, “Malaysia” –
review, A/HRC/11/30/Add.1, dated 3 June
2009.
17 “Pakistani, Afghan migrants held in raid:
Malaysian police”, Daily Times, 30 June 2009,
http://www.dailytimes.com.pk/default.
asp?page=2009\06\30\story_30-6-2009_
pg7_38 (accessed on 20 May 2010).
8
Ibid.
9
Ibid.
19 “Help stem the wave of boat people, Australia
says”, Malaysiakini, 21 October 2009, http://
20 “Police head to Asia to fight smugglers”,
The Sydney Morning Herald, 28 October 2009,
http://www.smh.com.au/world/police-headto-asia-to-fight-smugglers-20091027-hj3a.
html (accessed on 20 May 2010).
10 Ibid.
11 Ibid.
12 UNHCR’s definition of an asylum seeker is “a
person who has left their country of origin, 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 (accessed on 15 June 2009).
13 Email communication with
3 June 2010.
18 “Immigration dept detains 116 Indians and
Sri Lankans”, Bernama, 8 September 2009.
unhcr
Malaysia,
21 Official webpage of RELA on the Home
Ministry website, http://www.moha.gov.my/
index.php?option=com_content&view=artic
le&id=115&Itemid=479&lang=ms (accessed
on 20 May 2010).
22 Figure according to RELA director-general
Zaidon Asmuni, interview, “RELA chief: Give
us more power,” Malaysiakini, 20 May 2007,
151
7/15/10 11:57 AM
23 Chor Chee Heung, 3 July 2008, Second
Meeting of the First Session of the Twelfth
Parliament, Hansard, DR.3.7.2008 (p. 14)
DR-03072008.pdf (accessed on 3 December
2008).
24 For example, 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. See suaram (2009) Malaysia
Human Rights Report 2008: Civil and Political
Rights, Petaling Jaya: suaram Kommunikasi (p.
134)
25 “No plans to disband Rela, says Syed Hamid”,
The Star, 8 December 2008.
26 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.
27 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 (accessed on 15 June 2009).
See also “Rela dept bill to be tabled,” The Star,
26 June 2007.
28 “Rela won’t be disbanded”, The Star, 9
February 2009.
29 “Rela may be upgraded to an enforcement
agency” The Star, 21 April 2008.
30 For instance, Amnesty International Malaysia,
5 July 2007, Press statement: “RELA Bill
will worsen the climate of arbitrary law
enforcement”.
31
& Amnesty International Malaysia,
Joint Press Statement, “Reverse Decision to
Include RELA in Public Policing”, 20 August
2009.
suaram
32 “RM1bil boost for the cops”, The Star, 24
October 2009, http://thestaronline.com/
news/story.asp?file=/2009/10/24/budget201
0/4968958&sec=budget2010 (accessed on 20
May 2010).
33 Ministry out to curb human trafficking”,
The Star, 18 May 2009, http://thestar.com.
May 2010).
34 Amnesty International (2010) Trapped: The
Exploitation of Migrant Workers in Malaysia,
London: Amnesty International Publications
(p. 82).
35 “Handover of depots for illegal”, The Star,
16 January 2008, http://thestar.com.
20 May 2010).
36 Ibid.
37 See suaram (2009) op. cit. (pp. 140-141).
38 Email communication with
3 June 2010.
unhcr
Malaysia,
39 “RM11.7 million to repatriate illegals last
year”, The Nut Graph, 2 April 2009, http://
www.thenutg raph.com/r m117millionrepatriate-illegals-last-year/ (accessed on 20
May 2010).
40 “Over 200,000 illegals nabbed in past 3 years”,
The Malaysian Insider, 24 March 2009, http://
my-1.themalaysianinsider.com/index.php/
malaysia/21082-over-200000-illegals-nabbedin-past-3-years (accessed on 24 March 2009).
41 41 Pemberitahuan Pertanyaan Bagi Jawab
Bukan Lisan Dewan Rakyat, Soalan No: 294,
Rujukan: 1934 [Parliamentary written reply,
Dewan Rakyat, Question No: 294, Reference
No: 1934].
42 Convention on the Rights of the Child (Art.
22 (1).
152
7/15/10 11:57 AM
43 Ibid. (Art. 37 (B)).
44 “More raids to flush out illegals”, The
Star, 17 March 2009, http://thestar.com.
my/news/stor y.asp?file=/2009/3/17/
May 2010).
45 Ibid.
46 Number according to information provided to
suaram by a primary source. However, a news
report indicated that the number was 116.
47
suaram, Urgent Appeal “Stop the Repatriation
of the Sri Lankan Refugees Now!” 20 April
2009.
48 “Sri Lankan detainees refusing food
until unhcr visits them”, The Star, 23
October
2009,
May 2010).
49 “66 Sri Lankan refugees released”, The
Star, 29 October 2009, http://thestar.com.
May 2010).
days in Sabah”, Asia News Network, 11 August
2008, http://globalnation.inquirer.net/news/
breakingnews/view/20080811-153982/1000Filipino-Indonesian-illegals-jailed-3-days-inSabah (accessed on 15 June 2009).
55 “Filipino deportees beaten up by police”,
15 June 2009).
56 “Increase in arrests, says Immigration”, New
Straits Times, 20 May 2008.
57 “Swift ‘injustice’ at immigration courts”,
20 May 2010).
58 Parliamentary Written Reply to Liew Chin
Tong (Bukit Bendera), Dewan Rakyat, 17 June
2009.
59 “Q&A: Detainee tells of squalor, beatings in
Malaysian camp”, World Focus, 25 August 2009,
http://worldfocus.org/blog/2009/08/25/
qa-detainee-tells-of-squalor-beatings-inmalaysian-camp/6928/ (accessed on 21 May
2010).
60
50 “Liew lied about Suhakam application, says
Sivarasa”, The Sun, 23 October 2009.
51 Personal communication with suhakam
Commissioner Siva Subramaniam, 7
December 2009.
52 “Malaysia deports over 2T Filipinos in 1st
quarter”, Sun Star, 10 April 2009, http://
www.sunstar.com.ph/zamboanga/malaysiadeports-over-2t-filipinos-1st-quarter (accessed
on 1 May 2010).
suhakam (2010) The State of Prisons and
Immigration Detention Centres in Malaysia (pp. 1920), Report available at http://www.suhakam.
org.my/c/document_library/get_file?p_l_id
=22118&folderId=236834&name=DL
FE-7802.pdf (accessed on 21 May 2010).
61 “Detention centres bursting at seams,” New
Straits Times, 22 July 2007.
62 Series of interviews with former detainees,
January-April 2007.
63 Interview with Burmese refugee, 2 May 2008.
53 “Over 600,000 foreigners detected in Sabah”,
Bernama, 18 October 2009, http://www.
bernama.com/bernama/v5/newsgeneral.
php?id=447793 (accessed on 1 May 2010).
54 “1,000 Filipino, Indonesian illegals jailed 3
2010).
153
7/15/10 11:57 AM
January-April 2007.
66
suhakam
(2010) op. cit. (pp. 21-22).
2010).
68
suhakam
(2010) op. cit. (p. 21).
January-April 2007.
70 “2,571 detainees died in past nine years”, The
Star, 24 March 2009, http://thestar.com.my/
news/story.asp?file=/2009/3/24/parliame
nt/3539996&sec=parliament (accessed on 1
May 2010).
71 “Leptospirosis kills 2nd Myanmar illegal
immigrant (Update)”, The Star, 20 May
2009,
asp?file=/2009/5/19/nation/200905191146
00&sec=nation (accessed on 1 June 2010).
72 “Deaths and Conditions of Detention of
Migrants and Refugees”, Joint press statement
signed by 15 ngos, 24 April 2009, http://
www.suaram.net/node/76 (accessed on 1 June
2010).
73 “H1N1 Flu: Lockdown in KLIA detention
centre”, Malay Mail, 6 August 2009, http://
www.mmail.com.my/content/10126-h1n1flu-lockdown-klia-detention-centre (accessed
on 1 June 2010).
74 “Mystery illness: One dead, six warded”,
Malaysiakini, 3 September 2009, http://
1 June 2010).
75 “Migrants die in detention”, Straits Times, 25
September 2009, http://www.straitstimes.
com/Breaking%2BNews/SE%2BAsia/
Story/STIStory_434225.html (accessed on 1
June 2010).
76 Pemberitahuan Pertanyaaan Bagi Jawab Lisan
Dewan Rakyat, 9 November 2009, No. AUM:
27.
77 “Bangladeshi tortured to death in Malaysia”,
The Daily Star, 19 April 2009, http://www.
thedailystar.net/stor y.php?nid=84706
78 Series of interviews with refugees and former
detainees, January-April 2007 and May 2008.
Assembly resolution 44/25 of 20 November
1989.
80
suhakam
(2010) op. cit. (p. 22).
81 Ibid. (p. 23).
82 See suaram (2009) op. cit. (pp. 140-141).
83 “Small riot at Semenyih Immigration
Detention Camp”, Bernama, 2 July 2009,
http://www.bernama.com/bernama/v5/
newsgeneral.php?id=422361 (accessed on 1
May 2010).
centre
to
hold
5,000
84 “Detention
illegal
immigrants”,
The
Star,
31
October
2009,
May 2010).
85 United States, Department of State (2007)
Trafficking in Persons Report, Washington
D.C: US Department of State (pp. 143-144).
86 Ibid. (p. 143).
and accession by the un General Assembly
resolution 55/25 of 15 November 2000.
88 “Special Committee Investigates Alleged
154
7/15/10 11:57 AM
Trafficking Of Myanmars”, Bernama, 9 July
v5/newsindex.php?id=345036 (accessed on
15 June 2009).
89 “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.
90 United States, Department of State (2009)
Trafficking in Persons Report, Washington
D.C: US Department of State (p. 197).
91 Ibid. (p. 198).
92 Trafficking and Extortion of Burmese
Migrants in Malaysia and Southern Thailand:
A Report to the Committee on Foreign
Relations, United States Senate, One Hundred
Eleventh Congress, First Session, 3 April 2009
(p. 2).
93 “No inside job, says Immigration”, New Straits
Times, 27 April 2009.
94 “Five immigration officers nabbed for human
trafficking”, The Sun, 20 July 2009, http://
www.sun2surf.com/article.cfm?id=35998
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7/15/10 11:57 AM
chapter 7:
LAW AND
THE JUDICIARY*
7/15/10 11:57 AM
2009
was
a
challenging
in the context of
law and the judiciary.
The ongoing contestation between political
parties from both sides of the political divide
gave rise to very public litigation which
attracted the attention of many, both within
and outside the country. Internal reforms of
legal processes and procedures were initiated
but these events also spilled into the public
arena.
Thus the courts were kept occupied
with issues of constitutional significance and
political importance, as well as having to
revisit basic issues of judicial independence,
integrity and information.
year
The Judicial Appointments
Commission
The Government tabled the Judicial
Appointments Commission (jac) Bill in
Parliament on 11 December 2008. It was
passed on 13 December 2008 after minimal
debate and gazetted on 8 January 2009. On 10
February 2009 then-Prime Minister Abdullah
bin Ahmad Badawi appointed former Chief
Justice Abdul Hamid Mohamad, former
Chief Judge of Sabah and Sarawak Steve
Shim, former High Court judge L.C. Vohrah,
and former Attorney-General Ainum Mohd
Saaid as the four “eminent members” of
the Commission (apart from the ex-officio
appointees designated by law). No members
of the Malaysian Bar or any non-lawyers
were appointed.
The way in which these four eminent
members were chosen violated the underlying
principle of consultation. The then-President
of the Malaysian Bar said in a press interview:
“We were asked to provide names and we gave
the PM’s Office a list of eight names comprising
senior lawyers and lay people – all respected
individuals in civil society. However, when we
asked for further consultation they never got back
to us. We were also not consulted on the proposals
of others. They won’t get a fresh perspective on
prospective judges if they only select people from
the judiciary. It was just lip service.”
The President of the Malaysian Bar also
announced that a plan to keep a report card
of the performance of judicial commissioners
and judges would be undertaken and the
results given to the jac to assist them in
determining which judicial commissioners
should be confirmed and which judges ought
to be promoted to higher judicial office.
Under the provisions of the jac Act,
judicial commissioners are not vetted by the
jac. Nonetheless the Chief Justice of Malaysia
has voluntarily chosen to utilise the jac to
review potential candidates for the position of
judicial commissioner. These are “contract”
positions at the High Court judge level for
a period of two years at a time. Those who
perform well as judicial commissioners have
an opportunity to be appointed High Court
judges.
Outside the mechanism of the jac, it was
widely reported in the press (in September
2009) that the Chief Justice had demanded
the resignation of two High Court judges for
gross inefficiency.
Looking at similar institutions in other
jurisdictions, for example in the United
Kingdom and in South Africa, the lack of
lay participation in the selection process is a
significant shortcoming which weakens the
integrity and efficacy of the jac.
The Judges’ Code of Ethics
The Judges’ Code of Ethics 2009 came into
effect on 1 July 2009 and sets out in greater
detail how a judge should uphold the integrity
and independence of the judiciary. As per
*This chapter was written by Andrew Khoo, Chairperson of the Malaysian Bar Council’s Human Rights Committee.
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7/15/10 11:57 AM
Section 2(1) of the Code states, “This code is
intended to state the basic standards to govern
the conduct of all judges and to provide
guidance to judges in setting and maintaining
high standards of personal and judicial
conduct.” The new code replaced the Judges’
Code of Ethics 1994.
Although the Judges’ Code of Ethics
2009 was operational by 1 July 2009, it was
unclear how this Code was implemented
because the Judges’ Ethics Committee had
not yet been established.
The Judges’ Ethics Committee Act
2010
The Judges’ Ethics Committee Bill 2008 was
first read in Parliament on 15 December
2008. The intention of the Government was
to establish this Judges’ Ethics Committee to
enforce the Judges’ Code of Ethics.
The Bill spent the course of 2009
making its way through the parliamentary
process and was approved by both houses of
Parliament by the end of 2009. It received
Royal Assent on 6 January 2010 and became
law on 4 March 2010.
The Bill proposed the setting up of a
committee of judges comprising persons who
are or have been President of the Court of
Appeal, Chief Judge of the High Court in
Malaya, Chief Judge of the High Court in
Sabah and Sarawak, or judge of the Federal
Court, the Court of Appeal or a High Court.
The appointments would be made by the
Chief Justice of Malaysia, who would be the
Chair of the Committee.
Allegations of Bribery
In early 2009, before the Judges’ Code of
Ethics 2009 or the Judges’ Ethics Committee
were in operation, the Chief Justice of
Malaysia was embroiled in a controversy
regarding the bribing of a court staff member
during the Chief Justice’s years in private
practice. A journalist reported that the Chief
Justice had made this startling admission
in an interview he had given. On the same
day that the story was published in a leading
local newspaper, the Chief Justice denied the
admission, saying instead, “the reporter must have
[mis]interpreted what I said, which is that during that
period there was corruption in order to get things done
at the court registry, as I myself have done it. I have
never in my life bribed or received any bribe.”
To counter this denial, a leading
opposition politician obtained a copy of the
tape recording of the press interview in which
the Chief Justice appeared to have said, “It
took me six months to be nice, to bribe each and every
individual to get back into their good books before our
files were attended to. That was my personal experience.
I am telling this to all the clerks and all the registries
to stop this nonsense.” Calls were made for the
Chief Justice to resign. Notwithstanding this
tape recording, no further investigations were
carried out by the authorities.
Training in Human Rights for judges
The Malaysian Human Rights Commission
(better known by its Malay acronym suhakam)
organised a one-day Colloquim on Human
Rights for the Judiciary on 24 October 2009.
This was suhakam’s first major engagement
with the judiciary, which was attended by all
levels of the judiciary from senior members
of the Federal Court to Sessions Court
judges. It was conducted with the support
of the Chief Justice. In organising this event,
suhakam was of the view that there was room
for improvement in respect of the application
of international human rights norms in the
administration of justice in Malaysia.
Malaysian judges have not strenuously
upheld international human rights standards
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7/15/10 11:57 AM
as the courts have taken the view that the
Universal Declaration of Human Rights is
declaratory in nature and does not enjoy the
force of law (see Mohd Ezam bin Mohd. Nor
v. Ketua Polis Negara [2002] 1 MLJ 321).
The Colloquim was therefore an opportunity
to hear from Homayoun Alizadeh, Resident
Representative, Office of the United Nations
High Commissioner on Human Rights,
South-East Asia Regional Office in Bangkok,
Thailand.
Reform of the Judiciary
The improvement in the efficiency of the
judiciary has become a cornerstone of the
reforms introduced by the current Chief
Justice of Malaysia, Zaki Azmi. Judges and
judicial commissioners now have to meet Key
Performance Indicators (kpis) which were
agreed to at a judges’ conference in March
2009. Two new Commercial Courts were
launched in September 2009 to speed up the
disposal of commercial cases, expected to be
completed within a target period of 9 months.
However, legal practitioners felt that in
order to meet those kpis, judges were acting
unreasonably in forcibly speeding up trials
and refusing to grant postponements. To
counter the rationalisation that “justice
delayed is justice denied”, lawyers spoke of
“justice hurried is justice buried”.
On 19 December 2009, the Malaysian
Bar held an extraordinary general meeting to
discuss the initiatives launched by the Chief
Justice of Malaysia to clear up the backlog of
cases pending in the courts. In principle, the
Malaysian Bar is supportive of the initiatives
that the Chief Justice has brought in, namely:
a tracking system for cases; uniformity of
court and administrative procedures; starting
trials on schedule; easier filing of documents
and faster extraction of court orders; and a
court recording and transcription service that
will reduce trial time. The re-introduction of
a case management system is also intended
to expedite matters, as is the appointment of
judicial commissioners from among the ranks
of practising lawyers.
However, the Malaysian Bar passed a
resolution advocating that “any judicial initiative
and reform must have, at its core and as its principal
criterion, the overall objective of achieving qualitative
justice in every instance without ever compromising the
independence of the Judiciary”. Judges should not
be overly influenced by the need or fear that
their career advancement would be dictated
by how well they meet their kpis to the extent
that “they cannot exercise their judicial discretion
fairly, sensibly and courageously in all instances, in
the interest of procedural and substantive justice”.
Furthermore, the Malaysian Bar called upon
the Chief Justice “to immediately review the
implementation of the present initiative, and to work
with the Bar so as to emphasise quality and integrity
over quantity in the administration of justice and to
ensure that justice is in no instance sacrificed in any
obsession for speed or expediency”.
Lack of Transparency in Empanelling
Judges
Notwithstanding the proposed judicial
reforms, concerns remain on the issue of
the lack of openness and transparency in the
process of empanelling judges, i.e. deciding
which judges sit to hear which cases. The
Chief Justice has indicated that when it comes
to cases involving the Government, it is not he
that decides who should sit. To avoid any hint
of bias, given the fact that the Chief Justice
has been associated with the United Malays
National Organisation or umno, the major
partner in the ruling coalition government
(for whom he acted as their lawyer), the
empanelling in cases of political significance
is decided by the President of the Court of
Appeal.
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7/15/10 11:57 AM
It should be further observed that in the
case of Nizar v Zambry (as detailed later), a
request from the Nizar team for the full bench
of 11 Federal Court judges to hear the final
appeal was turned down. Instead the appeal
was heard by five judges, namely Alauddin
Mohd Sheriff (President of the Court of
Appeal), Arifin Zakaria (Chief Judge of
Malaya), and Federal Court justices Zulkefli
Ahmad Makinuddin, Mohd Ghazali Mohd
Yusoff and Abdul Hamid Embong. Justices
Alauddin, Arifin and Zulkefli had decided four
other cases involving the Perak Constitutional
Crisis. The fact that the same judges were
empanelled to hear cases embroiled within
the Perak Constitutional Crisis gave cause for
doubts over the decisions.
Judicial Decision over the Perak
Crisis
In February 2009, 11 months after
Malaysia’s 12th General Election, which
saw the opposition Pakatan Rakyat coalition
forming the state government in the state of
Perak, three state assemblypersons changed
their political allegiance. Parti Keadilan
Rakyat’s Jamaluddin Mohd Radzi (State
Assemblyperson for the seat of Behrang) and
Mohd Osman Jailu (State Assemblyperson
for the seat of Changkat Jering), together
with the Democratic Action Party’s Hew
Yit Foong (State Assemblyperson for the
seat of Jelapang), resigned from their
respective parties and agreed to support a
Barisan Nasional-led state government while
remaining as independents.
As the Pakatan Rakyat-led state
government held a very slim majority in the
Perak State Assembly, the withdrawal of
support by these three persons set in motion
several events of monumental consequences
for the confidence in the law and the judiciary
of Malaysia.
The first response was by the thenSpeaker of the Perak State Assembly, V.
Sivakumar. Exercising his prerogative as
Speaker, and the right of the legislature to
determine its own affairs, he accepted undated
letters of resignation forwarded by the three
state representatives’ respective political
parties and duly declared that the three had
resigned their office as State Assemblypersons
and that the seats held by them were now
vacant. The speaker duly notified the Federal
Election Commission to call upon them to
organise a by-election. The latter refused,
holding that the undated letters of resignation
were not valid and that the three remained
State assemblypersons. The Speaker then
brought a case to the High Court challenging
the Election Commission and the three State
representatives in question. The matter was
referred to the Federal Court which ultimately
decided in favour of the Election Commission
and the three representatives.
Because of the switch in support by the
three from Pakatan Rakyat to the Barisan
Nasional, Menteri Besar Nizar Jamaluddin
asked the Sultan of Perak to dissolve the Perak
State Assembly. The Sultan refused, asking
instead that Nizar resign. When Nizar failed
to tender his resignation, he was deemed to
have been dismissed by the Sultan, who then
proceeded to appoint Zambry Abd Kadir as
the new Mentri Besar. Another court case
ensued.
In May 2009, High Court judge Abdul
Aziz Abd Rahim ruled that a Menteri Besar (a
Chief Minister of a state government) could
only be dismissed by a vote of no confidence
of the state assembly. His decision favoured
Nizar, the incumbent Menteri Besar from
the Pakatan Rakyat coalition, over Zambry
of the Barisan Nasional. However, the High
Court decision was subsequently overruled by
the Court of Appeal and later upheld by the
Federal Court.
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7/15/10 11:57 AM
Then-Perak Menteri Besar Nizar Jamaluddin of Pakatan Rakyat
outside the courtroom of the Kuala Lumpur High Court on 18
February 2009 in the court case to determine the rightful Perak
Menteri Besar in the dispute between Pakatan Rakyat and
Barisan Nasional. (Photograph courtesy of Malaysiakini)
Another case involving the state
assemblies was seen on 16 November 2009
when High Court judge Alizatul Khair
Osman Khairuddin ruled that the Kota
Siputeh seat in the Kedah State Assembly was
correctly declared vacant by the Speaker of
the Kedah State Assembly after the incumbent
State representative, Abu Hassan Sharif,
had absented himself from two consecutive
sittings of the Kedah State Assembly without
leave. However, this decision was stayed by a
panel of the Court of Appeal and the High
Court decision was subsequently overruled by
the Court of Appeal.
The Karpal Singh Sedition Trial
The Speaker of the Perak State
Assembly then sought to suspend Zambry
and six other State representatives from
the Perak State Assembly on grounds of
contempt of the Assembly in that they had
accepted appointment as the replacement
Menteri Besar and state executive councillors
respectively. Another round of court cases
ensued and the final court judgement
decided that the Speaker had no authority
to suspend Zambry and the six other State
representatives.
Another court case was then launched
by V. Sivakumar for a declaration that he
remained the legitimate Speaker of the Perak
State Assembly after the Barisan Nasional-led
state government had chosen a new Speaker.
Sivakumar lost that court battle.
Overall, the consequence of the four
cases was to frustrate the will of the people
as expressed in the 12th General Election
of 2008. Serious questions were also raised
regarding the separation of powers between
the executive, the legislature and the judiciary,
for the courts had ruled in favour of the
executive, while the Sultan and the Election
Commission were bestowed the right to
determine matters within the purview of the
legislature.
Arising from the Perak Constitutional
Crisis, Karpal Singh (a lawyer and leading
opposition Member of Parliament) faced trial
for sedition. Karpal Singh, who is Chairman
of the opposition Democratic Action Party,
had given a press conference during which
he opined that the decision of the Sultan of
Perak in appointing Zambry as the Menteri
Besar was justiciable before the courts.
Certain groups took umbrage at this opinion,
insisting that it questioned a decision of the
Sultan of Perak, thereby disparaging the
sultan. A police report was lodged alleging
that Karpal Singh had committed sedition.
After investigation, Karpal Singh was duly
charged and at the end of 2009, his trial for
sedition was ongoing.
The fact remains that the courts did
indeed hear the matter of whether Zambry
was properly appointed Menteri Besar by
the Sultan of Perak. Thus by their action
the courts had confirmed that the matter was
indeed justiciable. Yet the Attorney-General
has seen fit to proceed with this prosecution,
and the courts have not disapproved of this
line of action.
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7/15/10 11:57 AM
The Anwar Ibrahim Sodomy Trial
2009 saw Malaysia’s former Deputy Prime
Minister and now leader of the opposition in
Parliament, Anwar Ibrahim, facing his second
trial for sodomy, which is an offence in this
country. He is said to have committed the act
on a former aide.
Anwar Ibrahim at the Kuala Lumpur High Court for his sodomy
trial on 8 July 2009. (Photograph courtesy of Malaysiakini)
In the course of pre-trial motions and
notwithstanding the clear language of
Section 51A of the Criminal Procedure Code
(cpc), the Court of Appeal ruled that Anwar
Ibrahim was not entitled to obtain evidence
from the prosecution relating to his alleged
act of sodomising his former aide. This
included medical reports stating that no sign
of penetration had been noted.
The decision of the Court of Appeal
contradicts the amendment to the cpc
introduced in 2006 which requires pre-trial
disclosure by the prosecution to the defence of
the information which gave rise to the charge,
any documents to be tendered as part of the
evidence of the prosecution, and a written
statement of facts favourable to the defendant
signed by the prosecution.
The Royal Commission of Inquiry
into the Video Clip Incident
The findings of the Royal Commission of
Inquiry established in 2008 to investigate
the video clip purportedly showing senior
lawyer V. K. Lingam allegedly speaking
over the telephone with 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 was made public on 20
May 2008. To recall, the Royal Commission
of Inquiry found that:
• it was indeed former Chief Justice Tun
Ahmad Fairuz Sheikh Abdul Halim who
was talking to the lawyer Datuk V.K.
Lingamon the telephone;
• the video clip was authentic and that the
conversation was true in substance;
• there was sufficient evidence of mis
behaviour 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 Government should set up a Judicial
Appointments Commission to undertake
other necessary reforms. Evidence
presented showed that the promotion and
appointment of judges in the upper
echelon of the Judiciary was open to inter‑
ference and manipulation by the Executive
and private citizens; and that,
• judicial powers should be returned to the
civil courts.
Upon receipt by the Government of the
report, on 16 May 2008 the Cabinet ordered
the Attorney-General to immediately direct
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7/15/10 11:57 AM
agencies to investigate allegations levelled
at former Prime Minister Dr Mahathir
Mohamad, former chief justices Mohd
Eusoff Chin and Ahmad Fairuz Sheikh Abdul
Halim, former minister in the Prime Minister’s
Department Tengku Adnan Tengku Mansor,
prominent businessman Vincent Tan and
the lawyer in question, V.K. Lingam. On 21
May 2008 the Attorney-General announced
that he had ordered a thorough follow-up on
all the findings of the Royal Commission of
Inquiry.
Then on 25 February 2009, then-Prime
Minister Abdullah Ahmad Badawi told
Parliament that three out of the four persons
investigated in relation to the V.K. Lingam
video clip case had been cleared of graft
charges and that no further action would be
taken against them. Four investigation files
were opened by anti-corruption officers,
but three were “deferred” to the AttorneyGeneral’s Chambers; one was marked “no
further action” by the director of the legal
and prosecution department in the Malaysian
Anti-Corruption Commission, while two of
the deferred cases were subsequently marked
“no further action”. The remaining case was
still open. However, no names were mentioned
at all. Subsequently on 22 October 2009, the
Government announced that the matter had
been closed and that no prosecutions would
be carried out.
In November 2009, Minister in the Prime
Minister’s Department Nazri Aziz, winding
up a debate on his ministry in Parliament,
said that V.K. Lingam had not broken the law
for allegedly lobbying for the appointments of
judges. He said that there was no provision
in the law that said that those caught doing so
had committed an illegal act; “Lobbying (for the
appointment of judges) is not an offence. There’s no
such offence stated in any of the Acts cited unless the
element of bribery or the giving of money is evident.”
Nazri went on to say, “It is not unusual
for the Prime Minister, who is not familiar with the
judicial candidates, to seek the views of individuals
and organisations in the appointment of judges because
he cannot make that decision alone. This doesn’t
constitute a crime.”
Conclusion
In 2009, we see on the one hand a spirited and
determined initiative to improve the efficiency
of the judiciary and the delivery of services
within the judicial system. While there is
consensus on the need to reduce delays, speed
up trials, cut down paperwork, eliminate
unnecessary processes, there is concern
that in haste, injustices are perpetrated and
inefficiency results.
But it was a disastrous year for
Malaysians who sought the help of the
courts to uphold the will of democratically
elected representatives of the people in Perak
and in Kedah. The courts in their ultimate
deliberations gave decisions which upheld the
bn Government’s position.
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7/15/10 11:57 AM
chapter 8:
HUMAN RIGHTS
COMMISSION OF
MALAYSIA
(SUHAKAM)
7/15/10 11:57 AM
In
2009, the Human Rights
Commission
of
Malaysia
(suhakam) celebrated the 10th
anniversary of the passing of its enabling law,
the Human Rights Commission of Malaysia
Act 1999. However, the Commission faced
a serious crisis of public confidence in its
10th anniversary year mainly caused by two
major factors: firstly, its underperformance
and inability to bring about significant
improvements in human rights in Malaysia;
and secondly, the possible downgrading by
the International Coordinating Committee
of National Institutions for the Promotion
and Protection of Human Rights (icc). This
crisis of public confidence faced by suhakam
was most notably seen in the boycott of its
10th anniversary event by 42 civil society
organisations in September.
Since its establishment, 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.
While suhakam has occasionally come
up with good reports and recommendations,
these initiatives to promote human rights are
routinely ignored by the government and its
agencies. None of the reports of suhakam
– be they annual reports, thematic reports,
or reports of public inquiries – have been
debated in Parliament.
At another level, the ratification of
international covenants and treaties is one of
the benchmarks of human rights promotion
and protection. suhakam’s recommendations
to the government since 2000 to sign several
key international documents have been
ignored. Until this day, the government
has still refused to ratify the International
Covenant on Civil and Political Rights
(iccpr), International Covenant on Economic,
Social and Cultural Rights (icescr), and
the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment (cat).
According to a written reply dated
30 June 2009 to a parliamentary question
posed to the Prime Minister by a Member
of Parliament, the government has in the last
10 years taken into consideration suhakams
recommendations as contained in its annual
report only on five occasions – and these
pertain to:1
1. the establishment of the Judicial Appoint‑
ments Commission to improve public
confidence towards the judiciary;
2. the passage of the Evidence of Child
WitnessAct 2007;
3. the passage of the Anti-Trafficking in
PersonsAct 2007;
4. the awareness of the government of its
obligations under the Convention on the
Elimination of All Forms of Violence
Against Women (cedaw); and
5. the passage of the Persons With Disabili‑
ties Act 2008.
Even in these instances, a closer
examination would reveal that the
effectiveness of suhakam’s recommendations
is in fact limited. For example:
• The Judicial Appointments Commission
was not solely the call of suhakam. A
Royal Commission of Inquiry was set up
in 2008 to investigate the issue of inde‑
pendence of judges and its report made the
same recommendation.
• The Anti-Trafficking in Persons Act 2007
was tabled and passed mainly due to exter‑
nal pressure when Malaysia was blacklisted
by the US Department of States’ Watch
List on trafficking.
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Human Rights Commission Of Malaysia (suhakam)
• With regard to cedaw, suhakam has
failed to encourage the government to
withdraw its existing reservations.
Nevertheless, the year saw perhaps the
most significant development relating to
suhakam since it was established, namely,
the enabling law of suhakam - the Human
Rights Commission of Malaysia Act 1999
- was amended twice in 2009. The first set
of amendments were hurriedly tabled by
the government and passed by virtue of the
majority commanded by the ruling party
in Parliament in March 2009, without the
knowledge of, and consultation with any civil
society groups. The amendments were minor
and superficial, and were bulldozed through
by the government in a desperate attempt
to avoid the international embarrassment of
suhakam’s downgrading by the icc, just one
day before the icc convened to decide on
the status of suhakam. However, this effort
was deemed inadequate by the icc and the
government was forced to amend the law
once again in July 2009.
The ICC’s Recommendations
National human rights institutions (nhris)
are accorded status ranking by the icc, the
international governing bodies of nhris, and
this status is reviewed periodically. An nhri
may be given either “A”, “B”, or “C” status
based on its compliance with the principles
relating to the status of national human
rights institutions (Paris Principles)2 – 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 are given the right to
participate in the regular sessions of the
Council. Each nhri are usually reviewed once
every four years. In 2008 and 2009 alone,
suhakam has been reviewed three times by
the icc due to the fact that it does not fully
comply with the Paris Principles and has not
fully addressed all recommendations made by
the icc.
In its April 2008 review of suhakam,
the icc gave a one-year notice to suhakam
to make improvements based on four
recommendations,
failing
which
the
Commission would be downgraded from
“A” status to “B”. The recommendations and
observations made by the icc Sub-Committee
on Accreditation in relation to suhakam were:
1. The independence of the Commission
needed to be strengthened by the provi‑
sion of a clear and transparent appoint‑
ment and dismissal process in the founding
legal documents, more in line with the
Paris Principles.
2. With regard to the appointment of the
members of the commission, the Sub Committee noted the short term of office
(two years).
3. The importance of ensuring the repre‑
sentation of different segments of society
and their involvement in suggesting or
recommending candidates to the govern‑
ing body of the Commission.
4. The need for suhakam to interact
more with the International Human
Rights System and participate in human
rights mechanisms and making recom‑
mendations at the national level.
Malaysian Government Rushes
Through Superficial Amendments
Implementation of the first three of the
four recommendations made by the icc
required amendments to the enabling law of
suhakam, the Human Rights Commission
of Malaysia Act 1999. There were no visible
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efforts to act upon this notice throughout the
one-year period given by the icc.3 However,
on 24 March 2009, just two days before
the icc convened its meeting to review the
accreditation of suhakam, amendments
were tabled and hurriedly passed the next
day, on 25 March 2009. These amendments
were made without any consultation with
civil society groups. In fact, members of
parliament themselves were given very little
time to study and debate the bill.4
Among the amendments made were
Section 5(2) of suhakam’s enabling law, in
relation to the selection process of suhakam
Commissioners, whereby the King appoints
Commissioners based on recommendations
of the Prime Minister who in turn consults a
selection committee comprising:i. the Chief Secretary to the Government
who shall be the Chairman of this
committee;
ii. the incumbent Chairman of
and
suhakam;
iii. three other members, from amongst
eminent persons, to be appointed by the
Prime Minister.
However, a provision was included
stating that the views or recommendations of
the committee as stated above are not binding
upon the Prime Minister in the new selection
process.
Before
these
amendments,
Commissioners were appointed by the King
solely on the recommendation of the Prime
Minister.
Amendments
were
also
made
to Section 5(4) of the Human Rights
Commission of Malaysia Act, with regard
to the Commissioners’ terms of office. The
amendments extended the previous two years
to three years. Each Commissioner can only
serve a maximum of two terms in office, as
compared to the previous provision which set
no limits to the extension of a Commissioner’s
term in office. This amendment effectively
disqualifies all current Commissioners serving
their terms in 2009 from being re-appointed
as all of them have served either two terms
or more.
Finally, the amendments included a
provision which states that the Prime Minister
may determine suitable mechanisms,
including appropriate key performance
indicators, to assess the performance of
Commissioners in carrying out their functions
and duties, and these indicators shall be taken
into consideration in the future appointment
and dismissal of Commissioners.
ICC’s March 2009 Special Review
and Recommendations
At the end of the icc’s one-year notice given
to suhakam, the icc convened its special
review of suhakam on 26 March 2009. In
its special review, the icc recommended
that “consideration of [the accreditation status]
of suhakam be deferred to its next session” as the
amendments to the enabling law of suhakam
were still then before the Upper House of the
Parliament.5 The icc also noted that “some of
the concerns it raised at its April 2008 session have
been addressed (e.g. the expansion of the term of office
to 3 years renewable)”.6 The icc further:7
1. expressed its disappointment that the
amendments do not make the process
more transparent through a requirement
for broad-based participation in the nomi‑
nation, review, and selection of Commis‑
sioners and recommended that the process
be further strengthened through inclusion
and participation of civil society;
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2. expressed its concern with regard to the
inclusion of performance indicators, as
established by the Prime Minister, used in
relation to re-appointment or dismissal
decisions, and stressed that such standards
must be clearly established; appropriately
circumscribed, so as not to interfere in the
independence of members; and made
public; and
3. stressed the need for suhakam to
continue to promote ratification and
implementation of international human
rights instruments.
On 22 June 2009, further amendments to Act
597 were tabled for the first reading in the
Lower House of the Malaysian Parliament,
in an apparent attempt by the government to
prevent suhakam from being downgraded by
the icc. However, the proposed amendments
made only minor and minimal changes to the
previous amendments passed in the Lower
House of Parliament in March 2009. The
only amendments proposed under the current
bill were:8
Despite the inclusion of members of
civil society in the proposed committee, there
remain concerns that no provision is included
to ensure civil society’s full and transparent
participation in the process. Another concern is
the possibility of government-organised ngos
being appointed by the Prime Minister to the
proposed committee that will be consulted by
the latter for appointments.
Furthermore, the amendments only
address one of the several concerns raised
by the icc. Other concerns of the ICC, such
as those pertaining to the transparency of
performance indicators for Commissioners,
as well as suhakam’s role in encouraging
ratification of international human rights
treaties, are ignored.
In response to these governmentproposed amendments, on 1 July 2009,
suaram and era Consumer submitted their
own proposal for amendments to the Prime
Minister’s Department, noting that the
two latest amendments made would not be
adequate to ensure suhakam’s full compliance
with the Paris Principles. With regard to the
recommendations of the icc in its March
2009 report, the two ngos proposed the
following amendments to Act 597:9
1. that the members of the Commission will
now be appointed by the King of Malaysia
on the advice of the Prime Minister, who
in turn, consults with a proposed commit‑
tee under the amendment bill consisting
of the Chief Secretary of the Govern‑
ment as the Chairman, the Chairman of
the Commission and three other members
appointed from amongst civil society by
the Prime Minister; and
2. the omission of the provision in the March
2009 amendments which stated that the
opinion, view or recommendation of the
committee upon consultation by the
Prime Minister will not be binding on the
Prime Minister.
1. A change in the composition and proce‑
dures of the proposed selection committee
to ensure transparency and public partici‑
pation, and the inclusion of a process for
public nomination of candidates;
2. The inclusion of a provision which
ensures that the proposed performance
indicators for commissioners are made
public; and
3. The inclusion of a provision which com‑
pels reports of suhakam to be debated
in Parliament to ensure that suhakam’s
recommendations, including those per‑
tain‑ing to ratification of international
human rights treaties, are acted upon by
the government.
Government’s Further Amendments
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Besides
these
proposals,
other
longstanding concerns of civil society were
also raised by the two ngos, including that all
Commissioners serve full-time in office and
that suhakam be placed under Parliament
instead of the Prime Minister’s Department
so as to ensure structural autonomy from the
Executive.10
However, none of these proposals were
adopted by the government. On 2 July 2009,
the government-proposed amendments were
passed by the Lower House of the Parliament
and on 9 July, they were passed by the Upper
House.
ICC’s November 2009 Special Review
of SUHAKAM
In November, the icc once again commenced
another special review of suhakam to
determine the status of the latter based on
the previous recommendations made. While
the icc decided to accredit suhakam with
an “A” status, it nevertheless noted that the
amendments to the enabling law of suhakam
may not, in practice, address all the concerns
that were raised in previous sessions. The icc
raised several concerns, namely:-11
1. the selection of civil society representa‑
tives on the selection committee is at the
sole discretion of the Prime Minister; and
2. decisions of the selection committee are
only recommendatory, since the Prime
Minister is required to consult with it, but
is not bound to accept its decisions.
Because of these outstanding concerns,
the icc stated that it would reassess suhakam’s
“A” status after one year. suhakam held a
press conference on 26 November 2009 to
announce its “A” status accreditation – even
before such a decision was made public by the
icc.13
Other Setbacks and Deficiencies Not
Yet Addressed
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 that
are yet to be addressed. These include the
Commission’s lack of structural autonomy;
the narrow definition of “human rights” in
its enabling law; Commissioners serving on
a part-time basis; and the limitation in their
powers of inquiry and visits to places of
detention.
(i) Lack of Structural Autonomy
When suhakam first started 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
undermined the Commission’s credibility
and dispels claims that it has any semblance
of structural autonomy from the Executive
branch of the government.
(ii) Narrow definition of Human Rights
The icc also noted that in the proposal to
develop Key Performance Indicators (kpis) to
be used in situations where a member is being
considered for re-appointment or dismissal, it
must be assessed whether the kpis are “clearly
established; appropriately circumscribed, so as not to
interfere in the independence of members; and made
public”.12
Another glaring weakness of the Commission
is that it does not have enforcement powers
and has a very limited mandate. According
to the Paris Principles, an nhri “shall be given
as broad a mandate as possible”.14 However,
Section 2 of the Human Rights Commission
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of Malaysia Act 1999 confines the definition
of “human rights” to such fundamental
liberties as enshrined in Part II of the Federal
Constitution. This sets limits on suhakam’s
mandate.
Although Section 4(4) of the Act states
that “regard shall be had to the Universal Declaration
of Human Rights [udhr] 1948 to the extent that
it is not inconsistent with the Federal Constitution”,
there is no provision for incorporation of
rights embodied in international conventions
to which Malaysia is a party. The definition
should be in accordance with the udhr and
other international human rights laws.
It must be pointed out that Part II is not
the only section of the Federal Constitution
that enshrines human rights. Many critical
matters like rights of citizenship, right to
universal adult franchise, eligibility to contest
a seat in the Lower House of the Parliament,
and protection for detainees under preventive
detention laws are stated in other parts
of the document. Yet, these have been
deliberately excluded from the Act. Even
the few fundamental liberties in Part II can
be easily circumscribed as the Constitution
subordinates individual rights to the need
for social stability, security and public order.
It permits the Executive and Legislature to
impose many restrictions on fundamental
liberties.
Commissioners remains despite repeated
recommendations by ngos for those positions
to be made full-time.15 Furthermore, the icc
in a general recommendation in April 2008
had noted, “Members of the nhris should include
full-time remunerated members […].”16
(iv) Powers of Inquiry
has powers similar to those of a
court of law in the matter of demanding
access to documents and attendance of
witnesses. However, Section 12(2) of the Act
bars it from inquiring into any complaint
relating to any allegation of infringement
of human rights which (a) is the subject
matter of any proceedings pending in any
court, including any appeal; or (b) has been
finally determined by any court. This can be
problematic as it may restrain the Commission
from investigating if a case involves any other
forms of violation apart from the subject
matter in the courts. This could possibly give
the Commission justification to refrain from
investigating cases taken to court, without
considering if these involve any other forms of
violation. This means that there is a possibility
that the Commission would have to refrain
from inquiry even when the alleged violator
initiates legal action to frustrate an inquiry by
the Commission.17
suhakam
(iii) Part-time Commissioners
Commissioners serve on a part-time
basis, which compromises the effectiveness
of the Commission and underscores the lack
of total commitment of the government
to protecting human rights. It is the only
national human rights institution in the
asean region whose commissioners do not
serve full-time. While the length of the
Commissioners’ terms in office was changed
with the amendments to the enabling law of
suhakam, the part-time nature of suhakam
suhakam
members listen to a complaint from Solidariti
Mahasiswa Malaysia (Malaysian Student Solidarity) in January
2009 regarding students’ rights at universities. (Photograph
suhakam
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(v) Visits to Places of Detention
Another restriction the Commission faces
relates to visiting places of detention. While
Section 4(2) (d) provides it with the power to
do so, the visits have to be “in accordance with
procedures as prescribed by the laws relating to the
places of detention […]”. In order to inspect
conditions of prisons, for example, suhakam
must first write to the Prison Department for
permission. It is pertinent to stress that such
notification only gives time to the authorities
to clean up their act, which defeats the basic
reason for checks on conditions in prisons and
detention camps. suhakam should be given
the powers to conduct spot checks in order
to get a more realistic view of conditions
and to ensure that the level of maintenance
and treatment of detainees are on par with
stipulated standards at all times.
SUHAKAM’s Work in 2009
From January to December 2009, the
Commission received a total of 962 complaints,
26 of which were in the form of memoranda.
Of these, 427 are in relation to human rights
violation, which includes complaints on law
enforcement officers/police abuse of power,
land matters, Emergency (Public Order
and Prevention of Crime) Ordinance 1969;
migrant workers; freedom of religion; deaths
in custody; refugees; and the Internal Security
Act 1960. The other 535 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.18
One of the setbacks with regard to
suhakam work in receiving complaints is that its
offices in Kuala Lumpur, Sabah and Sarawak
are located in the cities, making it difficult
for people from suburban and rural areas to
Torture victim B. Prabakar (center) stands outside of suhakam
after testifying to the Commission about his painful experience at
the hands of police. (Photograph courtesy of Malaysiakini)
lodge their complaints. The Commission has
no mobile ground staff in these areas to reach
out to local communities. While there are
means of electronic communication available
through the Commission’s e-complaint form
(available on its official website) and email,
the effectiveness of these methods cannot be
ascertained. To lodge a complaint in person,
victims may have may have to travel long
distances to suhakam offices.
Public Inquiry
In cases of public inquiries, suhakam is
reactive rather than 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 7 public inquiries
have been conducted – all of which were
held after complaints were lodged with the
Commission.
In 2009, suhakam conducted only one
public inquiry – into the arrest of five lawyers
of the Kuala Lumpur Legal Aid Centre (kl
lac) on 7 May 2009 at the Brickfields police
station in Kuala Lumpur. The five lawyers
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were arrested while on duty to provide legal
representation to 14 individuals who were
earlier arrested by the police for holding
a candlelight vigil on the same day. (See also
Chapter 2: Abuse of Powers by the Malaysian
Police; and Chapter 5: Freedom of Assembly and
Association.)
In response to the arrest, the Bar Council
submitted a memorandum to suhakam,
requesting suhakam to conduct a public
inquiry into the arrest. Pursuant to Section
12(1) of the Human Rights Commission of
Malaysia Act 1999, a Panel of Inquiry was set
up, with the following terms of reference:19
i. To establish if the arrest and detention
of the five lawyers constitutes a denial of
legal representation and a contravention of
Article 5 of the Federal Constitution and
Section 28A of the Criminal Procedure
Code (CPC), and therefore a violation of
human rights;
ii. To determine whether there was any
justification or necessity to arrest and detain
the lawyers under Section 27 of the Police
Act 1967, thereby violating their human
rights; and
iii. If violation of human rights occurred,
to determine:
• Which person or agency was responsible;
• How the violations occurred;
• What administrative directives and proce‑
dures or arrangements contributed to this;
and
• What measures should be recommended
to ensure that violations do not occur in the
future.
The public inquiry commenced on 14
August 2009 but was delayed, mainly due to
the initial refusal of most police officers to
give written statements to suhakam during
the public inquiry. This matter, however,
was resolved on 11 September 2009, when
suhakam, in an interlocutory decision,
Table 9.1: Press statements released by SUHAKAM in 2009
Item
Issue
1
Freedom of speech and expression
2
2
Freedom of assembly
3
3
Free and fair elections
2
4
Law enforcement agencies
2
5
Rights of the child
2
6
Trafficking in persons
1
7
Right to health
1
8
Whipping
1
9
International issues (Gaza)
1
10
Neutrality of SUHAKAM
1
11
Announcements
6
TOTAL
Number of Statements
22
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stated that Section 14(1)(a) of the suhakam
Act empowers the Commission to record
statements of witnesses, whether civilians or
police officers. The police officers subsequently
provided the required documents to suhakam.
As of 31 December 2009, the public inquiry
was yet to be concluded.
through a press statement that the statement
questioned by Nazri Abdul Aziz was a
position “agreed by all Commissioners except for one,
with the spirit of protection and promotion of human
rights”. suhakam also said that the issuance of
the statement was made out of independence
and impartiality.
Press Statements
SUHAKAM’S Position on Several Key
Human Rights Issues in Malaysia
released 22 press statements in
2009.20 (See Table 8.1 on the previous page)
Besides responding to various human
rights issues in 2009, the year also saw a press
statement released by suhakam on 3 July 2009
in response to its neutrality which was brought
to question by Members of Parliament during
the debate on the amendments to the enabling
law of suhakam in Parliament.
While
Opposition
Members
of
Parliament questioned the suitability of
Commissioner Mohd Shafee Abdullah
because he was actively involved as a lawyer
for the ruling-umno, Minister in the Prime
Minister’s Department Nazri Abdul Aziz
remarked that he viewed the incumbent
suhakam Chairman Abu Talib as unfit
for the position because the latter made a
statement earlier which called for a fresh
election when the political crisis unfolded in
Perak. Disputes between the bn and Pakatan
Rakyat representatives were over who was the
rightful Menteri Besar and State Assembly
Speaker, following the defection of three
elected state assemblypersons out of Pakatan
Rakyat. suhakam Chairman Abu Talib had
issued a press statement on 12 May 2009 in
which he said, “Perhaps the time has come for the
people of Perak to be given the opportunity to exercise
their right to choose the government of their choice,
which is a basic human right.” This position was
apparently viewed by the bn-led government
as lacking neutrality.
Thus, on 13 July 2009, suhakam clarified
suhakam
(i) 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 law to be enacted that would
redress the situation that is “disproportionately
weighted in favour of national security”.21 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.”22
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 investigative 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 takes
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various interim measures, including amending
the isa, before a new security law were put in
place. The proposed amendments include:23
i. Defining clearly the detention criteria
underthe isa;
ii. Reducing the detention period from two
years to three months;
iii. Either charging or releasing a detainee
after the three-month period;
iv. Allowing judicial review of detention
orders;
v. Requiring detaining authorities to submit
an annual isa report to Parliament and
making the isa valid for only one year unless
reviewed by Parliament annually.
In 2009, suhakam maintained its
opposition to the isa and other preventive
detention laws. During the adoption of
Malaysia’s Universal Periodic Review (upr) in
the un Human Rights Council in June 2009,
suhakam Chairman Abu Talib said:
“We welcome the release of 13 isa detainees
recently, and the announcement by the Prime
Minister in his inaugural speech that the
government would conduct a comprehensive
review of the isa. We urge the government to also
examine and review other preventive legislations
such as the Emergency Ordinance and the
Dangerous Drugs Act which allow for detention
without trial, and the police practice of arresting
and detaining suspects before investigation.” 24
At the 14th Annual Meeting of the Asia
Pacific Forum of National Human Rights
Institutions held in Amman, Jordan in August
2009, suhakam said, “Domestically, the isa is the
greatest burning concern….” 25
In its 2009 annual report, suhakam
“maintained that the isa is essentially corrosive of
human rights in its application and has outlived the
purpose for which it was legislated”. suhakam
reiterated its position that the isa has to be
repealed and replaced with an anti-terrorism
law. However, suhakam suggested certain
amendments to the isa “if the government is not
agreeable to repealing the isa”. The amendments
suggested are:26
i.Right to be informed of reasons for
arrest and detention
Detainees must be promptly informed of the reasons
for their arrests and/or detention. This includes
being informed of the specific grounds of which it is
concluded that their arrest or detention is necessary, and
the precise allegation of facts which led the relevant
detaining authority to be satisfied that such grounds
exist for the arrest. The grounds or allegations must
not be expressed in the alternative. These must be
clearly expressed, and must not be vague, overlapping
or inconsistent. Communication, either orally or in
writing, must be made in a language they understand.
A copy of the grounds of arrest must be dispatched to
the next-of-kin the same day to avoid uncertainty of the
rights being conferred.
ii.Right to be brought promptly before
a judicial authority
Detainees must be brought promptly before a judge or
any other officer authorised by law to exercise judicial
power. They must be allowed the right to speak to the
judge or officer in private. The judge or officer must
be allowed to order medical examination of detainees,
where this is deemed necessary.
iii.Right to challenge the lawfulness of
detention
Detainees must be allowed the right to challenge
the lawfulness of their detention before a Review/
Appellate Body chaired by a person of judicial
standing. The Review Body must have a statutorily
prescribed code of procedure that complies with the
requirements of natural justice. Where it is claimed
that the production of certain evidence is contrary to
national security, the Review Body must be empowered
to order the release of detainees if it is not satisfied that
continued detention is necessary.
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The hearing before the Review Body (currently
undertaken by the Advisory Board) has to be undertaken
in an open court situation, with mechanisms turning it
into a hearing in-camera when sensitive issues such
as national security are involved. suhakam has further
suggested that the premises where these hearings are
undertaken must be in a normal set up of the Courts.
The current practice of having the hearing in the
vicinity of the detention centres must be stopped, in
order to provide the vital information to the public that
detainees under this category are in fact being given the
right of hearing in a trial-like situation.
4(2) (d) of the Human Rights Commission
of Malaysia Act 1999. In 2009, suhakam did
not make any visits 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.
suhakam did not release any press
statement specifically on preventive detentions
in 2009 as compared to five such statements
made in the previous year.
(ii) Deaths in Custody
The mechanics of the hearing itself (currently referred
to as the Representation) require the authorities to
provide adequate disclosure of particulars to the
detainees in order to make their representation for
review intelligible and fair.
suhakam also suggested that the rights to habeas
corpus applications should not be limited to procedural
matters only. Challenges through the habeas corpus
must reflect the original idea of such prerogative writs.
While suhakam has maintained its
stance against the isa, the let-out clause, “if the
government is not agreeable”, has perhaps provided
the government with an excuse not to repeal
the law. This also suggests the apparent lack
of resolve on suhakam’s part to pressure the
government to repeal the draconian law and
its willingness to compromise its stand on the
matter. Furthermore, suhakam has welcomed
the government’s review of the isa, instead of
pushing for a total repeal of the law despite
the fact that suhakam itself had undertaken a
comprehensive review of the isa in 2003. This
shows that suhakam has not taken a strong
stand with regard to its recommendation
for the isa to be repealed, and also that the
government is ignoring the views of suhakam.
The lack of vigour in suhakam’s efforts
to apply pressure on the government to repeal
detention without trial laws can also be seen
in its failure to fully exercise its power to visit
places of detention, as provided in Section
In 2009, suhakam released two press statements
in relation to deaths in custody, including one
which was in immediate response to the death
of Teoh Beng Hock while in the custody of the
macc. In that statement, suhakam noted that
the case of Teoh was not the first complaint
that suhakam has received against the macc.
suhakam said that in 2008, it received two
complaints against macc officers who had
used force in conducting investigations. The
Commission stated that it would carry out
investigations into the death of Teoh and
would decide whether a Public Inquiry should
be carried out.27 However, no public inquiry
was held by the Commission on this case.
When the Magistrate commenced an inquest
into Teoh’s death, suhakam became legally
prohibited by its enabling law from further
investigating the matter.
In total, suhakam investigated five cases
of custodial deaths in 2009 by visiting the
place of detention where each death occurred
and requesting information from the relevant
authorities.28 The Commission, however, did
not conduct any public inquiry into these
cases.
stated that it “should be mandatory to carry out an
inquest into cases of deaths in custody, under Section
334 of the Criminal Procedure Code”. suhakam
also concurred with the recommendation of
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the Royal Commission on the Police that a
Coroner’s Court be established to conduct
inquests considering that the Magistrate’s
Courts, which currently conduct inquests,
have many other cases to hear.29
With regards to complaints about deaths
linked to unhygienic conditions in immigration
detention centres, suhakam recommended
that “sanitary facilities be upgraded, with special
attention given to food preparation since contamination
was the likely cause of death in the cases reported”.30
suhakam also recommended that
closed circuit television cameras be installed
at strategic angles in detention facilities to
help determine the cause of death in some
situations.31
While these pledges were commendable,
the government’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 any speedy implementation by the
government to amend the cpc to make it
mandatory for inquests to be held into all
deaths in custody and to establish a Coroner’s
Court to hear these cases.
Although suhakam pledged in 2005 to
hold public inquiries into all cases of death
in custody where inquests are not held,32
throughout 2007 to 2009, suhakam did not
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. While it did report that five
investigations were conducted in 2009, they
were not public inquiries and the scopes of
these investigations were therefore limited.
Furthermore, suhakam’s 2009 annual report
did not include findings of any of these
investigations.
(iii) Conditions of
Detention Centres
Prisons
and
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
14 places of detention in 2009.33 This number
is a drop from 37 made by suhakam in 2008,34
and 48 in 2007.35
made a general observation that conditions
had improved in prisons nationwide. It made
several recommendations to the government
with regard to immigration detention centres,
namely:36
• Facilities be upgraded, especially at the
older centres such as in Juru and Pekan
Nenas;
• Hygiene and cleanliness be prioritised to
prevent the spread of disease;
• Nutritious food be prepared according to
dietary recommendations and for special
needs for inmates like the elderly, children
and pregnant women;
• Qualified medical personnel be stationed in
the centres to provide healthcare services to
the detainees, as failure to do so contravenes
Rule 22 of the Standard Minimum Rules
for Treatment of Prisoners; and
• Detainees be checked mentally and physi‑
cally by qualified medical personnel upon
admission to the centres.
With regard to allegations of excessive
use of force by the police against individuals
in lockups, suhakam recommended that
government amends the Lock-Up Rules to
“reflect prevailing social, economic and cultural norms,
and to incorporate principles found in international
human rights standards, including the Standard
Minimum Rules for the Treatment of Prisoners”.37
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7/15/10 11:57 AM
(iv) Freedom of Assembly
Since its establishment, suhakam has
released several commendable reports on
freedom of assembly, including “Freedom of
Assembly” (2002); the report of the “Bloody
Sunday” public inquiry (2007); and the report
of the Bandar Mahkota Cheras public inquiry
(2008).
In the report of the public inquiry into the
“Bloody Sunday” incident, the Commission
recommended that “peaceful assemblies should
be allowed to proceed without a licence”.38 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.39 To date, however, no legal
action has been taken against any of the
personnel said to be involved.
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 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 21year 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 suhakam’s
Report of Public Inquiry into the Incident at
klcc on 28 May 2006 and suhakams Report
on Freedom of Assembly have remained unheeded
by the police. This is evident in 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 heavyhanded action of fru personnel as found in this
Public Inquiry.” 40
suhakam’s 2009 annual report did not
specifically mention freedom of assembly,
but the Commission released three press
statements on issues related to the right
to assembly. These press statements were
released in response to the mass arrests made
during two public assemblies – on 27 May
2009, when numerous elected Members of
Parliament, state assemblypersons, and civil
society activists were arrested in relation to
protests against the bns takeover of the Perak
state government from Pakatan Rakyat; and
on 3 August 2009, when 589 individuals,
including 44 juveniles, were arrested during
the anti-isa rally held on 1 August 2009. In
its statement, responding to the mass arrests
during the anti-isa rally, suhakam once again
reiterated its recommendations made in its
previous reports which have to date largely
not been implemented by the government:
“suhakam has consistently urged the
government to consider and take into account the
recommendations made by the Commission on
freedom of assembly as enunciated in the reports
of Kesas Highway and klcc Bloody Sunday
Public Inquiries.” 41
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
during public assemblies to ensure that its
recommendations are observed by the police
and other law enforcement agencies. None of
the suhakam commissioners have been known
to be present or openly identified themselves
in any of the public assemblies which involved
arrests and use of force by the police in 2009.
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7/15/10 11:57 AM
has its own set of Administration of Islamic
Law which is not uniform in some respects,
causing some difficulties in interpretation and
application. The Commission thus submitted
a memorandum to the Rulers’ Conference on
3 October 2009, recommending:- 42
No suhakam members were present to witness the police’s
forceful response at the anti-isa rally. Because the event did not
have a permit, the Commission rejected organisers’ request to
monitor it, thus contradicting suhakams previous support for
the right to peacefully assemble without licence. (Photograph
Prior to the 1 August 2009 anti-isa rally,
the organisers, the Abolish isa Movement
(Gerakan Mansuhkan isa, gmi), had requested for
suhakam to be present at the rally to monitor
the situation as the organisers had expected
an imminent crackdown by the police.
However, suhakam refused to do so without
the organisers having first obtained a police
permit. This contradicted its own position
unequivocally stated in its Bloody Sunday
report that “peaceful assemblies should be allowed
to proceed without a licence”.
(v) Freedom of Religion and Matters
Pertaining to Religion
In suhakam’s 2009 annual report, the
Commission highlighted the issue of
conversion to and from Islam, which,
according to suhakam, “is a very sensitive
matter in Malaysia”. suhakam also stated that
through its research into the freedom of
conscience, thought and religion from both
the religious and constitutional aspects,
it has found that there are no stipulated
procedures for conversion from Islam under
the Syariah legislation, causing Muslims
problems in renouncing the religion. The
Commission also pointed out that every state
• Uniformity of all the State and Federal
Territories Administration of Islamic Law;
and
• To provide in such laws:
i. A clear and comprehensive procedure
for conversion to and from Islam; and
ii. Matters in consequence of conversion
such as status of marriage, division
of matrimonial property, custody of
childrenand maintenance.
did not release any press statements
with regard to freedom of religion and other
matters pertaining to religion in 2009.
suhakam
(vi) Freedom
Information
of
Expression
and
released two press statements on
freedom of expression in 2009. On 26 March
2009, suhakam expressed its regret over the
suspension of the publishing permits of two
opposition parties’ newspapers, Suara Keadilan
and Harakah. suhakam said that such a decision
infringed the freedom of speech, expression
and information and urged the Ministry of
Home Affairs to lift the suspension.43
On 4 May 2009, suhakam released
a press statement in conjunction with the
press freedom day, calling for the authorities
to “consider the review of the Printing Presses
and Publications Act 1984” and to “adopt a
more liberal approach regarding the approval and
renewal of printing and publishing permits and
licences”. suhakam suggested that all printing
publishing permits and licences be renewed
automatically. The Commission also urged
the government to refrain from using the isa,
suhakam
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7/15/10 11:57 AM
the Sedition Act, and the Defamation Act
against the media. It also urged the courts to
take into consideration the need to uphold
freedom of expression and information when
considering defamation cases.44
Besides the press statements, there was
no mention on freedom of expression and
information in suhakam’s 2009 annual report.
(vii) Asylum Seekers and Refugees
acknowledged that asylum seekers
and refugees are vulnerable to harassment,
physical abuse and assault by the authorities
and that they are denied their right to
basic needs such as healthcare, education
and employment. The Commission also
attributed this to Malaysia’s non-ratification
of the 1951 Convention Relating to the
Status of Refugees, thus resulting in refugees
and asylum seekers being classified as
“undocumented persons”. suhakam also
noted that some unaccompanied children
were being detained with adults in the same
cell when the Commission visited immigration
detention centres, putting the children at
an increased risk of abuse. With regard to
this, suhakam recommended that refugee
and asylum seeking-children should not be
held in a prison-like setting but be placed
in appropriate accommodation. suhakam
stressed that the Malaysian government is
obliged to protect refugee and asylum-seeking
children as it is party to the Convention on
the Rights of the Child (crc) and urged the
government to take “urgent measures to develop a
legislative framework” for the protection of this
group, in line with international standards.45
However, suhakam did not state its
position on the government’s non-recognition
of refugees and asylum seekers. The
Commission also did not recommend that
the government ratifies the 1951 Convention
Relating to the Status of Refugees, although
it is mandated to encourage the ratification
suhakam
of international human rights treaties and
instruments.46
SUHAKAM’s Relationship with Civil
Society
Perhaps the most significant event which
illustrates suhakam’s relationship with
civil society in 2009 was the boycott of the
Commission’s Human Rights Day event in
conjunction with the 10th anniversary of its
establishment. On 8 September 2009, 42 civil
society groups announced a boycott of the
event to register their protest and disapproval
of the failure of suhakam to proactively
protect and promote human rights, the failure
of the government to make suhakam a truly
independent and effective institution, and the
failure of the government to implement most
of suhakam’s substantive recommendations.
The 42 groups also announced that they
would engage conditionally with suhakam,
pending the implementation of the following
demands for suhakam to:47
i. Intensify public campaigns, especially on
issues where recommendations have been
ignored by the government.
ii. Provide an action plan with specific
timeframes for the government to
implement all pending recommendations
and release progress reports on the status
of implementation publicly and regularly.
iii. Play an intermediary role between
civil society and relevant ministries or
government departments by holding
regular constructive meetings, including
on the implementation of suhakam’s
recommendations as well as reforms of
suhakam.
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iv. Conduct regular monitoring on the
ground, particularly in cases where there
are imminent threats of human rights
violations.
v. Be more prompt, vocal and visible
in responding to cases of human rights
violations.
The groups also urged the government to:
i. provide suhakam with wider powers
and mandate, including all rights in the
Universal Declaration of Human Rights
and other international human rights laws;
ii. ensure more transparency in the
selection process of Commissioners, with
full consultation with civil society at all stages of
the appointment process;
iii. ensure that all Commissioners are fulltime;
iv. clarify suhakam’s powers to prevent
Section 12(2) from undermining its work
by the simple means of taking matters to
court, and to allow suhakam the discretion
to conduct an inquiry after disposal of the
matter in court;
v. give powers to suhakam to conduct spot
checks on places of detention, without prior
notice to authorities of places of detention;
vi. ensure that suhakam reports directly
to Parliament, rather than being placed
directly under the Prime Minister’s
Department; and
vii. officially table and debate
reports in Parliament.
suhakam’s
On some specific issues, there has been
some form of institutionalised cooperation
between suhakam and certain civil society
groups. For instance, in its work on the rights
of women, particularly in monitoring the
implementation of the Convention on the
Elimination of All Forms of Discrimination
against Women (cedaw), the Human Rights
Education and Promotion Working Group
of suhakam established a Sub-Committee on
Women’s Rights in February 2008.48 This subcommittee comprises representatives of the
Ministry of Women, Family and Community
Development, ngos working on women’s
issues, and a number of gender and women’s
rights experts.49
On a less institutionalised level,
suhakam has collaborated with some NGOs
in conducting trainings and workshops on
various human rights issues. For instance,
suhakam in recent years has invited suhakam
to assist the Commission in its human rights
training session for police officers.
However, in most other areas of
suhakams
work, its cooperation and
consultation with civil society groups can be
described as irregular and lacking in followup work. In the past few years, suhakam has
held roundtable discussions with civil society
groups on a number of issues. The problem
of a lack of follow-up action in suhakam’s
consultations with ngos was raised by several
ngo representatives present at a roundtable
discussion organised by the newly-merged
Economic, Social and Cultural Rights and
Civil and Political Rights working groups on
11 March 2009.
In May 2008, suhakam set up a new
working group on Civil and Political Rights,
“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.50 However, this
working group was subsequently merged with
the Economic, Social and Cultural Rights
Working Group and renamed the Economic,
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Social and Cultural Rights & Civil and
Political Rights Working Group. Although this
newly-merged working group continued some
of the work that the Civil and Political Rights
Working Group had aimed to do, for instance
organising a roundtable discussion with civil
society on 11 March 2009, its functions no
longer explicitly spell out cooperation with
civil society.
In 2009, suhakam announced that
it had set up a human rights defenders
desk to improve its protection of human
rights defenders. This was announced by
Commissioner Michael Yeoh in a roundtable
discussion with ngos on 11 March 2009.
According to the commissioner:
“[T]he idea of setting up the Human Rights
Defenders Desk arose from suggestions from
participants of the previous civil and political
rights session with NGOs held on 17 July
2008. As human rights defenders from ngos and
civil society face risks of arrest and harassment
at public assemblies and demonstrations from
law enforcement, participants urged suhakam to
publicise the need for protection of human rights
defenders.” 51
However, the desk has not been
functioning actively as of 31 December
2009. Not only was there no follow-up in
terms of providing protection for human
rights defenders at risk, on certain occasions,
suhakam even refused to do so despite
requests by human rights defenders facing
imminent threat, for example in the 1 August
anti-isa rally.
independence, effectiveness and compliance
with international standards. While the
enabling law of suhakam was amended twice
because of this, many other concerns remain.
The amendments were minor and superficial.
Meanwhile, suhakam’s performance in
protecting and promoting human rights in
Malaysia has not improved much. suhakam
lack of effectiveness in playing its expected
role as a public defender of human rights
in Malaysia has resulted in a serious crisis
of public confidence in the Commission. At
the same time, the government has routinely
ignored most recommendations that suhakam
has made.
Although suhakam was finally given
an “A” status by the icc, several concerns
of the international body have yet to
be fully addressed by suhakam and the
government. As such, suhakam will once
again be scrutinised by the icc in November
2010. At the next review, the icc will assess
whether the amendments to the enabling
law of suhakam are applied in a manner
which complies with international standards.
Thus, in 2010, suhakam may well face the
same challenges that it has faced in the past
two years – consistently trying to prove its
worth at both the international and national
levels. Meanwhile, because the amendments
have limited each Commissioner’s tenure in
office to a maximum of two terms, all of the
suhakam Commissioners holding office in
2009 will be ineligible for re-appointment, as
they have all served at least two terms. Thus,
the challenge to regain the confidence of the
public will be left to a new set of suhakam
Commissioners starting in June 2010.
Conclusion
The international spotlight on suhakam
over the past two years has forced the
government to address several of civil society’s
longstanding concerns about suhakam’s
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End notes
1
2
3
4
5
6
Jawapan bukan lisan, Mesyuarat Pertama,
Penggal Kedua, Paralimen Kedua belas, #127
[Parliamentary written reply, First Sitting of
the Second Session of the Twelfth Parliament,
#127].
The Paris Principles, adopted by the UN
General Assembly resolution 48/134, sets
out the international standards that should be
adhered to in order to ensure the independence
and effectiveness of national human rights
institutions.
The total lack of commitment of the
government to strengthen suhakam was clearly
seen during the Universal Periodic Review
(upr) of Malaysia in February 2009. Here,
recommendations of at least four countries
to ensure the independence of suhakam in
accordance with the Paris Principles and also
to widen the scope of suhakam to cover all
rights in the Universal Declaration of Human
Rights were merely noted by the government of
Malaysia, but were not listed as those which enjoyed
its support.
In protest at the hasty and non-consultative
manner in which the bill was pushed through,
opposition Member of Parliament Lim Kit
Siang said, “We were not given proper notice and there
was no consultation. We should have been given a day’s
notice to review the amendments… this is totally against
the Standing Orders of the House.” The Speaker of
the Lower House of Parliament subsequently
suspended Lim temporarily when he pressed
on further to challenge the manner in which
the amendments were tabled.
Under the Malaysian parliamentary system, a
bill has to be passed firstly by the Lower House,
followed by the Upper House. When a bill has
completed these two parliamentary stages, it
will need the Royal Assent by the King before
being gazetted as a law.
International Coordinating Committee of
National Institutions for the Promotion and
Protection of Human Rights, “Report and
Recommendations of the Session of the SubCommittee on Accreditation”, Geneva, 26-30
March 2009 (p. 10).
7
Ibid
8
(Amendments) (Amendments) Bill 2009.
9
See Proposed Amendments to the Human
Rights Commission of Malaysia Act (Act 597)
by SUARAM and ERA Consumer, June 2009;
and SUARAM, Letter to Datuk Seri Mohamed
Nazri Abdul Aziz, ‘Re: Proposals by Human
Rights NGOs for Amendments to the Human
Rights Commission of Malaysia Act’, dated 1
July 2009.
10 Ibid
11 International Coordinating Committee of
Recommendations of the Session of the SubCommittee on Accreditation”, Geneva, 16-18
November 2009 (pp. 8-9).
12 Ibid. (p. 9).
13 “It’s still grade A for Suhakam”, Malaysiakini,
26 November 2009, http://www.malaysiakini.
com/news/118411 (accessed at 26 April 2010).
14 Paris Principles, op. cit. (Competence and
responsibilities).
15 For example, see SUARAM’s Letter to the
Minister in the Prime Minister’s Department,
“Re: Proposals by Human Rights NGOs for
Amendments to the Human Rights Commission
of Malaysia Act”, 1 July 2009.
16 International Coordinating Committee of
Recommendations of the Sub-Committee of
Accreditation”, Geneva, 21-23 April 2008 (p.
12).
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7/15/10 11:57 AM
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 Rights and the National Commission. Kuala
Lumpur: hakam (pp. 194-195).
18
(2010) 2009 Annual Report, Kuala
Lumpur: suhakam (pp. 27-29).
32 “Custodial Deaths: We’ll hold public
inquiries,” New Straits Times, 14 December
2005.
33
suhakam
34
suhakam
35
suhakam
36
suhakam
(2010) op. cit. (p. 33).
(2009a) 2008 Annual Report, Kuala
(2008) 2007 Annual Report, Kuala
suhakam
(2010) op. cit. (p. 34).
19 Ibid. (pp. 43-44).
37 Ibid. (p. 35).
20 Ibid. (pp. 127-128).
38
21
(2003) Review of the Internal Security Act
1960. Kuala Lumpur: suhakam. (p. 83).
suhakam
(2007a) Report of suhakam Public
Inquiry into the Incident at klgc on 28 May 2006.
Kuala Lumpur: suhakam (p. 97).
suhakam
39 Ibid.
22 Ibid. (p. 86).
40
23 Ibid. (pp. 90-91).
24 “Oral Statement at the Adoption of Malaysia’s
upr”, suhakam, 12 April 2009.
25 “14th Annual Meeting of the Asia Pacific
Forum of
National Human Rights
Institutions”, suhakam, 6 August 2009.
26
suhakam
(2009b) Report of suhakam Public
Inquiry Into the Allegation of Excessive Use of Force
by Law Enforcement Personnel During the Incident
of 27th May 2008 at Persiaran Bandar Mahkota
Cheras 1, Bandar Mahkota Cheras, Kuala Lumpur:
suhakam (p. 36).
suhakam
41 “suhakam: The Right to Peaceful Public
Assemblies Should Be Respected”, suhakam,
3 August 2009.
(2010) op. cit. (pp. 53-54).
42
suhakam
(2010) op. cit. (p. 55).
27 “suhakam: Human Rights Standards
Must be Maintained and Practiced during
Investigations and Interrogations by the
macc and All Other Enforcement Agencies”,
suhakam, 17 July 2009.
43 “suhakam Regrets the Suspension of
Publishing Permits of Suara Keadilan and
Harakah”, suhakam, 26 March 2009.
28
44 “Freedom of Speech, Expression and
Opinion – The Fundamental Human Rights”,
suhakam, 4 May 2009.
suhakam
(2010) op. cit. (p. 32).
29 Ibid.
45
suhakam
(2010) op. cit. (pp. 35-36).
30 Ibid.
31 Ibid.
46 Section 4(1)(c) Human Rights Commission of
Malaysia Act 1999 (Act 597).
47 See “42 Malaysian NGOs Boycott suhakam’s
Human Rights Day Event, Announce
184
7/15/10 11:57 AM
Conditional Engagement with Specific
Timeframe for Substantial Reforms”, Joint
ngo Statement In Conjunction with suhakam’s
10th Anniversary, 8 September 2009.
48
suhakam
(2009a) op. cit. (p. 55).
49 Ibid. (p. 31).
50 Ibid. (p. 73).
51 Report of the Roundtable Discussion on
Economic, Social and Cultural, Civil and
Political Rights with ngos, 11 March 2009 (p.
2).
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7/15/10 11:57 AM
7/15/10 11:57 AM
chapter 9:
FREE AND FAIR
ELECTIONS*
7/15/10 11:57 AM
In
2009, three issues loomed large
with regards to election and
democracy in Malaysia, which
had been dominated by the Alliance/Barisan
Nasional coalition since Independence until
the 2008 General Election. The “political
tsunami” of the 12th general elections
marked a significant milestone in Malaysia’s
democratisation as the ruling coalition,
National Front (Barisan Nasional, bn)1 which
is largely dominated by the United Malays
National Organisation (umno) lost its
parliamentary two-thirds majority and the
control of five out of 13 states for the first
time since the first national elections in 1955.
Encouraged by the prospect of winning federal
power, the three main opposition parties – the
Malay-dominated centrist People’s Justice
Party (Parti Keadilan Rakyat, pkr) led by former
Deputy Prime Minister Anwar Ibrahim, the
Chinese-dominated secular party Democratic
Action Party (dap) and the theocratic PanMalaysia Islamic Party (Parti Islam Se-Malaysia,
pas) – came together before the 2008 elections
to form Pakatan Rakyat or the People’s
Alliance coalition.
While making democratic transition a
realistic possibility, the 2008 elections failed
to prepare the political elites and masses for
democratic consolidation – defined by Linz
and Stepan as a state that all political actors
that would accept “democracy as the only
game in town”.2 The three issues discussed
below illustrate exactly the consequences
of democracy’s failure to establish an
unchallenged legitimacy.
The first was the overthrow of a
democratically elected government by
inducing lawmakers to defect – which may
be described as “takeover by crossover” –
backed by a host of unelected institutions.
When three lawmakers from Perak’s Pakatan
Rakyat state government declared themselves
“independents” and turned to support bn,
the embattled Menteri Besar (Chief Minister)
188
sought to dissolve the state legislature and
hold fresh elections but was instead sacked
by the Sultan. A new bn state government
was soon installed by the state monarch and
backed by the police, the state bureaucracy,
the judiciary, and the Election Commission.
Another unelected institution, the Malaysian
Anti-Corruption Commission (macc) was
instrumental in triggering investigations on
two of the three defectors.
The second issue was the various forms
of electoral manipulations that marred the
eight by-elections that took place because the
incumbents either passed away or resigned.
Phantom voters, postal voting, vote-buying,
restricted campaigning and media control
continued as before 2008.
The third issue concerned the continued
denial of Malaysians’ right to elect their local
councilors. Local elections were suspended in
1965 and local councilors have been appointed
by their respective state governments since
1976. In recent years, thanks to the advocacy
by both civil society and opposition parties,
the cause of local elections has gained
saliency3 before the 2008 elections that
all the three main opposition parties had
committed themselves to the cause either
through their own manifesto and/or an ngodrafted platform, the People’s Declaration.4
While local government including local
elections is listed within the “state list” in
the constitutional arrangement of federalstate division, the five Pakatan Rakyat state
governments cold-shouldered the call for
local elections or mock elections to select the
appointees for local councils. One argument
articulated was that this might bring back the
bn into power at local level and challenge the
Pakatan Rakyat-run state governments. It
showed reluctance of the opposition parties
to accept full multi-party competition and
intergovernmental check-and-balance, citing
the lack of similar commitment by bn.
*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 the activities
of the Malaysian for Free and Fair Elections (mafrel).
7/15/10 11:57 AM
Changing Government through NonElectoral Means
While there has never been a military coup
d’état in Malaysia, several opposition state
governments have collapsed before through
non-electoral means manoeuvred by the
Alliance/bn. The three common means used
were: crossover of lawmakers, palace coup
and federal-imposed emergency rule.5
The outcome of the 2008 General
Election posed a new scenario. For the first
time, regime change through non-electoral
means was an option for the Opposition. At
the federal level, Pakatan Rakyat controlled 82
seats vis-a-vis the bn’s 140 seats, hence needing
only 30 seats to form a simple majority. Even
in term of popular votes, bn obtained only
49.65% in the Peninsula and 51.39% even
after the East Malaysian electorate were
added. As the electoral process was neither
free nor fair6, many opposition leaders and
supporters believed that Pakatan Rakyat
should be the rightful party to run the country
and changing the government through crossover of bn lawmakers was justified and
acceptable. This led to Anwar Ibrahim’s now
infamous claim that he would take over the
federal government on 16 September 20087
with the cross-over of 30 bn lawmakers –
mostly expected from Sabah and Sarawak.
While the failed 16 September 2008
crossover had hurt his credibility, Anwar
continued to legitimise defection of
lawmakers. In fact, Anwar – while he was
the Deputy Prime Minister – was widely
believed to be responsible for the collapse of
the opposition Parti Bersatu Sabah (pbs) state
government in 1994 within a month after
the elections thanks to en masse defection of
lawmakers to bn.8 This position was different
from pas’ and dap’s, which had suffered from
“party hopping” by their representatives in
the past and were officially opposed to it.
Perak presented fertile ground for the
“takeover by crossover” game as the Pakatan
Rakyat government held only a 3-seat majority
in the 59-seat legislature. The dap controlled
19 out of the coalition’s 31 seats, but the
Menteri Besar (Chief Minister) Mohammad
Nizar Jamaluddin was from pas, the smallest
partner with six seats. The third partner pkr
had seven seats. On the other side of the aisle,
all but one – mca’s Mah Hang Soon – of the
bn state legislators were from umno. There
was no third party or independent. Such
distribution of seats across the five parties
posed a serious challenge for the Pakatan
Rakyat state government. While the coalition
won 52.46% of the votes, its support came
mostly from the ethnic non-Malays. Thanks
to the first-past-the-post (fptp) electoral
system, while pas and pkr together won more
votes (30.12%) than dap did (22.34%), the
lion’s share of seats (30.51%) went to dap
while the two Malay-based parties got only
22.03%. This gave dap the dominant power
within the state cabinet, where they held
six out of the 11 cabinet seats (the Menteri
Besar position included). In fact, dap wanted
the chief ministership but this was prohibited
by the state constitution which requires the
chief executive to be a Muslim, unless this is
exempted by the Sultan. The appointment
of Nizar was a compromise between the
parties in Pakatan Rakyat because he – an
engineer by training – was the most qualified
candidate among Pakatan Rakyat’s Muslim
state legislators. pas and the dap – whose
constituencies do not overlap and hence are
not direct competitors to each other – turned
out to be good allies but the bn alleged that
Nizar was the puppet of dap, paving way for
the coup that happened within a year from
the 2008 election.
The situation was in some way similar
to Fiji in 1987, where the ethnic Indiandominant opposition party defeated the
ruling party which claimed to represent the
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7/15/10 11:57 AM
native populations. Even though the new
cabinet was led by a native Fijian Prime
Minister, its members were majority IndoFijian. Not long after the elections, a native
Fijian businessman with a group of gunmen
staged a coup, triggering three more coups
in the country in 19 years, the latest being
2006.9 The difference between the situations
in Perak and Fiji is that Perak is a sub-national
unit; hence a regime-change through nonelectoral means requires no intervention of
the military.
The defection game in Perak began
with umno’s state assemblyperson for Bota,
Nasarudin Hashim announcing on 25 January
2009 that he had quit his party and crossed
over to the pkr.10 Anwar Ibrahim and Nizar
also hinted at more defections, creating the
impression that the umno/bn was vulnerable
to defection. However, on 27 January 2009,
Nasarudin went into “hiding”.
By 30 January 2009, two pkr state
ministers (executive councillors or excos)
Jamaluddin Mat Radzi and Mohd Osman
Jailu, who had been charged for corruption,11
also went missing.
On 1 February 2009, Perak State
Assembly Speaker V. Sivakumar of the dap
released undated resignation letters signed by
the duo, who immediately claimed that the
letters were signed involuntarily before the
2008 elections and denied they had resigned.
The very next day, the speaker submitted
the resignation letters to the Election
Commission (ec) to seek the declaration
of seat vacancies and subsequent byelections. However, on 3 February 2009,
the ec ruled that both their seats (Changkat
Jering and Behrang) were not vacant. The
duo immediately declared themselves as
independent state representatives.12
Then on 4 February 2009, V. Sivakumar’s
Deputy Hee Yit Foong, also from dap, declared
herself as an independent. Nizar sought an
audience with Sultan Azlan Shah of Perak for
his royal consent to dissolve the assembly and
hold fresh state elections but the sultan did
not give him a positive answer. Meanwhile,
Najib, who took over the position of umno
state chief after Nasarudin’s defection, also
had an audience with the Sultan, together
with Osman, Jamaluddin, and Hee, to seek
the royal consent to form the new state
government. Najib proudly announced in a
press conference, which was also attended by
Nasarudin (who declared his return to umno
on the grounds that he wanted “stability in
Perak”), Osman, Jamaluddin and Hee, that
the Perak Pakatan Rakyat state government
has collapsed.
On 5 February 2009, Sultan Azlan
Shah rejected Nizar’s request for assembly
dissolution and instead asked Nizar and his
cabinet to resign. Citing his discretionary
power under Article XVIII (2)(b) of the
Perak State Constitution, the state monarch
claimed that Nizar no longer commanded
the support of the majority in the assembly.
Others however claimed that the sultan was
obliged to act on the advice of the Menteri
Besar to call fresh elections, citing Article
16(6) of the Perak State Constitution.13 Later
in the evening, the defiant Nizar was officially
sacked by the sultan.
On 6 February 2009, Zambry Abdul
Kadir of umno was sworn in as the new
Menteri Besar while Nizar steadfastly
defended his democratic mandate. Perak now
had two Menteris Besar and two executive
councils (state cabinets).
From the democratic stand point, the
Perak crisis poses a paramount question: Who
should decide the formation of an elected
government, the electorate or some unelected
institution?
In
parliamentary
democracies,
governments – the executive – are technically
formed after elections, not directly elected in
elections. This is clear when no party wins an
absolute majority and a hung parliament/
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7/15/10 11:57 AM
assembly emerges. Since lawmakers – as
the representatives of the voters – decide
who amongst themselves should enjoy their
confidence to form the government, their
right to sack the government by withdrawing
their confidence is unquestionable.
However, this right is not absolute.
Firstly, the exercise of such right must take
the form of a no-confidence vote or a defeat
of an important bill or budget (supply bill) in
the House because debates must take place to
allow deliberation. Lawmakers are expected
to entertain different opinions and be open
to be convinced by them, even though this
expectation is much compromised in practice
by party discipline. Sacking a government
therefore cannot be allowed to happen in
private meeting – when opposing opinion is
not heard and the proceeding is not subject
to public scrutiny. A monarch’s meeting with
individual lawmakers to seek their views is
exactly a form of private meeting and antipublic in its nature. It means the subjugation
of the legislature and infringing the bounds of
our constitutional monarchy.
Secondly, even if the government is
indeed dismissed, it has the right to ask for a
new mandate by calling for a re-election. A
head of government can therefore be sacked
by the head of state only if s/he:
(a) has lost the confidence of the House; and
(b) has refused to resign and failed to advise
a dissolution.
This was the principle established in
1966 when the Borneo High Court reinstated
the Sarawak Chief Minister Stephen Kalong
Ningkan. Ningkan was sacked by the state
governor after Ningkan refused to resign over
a top-secret letter of no-confidence issued by
21 out of 42 legislators shown to him by the
governor.14
In Perak, the Pakatan Rakyat elected
government was sacked when both conditions
were not fulfilled. This means, first, the power
of the legislature to pass a no-confidence vote
was removed; and, second, the power of the
electorate to update their preference was
denied. Both these powers were effectively
usurped by the Sultan, who is merely a figure
head in our constitutional democracy.
The head of state’s refusal to let the
electorate decide only expands the battle for
the executive seat in the legislative and judicial
branches of the government, naturally
resulting in political instability.
The Pakatan Rakyat government filed
several suits in relation to the coup but did not
succeed in any of these. The most important
suit was challenging the status of Zambry
as the legitimate Menteri Besar. On 11 May
2009, Kuala Lumpur High Court Justice
Abdul Aziz Abd Rahim ruled in favour of
Nizar, affirming that “... any vote of no-confidence
should be on the floor of the state legislative assembly”
and “[o]nly under these circumstances can the Menteri
Besar be forced to resign”.15 The Court of Appeal
however immediately granted a stay of
execution on the High Court’s decision on the
very next day.16 Nizar did not get reinstated
for a minute.
The appellate court soon overturned
the High Court’s decision on 22 May 2009.
Justice Md Raus Shariff, who sat with
Justices Zainun Ali and Ahmad Maarop,
unanimously ruled Sultan Azlan Shah was
“right in making enquiries to satisfy himself on who
held majority in the state assembly, and was right in
his appointment of Zambry”. The court further
ruled that the Perak State Constitution has
no expressed requirement for a motion of
no-confidence to be passed to determine if
Nizar had ceased to command the confidence
of the assemblymen.17 This decision would
be upheld by the Federal Court in February
2010.18
As both sides were waiting for the
Judiciary’s verdict, another battle raged in
the legislature. While the bn had managed to
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7/15/10 11:57 AM
swear in Zambry as the new Chief Minister,
there was the possibility that he could be
dismissed through a vote of no confidence
if the speaker could disqualify or suspend
enough bn legislators to deprive the bn its
newly won three-seat majority. The legislative
battle boiled down to two matters: first,
whether or not the speaker and the legislature
had full powers over the affairs in the assembly;
second, by whom and how the legislative
sessions were to be convened. This eventually
led to the bn’s attempt to literally remove the
Pakatan Rakyat speaker and for months, there
existed two speakers alongside two Menteris
Besar and two executive councils.
By skillfully using his power to the fullest,
Speaker V. Sivakumar tried to stretch the
power of legislature in a country where the
legislative branch is often just the executive
branch’s rubber stamp, making him like
William Lenthall of our time.19 His efforts
were however defeated by a host of unelected
institutions. First, he tried to use the pre-signed
resignation letters of the defected lawmakers
to force by-elections when there is no anticrossover law in Perak.20 This was rejected
by the Election Commission and Sivakumar
eventually lost his case in the court.21 Next,
the legislature’s special privileges he led
suspended Zambry and his state cabinet
members as they had show “their contempt
of the state assembly” by declaring themselves
Menteri Besar and executive councillors. This
was again overruled by the judiciary.22
Besides the election commission and the
judiciary, the state bureaucracy and police
also stood in Sivakumar’s way as he tried to
assert the independence of the assembly.
On 3 March 2009, he and fellow lawmakers
were blocked by the police from entering
the premises of the State Legislature, which
was already locked under the order of the
State Secretary. This forced him to convene
the legislature under a nearby banyan
tree. Boycotted by the BN lawmakers, the
legislature attended by all 28 Pakatan Rakyat
legislators passed a motion to call for fresh
elections and also to confirm the suspension
of Zambry and six other executive councillors
appointed by him. This prompted the bn to
remove Sivakumar as the speaker and replace
him with an unelected person, Ganesan, from
the Malaysian Indian Congress (mic) on 7
May 2009. On that day, the police closed the
city of Ipoh to prevent protests and arrested
any individuals suspected to be protestors,
including joggers who happened to wear
black.23 Sivakumar took his forced removal to
the court but the court ruled in favour of the
bn just as in other related suits.24
The banyan tree under which a session of the Perak state assembly
was convened by 28 Pakatan Rakyat state assemblypersons after
they were blocked from entering the premises of the Perak
State Legislature on 3 March 2009. (Photograph courtesy of
Malaysiakini)
The implication of the Perak coup is
therefore colossal in two senses. First, the
legislative speaker has lost his/her authority
over the internal affairs of the House. This
happened despite an opposite ruling in
precedence. Second, the regime change in
Perak suggested that an elected government
could be removed by a host of unelected
institutions working in unison.
The real issue is not whether lawmakers
can crossover, but whether voters can decide
the elected government when lawmakers
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7/15/10 11:57 AM
defect. Without guarantee of fresh elections,
lawmakers are actually vulnerable, not to
arbitrary use of party discipline, but to
selective law enforcement and other punitive
measures. Before the election commission, the
palace, the state bureaucracy, the police and
the judiciary could play their role in installing
a new state government, the Malaysia
Anti-Corruption Commission (macc) was
clearly instrumental in making certain
lawmakers vulnerable to either defection or
disqualification, laying the ground for the fall
of the incumbent government. After Perak,
the macc investigated state lawmakers in
Penang, Kedah and Selangor, forcing one preemptive resignation in Penang which resulted
in the Penanti by-election. It is noteworthy
that the macc has not prosecuted anyone in
alleged inducement of crossover.
Electoral Manipulations in ByElections
Eight by-elections were held in a year – a
historical record – of which six were triggered
by deaths. By-elections have been traditionally
important in Malaysia as political barometers
since there is no mid-term election like local
elections or state elections that are held
separately from the federal one. (See Table
9.1 By-Elections in 2009)
On one hand, victory for the Pakatan
Rakyat would indicate that the mood for
change in 2008 had not subsided. On the
other, since six of the by-elections happened
after Najib Razak took over premiership on
3 April 2009, they were widely seen as litmus
tests or even referenda for the new Prime
Minister whose legitimacy has been tainted by
the murder of Mongolian national Altantuya
Shaariibuu and the Perak coup.
The stakes were high given the context
of the Perak “takeover by crossover”.
Interestingly, only one seat – the Kuala
Terengganu parliamentary seat – had
changed hands from the bn-umno to the
Pakatan Rakyat-pas. bn managed to keep
the state seats of Batang Ai (Sarawak) and
Bagan Pinang (Negeri Sembilan). Meanwhile,
amongst two Pakatan Rakyat parties, pas kept
the Bukit Gantang (Perak, parliamentary),
Manek Urai (Kelantan, state) and Permatang
Pasir (Penang, state) seats while pkr held on
to Bukit Serambau (Kedah) and Penanti
(Penang), both state seats.
As the bn lost one West Malaysian byelection after another until the last battle
in Bagan Pinang, by-elections became a
nightmare to the bn. Unprecedented in history,
the ruling coalition stayed out in the Penanti
by-election, caused by the resignation of the
pkr incumbent who was under investigation
by the Malaysia Anti-Corruption Commission
(macc) for corruption in his capacity as the
Penang Deputy Chief Minister.25
Following its losses in many of the previous
by-elections in 2009, the bn leadership began
to speak out about the perils of “unnecessary
by-elections”. The ec Chairperson Abdul
Aziz Mohd Yusof and his deputy Datuk Wan
Ahmad Wan Omar also echoed the bn leaders’
dismissal of “unnecessary by-elections”. This
led the dap Parliamentary leader Lim Kit
Siang to question if the ec suggested that
resignations by elected representatives, other
than those caused by death, disqualification
due to bankruptcy, unsound mind, criminal
conviction or acquisition of foreign citizenship,
should be barred by means such as “fines
amounting to RM200,000 or above”. Lim
further gave the Commission a dressing down
for failing as a “moral guardian” of elected
representatives in the case of defections in
Perak.26
Later in August 2009, the ec helped the
bn prevent another by-election. bn-umno Kota
Siputeh state assemblyperson Abu Hassan
Sharif was found absent for two consecutive
state assembly meetings, rendering the seat
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7/15/10 11:57 AM
vacant according to Article 51 of Kedah State
Constitution. The ec however ruled that his
seat was not vacant because the two assembly
meetings fell into different terms and were
therefore not consecutive in the same term.
The ec also claimed that Abu Hassan had
provided a medical chit to justify his absence
on health ground. The ec Chairman Abdul
Aziz Mohd Yusof said Hassan Sharif ’s failure
to submit the medial chit to the state assembly
speaker did not nullify the document.27
While the Federal Constitution requires
the ec to enjoy the public’s confidence in
carrying out its work, its statements and acts
often only strengthened the criticism that it
was “the bn’s 14th component party”. The
Officials of the Election Commission finalising the vote-counting
process with observers looking on during the Kuala Terengganu
by-election. (Photograph courtesy of Malaysiakini)
A crowd marching to the nomination centre together with the
candidate of Barisan Nasional on the nomination day of the Kuala
Terengganu by-election on 6 January 2009. (Photograph courtesy
of Malaysiakini)
Leaders of pas speaking at a press conference after the party’s
candidate was announced the winner of the Kuala Terengganu
by-election on 17 January 2009. (Photograph courtesy of
Malaysiakini)
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7/15/10 11:57 AM
A voter casting his vote during the polling day of the Manek Urai
by-election on 14 July 2009. (Photograph courtesy of Malaysiakini)
eight by-elections were further marred by five
types of electoral manipulations: (a) phantom
voters, (b) postal voting, (c) vote buying, (d)
selective restriction on campaign activities,
and (e) media control.
Phantom Voters
A great threat to the integrity of elections
in Malaysia is the existence of so-called
“phantom voters”. Coined originally to
describe those votes on behalf of deceased
voters whose names are not removed from
the electoral rolls, the term was gradually
extended to voters who are registered
suspiciously en masse in a key constituency
and who turn out to vote and tip off the
balance. Phantom voters dilute the voting
power of the genuine local voters by either
turning a marginal constituency in a certain
direction or producing an unchallengeable
constituency. This “phantom” problem can
be largely resolved by automatic registration
whereby electoral database will be constantly
updated and synchronised to the national
registration database. The ec claimed new
registrations since 2002 are synchronised. It
uses a weak argument that people should
not be forced to vote to object to automatic
registration, which only makes voting easier
and does not prohibit abstinence. The ec also
refuses to use indelible ink to prevent multiple
voting – which will make the recyclying of
phantom voters impossible and increase the
cost of electoral frauds.
In the Bukit Serambau by-election, pkr
Youth elections director Fariz Musa claimed
that as many as 62.5% of voters registered
in Taman Bandar Baru were “doubtful” or
possibly “phantoms”. At one address, No 2,
the party found only two registered voters but
the electoral roll showed more than 40 names.
Another address, No 40, was uninhabited,
and yet the electoral roll listed 49 voters
registered there. Based on the pkr’s analysis,
Taman Bandar Baru and the surrounding
areas, including Taman Peruda, Air Menideh,
and Bandar Laguna Merbok, could have as
many as 3,029 phantom voters.
Kedah EC director Zainal Abidin
Zakaria denied the allegation by claiming that
“sometimes voters register at a particular address but
then they move to a different area and do not inform the
ec of this change”, making the number of voters
registered under one particular address look
unreasonably high. Fariz claimed that the ec
was misinformed.28
Interestingly, phantom voters were
detected by not only the opposition parties,
but by umno as well. In the Permatang Pasir
by-election, umno information chief Ahmad
Maslan claimed that bn had detected 3,696
phantom voters, who could not be traced
from the addresses in the electoral roll. In
one house which was supposed to have 14
registered voters, only seven was found. The
house owners said they did not know the other
seven names. He claimed to have detected
961 phantom voters in Sama Gagah, 95 in
Permatang Ara, 284 in Permatang Pauh,
142 in Bukit Indera Muda, 216 in Kampung
Pelet, 329 in Kubang Semang, 74 in Tanah
Liat Mukim 8, 1,181 in Kampung Cross
Street 2 and 414 in Permatang Tengah. The
ec has similarly refuted the claim.29
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7/15/10 11:57 AM
Postal Voting
Another major threat to the free and fair
elections in Malaysia is postal voting.
Malaysian voters are listed in two separate
lists: ordinary voters and postal voters. While
ordinary voters may apply to vote with postal
ballots if they are on duty on the polling
day, all postal voters can only vote through
postal voters. For overseas Malaysians, only
students and civil servants and their spouses
are allowed to register on the postal voter list.
Domestically, military and police personnel
and their spouses are however mandatory to
register as postal voters and cast their votes in
military barracks or police stations.
The first problem with postal voting
concerning security forces is free will. As
ballots will be given a few days in advance,
they may be cast under influence of the voters’
superiors or in fear of repercussion as secrecy
cannot be guaranteed. A main concern is that
party representatives cannot possibly monitor
the polling process.
The second problem is the distribution
of postal voters. Seen as the bn’s solid
supporters – whether voluntary or not is
another question – they became the wild card
in constituency re-delineation to maximise
the ruling coalition’s advantage. In certain
constituencies, the opposition simply has little
chance to win thanks to the heavy percentage
of postal votes. This was very obvious in
the Bagan Pinang by-election in which 38%
of the valid votes were postal ballots, which
went disproportionally to the BN candidate
and former Menteri Besar Mohammad Isa
Samad. As many as 3,521 or about 43%
of his 8,013 votes were postal ballots. In
sharp contrast, PAS candidate pas Zulkefly
Mohamad Omar only won 601 postal votes,
or 23% of his 2,578 votes.30
The third problem is possible multiple
registration. When military and police
personnel retire, they should be transferred
from the postal voter list to that of ordinary
voters. In practice, many security force
voters do not deregister themselves as postal
voters even though they may re-register as
ordinary voters. This opens the door to either
“phantoms” or multiple voting. In Bagan
Pinang, pas which contested the constituency
claimed that only 1,200 servicemen out of
4,064 postal voters were security personnel
in active service while the rest were actually
retired.31
In April, the government’s plan to set
up the Territorial Army in all parliamentary
constituencies had triggered fear amongst the
opposition parties that this was a deliberate
move to increase postal voters. Deputy
Defence Minister Abdul Latif Ahmad
however denied such allegation, saying that
the members of the Territorial Army are
civilians and would vote as ordinary voters.32
Vote Buying
Democracy cannot be a trade of votes for
notes. Unfortunately, vote buying which may
take either the form of collective inducement
or that of individual benefits are rampant
in Malaysia. The eight by-elections saw
extreme attempts by the bn Federal and state
governments to win the voters over with offers
of development that the by-elections were
dubbed “buy-elections”. The Pakatan Rakyat
state governments too tried to match the game
but at a smaller scale and the hand-outs were
often not explicitly associated with elections.
The main issue here is that Malaysia has no
law governing administrative neutrality of the
state, whether during general elections (as a
caretaker government) or by-elections.
Take the Kuala Terengganu by-election
as an example. During the campaign, the
Terengganu State Government announced a
RM1 million fund for bus companies to buy
new vehicles to improve public transportation.
Half the amount would be given in the form of
grants and the other half as capital. Menteri
Besar Ahmad Said also announced the gift
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of four additional buses to the Cas Ligas Sdn
Bhd bus company on top of its existing two to
operate for free in the town and neighbouring
area including the Sultan Mahmud Airport.33
State employees are common targets
for vote buying. In Kuala Terengganu, A
monthly allowance of RM650 was given to
2,500 imams and bilals from 483 mosques
throughout Terengganu who attended a
seminar on forming the Yayasan Masjid
Malaysia.34 In Bagan Pinang, pas Youth
chief Nasrudin Hassan accused Defence
Minister Ahmad Zahid Hamidi and Negri
Sembilan Menteri Besar Mohamad Hassan
of “[abusing] their positions” by campaigning
in Kem Institut Kejuruteraan Tentera Darat
(ijed) in Port Dickson and offering a swimming
pool and futsal court in exchange for electoral
support.35
Vote buying works well in less-developed
area. In the Batang Ai by-election which was
contested by Parti Rakyat Sarawak (prs) on
behalf of the BN, the party president cum
Sarawak Minister for Land Development
James Masing announced the state
government’s plan to spend RM12 million
to tar-seal the link road at the Batang Ai
Resettlement Scheme. Additionally, the bn had
also promised to develop telecommunication
infrastructure at Lubok Antu costing around
RM40 million. Another sum of RM400,000
was pledged to subsidise fuel for all those riverplying motor boats in Batang Ai. All these
were despite the assurance made earlier by
the then Deputy Prime Minister Najib Rajak
that bn would not dispense “instant noodles”
projects there.
The link between development and byelection has become accepted practice despite
the blatant vote buying involved. Sudden
infusion of money into a constituency because
of a by-election suggests that constituency has
been marginalised all along or that resources
have been channelled at the expense of
some other more deserving constituencies. A
Sarawak blogger, Joseph Tawie, made an apt
remark on the ironical benefits brought by byelection:
“Look at Kapit (James Masing’s own
constituency). It has waited 45 years for a
trunk road to be constructed linking it to other
towns in the state. Until today there is only
talk. How the people of Kapit wish that a YB
[elected representative]36 would die in office so
that the construction of the road can materialise.
Cruel though it may seem, but that is the truth.
Projects are waiting for elections. No elections,
no projects.” 37
Often, voters are not targeted only as a
group but as individuals as well. In the Manek
Urai by-election, voters returning from
elsewhere to the inland Kelantan constituency
were allegedly given “transport allowance”
by a group of unidentified individuals. The
allowance of RM300 was given out to people
who queued up outside a wooden house
near the premise of a federal agency, South
Kelantan Development Authority (Kesedar),
which was just some 50 metres from the SK
Peria polling centre. While no party symbol
was seen, a white car bearing the Kesedar
emblem was parked in front of the house.
To receive cash, the recipients would have
to submit their MyKad (national identity
card) to ‘officials’ who would call out their
names from a list. The house owner was
an elder man who organised a ceramah with
umno Youth just a week ago. He told off
the Malaysians for Free and Fair Elections
(mafrel) activists and police personnel who
went to investigate, that such transportation
allowance was not different from those given
by pas and the election watchdog and police
did not take action against the latter. Those
waiting to receive their allowance were then
told to disperse.38
197
7/15/10 11:57 AM
The law is in fact strict not only about
outright bribery, but even giving treats before,
during or after elections with the intention
to pull support. In the Kuala Terengganu
by-election, it was questioned whether the
multi-course 80-table dinner at the Chung
Hwa Wei Sin Primary School hosted by the
bn component party Gerakan to win support
from amongst the Chinese community
for umno could have violated the Election
Offences Act 1954. ec deputy chairperson
Wan Ahmad Wan Omar said the Act refers
to only the conduct of a candidate standing
for election and to the candidate’s agent and
it was “not fair to blame the candidate for something
that is sometimes beyond his influence or control”.39
Selective restriction on campaign
activities
Election is not just about casting ballots,
but making an informed decision, which
requires vigorous campaign. Unfortunately
in Malaysia, election campaigns are
severely regulated in many ways, inevitably
disadvantaging the opposition parties. Take
the campaign period for example. Most of
the by-elections were held eight or nine days
after the nomination. While on the surface
such restrictions constrain all parties, the
BN is rarely affected as they control state
machinery and can campaign throughout the
year especially with the help of the tightlycontrolled print and broadcasting media.
Despite having such incumbent
advantage, the BN would still use the ec and
the police to restrict the opposition campaign
selectively, sometime using unjustifiably large
physical force. In the Bukit Serambau byelection, a Pakatan Rakyat ceramah (public
political speech) held in an open field in front
of a shop-house was dispersed by Federal
Reserve Unit (fru) by force. The anti-riot
force fired tear gas and water cannons on
a few thousand members of the public
gathering there, just as Anwar Ibrahim started
his speech. He and other opposition leaders
were stuck in the operation centre for nearly
an hour as police continued breaking up the
crowd outside. About 50 people were arrested
and brought to the Kuala Muda police
headquarters. They included pkr Senator
Zamri Yusuf from Kedah, Anwar’s chief of
staff Ibrahim Yaacob and aides to Kedah
Menteri Besar Azizan Abdul Razak and the
Pakatan Rakyat candidate S Manikumar.40
During the Kuala Terengganu byelection, over the 6,000 police personnel
including from the special branch were
deployed in state. pas claimed that, whether
or not deliberately done, some of the police
actions were provocative and the heavy police
presence was intimidating and not welcomed
by some locals.41
Sometimes, restrictions are specifically
aimed to protect particular leaders. In both
the Bukit Gantang and Bukit Selambau byelections, the name of Altantuya Shaariibuu,
the Mongolian model cum interpreter whose
murder was linked to Najib Razak was barred
in the campaign by the police. That was an
obvious move to protect the reputation of the
prime-minister-in-waiting who would succeed
the executive seat before the by-elections
ended. The ban of the name was a condition
imposed by the police on ceramah permits. The
Perak Sultan’s decision and other “sensitive
issues” related to ethnicity and faith were also
prohibited. pkr was also required to confine
the crowd of its ceramah to the event premise.
Perak pkr deputy chief Chang Lih Kang said
his party would defy these restrictions and
face the music. In comparison, pas was only
told to stop their ceramah by 11pm, without
other restrictions.42
In another twist, the ec tried to restrict
campaigning by allowing only the “contesting
parties” to hold ceramah, in an obvious move
to disadvantage the Pakatan Rakyat as the
opposition coalition was yet to be registered.
In contrast, all the bn component parties
198
7/15/10 11:57 AM
could campaign because the bn was the
contesting party. The Perak ec director
Ahmad Adli Abdullah said, speakers from
other parties could still be listed in the ceramah
speaker list. He denied allegations that some
parties were discriminated against in applying
police permit for ceramah but insisted that the
ec regulations only allowed the contesting
parties to do so.43
In April 2009, the ec announced its ban
on pondok panas (voters’ reference booths) on
polling day. This contradicted its own earlier
instruction to the parties, dated 20 March
2004, which allowed “candidates/agents”
to erect “party offices” 50m from polling
stations, in accordance with Section 24B(2)
of the Election Offences Act (eoa) 1954. The
same instruction prohibited only prohibited
erecting new “party offices” on polling
day, in line with Section 26(1)(c) of the eoa,
which stipulates that no one may “solicit or
persuade” voters “to vote or to abstain from
voting” for a candidate, “within a distance
of fifty metres from the limits of any polling
station”.44
Media control
Malaysian mainstream media was notoriously
one-sided, thanks to both legal restrictions
on media content – which facilitates political
interference in newsroom and encouraged
self-censorship – and media ownership –
which resulted in most major newspapers in
all languages and all private TV channels
being controlled either directly by a BN
component party or politician, or indirectly
some BN-friendly business interests. During
by-elections, right of reply was rarely offered
to opposition leaders who had been negatively
framed in news report.
In the Permatang Pasir by-election, PAS
spiritual leader and Kelantan Menteri Besar
Nik Aziz Nik Mat accused broadcast media
TV3 and two Malay dailies – Berita Harian and
Utusan Malaysia – of distorting his words on
and Islam. The three umno-controlled
media reported Nik Aziz saying that umno
members would not be admitted to heaven
because the party practices false Islamic
teachings from Palestine. pas’ legal adviser
Mohamad Hanifa Maidin said Nik Aziz had
never made such statements and demanded
retraction and apology within seven days.
This “heaven and hell” row happened when
the disbarment and other negative news
of umno candidate Rohaizat Othman had
overshadowed the campaign.45
Earlier in the Kuala Terengganu byelection, two reporters from the Chineselanguage online news portal Merdeka Review
Chan Wei See and Chen Shaua Fui lodged
a police report upon receiving RM300 in the
media centre run by the Information Ministry
on the eve of polling day. All journalists there
were asked by a government official to list their
names, organisations and telephone numbers
before being given an envelope containing
six RM50 notes. Some of the journalists
reportedly have returned the money to the
official. The ministry has denied making any
payments to the journalists. Media watchdog
Centre for Independent Journalism pointed
out that the Minister had only boasted in
October 2008 that there was no envelope
journalism in Malaysia where journalists and
editors were paid to highlight certain stories.46
No investigation was carried out on the police
report made by the two reporters.
umno
The Push for Local Elections
Ironically, local elections were introduced
by the British in 1951 as a preparation for
decolonisation but were suspended by the
national government in 1965 in the pretext
of national security amidst the MalaysiaIndonesia
Confrontation.
Malaysians
therefore had their last local elections
in 1963, some 46 years ago. While the
199
7/15/10 11:57 AM
Confrontation ended in the 1965 itself, the
Federal Government refused to honour its
promise to restore local elections. It even
conveniently ignored the recommendation
to do so, posed by a government-appointed
Royal Commission of Inquiry led by Senator
Athi Nahappan. In 1976, the bn federal
government passed the Local Government
Act (lga), permanently making all local
councillors political appointees by the state.
While the law requires the appointees to
meet certain professional or representative
criteria, in practice, appointment are made
based on loyalty to and connection in party.
Local councils are effectively training grounds
for the state ruling parties to groom its junior
leaders.
The built-in incentive for any state
government explains why the revival of local
elections has been conveniently ignored by
the opposition-run state governments like
Kelantan (1990-present), Terengganu (19992004) and Sabah (1990-1994). While most
opposition parties have been calling for local
elections, they prefer to frame it as a matter
controlled by the federal government, citing
the repeal of local elections underlined by the
Local Government Act 1976. In that sense,
the opposition parties agreed with the bn. The
implication is simple: local elections cannot be
reintroduced until a new federal government
is elected in, the pro-democracy voters should
therefore be patient with the opposition state
governments on this matter.
There are two more objections to
restoring local elections. One is that this would
result in ethnic imbalance in the local council
composition. The logic of this argument is
that since the ethnic non-Malays constitute
the majority in urban centres, they would
likely vote in their co-ethnics and the ethnic
Malays may be under- or un-represented
in the councils. This argument has several
flaws. First, there is no democratic ground
to prevent geographically concentrated
minorities from dominating their own local
governments. In other words, if Ipoh is
70% non-Malay Malaysians, what is wrong
if the city council consisted of 70% or so
non-Malay Malaysians? Secondly, effective
representation of local minorities – say the
ethnic Malay Malaysians in Ipoh – can be
facilitated through electoral system design.
Thirdly, the demography in Malaysian urban
centres has changed so much that the nonMalays no longer constitute a majority.47
The second objection comes from the
stand point of administration. Malaysia’s
federalism is so centralised that state
governments have little role to play should
the local governments be elected and become
independent. Liew Chin Tong, dap Member
of Parliament for Bukit Bendera, pointed
out that the state government of Penang,
for example, has a smaller budget than the
budgets of its two municipalities combined.
This objection is legitimate in the sense that
reintroduction of local elections may require
a re-negotiation of federal-state division of
power as a package deal. What is problematic
is that a comprehensive decentralisation has
not been placed on Pakatan Rakyat’s agenda.
The demand for local elections is frequently
dismissed on the legal ground mentioned
above.
The increasing public pressure has
nevertheless led to the two most urbanised
Pakatan Rakyat-ruled states, Selangor and
Penang, to commission study on the possibility
of local elections.
In Penang, the Local Government
Elections Working Group led by academic Dr
Goh Ban Lee, while agreeing with the need to
reintroduce local elections, took the position
that “the state cannot hold local government elections
without changing the law in the Parliament”.48
In Selangor, the Coalition for Good
Governance (cgg) which was commissioned
for the study, took an opposing position on
the matter. The report prepared by lawyer
200
7/15/10 11:57 AM
Andrew Khoo, political scientist Wong Chin
Huat (the author) and human rights activist
Maria Chin49 proposed three approaches to
restore local elections in the state. The first
approach, similar to the Penang’s position,
requires changes of the Federal laws. The
report proposes the State Government to
lobby for it both in Parliament and the
National Council for Local Government.
This federal legislative approach is however
necessary only if Pakatan Rakyat wants to
push for local polls nationwide. If the Pakatan
Rakyat state government want only for a statewide election, it may take the state legislative
and the state administrative approaches.
Under the state legislative approach, the
state government can opt out from Section
15(1) of the Local Government Act 1976
which has repealed local elections, a right the
state government enjoys under Section 1(4) of
the same act. It then can employ the existing
the Local Government Elections Act 1960
to conduct local elections. Constitutionally,
local government elections fall within Item 4
of the State List even though elections to the
Parliament and State Assemblies form part of
Item 6 in the Federal List. In addition, Article
113(4) of the Federal Constitution expressly
provides that “Federal or state law may authorize
the Election Commission to conduct elections other
than [the elections for both Houses of Parliament and
State Legislative Assemblies]”.
The state can also effectively elect local
councillors without changing the law. Under
the state administrative approach, the state
government can direct for mock elections to
be held to elect nominees to the local councils
and go on to appoint the elected nominees.
This is practically how the Pakatan Rakyat
state government in Perak introduced village
head elections. The worry for legal challenge
is a red herring as the mock elections will only
be an extra step taken by the state government
before appointing the local councillors.
The case was clear on the advocacy of
local elections. The real obstacle is not legal
but political. Appointed local governments
are good for any state governments, making
all of them reluctant to introduce local
elections with their constitutional power
but rather pushing the issues to the Federal
Government. That both bn and Pakatan
Rakyat were cold on local elections however
suggested a bigger issue. None of the coalitions
see themselves – at least not with urgency - as
being disadvantaged by the monopoly of local
authorities. In other words, the bn was not keen
to wrest back the local councils in the Pakatan
Rakyat-ruled states through local elections.
Neither was Pakatan Rakyat interested in
capturing local authorities in the bn-held
states before the national and state elections.
Both the coalitions were keener to prepare
for a showdown in the next general elections,
or worse, the post-election manoeuvre. Both
believing that they stand a good chance to win,
they embrace the “winner-takes-all” game
rather than democratising the institutions to
make it fairer for every player. In this sense,
the stagnation of local democratisation is
as much a symptom of the political elites’
dubious commitment to democracy as the
takeover-via-crossover fiasco and the electoral
manipulations in the by-elections.
In Penang, the working group report’s
position was used by the state government to
justify its passivity on the matter. In Selangor,
the state government did nothing after
studying the report. A state cabinet member
even gave the impression to the public that the
matter needs further study.50 While there was
no real achievement in 2009, the pressure was
to mount in March 2010 so much so that the
Penang state government would write to the
Election Commission to authorise the body to
conduct local elections while Selangor would
follow suit with an enquiry.
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7/15/10 11:57 AM
Conclusion
Free and fair elections are fundamental to
democracy. To have them would therefore
require the political elites to commit to
democracy. The 2008 General Election has
given Malaysians the hope of democratic
transition but it has also indicated the danger
of democratic stagnation. Both the electoral
manipulations and the unconstitutional
power grab in 2009 may likely happen in the
next General Election. The stake then can
only be larger as the electoral one-party state
allows only the winner to grow healthily while
the losers starve. The little progress on local
elections is in this sense not coincidental but
symptomatic of the political elites’ refusal
to negotiate a more open and level political
system.
The post-2008 euphoria and the noisy
but colourful events of by-elections in 2009
should therefore not blind Malaysians to
think that the country is moving towards a
smooth transition. The agenda for electoral
reform needs to be revised to negotiate for
a more stable political system by reducing
the differences between winning and losing.
Before this is in place, an international election
observation mission would be important for
next elections to remind all political actors
that the world is watching and will not be kind
to any parties who try to rig democracy.
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7/15/10 11:57 AM
State
Permatang
Pasir
Bagan Pinang
State
State
State
Manek Urai
Resignation
State
Death
Death
Death
Death
State
State
Resignation
Parliamentary
Kuala
Terengganu
Bukit
Gantang
Bukit
Selambau
Batang Ai
Penanti
Cause of
vacancy
Death
Death
Parliamentary/
State
Constituency
Table 9.1 By-Elections in 2009
13,664
20,290
12,293
15,384
8,006
35,140
55,562
80,229
7/4/2009
7/4/2009
7/4/2009
17/1/2009
Polling
Day
14/7/2009
3/102009 11/10/2009
17/8/2009 25/8/2009
6/7/2009
23/5/2009 31/5/2009
29/3/2009
29/3/2009
29/3/2009
6/1/2009
Electorate Nomination
Day
8
8
8
8
9
9
9
11
Campaign
period
2
2
2
4
2
15
1
3
Total
Candidates
8,013
75.66%
UMNO
5,067
34.50%
UMNO
5,283
49.69%
UMNO
3,907
65.55%
PRS
10,229
42.29%
MIC
19,071
46.52%
UMNO
30,252
47.77%
UMNO
BN
vote
share
2,578
24.34%
PAS
9,618
65.50%
PAS
5,348
50.31%
PAS
6,052
86.53%
PKR
2,053
34.45%
PKR
12,632
52.23%
PKR
21,860
53.33%
PAS
32,883
51.92%
PAS
1,326
5.48%
942
13.47%
62
0.15%
193
0.30%
223
83
90
107
59
415
456
639
10,814
79.14%
14,768
72.78%
10,721
87.21%
7,101
46.16%
6,019
75.18%
24,602
70.01%
41,449
74.60%
63,967
79.73%
Spoiled Turnout
Pakatan
Total
%
Rakyat Independent votes
vote
vote share
share
5,435
4,551
30.99%
65
0.61%
6,052
79.47%
1,854
31.11%
2,403
9.94%
2,789
6.80%
2,631
4.15%
Winning
Margin
203
7/15/10 11:57 AM
End Notes
1
Consisting of only three Peninsula-based
parties, the coalition was originally called the
Alliance Party, which had Alliance Sabah and
Alliance Sarawak in the East Malaysian states
as sister-parties. In 1974, the three Alliance
parties and a few co-opted opposition parties
formed the bn.
2
Linz, J. and A Stepan (1996) Problems of
Democratic Transition and Consolidation:
Southern Europe, South America, and PostCommunist Europe. Baltimore: John Hopkins
University Press. P 5.
3
4
5
6
7
The latest poll in June 2010 shows 71%
of Malaysians support local elections.
See “71% of Malaysians want local gov’t
polls”, Malaysiakini, 16 June 2010, http://
malaysiakini.com/news/134708 (assessed on
17 June 2010).
See The People’s Declaration, http://www.
unc.edu/~kurzman/elections/Malaysia/
The_Peoples_Declaration.pdf, (accessed on 17
June 2010).
5For a brief introduction on regime change
through non-electoral means in Malaysia,
see Wong Chin Huat, “Referendum on our
future”, The Nut Graph, 9 April 2009, http://
www.thenutgraph.com/referendum-on-ourfuture/, (accessed on 17 June 2010).
See the chapter on Free and Fair Elections in
suaram (2009) Malaysia Human Rights Report
suaram Kommunikasi (pp. 176-196).
Known as the Malaysia Day, this was the day
Malaysia was formed in 1963, when colonies
Singapore, Sabah and Sarawak joined with
Malaya (the Peninsula) which was already an
independent state since 1957 to form a new
state. Singapore was expelled two years later.
To the dismay of the East Malaysians, the
Peninsula-centric bn Federal Government had
interpreted the history as Sabah and Sarawak
joining Malaysia and celebrated Malaya’s
Independence Day at the national level.
Anwar Ibrahim’s choice of 16 September was
deliberate to signal more inclusive and equal
partnership between East and West Malaysia
to East Malaysian bn lawmakers whom he
wooed.
8
See Joe Fernandez, “Defending Anwar over
Frog Culture”, Malaysiakini, 9 February
2009, http://malaysiakini.com/news/97915
9
See Philippa Fogarty “Deep division in postcoup Fiji”, bbc, 4 December 2008, http://
news.bbc.co.uk/2/hi/asia-pacific/7746519.
stm (accessed on 17 June 2010).
10 See “How the Perak state government fell”,
The Star, 5 February 2009. http://thestar.
June 2010).
11 They were eventually acquitted in April 2010.
“Two ex-Perak pkr exco members aquitted
of graft charges (updated)”, The Star, 23 April
2010,
asp?file=/2010/4/23/nation/20100423123
12 “ec: No by-election (Update 3)”, The Star, 3
February 2009, http://thestar.com.my/news/
story.asp?file=/2009/2/3/nation/2009020
3130356&sec=nation (accessed on 18 June
2010).
13 For the detailed arguments concerning the
provision of the state constitution, please
see, for instance, N.H. Chan, “Sultan has no
powers to ask Nizar to quit”, Malaysiakini, 20
February 2009, http://www.malaysiakini.
com/news/98721 (accessed on 18 June 2010).
14 Ningkan sought to dissolve the assembly for the
electorate to decide. The Federal Government
which wanted to see him ousted at all cost
imposed an emergency rule instead to takeover
the state government. See Marcel Jude Jospeh,
204
7/15/10 11:57 AM
“The saga of Stephen Kalong Ningkan”,
The Borneo Post, 26 April 2006, http://www.
theborneopost.com/?p=26472 (accessed on
18 June 2010).
15 See “Court rules Nizar is legitimate mb”,
Malaysiakini, 11 May 2009, http://www.
18 June 2010).
16 See “Court of Appeal grants stay to Zambry”,
The Nut Graph, 12 May 2009, http://www.
thenutgraph.com/court-of-appeal-grantsstay-to-zambry/ (accessed on 18 June 2010).
17 See “Zambry declared Perak mb, Nizar to
appeal”, The Star, 22 May 2009, http://thestar.
com.my/news/story.asp?file=/2009/5/22/na
tion/20090522152654&sec=nation (accessed
on 18 June 2010).
24 See Chapter 7 Law and the Judiciary in this
publication.
25 His prosecution was widely read as the BN’s
trick to force a defection ala Perak. In 2010, he
eventually joined umno.
26 See Lim Kit Siang, “Election Commission
– explain strange/extraordinary behaviour,
reinforcing public suspicions about its
independence, professionalism and integrity”,
http://blog.limkitsiang.com/2009/04/23/
election-commission-explainstrangeextraordinary-behaviour-reinforcingpublic-suspicions-about-its-independenceprofessionalism-and-integrity/ (accessed on 20
June 2010).
27 Assemblyman – ec”, Bernama, 1 September
2009 http://bersih.org/?p=2592 (accessed on
20 June 2010).
18 See “Dr Zambry is valid Perak mb, Federal
Court rules”, The Star, 9 February 2010,
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.
asp?file=/2010/2/9/nation/2010020909131
28 See “ec: no phantom in Bkt Serambau”, The
Nut Graph, 1 April 2009, www.thenutgraph.
com/ec-no-phantoms-in-bkt-selambau
19 See Clive Kessler, “The Speaker: a short
history”, The Nut Graph, 12 March 2009,
http://www.thenutgraph.com/the-speaker-ashort-history (accessed on 20 June 2010).
29 See “ec dismisses Khairy’s phantom claims”,
Malaysiakini, 23 August 2009, http://www1.
20 June 2010).
20 Kelantan initiated an anti-hopping law in
1992 but was declared unconstitutional by the
Supreme Court.
30 See “pas Youth wants Suhakam to investigate
postal votes”, Bernama, 21 October 2009,
http://bersih.org/?p=2692 (accessed on 20
June 2010).
21 See Chapter 7 Law and the Judiciary in this
publication.
22 See Hafiz Yatim, “Zambry v Sivakumar:
Court revokes suspension” Malaysiakini, 16
April 2009, http://www.malaysiakini.com/
news/102475 (accessed on 28 June 2010).
23 This author was arrested earlier on May 5 for
initiating a “1BLACKMalaysia” campaign
parodying the Prime Minister Najib Razak’s
“1Malaysia” public relations campaign. The
police warned the public not to wear black.
31 See “pas wants retired servicemen removed
from postal voter list”, The Malaysia Insider,
2 October 2009, http://bersih.org/?p=2648
32 See “Territorial Army for every constituency
not to gain votes”, Bernama, 29 April 2009,
June 2010).
205
7/15/10 11:57 AM
33 See “Terengganu provides RM1m fund for
bus companies”, Bernama, 7 January 2009,
June 2010).
34 See Ibid.
35 See “Soldiers urged to drown pas for swimming
pool”, Malaysiakini, 8 October 2009, http://
www.malaysiakini.tv/video/17877/login
36 YB is the acronym of Yang Berhormat,
a salutation used in reference to elected
representatives
37 See Sim Kwang Yang, “Maggie Mee raining
in Batang Ai”, Malaysiakini, 21 March 2009,
38 See “‘Vote Buying’: ‘RM 300 transport
Allowance’”, Malaysiakini, 14 July 2009,
39 See “EC: Law does not forbid treating by
parties”, Malaysiakini, 12 January 2009 http://
on 20 June 2010).
40 See “Tear gas fired at Anwar ceramah”, The
Malaysian Insider, 23 March 2009 http://bersih.
org/?p=1920 (accessed on 20 June 2010).
41 See “pas still not convinced by EC ability”,
Bernama, 8 January 2009, http://bersih.
44 See “ecc Pondok Panas Ban ‘contradictory’”,
The Nut Graph, 28 April 2009, http://bersih.
45 See “Nik Aziz to sue TV3, Utusan, Berita
Harian”, Malaysiakini, 23 August 2009,
46 See Centre for Independent Journalism (cij),
“Police, EC and macc should investigate
bribery of journalists”, 20 January 2009,
June 2010).
47 See Wong Chin Huat, “PR’s spin on local
elections”, The Nut Graph, 23 December 2009,
http://www.thenutgraph.com/prs-spin-onlocal-elections/ (accessed on 21 June 2010).
48 The full report can be downloaded from
http://sedar.org.my/documents/event/
report-of-the-local-government-electionsworking-group/download.html
49 See “Modified Local Elections Wanted in
Selangor”, The Nut Grpah, 6 July 2009,
http://www.thenutgraph.com/modifiedlocal-elections-wanted-in-selangor/.
The
full report can be downloaded from http://
chinhuatw.files.wordpress.com/2009/12/lcepaper_final_23dec20092.pdf. Both accessed
on 21 June 2010.
50 See “Pilihanraya Kerajaan Tempatan: Ronnie
Liu diselar”, Merdeka Review, 13 November
2009, http://merdekareview.com/bm/news.
php?n=10441 (accessed on 13 November
2009).
42 See “You can’t mention.... that women, PKR
told”, The Malaysian Insider, 31 March 2009,
June 2010).
43 See “EC: only parties “contesting” can apply
for ceramah permit”, The Malaysian Insider,
1 April 2009, http://bersih.org/?p=1966
206
7/15/10 11:57 AM
VOICES OF
THE PEOPLE:
SELECTED
STORIES
7/15/10 11:57 AM
Development and Human
Rights in Sarawak
SACCESS1
“We must not fail the billions who look to the
international community to fulfill the promise of
the Millennium Declaration for a better world.
Let us meet in September to keep the promise.”2
D
evelopment continues
to be taken
to mean “progress” and member
states of the United Nations continue
to pledge their well-intentioned pursuit.
They are all done in the name of the poor,
of course. The United Nations Millennium
Development Goals set the world in motion
and Malaysia is right in it.
In Malaysia, statistics by the only
national government since Malaya in 1957
and Malaysia in 1963 can testify to the
impressive “progress” made in reducing
poverty. Impressive as it may seem, certain
sections of society have been directly affected
by “development” and they bear the cost of
deprivation of rights and an uncertain future.
By averaging the national poverty
reduction progress, the most developed state is
lumped together with the least developed state.
This is where figures are distorted. Natural
resource-rich Sarawak is ranked among the
poorest states in Malaysia, defying logic when
compared to resource-less states. Decades
of oil, gas, timber and more recently, coal
earnings have not been able to lift Sarawak
out of poverty despite being ruled by the same
National Front (Barisan Nasional,BN) coalition
government for over four decades. Instead,
Sarawakians have often been reminded by the
same government to be grateful for what the
state has – poverty amid plenty.
Development is supposedly targeted
to tackle the high incidence of poverty
among the rural population, basically the
indigenous communities. In the rural context,
development continues to be large-scale
destructive logging followed by mono-crop
plantations of oil palm and fast-growth trees.
One fundamental aspect of Sarawak
that is unique in the country is the existence
of Native Customary Rights (ncr) whereby
land is not tied to the capitalistic concept of
ownership. While the Sarawak government
claims recognition of such rights, it is also
actively engaged in taking away such rights
in the name of “development”. In effect, the
“right to development” is used by the Sarawak
and Federal governments to justify taking
away the customary rights of the indigenous
communities.
While federal land development agencies
felda have made practical efforts to give
land rights to the landless poor in Peninsula
Malaysia, the Sarawak government, on the
other hand, through its agencies, has been
taking away rights to customary lands from
the customary landowners.
The Sarawak Government’s continuing
practice of giving out licenses for logging,
and then as timber resources continue to
decline, leasing out lands for large-scale
mono-crop plantations is done in the name
of development. After over three decades
of large-scale logging operations, the same
development rhetoric is being repeated in the
large-scale land re-development for monocropping.
The current “new development” that is
promised to benefit the people is the building
of dams, the latest being the proposal of
12 hydroelectric dams to be built in rural
Sarawak.
Damned Dams
The Sarawak authorities has identified that
the vast river systems of the state will be able
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7/15/10 11:57 AM
Voices of The People: Selected Stories
to general “cheap and green” energy. This
massive energy will not only be generated for
an anticipated hungry demand for energy in
Sarawak, Sabah, Peninsula Malaysia, but also
in the neighbouring regions of Brunei and
Kalimantan.
On 23 July 2008, the headline in The
Star3 read: “Sarawak to build 12 dams to meet
future power needs”. This was despite the fact
that there were no prior political or economic
incidents justifying this proposal of adding
more dams to the ongoing construction of
2,400MW Bakun hydroelectric dam. When it
was first introduced to the public in the 1980s,
the Bakun dam was hugely controversial due
to its size and the anticipated widespread
social and environmental destruction that
it would bring. Furthermore, construction
of the dam would require displacing 15
longhouse communities.
Some non-governmental organisations
and activists that campaigned against the
Bakun dam had initially proposed that more
dams of a smaller scale be built along the
Rajang River as an alternative to erecting
the single potentially destructive Bakun dam.
However, this proposal was rejected.
The Bakun dam project also included
a proposal of laying undersea cables across
the South China Sea to deliver 1,600MW
of electricity to Peninsula Malaysia. But
the economic crisis in the late 1990s forced
the Bakun dam project to a halt. Despite
this project’s suspension, the resettlement
of 10,000 people from the Kayan, Kenyah,
Lahanan, Ukit and Penan communities went
ahead in 1999.
In 2001, the Bakun hydroelectric
project resumed construction, albeit on a
smaller scale. The decision to continue with
the undersea cables, however, wavered like
a seesaw. The question of whether or not
to construct the undersea cables remains
undecided until today.
Logs being transported out of the Bakun area as the Bakun Dam
nears its completion. (Photograph courtesy of saccess)
The Bakun hydroelectric dam is expected
to be in operation sometime in late 2010.
The current output capacity of Sarawak is
933MW, which is more than enough to sustain
the state’s power needs. So, why is there the
need for another 12 dams?
The Bakun dam itself is already expected
to generate 2,400MW and the other 12 dams
namely, Baleh (1,400MW), Murum (900MW),
Baram (1,000MW), Lawas (50MW), Limbang
(150MW), Linau (290MW), Belepeh
(110MW), Belaga (260MW), Metjawah
(300MW), Ulu Ai (54MW), Tutoh (220 MW)
and the Batang Ai extension (60MW), would
raise Sarawak’s energy production to a total
of 7,194MW! That is more than a 700%
increase from the capacity that Sarawak has
today.
On 18 February 2010, Sarawak’s Public
Utilities Minister Awang Tengah Ali Hasan
told The Star4 that the first five dams – Balleh,
Pelagus, Baram, Lawas and Limbang – are
expected to be completed by 2015, generating
a total of more than 3,000MW over the next
five years. The construction of Murum dam
itself is already underway and is expected
to be completed in 2013. About six Penan
communities will be directly affected by
the dam and they will be forced to resettle
together with two other Penan settlements.
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7/15/10 11:57 AM
Typical of all such socially and
environmentally
destructive
projects,
construction of these dams began before the
communities’ problems and grievances were
heard, least of all addressed. This is despite
the fact that the Malaysian Human Rights
Commission (suhakam) has published a
report which asserted that key issues about
the affected people must be addressed. The
government has decided to go ahead with the
project, and nothing, certainly not the rights
of the people, was going to stop it.5
So what can be expected from the
Sarawak state government for all dam-affected
villagers when their lands, their livelihoods
and their survival are flooded and destroyed?
Two examples of dam-affected resettlements
are testaments to what the people can and
cannot expect from a government bent
on continuing the pattern of development
that infringes upon the basic rights of the
indigenous communities.
1. Bakun Resettlement Scheme – 10
years on
The building of dams is not only
environmentally destructive but also displaces
local communities from their ancestral lands
and forcibly resettles them to alien spaces that
are neither geo-politically nor culturally theirs.
Only in Sarawak would a state assemblyman
say that “the dams are a blessing from God”. But
who exactly will be blessed from these dams is
debatable. The only certainty is that the local
communities, whose lives are directly affected
by these dams, will experience the aftermath
of “development”.
What is it about “development”
that is so great and attractive that the
public are so captivated by it? Immanuel
Wallerstein, known for his world-system
theory, once said that the only way that we
can determine “development” is by asking,
“What has developed?” Wallerstein argued
that the capitalist world economy’s idea of
“development” simply means the condition
of the state being economically and socially
“incontestably better off ” than it historically
was. By taking this into the context of
Sarawak, the policymakers and big business
conglomerates lead the way in ensuring a
life that is “incontestably better off ” for the
people once these dams are built on the
Sarawak rivers.
The resettlement schemes are simply
part of the government mechanism to ensure
that the people affected by these dams are
“better off ” as compared to before.
Once relocated to the resettlement
schemes complete with the conventional
public amenities: 24-hour electricity, treated
water supply, roads, schools, clinics, district
administrative center, shops, and of course,
housing – the resettled communities are
then made to feel this is a great improvement
over their old settlements, where such
amenities were absent. This feeling of being
“incontestably better off ” among the resettled
indigenous communities can be seen as a form
of “narcotic passiveness”, which philosopher
Umberto Eco has described as a condition
where the transformation of society has
caused the society’s mind to become numb
once a new hegemony sets in.6 This report
suggests that such “development” in Sarawak
today is the “narcotic” of the masses, at best.
However, the effects of this “narcotic”
gradually wear off as the resettled Orang
Ulu communities in the Bakun Resettlement
Scheme (brs) begin to experience the
hangover of “development” 10 years on.
For some of the families in the resettlement
scheme, they started acquiring the fruits of
this “development” – new vehicles, furniture
and other household luxuries – and began
their new life with minimal problems, when
they first moved into the brs.
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7/15/10 11:57 AM
However, more than 10 years later,
many realised their new life is taking a new
but difficult route, despite the availability of
various facilities and amenities in the brs.
As the people found it hard to live in casheconomy where cash is hard to come by,
electricity and water bills began to fall behind.
Before long, the Sarawak government quietly
disconnected electricity of some (example, the
Penan settlement in brs) and threatened the
discontinuation of water service to others.
On 31 March 2010, The Star7 reported
that the government needs to re-assess
their “development” projects in the brs as
communities were beginning to feel the
economic and social pressure of living in the
not-so-new settlement. The newspaper also
reported that about 300 people have already
moved back to their old settlements due to the
adverse situation in the brs. Lack of land in
the resettlement schemes has always been the
main issue among the displaced communities.
Seeing their predicament, the new
Deputy Tourism Minister James Dawos
Mamit said that the government – following
the World Bank policy – should review their
situation and make some changes in the
existing policies. Among other things, this
would also include the communities’ demand
for greater land area than the three acres that
were given to them.
However, it is questionable whether
extra hectares of land given to the resettled
communities would answer their problems.
Will the reimbursement of compensation
money solve their economic woes? Will
more roads, clinics, schools and all the
“development”
infrastructures
improve
the communities’ situation in resettlement
scheme? Have customary rights landowners
been turned into beggars to be pitied with an
extra acre of land?
From the perspectives of a group of
resettled villagers at the brs, the obvious
answer to these questions is “No”.
Such an approach to development, known
as the “positivist orthodoxy” in development
studies, implies that “development” via
economic planning should be determined
by the state, and that any problem resulting
from this development approach can only be
solved by the technocrats.8 This approach to
development only worked in Britain and most
of Eurpoe in the late 1940s and early 1950s.
It was however severely criticised
thereafter. Academics and practitioners in
development studies have since used various
measures, including the participatory
approaches, to alleviate problems associated
with “development”. Unfortunately, the
Malaysian state still applies the “positivist
orthodoxy” in their “development” projects,
failing to understand that such approach can
never work in a country that is culturally and
historically different from Britain.
A good example of the “positivist
orthodoxy” approach to development in
Malaysia is when Mahathir Mohamad, who
was then Malaysia’s prime minister, was
quoted in the Sarawak Tribune on 7 July
1989 as saying “We are asking them to give up
their unhealthy living conditions and backwardness for
better amenities and a longer and healthier life style.”9
“Them” in Mahathir’s statement refers to the
Penan communities whom he considers as
socially undeveloped compared to the other
communities, particularly the urban folks.
In order to solve their “unhealthy living
conditions and backwardness”, Mahathir
Mohamad decided to build the Bakun
hydroelectric dam and relocated 15 longhouse
communities, including the Penan, into the
new resettlement scheme. This has caused
more frequent problems and has established a
new order that conflicts with the communities’
cultural values.
Ajang Kiew, a Penan from Long Belok,
once said, “We ask for schools, the government
brings tractors. We ask for clinics, they give trucks to
bring more logs from the area.” 10 This was in 1990.
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7/15/10 11:57 AM
In the brs today, 20 years after Ajang Kiew’s
statement, this sentiment still exists.
In 2008 during on-site interviews with
the people in one of the settlements in the
BRS, Lejau Ului of Uma Badeng said, “We
came to settle here [at the brs] by force, not by our own
will. We never had the intention to come here. That is
the problem.”
His statement generally represents the
voices of many others living in the brs, not
so much about the problems they are facing
now but rather the notion that they moved
to the resettlement scheme “by force”, not
necessarily by means of physical forced
eviction or by the rising water,11 but rather by
the lack of options given to the communities
in determining what is regarded as socially
and economically appropriate for themselves.
After more than 10 years settling in
the brs, the communities are today only
beginning to wake up from the numbing
effect of “narcotic passiveness”. Lejau Ului of
Uma Badeng said the following with regard
to the gaps between the government’s initial
response to the problem of shortage of lands
for families and the reality today:
“The government told us, ‘Don’t worry about
the 3-acre land. If your land is already full, you
can always ask for more later. The government
will not forget all of you. The government will
manage all your problems’. [However], when
we arrived here, then we realised we had all
kinds of problems. Suddenly the government’s
promises were not as the same as before. They
have already changed.”
A Bidayuh villager whose life will be affected by the Bengoh Reserviour Dam in Kuching Division shares his concerns with the Bakun
Dam-affected residents. (Photograph courtesy of saccess)
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7/15/10 11:57 AM
While Lejau Ului lamented on the
infrastructural problems living in the
brs, Gara Jalong, the yet-to-be-formally
recognised Headman of Long Lawen,12
explained the problem with their land rights
in the resettlement scheme:
“The land that they have here [in the resettlement
scheme], their 3-acre land, does not have a title.
Their land has no title because they did not sign
any agreement [to say it has a title]. So, as to
whether this land here is really theirs or if it
would be reverted to the government – I don’t
know. That is the problem now: the 3-acre land
still belongs to the government. They’re still
squatters on their own land.”
Like Lejau Ului, Gara Jalong is also an
Uma Badeng Kenyah. The word “they” that
he used was in reference to Lejau Ului and
more than 200 Uma Badeng families who
decided to move to the brs in 1999. But Gara
Jalong and 30 other families refused to move
to the brs. Instead, he and his group moved
up to Long Lawen to establish their own
settlement outside and above the flooding
perimeter.
The population of Long Lawen has since
increased as more left the brs to settle in Long
Lawen. Today, there are some 76 families
living in Long Lawen, with a population of
470, according to Gara Jalong.
The offer of public amenities in the
brs such as clinics, schools or roads, and
compensation money never attracted Gara
Jalong. His only concern was the land, not
necessarily the size of the land “offered”
(three acres) in the brs but rather the rights
they have to their own lands. Gara Jalong said:
“Our rights in Long Geng should also be
transferred here [to the resettlement scheme]. If
you want us to move here, you must also transfer
our 21,700 hectares of land with us here. It
should not be left in Long Geng. Only then I
will agree to move. But now, the government
regards us as squatters. This is what all of us
Sarawakians do not want to hear. We are all
indigenous of Sarawak since we were born in the
land of our ancestors.”
He also said that being forcibly resettled
into the resettlement scheme does not mean
that the group that did not move to the brs
will miss out on these goodies. Involuntary
resettlement, in other words, is not the answer
to their problems.
Gara Jalong (second from right) holding a camera while engaging
in a dialogue session. (Photograph courtesy of saccess)
Gara (standing, right) speaks to his fellow villagers as the people
discuss their problems. (Photograph courtesy of saccess)
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7/15/10 11:57 AM
In this case, it is not the resettlement and
its negative elements that should be of concern
as they are merely symptoms of the root
problem. To get out of the state of “narcotic
passiveness”, the resettled communities must
understand their rights, not so much to the
land but to the values that tie them to it. This
is the biggest loss in any resettlement exercise,
not so much its economic aspect.
2. Batang Ai Resettlement Scheme
The Batang Ai hydroelectric dam is located
in the Lubok Antu district, about 280km from
Kuching. The construction of the Batang Ai
dam first started in the late 1970s and upon
completion in 1981, the dam was expected
to flood an area of 21,000 acres. More
importantly, local Iban communities living in
the upper reaches of the Batang Ai catchment
area had to be relocated to a resettlement
scheme 6km downstream from the dam.
The resettlement scheme was created
in the 1982-84 period to accommodate
more than 3,000 displaced individuals
from 22 Iban longhouse communities. The
resettlement programme was divided into
two phases. Phase I started in 1982 where 10
longhouse communities had to surrender their
submerged ancestral lands to the government
and resettle downstream. In 1984, Phase
II of the resettlement exercise involved the
relocation of 12 longhouse communities as
their lands were partly submerged. Some
decided to stay back as their lands were still
above the flood.13
Yong reported that 52.3% of those
interviewed by the Sarawak Museum prior to
the resettlement exercise did not want to move
out into the resettlement scheme while 32.3%
agreed to be resettled.14 From their research,
Banerjee & Bojsen (2005) discovered that the
local communities quoted three reasons for
moving into the resettlement scheme: modern
lifestyle, lack of choice, and simply following
their families and leaders.15
As mentioned earlier, these are the
common descriptions of “development”,
which seems rather attractive on the
surface. Banerjee & Bojsen quoted one of
the local inhabitants who was told by the
government, “If you move here [the resettlement
scheme], you will get development.”16 Ironically, the size of the resettlement
scheme is almost three times smaller (8,000
acres) than their original lands that have been
flooded (21,000 acres).17 This naturally caused
dissatisfaction among the relocated Iban
communities as it means their land area in the
resettlement scheme is too limited for their
agricultural activities and as such, they are
unable to sustain their traditional livelihood.
In order to resolve this matter, the state
government introduced salcra to assist the
resettled communities in managing their
land use strategy in the resettlement scheme.
Generally, the government disapproves of the
longhouse community’s traditional shifting
agriculture as it is perceived to be economically
and environmentally destructive. In contrast,
“development” via salcra would include
large-scale intensive agriculture that is
supposed to be economically sustainable
for the people. In its website, salcra noted
“Through its land development, salcra assists
the government to eradicate poverty among the
rural populace and continue to improve their living
standard.”18 Initially, the government was supposed
to provide each family with 11 acres of land:
five acres for rubber, three acres for cocoa, two
acres for paddy and one acre for fruit trees
and pepper. However, once at the resettlement
scheme, the local communities only received
nine acres of land. The two acres allocated for
paddy were not given.
According to Banerjee & Bojsen, eight
out of nine acres of the people’s land are
controlled by salcra: three acres are used for
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oil palm plantation and five acres for rubber.19
It is obvious in the case of the Batang Ai
project that “development” in the resettlement
scheme is not targeted towards reducing
poverty among the displaced communities.
In the resettlement scheme, with the
introduction of government “development”
agencies such as salcra, the main objective
is to control land use strategies and potential
benefits from these “development” projects.
In other words, the local communities are
merely a pretext of “development” projects.
The local communities, in reality, are the
pawns of “development” that have no power
to determine their own destiny.
“This perception [of ‘development’] serves to
legitimise the governmental development policies
and supports the notion that indigenous people in
rural areas, such as the Iban, should be subjected
to state intervention.” (Banerjee & Bojsen,
2005) 20 But according to Banerjee & Bojsen,
who have done fieldwork research in Batang
Ai resettlement scheme, the state intervention
through “the scheme seems so far to have
failed in substantially or adequately raising
income levels of the inhabitants.”21 Apart from the lack of land, another
pressing issue is the loss of rights over their
land in the Batang Ai resettlement scheme.
Banerjee & Bojsen also discovered in their
research that the resettled communities do
not have legal claims to their compensated
land. This issue still persists in the Bakun
Resettlement Scheme and has been
highlighted by some people in the brs. [See
quoted statements by Gara Jalong and Lejau
Ului of Uma Badeng above.] Gara Jalong, for
instance, said that:
“We’re used to living life like we’re still in the
old settlement. When we wanted to farm an
area, we just do it. When we wanted to build
small huts in the farm, we just do it. When
we cleared the forest, it means the area is ours.
That’s how we think when we came to settle
here. We thought when we came here and opened
up a farming area, it becomes our right. But only
now we realize, we no longer have the rights to
do all these.” As mentioned earlier, land use in the
resettlement scheme is determined by the
state, which in itself is already taking away the
rights of the people to determine their life in
the new settlement.
In other words, “development”
especially via large-scale intensive agricultural
activities within the resettlement scheme is in
itself an act of robbing people’s rights to their
life and livelihood. The resettlement scheme
in this context is not much different from a
Native American or an Australian Aborigine
reservation. Conclusion
We have presented above the cases of two very
different indigenous communities affected by
the building of dams in Sarawak. These two
communities, however, share many similarities,
mainly in terms of the dispossession of
their land and their rights, contrary to the
promised betterment that “development” was
meant to bring. “Development” has merely
disregarded the rights of people to prior
and informed consent. It has brought about
the “forced” uprooting of the people and it
has dispossessed the original inhabitants of
Sarawak. After resettlement, the people are
not even given recognised rights to their lands
– in the form of titles.
They also share another commonality:
their rights have disappeared under the
same ruling coalition government. The same
government is bent on carrying out more of
the same so-called development. In effect,
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7/15/10 11:57 AM
development has brought about the erosion of
fundamental rights of numerous communities
in dam-affected areas in Sarawak. The federal
and Sarawak governments’ developmental
push in other large-scale development has also
grossly violated the rights of the customary
land owners.
Numerous examples have been told
by the affected communities in the Batang
Ai resettlement scheme and the Bakun
resettlement scheme of the raw deal that they
have been subjected to. Now, the communities
affected by of the building of the Murun Dam
await the same fate.
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7/15/10 11:57 AM
End Notes
1
2
3
4
5
6
7
8
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.
saccess
United Nations Secretary General’s quote
in anticipating the September 2010 summit
on the progress towards attaining the
un’s Millennium Development Goals as
can be accessed at http://www.un.org/
millenniumgoals/ (accessed on 15 June 2010).
“Sarawak to build 12 dams to meet future power
needs”, The Star, 23 July 2008, http://thestar.
15 June 2010).
“Sarawak plans five more hydro dams”, The
Star, 18 February 2010, http://biz.thestar.
business/20100218083054&sec=business
(2009) The Murim Hydroelectric
Project and Its Impact towards the Economic,
Social and Cultural Rights of the Affected
Indigenous Peoples in Sarawak, Kuala
Lumpur: suhakam http://www.suhakam.org.
my/c/document_library/get_file?p_l_id=302
17&folderId=30507&name=DLFE-5417.pdf
suhakam
Eco, U. (1995) Faith in Fakes: Travels in
Hyperreality, London: Vintage.
9
Cited in Davies, W., McKenzie, I. and
Kennedy, S. (1995) Nomads of the Dawn, San
Francisco: Pomegranate Artbooks.
10 Ibid.
11 Sarawak Government Minister James Masing
had gone on record as publicly stating that
if the Bakun-affected people did not want to
move to the BRS, then let the rising water from
the dam-impounding flood the people out.
12 Long Lawen is the new village created by
a small group of the original Long Geng
villagers who refused to be moved to the BRS
and instead, moved to their traditional lands
that is then called Long Lawen.
13 Itik, A. (1999) “Report on Short Visit to Two
Long Houses in Batang Ai”, 19 November,
http://www.rengah.c2o.org/pdf/batang.pdf
14 Yong, O.L. (2003) “Chapter 2: Literature
Review”, Flowed Over: The Babagon Dam and the
Resettlement of the Kadazandusun in Sabah, Subang
Jaya: Center for Orang Asli Concerns (p. 42).
15 Banerjee, N. & Bojsen, K. (2005) “Negotiability
and limits to negotiability – land use strategies
in the SALCRA Batang Ai Resettlement
Scheme, Sarawak, East Malaysia”, Danish
Journal of Geography (105):1, (p. 19).
16 Ibid.
17 Ibid (p. 17).
“Govt needs to relook Sg. Asap resettlement
project”, The Star, 31 March 2010, http://thestar.
sarawak/5962927&sec=sarawak (accessed on
15 June 2010).
18
Harriss, J. (2005) “Great promise, hubris
and recovery: a participant’s history of
development studies”, in Kothari, U. A
Radical History of Development Studies: Individuals,
Institutions and Ideologies, London & New York:
Zed Books.
20 Ibid (p. 18).
website, http://www.salcra.gov.my/
index.aspx?link=5 (accessed on 15 June 2010).
salcra
19 Banerjee, N. & Bojsen, K. (2005) op. cit. (p.
19).
21 Ibid (p. 20).
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7/15/10 11:57 AM
Campaign against the
Teaching of Mathematics
and Science in English:
A Multi-Ethnic Struggle for
the Right to Mother-Tongue
Education in
Malaysia
by Nyam Kee Han1
F
or the past two and a half decades
prior to 2003, the national language
(the Malay-language or Bahasa Malaysia) has been the preferred medium of instruction for mathematics and science from
Primary One up to the Sixth Form in National Schools (Sekolah Kebangsaan) in Malaysia.
In Chinese and Tamil national-type schools,
these two subjects were taught in the mothertongue languages only at the Primary level.
However, in January 2003, the Government changed the medium of instruction of
these subjects to the English language across
all schools in Malaysia (in national schools, as
well as in Chinese and Tamil schools). This
new “Teaching and Learning of Science and
Mathematics in English” (Pengajaran dan Pembelajaran Sains and Matematik dalam Bahasa Inggeris, or ppsmi) policy was implemented in all
schools beginning with Primary One (at the
Primary level), First Form (at the Secondary
level) and Lower Sixth Form (at the Higher
Secondary level). This was to be gradually
extended each year to all levels of the school
system. The change was to be completed by
2008 at all primary and secondary schools in
Malaysia.
The government has on numerous occasions given different justifications for the
implementation of the ppsmi policy. The government has held that the use of the English
language as a medium of instruction for these
subjects would enable our students to mas-
ter their knowledge of mathematics and science, much of which is available in English,
in order to elevate their competitiveness at the
international level. On other occasions, the
government has stated that the policy was to
enhance the English-language proficiency for
a new generation of students in Malaysia.
Notwithstanding these intentions, the
decision was made hastily by the government
without prior consultation and proof of the
feasibility of such measures. As a result, the
implementation of this policy has caused
widespread discontent among people of different ethnic groups and has encountered
strong opposition from various non-governmental organisations and political parties.
Opposing the Teaching of
Mathematics and Science in English
Various policies and legislations at different
stages in the history of Malaysian education
have resulted in the erosion of Chinese-language education in the country. The ppsmi
was the latest of many such policies. The
policy was regarded as a transitional policy
which would eventually weaken or destroy the
use of mother tongue languages of all ethnic
groups, effectively forcing all people from different ethnicity to accept Malay language as
the main medium of instruction in education.
Among the many groups which opposed
the implementation of the ppsmi was Dong
Jiao Zong (djz), which launched a series of
protests against the policy. (Dong Jiao Zong
is the umbrella body of the Chinese education movement and is made up of Dong
Zong, comprising Chinese schools’ boards of
directors, and Jiao Zong, comprising Chinese
schools’ teachers.) A booklet entitled “The Last
Line of Defence”, which was a compilation of
news articles on the issue between May 2002
and April 2003, was released by djz as a means
1 Nyam Kee Han is an active member of SUARAM’s Johor branch.
218
7/15/10 11:57 AM
to educate the public on the consequences of
implementation of ppsmi. Subsequently, Jiao
Zong also published another document, “Can
Teaching of Mathematics and Sciences in English
Work?” which records the development of ppsmi with an analysis on the impact of the policy
to the Chinese-language education.
In contrast, the Malaysian Chinese Association (mca) – the Chinese-based coalition member of the ruling Barisan Nasional
(bn) – gave in to the government by accepting
the ppsmi policy with the formulation of the
“2-4-3” and the “6-2-3-2” schemes. The “24-3” scheme was introduced for students in
Primary One to Primary Three in Chinesetype primary schools, whereby six lessons of
Mathematics and three lessons of Science
are taught weekly in Chinese-language; while
four lessons of Mathematics and three lessons of Science are taught weekly in English.
The “6-2-3-2” scheme, meanwhile, was introduced for students in Primary Four to Primary
Six, whereby six lessons of Mathematics and
three lessons of Science are taught weekly in
Chinese-language; while two lessons of Mathematics and Science respectively are taught
weekly in English.
In response, djz asserted that such temporary measures only served to briefly pacify
the Chinese community which had strongly
opposed the ppsmi and was in reality a political compromise between the mca and the
government with no regard paid to the educational aspects of such a policy.
Subsequently, a report published by
Jiao Zong found that the ppsmi, even with
the formulation of the “2-4-3” and “6-2-32” schemes, had resulted in a general decline
in the understanding of mathematics and
science among students in Chinese primary
schools, rather than fulfilling the policy’s objectives of enhancing the students’ proficiency
in English-language and elevating their competitiveness at the international level.
Jiao Zong’s findings were not an isolated
case. Several other studies on the ppsmi from
the perspectives of the Malay and Indian
communities respectively have reached the
same conclusion.
In March 2005, a research paper presented at the Second Malay Education Congress
(Kongres Pendidikan Melayu ke-2) pointed
out that 500,000 Malay students have fallen
behind in both the mathematics and science
subjects because of the use of the English
language as the medium of instruction. The
Congress stressed that situation will further
deteriorate should the government continue
its implementation of the ppsmi policy.
The Tamil Foundation (Yayasan Penyelidikan dan Pembangunan Pendidikan Tamil)
also published a booklet entitled, “The Cry:
The Implications of Teaching Maths and
Science in English in Tamil Schools” (2003),
which pointed out that 88.9% of the of Indian students in Tamil school from families
with household income below RM 900 would
fall behind in mathematics and science following the switch to English as the medium
of instruction for the two subjects. The report
further noted that the ppsmi policy could lead
to further exacerbation of poverty, higher
drop-out rates, worsening of social ills and
undermine the socio-economic status of the
Indian community in Malaysia in general.
SUARAM Johor’s Poll on the Teaching of Mathematics and Science in
English
In July 2007, the Friends of suaram (fos) in
Johor formed an action committee – which
comprised the Youth Wing of the Pan-Malaysian Islamic Party (pas) in Johor, Persatuaan
Semparuthi, Unit Amal PAS Johor, Teras Johor, Jamaah Islah Malaysia (jim) Johor, Gerakan Mahasiswa Islam Se-Malaysia (gamis)
Johor and suaram Johor’s fos – to conduct a
survey on this issue.
219
7/15/10 11:57 AM
The poll found that 68.4% among 117
teachers from both national schools and
Chinese-type schools who were interviewed
disagreed with the policy of teaching mathematics and science in English and regarded
it as a bad policy. In addition, 90.6% of the
same sample of teachers interviewed opined
that the teaching of mathematics and science
in mother-tongue languages was more effective as compared to the use of English as a
medium of instruction. Compared to national schools, teachers in Chinese-type primary
schools encountered more difficulties after the
switch to English-language in the teaching of
Mathematics and Science. When comparing
mother-tongue languages and English as the
instruction medium in the teaching of the two
subjects, most of the teachers in Chinese-type
primary schools interviewed thought that the
former was more effective.
Out of 1,862 students from both national and Chinese-type primary schools interviewed, 82.7% said they understood better
the examination questions in their mothertongue language, and 84.3% preferred to sit
for the upsr (Ujian Penilaian Sekolah Rendah, the national-level primary school examination, taken by all students at Primary Six) in
their mother-tongue language.
The policy has been in place for five
years but it remains unclear as to whether the
English proficiency of students has actually
improved overall. The efforts of the Action
Committee in conducting the poll study were
eventually recognised by the local authorities.
On 4 August 2008, the committee submitted
a full report and a memorandum based on the
poll conducted to the Ministry of Education.
They were received by the ministry’s representative Mohd Sallehuddin Hassan. The
committee members were later invited to a
roundtable meeting on the teaching of mathematics and science in English. The committee made the following demands:
1. Repeal the teaching of mathematics and
science in English;
2. Restore the respective mother-tongue
languages as the medium of instruction
for mathematics and science in all primary
schools; and
3. Guarantee the right to education in the
mother-tongue.
Multi-Ethnic Cooperation in the
Struggle against PPSMI
On 13 January 2009, a coalition, Gabungan
Mansuhkan ppsmi (gmi) or the Abolish ppsmi
Coalition, was formed by several Malay cultural groups calling for the policy of compulsory use of English-language in the teaching mathematics and science in all primary
schools to be revoked.
This development indicates that the policy is not only strongly opposed by significant
numbers of the Chinese and Indian communities, but also by segments of the Malay community. The formation of gmp is symptomatic
of similar kinds of discontentment towards
the ppsmi policy. Nevertheless, the gmi should
make clear that its ultimate objective is to
revive the use of the mother tongue of each
ethnic community in education, and not to
replace the English language with the Malay
language as the sole medium of instruction
in education. Only by clearly making such a
stand can a formidable, united force of different ethnic communities be developed with
a view of doing away with the policy of using
English for teaching mathematics and science
in primary schools.
Upon the formation of gmp in January
2009, suaram fos in Johor took the initiative
to approach the gmp to dialogue about this
issue. Consequently, gmp stated that each
ethnic group should have the right to learn
mathematics and science in their respective
mother-tongue languages.
220
7/15/10 11:57 AM
On 16 February 2009, the chairperson
of gmp, Dr Hassan Ahmad, appealed to all
Malaysians to join a mass rally to oppose the
ppsmi scheduled to be held on 7 March 2009.
The rally was called to reinforce gmp’s position
on the issue. On 7 March 2009, some 10,000
individuals comprising various communities and groups gathered at various points in
Kuala Lumpur before marching towards the
palace to submit the coalition’s memorandum
to the King. The police fired tear gas at the
crowd and arrested eight people during the
rally.
Minor Victory
Since the rally on 7 March 2009, there has
been an increase in interaction between the
Chinese groups who took part in the rally
and gmp. Arguably, suaram fos in Johor has
helped to bridge the different concerns of the
Chinese and Indian communities and those
of gmp by encouraging an honest exchange
of views on mother-tongue education in the
country.
The momentum of the opposition to the
policy – from the discrete voices of opposi-
Part of the massive crowd marching towards the royal palace in Kuala Lumpur to oppose the government’s policy of teaching of
mathematics and science in English on 7 March 2009. (Photograph courtesy of Malaysiakini)
221
7/15/10 11:57 AM
National literature laureate A. Samad Said (centre) feeling the effects of the teargas fired by the Federal Reserve Unit during the antippsmi rally on 7 March 2009. (Photo courtesy of Malaysiakini)
tions across the country to the mobilisation of
the mass rally on 7 March 2009 – was built up
to an extent that the government could not
afford to ignore it. Consequently, the government decided to scrap the policy in stages,
beginning from 2012. However, the victory
is not complete as the national policy is still
committed to the goal where Bahasa Malaysia
would be made the sole medium of instruction in all schools. This remains an area of
serious concern of non-Malay ethnic minorities in Malaysia.
Equal Rights of All Citizens
Lim Lian Geok, who is widely acknowledged
as the soul of Chinese education in Malaysia,
once said, “In a multi-ethnic country, the peaceful cooperation is a very important principle, but this
must be constructed on the basis of equality.”
(Emphasis added)
As citizens in a democratic, multi-ethnic
country, all ethnic communities should be entitled to equal treatment regardless of their
demographic size. Ethnic minorities should
have support to teach and learn in their own
mother tongues if they so choose. Any “national cultural policy” which advocates the
dominance of the Malay culture and the exclusion of the cultures of other ethnic communities must be vehemently opposed. The
same applies to an education system which is
based on a single culture and language. The Education Act 1996 has thus far
failed to provide fair treatment for all ethnic
222
7/15/10 11:57 AM
minorities in the development of their respective mother tongue education. It is in the current context of the lack of recognition of the
rights and cultures of the diverse ethnic communities in Malaysia that a complete review
of our education system needs to be carried
out. This is for the purpose of embracing
pluralism, openness, freedom and progress.
We need an education system that provides
a well-rounded education for all individuals,
and which nurtures innovation, motivation,
and skill-learning among our young people
and students.
Conclusion
The announcement by the government to
abolish the teaching of mathematics and science in English is the effect of a long and persistent struggle for the right to mother-tongue
education in Malaysia. Nevertheless, the call
for the recognition of the diverse cultures of
all ethnic groups and against forced assimilation remains a serious challenge in a country
ruled by a communally-based political coalition, Barisan Nasional (bn), and dominated
by the exclusively-Malay party, umno (United
Malays National Organisation).
From the various past lessons, it is clear
that only through direct participation will the
fundamental rights of all citizens be respected
and undemocratic policies be abolished. The
multi-ethnic opposition towards the ppsmi
policy, which culminated in the mass rally in
2009, is a clear demonstration of this fact.
Similarly, it is only through rejecting communal politics that the rights and development
of cultures of all ethnic groups in the country
will enjoy equal recognition.
223
7/15/10 11:57 AM
Oral statement delivered
by Norlaila Othman at the
11th Session of the United
Nations Human Rights
Council
M
Norlaila Othman. I
am a Malaysian. I speak on behalf
of my husband, Mat Sah Bin
Mohd Satray, who has been detained by the
Malaysian government under the Internal
Security Act (isa) for more than 7 years. Under
the ISA, the government can detain persons
without even the most basic of due process
rights. The isa is extremely broadly worded
and allows for indefinite detention without
trial. Mat Sah was detained in April 2002
and is now occupying a cell at Kamunting
Detention Camp, deprived of his liberty. He
has never been charged and has not had the
possibility of a fair and public hearing by an
independent and impartial tribunal.
y name is
Under the isa the Malaysian judiciary
has been systematically excluded from
playing any meaningful role in ensuring that
those detained are treated in accordance with
international human rights norms. There is
no effective judicial review. Habeas corpus
is only available on narrow and technical
grounds. Judges cannot review grounds of
detention, and are not shown the purported
evidence against detainees.
The isa allows for review of detentions
by an executive-appointed Advisory Board.
The Advisory Board has no power to free
detainees. It can only make non-binding
recommendations to the government.
Appearances before the Advisory Board are
a farce because the authorities never disclose
evidence or documents to the detainee.
My husband was first accused of being
the member of one terrorist organization,
then later another. However during the
more than seven years he has already spent
in detention, no evidence has been produced
to substantiate the accusation. Instead he is
required to attend counseling programmes
and encouraged to admit the allegations
Norlaila at the United Nations Human Rights Council after giving her speech there. (Photograph courtesy of Gerakan Mansuhkan isa)
224
7/15/10 11:57 AM
against him. The authorities have yet to prove
he actually engaged in any illegal activity.
Persons arrested at the same time as him have
long been released. He has been told the only
reason he is still detained is due to my activism
in the Anti-isa Movement.
The Working Group on Arbitrary
Detention has stated that the detention of
my husband is arbitrary and contravenes
Articles 9 and 10 of the udhr. I strongly
urge the Human Rights Council to visit
Kamunting Detention Camp and meet my
husband personally. I call on the Malaysian
government to facilitate this visit.
I hope the visit will lead to the release
of my husband and others who are enduring
the same experience. In my case, the most
affected victim is my only son, Suhaib, aged
sixteen. The isa separated Suhaib from his
father from the age of nine. For seven years
he has been waiting everyday for his father’s
release. It is terrible to see him grow up with
this uncertainty for such a long time, and
being deprived of the love, care and guidance
from his father. Not one person should be held
in detention without trial as it violates basic
human rights. I am appearing here today not
just for the sake of my husband but also for
all who continue to be detained without trial
under the isa and their family members.
I call upon the Malaysian government to
accept and implement the recommendations
of the Working Group on Arbitrary Detention
requesting the Malaysian government to take
the necessary steps to remedy my husband’s
situation to conform with provisions and
principles enshrined in the udhr.
Statement made at the formal adoption of
the Universal Periodic Review of Malaysia
at the United Nations Human Rights
Council, Friday, 12 June 2009
Noraila with her husband Mat Sah, and their son Suhaib, at home after the release of Mat Sah on 15 September 2009. (Photograph
courtesy of Gerakan Mansuhkan isa)
225
7/15/10 11:57 AM
7/15/10 11:57 AM
SUARAM NEEDS
YOUR SUPPORT
7/15/10 11:57 AM
S
UARAM works for “a society that is
peaceful, free, equal, just and sustainable
through a process of empowering people and
building a mass movement for human rights”. We are
a non-profit Non-Governmental Organisation
(ngo) that needs your financial support to be
sustainable.
We are the only organisation that
publishes such a comprehensive, detailed and
objective human rights report on Malaysia
without fail every year. We are also the only
NGO that works for the protection of refugees
and asylum seekers in Malaysia. But this is
not the only work we do. Our small staff of
dedicated activists also does other advocacy
work including:
Your financial contribution can be made
by banking in to:
• suaram’s rhb account
(a/c no: 2141-8310-5232-91)
or by
• cheque payable to
suaram kommunikasi
Thank you in anticipation.
Salam Berjuang,
The Staff and Secretariat of
suaram
• Monitoring, research and documenting
human rights violations.
• Campaign and advocacy for the abolition
of all detention-without-trial laws.
• Campaign and advocacy to ensure the
accountability of the police and other
enforcement agencies.
• Campaign and advocacy to restore Local
Government Elections.
• Organising educational programmes such
as human rights trainings and workshops
for the public.
• Publishing educational materials for the
public.
• Providing support and assistance to the
victims of human rights and their families.
Our coordinators are also responsible for
Outreach & Events, Coalition Building, and
Regional & International Solidarity. We need
funds to be able to sustain a bigger office in
view of our growing portfolios.
You can support human rights defenders
and stand up against human rights violations
by contributing to suaram’s work.
228
7/15/10 11:57 AM
7/15/10 11:57 AM
7/15/10 11:57 AM

2009 (download here)

Transcription

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