detention without trial

Transcription

Suara Inisiatif Sdn Bhd (562530-P)
433A, Jalan 5/46, Gasing Indah,
46000 Petaling Jaya, Selangor, Malaysia.
Tel: +60 3 7784 3525 / 5724
Fax: +60 3 7784 3526
Email: [email protected]
Website: www.suaram.net
Facebook: facebook.com/suararakyatmalaysia
Twitter: twitter.com/suaramtweets
Cover design by Fahmi Reza
Layout by Amin Landak
Printer:
Oriengroup Sdn Bhd.
ISBN: 978-967-14263
SUARAM © 2015
All rights reserved. No part of this publication may be produced, stored in a retrieval system, or transmitted in any form, or by any means, electronic, mechanical, photocopying, recording or otherwise,
without prior permission of the publisher.
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TABLE OF CONTENTS
Acknowledgment Foreword
Executive Summary
Chapter 1: Detention Without Trial Chapter 2: Police Abuse of Power
Chapter 3: Freedom of Expression
Chapter 4: Freedom of Assembly and Movement
Chapter 5: Freedom of Association
Chapter 6: Freedom of Religion and Belief
Chapter 7: Gender & Sexuality
Chapter 8: Asylum Seekers and Refugees
Chapter 9: Migrant Workers
Chapter 10: Law & The Judiciary
Chapter 11: Free And Fair Elections
Chapter 12: National Human Rights Commission of Malaysia (Suhakam)
Special Feature - Indigenous Peoples’ Rights
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32
46
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58
72
88
100
120
144
150
ACKNOWLEDGMENT
The publication of the SUARAM Human Rights Report 2015 involves the efforts and contributions
of numerous individuals and organisations.
SUARAM would like to take this opportunity to extend our warmest regards and gratitude to the
following individuals for their contribution:
•
Ms. Thilaga for her contribution of the chapter on Gender & Sexuality
•
Mr. Wong Chin Huat for his contribution on the chapter on Free & Fair Election
•
Mr. Andrew Khoo for his contribution on the chapter on Law and the Judiciary
SUARAM would also like to extend our gratitude to our esteemed editors:
•
Dr. Kua Kia Soong
•
Dr. Yeoh Seng Guan
•
Mr. James Lochhead
SUARAM extend our gratitude to Fahmi Reza for the inspiring and thought provoking design for
SUARAM Human Rights Report 2015.
Last but not least, SUARAM would like to thank everyone for their contributions and support
that made all this possible.
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FOREWORD
I am honoured to be writing – for the second time in four years – this foreword for Suara Rakyat
Malaysia’s (SUARAM) annual report. For nearly 30 years, SUARAM has shown its tenacity and
dedication to human rights in Malaysia and in the region. And in the process, it has illustrated the
adage that some things only improve with age. It has been harassed by all arms of the government,
vilified in the media and subjected to pressure of every sort. Yet it has only become stronger, and
it has not shifted from its vision: Creating a Malaysia where human rights are respected, promoted
and valued.
I believe that SUARAM’s tenacity is highly relevant for the modern human rights discourse in
Malaysia today – and indeed for the whole world. As Special Rapporteur, I am responsible for
monitoring the health of the rights to freedom of peaceful assembly and of association globally. And
I am saddened to say that everywhere, almost without exception, respect for these rights is badly
deteriorating.
But there is a flip side to that: In these same places, almost without exception, there is palpable and
growing dissatisfaction at what is going on. People are more aware of their rights than at any other
time in human history. And they want to use these rights – to participate in their governance, to
claim their rightful slice of the economic pie and to simply go about their lives without excessive
government interference.
This heightened awareness is, of course, part of what is driving restrictions on our rights. Many
governments shudder in fear at the prospect of an empowered populace and react by further
restricting the people they are supposed to serve. But this is precisely why we must not despair. We
are in the midst of a global struggle. It is vast and the odds are stacked against us, but it is winnable.
The situation in Malaysia is emblematic of this struggle. Over the past few decades, the concepts of
democracy and freedom have become more and more illusory to the average Malaysian. The brief
moment of respite following the resignation of Mahathir Muhammad has come to an end. Between
2011 and 2015, my mandate sent 25 formal communications to the Government, requesting
information on alleged violations of assembly and association rights. Topics ranged from harassment
of the Bersih movement to abuse of the Sedition Act to violence against protesters and more. More
recent concerns centre around Malaysia’s response to national security and the threat of terrorism.
Taken together, these allegations paint a grim picture of a Malaysia where democratic rights have
been dramatically restricted.
V
But these communications represent something else as well: Each one tells the story of real people
who know their rights and have dared to exercise them. Each one tells us that Malaysians are not
afraid. There has been significant pushback against injustice in the country, as we have seen with
the mass mobilizations in response to the Najib Razak corruption scandal, and protests against the
government’s abuse of the Sedition Act to criminalize peaceful dissent.
The current environment in Malaysia is undeniably dark, but civil society remains vibrant. Their
responsibility is to be the light that shines through this darkness, bringing people together and
leading Malaysia to a brighter future, where human rights are a priority and not an afterthought.
I am confident that SUARAM and the rest of Malaysia’s civil society are up to this task, and I look
forward to supporting their work in every way possible.
In solidarity,
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United Nations Special Rapporteur on the rights to freedom of peaceful
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EXECUTIVE SUMMARY
In 2015, there were gross human rights violations ranging from allegations of corruption and misuse
of state funds in the 1MDB scandal to the gruesome discovery of the Wang Kelian death camps.
These were compounded by the routine violations involving detention without trial, abuse of police
powers, and denial of freedom of expression, assembly and association among others.
With the considerable domestic as well as international pressure on the government of the day
regarding the 1MDB funds and the Prime Minister’s personal account, the government remained
obstinate in keeping a façade of democracy and to raise the spectre of foreign interference, extremism
and international terrorism.
The Barisan Nasional government dealt with domestic pressure by cracking down on human rights
defenders and politicians. Our fears and concerns over the Security Offences (Special Measures) Act
2012 were vindicated when Khairuddin Abu Bakar and Matthias Chang were subjected to 28 days’
detention under the Act in conjunction with Section 124 of the Penal Code for allegedly sabotaging
the nation’s financial sector. While the case of Khairuddin and Matthias took the limelight for
offences under Section 124 of the Penal Code, Section 124 has actually been discreetly invoked in
countless cases against activists protesting and calling for the resignation of Prime Minister Najib
Razak and against media personnel who had commented on the 1MDB scandal.
Apart from these politically motivated human rights violations, 2015 also saw human rights
violations arising out of alleged corruption, abuse of power, apathy and disregard for human dignity.
The use of torture against alleged terror suspects and the practice of ‘tukar gari’ against alleged
criminals were prevalent throughout 2015. Despite the Inspector-General of Police, Khalid Abu
Bakar’s awareness on the matter, the Royal Malaysian Police have yet to adopt any concrete policy
in confronting these issues.
Detention without Trial
The detention of Khairuddin Abu Bakar and Matthias Chang in 2015 marked the first political
detentions under SOSMA. It exposed the government’s justification of preventing “security offences”
through introducing this Act. While others who have been investigated for offences under Section
124 of the Penal Code have been spared the 28 days’ detention under SOSMA, the existence of
SOSMA and its applicability for politically motivated charges under Section 124 of the Penal Code
makes SOSMA a convenient tool by the state to incarcerate human rights defenders in Malaysia.
VII
Under the guise of terror threats and national security interest, the Government of Malaysia has
introduced other draconian provisions such as the Prevention of Terrorism Act 2015 (POTA) and
the National Security Council Bill 2015 (NSC). Despite the adequate provisions to prevent crimes
under the Criminal Procedure Code, the Government of Malaysia has justified these draconian laws
as preventive measures aimed at combatting terrorism.
In 2015, SUARAM documented more than 150 arrests and detentions for offences under Chapter
VI and Chapter VII of the Penal Code with a substantive amount of detention made under SOSMA
and Prevention of Crime Act 1959 (POCA).
Right to Justice
The figures for deaths in police custody have improved slightly in comparison with previous
years with 11 documented cases. While this is commendable, the statistical improvement was not
accompanied by improvement in preventive measures and better accountability. None of the cases
documented in 2015 were adequately investigated and none of those who may have been involved
in the deaths of those held in custody were made to answer for these incidents in a public hearing.
The issue of torture under detention by the Royal Malaysian Police resurfaced in 2015 with a battery
of allegations made by detainees against the Royal Malaysian Police. From the allegations put forward
by SOSMA detainees to the allegations put forward by those subjected to ‘tukar gari’, SUARAM
has documented 19 allegations of torture put forward by detainees against the Royal Malaysian
Police. The methods of torture largely resemble those experienced by former Internal Security Act
1960 (ISA) detainees with some detainees alleging that they were subjected to beatings, humiliating
treatment, threatened at gunpoint, sexually assaulted during their detention in police lock-up.
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An unprecedented number of human rights defenders were charged under the Sedition Act 1948
and Communications and Multimedia Act 1998 (CMA). SUARAM documented 220 cases under the
Sedition Act 1948 in 2015 and 37 cases under CMA. The vast majority of the cases of arrests under
the Sedition Act 1948 were against human rights defenders and opposition politicians. As for CMA,
many of those charged were people that allegedly spread “false news and rumours” on social media.
There was prolonged detention, denial of bail and use of torture against individuals detained under
the Sedition Act 1948. Only in some cases such as Azmi Sharom’s did the Attorney General’s decide
to drop the sedition charges.
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Apart from the use of the Sedition Act 1948 and CMA, the Printing Presses and Publication Act 1984
was once again used to ban Bersih 4 items and the MCMC also blocked its website in relation to
the ban imposed by the Ministry of Home Affair. Books that received public attention such as ‘Fifty
Shades of Grey’ were banned under the PPPA.
Freedom of Assembly
SUARAM recorded 224 incidents of investigation, arrests and/or charges under the Peaceful Assembly
Act 2012 and various sections under the Penal Code for illegal assembly. In the #TangkapNajib
protest, human rights defenders and politicians were detained at various junctures and at different
times for being part of the movement calling for the resignation of Prime Minister Najib Razak. As
for the Anti-GST protest, more than 59 participants from the protest were arrested, including Datuk
Ambiga Sreenevasan, Anthony Loke and S. Arutchelvan.
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Despite full compliance with the authorities by the Steering Committee of Bersih, the Bersih 4.0
rally at the heart of Kuala Lumpur toward the end of August was still subjected to state- sanctioned
harassment. Government actions included the banning of items such as t-shirts with ‘Bersih 4.0’
printed on top a few days before the rally, the blocking of Bersih 2.0 website and the questioning of
organizers after the event. Some of the organizers were subsequently charged in court for organizing
Bersih 4.0 rally around Malaysia.
In comparison, the Red Shirt Rally by Malay supremacists that took place on the 16th September
2015 was not harassed by the police and the authorities. Despite their racially provocative themes
and slogans they chanted, including physical threats against members of the Royal Malaysian Police
during the rally, the police refrained from forcefully dispersing the rally and did not arrest any
participants of the said rally. In a related event, Jamal Yunos was subsequently arrested a week later
for threatening a riot at Petaling Street, Kuala Lumpur’s “Chinatown”.
Freedom of Religion
The politicization of religion has impacted on the lives of ordinary Malaysians. The issues of
unilateral and secret conversions remained unresolved with the civil court’s reluctance to challenge
the current status quo. In some cases, minors themselves have been subjected to coercive conversion
by rogue individuals in educational institutions and religious bodies.
Religious intolerance manifested itself on several occasions including, senior teaching staff directing
non-Muslim students to consume water only in the toilet during the Ramadan month of fasting.
Other incidents included the confiscation of a cross from a student; the protest to remove a cross
from a church, and the demand for the cross to be removed from a missionary school.
Gender & Sexuality
There was continued state-sanctioned prosecution and harassment of the Lesbian, Gay, Bisexual,
Transgender (LGBT) community. The legal framework still penalizes the community and members
of the community were subjected to arrests and prosecutions. Apart from legal sanctions, the
community also suffers from verbal abuse and physical violence with no preventive policy
implemented by the Government of Malaysia. The apathy toward the plight of this community was
exhibited in statements and speeches made by the Prime Minister Najib Razak and Minister Nazri
Aziz.
Asylum Seekers, Refugees & Migrant Workers
The plight of these marginalized communities made headlines in 2015. The Prime Minister’s decision
to welcome 3,000 Syrian refugees was not a turning point in the recognition of asylum seekers and
refugees in Malaysia. The decision to receive the Syrian refugees in lieu of the tens of thousands
of Rohingya refugees in the Andaman Sea who were refused landing rights was cynical as it was
outrageous. With widespread human rights violations against these communities, it is clear that in
the short term, the Government of Malaysia has no intention to remedy the situation.
Despite the damning report on the plight of migrant workers by Verite in 2014, not much has
changed and the situation of migrant workers in Malaysia remains dire.
IX
Law & the Judiciary
Several high profile decisions by the courts in 2015 have strengthened the perception that the
Judiciary of Malaysia is not independent of the ruling elite and the decision on the Anwar Ibrahim
case in February 2015 merely confirmed this. In the other cases, the decisions and rulings by the
Judiciary were more mixed, neither for nor against the government of the day.
Free & Fair Election
With the re-delineation exercise in full swing and the encroaching Sarawak state election in
2016, the electoral system was once again placed under scrutiny by civil society and politicians.
Unfortunately, the re-delineation exercise in Sarawak that took place in 2015 did not resolve the
existing malapportionment.
In February 2015, the motion for judicial review in relation to the re-delineation exercise was filed
by See Chee How and Pauls Baya. Despite the pending judicial review, the Election Commission of
Malaysia opted to proceed with the re-delineation exercise. While the Election Commission suffered
a setback when the high court delivered a judgment in favour of the applicants, the subsequent
appeal was reversed by the Court of Appeal and further appeal was dismissed by the court.
SUHAKAM
In 2015, SUHAKAM increased its engagement with civil society and served as the mediator for
meetings between civil society and government agencies. While not all of such meetings were
fruitful, this effort by SUHAKAM was welcomed and bodes well for the Commission. Unfortunately,
this positive initiative by SUHAKAM was met by disappointment when the Government decided
to cut the 2016 budget for SUHAKAM by 50 per cent, a drastic reduction indeed. This unexpected
blow to SUHAKAM’s finances has dire implications as this National Human Rights Commission may
need to ‘wind up’ their operations at the end of 2016 due to inadequate funds. Will this be a requiem
for human rights defence in Malaysia?
X
Malaysia Human Rights Report 2015
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With the increasing threats of terrorism across the globe, the Malaysian State has introduced several
new legal provisions meant for counter-terrorism. Thus far, all of these laws have provisions that
permit varying degrees of detention without trial. The Prevention of Crime Act 1959 (POCA) has
also been amended to accommodate the crime of terrorism. In essence, the ‘security’ laws in Malaysia
have been excessively strengthened, expanded and consolidated over the last few years to the point
that the Inspector-General of Police, Khalid Abu Bakar has conceded the fact that existing security
laws are already sufficient for safeguarding national security1.
Based on data gathered from the question and answer session in the Parliament sitting in October,
SUARAM’s documentation, media monitoring and press statements by the Royal Malaysian Police,
the number of people detained without trial under the legal provisions of Special Offences (Special
Measures) Act 2012 (SOSMA), Prevention of Terrorism Act 2015 (POTA) and Prevention of Crime
Act 1959 (POCA) is as follows:
Legislation
Number of Cases (2014)
Number of Cases (2015)
SOSMA
31
1102
POTA
-
03
POCA
-
9754 (22 cases of terrorism) 5
Total Cases Known
31
1085
1 Yiswaree Palansamy, ‘IGP says enough security laws, but adding NSC Bill won’t hurt’, the Malay Mail Online, <http://
www.themalaymailonline.com/malaysia
2 Chief Justice, Tun Arifin Zakaria revealed that there are 110 prosecutions under SOSMA in 2015. ‘CJ: 110 SOSMA
cases in 2015’, The Malay Mail Online, <http://www.themalaymailonline.com/malaysia/article/cj-110-sosma-cases-in-2015>
accessed 11th February 2016
3
No detention made under POTA 2015 according to confidential sources; Any detention reportedly made under POTA
is incorrect and refers to detention made under SOSMA or POCA.
4 Detention made from 1st April 2014 to 1st October 2015; New Straits Times Online, ‘Rehabilitation programme
for POCA detainee’, <http://www.nst.com.my/news/2015/10/rehabilitation-programme-poca-detainees> accessed 23rd
November 2015
5 Sinar Harian, ‘Polis tahan 132 individu ‘teribat’ pengganas’ <http://www.sinarharian.com.my/nasional/polis-tahan-132individu-terlibat-pengganas-1.441934>, accessed 23rd November 2015
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* Note: With the current modus operandi of the government and the nature of some of these legislation,
information is difficult to obtain. The numbers reported by SUARAM in 2015 would likely be
significantly lower than the actual number of detentions made under these laws.
While POTA has been in force since 1st September 2015, it is unclear whether this law was used in
2015. All documented arrests for alleged terrorist activities have been made under SOSMA in
conjunction with offences under Chapter VI or Chapter VII of the Penal Code. POCA would then be
invoked if it is deemed necessary by those managing the investigation.
Following the revelations by the Director of the Special Branch during an international conference
in January 2016, there were a total of 157 cases of detention under SOSMA and POTA as of 31st
January 20166. Unfortunately, it is unclear how many were arrested under POTA and how many
were made under SOSMA. It is also unclear whether the arrests included new arrests documented
in 2016. As such, this number is not included in our calculation in the table above.
Security Offences (Special Measures) Act 2012 – SOSMA7
SOSMA was introduced in 2012 following the abolishment of the Internal Security Act 1960. At a
glance, SOSMA can be perceived as a better designed legislation when compared to its predecessor.
In comparison, SOSMA only permits 28 days of detention without trial while the ISA permitted 60
days of detention before 2 years’ extension by the Ministry of Home Affairs. While this may be true,
the actual conditions of detention and other facets of SOSMA render it as draconian (if not even
more so) as its predecessor.
SOSMA itself is not a piece of legislation that defines crimes and provides punishment for acts of
terrorism. SOSMA is a procedural law that operates in a manner similar to the Criminal Procedure
Code. As such, when a person is detained under SOSMA, he or she is technically arrested for crimes
outlined in Chapter VI or Chapter VII of the Penal Code.
Under SOSMA, the Royal Malaysian Police can only prevent the detainee from meeting his or
her family members and deny any access to legal counsel for the first 48 hours. In practice, most
detainees are not made aware of their right to legal counsel when detained under SOSMA. Further,
reports and complaints from families of victims often contain allegations that family visits take place
under close scrutiny with the ‘meeting’ venue filled with a ‘battalion’ of police officers.
The draconian aspect of SOSMA is rather discreet as it permits punitive punishment and detention
without trial due to its ‘no-bail’ policy. Traditionally, the granting of bail is up to the discretion
of court, for cases under SOSMA the courts no longer enjoy this discretion and cannot in theory
provide bail. In practice, this would subject a person to incarceration for months if not years pending
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6 Shahanaaz Habib, ‘Malaysia faces a sustained terrorism threat’, The Star Online, <http://www.thestar.com.my/news/
nation/2016/01/31/malaysia-faces-a-sustained-terrorism-threat/> accessed 11th February 2016
7 It should be noted that the provisions of SOSMA does not include any criminal offences, it is a procedural law that
is applied in place of the Criminal Procedure Code in the event that there is an arrest for offence found under Part VI and
Part VII of the Penal Code. As such, it is noted that the detention made under SOSMA is not necessarily detention without
trial, but can be considered as detention and punishment before sentencing as there can be no bail for those detained under
SOSMA and those detained will be in custody until the completion of all hearings and exhausted all appeals
3
court hearings. As of the time of publication, SOSMA detainee Azmi Jalani has been in Sungai Buloh
prison for the past year pending his hearing in late April 2016.
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In 2015, SUARAM has documented 46 cases (and actively assisted with two cases where the accused
is held under SOSMA). The speculation that 46 cases would only be the tip of the iceberg was
confirmed when the Chief Justice of Malaysia, Tan Sri Arifin mentioned that there were 110 cases
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related to SOSMA heard in court8 in 2015. This number does not include those who remain under
the 28-day detention period prior to prosecution and would not include those who were released at
the conclusion of the 28 day. As such, one would imagine the total number of those incarcerated
to be notably higher.
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The case of Nor Jalani highlights the danger of SOSMA to freedom and liberty of all Malaysian
citizens. Nor Jalani was arrested at an unspecified hotel in Cheras for allegation of crimes under
Chapter VI of the Penal Code. When he was held by the police, he was reportedly beaten by officers
and forced to confess to the alleged crime. When he was brought before the court, he revealed that
he was forced to confess to the crime under duress. Further, according to the police press statement
issued in relation to the arrest of Azmi Jalani, a minor of 14 years of age was also hauled up during
the raid9.
The concerns with regards to the abuse of SOSMA for political reasons was validated with the
detention of Khairuddin Abu Hassan under SOSMA10. Soon after, Khairuddin’s lawyer, Matthias
Chang was likewise detained under SOSMA for attempted sabotage under Section 124K and Section
124L of the Penal Code. Despite early promises made by the Government that SOSMA will never be
used to silence political dissenters and the inclusion of legal safeguards, the detention of Khairuddin
and Matthias Chang showcase the real possibility of political abuse and the readiness of state agencies
to abuse SOSMA for political gains. Fortunately, the High Court of Kuala Lumpur ruled that the
alleged sabotage of financial institution does not fall under the purview of SOSMA and Chapter VI
of the Penal Code and released both Khairuddin and Matthias on bail.
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The detention of Ardit Naim Ferizi (Kosovan citizen) came to the attention of SUARAM in late
September 2015. Ardit was a student of Limkokwing University and was detained when he was
scheduled to fly back to Kosovo on the 15th September 2015. The detention of Ardit is a clear abuse
of the procedure of SOSMA as he had not committed any crimes in Malaysia. From information
gleamed from the Interpol department, Ardit’s detention was made at the request of the United States
government through the Attorney General Chambers. This information was revealed to SUARAM
after Ardit was transferred for detention under the Extradition Act 1992.
When the lawyers appointed by Ardit’s family tried to see him in Sungai Buloh Prison on the morning
of 23rd October 2015, his lawyers were informed that Ardit had been transferred to Kajang Prison
the night before. On the subsequent call to make an appointment at Kajang Prison, his lawyers were
informed that Ardit was indeed in Kajang. However, on the day of the appointment on the 27th
October 2015, his lawyers were informed that Ardit had actually never left Sungai Buloh Prison.
8 ‘CJ: 110 SOSMA cases in 2015’, The Malay Mail Online, <http://www.themalaymailonline.com/malaysia/article/cj-110sosma-cases-in-2015> accessed 1 March 2016
9 ‘Kenyataan Akhbar Ketua Polis Negara: Tangkapan Anasir Pengganas Yang Merancang Untuk Melancarkan Serangan
Di Malaysia’, PDRM, <http://www.rmp.gov.my/siaran-media/2015/04/07/kenyataan-akhbar-ketua-polis-negara-tangkapananasir-pengganas-yang-merancang-untuk-melancarkan-serangan-di-malaysia> accessed 27th November 2015
10 Koh Jun Lin, ‘Khairuddin gets full 28-days detention under Sosma’, MalaysiaKini,<http://www.malaysiakini.com/
news/313393>, accessed 23rd November 2015
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This deplorable state of affairs persisted until Ardit’s parents managed to secure a visit on evening
of 27th October 2015.
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On the 23rd November 2015, Ardit’s lawyers were informed that he had been brought to the Kuala
Lumpur Session Court on the 16th November 2015 and was supposedly given a letter to sign by
the FBI. Ardit’s lawyer were not informed of these proceedings and Ardit had not been given any
independent legal counsel (the Deputy Public Prosecutor explained the potential consequences of
his decision at that juncture) and representation during the signing of the document.
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As of 2nd December 2015, Ardit’s extradition hearing had concluded and he would be extradited
to the United States in the near future. Despite the detention made under SOSMA, the extradition
hearing makes no mention of this and merely stated that he was remanded under the Extradition
Act on the 12th October 2015. The letter signed by Ardit was a waiver regarding his rights under
the Extradition Act 1992.
This turn of events sets a dangerous precedent as it means that the Malaysian Government can
detain a person under SOSMA pending the official extradition request by a foreign country. Further,
the complicity of a foreign state in the whole matter put into question the independence of the
Malaysian Government in the use of SOSMA and the danger of SOSMA being utilized indirectly by
a foreign power.
List of Detainees under SOSMA11:
1. Yazid Sufaat – detained on 7th February 2013
2. Hilmi Hasim – detained on 7th February 2013
3. Khairil Mi – detained on 28th April 2014
4. Nazhatul Zhima Sahak – detained on 13th October 2014
5. Amir Azlan Zainudin – detained on 13th October 2014
6. Nor Azmi Jalani (arrested with 16 others, was charged with 5 other individuals; 2 have plead guilty122) – detained on 5th April 2015
7. Azlee Md Salleh – detained on 19th August 2015
8. Ahmad Kamil Ghazali – detained on 19th August 201513
9. Mohd Azidi Said – detained on 19th August 201514
11 Detention documented by SUARAM – Updated 31st December 2015
12 S. Tamarai Chelvi, ‘Father and son jailed for promoting terrorists activity’, The Sun Daily, <http://www.themalaymailonline.
com/malaysia/article/false-whatsapp-message-on-floods-lands-couple-in-trouble> 27 November 2015
13 ‘X-ray Technician, Interior Designer charged with possession of Islamic State-related materials’, the Malay Mail Online,
<http://www.themalaymailonline.com/malaysia/article/x-ray-technician-interior-designer-charged-with-possession-ofislamic-state> accessed 30th November 2015
14 Ibid 12
15 Farik Zolkepli, ‘Three arrested over Jalan Alor threat’, the Star Online, <https://www.google.com/webhp?sourceid=chromeinstant&ion=1&espv=2&ie=UTF-8#q=3%20detained%20in%20relation%20to%20jalan%20alor%20threat>
27th
November 2015
16 ‘Civil servants among 8 arrested over links with terror groups’, the Malaysian Insider, <http://www.themalaysianinsider.
com/malaysia/article/civil-servants-among-8-arrested-over-links-with-terror-groups> accessed 23rd November 2015
17 Bernama, ‘Five men arrested on suspicion of involvement in militant groups – IGP’, Astro Awani, <http://english.
astroawani.com/malaysia-news/five-men-arrested-suspicion-involvement-militant-groups-igp-81128>
accessed
23rd
November 2015
5
10. Ardit Naim Ferizi – detained on15th September 2015
11. Khairuddin Abu Hassan – detained on 18th September 2015
12. Matthias Chang – detained on 8th October 2015
13. Syrian, Malaysian and Indonesia arrested for terror alert in Jalan Alor15
14. Eight individuals arrested for suspected terrorism links16
15. Five individuals arrested on suspicion of involvement with militant groups17
16. Mohd Abu Haliff Shah Abu Bakar – detained on 12th November 201518
17. Five individuals detained for alleged participation in terrorism with two foreign nationals deported – detained between 17th November to 1st December 201519
In a forum organized by the Bar Council of Malaysia titled “Forum on SOSMA – Wolf in Sheep’s
clothing?” the former attorney general Tan Sri Abdul Gani Patail described SOSMA as a well drafted
legal provision with in-depth and thorough safeguards to prevent abuse. If Abdul Gani Patail’s claim
is indeed true and accurate, it is curious why there has been documented violations of human rights
in relation to SOSMA in recent months. Further, it is curious that if SOSMA is as ‘well designed’ as
described, why the Government of Malaysia thinks that it is necessary for POTA and POCA to be
used alongside SOSMA against security threats in Malaysia.
It should also be noted that during the International Conference on the De-Radicalization and
Countering Violent Extremism in January 2016, the director for the Special Branch, Datuk Seri
Mohamad Fuzi Harun revealed that “almost all” ex-SOSMA detainees and their families were still
under police monitoring. The director of Special Branch further claimed that “the human rights
people will attack us and ask us ‘Why do you still continue to monitor these people?’”20.
Fol
Pre
tha
ord
or d
Prio
age
sess
bee
of t
wer
rele
day
In e
var
and
mo
pro
the
tha
am
Un
det
PO
terr
ind
Prevention of Crime (Amendment and Extension) Act 1959 – POCA
The Prevention of Crime Act 1959 was initially enacted to control and prevent organized crime
by targeting ‘criminals, members of secret societies, terrorists and other undesirable persons’ in
Malaysia. It grants the Royal Malaysian Police power to arrest and detain an individual based on the
ambiguous provisions under POCA without trial for a period of up to 60 days. These 60 days can
be broken down into the preliminary arrest for 24 hours, an extension of 21 days with a statement
in writing signed by a police officer not below the rank of Inspector21 and a further extension
of 38 days with a statement in writing signed by a police officer not below the rank of Assistant
Superintendent22.
18 Sylvia Looi, ‘Army Commando Charged with Possession of IS t-shirt’, New Straits Times Online, <http://www.nst.com.
my/news/2015/12/114838/army-commando-charged-possession-t-shirt> accessed 4th December 2015
19 Royal Malaysian Police, ‘Siaran Media: Tangkapan Lima Suspek Yang Terlibat Dalam Aktiviti Keganasan’, <http://rmp.
gov.my/siaran-media/2015/12/05/siaran-media-tangkapan-lima-suspek-yang-terlibat-dalam-aktiviti-keganasan>
accessed
9th March 2016
nation/2016/01/31/malaysia-faces-a-sustained-terrorism-threat/> accessed 11th February 2016
21 Section 4(1)(a) of POCA
22 Section 4(2)(a)(ii) of POCA
6
23
24
new
als ep’s
ted
aim
hts
’ as
be
and
Seri
still
hts
Following the 60-day detention period, the detainee would have his or her case heard before the
Prevention of Crime Board which has the power to sentence the detainee for a period of not more
than two years and may extend it if they find that further detention is necessary to protect public
order, public security or prevention of crime. The board also has the option to issue restraining order
or discharge an individual23.
Prior to 2016, there was little to no information regarding POCA provided for by any enforcement
agencies. The only information that was made public in 2015 was during question and answer
session in Parliament when the deputy home minister, Masir Anak Kujat disclosed that there had
been 975 arrests and investigations under POCA from 2nd April 2014 to 1st October 2015. Out
of these 975 arrests, 143 were to undergo detention; 480 remained under police surveillance; 68
were to be monitored through electronic monitoring; 28 were supposedly charged in court; 131
released after investigations while 193 remain under investigations (presumably still under the 60
days’ detention period).
In early 2016, the Inspector-General of Police revealed that the police had arrested 808 people for
various offences under POCA. Of the 808 mentioned, 188 had been subjected to detention order
and 403 to restraining order. Of the 403 subjected to restraining order, 257 were under electronic
monitoring24. The fate of those not mentioned was not revealed. It is noted that the information
provided by the Inspector-General of Police does not tally with the numbers provided earlier by
the Deputy Home Minister in Parliament in 2015. This discrepancy could be attributed to the fact
that the numbers provided by the Deputy Home Minister may include investigations that did not
amount to arrests and/or detention.
Unfortunately, the circumstances surrounding individual detentions and the reasons behind their
detentions are often shrouded in secrecy. In cases in which SOSMA is ill suited or inapplicable,
POCA has been the chosen tool of the Royal Malaysian Police in arresting and detaining suspected
terrorists in Malaysia. According to the statement by Deputy Prime Minister Ahmad Zahid, 22
individuals with suspected involvement with the Islamic state are currently held under POCA25.
me
’ in
the
can
ent
ion
ant
om.
mp.
ssed
ews/
23 Section 15 of POCA
24 ‘Over 800 held under Prevention of Crime Act in 2015, says IGP’, The Rakyat Post, <http://www.therakyatpost.com/
news/2016/01/05/over-800-held-under-prevention-of-crime-act-in-2015-says-igp/ > accessed 22nd March 2016
7
In essence, POCA stands as an independent criminal justice system that runs parallel to the existing
criminal justice system. As an example, if an individual was initially arrested for suspicion of being
a member of an organized criminal group, the police have the option to conduct investigations and
pass the case to the prosecution for charges under Section 130V(1) of the Penal Code. Alternatively,
the police have the option to bypass the traditional legal procedure and file for an extended remand
under POCA and pursue the case through the use of POCA as opposed to Penal Code.
Dan
In the light of the fact that crimes are clearly defined and punishments are provided for in the Penal
Code, it is difficult to justify why POCA is necessary for crime prevention. While the justification
that POCA may be necessary in combatting internationally recognized crimes that have not been
incorporated to the Penal Code, the reality of the situation is that POCA is not used for these
‘exceptional’ circumstances but instead used against alleged criminals that can be charged under the
Penal Code.
Afte
for
yea
on
dec
Prevention of Terrorism Act 2015 – POTA
Despite the broad ambit of SOSMA, it was reported that the Royal Malaysian Police and the Malaysian
government had made arrests under POTA. According to a statement made in April 2015, there
were 107 individuals detained under POTA26. However, from SUARAM’s sources, we challenge these
official figures for detention under POTA. We maintain that the arrests were actually made under
SOSMA and not POTA as POTA was not in force at the time of reporting.
For the most part, the provisions of POTA resemble those of POCA. Under POTA, individuals
detained can be remanded for 21 days after the initial 24 hours’ detention with a statement in
writing by a police officer not below the rank of inspector. This can again be further extended for
an additional 38 days with a statement in writing by the Public Prosecutor stating his opinion that
sufficient evidence exists alongside a written statement from a police officer not below the rank of
Assistant Superintendent stating the intent to hold an inquiry into the case at hand27.
After this initial remand period of 60 days, the detainee would then be heard before the Prevention
of Terrorism Board where an inquiry officer would produce the evidence against the detainee. If the
Board is satisfied with the evidence submitted, the Board may pass a sentence of 2 years’ detention
or impose a restriction order for no more than 5 years. Failure to adhere to the restriction order
can be punished with imprisonment of up to 10 years. The board also has the power to extend the
detention period at any time before the expiry of the initial detention order28. Any decision made by
the Board is not open to judicial review under Section 19(1) of POTA.
While no arrest and detention under POTA was documented in 2015, statements made by the Royal
Malaysian Police in 2016 hints that there may already be several cases under POTA29.
25 Nawar Firdaws, ‘Home Minister sidesteps question on abuse of SOSMA’, the Rakyat Posts, <http://www.therakyatpost.
com/news/2015/10/19/home-minister-sidesteps-question-on-abuse-of-sosma/> accessed 23rd November 2015
26 Malay Mail Online, ‘Zahid: Militants to be fitted with electronic monitors after release’, <http://www.themalaymailonline.
com/malaysia/article/zahid-militants-to-be-fitted-with-electronic-monitors-after-release> accessed 23rd November 2015
27 Section 4(2)(a)(ii) of POCA
28 Section 19A(1) of POCA
8
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31
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32
acce
ing
ing
and
ely,
and
Dangerous Drugs (Special Preventive Measures) Act 1985 – DDA
nal
ion
een
ese
the
After this initial remand period, the Minister in charge of internal security, effectively the Minister
for Home Affairs has the power to put the detainee under further detention for no more than two
years and can extend the detention for a further 2 years if deemed necessary with no upper limit
on the overall detention period. Similar to POCA and POTA, there can be no judicial review of the
decision made by the Minister.
ian
here
ese
der
uals
t in
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hat
k of
ion
the
ion
der
the
by
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post.
line.
DDA operates in a manner slightly more draconian than its peers. Rather than a 21-day plus 38-day
extension combination, Section 3(1) and Section 3(2) of the DDA provide any police officer with
powers to arrest an individual for up to 60 days without warrant if the police officer believes that
there are grounds to justify his/her detention under DDA.
Very little information is made public with regards to arrests and detention made under DDA.
Without any official data and numbers provided, one can only speculate about the numbers of
arrests and detention made. A news report in September states that in Perak alone, there have
been 1452 arrests made in relation to drug trafficking in 2015. Considering the large number of
arrests made30, it would not be wrong to presume that a portion of these individuals may have been
subjected to the DDA. If so, one would imagine the numbers of people detained under the DDA to
be in the hundreds.
National Security Council Bill 2015 (NSC) was a bill that was rushed through the third reading
in Parliament during the final Parliament session in 201531. When the bill was heard in the Senate,
some Barisan Nasional-aligned senators raised concerns regarding the NSC Bill. Unfortunately, their
disagreement with the bill only went as far as the debate. All of the Barisan Nasional-aligned senators
voted in favour of the NSC Bill and the bill was passed on the 22nd December 2015.
The NSC Bill effectively allows the Prime Minister to declare a state of emergency on the advice of
the National Security Council which consists of the Deputy Prime Minister, the Minister of Defence,
the Minister of Home Affairs, the Inspector-General of Police and an unspecified General of the
Armed Forces.
In the declared ‘security areas’, security forces would be given immense powers and discretion to
arrest, search, seize property, declare curfew and use lethal force against perceived threats if they
deem necessary. Any ‘negligence’ or excessive use of force would not be subjected to any form of
prosecution, inquiry or inquests32. While such wide-ranging powers are touted to be necessary to protect ‘national security’, it is not
spelled out what sort of ‘peril’ the country is supposed to be facing to justify such draconian powers
granted by the Bill. Under the Constitution, any declaration of state of Emergency has to be justified
and signed by the Yang di-Pertuan Agung.
30 Ista Kyra Sharmugam, ‘Husband, wife arrested for drug trafficking’, The Malaysian Insider, < http://www.
themalaysianinsider.com/citynews/ipoh/article/husband-wife-arrested-for-drug-trafficking/husband-wife-arrested-for-drugtrafficking> 27th November 2015
31 ‘Withdraw repressive, frightening NSC Bill, human rights watchdog tells Putrajaya’, The Malaysian Insider, <http://
www.themalaysianinsider.com/malaysia/article/withdraw-repressive-frightening-nsc-bill-human-rights-watchdog-tellsputraj> accessed 3rd December 2015
32 ‘New Security Council Bill will only empower PM’, MalaysiaKini, <https://www.malaysiakini.com/news/321839>
accessed 3rd December 2015
9
Even during the ‘Konfrontasi’ with Indonesia in the sixties, it was not necessary for Malaysia to
adopt such extreme provisions in order to safeguard the security of the nation. Since the passing of the NSC Bill, the supporters of the NSC Bill have attempted to push forward
the view that the Act is necessary in order to safeguard national security and interest in the absence
of the Emergency Ordinance and Internal Security Act 1960 that was abolished in the recent years.
Some of the argument includes the notion that NSC Act is necessary for the prevention of terrorism33.
PO
Unfortunately, this narrow interpretation fails to take into account the existing legislation (however
draconian they may be) and the power conferred to the Royal Malaysian Police in preventing
terrorism. Between SOSMA, POCA, POTA and other police powers granted under the Criminal
Procedure Code, the Royal Malaysian Police have ample powers and options with regard to powers
of arrest in order to prevent a crime. The claim that new laws are necessary in order for security
forces to prevent terrorism is lame and illogical.
PO
Reflections and Recommendations
While any efforts aimed at preventing terrorism in Malaysia by the Royal Malaysia Police is certainly
laudable and praise worthy, there are many concerns of injustice, use of torture and abuse of power
that still remain with regard to the usage of laws that permit detention without trial. In more ways
than one, the ‘standard operating procedure’ of these laws highly resemble its predecessors such as
the ISA and the Emergency (Public Order and Crime Prevention) Ordinance 1969. These similarities
only aggravate the concern we have for the treatment of detainees and the possibility of injustice and
abuse under the current laws.
While SOSMA has not been as broadly used against political opponents and critics as the ISA, the
accounts of torture, humiliation and other cruel and inhuman treatment suffered by those detained
under SOSMA are identical to the accounts of former ISA detainees. With the clandestine manner of
detention and operational methods that violate human rights, it is difficult to justify SOSMA as the
tool for ‘protecting the nation’ as the Government of Malaysia has tried to portray it.
Taking all these into consideration, SUARAM reiterates the call for all laws that permit detention
without trial to be abolished or amended immediately as there can be no justification for laws that
function in a manner that disregard the notion of justice and undermine the right to fair trial. On
this note, SUARAM recommends the following:
SOSMA:
1. Amendment to curtail the powers given to the Royal Malaysian Police with regard to the
preliminary 28-days detention. This clause must be abolished or at the very least amended
in a manner that would delegate the decision-making process for the 28-days detention
period to the High Courts of Malaysia.
2. Increase the use of electronic monitoring against suspects and limit the use of the 28-days
detention to exceptional circumstances and subjected to the proposed amendment above.
33 Faisal Asyraf and Zahratulhayat Mat Arif, ‘Take NSC Act in Context’, New Straits Times Online, <http://www.nst.com.
my/news/2016/02/126684/take-nsc-act-context?m=1> accessed 11th February 2016
10
DD
a to
3. Amendment to the ‘no bail’ policy inherent in SOSMA and grant discretion to the High
Courts of Malaysia in regards to the possibility of bail.
ard
nce
ars.
m33.
POTA:
ver
ing
nal
wers
rity
POCA:
nly
wer
ays
h as
ties
and
1. Abolish POTA as it is unnecessary in light of the scope and usage of SOSMA as reflected in
the cases documented in 2015.
1. Abolish POCA as there is no need for a law that provides a parallel criminal justice system
in order to combat crimes that pre-exist the Penal Code;
2. If there exists a need for ‘exceptional’ or new offences, amendments to the Penal Code
should be made;
3. If there is a genuine need for the draconian measures under POCA, amendments must
be made to give primary to the Penal Code and POCA can only be used in limited
circumstances to address internationally recognized crimes that have not been incorporated
into the Penal Code.
DDA:
1. Abolish DDA as there can be no justification for any laws that permit detention without
trial;
2. Any preventive detention for any designated period if at all permissible should be at the
discretion of the High Courts of Malaysia.
the
ned
r of
the
ion
hat
On
the
ded
ion
ays
ve.
om.
11
13
Ik
Og
R.
POLICE ABUSE OF POWER
Abuse of power by the Royal Malaysian Police is by no means a new phenomenon in Malaysia. The
practice of ‘tukar gari’ in which an individual is repeatedly rearrested for the same offence in order
to prolong a detention and the excessive use of force during arrests and during interrogation have
tarnished the reputation of the Royal Malaysian Police.
Despite the existence of various Standard Operating Procedures and other procedural laws that the
police officers must comply with, there have been documented cases of police officers intimidating
witnesses and eliminating evidence. With lack of criminal prosecution and notable sanctions against
police officers for abusing their powers, irresponsible police officers in the Royal Malaysian Police
effectively have a license to act with impunity.
Des
cus
For
the
If t
con
and
pla
Ref
his
tak
safe
Ye
20
20
20
Death in Custody
20
As of November 2015, SUARAM documented 11 cases of death in custody. These 11 cases of death
in custody include:
20
To
Name
Detention Centre
Date of Death
Cause of Death
R Sivan
Ayer Molek Lockup
9th January 2015
Medical
Phil Pott Fred
Hospital Pulau
Penang
18th January 2015
Medical
Fahruz
Hospital Pulau
Penang
22nd January 2015
Medical
20
Sharam Hassan
Bayan Baru Lockup
26th January 2015
Medical
20
K. Elumalai
Hospital Sg. Bakap
18th February 2015
Unknown
Mohd Zarafi Mohd Yunus Ipoh Central Lockup
13th March 2015
Sudden Death
Liang Aiting
Sibu Hospital
28th March 2015
Medical
Shashikumar Selvam
Balai Polis Kluang
22nd May 2015
Suicide
Zulfakry Ibrahim
Pusat Tahanan
Sementara Sandakan
9th June 2015
Medical
14
Ye
20
20
20
To
1
mala
2
arre
The
der
ave
the
ing
nst
lice
ath
Police Abuse of Power
Ikechukwu Bright
Ogundu
Balai Polis Mutiara
Damansara
23rd September 2015
Injury prior to
arrests
R. Thanagaraja
Balai Polis Dang
Wangi
18th November 2015
Medical
Despite the worrying development observed in January 2015 when a series of deaths in police
custody took place in Penang, there has not been any investigation report released by the Police
Force. Despite promises of investigations1, no conclusive findings and answers have been given to
the families of the deceased and the general public.
If these cases of Death in Custody were not caused by foul play, there is a clear trend of health
conditions causing the death of detainees. If so, concrete steps must be taken to ensure that detainees
and prisoners are given adequate health care with necessary standard operating procedures set in
place to ensure that prisoners suffering from any health problems are given the necessary attention.
Referring to the case of Thanagaraja who was suffering from a chronic health condition, it is within
his rights that he be provided with health checks to avoid any mishaps during detention. Failure to
take adequate steps to prevent such mishaps is the responsibility of the Royal Malaysian Police to
safeguard the detainees’ right to life.
Deaths in Police Custody from 2011 to 2015 according to cause of death:
Year
Medical
Suicide
Accident
Blunt force
(assault)
Unknown
Total
2011
3
2
1
-
11
17
2012
3
1
1
-
15
19
2013
9
1
-
1
2
13
2014
10
1
-
1
2
14
2015
7
1
-
1
2
11
Total
32
6
2
3
32
74
2
Deaths in Police Custody from 2011 to 2015 according to ethnicity:
Year
Malay
Chinese
Indian
Others
Foreigners Total
2011
11
3
1
-
2
17
2012
4
4
6
2
3
19
2013
1
3
5
-
4
13
2014
3
3
8
-
-
14
2015
4
-
4
-
3
11
Total
23
13
24
2
12
74
1 Loghun Kumaran, ‘Penang cops probe death in custody’, the Malay Mail Online, <http://www.themalaymailonline.com/
malaysia/article/penang-cops-probe-death-in-custody> accessed 26th November 2015
2 Death was not caused by Royal Malaysian Police. Victim succumbed to injuries caused by vigilante before official police
arrest
15
1. R. Sivan – Deceased was remanded under Drug Dependant Act 1983. He had complained of
stomach pains on 7th January 2015 and received outpatient treatment. Deceased suffered from
stomach pain again on the 8th January 2015 but was declared dead when brought to hospital
2. Phil Phot Fred – Deceased was remanded for drug hearing and died at Penang Hospital after he
was admitted due to ulcer on his right leg.
3. Fahruz – Died in Penang Hospital due to lung infection.
4. Sharam Hassan – Died of perforated duodenal ulcer with septic shock.6
5. K. Elumalai – Cause of death unknown; Elumalai died 20 minutes after reaching Sungai Bakap
Hospital.7
6. Mohd Zarafi Mohd Yunus – Deceased was sentenced and was back in lock-up following his
sentencing at court. He collapsed at Ipoh Central Police Station and was given immediate
medical attention but died at Raja Permaisuri Bainun Hospital the following day.8
7. Liang Aiting – Deceased with heart condition was arrested to assist with the investigation of a
cheating case under Section 420 of the Penal Code. She fainted during custody and was rushed
to hospital and was declared dead at 9pm.9
8. Shashikumar Selvam – Deceased allegedly hanged himself in prison. He had been sentenced to
10 years’ imprisonment for stealing rice and sardines.
9. Zulfakry Ibrahim – Died after being transferred to temporary detention centre pending release
(deceased did not have personal identification at that juncture); detention centre officer claimed
that the deceased had fallen down the stairs while the hospital report showed he had a clogged
heart.10
10. Ikechukwu Bright Ogund – Deceased was allegedly attempting to rape a lady in a lift when he
was stopped by members of the public. He was allegedly beaten by a mob and died in the police
station when he was being identified.11
11. R. Thanagaraja – Deceased was found dead in lock-up in Dang Wangi and examination by
doctors revealed that he had suffered from heart disease and chronic diabetes.12
3 ‘Johor man first custodial death of 2015’, MalaysiaKini, <https://www.malaysiakini.com/news/286286> accessed 9th
March 2015
4 Edmund Lee, ‘Suspect awaiting trial dies in hospital’, the Sun Daily, <http://www.thesundaily.my/news/1299589>
accessed 9th March 2016
5 ‘Four Death in Custody in Penang since January’, PortalKini.net, <http://www.portalkini.net/2015/03/02/four-deathsin-custody-in-penang-since-january/> accessed 9th March 2016
6Ibid
7Ibid
8 Loghun Kumaran, ‘Penang cops probe death in custody’, The Malay Mail Online, <http://www.themalaymailonline.
com/malaysia/article/penang-cops-probe-death-in-custody> accessed 9th March 2016
9 ‘Chinese National with heart condition dies in hospital’, Borneo Post Online, <http://www.theborneopost.
com/2015/03/29/chinese-national-with-heart-condition-dies-in-hospital/> accessed 9th March 2016
10 ‘Wife waits for three years for jailed husband, but…’, MalaysiaKini, <https://www.malaysiakini.com/news/302409>
1 ‘Lelaki Nigeria maut dipukul cuba cabul wanita’, Utusan Online, <http://www.utusan.com.my/berita/jenayah/lelakinigeria-maut-dipukul-cuba-cabul-wanita-1.140022> accessed 9th March 2016
12 ‘Death in custody: Theft suspect found dead in Dang Wangi lockup’, Malay mail Online, <http://www.themalaymailonline.
com/malaysia/article/death-in-custody-theft-suspect-found-dead-in-dang-wangi-lockup> accessed 9th March 2016
16
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ase
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9th
89>
ths-
line.
The Use of Torture
The complaint against the Royal Malaysian Police for the use of torture is nothing new. The deaths
of Kugan, Dharmendran and many others are a testament to this ‘hidden’ injustice within the
Malaysian criminal justice system. As Malaysia has no legal provisions that clearly outlines torture
as a crime and no civil law providing for specific reparation for victims of torture, justice is often
obtained through indirect means.
In the case of Kugan Ananthan in which the victim of torture died during detention, the constable
who was found guilty of causing his death was eventually sentenced to prison for three years for
causing grievous hurt . While the punishment meted may be interpreted as some degree of justice,
the punishment could be seen as relatively minor for the repugnant crime committed against the
victim and his family. Further, the absence of criminal liability for others who may be complicit in
Kugan’s death reveals the gap in the current legal provisions and highlights the need for reforms that
would bring into account all those who have permitted and sanctioned the use of torture.
With regards to the civil remedies that may be available to the victims and their family, the civil suit
filed by the family of Kugan has achieved relatively more success. In Kugan’s case, the family filed
their claims under false imprisonment, public misfeasance and exemplary damage and won the suit.
While exemplary damages is not usually awarded for such cases, the Court of Appeal ruled that
exemplary damages were applicable and granted damages to Kugan’s family. While such deterrence
is much welcomed in the Malaysia, the damage meted out is relatively minor and has clearly failed
to deter future incidents.
On top of the limitation in obtaining justice for victims of torture, it is difficult for anyone to ascertain
the depth to which the use of torture has permeated the criminal justice system in Malaysia. Between
the lack of transparency and the lack of public accountability around the enforcement agency’s
standard operating procedure, it is difficult but not impossible to ascertain when or why torture is
used against specific detainees and not against others. Further, the lack of transparency also makes
it impossible to determine whether the use of torture is indirectly or directly ‘condoned’ by the
operational guidelines set for each enforcement agencies.
While SUARAM cannot provide any conclusive data on the scale of the use of torture in Malaysia,
SUARAM has received countless reports of torture over the years by those detained by the Royal
Malaysian Police. In 2015, a group of SOSMA detainees came forward and reported the use of torture
against them during their 28-day detention period14. Their report shows a trend and predisposition
for enforcement agencies to use torture against those detained for alleged terrorist activities.
At the point of the compilation of this report, SUARAM has submitted these allegations of torture
to relevant agencies that have the power to investigate into the use of torture. SUHAKAM and EAIC
are in the process of interviewing the alleged victims of torture and conducting investigations into
the matter.
post.
09>
aki-
line.
13 ‘Ex-cop in Kugan custodial death jailed three years’, The Malay Mail Online, <http://www.themalaymailonline.com/
malaysia/article/ex-cop-in-kugan-custodial-death-jailed-three-years> accessed 29th February 2016
14 In order to protect and safeguard the interest and wellbeing of those remained under detention. No names will be
provided and only excerpts from their reports would be provided at the end of this chapter.
17
Police Actions against Public Gatherings and Rallies
SU
In 2015, the Royal Malaysian Police arrested organizers and participants of various gatherings and
rallies (details of these events and incidents can be found in Chapter 4). While the Royal Malaysian
The
wer
reg
jun
sho
can be credited for the restraint shown during some gatherings, the Royal Malaysian Police have also
shown complete disregard for human rights in other gatherings.
On the negative side, Shukri Razab and Adam Adli were arrested after they were summoned to IPD
Dang Wangi for a ‘discussion’ with the police. Before attending the session, they were assured that
they would not be arrested and that the police was only interesting in talking to them about the
planned rally. However, after concluding the discussion, Shukri Razab was arrested upon leaving the
police station. Soon after, Adam Adli was also arrested.
On a positive note, the police showed great restraint throughout the Bersih 4.0 rally. Unfortunately,
this positive change in police attitude towards the peaceful assembly was tarnished by the subsequent
questioning of Bersih 4.0 organizers despite the absence of any offence committed.
Enforcement Agency Integrity Commission (EAIC)
As of October 2015, the EAIC had concluded their hearing and investigation into the death of
Syed Mohd Azlan Bin Syed Mohamed Nur15. Their report concluded that blunt force trauma to the
victim’s chest had been used, causing his death. The EAIC also mentioned attempts by the police
officers to alter and suppress the evidence relating to the case.
In the light of the conclusion drawn from the investigations, EAIC has put forward several
recommendations that may well assist in reducing future recurrence of such tragedies. Unfortunately,
it remains to be seen whether the recommendations put forward to the Royal Malaysian Police, the
Attorney General’s Chamber and the Government of Malaysia will be accepted and acted upon.
As of November 2015, the hearing on the N. Dharmendran case is still on-going and we hope it
will provide us with full and adequate information regarding the death of Dharmendran in police
custody.
While the performance of EAIC in pursuing its investigation into deaths in police custody is
welcomed and appreciated, it is unfortunate that the EAIC has not initiated any investigations into
possible abuse of powers or failure to adhere to standard regulations by the police force in other
controversial areas such as the detention and treatment of detainees under SOSMA.
Malaysian civil society reaffirms their call for the establishment of the Independent Police
Complaints and Misconduct Commission (IPCMC) that was proposed by the Royal Commission on
the Malaysian Police in 2005. We maintain that only such an independent body can ensure justice
for the victims of deaths in police custody and other instances of police abuse of power.
15 ‘Laporan Suruhanjaya mengenai siasatan ke atas kes kematiaan Syed Mohd Azlan Bin Syed Mohamed Nur (KP. No:
891026-01-5545) Semasa di Dalam Tahanan Polis di Kota Tinggi, Johor pada 3 November 2014’, EAIC, <http://www.eaic.
gov.my/sites/default/files/laporan_syed.pdf> accessed 23rd November 2015
18
Wit
Ma
the
Un
(UN
alon
and
ian
also
PD
hat
the
the
ely,
ent
SUARAM’s Recommendations
The number of deaths under police custody in 2015 clearly shows that institutional weaknesses that
were raised in the past have not been adequately addressed. Without substantive reform in terms of
regulations and police mentality, issues pertaining to death in custody would likely persist. At this
juncture, recommendations by EAIC must be taken into account and reforms suggested by EAIC
should be adopted as soon as possible.
With regard to the use of torture, any effective reform to expunge the use of torture from the
Malaysian criminal justice system would likely take years to be implemented. It is high time that
the Government of Malaysia takes the first step to remedy this situation by signing and ratifying the
United Nations Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment
(UNCAT). Legal provisions criminalizing the use of torture must also be enacted immediately
alongside provisions for civil remedy for victims of torture.
h of
the
lice
eral
ely,
the
e it
lice
y is
nto
her
lice
on
tice
No:
eaic.
19
20
21
The
In
Ch
FREEDOM OF EXPRESSION
Co
To
Freedom of expression was the first victim of the Malaysian state’s crackdown on critics and
dissidents in 2015. The series of harsh measures and harassment that followed the revelations of the
1MDB financial scandal and the depositing of RM2.6billion in the Prime Minister’s private account
were gross violations of human rights.
Article 10 of the Federal Constitution of Malaysia provides for the right to freedom of expression.
While there are inherent limitations to the enjoyment of this right, the Malaysian state has curtailed
this right and punished those who choose to exercise their right to freedom of expression.
The Sedition Act 1948
In April 2015, the amendment to the Sedition Act 1948 was tabled in the Parliament. The decision
to amend and strengthen the Sedition Act runs contrary to the promise made by the Prime Minister
to repeal the Act in 20121. The amendment also runs afoul of the promise made by the Government
of Malaysia in the Universal Periodic Review 2013 in which the Government of Malaysia agreed to
accept in principle the abolishment of the Sedition Act 1948.
Fol
the
cha
inv
the
As of publication, the amendment has yet to be gazetted. The amendment includes:
The
163
Sed
und
1. Minimum 3 years’ imprisonment and maximum 7 years’ (up from 5 years’) imprisonment
for repeat offenders and addition of aggravated sedition that may carry the penalty of 5-20
years’ imprisonment;
2. The addition of religion as a ground for the charge of sedition as well as calling for the
removal of the judiciary and government as chargeable offences under sedition;
3. Extension of the Sedition Act to cover electronic media possibly including private memos.
1 The Malaysian Insider, ‘Najib: Sedition Act to be repealed ‘, <http://www.themalaysianinsider.com/malaysia/article/
najib-sedition-act-to-be-repealed> accessed 23rd November 2015
22
2
3
4
Joho
5
6
www
rum
7
Rum
show
8
kual
The following table shows the use of the Sedition Act 19482 in the last three years:
2013
2014
2015
Investigated
10
29
206
Charged
7
12
114
Convicted
1
3
35
Total
18
44
220
3
and
the
unt
on.
led
ion
ster
ent
d to
ent
-20
the
mos.
icle/
Following the submission of the memorandum by Gerakan Hapuskan Akta Hasutan (GHAH),
there was a notable decline in sedition charges made. Even though there were significantly fewer
charges of sedition, there were still an extraordinary number of individuals and groups called in for
investigation under the Sedition Act. However, this positive development was quickly negated by
the incident that took place at Rumah Api.
The arrests6 at Rumah Api during the gig7 on August 28th included an unprecedented arrest of
163 individuals including expatriates. Those arrested were remanded and investigated under the
Sedition Act8. It is fortunate that the individuals arrested were remanded without excessive and
undue physical harassment by the police force. One of the arrested was an expatriate from Indonesia
2 Detailed records of those prosecuted under the Sedition Act 1948 can be obtained from SUARAM
3 Arrests made in relation to the Sedition Act 1948 is excluded from this number
4 Charges against Ali Tinju have been dropped; Hassan Karim was charged once in Kuala Lumpur and another round in
Johor Bahru thus recorded as two incidence
5 Hishamuddin Rais was convicted on 9th January 2015 but his case was first heard in 2013
6 The Malay Mail Online, ‘Ahead of Bersih 4, dozens nabbed in raid on independent punk venue Rumah Api’, <http://
www.themalaymailonline.com/malaysia/article/ahead-of-bersih-4-dozens-nabbed-in-raid-against-independent-punk-venueruma> accessed 23rd November 2015
7 Event Page for Gig @ Rumah Api; Joe Kid, ‘Friday, 28th August 2015 – Party Tonight, Revolution Tomorrow Show @
Rumah Api’, <http://carburetordung.kerbau.com/2015/08/20/friday-28th-august-2015-party-tonight-revolution-tomorrowshow-rumah-api/> accessed 23rd November 2015
8 Anarchist News, ‘Kuala Lumpur, Police raid anarchist space Rumah Api (Malaysia), <https://anarchistnews.org/content/
kuala-lumpur-police-raid-anarchist-space-rumah-api-malaysia> accessed 23rd November 2015
23
who was detained for a longer period due to some confusion over his immigration records.
Following the mass arrests at Rumah Api, the Sedition Act 1948 was not invoked for some time
after. This period of tranquillity was broken by the charges against Khalid Ismath, MP for Subang
Sivarasa Rasiah in October and Lawrence Jeyaraj9, Johor PKR Deputy Chief Hassan Karim and MP
for Tanjong, Ng Wei Aik in November.
The use of Sedition Act 1948 in 2015 can be interpreted as an attempt to intimidate the public and a
form of ‘soft-control’ as opposed to a punitive measure. For the most part, the arrests and detentions
were brief with no excessive use of detention as a punishment. A case in which the police extended
the remand period and re-arrested an individual was seen in the arrest and remand of Khalid Ismath.
Media Control and Censorship
The suspension of the publishing permit of The Edge Weekly and The Edge Financial Daily for
three months over the reports on 1MDB10 and the arrests of Lionel Morais, Amin Iskandar, Zulkifli
Sulong, Ho Kay Tat and Jahabar Sadiq were blatant punishment and harassment of the mass media
and journalists by the Malaysian state.
The recent raids and investigation by the Malaysian Communications and Multimedia Commission
(MCMC) and the Royal Malaysian Police at the offices of The Star and MalaysiaKini further highlight
the persistent and heavy-handed manner adopted by the Government of Malaysia to suppress media
freedom in Malaysia11.
It is thus not surprising that Malaysia’s Press Freedom Index remained the same in 2015, ranking
a lowly 147 out of 180 nation states12. It is worth noting the fact that The Star maintained absolute
silence13 over the raid at its office14.
In
Ar
Ch
Se
To
Communications and Multimedia Act 1998
The Communications and Multimedia Act 1998 (CMA) is often used in conjunction with the
Sedition Act 1948 when a posting considered ‘seditious’ by the state is made available online. The
hefty punishment of RM50,000 in fines and/or 1 year in prison makes it a convenient supplement to
the Sedition Act 1948 in the Government’s armoury of laws to suppress the freedom of expression.
N
1
2
9 Ida Lim, ‘Activist charged with sedition for denouncing Anwar verdict on Facebook’, <http://www.themalaymailonline.
com/malaysia/article/activist-charged-with-sedition-for-denouncing-anwar-verdict-on-facebook> accessed 23rd November
2015
10 The Straits Times, ‘Malaysia’s Home Ministry suspends the Edge publications over 1MDB reports’, <http://www.
straitstimes.com/asia/se-asia/malaysias-home-ministry-suspends-publications-over-1mdb-reports> accessed 23rd November
2015
11 Mayuri Mei Lin, ‘Star, MalaysiaKini raided following ‘report’ Minister says, <http://www.themalaymailonline.com/
malaysia/article/star-malaysiakini-raided-following-report-minister-says> accessed 23rd November 2015
12 ‘2015 World Press Freedom Index: Malaysia’, Reporters without Borders <https://index.rsf.org/#!/index-details/MYS>
accessed 23rd November 2015
13 D Kanyakumari, ‘MalaysiaKini probed over ‘DPP transferred’ story, The Stars <http://www.thestar.com.my/News/
Nation/2015/11/06/mcmc-raids-malaysiakini-office/>, accessed 23rd November 2015
14 Noraizura Ahmad, Not just ‘MalaysiaKini’, ‘The Star Online’ also raided today, say cops, The Rakyat Post, <http://
www.therakyatpost.com/news/2015/11/06/not-just-malaysiakini-the-star-online-also-raided-today-say-cops/> accessed 23rd
November 2015
24
3
15
16
17
acce
18
nati
19
com
Number of CMA cases recorded in 2015
15
me
ang
MP
nd a
ons
ded
ath.
for
kifli
dia
ion
ght
dia
ing
ute
the
The
t to
on.
Numbers of People Involved
Investigated
23
Arrested and/or detained
10
Charged
3
Sentenced
1
Total
37
16
Those Charged under Communications and Multimedia Act 1998
No
Name
Date of Arrests
Further Information
1
22 individuals
1 week of January (all bought in
for investigation)
22 individuals were called in to MCMC for investigation into spreading false news regarding
the flood situation
2
Unspecified individual
10th January 2015
Unnamed individual arrested for spreading
false news17
3
Unspecified individual
8th January 2015
Unnamed individual detained for spreading
false news on the flood situation through
Whatsapp18
st
line.
mber
ww.
mber
om/
YS>
ews/
tp://
23rd
15
16 Total incidence documented in 2015
17 Bernama, ‘MCMC: One arrested over false news on floods’, MalaysiaKini, <http://www.malaysiakini.com/news/285942>
accessed 23rd November 2015
18 ‘Technician detained for spreading false news’, Free Malaysia Today, <http://www.freemalaysiatoday.com/category/
nation/2015/01/08/technician-detained-for-spreading-false-news/> accessed 23rd November 2015
19 ‘False WhatsApp message on floods lands couple in trouble’, The Malay Mail Online, <http://www.themalaymailonline.
com/malaysia/article/false-whatsapp-message-on-floods-lands-couple-in-trouble> accessed 23rd November 2015
25
A couple of teachers were detained for disseminating false information on whatsapp claiming
11th January 2015
that there were bodies found in Guchil and
Kuala Krai.19
4
Unspecified Couple
5
Zunar
10th February
2015
6
Lionel Morais
30th March 2015
Detained and Investigated under Section 233
of CMA and the Sedition Act 1948 for news
report covering the conference of rulers
7
Amin Iskandar
30th March 2015
Detained and investigated under Section 233
8
Zulkifli Sulong
30th March 2015
Detained and Investigated under Section 233
9
Ho Kay Tat
Rearrested under CMA after his bail for 9
charges under the Sedition Act.
31st March 2015
of CMA and the Sedition Act 1948 when he
turned up at Dang Wangi for his statement to
be taken
10
Jahabar Sadiq
31st March 2015
of CMA and the Sedition Act 1948 when he
turned up at Dang Wangi for his statement to
be taken
11
Sarawak Report
19th July 2015
The official reason for blocking the website
by MCMC was “breach of section 233 of the
CMA”.
Khalid Ismath
6th October 2015
Arrested, released, rearrested and slapped with
3 charges under the Sedition Act 1948 and
11 charges under the CMA. He is currently
released on interim bail.
Wan Fatul Johari
30th October
201520
(Convicted)
This Senior Citizen was sentenced to
RM120,000 or 30 months jail if in default of
the fine for insulting the royalty. He was not
represented by legal counsel in the hearing.
12
13
20 Date of investigation not known
21 Offences dated on 24th October 2015; date of arrest and/or investigation unclear
22 Norbaiti Phaharoradzi, ‘Factory worker claims trial for allegedly insulting police on Facebook, The Star, <http://www.
thestar.com.my/News/Nation/2015/11/04/Court-insult-police-Facebook-factory-worker/> accessed 23rd November 2015
23 Yiswaree Palansamy, Zaid Ibrahim to be Charged over ‘hideous’ comments in pro-Dr M blog post, The Malay Mail
Online, <http://www.themalaymailonline.com/malaysia/article/zaid-ibrahim-to-be-charged-over-hideous-comments-in-prodr-m-blog-post> accessed 4th December 2015
24 ‘MCMC Sekat Laman Sesawang Yang Menganggu-gugat Kestabilan Negara’, Malaysian Communications and Multimedia
Commission, <http://www.skmm.gov.my/Media/Press-Releases/MCMC-Sekat-Laman-Sesawang-Yang-Mengganggu-gugatKe.aspx> accessed 23rd November 2015
25 Beh Lih Yi, ‘Sarawak Report whistleblowing website blocked by Malaysia after PM allegations, The Guardian,
<http://www.theguardian.com/world/2015/jul/20/sarawak-report-whistleblowing-website-blocked-by-malaysia-over-pmallegations> accessed 23rd November 2015
26
14
15
16
The
of d
inc
201
of M
to t
A fe
web
peo
stab
It s
In t
line
211
any
Wit
Ber
issu
Act
wit
The
pub
1M
Prim
eve
pro
26
27
Insid
und
28
com
29
asia/
mng
nd
14
Unspecified
Individual
4th November
201521 (Charged)
Factory worker in Johor was charged
under Section 233 of CMA for
allegedly insulting the police22
15
Zaid Ibrahim
4th December
2015 (charged)23
Charged under Section 233(1)(a) for comment
deemed “hideous in nature” in his blog post
supporting Dr. Mahathir
16
Joe Haidy Sulaiman
4th December
2015
(Investigated)
Investigated under Section 233 of CMA for the
facebook page (LetakJawatan) calling for the
resignation of the Prime Minister.
3
3
3
3
o
3
o
th
ww.
5
Mail
pro-
edia
gat-
dian,
pm-
The Malaysian Communications & Multimedia Commission (MCMC) displayed its intolerance
of dissent and criticisms levelled against the government. In August 2015 alone, there were two
incidents involving MCMC blocking websites that were critical of the government. In mid-August
2015, MCMC blocked the Sarawak Report on the grounds that the website was a threat to stability
of Malaysia24. This was a direct response to the information the website was publishing pertaining
to the 1MDB controversy25.
A few days before the commencement of the Bersih 4 rally, MCMC declared that they were blocking
websites that were promoting the rally, spreading information regarding the rally or encouraging
people to participate in the rally. The reason provided was that Bersih 4 was a threat to the nation’s
stability based upon the press statement issued by the Home Ministry26.
It should also be noted that the CMA does not grant the MCMC power to arbitrarily block websites.
In the case of Sarawak Report, the MCMC press statement indicated that the portal was blocked in
line with the provisions outlined under Section 211 and Section 233 of CMA. Curiously, Section
211 and Section 233 only provide a description of offences and punishment and does not provide
any power to block websites.
With regard to the blocking of the Bersih 4.0 website, MCMC press statement revealed that the
Bersih 4.0 website was blocked based on the Home Ministry’s press statement. The Home Ministry
issued the blanket ban on items related to Bersih 4.0 under the Printing Presses and Publications
Act 1984. Similar to CMA, the Printing Presses and Publications Act 1984 does not provide MCMC
with power to block websites without due process.
The Official Secrets Act 1972 (OSA) was once again used to suppress information that were of
public interest. Those who were alleged to have leaked information pertaining to Tabung Haji and
1MDB were investigated under the OSA27. In recent months, Datuk Paul Low (Minister from the
Prime Minister Office) has commented that Malaysia is not ready for a Freedom of Information Act
even though the Selangor and Penang state governments have managed to implement such legal
provisions at a state level.
26 Ibid 28
27 Muzliza Mustafa, ‘Tabung Haji leaked land deal to be investigated under Official Secrets Act, says IGP’, The Malaysian
Insider, <http://www.themalaysianinsider.com/malaysia/article/probe-on-tabung-haji-leaked-land-deal-to-be-investigatedunder-official-sec> accessed 23rd November 2015
28 ‘The Edge weekly, daily suspended for 3 months from July 27’, The Malaysian Insider, <http://www.themalaysianinsider.
com/malaysia/article/the-edge-weekly-daily-suspended-for-3-months-from-july-27> accessed 23rd November 2015
29 ‘Malaysia High Court lifts suspension of The Edge publications’, Straits Times, <http://www.straitstimes.com/asia/seasia/malaysia-high-court-lifts-suspension-of-the-edge-publications> accessed 23rd November 2015
27
11
Printing Presses and Publication Act
The Printing Presses and Publication Act 1984 continued to plague publishers and the media in
Malaysia. The suspension of The Edge’s publishing permit for publishing articles relating to 1MDB28
marks a new low for the Government of Malaysia in its attempt to penalize and silence those
who publish unfavourable news on the 1MDB scandal. Fortunately, the suspension of The Edge’s
publishing permit was lifted by the High Court after finding that the Home Minister was in breach
of section 7(1) of the Printing Presses and Publication Act 198429. The Ministry of Home Affair is
seeking to appeal the decision against them.
Apart from harassment of the media, the Printing Presses and Publications Act 1984 has also been
used to ban various publications with no reasons given. The banning of these books can be seen as
arbitrary since no information or reasons for banning were made publicly available. From the list
compiled from the Federal Gazette, publications banned included religious publications on Islam
and other minority religions, Japanese comics, satirical comics, popular fiction and non-mainstream
fiction.
List of books and items banned by the Ministry of Home Affairs under the Printing Presses
and Publications Act 1984
No
Name of Book
Author or Editor
Order Issued
12
13
14
15
16
17
18
19
1
Penjelasan Tentang Segala Sesuatu
Abdul Kahar Bin Ahmad
Jalal
26th November
2015
20
2
Jalan Yang Lurus: Kita Harus Meneroka
Jalan Ini
Kassim Ahmad
26th November
2015
21
3
Detik-Detik Pembongkaran Agama:
Mempopulerkan Agama Kebajikan,
Menggagas Pluralisme-Pembebasan
Nur Khalik Ridwan/
Sirsaeba Alafsana
26th November
2015
22
4
Baha’u’llah And The New Era An
Introduction to The Baha’I Faith
J.E. Esslemont
26th November
2015
5
The Teachings of “The QURAN”
H.U. Weitbrecht Stanton
26th November
2015
25
6
Any yellow coloured clothing which
contains the words “Bersih 4” and any
other printed material and pamphlet which
leads to Bersih 4 rally
28th August
2015
26
24
27
7
Hadits Pilihan Shahih Bukhari
Ust. Labib MZ
(Translator)
17th August
2015
8
Siri Pahlawan Islam Bilal Bin Rabah
Mohamad Fadhil Umar
17th August
2015
9
Perukonan Romanise
Norain H. Muhammad
17th August
2015
10
Teacher’s and Parent’s Guide
(Pre-School Level)
Institute’s Department of
Curriculum Studies
1st July 2015
28
23
28
29
30
31
32
11
Mawlana Ali Peace be on Him
Curriculum Studies
1st July 2015
12
Mawlana Hazir Imam
Curriculum Studies
1st July 2015
13
Ya Ali Madad
Curriculum Studies
1st July 2015
14
The Mammoth Book of best New Erotica
11
Mazim Jakubowski
1st July 2015
15
Nazi Goreng: Young Malay, Fanatic,
Skinheads
Marco Ferrarese
1st July 2015
16
Psiko
Ehsan El Bakri
1st July 2015
17
To Love Ru Darkness
Saki Hasemi/Kentaro
Yabuki
23rd June 2015
18
Doa Jausyan Shaghir (Doa Yastasir, Doa
Simat, Doa Masylul, Doa Adilah, Ziarah
Jami Al Kabir)
Tim Zahra
23rd June 2015
19
Doa Nudbah, Doa Ahd, Doa Faraj
(Keluasan), Doa Ziarah & Doa untuk
Kegaiban Imam Mahdi
Tim Zahra/Yudi
23rd June 2015
r
20
Muhammad: A Story of God’s Messenger
Deepak Chopra
and the Revelation that Changed the World
9th June 2015
r
21
The Golden Laws: History through the
Eyes of the Eternal Buddha
9th June 2015
r
22
Sakit Apakah Ubatnya? Penelitian Daripada Wan Md Jamal Bin Hj.
Al-Quran dan Hadis
Wan Md Saman
9th June 2015
23
55 Dongeng Teladan Untuk Anak Muslim
MB Rahimsyah AR
9th June 2015
24
Misteri Aneh dan Ganjil Bukti Keagungan
Allah
Abu Talhah Iqamuddin
9th June 2015
25
Misteri Aneh dan Ganjil 2 Membongkar
Kewujudan Makhluk Halus
Abu Talhah Iqamuddin
9th June 2015
26
Pagar Hikmah Himpunan Amalan Tok
Janggut
Haji Abdul Razak Bin
Kasman (Tok Janggut)
10th April 2015
27
Dunia Hikmat
Ali Zulfakar
10th April 2015
28
Amalan Hikmat & Rahsia Dari Al-Quran
Ustaz Kurdi Ismail Hj. Za 10th April 2015
29
Rahsia & Khasiat Huruf-Huruf Hijaiyyah
(Siri Perubatan Islam)
Abu Al Baqir Ad-Dusuqi
(Ustaz Mohd FAdil Bin
Ariffin)
10th April 2015
30
English Translation of the Meanings of The
Holy Quran
The Message
International
10th April 2015
31
In The Path of God Islam And Political
Power
Daniel Pipes
10th April 2015
32
Islam: Politik dan Spiritual
Hafidz Abdurrahman
10th April 2015
a in
DB28
ose
ge’s
ach
r is
een
n as
list
am
am
es
r
r
Ryuho Okawa
29
33
Pirates of the Carry-BN
Zunar
6th April 2015
SU
34
THE CONSPIRACY TO IMPRISON
ANWAR Najib convicts, judges follow the
script
Zunar
6th April 2015
35
KOMPLOT PENJARAKAN ANWAR Najib
jatuh hokum, hakim ikut skrip
Zunar
6th April 2015
36
Sebongkah Batu di Kuala Berang
Faisal Tehrani
1st April 2015
37
Karbala
Faisal Tehrani
1st April 2015
At
har
194
def
imm
the
wo
38
Tiga Kali Seminggu
Dr. Faisal Tehrani
1st April 2015
39
Ingin Jadi Nasrallah
Faisal Tehrani
1st April 2015
40
Fifty Shades of Grey
E L James
27th February
2015
41
Fifty Shades of Darker
E L James
27th February
2015
42
Fifrty Shades Freed
E L James
27th February
2015
Freedom of expression suffered a further blow in the prosecution of Ezra Zaid30. Ezra Zaid was
charged under Section 16 of the Syariah Criminal Offences (Selangor) Enactment 1995 for the
publication of a translated book titled, “Allah, Liberty and Love” by Irshad Manji. Traditionally,
the limitation on publications was a matter handled by the Ministry of Home Affairs and not the
state religious department. Unfortunately, the decision by the Court granted the state religious
department power to regulate publication under Section 16 of the Syariah Criminal Offences
(Selangor) Enactment 1995.
This decision would endow state religious departments with unprecedented power in controlling
the publication and distribution of Islamic books in Malaysia. This would likely serve as another
barrier to the freedom of expression with regards to the printing and publication in Malaysia. On
top of the pre-existing control by the Ministry of Home Affairs, publishers and authors of Islamic
(or un-Islamic) books would need to be wary of individual state religious department and criminal
charges under state based Shariah law.
This unprecedented authority given to the state religious department is further affirmed in the
statement made by Nur Jazlan Mohamed in Parliament who said that any Islamic publication
that deviates from the true teachings of the religion will be referred to the Islamic Development
Department (JAKIM)31.
30 Ida Lim, ‘Ezra Zaid to stand Shariah trial after failing to nullify Selangor Law on un-islamic books charge’, The Malay
Mail Online, <http://www.themalaymailonline.com/malaysia/article/ezra-zaid-to-stand-shariah-trial-after-failing-to-nullifyselangor-law-on-u> accessed 23rd November 2015
31 Nuradzimmah Daim, ‘Publications deviate from true teachings of Islam to be referred to Jakim’, New Straits Times
Online, <http://www.nst.com.my/news/2015/10/publications-deviate-true-teachings-islam-be-referred-jakim> accessed
23rd November 2015
32 OHCHR, ‘Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitute
incitement to discrimination , hostility or violence‘, <http://www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat_
draft_outcome.pdf> accessed 29 February 2016
30
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ally,
the
ous
ces
SUARAM’s Recommendations
At this juncture, it is unfortunate that the Sedition Act 1948 is not a law intended to preserve
harmony or maintain national security. The prosecutions and persecution under the Sedition Act
1948 in 2015 make it abundantly clear that it is a tool wielded by the state against human rights
defenders, political opponents and critics. As such, the Sedition Act 1948 must be abolished
immediately. Any crimes relating to the Sedition Act 1948 can be covered under the Penal Code. If
there exists a credible need for legal provision to preserve racial or religious harmony, new laws that
would be compliant with the Rabat Plan of Action32 should be enacted.
Similar to the use of the Sedition Act 1948, the Government of Malaysia has actively used the
CMA as a tool to punish human rights defenders, political opponents and critics. The wide ambit
of Section 233 has allowed the MCMC and other agencies to launch investigations, arrests and
prosecution for seemingly whimsical reasons. Further, the unscrupulous manner in which CMA
has been used in the case of Khalid Ismath highlights a need for the CMA to be amended to better
reflect modern realities.
Aspects of the CMA that should be amended include:
1. Clarifying and clearly defining Section 233 in order for it to operate as it was initially
designed to do so (i.e. prevent cyber bullying);
2. Limiting punishment for offences under the CMA to reflect the gravity of the offences;
3. Scrapping the unrestricted power of MCMC to block websites and punish ‘offenders’ as it
is unconstitutional and grants MCMC excessive power to regulate without accountability.
ing
her
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31
32
33
FREEDOM OF ASSEMBLY
AND MOVEMENT
Throughout Malaysia’s history, Malaysians have been subjected to varying degree of control by
the government when it comes to the right to assembly and association. From the wide scope of
controls granted to the Royal Malaysian Police under the Police Act 1967 to the modern Peaceful
Assembly Act 2012 and the amended Penal Code that discreetly curtail and limit Malaysians’ right
to freedom of assembly, we have witnessed varying degree of control and limitation imposed by the
Government of Malaysia. In essence, freedom of assembly and association in Malaysia is provided
under the Federal Constitution but it is denied whenever Malaysians tries to exercise this right.
At the moment, the few provisions that have been invoked by the Government of Malaysia in order
to supress peaceful assemblies includes the Peaceful Assembly Act 2012, Section 124 of the Penal
Code, Section 143 of the Penal Code and Section 105 of the Criminal Procedure Code.
The
App
reg
505
reo
sec
be
by
Arr
Apa
bee
141
forc
pun
Tab
N
1
2
3
The Peaceful Assembly Act 2012
Even though the Court of Appeal of Malaysia had made the declaration that section 9(1) of the
Peaceful Assembly Act 2012 (PAA) was unconstitutional, the Attorney General’s Chambers (AGC)
continued to pursue its cases against various individuals under Section 9(1) of the PAA. The AGC
filed an appeal in the Federal Court of Malaysia in the hope of reversing the decision made by the
Court of Appeal in Nik Nazmi’s case. The Federal Court struck out the appeal and maintained the
decision made by the Court of Appeal1. Nik Nazmi was first charged under the PAA in relation to
the Blackout 505 protest in 2013. Nik Nazmi was once again charged under the PAA for the same
‘offence’ following the ‘alternate’ decision delivered by the Court of Appeal in 20152.
Despite the decision made by the apex court, the police and the Attorney General Chamber (AGC)
are still actively investigating, arresting and prosecuting organizers of rallies and peaceful assemblies
under Section 9(1) of the PAA. The organizers who have been investigated or charged under PAA
includes (and not limited to): #KitaLawan rally, anti-GST protest and Bersih 4 rally.
1 Zurairi Ar, ‘Apex court junks AG’s PAA appeal again Nik Nazmi’s acquittal’, the Malay Mail Online, <http://www.
themalaymailonline.com/malaysia/article/apex-court-junks-ags-appeal-against-nik-nazmis-acquittal>
accessed
23rd
November 2015.
2 Yiswaree Palansamy, ‘Nik Nazmi in the dock again after court U-turn on assembly law’, The Malay Mail Online, <http://
www.themalaymailonline.com/malaysia/article/nik-nazmi-in-the-dock-again-after-court-u-turn-on-assembly-law> accessed
21 March 2016
34
4
5
6
3
new
4
astro
Mar
5
www
Mar
by
e of
eful
ght
the
ded
der
nal
the
GC)
GC
the
the
n to
me
GC)
lies
PAA
ww.
23rd
tp://
ssed
Freedom of Assembly and Movement
The reason behind the continued prosecution under PAA was made clear following the Court of
Appeal decision on 2nd October 20153. The Court of Appeal came to a different conclusion in
regards to the constitutionality of the PAA in the prosecution’s appeal in R. Yuneswaran Blackout
505 case4. The court in this instance declared Section 9(5) of the PAA to be constitutional and thus
reopening the floodgates to prosecution under the PAA. In light of the revised decision declaring
section 9(5) of the PAA constitutional, the prosecution of individuals under the PAA would likely
be resumed at a brisk pace. The conflict between this new decision and the earlier decision made
by the Court of Appeal last year5 would have to be resolved through an appeal to the Federal Court.
Arrest for Peaceful Assembly under the Penal Code
Apart from prosecution under the Peaceful Assembly Act 2012, Section 141 and Section 142 have
been utilized as a means to punish those who have attended peaceful rallies and gatherings. Section
141 provides the definition of unlawful assembly under the overarching theme of ‘show of criminal
force’. Section 142 defines the members of an unlawful assembly while Section 143 designates the
punishment for the said crime.
Table of arrests or investigations
No
Name
Date of
Arrest or
Investigation
Assembly in
Question
Arrested under
Charged
1
Saifullah Zulkifli
7 March 2015
#KitaLawan
S143 Penal Code
2
Nik Nazmi Nik
Ahmad
8 March 2015
#KitaLawan
S9(5) PAA
3
Fariz Musa
10 March 2015
#KitaLawan
S143 Penal Code
& S9(5) PAA
4
Rafizi Ramli
10 March 2015
#KitaLawan
S143 Penal Code
& S9(5) PAA
5
Fakhurazi
Mokhtar
10 March 2015
#KitaLawan
S143 Penal Code
& S9(5) PAA
8 Sep
2015
6
Mandeep Singh
14 March 2015
31 July 2015
2 September
2015
#KitaLawan
#TangkapNajib
Bersih 4.0 (no
arrest)
S143 Penal Code
& S9(5) PAA
S124B Penal Code
8 Sep
2015
8 Sep
2015
3 Koh Jun Lin, ‘Appeals Court rules 10 days’ rally notice ‘constitutional’, MalaysiaKini, <http://www.malaysiakini.com/
news/314194> accessed 23rd November 2015.
4 Bernama, Peaceful Assembly Act: Court of Appeal declares Section 9(5) constitutional, Astro Awani, <http://english.
astroawani.com/malaysia-news/peaceful-assembly-act-court-appeal-declares-section-9-5-constitutional-74786> accessed 21
March 2016
5 Joseph Sipalan, ‘Assembly law cannot criminalize public gatherings, court rules’, The Malay Mail Online, <http://
www.themalaymailonline.com/malaysia/article/assembly-law-cannot-criminalise-public-gatherings-court-rules> accessed 21
March 2016
35
7
36
Adam Adli
14 March 2015
31 July 2015
2 September
2015
#KitaLawan
#TangkapNajib
Bersih 4.0 (no
arrest)
S143 Penal Code
& S9(5) PAA
S124B Penal Code
8
Teo Kok Seong
14 March 2015
#KitaLawan
S143 Penal Code
9
Nurul Izzah
16 March 2015
#KitaLawan
Sedition Act
10
Tian Chua
20 March 2015
#KitaLawan
S143 Penal Code
11
Hisshamuddin
Rais
27 March 2015
1 August 2015
#KitaLawan
#TangkapNajib
S143 Penal code
S124B Penal Code
12
Tan Kar Hing
27 March 2015
1 August 2015
#KitaLawan
#TangkapNajib
S186 Penal Code
S124B Penal Code
13
Chang Lih Kang 27 March 2015
1 August 2015
#KitaLawan
#TangkapNajib
S186 Penal Code
S124B Penal Code
14
Chee Chu Sang
27 March 2015
#KitaLawan
S186 Penal Code
15
N. Tamilarason
27 March 2015
#KitaLawan
S186 Penal Code
16
Yong Ming
Chong
27 March 2015
#KitaLawan
S186 Penal Code
17
Gan Zhi Mou
27 March 2015
#KitaLawan
18
Mohamed Sabu
27 March 2015
#KitaLawan
19
Khalid Samad
29 March 2015
#KitaLawan
S143 Penal Code
20
Jimmy Puah
11 April 2015
#KitaLawan Johor
Section 9(1) PAA
21
Tan Hong Pin
11 April 2015
#KitaLawan Johor
Section 9(1) PAA
22
Danny Tan
11 April 2015
#KitaLawan Johor
Section 9(1) PAA
23
Sidiqin Omar
11 April 2015
#KitaLawan Johor
24
79 Anti-GST
Protestors
23 March 2015
Anti-GST Protest
25
Ambiga
Sreenevasan
1 May 2015
May 1 Rally
S143 Penal Code
& S9(5) PAA
26
Antholy Loke
1 May 2015
May 1 Rally
S143 Penal Code
& S9(5) PAA
27
Arutchelvan
1 May 2015
May 1 Rally
S143 Penal Code
& S9(5) PAA
28
56 Anti-GST
Protest
1 May 2015
May 1 Rally
S143 Penal Code
& S9(5) PAA
29
Syukri Razab
31 July 2015
#TangkapNajib
S124B Penal Code
30
26
#TangkapNajib
Protestors
1 August 2015
#TangkapNajib
S124B Penal Code
8 Sep
2015
3
3
3
3
3
3
3
3
S186 Penal Code
3
Section 9(1) PAA
Section 21(1)(d) of
54
PAA & Section 447 charged
Penal Code
on 23 Apr
2015
4
4
4
*Sh
que
Ar
C
To
In
#K
The
10,
p
5
ed
Apr
5
31
17 Student
Activists
25 August
2015
#OccupyParliament
Section 124B of
Penal Code
32
Jannie
Lasimbang
1 September
2015
Bersih 4.0
Section 9(5) PAA
33
Matthew Yong
1 September
2015
Bersih 4.0
Section 9(5) PAA
34
S.M. Muthu
1 September
2015
Bersih 4.0
Section 9(5) PAA
35
Stephen Wong
1 September
2015
Bersih 4.0
Section 9(5) PAA
36
Henry Shim
1 September
2015
Bersih 4.0
Section 9(5) PAA
37
Maria Chin
Abdullah
14 March 2015
2 September
2015
#KitaLawan
Bersih 4.0
S143 Penal Code
Section 9(5) PAA
38
Sarajun Hoda
Abdul Hassan
2 September
2015
Bersih 4.0
Section 9(5) PAA
39
Masjaliza
Hamzah
2 September
2015
Bersih 4.0
Section 9(5) PAA
40
Fadiah Nadwa
Fikri
2 September
2015
Bersih 4.0
Section 9(5) PAA
41
Farhana Abdul
Halim
2 September
2015
Bersih 4.0
Section 9(5) PAA
42
Jamal Yunos
25 September
2015
Himpunan Merah
S105 Penal Code
22 Oct
2015
8 Sep
2015
3 Nov
2015
*Shaded cell denote arrest was made whereas unshaded cell denotes incidents where individual is
questioned or called for investigation
Table of arrests, investigations and prosecutions
Arrests
Called for Questioning
Total
Incidents of Prosecution
Number of Cases
212
12
224
61
#KitaLawan Rallies
The first #KitaLawan rally was held on 7th March 2015 and was attended by between 5,000 to
10,000 protestors. The main aim of the protest was to press for the release of Anwar Ibrahim.
37
Various activists and politicians were questioned and/or arrested by the police in relation to charges
of unlawful assembly under Section 143 of the Penal Code, Section 9 of the PAA and, in some cases,
Section 4(1) of the Sedition Act. As of 8th September 2015, Maria Chin Abdullah6 and Pakatan
Keadilan Rakyat (PKR) MP Sim Tze Sin have been charged under PAA for the #KitaLawan rally that
took place on 28th March 20157.
May Day Anti-GST Rally
The May Day rally to protest the implementation of GST was also subjected to harassment by the
police. A number of the activists and politicians that were present or supportive of the rally were
investigated and/or charged for unlawful assembly under Section 143 of the Penal Code. Jay Jay
Dennis, aide to Klang MP was investigated under Section 505B of the Penal Code for a comment he
made in relation to the rally and police action that occurred8.
#TangkapNajib Rally
The demonstration that called for the resignation of the Prime Minister was also met with harassment
by the police. On 31st July 2015, two of the organizers of #TangkapNajib, Adam Adil and Syukri
Rezab were arrested outside Dang Wangi police station after discussing the rally with the police9.
Both of them were arrested under Section 124(b) of the Penal Code. Activists Mandeep Singh was
arrested later that day even though he was not involved with the #TangkapNajib rally10. Twenty-nine
protestors were also arrested on 1st August when two Perak PKR leaders were detained. Protestors
also made allegations that excessive force was used against them and others assisting the protestors
have reported that those arrested were denied access to legal counsel11.
Bersih Rally
Bersih 2.0 was not spared from harassment by various government agencies. Malaysia’s
Communications and Multimedia Commission (MCMC) decided to block Bersih 2.0 website (http://
www.bersih.org/) and other website supportive of Bersih 2.0 on the grounds that the Bersih 4 Rally
“incited” unrest between different ethnic groups; incited the general public against the government
by spreading certain documents; its associated activities were bad for Malaysia’s public image; and
it was a threat to peace, national security, economic wellbeing, sovereignty and the multicultural
society of Malaysia12. On the eve of the rally, the Home Ministry declared that all yellow t-shirts that
bore the word “Bersih 4” was illegal13. Despite these pre-rally harassments, the rally itself was largely
6 ‘Malaysia’s Bersih chairman charged with illegal assembly, ‘Channel News Asia’, <http://www.channelnewsasia.com/
news/asiapacific/malaysia-s-bersih/2111250.html> accessed 23rd November 2015.
7 ‘Bersih chief, MP and two others to be charged’, MalaysiaKini, <http://www.malaysiakini.com/news/311100> accessed
23rd November 2015.
8 Md Izwan, ‘DAP lawmaker’s aide investigated for critical tweet against top cop’, The Malaysian Insider, <http://www.
themalaysianinsider.com/malaysia/article/dap-lawmakers-aide-investigated-for-critical-tweet-against-top-cop>
accessed
23rd November 2015.
9 Hani Shamira Shahrudin, ‘Activists Syukri Razab, Adam Adli detained’, New Straits Times Online, <http://www.nst.
com.my/news/2015/09/activists-syukri-razab-adam-adli-detained> accessed 23rd November 2015.
10 ‘Bersih activist Mandeep Singh latest to be arrested’, The Malaysian Insider, http://www.themalaysianinsider.com/
malaysia/article/bersih-activist-mandeep-singh-latest-to-be-arrested accessed 23rd November 2015.
11 Mayuri Mei Lin, ‘Chaos at #TangkapNajib rally as cops nab protestors’, The Malay Mail Online <http://www.
themalaymailonline.com/malaysia/article/chaos-at-tangkapnajib-rally-as-cops-nab-protesters> accessed 18 February 2016.
12 MCMC, ‘MCMC Sekat Laman Sesawang Yang Menganggu-Gugat Kestabilan Negara’, MCMC, <http://www.skmm.gov.
my/skmmgovmy/media/General/pdf/Presser-Bersih.pdf> accessed 16 March 2016
13 ‘KDN haramkan pakaian kuning, perkataan Bersih 4’, The Malaysian Insider, <http://www.themalaysianinsider.com/
bahasa/article/kdn-haramkan-pakaian-kuning-perkataan-bersih-4> accessed 23rd November 2015.
38
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peaceful with little intervention by the police force. The estimated turn-out for the Bersih 4 rally
varies between 20,000 as claimed by the Prime Minister to 200,000 as claimed by the organizing
committee.
After the rally, however, various members of Bersih 2.0 organizing committee and high profile
individuals including Adam Adli, Mandeep Singh, Sarajun Hoda Abdul Hassan, Masjaliza Hamzah,
Farhana Abdul Halim and Fadiah Nadwa Fikri [were called in by the police to give their statements14.
Datuk Abdul Rahman Dahlan, the Minister of Urban Wellbeing, Housing and Local Government,
issued a statement that they were intent on sending a cleaning bill of RM65,000 to Bersih 4 rally
organizers15. The bill of RM 65,000 was eventually delivered on 7th September 201516.
Himpunan Rakyat Bersatu Rally
A rally by Malay supremacist groups under the banner of ‘Himpunan Rakyat Bersatu’, took place on
Malaysia Day (16 September 2015) at Padang Merbok in Kuala Lumpur and several other locations.
Despite police barricades, rally goers were able to force their way through at the commercial district
of Bukit Bintang. They also gathered at the historic Chinese commercial enclave of Petaling Street.
Several demonstrators were injured after scuffles with police personnel. Despite claims that the rally
was not intended to be racial in nature, various organizers and participants were later documented
to have espoused racist statements, remarks and slogans throughout the day. CCTV of local property
owner also recorded vandalism by several participants of the rally.
Although there were acts of violence and racial provocations during the rally, no one was arrested
or subjected to investigations. The organizer, Jamal Yunos, threatened to lead a second rally if their
demands were not addressed by the relevant government ministry. Kamal Yunos was subsequently
arrested on the 25th September 2015 for threatening a riot at Petaling Street. He was arrested under
Section 105 of the Criminal Procedure Code which allows police to arrests in order to prevent a
seizable offence.
Freedom of Movement
In 2015, the Government of Malaysia barred various civil activist leaders and opposition politicians
from travelling abroad. These included opposition politicians Petaling Jaya Utara MP Tony Pua, Batu
MP Tian Chua, and civil society activists Datuk Ambiga Sreenevasan, Maria Chin, Hishamuddin Rais
and Adam Adli17. While some of these restrictions were eventually lifted, it is noteworthy that these
individuals were not been convicted or even suspected of having committed any crime.
The travel ban on numerous Malaysian citizens to Sarawak still stands. Many of those barred
from travelling between East & West Malaysia are leaders of various human rights related NGOs,
including SUARAM director Dr. Kua Kia Soong. Dr. Kua was banned from travelling to Sarawak due
to his support for the anti-logging campaigns in Sarawak. In 2015, the Sabah State Assembly has
14 Michael Murty, ‘Police are just wasting our time, says Bersih 2.0 chair’, The Rakyat Post, <http://www.therakyatpost.
com/news/2015/09/01/police-are-just-wasting-our-time-says-bersih-2-0-chair/ accessed> 21 March 2016
15 Neville Spykerman, ‘Bersih organisers to be slapped with RM65,000 clean-up bill, The Star Online, <http://www.
thestar.com.my/News/Nation/2015/09/01/Bersih-organisers-to-be-slapped-with-cleanup-bill/> accessed 23rd November
2015.
16 ‘DBKL finally delivers cleaning bill to Bersih’, MalaysiaKini,<https://www.malaysiakini.com/news/311373>accessed 21
March 2016
17 KC Nazari, ‘Tian Chua, Ambiga, more activists barred from leaving country, The Malaysian Insider, <http://www.
themalaysianinsider.com/malaysia/article/tian-chua-ambiga-and-other-activists-also-barred-from-going-overseas-by-imm>
accessed 23rd November 2015.
39
also decided to bar Nurul Izzah and Tian Chua from travelling to Sabah18. The motion was passed
through the Deputy Speaker Datuk Johnson Tee calling for an investigation to be carried out with
legal action taken against both of them for meeting Jacel Kiram, the self-style princess of the Sulu.
Jacel Kiram is the daughter of the Sulu Sultan that lead the invasion of Lahad Datu in 2013 and is
considered by the Government of Malaysia as an enemy of the state.
In November 2015, the Australian band, ‘I killed the Prom Queen’, was detained for playing without
a permit in Malaysia19. While the failure to obtain an appropriate work visa was a valid offence, the
detention of the band members was unnecessary and disproportionate to the offence at hand.
In December 2015, Hisshamuddin Rais, a well-known activist and committee member of Bersih
2.0 was once again prevented from travelling abroad at Kuala Lumpur International Airport 2. No
reason was given for the travel ban placed on him20.
Las
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of t
to
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Conclusion:
In 2015, one could say that the Royal Malaysian Police have started to grow out of its tendency to
exercise excessive force in controlling and dispersing peaceful assemblies. While this interpretation
and view could be true in the developments witnessed in the latter part of 2015, we remain critical
of the crackdown initiated against the #KitaLawan and #BantahGST protests early in the year.
Though we cannot offer the Royal Malaysian Police our approval for the conduct throughout 2015,
we welcome the restraint shown by the Royal Malaysian Police throughout the Bersih 4.0 Rally and
the scuffle during the Red Shirt Rally. The choice to exercise due restraint when managing peaceful
assemblies is certainly a welcomed change and should be the bare minimum benchmark for the
Royal Malaysian Police in the future.
Unfortunately, there is still much to be improved. While physical violence was not the ‘go-to’
tool of the Royal Malaysian Police, harassment and attempts to interfere with peaceful assemblies
persist and still take place before and after a peaceful assembly. The Royal Malaysian Police still
shuttle organizers of peaceful assemblies between themselves and Dewan Bandaraya Kuala Lumpur
(DBKL)21 for ‘permit’ and ‘approval’ when organizers approach the Royal Malaysian Police. The
Royal Malaysian Police should take proactive steps to eliminate this unnecessary and malicious
bureaucracy in the future as it is a wilful interference of Malaysians’ right to freedom of assembly.
Further, the incidents that occurred after Bersih 4.0 serves as a clear example for the apathy held
by the other agents of the Government of Malaysia in regards to Malaysian’s rights to freedom of
assembly. The juvenile attempts to ‘punish’ organizers of peaceful assemblies through clean-up bill
can be seen as a last ditch attempt by the Government of Malaysia to harass and annoy organizers
of peaceful assemblies in the absence of any substantive criminal charge that can be used against
organizers.
18 Akil Yunus, ‘Sabah ban politically motivated, claims Tian Chua’, The Star Online, <http://www.thestar.com.my/News/
Nation/2015/11/26/Sabah-ban-politically-motivated-says-Tian-Chua/> accessed 27th November 2015.
19 Agence France-Presse, ‘Australian metal band I killed the Prom queen detained in Malaysia over visa issues’, The
Guardian,<http://www.theguardian.com/world/2015/nov/16/australian-band-i-killed-the-prom-queen-detained-bymalaysian-immigration> accessed 23rd November 2015.
20 Radzi Razak, ‘Hisham Rais fuming after travel ban issued on him’, Free Malaysia Today, <http://www.freemalaysiatoday.
com/category/nation/2015/12/04/hisham-rais-fuming-after-travel-ban-issued-on-him/> accessed 18 February 2016.
21 City Council of Kuala Lumpur
40
22
them
201
23
acce
sed
with
ulu.
d is
out
the
rsih
No
Last but not least, the ambiguous state of affairs between East and West Malaysia effectively creates a
barrier against freedom of movement. The ‘blacklisting’ of activists remains under the sole discretion
of the state and the state have shown inclination to prevent the well-known activists from travelling
to East Malaysia. As an example, despite the ‘positive’ stance adopted by the Chief Minister of
Sarawak, Adenan Satem in August 201522, one of Bersih secretariat member, Mandeep Singh was
barred from travelling to Sarawak in February 201623.
On the international front, the travel ban imposed on activists and members of the opposition
remains in place. With no clear procedure or explanation for the travel ban imposed for both
domestic and international travel, it is difficult for those that suffered from a violation of their rights
to challenge the restrictions imposed. In the absence of institutional reform, the discretion given to
the Federal Government and the State Government in these matters is unlikely to be reviewed or
altered in the foreseeable future.
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day.
22 Sulok Tawie, ‘Sarawak has ‘no problem’ with Bersih 4, says chief minister, The Malay Mail Online, <http://www.
themalaymailonline.com/malaysia/article/sarawak-has-no-problem-with-bersih-4-says-chief-minister> accessed 21 March
2016
23 ‘Bersih’s Mandeep barred from entering Sarawak’, MalaysiaKini, <https://www.malaysiakini.com/news/330481>
accessed 21 March 2016
41
42
ment
43
44
ment
45
FREEDOM OF ASSOCIATION
Freedom of Association in Malaysia is severely limited by the existing laws and regulations. With
the existence of the Societies Act 1966, the Trade Unions Act 1959, The Legal Profession Act 1976
and the Universities and University Colleges Act 1971 (UUCA), Malaysians of every social strata and
background face a varying degree of control and restrictions in establishing groups, societies or any
other form of collective group.
More often than not, these laws provide an overarching restriction with little to no judicial review
permitted. For most part, the government and its agents hold sole discretion in regards to the
registration and deregistration of these associations.
The Societies Act 1966
In general, the establishment or creation of any association or groups is regulated by the Registrar of
Societies (ROS) under the Societies Act 1966. The Societies Act 1966 makes it compulsory for any
association consisting of seven or more members to be registered as a society with the ROS. Under
the Act’s provision, the registration of any society, group or body is subject of the government’s
discretion. The government holds absolute power when it comes to granting permission for the
registration and formation of any organization under the ROS. Under the Act, the government is
also granted power to arbitrate on any complaints related to the organization, power to deregister an
existing society with no room for any form of judicial review.
In practice, this makes it unfeasible for a human rights NGO in Malaysia to be registered under
the ROS. First and foremost, the relatively antagonistic stance adopted by the government when
addressing human rights NGO that is perceived as unsupportive of the government makes it highly
unlike for the government to approve the registration of any civil societies or NGOs under the
provisions of the Societies Act 1966. Further, even if a group is registered under the ROS, the
government holds absolute discretion in the deregistration of any organization registered under
the ROS with no room for judicial review and appeal. As such, registration under the ROS would
subject a NGO’s organizational capacity under constant threat of deregistration.
As such, many if not most of the civil societies or NGOs operating in Malaysia is registered under
the Registrar of Company (ROC) or registered under an alternate name in Malaysia. While the ROC
have not actively challenged the current status quo, the registration of NGOs under ROC introduces
46
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a different set of difficulties and compliance requirements that hampers and sometimes limit human
rights NGOs work in general. This ‘workaround’ unfortunately puts human rights NGOs in a rather
difficult situation in getting recognition from external parties. As part of their pro-bono initiative
many corporations and other external parties require human rights NGOs to have a clear status
before they can receive any services rendered. The fact that human rights NGOs are registered under
the Companies Act 1965 and not granted a ‘tax-free’ status under the law, most if not all human
rights NGOs registered under the ROC would be disbarred from receiving pro-bono services from
corporations and other external parties.
The current laws and practices have adverse effects not just on the operations of human rights
NGOs in Malaysia, it also holds sway in the formation and working of NGO coalitions in Malaysia.
As noted in SUARAM’s 2015 Annual Human Rights Report, both COMANGO and Negara-Ku have
been subjected to varying degree of harassment with Negara-Ku specifically subjected to summons
under Section 66 of the Societies Act 1966. While no new incidents have been recorded in 2015,
the reality remains that coalitions such as Negara-Ku and COMANGO remains vulnerable to state
interference in this regards.
Harassment against NGOs
Fortunately, there have not been any major incidents of NGOs by the Government of Malaysia
throughout 2015. It is noted that some degree of harassment against the Coalition of Malaysian
NGO in the UPR Process (COMANGO) still persists despite the absence of any public activities in
2015. Alternately, SOGI groups remain ‘illegal’ in the eye of the Malaysian Government and their
members still remain vulnerable to threat of physical violence.
Monitoring by the Special Branch of the Royal Malaysian Police remains pervasive throughout 2015.
Events or press conferences organized by NGOs is often attended by members of the Special Branch
with videos or photos of activists recorded by the Special Branch. In some circumstances, the Special
Branch was courteous enough to seek the approval or permission of organizers while in others,
members of the Special Branch discreetly attempt to take part in the on-going event.
The Universities & University Colleges Act 1974 (UUCA)
The draconian measures and repressive requirements laid out in the UUCA remains ‘active’ in 2015.
Section 15 of the UUCA still limits the organizations which a student may participate in. Section
15 also severely restrict students’ participation and support for any organization deemed as an
‘unlawful organization’. Fortunately, there have not been any harassment or punishment meted out
under this provision in 2015.
On a brighter note, in contrast to 2014 where we witnessed substantive attempts to stop students
from organizing and attending a talk by Anwar Ibrahim, SUARAM have not documented any
substantive restriction of such nature repeating itself in 2015.
Formation of AMANAH
Gerakan Harapan Baru (GBH) was formed by former leaders of Parti Islam Se-Malaysia (PAS) who
were not in agreement with the PAS leadership. GBH’s initial application to register as a society with
the name Parti Progresif Islam was rejected by the ROS within 24 hours of its submission. On 7th
September 2015, GBH took over the already registered Malaysian Workers’ Party and rebranded it
as Parti Amanah Negara. After an initial rejection, the registration of the new name for the party was
eventually accepted by the ROS.
47
Workers’ Right to Association
The right for workers to freely associate in Malaysia remains under strict control of the government
through various legislations. On top of the existence of regulations that notably restricts workers’
right to association, the general non-enforcement by related agencies and the apathy shown have
contributed to the current predicament.
Malaysia maintains its dismal standing in International Trade Union Confederation (ITUC)’s Global
Rights Index in 2015 with a score of 5 (no guarantee of rights)1. As noted by ITUC report2, the
debacle involving the Sabah Forest Industries (SFI) and the Sabah Timber Industry Employees
Union (STIEU) remains in limbo with no end in sight for the workers that are affected3.
Apart from the plights suffered by workers in Malaysia in these regards, migrant workers in Malaysia
suffer from various other human rights violations and abuses in 2015. For additional information on
the matter, please refer to the chapter on Refugees, Asylum Seekers and Migrant Workers.
Conclusion
In broad strokes, it is rather fortunate that Malaysia was spared from suffering another bout of the
pains and difficulties such as those documented in 2014. While the absence of any excessive human
rights violations are very much welcomed in the current climate, the absence of any major human
rights violations is accompanied by the absence of substantive and positive developments on the
matter.
The prevailing issues on the status of NGOs in Malaysia remains unresolved and the registrations of
political parties and other organizations remain completely under the discretion of the Government
of Malaysia. While the current status quo remains in a precarious balance where NGOs and other
groups can still operate without excessive harassment by the government, the existing vulnerability
remains a constant threat to the operations of the NGOs affected.
Further, the absence of any positive development and the lack of government initiative in addressing
the many concerns raised by Malaysia Trade Union Congress
(MTUC) leaves much to be desired. With the current economic climate of Malaysia, it is of paramount
importance for proactive steps to be taken in order to safeguard the interest and welfare of workers
which serves as the foundation for Malaysia’s economy.
Despite the urgent need for reform in regards to freedom of association in Malaysia, the current
political debacle renders it difficult if not impossible for any substantive and systemic reform to take
place in the near future.
1 ‘The 2015 ITUC Global Rights Index: The World’s Worst Countries for Workers’, ITUC, <http://www.ituc-csi.org/IMG/
pdf/ituc-violationmap-2015-en_final.pdf> accessed 22nd March 2016
2 The 2015 ITUC Global Rights Index: The World’s Worst Countries for Workers’, ITUC, <http://www.ituc-csi.org/IMG/
pdf/survey_global_rights_index_2015_en.pdf> accessed 22nd March 2016
3 Catherine Jikunan (Sabah MTUC), ‘Union in SFI set for court battle for recognition’, MalaysiaKini, <https://www.
malaysiakini.com/letters/301503> accessed 22nd March 2016
48
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49
In
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FREEDOM OF RELIGION
AND BELIEF
Introduction
Issues pertaining to freedom of religion and belief in Malaysia remain contentious in 2015. The
growing ethno-religious extremism expressed by right wing groups1 throughout 2015 set a rather
unfortunate tone for the development of the freedom of religion and belief in the country. While
the situation has improved slightly in 2015, several issues have resurfaced and repeated itself in
2015. It should be noted that some of the issues raised can be attributed to the current impasse in
jurisdictional conflicts between the civil and the Syariah courts.
In 2015, the deterioration of freedom of religion and belief is spearheaded by issues over child
custody resulting from unilateral conversions and the implementation of Hudud law. Malaysians are
generally subject to the civil and criminal courts in most circumstances. However, as a consequence
of Federal and State amendments to legislation beginning in the 1990s, in some areas, Muslims are
now subjected to Syariah law. These jurisdictions usually cover matrimonial and family law matters.
In some states like Negeri Sembilan2 and Kelantan3, an individual may find him or herself to be
subjected to prosecution for various stipulated crimes under local state Syariah provisions.
Implementation of Hudud in Kelantan
Over the years, the proposed implementation of Hudud law in Malaysia has been highly controversial.
Arguments against the implementation of Hudud law have included its ambivalent constitutionality,
the repercussion Hudud law may have on non-Muslims, and its perceived disproportionate and
archaic forms of punishment. For the most part, the implementation of Hudud law has been
championed by the Pan-Malaysian Islamic Party (PAS). It should be noted, however, that despite
their consistent calls for Hudud law in Kelantan, PAS have not made this a central feature of their
election manifesto.
1 ‘Provocation, racial slurs mar ‘red shirts’ rally
2 Suganthi Suparmaniam, ‘Transgender case: Federal court overturns Court of Appeal’s decision’, Astro Awani, <http://
english.astroawani.com/malaysia-news/transgender-case-federal-court-overturns-court-appeals-decision-75716> accessed
24th march 2016
3 Aditya Tejas, ‘Malaysian Court Convicts 9 Transgender Women, LGBT Groups Slam decision’, International Business
Times,
<http://www.ibtimes.com/malaysian-court-convicts-9-transgender-women-lgbt-groups-slam-decision-1976921>
50
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Freedom of Religion and Belief
In March 2015, the Malaysian Bar Council issued a statement after the passing of the Syariah
Criminal Code (II) (1993) 2015 Enactment by the Kelantan State legislature. It challenged the
constitutionality of the implementation of Hudud law, and highlighted the incompatibility of Hudud
law with Article 5(1), Article 7(2) and Article 8(1) of the Federal Constitution of Malaysia4.
With regards to the ramifications of Hudud law for non-Muslims, PAS has argued that these
provisions would not affect them as non-Muslims are subjected to civil law and not to Syariah law
under the enactment5. Despite these assurances, there are concerns that selected provisions under
the Enactment could potentially affect non-Muslims6. Some of the areas of concern raised includes
punishment against non-Muslims under Syariah law for aiding or abetting a crime, act of crimes
perpetrated as a group and being part of a group theft.
In November 2015, group of individuals attempted to obtain a court injunction preventing the
tabling of the amendments in Parliament. The amendment in question would effectively allow
Kelantan to implement Hudud Law that was expanded through Syariah Criminal code (II) (1993)
2015 Enactment passed in the Kelantan State Legislature earlier in the year. The bid by the group
was unsuccessful7. The said bill has not yet been tabled and debated in Parliament. The general
provisions as laid down in the Syariah Criminal code (II) (1993) 2015 Enactment have raised
concerns with respect to international human rights standards. The Enactment permits the use of
death penalty and other methods of punishment that are in violation of the principles laid down in
the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment
and Punishment (UNCAT). It is noted that many of the punishment utilized in the Enactment
is used under the Penal Code and that the Enactment does not in general introduce ‘inhuman’
punishment to the Malaysian Criminal Justice System. At present, the Penal Code still permits the
use of death penalty and whipping and such punishment would not be unique to the proposed
Syariah Criminal Code (II)(1993) 2015.
Custodial rights in unilateral conversion
The case of Deepa continued in 2015 with the Federal Court granting Deepa’s ex-spouse, Izwan
Abdullah, a stay against the order that required him to return his 6-year-old daughter to his ex-wife.
This decision effectively overruled the earlier one made by Seremban High Court granting custody
to Deepa along with the recovery order compelling the return of Deepa’s son. Deepa’s case begun
in 2013 following her ex-husband’s secret conversion into Islam. Izwan Abdullah then unilaterally
converted their two children into Islam, and subsequently obtained an order from the Syariah Court
giving him custody of the children. Since then, Deepa has been locked in a legal battle over the
custody of both children.
4 Steven Thiru, ‘Press Release: Hudud is Unconstitutional, Discriminatory and Divisive’, the Malaysian Bar, <http://www.
malaysianbar.org.my/press_statements/press_release_%7C_hudud_is_unconstitutional_discriminatory_and_divisive.html>
accessed 22nd March 2016
5 FMT Reporters, ‘Hudud law will not affect non-Muslims, assures PAS’, Free Malaysia Today, <http://www.
freemalaysiatoday.com/category/nation/2015/03/12/hudud-law-will-not-affect-non-muslims-assures-pas/> accessed 22nd
March 2016
6 Syed Jazmal Zahiid, ‘Despite amendments, non-Muslims not left out of Kelantan’s hudud bill?’, The Malay Mail Online,
<http://www.themalaymailonline.com/malaysia/article/despite-amendments-non-muslims-not-left-out-of-kelantans-hududbill> accessed 22nd March 2016
7 M. Mageswari, ‘Hudud: High Court can’t question Parliamentary proceedings, Hadi submits’, The Star Online, <http://
www.thestar.com.my/news/nation/2015/10/13/court-hudud-laws-pas-parliament/> accessed 22nd March 2016
51
The decision on the case of M. Indira Gandhi8 was delivered by the Court of Appeal on the 30th
December 2015. The majority decided that matters pertaining to whether a person was a Muslim
or not was under the jurisdiction of the Syariah Court and not the civil courts. The sole dissenting
judge held the view that Article 121 (1A) which prevents the civil court from infringing on the
jurisdiction of the Syariah court does not exclude the civil court’s power to conduct judicial review
on administrative matters. In his opinion, the civil court would only be prevented from intervening
with lawful decision by the Syariah court within its jurisdiction. In the context of this case, the
dissenting judge held the view that the civil courts have the power to intervene in this case. The
Court of Appeal decision effectively deprives the claimant of her right to legal recourse in the civil
courts for the dispute at hand. The lawyers of the case have filed for an appeal to the Federal Court
in the hope of a judgment that would remedy the situation.
While the Judiciary remains reluctant to adopt a clear stance on this matter, the Perlis Religious
Council issued a landmark fatwa on the 27th July 2015 on the matter. The Fatwa states that it is
more appropriate to give child custody to the parent who is more suitable irrespective of their
faith9. While the decision to issue this fatwa is laudable and would likely offer a breathing room for
those affected by it, it remains to be seen whether the religious council of other states would find
it agreeable and adopt a similar stance. It should also be noted that this fatwa does not address the
issue of unilateral conversion of minors which gave rise to the whole problem in the first place.
Construction of new places of worship
In April 2015, a church in Taman Medan, Petaling Jaya was forced to take down its cross following
protests by a group of local residents10. The protesters were subsequently probed under PAA and
charged for trespass under the Penal Code. On this instance, the Home Minister declared the protest
to be seditious while the Inspector-General of Police argued that the protest was not seditious in
nature.
A protest of a similar nature occurred in May at Puncak Alam, Kuala Selangor regarding the
construction of a Hindu temple in the Muslim-majority area11. In both cases, police took minimal
action against the organizers of the protests.
Conversion issues pertaining to minors
The unfortunate series of events plaguing G Thiyaggurudeen and the subsequent suicide attempt by
the 14 year-old12 reveals the absence of protection for those suffering from harassment by religious
groups. The alleged harassment includes teachers forcing the young boy to drink ‘holy water’ and
prolonged indoctrination sessions. Despite the police report filed in relation to the harassment
suffered by the victim and his father, no police action was taken against the alleged perpetrators.
8 More information on Indira Gandhi’s case can be traced at HAKAM’s website, <http://hakam.org.my/wp/index.php/
tag/m-indira-gandhi/> accessed 16 March 2016.
9 ‘Non-Muslim parents allowed child custody under new Perlis fatwa, says report’, the Malaysian Insider, <http://www.
themalaysianinsider.com/malaysia/article/non-muslim-parents-allowed-child-custody-under-new-perlis-fatwa-says-report>
accessed 23rd November 2015.
10 ‘Under the Najib Regime: PJ church forced to take down cross as ‘locals’ protests’, Malaysia Chronicle, <http://www.
malaysia-chronicle.com/index.php?option=com_k2&view=item&id=496891:under-the-najib-regime-pj-church-forced-totake-down-cross-as-locals-protest&Itemid=2#axzz3kjpJKJ46> accessed 23rd November 2015.
11 Melissa Chi, ‘Muslim residents protest against planned building of Hindu temple in Kuala Selangor’, the Malay Mail
Online,<http://www.themalaymailonline.com/malaysia/article/muslim-residents-protest-against-planned-building-of-hindutemple-in-kuala> accessed 23rd November 2015.
12 Mariam Mokhtar, ‘Religious Fanatics who wreck lives’, Free Malaysia Today, <http://www.freemalaysiatoday.com/
category/opinion/2015/03/13/religious-fanatics-who-wreck-lives/> accessed 23rd November 2015.
52
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In Miri, Sarawak, it was alleged that a 13 year-old Sabrina Ngumbang was converted to Islam
without her parent’s consent by one of her teachers. In an interview, Sabrina stated that her teachers
had provided money for her to purchase prayer clothing after a pre-conversion ceremony. A police
report was subsequently made against her teacher for alleged attempt to convert Sabrina to Islam
without her parents’ consent13. Despite the publicity received, Datuk Fatimah Abdullah, Minister
for Women, Family and Community Development denied that there had been attempts to convert
Sabrina to Islam14.
As one of the signatories of the United Nation Convention on the Right of the Child (UNCRC)(it is
noted that Malaysia maintains reservations to Article 14 of UNCRC which relates to the child’s right
to freedom of thought, conscience and religion, this reservation does not grant for any government
or state entity an exemption to the incidents described in earlier paragraphs), it is deplorable that
both the federal and state government did not take adequate action to protect the rights and interests
of the minors involved in these cases.
Undue Harassment against Religious Minorities
Apart from the call by certain quarters for the removal of the cross from the church in Taman Medan,
other incidents of harassment have also taken place in one form or another. In June, a parent of a
secondary student studying in Shah Alam lodged a police report after a discipline teacher confiscated
the cross shaped necklace the student was wearing as the student had apparently violated school
regulations15.
A missionary school, Sekolah Rendah Kebangsaan St. Mary Lubok in Sandakan, Sabah was told
by parents and teachers to remove a cross installed outside one of its buildings. The schoolboard
chairman opted to retain the cross as the Ministry of Education’s policies allowed for missionary
schools to retain its symbols. On the 24th June 2015, the issue was considered to be resolved
following a statement by Deputy Education Minister, Datuk Mary Yap confirming that missionary
schools in Malaysia are allowed to retain their ethos and characteristics16.
In June 2015, a group championing the interests of non-Muslim students lodged a complaint
with Kedah’s Education Director for a comment made by a senior teaching staff at Sekolah Rendah
Kebangsaan Ibrahim in Alor Setar. The teaching staff in question allegedly instructed non-Muslim
students to only drink water in the toilet and to drink unfiltered tap water from the toilet or their
own urine if they did not bring their own water to school. Datuk Tajul Urus Mat Zain, assemblyman
for Tanjong Dawai, claimed that the statement made by the senior teaching staff was meant to be
a joke and was misquoted17. Deputy Education Minister, P Kamalanathan, stated that the Ministry
was awaiting report on the matter and such practices were not the policy of the Ministry and that if
13 Desmond Davidson, ‘Sarawak teenager says teachers tried to convert her to Islam’, The Malaysian Insider, <http://www.
themalaysianinsider.com/malaysia/article/sarawak-teenager-says-teachers-tried-to-convert-her-into-islam1> accessed 23rd
November 2015.
14 Oleh Steve Annuar, ‘Tiada proses Islamkan Sabrina: Fatimah’, The Borneo Post Online, <http://www.theborneopost.
com/2015/03/28/tiada-proses-islamkan-sabrina-fatimah/> accessed 23rd November 2015
15 Alyaa Azhar, ‘Student’s cross necklace seized by school’, MalaysiaKini, <https://www.malaysiakini.com/news/302802>
accessed 18 February 2016
16 Julia Chan, ‘Sabah mission school resists bid to shift cross from building façade’, The Malay Mail Online, <http://www.
themalaymailonline.com/malaysia/article/education-department-to-probe-alleged-order-on-sabah-mission-school-to-remo>
accessed 18 February 2016.
17 Melissa Chi, ‘Teacher’s ‘drink urine’ joke misunderstood, Kedah exco claims, the Malay Mail Online, <http://www.
themalaymailonline.com/malaysia/article/teachers-drink-urine-joke-misunderstood-kedah-exco-claims>
accessed
18
February 2016.
53
the statement made was true, action would be taken against the breach of Ministry policy18. Deputy
Education Minister, Mary Yap responded to queries by media and stated that the teacher in question
will be reprimanded and counselled.
Inter-Religious Violence
Despite the mounting religious intolerance portrayed by selected media and extremist groups,
there have been positive developments throughout the year. While acts of vandalism against places
of worship still occurred in 2015, there were only two incidents recorded in 2015 compared to
preceding years. There was a firebomb against a church in Penang which caused minor damage. The
other was an incident in which a slab of pork was left in front of a mosque in Penang.
Dr. Kassim Ahmad
In December 2015, the Court of Appeal unanimously decided that the arrest, detention and
prosecution of Muslim scholar Kassim Ahmad earlier in the year was unlawful and declared to be
null and void19. Dr. Kassim Ahmad was arrested for allegedly insulting Islam and disobeying a Fatwa
by the Federal Territories Islamic Department (JAWI) on March 26. At this juncture, the prosecution
has appealed against the decision and Dr. Kassim Ahmad’s case is pending at the Federal Court.
The Halal Trolley Controversy
In November 2015, a controversy arose over the usage of segregated shopping trolleys. On their
own initiative, Hypermarkets in Kuala Lumpur have decided to introduce Halal and Non-Halal
trolleys for the use of shoppers although there was no such requirement by law.
The Domestic Trade, Cooperatives and Consumerism Ministry revealed that it had only encouraged
supermarket operators to segregate the trolleys. Nevertheless, it has proposed to include guidelines
on the segregation of trolleys to be part of business licensing requirements in the future20.
Various groups and individuals have since came out with public statements and views on the
matter. Ikatan Muslimin Malaysia (ISMA)’s president, Abdullah Zaik Abdul Rahman held the view
that implementing such policy is impractical as it is not possible for each and every trolley to be
monitored for contamination21. Independent Muslim preacher, Wan Ji Wan Hussin, suggested that
such measures were unnecessary as halal and non-halal products are already stocked in segregated
sections22.
After the initial controversy and mixed responses from public, the matter died down
further public statements by the relevant ministries.
with no
18 Elizabeth Zachariah, ‘Ministry investigates claims that non-Muslim students asked to drink urine’, The Malaysian
Insider,
<http://www.themalaysianinsider.com/malaysia/article/ministry-investigates-claims-that-non-muslim-studentsasked-to-drink-urine> accessed 18 February 2016.
19 Alyaa Alhadjri, ‘Kassim Ahmad’s arrest by Jawi ‘unlawful’, court rules’, MalaysiaKini, <https://www.malaysiakini.com/
news/324055> accessed 22nd March 2016
20 Bernama, ‘Ministry mulls guidelines on halal, non-halal trolleys’, MalaysiaKini, <https://www.malaysiakini.com/
news/327465> accessed 22nd March 2016
21 ‘Halal trolley’ plan draws flak’, the Star Online, <http://www.thestar.com.my/news/nation/2015/11/14/halal-trolleyplan-draws-flak-move-would-only-promote-segregation-groups-warn/> accessed 22 March 2016
22 Ida Lim, ‘No need for ‘halal’, ‘haram’ trolleys, Muslim preacher says’, The Malay Mail Online, <http://www.
themalaymailonline.com/malaysia/article/no-need-for-halal-haram-trolleys-muslim-preacher-says> accessed 22nd March
2016
54
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Conclusion
Freedom of religion and belief has remained contentious in 2015 despite the absence of overt
violence and intimidation. For the most part, the improvement witnessed throughout 2015 can
be arguably attributed to the current political situation. With faltering public support for PAS and
the absence of clear support for the newly minted Parti Amanah, a splinter group from PAS, the
showmanship between the ruling government and the opposition on issues pertaining to Islam is
currently in low key.
In light of the reluctance by the Judiciary to take a clear stance on the supremacy of the civil
courts in the judicial process involving unilateral conversions of minors, the government must take
proactive steps to remedy the current jurisdictional impasse. Any amendment must clearly address
the existing conflict of jurisdiction between the civil courts and Syariah courts. It should also be
noted that all amendments in this regards should be made in line with recognized international
standards and in line with the provisions of the United Nations Convention on the Rights of the
Child and other international bill of rights.
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GENDER & SEXUALITY
The common assumption is that lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ)
is a single identity or group that faces the same issues. The reality is that the LGBTIQ umbrella is
an alliance of people of diverse sexual orientations, gender identities, gender expressions and sex
characteristics, who share similar experiences and forms of oppressions, including the binary system
that only privileges the male-female binary; patriarchy; heteronormativity1, and cisnormativity2
among others.
As a diverse group, it stands to reason that the issues faced by LGBTIQ persons are varied and
unique. ‘On the Record: Violence against LBT persons in Malaysia’ a report by KRYSS and Outright
International documents a range of discrimination faced by lesbian, bisexual, trans and gender
diverse people, including pengkid3. This includes experiencing violence as a result of ‘coming out’4
or being outed (the involuntary disclosure of sexual orientation and gender identity). Repercussions
have ranged from withdrawal of emotional and financial support by family members, physical
violence, forcibly sent or persuaded to meet mental health professionals among others. The family
plays both the role of perpetrator of violence, and support system.
Other forms of violence documented include: verbal violence including sexual slurs, religious
condemnation, name-calling and cat calling by strangers in public places, and denial of employment
opportunities based on gender expression and gender identity. Unlike the cisgender5 respondents,
trans women were more vulnerable to encounters and violence by state authorities, namely police
and state religious authorities. This has included unwanted sexual invitations, arbitrary arrests, long
stops at roadblocks, and being subjected to probing questions regarding gender due to mismatch in
identification card because of their gender identities.6
Malaysia’s legal framework contains provisions that directly discriminate against LGBT persons.
As a postcolonial country, Malaysia inherited Section 377 of the Penal Code from the British,
1 Behaviour or attitudes consistent with traditional male or female gender roles – ‘Heteronormative’, Dictionary.com,
<http://www.dictionary.com/browse/heteronormative> accessed 28 March 2016
2 Where gender identity matches an individual’s body and the gender assigned to them at birth – ‘Definition of
“Cisgender”’, The Queer Dictionary, <http://queerdictionary.blogspot.my/2014/09/definition-of-cisgender.html> accessed 28
March 2016
3 Malay slang describing girls who dress or present themselves in masculine manner
4 Coming out of the closet, or simply ‘coming out’, is a term for lesbian, gay, bisexual, pansexual, transgender, and asexual
(LGBTIQ+) people’s self-disclosure of their sexual orientation (or lack thereof) and/or gender identity.
5 Designating a person whose sense of personal identity corresponds to the sex and gender assigned to him or her at birth
(See: ‘Cisgender’ has been added to the Oxford English Dictionary The Independent, 25 June 2015.
6 KRYSS & Outright International, On the Record: Violence against lesbian, bisexual and trans people in Malaysia, (New
York: 2014).
58
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Gender & Sexuality
which criminalizes carnal intercourse against the order of nature. Section 377 A and B criminalize
consensual carnal intercourse between adults, while Section 377C criminalizes non-consensual
carnal intercourse. It is important to note that the Penal Code regulates sexual acts of all persons
regardless of sexual orientations and gender identities, and limits sex to procreation.
In addition to the Section 377, many syariah laws have been introduced that criminalize lesbian,
bisexual, gay, and trans people. Unlike the Penal Code 377, liwat is defined as sexual relations
between men, while musahaqah is defined as sexual relations between women. A case in relation
to musahaqah was reported in September 2014, involving two women students who were arrested
in a hotel in Johor during a raid on the eve of the Merdeka day by the Johor Islamic Religious
Department (JAIJ).7 Both were investigated under Section 26 of Johor’s Syariah Criminal Offences
Enactment 1997.8 No known cases of liwat have been reported thus far.
The ‘male person posing as a woman’ state syariah laws, which prohibits ‘male‘ person posing as
woman or wearing women’s attire in public, subjects transgender women, who express themselves
as who they are and their lived experience of gender, to arbitrary arrests and detention. There are
two iterations of this law. In Kedah, Kelantan, Negeri Sembilan, Perlis and Sabah, where these laws
were first introduced, the law prohibits any male person who poses as woman, or wear women’s
attire in a public place.
In the remaining eight states and the Federal Territory, an additional caveat ‘immoral purposes’
is included. However, immoral purposes remain arbitrary and subjective, and the application of
the law is similar in most states. I am Scared to be a woman, a report by Human Rights Watch
documents some arrests experienced by trans women in Malaysia, which include arbitrary arrests
of women who simply exercise their freedom of movement, raids at beauty pageants, arrests of
outreach workers who provide safer sex and sexual health information to people, performers at
clubs, and sex workers.9
It is imperative to note that transgender persons in Malaysia, and across the world experience gross
discrimination in many areas, including employment.10 Often, sex work becomes the only economic
option available to them. This underscores a structural dimension to oppression faced by transgender
persons across borders, religion, ethnicity, and more. Transgender persons are marginalized as a
population. In addition, trans women who are sex workers face double stigma and criminalization
because of the laws and taboo around sex work. The criminalization of sex work and the lack of legal
recognition of sex work as work further makes them vulnerable to violence, denies and restricts
them access to legal remedies, and dehumanizes them.
In three states in Malaysia–Perlis, Sabah, Pahang- a female person posing as a man is an offence.
These laws were introduced between 1985 and 2012.
om,
n of
d 28
xual
birth
New
7 Mohd Firdaus Yon, Dua siswi bernafsu songsang dicekup, Sinar Harian, 1 September 2014
8 Section 26. Musahaqah. Any female person who commits musahaqah shall be guilty of an offence and shall
on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding
three years or to whipping not exceeding six strokes or to any combination thereof. (see: Enactment No. 4 Of 1997
Syariah Criminal Offences Enactment 1997 Part Iii - Offences Relating To The Sanctity Of The Religion Of Islam And Its
Institution http://www.esyariah.gov.my/portal/page/portal/Portal%20E-Syariah%20BI/Portal%20E-Syariah%20Carian%20
Bahan%20Rujukan/Portal%20E-Syariah%20Undang-Undang/Portal%20E-Syariah%20Undang2%20Johor)
9 Human Rights Watch, I am Scared to be a Woman: Human Rights Abuses against Trans People in Malaysia, (September
2014).
2014) pages 48-50.
59
Year
State
Fine
Imprisonment
Kelantan
Section
Section 7. Pondan*
1985
1,000
≤ 6 months
1988
Kedah
Section 7. Pondan
1,000
≤ 6 months
1991
Malacca
Section 72. Male person posing as a
woman
1,000
≤ 6 months
1991
Perlis
Section 7. Pondan
5,000
≤ 3 years
1991
Perlis
Section 7. Pondan (female person
posing as a man)
5,000
≤ 3 years
1992
Perak
woman
1,000
≤ 6 months
1992
Negeri
Sembilan
woman
1,000
≤ 6 months
1995
Sabah
woman, or vice versa
1,000
≤ 6 months
1995
Selangor
woman
1,000
≤ 6 months
1996
Penang
woman
1,000
≤ 1 year
1997
Federal
Territory
woman
1,000
≤ 1 year
1997
Johor
woman
1,000
≤ 1 year
2001
Sarawak
woman
1,000
≤ 1 year
2001
Terengganu Section 33. Male person posing as a
woman
1,000
≤ 1 year
2012
Pahang
woman
1,000
≤ 1 year
2012
Pahang
Section 34. Female person posing as
a man
1,000
≤ 1 year
*Pondan is a pejorative term in Malay.
an
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Application of Penal Code 377
The prosecutions of then Opposition coalition leader Anwar Ibrahim in 1998 and later in 2008
have had significant on-going impact on LGBTIQ activism and discourse in Malaysia. Significantly,
the prosecutions have rolled back tolerance and acceptance towards LGBTIQ persons, and pushed
LGBTIQ issues to the centre of Malaysian politics. Accordingly, LGBTIQ activists and groups are
often conflicted and divided on Anwar Ibrahim’s case.
In February 2015, Anwar Ibrahim was sentenced to five years in jail for allegedly having consensual
carnal intercourse with his then political aide, Saiful Bukhari. On the one hand, the case was framed
as sexual harassment at the workplace. On the other, the case was seen as political sabotage in
60
11
carn
year
12
Esta
13
on ‘S
14
15
16
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008
ntly,
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are
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Gender & Sexuality
an attempt to remove and prevent Anwar Ibrahim from contesting in the Kajang by-election in
2014. Following Anwar’s conviction under Section 377B11, which criminalises consensual carnal
intercourse, many called for the arrest of Saiful Bukhari. It was alleged that Anwar Ibrahim was
selectively prosecuted12 since the mutual consent of both parties in the sexual act implies that all
parties should be held criminally liable.13
The trial was followed by an allegedly state-funded nationwide roadshow14, headlined by Shafee
Abdullah, a private lawyer who was appointed ad-hoc deputy public prosecutor in Anwar Ibrahim’s
sodomy appeal. He divulged details of the case, mostly sexual in nature, to the audiences. During
the roadshow, he further fetishized and eroticized the case, which clouds an already skewed
perception towards LGBTIQ persons. These efforts perpetuated an erroneous view that reduces
LGBTIQ persons to sex or sexual acts, and fetishizes LGBTIQ persons. This narrow view of LGBTIQ
persons ignores the multiple and gross violations of human rights that LGBTIQ persons experience
because of sexual orientation, gender identity, gender expression, and sex characteristics.
This vilification and scapegoating of LGBTIQ persons have generated negative ramifications on
the freedoms enjoyed by the LGBTIQ community in Malaysia. It has contributed to fostering an
environment that is increasingly hostile to LGBTIQ persons and allows the public policing of
morality with impunity. Among others, this has included the ongoing and state supported or led
efforts to promote anti-LGBT sentiments through plays like Asmara Songsang in 2013, Friday prayer
sermons, corrective programmes such as boot camp for secondary students who were perceived to
be gay based on gender expression, 15 and religious programmes like muhkayyam for trans women.16
Reinstatement of Section 66 by the Federal Court
On November 11, 2014, the Court of Appeal declared Section 66 of the Negeri Sembilan state
syariah criminal offences act unconstitutional on the grounds that it violates:
•
Article 5(1) which guarantees personal liberty, right to live with dignity, and right to
livelihood/work
• Article 8 (1) which guarantees equality before the law and equal protection of the law
• Article 8 (2) which guarantees no discrimination on the grounds of gender
• Article 9 (2) which guarantees freedom of movement
• Article 10 (1)(a) which guarantees freedom of expression. A person’s dress, attire and articles
of clothing are form of expression.
“Any male person who, in any public place, wears a woman’s attire and poses as a woman shall
be guilty of an offence and shall on conviction be liable to a fine not exceeding 1,000 ringgit or to
imprisonment for a term not exceeding 6 months or to both.”
Section 66 of Negeri Sembilan Syariah Criminal Offences
11 Section 377B. Punishment for committing carnal intercourse against the order of nature. “Whoever voluntarily commits
carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty
years, and shall also be liable to whipping.”
12 Press Release | Conviction and Sentence of Dato’ Seri Anwar Ibrahim for Sodomy II: Justice is Not Only a Fact to be
Established; It Must Also be Seen to be So Established, 9 March 2014.
13 Human Rights Watch “Malaysia: End Political Persecution of Anwar: Drop Appeal of Verdict; Revoke Colonial-Era Ban
on ‘Sodomy’”, Human Rights Watch, 16 September, 2013
14“Umno’s turn to go public on Anwar’s sodomy case, says Khairy,” The Malaysian Insider, 17 February, 2016.
15Kate Hodal, Anti-gay musical tours Malaysian schools and universities, The Guardian, 28 March 2013.
16 Zurairi Ar, Jakim’s ‘spiritual camp’ tried to ‘change’ us, lament Muslim transgenders, The Malay Mail Online, 23
November, 2014.
61
Following the landmark decision, the Negeri Sembilan state government filed an appeal to review
the decision by the Court of Appeal. The Negeri Sembilan state government appointed Shafee
Abdullah, who is also Malaysia’s ASEAN Intergovernmental Commission on Human Rights (AICHR)
representative to represent the Negeri Sembilan state.
At the onset of the hearings in January 2015, the United Malay National Organization (UMNO)
for the first time was allowed by the Federal Court to hold a watching brief.17 According to Datuk
Khairul Anwar Rahmat, a lawyer leading the watching brief, UMNO has a deep interest in the case
as the party has over three million Muslim members. The details of the case were reported to the
president of the party, Najib Razak, who is also the Prime Minister of Malaysia.18 In addition, the
state religious councils from Selangor, Perak, Penang, Johor and the Federal Territories also applied
to appear as interveners. However, their applications were denied as the lead counsel for the trans
women, Aston Paiva argued that the case is a purely secular matter which only concerns the state as
the Negeri Sembilan state legislative council passed the law.19
On 8 October 2015, the Federal Court dismissed the case on technical grounds, and set aside the
two orders by the Negeri Sembilan High Court and Court of Appeal to hear the application. The
Federal Court was of the view that the trans women should have sought permission (leave) of the
Federal Court before instituting their constitutional review for breach of their fundamental rights.
Section 66 was reinstated. The decision left the transgender community in a legal limbo – that is,
whether to file a fresh application at the Federal Court or appeal the decision by the Federal Court
at the Federal Court.
The state clearly has a vested interest to protect its preferred interpretation of Islam to retain its
conservative voter base. The transgender case signified a shift in thinking and attitude towards
transgender persons, and to some degree LGBTIQ persons. It also marked a progressive shift in
tolerance and the readiness of society to discuss issues faced by transgender persons, which was also
a departure from the state’s position. The repeated vilification of liberalism, pluralism and LGBT
persons collectively demonstrates the state’s glaring conservative positions, and a growing rift in
views and philosophy between the ruling government and some sections of the population.
Further, the Section 66 constitutional review unravelled many everyday intersections that affect
all people regardless of gender identity and religion, including freedom of expression, the role of
religion in public policy, and flaws in the system which was supposed to protect the fundamentals
freedoms of its citizens. In addition, the decision by the Court of Appeal also presented opportunities
for other challenges of laws that govern public morality and private lives like close proximity and the
consumption of alcohol in the Syariah Criminal Offences Act. This was a particular rallying point
for conservatives and a moral panic was created in the media. The response by the state, however,
suggested that it has a vested interest in curbing any kind of intellectual and cultural shift that upsets
the status quo.
17 Umno holds watching brief in transgender case, Malaysiakini 27 January 2015,
18 Zurairi AR, “In unprecedented move, Umno sends legal reps to observe transgender case”, The Malay Mail Online,
January 27, 2015.
19 Zurairi AR and Mayuri Mei Lin, “Apex court slams door on five Islamic councils wanting in on transgender case appeal,”
The Malay Mail Online, January 27, 2015.
62
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Gender & Sexuality
Arrests of transgender women
In June 2015, nine trans women were arrested at a private birthday party in a hotel in Kota Bharu,
Kelantan.20 The trans women were charged under Section 7 of Kelantan’s Syariah (Sharia) Criminal
Code of 1985, which states that “Any male person who, in any public place, wears woman attire
and poses as a woman shall be guilty of an offence and shall be liable on conviction to a fine not
exceeding one thousand ringgit or to imprisonment for a term not exceeding four months or to
both.”
All of them pleaded guilty, and none of them were represented by a lawyer. Two of them were
sentenced to jail and fined, while the rest were released with a fine only. Following the sentence, the
two women engaged a lawyer, who assisted them to immediately file an appeal and stay of execution.
Section 7 and other similar laws that subject trans women to arbitrary arrests based on their
gender identity and gender expression blatantly restrict the right to self-determination, freedom of
movement, freedom of assembly and association, and the right to livelihood. These laws empower
state actors to violate the rights of transgender persons with impunity. The report, ‘I am Scared to be
a Woman’ reports multiple violations of human rights These include physical violence; emotional,
psychological and verbal violence like shaming, religious condemnation; sexual violence, public
humiliation; and violation of privacy by being paraded to the media.21
Between 12 and 21 October 2015, Justice for Sisters, an advocacy group on trans issues documented
a spate of arrests in Kuala Lumpur and Terengganu. A total of 21 trans women of diverse nationalities
were arrested by different state actors, including the state religious departments and the immigration
department.22
Name and gender marker in identification card and legal documents
All Malaysians have an identification card, a strategy introduced by the British during the communist
insurgence in Malaya in 1948.23 The present day identification card includes name; gender marker;
national registration identity card number, a series of unique digits that also indicate gender; and
religion, if holder of the card is assigned a Muslim at birth. The last digit of the number indicates
gender/sex (used interchangeably) with an odd number for men/male, and an even number for
women/female.
The identification card remains a major issue for transgender persons, as the denial of name and
gender marker change has an adverse impact on access to basic rights like education, employment,
healthcare, housing and so forth. Further, this also allows transgender persons to be vulnerable to
arbitrary arrests, stigma, humiliation, and violence.
20 Human Rights Watch, “Malaysia: Court Convicts 9 Transgender Women”
22 June, 2015.
2014) page31
22 Justice for Sisters, “Violence against trans women increase following the decision by the Federal Court” 26 October
2015
23 Malcolm Warner, Culture and Management in Asia, Routledge, 5 March 2014, pg 117
63
Contrary to anti-transgender propaganda by the state, transgender people have always existed in
society, and prior to the 1980’s enjoyed considerable rights in Malaysia.24 Transgender women,
who had undergone gender affirmation surgeries, were allowed to change their name and gender
marker in their identification card upon obtaining a court order to instruct the National Registration
Department to change the details. In addition, gender affirmation surgeries were also provided in a
semi-government hospital in Petaling Jaya, Selangor in the 1980s. The Persatuan Mak Nyah Wilayah
Persekutuan, a short-lived association established by transgender women in the 1980s, had received
funding from the Welfare Department in the Federal Territory to start small businesses. However, the
rights of transgender persons deteriorated dramatically in tandem with the Islamization of Malaysia,
which prompted the introduction of laws, policies and fatwa that criminalized transgender persons.
The association was later shut down due to pressure by religious and conservative groups.25
In June 2015, the Kuala Lumpur High Court dismissed a trans woman’s application to legally
change her name and gender marker in her identification card. The woman submitted two medical
reports to confirm that she had undergone gender affirmation surgeries. However, the presiding
judge, Datuk Asmabi Mohamad, was of the opinion that the reports did not satisfy the four factors chromosomal, gonadal, genital and psychological - needed for the court to determine the applicant’s
gender.26
At this juncture, it is important to remember that gender identity is not solely determined by genitals
or chromosomes. Sex and gender identity are two different categories that are interrelated but
distinct from one another. Moreover, both these categories are not binary to one another. Sex refers
to a combination of chromosomes (XX. XY, XXY, XYY, XO, etc.), internal and external reproductive
organs, hormones and secondary characteristics. Typically, people with XX chromosome are known
as female, whereas, XY are known as male. In reality, there is a spectrum of people with diverse mix of
chromosomes, internal and external reproductive organs, hormones and secondary characteristics.
Known in the literature as intersex, people with intersex characteristics face unique challenges,
including non-consensual genital mutilation.
In Malaysia, persons with intersex status are called khunsa in the Malay language. In 1983, the
National Fatwa Council issued a religious decree to prohibit gender affirmation surgeries for
transgender people but an exception was included for persons with intersex status. However, very
little or no research or data regarding intersex persons in Malaysia is available and accessible. Stigma
towards intersex persons and lack of language and information further hinder people from speaking
out regarding intersex issues.
24 Michael Peletz in his book “Gender Pluralism in South East Asia” [give year of publication & publisher] provides
evidence of the existence and tolerance towards sexual and gender fluidity in Peninsula Malaysia, Sabah and Sarawak until
the 1980s. Peletz notes that sida-sida, or gender fluid individuals similar to transgender women in the present day, lived
in the inner chambers of the palace in Kelantan, Negeri Sembilan, Malacca, and other states in present day Malaysia. A
renowned Malaysian anthropologist, Shamsul Amri Baharuddin, supports the claim and describes sida-sida as ‘typically
‘male–bodied’ individuals who assumed many mannerisms of females along with female or ‘mixed’ (dual-gendered) attire.’
Peletz also discusses manang bali in the Iban and Dayak community, as well as Balian or basir from the Ngaju Dayak
community. Similarly, they were also individuals nominally identified as women who performed roles such as shamans,
healers, and acted as meditators between humans and gods.
25 KRYSS and Outright International, On the record: violence against LBT in Malaysia, New York, 2014.
26 Ida Lim, “Transgender fails court bid to change identity to woman, judge says ‘hands tied’”, The Malay Mail Online, 19
June 2015.
64
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Gender & Sexuality
Gender identity refers to one’s internal, deeply held sense of one’s gender27 and how one identifies
as a girl/woman, boy/man or both, neither or other gender categories. When a child is born, he or
she is assigned a gender based on their genitalia. However, these assignments may not necessarily be
accurate. People whose lived experiences are different from the gender assigned to them at birth are
known as transgender or gender fluid, gender queer or gender non-conforming people. Individuals
whose lived experiences match the assigned gender at birth are known as cisgender persons.
Given the development in the understanding of gender, many countries in Latin America, South
Asia, Europe and North America have introduced gender recognition laws that allow transgender
persons to change their name and gender markers in their legal documents without medical
interventions or surgeries. The process is envisioned to be ”quick, transparent and accessible” gender
recognition procedures, based on self-determination. The Gender Identity, Gender Expression and
Sex Characteristics Act in Malta, for example, require a simple declaration based on a person’s selfdetermination procedure before a notary and prohibits requests for medical information. The entire
process does not exceed 30 days.28
Hate speech
tals
but
fers
tive
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ics.
ges,
On 18 August 2015, Prime Minister Najib Razak said in a speech that the government will defend
human rights in Malaysia, but only “in the context of Islam and the syariah”.29 In his speech, he
claimed and accused LGBT groups as well as other liberal and extremist groups, of using human
rights to legitimize their acts, which in his views are deviant in Islam. He further lumped together
the terrorist group, Islamic State and LGBTIQ groups, and claimed that the groups are successful in
spreading their propaganda to young people.30 This statement came a few days after a hearing of the
appeal of the Court of Appeal’s decision on Section 66 on August 13, 2015 at the Federal Court. The
statement hinted a bleak outcome for the litigants and the transgender community.
the
for
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A similar statement followed suit in September 2015, issued by Datuk Seri Nazri Aziz, Malaysia’s
Minister for Tourism and Culture. He emphasized that while the Federal Constitution guarantees
the rights of all people, LGBT persons will never be able to lead their ‘lifestyles’, as in his view an
LGBT ‘lifestyle’ is contrary to the teachings of Islam. As such, he claimed, “… there is no way for the
LGBT to be given equal rights even though they may argue that human rights should be the rights
of everyone.”31
ides
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ayak
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, 19
This is not the first time Najib and his administration have made unsubstantiated, unscientific,
irrational and hateful comments towards LGBTIQ persons. In June 2015, in response to the US
Supreme Court’s decision on marriage equality, Najib dismissed pride parades as incompatible with
the Malaysian lifestyle, and hinted that deviant cultures are slowly creeping into Malaysian lives.32
Najib had also previously remarked in 2012 that LGBT, liberalism and pluralism are ‘enemies of
Islam’.
27 ‘GLAAD Media Reference Guide – Transgender Issues’, GLAAD, <http://www.glaad.org/reference/transgender> accessed
28 March 2016
28 Malta Adopts Ground-breaking Trans and Intersex Law – TGEU Press Release, TGEU, 1 April 2015.
29 Syed Jaymal Zahiid, “Najib: Putrajaya will defend human rights, but only in the context of Islam” The Malay Mail
Online, August 18, 2015.
30 Bernard Cheah, “Najib: M’sians must defend definition of human rights”, The Sun Daily, 18 August 2015.
31 Shazwan Mustafa Kamal, “LGBTIQ community will never have equal rights in Malaysia, tourism minister says,“ The
Malay Mail Online, 11 September 11, 2015.
32 Kamles Kumar Najib: No need for gay parades here, The Malay Mail Online,
30 June, 2015.
65
While the anti-LGBTIQ rhetoric is more consistent from government and ruling coalition members,
individuals from the opposition parties have also made homophobic and transphobic remarks. The
opposition parties have varied positions on the human rights of LGBTIQ persons, from the vague33
to the outright hostile34.
Hate crime
Hate crime and violence towards transgender persons and gender diverse persons are prevalent
but predominantly unreported. Transgender persons, who are already criminalized by the state
and vulnerable to arbitrary arrest, often do not report cases of violence as they fear further ridicule,
arrest, and violence by state authorities, namely police and state religious authorities. There is also
a general sense of lack of trust towards the authorities to investigate the cases in a fair and timely
manner. Further, there is a dearth of information and data regarding transgender persons in general,
due to lack of recognition of transgender persons and disaggregated data.
In September 2015, Nisha Ayub, a human rights defender, who is also a trans woman, was assaulted
near her home by two men with metal rods. Nisha sustained a few injuries as she was escaping the
perpetrators.35
The attack towards Nisha Ayub further underscores the long-standing trend of violence and hates
crime perpetrated against transgender persons, especially trans women in Malaysia. In 2012, 13
trans women lodged police reports following series of attacks by gang members, which began in
September 2011 in Pahang. One of the women received 18 stitches after being slashed in the neck,
and her friends who tried to assist her were also assaulted.36
The incident involving Nisya Ayub also raised speculations regarding the motives of the attack
given her visibility as a human rights defender and the on-going constitutional review of Section
66, which challenged the constitutionality of the Negeri Sembilan state syariah law that criminalizes
trans women on the grounds of their gender identity and gender expression. Her case while reported
to the police, remains unsolved, and the motives remain inconclusive.
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Scapegoating and corruption
LGBTIQ persons are frequently used as scapegoats to justify corrupt practices. In November 2015,
National Oversight and Whistle-blower (NOW), a whistleblower group, questioned the Malaysian
Islamic Economic Development Foundation or Yayasan Pembangunan Ekonomi Islam Malaysia
(YAPEIM) regarding its overseas trips and alleged misappropriation of donated funds. YAPEIM in
response claimed that it had spent RM 290,000 of its funds to organize two marriage courses in Paris
to stamp out LGBT activities in Malaysia. The foundation further claimed that the courses, entitled
“Paris Premier Symposium: Marital Issues, Family, Entrepreneurship and Management”, were part
of their efforts to address criticisms levelled against the government for its lack of attention on the
spread of LGBT culture, namely Malaysian students in UK ‘posting pictures of men kissing each 33
34
35
36
66
Malaysian opposition leader Anwar Ibrahim’s comments on LGBT spark online debate, Friday, 20 May 2011.
Guard against pressure on conversion, LGBT rights, says PAS MP, The Malaysian Insider
Darren Wee, ‘Asia’s LGBTI ‘hero of the year’ attacked in Malaysia’, Gay Star News, 14 September 2015.
Serial gang-attacks on transgender women in Malaysia, Friday, 16 February 2012.
LG
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Gender & Sexuality
other on the lips’.37 It was later revealed in the exposes by NOW that the YAPEIM had, in addition,
allegedly utilized its funds for ‘unnecessary’ trips overseas, and to purchase a golf stimulator for the
foundation’s recreational center.38
It is also extremely troubling that government agencies and linked groups actively seek to correct,
oppress and suppress the rights of LGBTIQ persons in Malaysia. In November, it was also revealed
that JAKIM had received over RM 860 million in 2015 via the national budget for its activities
and operational costs. Datuk Dr Asyraf Wajdi Dusuki, deputy minister in charge of Islamic affairs
advocated for an increase of budget, RM 1 billion to be exact, as the allocation of over RM 720
million would not be sufficient to address the better combat “extremist” ideologies, such as the
Islamic State (IS), and liberalism, pluralism and the lesbian, gay, bisexual and transgender (LGBT)
community.39
Datuk Dr Asyraf Wajdi said:
“It’s time for the allowances of imams, religious teachers and staff throughout Malaysia to be reviewed
for an increase. This year alone, the allocation of allowances for imams and religious teachers
amounted close to RM500 million, seeing that their responsibility in safeguarding Islam is even more
challenging today with plenty of extremist ideologies that are starting to take root, such as IS, the
liberalism ideology and pluralism, including the LGBTs who loosen and degrade religion”.
Moral policing and online violence
In January 2016, a viral video of a trans woman who had a ‘nip slip’, a phrase to describe accidental
nipple exposure, pop outs and the likes, during her impromptu performance with a group of buskers
in a mall in Kota Kinabalu, sparked a backlash of transphobic and misogynistic comments in the
online space where the video was posted. Following the news, the Kota Kinabalu city police called
the performance obscene and inappropriate, and warned her to report herself at the nearest police
station.40 A few days later, she surrendered at the police station while accompanied by her sibling. In
the media coverage of the viral video, her facebook name was disclosed, she was misgendered (use
of wrong gender pronouns), and pejorative terms such as transvestite were used to refer to her.41
LGBT asylum seekers and migration of LGBT persons
In March 2015, Suryani Mahmood, a transgender woman, was denied asylum by the Danish
authorities. In her application, she also raised fears and anxiety of being arrested and subjected
to hate crimes in Malaysia.42 She had been arrested, and sentenced to prison for six months while
eating at a public place. In addition, five of her friends, who are trans women had been murdered
37 Joseph Sipalan “Yapeim’s Paris wedding courses part of efforts to curb LGBT threat, Putrajaya says”, The Malay Mail
Online, November 18, 2015.
38 Melissa Chi, So we were right, NOW chief says after Yapeim boss explains golf simulator buy, The Malay Mail Online,
December 26, 2015.
39“Deputy minister: Jakim should get more than RM1b to fight IS, liberalism, LGBT”, The Malay Mail Online, November
22, 2015.
40 Amy Dangin, ‘Transvestite’ performing at Suria Sabah told to report to police station”, The Borneo Post, January 22,
2016.
41 Muguntan Vanar, “Wardrobe malfunction unintentional, says Sabah transsexual”, The Star, 22 January 2016.
42 Malaysian Transgender: Let Suryani Live as a Woman, Planet Transgender, March 24, 2015.
67
in the past 15 years. Suryani had been directly impacted by unilateral conversion. She is a Hindu
woman, who is registered as a Muslim.43
8.
While there is no documentation of migration (voluntary, forcible or otherwise) of LGBTQ from
Malaysia, anecdotal evidence suggests that the lack of freedom of religion, lack of freedom to express
one’s identity, hostile position by the government towards LGBTQ persons, lack of employment
opportunities are compelling factors for LGBTQ persons to migrate to other countries with better
human rights record.
Recommendations:
1. Repeal all laws that directly and indirectly criminalize sexual orientation, gender identity and
gender expressions, including: •
Penal Code 377 Sections A, B and D that criminalize consensual carnal intercourse between
consenting adults, and corresponding provisions in syariah law that criminalize sexual acts
between same sex individuals (liwat; musahaqah); •
Sections in various Syariah enactments criminalizing male persons posing as a man (lelaki
berlagak seperti perempuan) and female persons posing as a woman (perempuan berlagak
seperti lelaki).
2. Repeal fatwas that:
•
Prohibit access to healthcare for transgender persons, including gender affirmation
surgeries, issued in 1982 by the National Fatwa Council; •
Condemn the existence of gender non-conforming individuals, i.e. tomboys or pengkids in
several states (Johor, Kedah, Malacca and Perak). 3. Amend the National Registration Guideline to allow transgender persons to change their
name and gender marker on their legal documents, including identification card and passport,
and adopt quick, transparent and accessible gender recognition procedures based on selfdetermination.
4. Enforcement agencies to end all arrests and detention of transgender persons based on gender
identity, and investigate violence against transgender persons. 5. Government to open and increase access to education, employment, healthcare, housing for
transgender persons. 6. End all hate speeches and anti-LGBT activities, including corrective and boot camps for LGBT
persons. recognize that corrective therapy is an unscientific, unethical, ineffective, and harmful
method, and adopt recommendations by the World Psychiatric Association to increase quality
of life and wellbeing of LGBTIQ persons. 7. Sensitize police and immigration officers on gender identity, gender expression and sexual
orientation
43 LGBT Asylum, Reopen Suryani’s asylum case, <https://www.change.org/p/danish-refugee-board-accept-transgendersas-refugees-and-give-them-protection-when-authorities-in-their-home-countries-are-abusing-and-arresting-them> accessed
28 March 2016
68
The
gen
just
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8. Meaningfully engage LGBTIQ persons to develop strategies to reduce violence against LGBTIQ
persons in all areas and space
om
ress
ent
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The Gender Bear or Beruang Gender is a visual aid that explains the spectrum of sexual orientation,
gender identity, gender expression and sex characteristic. Gender Bear can be downloaded at https://
justiceforsisters.wordpress.com
GBT
mful
lity
ual
dersssed
69
71
ASYLUM SEEKERS AND REFUGEES
The often desperate situation relating to human rights and protection of refugees, asylum seekers
and migrant workers failed to see any particular improvement in 2015. Rather, the many denials
and abuses of the human rights of the women, men and children in these groups found ever more
emphatic highlights and examples over the year. The thousands of refugees and asylum seekers in
Malaysia, and millions of undocumented migrant workers, continue to be denied basic status and
continue to be given scant protection against considerable abuses. This situation is a happy one for
human traffickers, modern day slavers, colluders and others who prey and make profit from groups
like these. It is a situation compounded by the xenophobia or indifference found in the Malaysian
host communities.
Some of the general contexts explaining the profound vulnerability of refugees, asylum seekers
and migrant workers are shared, but some of the details are different. As in our last Report, we will
separate our discussion, and start with the events faced by refugees and asylum seekers in 2015.
rep
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REFUGEES
People may have been a little misled about the situation facing refugees and asylum seekers in
Malaysia. In an exemplary speech given to the UN Special Assembly on November 14th 2015,
Malaysia’s Prime Minister Najib Razak talked about Malaysia’s commitment to the need to ‘transcend
the silos of race and faith’, to respond to those who need our help, seeing ‘not strangers, but our
brothers and sisters’. He talked of ‘that generosity of spirit which goes beyond legal requirements’.
And he stated categorically ‘We cannot – we must not – pass on by’. And of course he promised that
Malaysia would take 3,000 Syrian refugees over three years1.
If only the attitude of the Malaysian government was anywhere near the picture described by the
Malaysian Prime Minister. The reality is almost completely the opposite. As has been dutifully
1 This promise was made before details had been worked out. We had the Minister of Human Resources saying that
refugees not allowed to work; the Deputy Prime Minister saying preference will be given to skilled labour and professionals
and they will be provided temporary employment; and his Deputy reporting that details on how to accommodate the
refugees had not been finalised. See http://www.thesundaily.my/news/1578465
72
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Asylum Seekers and Refugees
reported for the last many years in this annual report and by many others, refugees and asylum
seekers have no rights at all in Malaysia. Even when the attention of the world was focussed on
Malaysia and the region in May 2015, when thousands of women, men and children were stranded
on boats in the Andaman Sea following a crackdown on human traffickers/people smugglers in
Thailand, Najib’s government was in the frontline of those dithering about what to do, trying hard
to refuse to let boats land, and only capitulating to international pressure reluctantly and with
strong provisos. One was that the women, men and children on the boats would not remain in
Malaysia. When people were finally allowed to embark, they were immediately arrested and put into
detention camps with no external organisation allowed near them for weeks.
This stark demonstration of the resistance of the present Malaysian government to give any status
to refugees and asylum seekers reflects the way it has been treating refugees and asylum seekers in
this country for years. Malaysia is not a signatory of the 1951 Refugee Convention or associated
treaties and protocols. Nor does it provide any recognition of any particular rights, for example
the right to employment or the right to education. As commentators have consistently pointed out,
and demonstrating a reality a million miles away from the rhetoric of Prime Minister Najib’s UN
speech, the Malaysian government provides no legal or administrative framework for refugees or
asylum-seekers in Malaysia. Instead, the Malaysian government has a history of ‘allowing’ refugees
and asylum-seekers to remain in Malaysia, without legal status, and with the implicit assumption
that their stay will be temporary, pending resettlement to a third country. Responsibility for the
assessment, registration, and resettlement is seconded to a third party, namely the United Nations
High Commission of Refugees (UNHCR).
As previous Suaram Human Rights Reports and a plethora of other reports and articles have
catalogued2, the fact that refugees and asylum-seekers have no rights in Malaysia – including
no rights to employment or education – has led to a situation where they are living in a highly
precarious environment, subject to arbitrary and humiliating treatment by the authorities. They face
daily harassment, extortion, threats, abuse, violence, and possible detention and even deportation.
To earn a livelihood, they are forced to work in the black economy, as ‘undocumented workers’ with
all the vulnerabilities this brings. It goes without saying that they have absolutely no right to redress
when things go wrong.
Numbers
As of end December 2015, there were some 156,340 refugees and asylum-seekers officially registered
with UNHCR in Malaysia. The vast majority, 143,670 or 92%, were from Burma. These included
45,380 Chins, 52,570 Rohingyas, 12,200 Burmese Muslims, 7,140 Rakhines and Arakanese, together
with persons from other ethnic minorities in Burma. In addition, the UNHCR had registered 12,670
refugees from other countries, including 3,280 Sri Lankans, 1,480 Pakistanis, 1,410 Somalis, 1,310
Syrians, 1,250 Iraqis, 990 Yemenis, 650 Palestinians, and 500 Iranians3.
This figure compares to an overall registration of 150,460 in 2014, of whom 139,200 were from
Burma, including 50,620 Chins and 40,070 Rohingyas.
2 As well as on-going documentation provided online by Burma’s ethnic minority organisations, there are also reports by
Malaysian-based groups and such as Refugees International, Human Rights Watch, Amnesty International and Fortify Rights,
amongst many others.
3http://www.unhcr.org.my
73
Some 70% of those registered are men; 30% are women. 33,640 were children below the age of
18. There is an increasing proportion of women and children in the refugee population in Malaysia.
The UNHCR has reported their concern with certain ‘stateless’ populations in Malaysia, not least the
many thousands in Sabah4. In addition, there are a considerable number of unregistered refugees,
who have not been able for one reason or another to access UNHCR offices in Kuala Lumpur, with
estimates varying from around 35,000 to perhaps double that number.
Registration is important for a refugee, since it is the first step to an interview which, if their
application for refugee status meets UNHCR criteria, qualifies them for a UNHCR Card. While in
no way giving them legal status in Malaysia (which would then give recognition to basic rights),
having a UNHCR Card does give theoretical protection against arbitrary detention, a major factor in
the daily lives of refugees in Malaysia. And, crucially, it also provides some protection at hospitals or
other healthcare facilities, which otherwise will report ‘undocumented’ women, men or children to
the authorities leading to the very real possibility of arrest and detention. Having the UNHCR Card
also gets the refugee(s) into the resettlement queue.
But even this limited system of limited protection (and no explicit recognition of human rights)
has been under strain. The UNHCR has struggled to keep up with the demands of reaching and
registering old and new arrivals. Refugees have been waiting at least two years between their initial
registration and their interview for verification. Many have been waiting considerably longer. They
are highly vulnerable to harassment and detention during this time, and many thousands are indeed
harassed and detained. Those needing healthcare either forego presenting themselves (see below
for further discussion) or, where it is unavoidable (delivery of a baby, for example) have to face the
uncertainty of not knowing if they will be arrested. The long gap between initial registration and the
possibility of getting a UNHCR Card helps explain a market in fraudulent cards, seized upon certain
among the authorities as a reason not to recognise any status at all for refugees5.
As reported in last year’s Report, all this has encouraged the UNHCR to plan for the introduction of
a new biometric card, designed to be as fraud-proof as possible. There is every indication this will
be introduced in 2016 along with a new referral and registration system. This may make a long-term
difference but in the short-term it will almost certainly mean that thousands of refugees already in
Malaysia and desperately in need of registration will still have to wait and wait.
No Legal Status
Of course even if all refugees were registered, UNHCR has no power to confer legal status. There
would still be no real protection, no recognition of basic rights, and refugees would continue to face
the horrific, daily vulnerability to harassment, extortion, arrest, detention and worse. It is hard to
understate the impact this daily insecurity has on the lives of the thousands of refugees and asylum
seekers here in Malaysia. It is utterly traumatic. And this deplorable condition did not change in
2015.
In addition to the 1951 Convention, the Malaysian government continues to avoid signing key
international conventions and treaties, including the International Convention on the Elimination
of all Forms of Racial Discrimination; the International Covenant on Economic, Social and Cultural
4ibid
5See
for
example
immigrant-issue-in-msia/
74
http://www.freemalaysiatoday.com/category/nation/2016/03/17/shahidan-blames-unhcr-for-
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Rights; the International Covenant on Civil and Political Rights; and the Convention against Torture
and other Cruel, Inhuman or Degrading Treatment or Punishment. The signing of these would at
least establish some commitment to principles relating to the behaviour of governments, which
would extend to the treatment of refugees and asylum-seekers.
Situation in Burma
Before discussing specific events in Malaysia in 2015, we should continue to stress that it is
imperative that we see the situation facing refugees and asylum-seekers in Malaysia as crucially
framed in a regional context. Key solutions need to be identified and implemented through regional
and international interventions. The fact that such a huge proportion of refugees are coming out of
Burma means that an effective lobby and effective action by the international community including
ASEAN, to hold the Burmese government to account for its human rights abuses, has for a long time
been tagged as essential.
But there have been few signs of any major progress, and 2015 is little different. The month of May
saw the furore surrounding the people on the boats in the Andaman Sea. But 2015 was also the year
of the election in Burma, hailed by many as the dawn of a new democracy in that country. It still may
be, but in both the lead-up to the election and in its immediate aftermath, there was considerable
disappointment for those whose human rights have been progressively abused and denied.
The hope for an all-inclusive ceasefire(s) involving the various and several ethnic minorities at war
with the central Burmese government proved illusory. There was some agreement with some groups,
but many remain outside any pact and will continue to experience persecution and insecurity.
Meantime, for minorities like the Rohingya, 2015 could hardly have been worse. They were written
out of the Constitution, were denied any voting rights in the election6, and there were attempts by
politicians and others in Burma to write them out of history.
This was despite the world attention focused on the background and treatment of Rohingya during
the time when so many thousands were stranded on boats in the Andaman Sea. A June meeting
brokered by Thailand to discuss the issue and find solutions was essentially scuppered when
President Thein Sein insisted that the word ‘Rohingya’ must not appear anywhere in the meeting if
Burma was to attend7. That was but one of several examples8.
Many looked to the National League for Democracy and their leader, Nobel Peace prize winner
Aung Sun Suu Kyi, to provide a lead on the full restoration of the citizenship rights of the Rohingya.
Despite their landslide victory on November 8th, this has not been (yet) forthcoming. And there is
little sign that either the international community or ASEAN will do anything to restore the basic
human rights of people. As is reported in another context later, geopolitical ambitions and economic
interests override any concern about human rights, meaning the elimination of the human rights of
6 The cancellation of Burma’s ‘white cards’, temporary ID cards which allowed voting rights, mostly granted to Rohingya,
effectively disenfranchised them for the first time. See http://www.theguardian.com/world/2015/nov/03/no-vote-nocandidates-Burmas-muslims-barred-from-their-own-election
7http://www.nst.com.my/news/2015/09/Burma-key-helping-rohingyas
8 As Human Rights Watch put it: “Many members of your government, echoing racist claims by others, claim that
the Rohingya do not exist and that the term cannot be used. While you have stated that you no longer intend to follow
this approach, it is deeply problematic that in daily practice members of your government refuse to acknowledge the
term “Rohingya” and commonly refer to the Rohingya population in Arakan State as “Bengali,” “so-called Rohingya,” or
the pejorative “Kalar,” claiming that they are all illegal migrants from what is now Bangladesh.” https://www.hrw.org/
news/2015/01/13/letter-president-thein-sein-re-amending-1982-citizenship-law
75
a whole population will remain unchallenged for the foreseeable future. We can expect many more
thousands to continue to seek refuge elsewhere, as happened in 2015.
Women, men and children stranded on boats
Some of the most enduring images of 2015 will undoubtedly be the stricken faces of women,
men and children aboard the rickety wooden boats abandoned to float in the Andaman Sea. An
estimated 25,000 Rohingya and Bangladeshis boarded these boats in the first three months of 2015,
almost double the number in the same period of 20149. But this time the journeys of the boats
were dramatically affected by the crackdown in Thailand against certain syndicates running human
trafficking camps. Where the world had for years been turning a blind eye to the existence of these
camps (despite the extensive testimony of survivors and relatives) now suddenly the reality of the
voyages of these people was stark for all to see. With the camps shut down and some evidence that
there was a mood of prosecution, the syndicates and their captains abandoned the boats and the
people aboard to their fate.
As was reported across the world’s media, ‘The month of May has brought a terrifying humanitarian
crisis to the seas of Southeast Asia. Thousands of people, fleeing persecution and poverty, are ….
risking their lives in search of a better life. But Thailand, Malaysia and Indonesia have turned
unwelcoming. There is a very real chance thousands will die at sea from hunger, dehydration or
drowning.’10
Untold numbers did die. But finally there was some good news; the boats would be allowed to
land. ‘Responding to international pressure to save the migrants, many of whom have been adrift in
rickety boats for weeks with little food or water, the agreement by Indonesia, Malaysia and Thailand
was a potential lifesaver. It reverses the previous position of those governments, whose navies had
been pushing boatloads of desperate migrants away from their shores in what international aid
groups characterized as a dangerous game of human Ping-Pong.’11
The attitude of the Malaysian government was very clear. In complete contradiction to Prime
Minister Najib’s later speech to the UN, Malaysian government spokespersons insisted that
the women, men and children on the boats represented a threat to national security12 and were
unwelcome. As mentioned, when people were finally allowed to embark - 1,180 women, men and
children - they were thrown into detention camps and no outside organisation allowed near them
for weeks. They were the ones criminalised, not the human traffickers and criminal syndicates who
have been operating with impunity in this region for years. The degree of impunity was revealed by
the momentous ‘discovery’ of the death camps in Thailand and Malaysia which added a dimension
of horror to the already horrific consequences of the lack of rights and protection provided to so
many people in this region.
9 http://www.unhcr.org/554c9fae9.html May 8th 2015
10 Washington Post May 19th 2015
11 New York Times May 20th 2015
12See for example http://www.mysinchew.com/node/109164; http://www.freemalaysiatoday.com/category/nation/
2015/05/22/police-to-ensure-refugees-dont-threaten-national-security/
76
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Death Camps on the Thai/Malaysian Border
2015 will long be remembered for not just the awful reality facing the people on the boats drifting in
the Andaman Sea, but also for the ‘discovery’ of the jungle human trafficking/death camps. Initially
camps were found in Thailand with bodies found buried in mass graves13. This of course merely
confirmed what refugees and others had been telling us for years14. Suggestions that there were
also camps on the Malaysian side were initially strongly refuted15, but soon enough the Malaysian
Inspector General of Police announced the discovery of 28 suspected human trafficking camps
containing some 139 graves near Wang Kelian in Perlis, believed to contain bodies of Rohingya and
Bangladeshi victims16. Bodies were still being discovered months later17.
For some years, reports have referenced testimonies from refugees and others which describe how
those fleeing persecution or poverty are at the mercy of criminal syndicates where the difference
between human smuggling and human trafficking is often non-existent. Initial payments can
be extortionate and the journey is fraught with challenges: cramped conditions, food and water
deprivation, dehydration, illness, further extortion, torture and beatings, and extensive sexual
violence against women and girls. Many have talked of the camps, where systematic torture, beatings
and rape18 are used gratuitously, or to extort more money or ransoms. If people survive, they are
trafficked on.
The reaction in Malaysia was initially positive. There were various calls for the establishment of a
Royal Commission of Enquiry19, and mainstream media began to report the extent of the collusion
between enforcement agencies and the criminal syndicates. For example, the New Straits Times
quoted a Special Branch report, which claimed that up to 80% of staff of the enforcement agencies
on the border were on the payroll of criminal syndicated engaged in human trafficking, people
smuggling, and illicit trade in drugs and weapons. The newspaper ran an editorial entitled
‘Institutionalised Corruption’ which quoted an earlier investigation: ‘So insidious is the problem
that when an officer was asked to name names of those involved his reply was ‘easier if you asked for
13 See for example http://america.aljazeera.com/articles/2015/5/2/26-bodies-at-suspected-thailand-trafficking-camp.html;
http://www.channelnewsasia.com/news/asiapacific/thailand-hunts/1831740.html;
14 Many Malaysian groups came out with statements, including Tenaganita and the Migration Working Group.This is one
example: ‘We congratulate the authorities for finding the mass graves in the northern part of Malaysia. It is good that at last
some action is being taken. The sad thing is that we have known about the existence of camps and holding houses in Malaysia
for a long time. Refugees and migrants who have survived such places, and/or who have had relatives survive or disappear into
such places, have long been voicing their concerns and offering information, if we had been listening. Reports of many national,
regional and international organisations and media have flagged the existence of such camps and other places of detention used
by criminal syndicates, including two major Reuters features in 2014. But what did we do? ‘ Penang Stop Human Trafficking
Campaign press statement May 25th 2015. See also articles like http://www.theguardian.com/global-development/2015/
jul/20/sold-from-jungle-camp-thailand-fishing-industry-trafficking
15 For example, the Home Ministry secretary-general Datuk Alwi Ibrahim was reported on May 11 as saying that investigations
did not show any human trafficking camps or graves of the Rohingya located in Malaysia, and the Kedah police chief Senior
Deputy Commander was quoted as saying “There’s no such thing.”
See
http://www.themalaymailonline.com/malaysia/article/after-ministry-denial-mass-graves-with-hundreds-of-deadimmigrants-found-in#sthash.0PbzLAvC.dpuf
16For more examples of media reporting, see http://www.aljazeera.com/news/2015/05/malaysia-massgraves-150524070422569.html or http://www.theguardian.com/world/2015/may/25/malaysia-migrant-mass-graves-policereveal-139-sites-some-with-multiple-corpses
17 See for example http://www.nst.com.my/news/2015/11/113864/tackling-scourge-human-trafficking-rings
18 The Malaysian media reported that Rohingya women were gang raped by their kidnappers, dragged away at night by
the guards. See http://www.borderlessnewsonline.com/rohinga-rapes-at-trafficking-camps-on-thailand-malaysia-border/
19 For example, http://www.malaysianbar.org.my/legal/general_news/malaysian_bar_calls_for_royal_commission_on_
mass_grave_death_camps.html
77
the names of the officers who were not involved’’. It should be noted that any further mention of this
Special Branch Report or its allegations dropped out of sight, and it is very unclear whether there has
been any concerted investigation into these very serious allegations of ‘institutionalised’ corruption.
It is unclear how many arrests have been made, how many people have been charged, and what
the status is of on-going investigations. This contrasted the Thai side, where significant arrests were
being made over a period of months. In September, Deputy Prime Minister Datuk Seri Dr Ahmad
Zahid Hamidi did announce that the Anti-Smuggling Unit would be upgraded to a department
called the Border Security Agency but also said that with the upgrade, there will be no additional
allocations or new posts created20. This was deeply disappointing.
Key government institutions like the revamped21 Malaysian government’s Council for Anti Trafficking
in Persons (MAPO) have provided little evidence that anything has been done to further the bringing
of those involved in the death camps to justice, nor is there any evidence that there has been a
strengthening of anti-trafficking initiatives.
Meanwhile, other responses may indicate the level of seriousness or even understanding of the
horror of it all. One Deputy Minister suggested that the sites become a tourist attraction. “Let tourists
see where it all happened. With this as a new tourism spot, it will also deter human trafficking
activities from taking place as there will be more people coming in and out.” 22
While the survivors of the camps and the families and friends of the thousands of victims await
justice, prospects are not so bright in Malaysia. We can hope that there are on-going investigations
being taken to identify those in collusion with the criminal syndicates. We can only hope that some
serious and meaningful resources are being put into the fight against human trafficking and the
protection of women, men and children refugees and other migrants. But these may be pious hopes.
Detention Camps
The lack of basic rights and protection faced by refugees in their homeland is matched by their
experience on their journey out. And it is also matched by the situation once in Malaysia. For
those who did arrive in Malaysia by boat, they met the same fate awaiting anyone landing in the
country without permit. There is no distinction in the Malaysian law between potential refugees and
other migrants (economic migrants, for example). Anyone without a document is deemed an ‘illegal
migrant’ and is arrested and charged with illegal entry. They are likely to be held in a police lock-up,
or equivalent, until the charge is heard, at which point they will most likely be transferred to one of
the eleven detention centres specially set up in Malaysia to hold ‘illegal migrants’. In the case of the
May boat arrivals, numbering 1,158 women, men and children from Bangladesh and Burma, they
were detained and sent to the Belantik detention centre in Kedah. The UNHCR were only allowed
access some three months later, in August.
20 See http://www.nst.com.my/news/2015/09/anti-smuggling-unit-be-upgraded-department-dpm
21 This revamp was part of the United States’ State Department’s excuse to controversially ‘upgrade’ Malaysia to Tier2
(Watch List) on the Anti-Trafficking in Persons schedule.
22 He was also quoted as saying that the camp as ‘very nice’ because it had facilities such as a surau, a mosque, a house
for an imam and a vegetable farm. He also urged the police to tell the people that the camps were not built by Malaysians
because “the structures show expertise”. See http://www.themalaymailonline.com/malaysia/article/human-trafficking-campcan-become-tourist-attraction-shahidan-says#sthash.51y8TB3N.dpuf
78
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Previous Reports have flagged the huge concern about detention centres. These are special centres
set up to detain those who found to be without documents, who include migrant workers and
refugees. The concern derives from worry about how these centres are run. There is a lack of
accountability and transparency, and there have been consistent reports over many years of abuses
of basic human rights within the centres. 2015 was no different. These include the lack of clear
and protective Standard Operating Procedures, meaning that there is reportedly arbitrary access to
the centres (for example, some allows visitors; some allows NGOs and others; some allows mobile
health teams; Belantik did none of these for months), lack of rights of those detained to inform
relatives or friends or the UNHCR and/or to keep in contact, lack of right to timely health care,
lack of basic nutrition including water, lack of exercise, arbitrarily inflated costs of basic necessities,
extortion, physical and sexual violence, and arbitrary deportation and even trafficking.
There is also concern about the special needs for women, not least with regard to sanitation, privacy,
and vulnerability to sexual abuse. And for children, who are likely to be mixed in with the adults
and deprived of any educational or creative activities. Unaccompanied minors are of particular
concern, and explorations of alternatives to detention for this and indeed all groups are on-going.
It can also be noted that at the launch of a civil society campaign to persuade the Malaysian
government to sign the United Nations Convention Against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment, detention centres were highlighted as one location of
concern23.
The extent of detention is a glaring example of the consequence of basic human rights being
withheld from refugees. In rounding-up ‘undocumented’ migrants, the enforcement agencies make
no distinction about whether a person or child is a refugee or asylum seeker. If you can show a
UNHCR Card, you may be allowed to go free, though there are still many cases where the person is
still detained. The fact is that there continues the situation where thousands of refugees are detained
in any one year, including in 2015, and including women and children. And their only hope is that
the UNHCR continues to devote considerable of its limited resources to going round the detention
centres to identify who is a ‘person of concern’ to them and should be released. The cost to the
Malaysian taxpayer is considerable; the cost to UNHCR is considerable; and, more to the point, the
cost to the refugee(s) detained is to add further trauma and uncertainty to a life already defined by
trauma and uncertainty. This is all because they have no rights.
Resettlement
With 2015 witnessing an increase in numbers of those seeking refuge in Malaysia, the pressure on
the UNHCR inevitably is increasing. There are a number of consequences of this, which merely
exacerbate already existing situations.
Firstly, as mentioned, it is unrealistic to think that the refugee and asylum-seeker populations in
Malaysia will be here only temporarily pending resettlement. According to UNHCR figures in 2015,
10,976 refugees were resettled from Malaysia in 2015 to third countries (mainly the USA), compared
to 8,507 in 2013.24 Even with this small increase, the numbers being resettled have not been able to
anywhere near match the numbers of refugees in Malaysia. This makes it ever more imperative that
23 The launch was in November 2015. See the Facebook page ACT4CATMalaysia, as well as #ACT4CAT (Act for the
Convention Against Torture) and #HENTISEKSA (“Stop torture” in Malay).
24http://www.unhcr.org/pages/4a16b1676.html
79
any discussion about ‘durable solutions’ centrally address the need to recognise rights to livelihood,
education and health in Malaysia as basic to the security and longer-term sustainability of refugee
populations here. Basic to this is basic recognition of human rights.
Right to employment
One crucial human right is the right to earn a livelihood: the right to employment. But again,
nothing changed in 2015 for refugees in Malaysia in this regard. Every year this chapter can sadly
quote a report from some six years ago: “With no legal rights to work, asylum-seekers and refugees
have no choice but to seek out low-paying jobs and constantly risk being exploited by employers.
Often, the nature of the employment is such that there is no employment contract. Refugees and
asylum-seekers who take up unofficial employment are excluded from legal remedies and social
protection. They are exposed to hazardous and unhealthy work conditions, and have to endure
sexual harassment and gender based violence. Employers have been known to extort their refugee
and asylum-seeker employees, who are susceptible to extortion for being employed. They also risk
arrest if picked up in the frequent street controls and raids which occur in areas known to host large
number of irregular migrant workers”25.
Acc
Acc
fear
som
fact
Wit
to i
hea
alre
the
par
any
The
com
be p
che
The fact that refugees have to work in the black economy with no rights at all means they are of
course vulnerable to a host of abuses. These include the non-payment of wages, the lack of any
health and safety provision (meaning if they get injured at work, which does happen, they are
unlikely to get any compensation), long hours, no rest periods or rest days or holidays, arbitrary
work schedules, no overtime payments, physical or sexual abuse, many of these are shared by
migrant workers.
Cos
unp
wit
for
nex
and
There were (as usual) some reports that consideration was being given to possibly provide
employment rights to (some) refugees. But there were also many statements stating otherwise. For
example, in June, the Human Resources Deputy Minister said that allowing the more than 150,000
refugees and asylum-seekers in the country to work could create more employment problems. “The
country might be flooded with the cardholders to a point we cannot control their entry.”26 He
went on to say that “If we allow them to work, they will start demanding other needs, such as
educational and medical facilities. We understand and empathise with them. As human beings, our
responsibility is to help, but not by giving jobs.”27
On
the
dep
and
or
term
to
wh
But in November, the Deputy Prime Minister told parliament that Rohingya may soon be able to
take up employment opportunities in Malaysia, with the government considering a pilot project
focusing on specific market sectors28.
Add
the
Rig
With no right to earn an income it is also then a fact that many families rely on contributions from
their children. Teenage or younger children may take on jobs to help support their families, in a
situation where they remain unprotected. And younger children are often used (often by syndicates)
to beg.
The
The
fact
com
hea
tho
25 Bar Council Press Release 2008
26https://www.malaysiakini.com/news/302936
27http://www.theantdaily.com/Main/Wasted-chance-for-win-win-solution-to-refugee-issue
28http://aa.com.tr/en/world/malaysia-mulls-opening-job-market-to-rohingya-refugees/474919
80
29
30
reco
31
32
od,
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and
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Access to health
Access to health for refugees in Malaysia is significantly defined by two major factors: the very real
fear of detention because of one’s presentation to a healthcare facility, and the prohibitive cost. For
some living in more rural locations, actual access to an appropriate healthcare facility may also be a
factor, and language may also be a difficulty.
With regard to costs, the 2014 version of this chapter reported how the government was planning
to increase the charges to be paid by foreigners (which include refugees and migrant workers) for
health29. This was implemented in 2015 and indeed the rate of fee increases speeded up. It was
already known that many refugees and migrant workers already forego health treatment because
they cannot afford it; the new charges introduced in 2015 simply exacerbated this situation30. It
particularly affects women especially relating to pre- and post-natal care and delivery, as well as
anyone needing an operation or longer term treatment, including TB, cancer, diabetes and so on.
The regular concern expressed by Malaysian politicians and others about the possibility that
communicable diseases (like tuberculosis) are being imported by migrants (including refugees) must
be placed against a system where the majority of these people are unlikely to present themselves for
check-ups or treatment.
e of
any
are
ary
by
Cost is one huge factor; but refugees are also scared to present themselves because they are
unprotected. There is an obligation on hospitals and other healthcare facilities to report those
without documents to the authorities. Where this is implemented, there have been several cases of,
for example, women delivering a baby one day and being arrested and put into a detention camp the
next. Again, the failure to recognise basic human rights for refugees means they face untold trauma
and difficulty.
ide
For
000
The
He
h as
our
One further aspect that always needs highlighting is the worryingly little mental health support to
the refugee populations in Malaysia. They face particular challenges, including panic attacks, severe
depression or other conditions deriving from their continuous security threats (of arrest, detention
and deportation); loss of loved ones; inability to work and meet their basic living needs; uncertainty
or problems with regard to registration; rape and sexual violence; exploitation by employers in
terms of unpaid wages; inability to access health care services; past trauma including being subject
to torture or witnessing torture and death of loved ones; human trafficking at the border; and
whipping31.
e to
ject
Additionally, organisations like the National Human Rights Commission (SUHAKAM) have reminded
the Malaysian government of its particular obligations under Article 24(1) of the Convention on the
Rights of the Child (CRC) which states that every child shall have access to adequate healthcare32.
om
na
tes)
The 2015 Report of the United Nations Special Rapporteur on Health in Malaysia confirmed all this.
The Rapporteur highlighted the vulnerability of refugees and asylum seekers, exacerbated by the
fact that Malaysian law does not provide for their protection. He noted that their health needs are
complex and require special consideration, given their displacement and relocation. However, while
health-care services are available for this group, ‘they are not affordable or accessible’, especially for
those without UNHCR cards. “The selective approach to human rights is affecting many groups of
29http://www.themalaysianinsider.com/malaysia/article/employers-labour-activists-balk-at-full-medical-fees-for-foreigners
30 Although in theory the possession of a UNHCR refugee card entitles the holder to a 50% discount, the card is not always
recognised or honoured, and depending on the medical condition, the charges may still be too high for a refugee to afford.
31 See the work of Health Equity Initiative.
32http://www.thestar.com.my/news/nation/2015/11/27/suhakam-urges-malaysia-to-recognise-rights-of-refugees/
81
the population that are being excluded in law and in practice from the efforts to promote and protect
the right to health.’33
Access to education
In Malaysia, there were some 33,640 refugee children below the age of 18 registered with UNHCR
in 2015. 21,880 of these children are of school-going age. However, refugee children are still not
allowed to enrol in government schools in Malaysia: they still have no right to education. Their only
access is to alternative schools run either by the local refugee community or by local NGOs, or a
partnership of both. UNHCR offers some limited support, and estimated that only approximately
28% of these children had access to any kind of education. This means over 70% of refugee children
of school going age are not in school34.
Malaysia is a signatory to the United Nations’ Convention on the Rights of the Child, meaning it
is duty-bound to protect and enhance the rights of all children including refugee children. This
includes ensuring they have access to education. It is long overdue that the Malaysian government’s
commitment to the Convention was realised through its granting of the right of education without
discrimination to all children in the country, including to children of refugees.
Children and Statelessness
Because they are denied any human rights, children of refugees continue to face difficulties
in accessing child protective services. They remain excluded from the national prevention and
response systems and many refugee children and their families do not report cases of abuse for fear
of arrest by authorities.35
Further, children born to refugee parents in Malaysia may experience difficulty in obtaining birth
certificates. This is particularly true where the parents (or one of the parents) are still waiting for a
UNHCR Card. There is a risk of arrest when approaching authorities to register. The processes
and documentation required or ‘late’ registration of births can similarly be difficult for refugees and
asylum seekers to navigate, increasing the risk of rendering them stateless.
There is particular concern over the situation in Sabah, where the findings of a Royal Commission
of Enquiry into Illegal Immigrants in Sabah were taken to a Technical Committee which apparently
submitted a draft report to the government in 2015 but there are no details of any concrete plans
of action36. One of the pressing issues is registration and statelessness, not least of Filipino refugees
and their children.
33 The Report of the Special Rapporteur on The Right Of Everyone To The Enjoyment Of The Highest Attainable Standard
Of Physical And Mental Health, United Nations. And see http://www.ohchr.org/en/NewsEvents/Pages/ DisplayNews.
aspx?NewsID=15371&LangID=E#sthash.Uy3ginJw.dpuf
34 http://www.unhcr.org.my/[email protected]
35 In a study by Health Equity Initiatives it was found that three out of four children did not know where to seek help if
they were forced to have sex or if someone were physically intimate with them.
36 http://www.therakyatpost.com/news/2016/01/05/report-to-resolve-the-problem-of-illegal-immigrants-in-sabahexpected-this-year/. Other comments include such as ‘“We are constantly urging UNHCR to speed up the repatriation process
or to send them to a third country. Particularly those from Burma as their prolonged presence here has given rise to numerous
problems”: http://www.thestar.com.my/news/nation/2015/04/16/ most-refugees-in-malaysia-from-Burma/
82
Xen
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Xenophobia
2015 continued to give us far too many examples of the sort of xenophobia which makes the daily
experience facing refugees and asylum-seekers in Malaysia ever more daunting. It is indicated in the
reaction of, for example, Deputy Minister Wan Junaidi Tuanku Jaafar (who oversees immigration) to
the people on the boats in May. “We don’t want them to come here. We are not prepared to accept
that number coming into our shores and those people who are already in, we are sending them
home anyway.”37
In both mainstream and social media, there was a range of reactions to the situation facing the
women, men and children on the boats. Many were negative: as well as being told they were
unwelcome, the people were also described by politicians and others as a threat to national security,
a potential drain on resources, and harbingers of disease, crime and terrorism, amongst other things.
Although there were also many who were offering humanitarian aid and open arms, the episode
again highlighted how little public awareness in general exists about who is a refugee, why they are
seeking refuge, and what their human rights could or should be.
Xenophobia, or at least its impact, would almost certainly be reduced if the government set an
example and followed the words of its Prime Minister Najib to the United Nations: recognise the
common humanity of refugees, embrace them as brothers and sisters, and recognise their basic
human rights. The lack of such recognition, the consequent vulnerability and lack of status, allows an
environment where xenophobia can flourish. This in turn feeds in to an environment where human
traffickers and criminal syndicates generally can flourish. This is true too for migrant workers.
Human Trafficking and Modern Day Slavery
The vulnerability of refugees to the activities of human traffickers and other criminal syndicates was
made clear in 2015 by the discovery of the horror camps on the Malaysia and Thailand borders, and
the realisation (at last) that the journeys of refugees and migrants out of Burma and Bangladesh was
a boon to human traffickers and other criminals. But refugees continue to be highly vulnerable to
traffickers on a daily basis. This was recognised by the reaction of ASEAN to the May and June events.
Roundtables were convened, a fund announced in July to combat human trafficking, and then
in November, the ASEAN members signed the ASEAN Convention against Trafficking in Persons,
Especially Women and Children (ACTIP). This updated an earlier 2007 version. It establishes a legal
framework for the ASEAN region to address the issue of human trafficking. In theory this represents
a major step forward; the worry is that in practice there will be a lack of the sort of commitment and
action necessary to really tackle the scourge of human trafficking and the criminal syndicates who
run the operations.
The situation of vulnerability of certain groups, including refugees, to human traffickers was also
highlighted in 2015 following the visit and report of the United Nations Special Rapporteur which
was presented to the 29th Session of the Human Rights Council. Noting that refugees and asylum
seekers in Malaysia lack recognition of their status or the ability to work legally in Malaysia, the
Rapporteur noted that ‘as a result, this category of persons is subject to becoming vulnerable to
trafficking. This is especially true for Rohingya from Burma’ as well as refugees and stateless persons
37http://www.upi.com/Top_News/World-News/2015/05/13/Malaysia-tells-boat-refugees-to-go-home-as-8K-wait-forentry/7941431568685/
83
from the Filipino and Indonesian communities in Sabah. She also highlighted the indications of
child trafficking for the purpose of forced begging among the refugee population, mostly Rohingya
children, and of children being trafficked for adoption purposes from Singapore to childless families
in Malaysia38. The Special Rapporteur was here at the bequest of the Malaysian government; the
recommendations, including the ratification ‘without delay’ of the 1951 United Nations Convention
relating to the Status of Refugees and the 1967 Protocol, remain just on paper.
Vulnerability of refugees to human trafficking was also again highlighted in the United States’ AntiTrafficking Persons in Report 2015, which echoed the Special rapporteur in noting that ‘Refugees
in Malaysia—including Rohingya men, women, and children—lack formal status or the ability to
obtain legal work permits, leaving them vulnerable to trafficking. Many incur large smuggling debts,
which traffickers use to subject some refugees to debt bondage. An estimated 80,000 Filipino Muslims
without legal status, including 10,000 children, reside in Sabah, with some vulnerable to trafficking.’39
Of course the United States then proceeded to controversially upgrade Malaysia from the bottom
Tier 3, to the disgust of many not only in Malaysia but the region and indeed in the United States
itself. It was widely interpreted as nothing more than political opportunism, necessary so that the
United States government could negotiate with their Malaysian counterparts to sign the Trans Pacific
Partnership Agreement. As many observed, this was tantamount to sacrificing the lives of women,
men and children to the altar of trade and geopolitical ambitions. Many people would add ‘and not
for the first time’.
Conclusion
So for the moment the situation remains dire for refugees in Malaysia. SUHAKAM is calling for “the
establishment of a Government-led system which engages with various other organisations such as
the UNHCR and non-governmental bodies which deal with refugees to ensure a better mechanism
to deal with the issues and challenges faced by refugees in Malaysia. And we will continue to urge
the Government to accede to the Convention Relating to the Status of Refugees 1951 and its 1967
Optional Protocol in order to accord adequate protection to, and to respect the rights of, refugees and
asylum seekers in Malaysia.”40 But the antipathy to even giving the most basic of human recognition
to refugees is clearly entrenched in this present government and it is difficult to see what will change
it. The same is true for migrant workers, as we shall see.
RECOMMENDATIONS
As reported last year, a number of initiatives need to be undertaken with urgency if the situation
facing refugees and asylum-seekers is not to continue to place so many thousands of them in
unprotected situations where physical, sexual and mental abuse is a daily occurrence.
38 Report of the Special Rapporteur on trafficking in persons, especially women and children. Mission to Malaysia, 2015.
Maria Grazia Giammarinaro. United Nations A/HRC/29/38/Add.1. Paras 19, 20, 21
39 United States 2015 Trafficking in Persons Report, State Department, Washington: section on Malaysia
40 Keynote address at the Roundtable on Challenges and Opportunities for Refugees in an Urban Environment organised
by the UNHCR, November 2015, http://www.thestar.com.my/news/nation/2015/11/27/suhakam-urges-malaysia-torecognise-rights-of-refugees/
84
The
to t
pro
tack
abd
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enf
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and
and
asy
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ims
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om
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967
and
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The regional context is crucial: Malaysia, as chair of ASEAN in 2015, missed a wonderful opportunity
to take the lead on the tackling of the issues in Burma head on. But there is still huge scope for
progressing discussions on more cohesive and effective cross-border cooperation and initiatives in
tackling the syndicates involved in human trafficking, smuggling, extortion, sexual violence,
abductions and killings, as well as positive harmonisation within ASEAN countries with regard
to the recognition of the status and rights of refugees and asylum-seekers. And the new ASEAN
Convention with regard to human trafficking provides a potential for ASEAN government and
enforcement agencies to really work together to bring criminals to justice.
In Malaysia, what is needed is a policy which grants all refugees and asylum-seekers – women, men
and children – basic rights and protection, which will be adhered to by all Ministries, departments
and law enforcement agencies. At the same time, support for initiatives from within the refugee and
asylum-seeker communities needs to be seen as central, in partnership (where appropriate) with
civil society/non-governmental organisations and other stakeholders (including UNHCR).
More specifically, the Malaysian government should
•
•
•
•
•
•
ion
in
•
015.
•
ised
a-to-
become a signatory to the 1951 Convention relating to the Status of Refugees and its 1967
Protocol;
become a signatory to all other major United Nations treaties and protocols, including the
International Convention on the Elimination of all Forms of Racial Discrimination; the
International Covenant on Economic, Social and Cultural Rights; the International Covenant
on Civil and Political Rights; and the Convention against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment;
embrace and adopt the proposals outlined in the 2008 document “Developing a
Comprehensive Policy Framework for Refugees and Asylum-seekers’, submitted by the Bar
Council after extensive consultations with stakeholders. This includes putting into place a
legal and administrative framework for dealing with refugees and asylum-seekers which will
provide a more humane, appropriate and less arbitrary environment;
fully uphold the principle of non-discrimination, and to ensure that this is extended to all
non-citizens within the jurisdiction of Malaysia;
raise awareness about the status and special circumstances of refugees and asylum-seekers
amongst government workers, in particular those serving refugees and/or asylum-seekers
and their children;
provide a right to work for refugees and asylum-seekers so that they have the basic right to
earn a livelihood free from worry of exploitation or recruitment by human traffickers and
modern day slavers;
implement a determined, proactive strategy to combat human traffickers and the criminal
syndicates who apparently so easily exploit these communities, not least by the police
and other authorities working closely and respectfully with refugee and asylum-seeker
communities to identify, arrest, and prosecute criminals;
develop a legislative framework for the protection of asylum-seeking and refugee children,
particularly unaccompanied children, in line with international standards, which will
include the provision of their right to education and that any detention of children is used
only as a last resort and fully complies with international standards and guidelines;
85
•
•
•
•
86
change its policy with regard to healthcare access for refugees and asylum-seekers, to ensure
affordability and access is free from fear of arrest and detention;
act decisively on reports of sub-standard conditions in detention camps. Adopting the
recommendations of the 2008 Suhakam report would be a good start, which include the
respect and implementation of the provisions of the Standard Minimum Rules for the
Treatment of Prisoners (1957 & 1977); the Body of Principles for the Protection of All
Persons under any Form of Detention or Imprisonment (1988); the Basic Principles for the
Treatment of Prisoners (1990) and Rules for the Protection of Juveniles Deprived of their
Liberty (1990);
respect and adhere to the principle of non-refoulement;
stop the practice of whipping.
ure
the
the
the
All
the
heir
87
Nu
MIGRANT WORKERS
Thi
are
else
the
wo
The
Vie
in
em
(inc
mo
cen
Women and men migrant workers continue to be absolutely key to the Malaysian economy, and yet
too often they are neither welcomed in the host community nor are their human rights recognised or
enhanced. Instead they continue to face serious difficulties in finding protection against an extensive
range of abuses, continue to be blamed for a variety of social ills, and, especially those without
documents, continue to be harassed, extorted, arrested and detained by the authorities, vulnerable
too to human traffickers and modern day slavers.
But
the
in t
‘ow
into
Meanwhile the lack of protection allows employers to reap profits through a low wage regime where
monitoring and enforcement is conspicuously absent. Unscrupulous employers can then make extra
profit through further labour exploitation. The lack of protection is exacerbated by the change
in process whereby migrant workers are hired. It is increasingly the case that labour-recruiting
and/or labour-outsourcing companies are the ones dealing with migrant workers, supplying them
to employers who now no longer have direct responsibility. It is now the companies or agents
who have responsibility for the protection and promotion of the rights of their workers, but there
would appear to be a lack of accountability or mechanism whereby such companies are monitored
and answerable for abuses. The fact is that responsibility for monitoring recruitment and labour
conditions is split between at least ten different Ministries, meaning migrant workers have become
more vulnerable to exploitative labour conditions1.
Mo
The visit during the year of the United Nations Special Rapporteur on Human Rights also highlighted
the vulnerability of migrant workers to abuses. “It is the Government’s responsibility to establish
an effective mechanism to license, check on a regular basis and sanction if necessary, recruitment
and employment agencies, very often involved in abusive and exploitative practices. The extension
of the license of existing authorisations until 2021 should be complemented by further checks, in
order to prevent and prosecute abusive practices.”2
For migrant workers, the right to redress is hard to establish in a situation where any complaint is
likely to lead to dismissal and cancellation of a work permit, leading to deportation or the worker
becoming ‘undocumented’. For those millions of workers who have no documents, the right to
redress is as good as non-existent.
1
2
88
As the World Bank has pointed out: http://www.straitstimes.com/asia/migrant-labour-helps-malaysia-world-bank
Report of the UN Special Rapporteur on Human Rights, Trafficking in Malaysia.
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Numbers and Locations
This is the situation facing millions of women and men migrant workers in Malaysia. Exact numbers
are difficult to pin down: the figures produced by different government spokespersons or from
elsewhere vary considerably. But Human Resources Minister Datuk Seri Richard Riot did report that
there were an estimated 6.7 million foreign workers in Malaysia, of which just 2.1 million had valid
work permits3.
The workers originate from a range of countries, including Indonesia, Bangladesh, Nepal, Myanmar,
Vietnam, Cambodia and the Philippines. In theory, migrant workers are only allowed to work
in defined sectors: Manufacturing, Construction, Plantation, Agriculture and Services. Their
employment is subject to quotas, work visas, security bonds, payment of levy and other conditions
(including the successful passing of a health test). They must be aged not less than 18 years and not
more than 45 years at the time of application; certified as fit and healthy by the approved medical
centre in the approved source countries4.
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But the presence of millions of undocumented workers in the country means that much of the
theory is bypassed. Most workers have become ‘undocumented’ because something has gone wrong
in their original workplace, or they have run away from the labour-outsourcing company which
‘owns’ them, or they have overstayed after their contract has expired. Some will have been smuggled
into the country, or been trafficked.
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The lack of protection of the basic human rights of migrant workers leads to worries about the
extent of modern day slavery in Malaysia. Although there will be many migrant workers treated with
respect and with their rights intact, reports like the Verite report in 2014 highlighted the prevalence
of modern day slavery abuses even in a mainstream sector like electronics. There were further
references to slavery conditions generally and in specific sectors throughout 2015.
One example highlighted in 2015 was the palm oil industry. Documentation over the year5 described
how migrant workers were bought and sold ‘like cattle’, how some workers were recruited from
the human trafficking camps on the Thai-Malaysian border, how workers were living in isolated
locations and then had to but supplies from the contractors at inflated costs, how they may be
moved around contractors, possibly not receiving pay, or receiving pay well below what had been
promised6.
There were similar stories from other industries. In manufacturing, it was reported that some
migrant workers are forced to toil 16 hours a day, are regularly threatened with physical abuse, and
3 Reported in the now defunct Malaysian Insider. See www.slideshare.net/ZakinanNawaz/malaysia-dilemma-of-foreignworkers
4 Recruitment Terms And Conditions Of Foreign Workers as of February 22, 2015: from the Malaysian government’s
Immigration Department Website at http://www.imi.gov.my/index.php/en/main-services/foreign-worker
5 http://www.wsj.com/articles/palm-oil-migrant-workers-tell-of-abuses-on-malaysian-plantations-1437933321
palmoil workers tell of abuses
http://www.theguardian.com/sustainable-business/2015/nov/09/palm-oil-migrant-workers-orangutans-malaysia-labourrights-exploitation-environmental-impacts
6 One person told how he and his friends had been promised $250 a month, but received between $25 and $30 per
month. “The broker sold us to the company and he took a cut of our salary.” Migrants’ Dream Turns into Pesticide Nightmare
http://www.khmertimeskh.com/news/15416/migrants----dream-turns-into-pesticide-nightmare/
89
are not paid the minimum wage. Dozens of primarily Indian and Nepali workers at one worksite
say they were locked in the company dormitory each night with no beds or mattresses and forced to
sleep on the floor. They were required to stand for 12 hours at work each day with only a 15-minute
break for lunch7.
In Sarawak, one group reported the concern about lack of any redress available to migrant workers.
‘Some of the workers that contact the Helpline have been badly injured at work without receiving
any compensation, many have gotten their passport confiscated, others have not been paid their
salaries for months and can neither go back to their home country or afford to pay back the loans
they have taken on to pay recruiting agents.’8
One underlying issue is that of debt bondage. Fees demanded from the workers before they leave
their country of origin mean that significant numbers arrive in Malaysia already in considerable
debt9. This is exacerbated when, upon arrival, so many find that their original contracts, promises,
location and sector of employment and other terms and conditions have been changed. Then there
are the deductions now being made from the worker’s salary in Malaysia, to include immigration
and employment authorisation fees (now able to be charged to the worker), health testing, insurance
and possibly housing and transport deductions. Many of these deductions remain unclear to the
worker, and the amounts may or may not reflect the real costs10.
Further reported abuses of the rights of migrant workers, both documented and especially
undocumented, include passport retention, non-payment of wages, payment of low wages (under
the minimum wage), non-payment or under-payment of overtime, arbitrary deductions, excessively
long hours, lack of rest time, lack of rest days, lack of due holidays, neglect of health and safety11,
lack of health insurance, no compensation where a worker dies due to an occupational accident or
is injured, no action taken where there is a complaint, physical abuse, sexual violence, and no right
to redress.12
7http://www.solidaritycenter.org/malaysia-widespread-forced-labor-abuse-of-migrants/#sthash.CJRW97PR.dpuf
8 http://www.bwint.org/default.asp?index=6002; Building and Wood Workers International 31 January 2015
9 One estimate is that this debt could be anywhere between RM6,000 – RM10,000. See Malaysiakini, February 18th 2015
10 The US Trafficking in Persons report 2015 highlights all this as potentially creating situations where migrant workers are
being trafficked or will become vulnerable to being trafficked. http://www.state.gov/j/tip/rls/tiprpt/countries/2015/243485.
htm
11 One example is the discussion of ‘The recent string of deaths of Bangladeshi workers in Malaysia which questions
the negligence of employers who have not increased measures to provide safer conditions under which foreign workers
can work’. http://www.therocket.com.my/en/death-trap-for-foreign-workers-whos-responsible/. There is also a an apparent
concern that for example nine Nepali migrant workers died every week in Malaysia between July-November 2015, most of
them from what health experts call sudden unexpected death syndrome (SUDS). See http://nepalitimes.com/article/nation/
disproportionate-number-of-deaths-of-Nepali-workers-in-Malaysia,2812. There ois also concern of health and safety at for
example the MRT project: http://business-humanrights.org/en/malaysia-1-migrant-worker-killed-1-injured-in-accident-atmass-rapid-transit-construction-site. And for the construction industry, a total of 518 foreign workers’ death were reported
since 2006 and a total of 5,340 cases of accidents at construction sites up to September 2015. See http://www.mtuc.org.
my/518-foreign-workers-deaths-at-construction-site-since-2006/.
12 See for example Katmandhu Post: Mistreated in Malaysia March 27th 2015; “All of us coming here are being cheated.
We have to work beyond our shifts, are paid much less than the contract, and if we are injured in a workplace accident,
instead of providing insurance, we’re deported.” https://www.malaysiakini.com/news/328153; a Bar Council study presented
to roundtable in Kuala Lumpur, “Migrants’ Access to Justice,” revealed a familiar litany of problems including debt bondage,
rapacious recruiting practices, lack of redress and foreign embassies’ unwillingness to address the cases of their compatriots.
http://news.trust.org//item/20151113185956-3pv0d/; and so on
90
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Harassment and detention
Undocumented migrant workers share the very real daily possibility of harassment, extortion and
detention by the authorities, and, if detained, share the concerns about conditions in the detention
centres described in the section on refugees. For undocumented migrants, there is unlikely to be
any recourse to a legal review; the time they will remain in detention is arbitrary. Concern about
detention centres cover question marks about basic conditions, adequate food and exercise, inflated
charges for basic necessities, access to health, and possible physical, mental and sexual abuse13.
Although deportation is the logical next step, there have been reports of migrant workers ending up
sold to human trafficking syndicates and finding their way back into Malaysia.
Domestic Workers
Over 300,000 migrant domestic workers are estimated to be in Malaysia, the majority of whom are
women from Cambodia, Indonesia and the Philippines. As is the case with other migrant workers,
many come into their employment in a situation of debt bondage, having paid recruitment agencies
and assuming an initial debt as part of the terms of employment. Once in work, widely reported
abuses and exploitation include breaches of contract, excessive recruitment fees, non-payment of
salary, deductions from low wages, excessive working hours, a lack of rest days and the withholding
of passports. ‘Many domestic workers have also experienced unimaginable physical and mental
abuse at the hand of their employers, from being deprived of food to beatings with electrical wires,
scalding with hot water, harassment, psychological abuse and sexual assault’14.
Domestic work is one area consistently highlighted as rife with human trafficking. ‘While all
domestic workers are not victims of trafficking, a large number of those women and girls are trafficked
into domestic servitude by employment agencies in their home country or Malaysia or employers in
Malaysia, at times with the alleged complicity of State officials’15.
The vulnerability and abuse of domestic workers has led to countries like Indonesia and Cambodia
imposing moratoriums on any recruitment of domestic workers from their respective countries until
a secure bilateral protective agreement has been signed. For example, the Indonesian government
insisted that all new Indonesian domestic workers coming to Malaysia be paid RM900 minimum
salary as of October. There was also a request not to allow employers to make deductions from their
domestic worker’s salaries. Currently, employers are allowed to deduct RM1,800 from the salaries of
their maids over a three or six month period16.
13 Two examples: ‘When the Myanmar warship Mahar Thiha Thura docked in Yangon yesterday, more than 100 migrant
workers poured out, relieved to be far away from the Malaysian detention camps where they say they were tortured, starved
and beaten’. See http://www.mmtimes.com/index.php/national-news/13809-returning-migrants-tell-of-abuse-and-torture.
html And A Nepali migrant worker was forced to strip naked and tortured, prior to being sent back to Nepal. “I underwent
such torture four times in prison and twice in a detention camp. “After I was forcibly stripped, the police asked me to walk
on my knees while holding my ears. They made me do physical exercises against my will and would beat me whenever I
refused,” he said. Nuepane recalled that he weighed 94 kg prior to his arrest but that after being starved repeatedly for 10
months both in prison and a detention camp, his weight had dropped to a mere 38 kilograms by the time he left for home.
http://www.freemalaysiatoday.com/category/nation/2015/04/13/detained-migrant-workers-tortured-for-fun-in-msia/
14 Report of the UN Special Rapporteur on Human Rights: Trafficking in Malaysia 2015
15 ibid para 12
16http://www.thestar.com.my/news/nation/2015/10/31/rm900-for-indonesian-maids-indonesia-sets-minimum-salaryand-plans-to-increase-it-in-the-future/
91
There have also been efforts by local Malaysian groups like Tenaganita to change legislation and
the protective regime to better enhance and enforce the rights of domestic workers. 2015 saw
continuation in these efforts but there is still a considerable way to go.
Access to health
In common with refugees in Malaysia, the fee structures for healthcare charged to all foreigners
(including migrant workers) are, in many cases, prohibitive, effectively denying migrant workers,
especially those undocumented, accessing healthcare. This is added to when, as in the case of
refugees, healthcare providers including government hospitals may report undocumented workers
to the authorities, putting them at risk of arrest, detention and deportation.
The high costs of healthcare for migrant workers have already been flagged in past reports as a
deterrent to a proper exercise of the right to health. In 2015 these costs were increased, and they
will be again in 201617. Payment to see a doctor may be more than sick leave allowance, even where
that is paid. Meantime, the high deposits charged where workers need to be warded are a further
issue18. Overall, local groups have expressed their concerns about the new hospital fees schedule for
foreign workers and refugees, pointing out that it ‘jeopardises their healthcare and inevitably risks
the spread of diseases in Malaysia.’19
This was condoned by the Report of the United Nation Special Rapporteur on Health in Malaysia,
which stated that ‘The delay in the diagnosis and proper treatment of foreign workers and refugees
will lead to the transmission of infectious diseases such as tuberculosis, typhoid, dengue and a whole
host of others to the local population.’ 20 The Report highlighted cases where female migrants workers
or asylum seekers were being arrested and thrown into detention centres only days after giving
birth in public hospitals. The Report noted that, once there, there was inadequate care and medical
attention. The Rapporteur concluded that ‘many groups of the population that are being excluded in
law and practice from the efforts to promote and protect the right to health.’21
Regularisation of undocumented workers
As in past years, epitomised by the now discontinued 6P programme, there were attempts in 2015
to regularise especially the high number of undocumented migrant workers in Malaysia. These took
the form of an amnesty for specific groups, a moratorium on renewal or recruitment, and on-going
raids and arrests of undocumented workers. In March, for example, undocumented Nepali workers
were allowed to return to Nepal after paying a RM1,250 fine22. Crackdowns and vulnerability also
lead to tragedy23.
17 The Minister of Health announced that from January 2016, the fees for outpatient treatment, including medicine, would
be increased from RM23.50 to RM40 while the fees for specialist treatment would go up to RM132.60 from RM78. He said
the ministry only wanted to cover its costs and the fees to be charged would reflect that.
20 Malaysiakini, 13/2/2015
21 http://www.thestar.com.my/lifestyle/health/2015/01/11/malaysias-health-rights-our-report-card-from-a-unitednations-rapporteur/andhttp://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15370&LangID=E#sthash.
RMy0EfML.dpuf
22http://kathmandupost.ekantipur.com/news/2015-03-18/msia-decreases-penalty-for-illegal-migrant-workers.html
23 For example, ‘a wooden boat crammed with migrant workers who were headed back to Indonesia capsized Thursday
off Malaysia’s western coast, killing at least 14 people, a maritime official said’. The Associated Press, September 3rd 2015
92
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Migrant Workers
Children
Child labour continues to be flagged as an issue of concern, not least in industries like palm oil.
The issue of statelessness is also a concern, as flagged too in our section on refugees. Children born
to migrants may have no access to documents to prove their nationality, meaning they cannot access
government services, including health and education. Some estimate that there at least 60,000
stateless children in the Malaysian state of Sabah alone24.
Housing and basic facilities
There continues to be little evidence that either the federal or state governments include migrant
worker numbers and needs in any forward planning and budgeting, not least with regard to housing,
facilities and public transport.
An exception included the suggestion in Penang to build dormitory enclaves specifically for migrant
workers. In November, the Singapore public-listed corporation Centurion Corporation Limited
announced that it had won an open tender from Penang Development Corporation to build such an
enclave to house 12,000 workers. It was reported that the facilities would include an Internet room,
games room, canteen, laundry room, barber shop, grocery shops and TV room25.
The xenophobia implied in such a suggestion was in some way challenged by a World Bank Report
published in December26 which claimed that migrant workers in Malaysia help the economy by
allowing businesses to keep costs down, thus enabling these employers to later expand and employ
more local skilled workers. But there is little sign that there is any increase in welcoming and
integration of host community with migrant communities; as for refugees, this is a major factor in
maintaining their vulnerability and abuse.
Money Making and Monopolies
There are many who argue that the lack of respect and political will to do anything about protecting
and enhancing the human rights of migrant workers is significantly explained by the fact that the
recruitment and supplying of such workers has become big business. The increase in the number
of companies registered to do this has been flagged by groups in Malaysia, and by international
organisations like the World Bank and the United Nations, as of major concern. The lack of
regulation of these companies opens up wide possibilities for abuse of worker’s rights and for human
trafficking.
Other than the individual operations of the various companies, the granting of exclusive monopolies
to handle processes involving migrant workers has been both a lucrative source of profit for those
companies chosen, as well as highly controversial. For example, from January 2015, MyEG Services
Bhd was given monopoly over the annual renewal of permits for migrant workers, all of which had
now to be done online at an extra fee of RM38 per worker. This is over and above other payments
being made related to permits to the government. Previously, employers went to Immigration
24 According to a statement from the Forest Peoples Programme.
25 Star 2/11/2015 All clear for foreign worker dorms
26 http://www.worldbank.org/en/country/malaysia/publication/malaysia-economic-monitor-december-2015-immigrantlabour
93
Departments to do this renewal of the annual permits. It is reported that an executive director of
MyEG was a former UMNO Supreme Council Member, and others in the company have political
affiliations27. The business community and consumer groups expressed their shared concern, that
the government was wrong to compel all employers into having to deal with a ‘sole private entity on
a mandatory basis, and having to pay exorbitant service charges, without the option of an alternative
system’28.
There was also the beginning of the on-going saga relating to the recruitment of 1.5 million
Bangladeshi workers under a signed arrangement between governments, whereby initially Real
Time Networking Sdn. Bhd. was to be given a leading role29. This is a company in which a brother
of the Deputy Prime Minister was reportedly the executive chairperson, his son a director, along
with a former Home Ministry deputy secretary-general. The company aimed to provide an online
system where, for a fee, workers can be registered and monitored from Bangladesh and Malaysia.
Profits to the company would be significant. The controversy which followed this announcement
included the accusation that the suggestion bore no relation to Malaysia’s economic or even labour
force needs30.
Although the project for the moment is on hold, it is possible it will be resurrected.
Human trafficking
We noted the vulnerability of refugees to human trafficking. Migrant workers, especially those
without documents, are similarly vulnerable. The 2015 Report of the UN Special Rapporteur
on trafficking in Malaysia highlighted the lack of attention given by the Malaysian authorities to
labour trafficking. It highlighted the restrictive national immigration policy which focuses on rapid
deportation of irregular migrants, so failing to provide the opportunity for accurate identification of
and provision of assistance to survivors of trafficking. It also noted a number of concerns relating to
the protection of survivors and the prosecution of criminals. It made a number of recommendations
to the Malaysian Government, including with regard to ratification of key international legal
instruments, strengthening of national legislation and policies to combat trafficking, increasing
capacity-building activities for government officials and increasing the involvement of CSOs in the
provision of assistance to victims.
The Report also highlighted the situation where the trafficking of young foreign women and children
for the purpose of sexual exploitation is also prevalent in the country. ‘They are mostly forced into
the commercial sex trade following deceptive recruitment practices for legal work in Malaysia.’ The
Rapporteur also alleged that women and girls from South Asia are entering ‘brokered marriages with
older men in Malaysia and subsequently being forced into domestic servitude and forced prostitution’31.
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The controversial promotion of Malaysia to Tier Two (Watch List) by the United States via its annual
Trafficking in Persons Report was widely condemned. This Report had consistently highlighted
the vulnerability of migrant workers to being trafficked, and flagged the need for the Malaysian
27http://charleshector.blogspot.my/2015/01/with-about-29-million-documented.html
28 Malaysian Employers Association secretary-general Datuk Low Kian Chuan quoted in [email protected] January
13th 2015 and federation of Malaysian Consumer Association in http://www.thesundaily.my/news/1292188
29 See for example Daily Star August 10th 2015; Bernama August 11th 2015
30 As a Member of Parliament, Charles Santiago, put it: ‘One can’t help but ask if the agreement to bring in the 1.5 million
workers to Malaysia is more about making money for all parties than addressing local market demands’. Malaysiakini, June
29th 2015
31 Star, March 18th 2015; http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15631&LangID=E
94
32
33
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Migrant Workers
government with their ASEAN counterparts to take much more stringent efforts to combat it. Part
of this is the regularisation of migrant workers’ status and the tackling of errant Malaysian labourrecruiting and labour-outsourcing companies. The upgrade dismayed members of the US Senate
and House of Representatives who said that an ‘upgrade of Malaysia would undermine the integrity
of the TIP (Trafficking in Persons) report process and compromise our international efforts to fight
human trafficking.” And in Malaysia, civil society was equally dumbfounded. This is one of many
statements: ‘What we do know is that, in their desperation to get countries like Malaysia on board (the
TPPA bandwagon), the United States government has traded away any real commitment to the fight
against human trafficking and modern day slavery. Not for the first time, it has chosen to sacrifice the
lives of women, men and children for the sake of corporate profit’32.
RECOMMENDATIONS
If we are to protect and enhance the human rights of migrant workers, tackle modern day slavery,
and combat human trafficking, there is a huge amount to be done. Attitudes must change and the
Malaysian government and its agencies commit to protecting the rights of all workers, to put people
before profit.
To start with, the Malaysian government needs to adopt and enforce all International Labour
Office (ILO) core labour standards. Malaysia is not a signatory country of the two ILO Conventions
on Migrant Workers (Convention 97 and Convention 143), that set the standards for the rights of
migrant workforces. So recommendations include that the Malaysian government
•ratifies the International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families;
•undertakes concrete efforts and measures that are in line with the unanimously adopted
United Nations General Assembly Declaration of the High-level Dialogue on International
Migration and Development33;
•ensures the completion of the drafting of an ASEAN Instrument on the Promotion and Protection
of Migrant Workers, expeditiously with meaningful consultations with all stakeholders,
pursuant to Article 22 of the ASEAN Declaration on the Protection and Promotion of the
Rights of Migrant Workers adopted in 2007.
On tackling general migration issues, recruitment and labour-outsourcing,
•
recognises the need for a foreign workforce and develop and review existing safe migration
pathways, acknowledging that the current approach to migration management, especially
the recruitment of foreign labour via unscrupulous employment agencies, which may
favour human trafficking;
•
works closely with country-of-origin governments to fine-tune the recruitment system to
ensure that migrant workers are recruited in a regular manner and are equipped with the
ual
ted
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32 Penang Stop Human Trafficking Campaign Press Statement October 19th 2015
33 As SUHAKAM puts it: This Declaration reaffirms the need to promote and protect the human rights and fundamental
freedoms of all migrants, reiterates the commitment to fight human trafficking, and strongly condemns manifestations of racism
and intolerance towards these group of persons.
E
95
•
necessary skills in tandem with the employment as well as knowledge on their labour rights
and obligations34;
•
phases out third-party agents in bringing in the migrants35, by revising regulation of
employment agencies, and meantime to stringently monitor the activities of those agencies
already licensed and take immediate action to revoke their licence and prosecute them
where abuses have taken place;
On
On strengthening monitoring and enforcement of labour regulations
•
amends the Employment Act in order to provide greater protection for migrant workers,
including domestic workers, in accordance with international legal standards;
•
ensures an effective right to redress exists for all workers in Malaysia, including migrant
workers, which includes the right to stay, the right to work for the duration of the
investigation and court process, and the right to timely and adequate compensation;
•
extends the enforcement of the minimum wage to all workers in Malaysia;
•
substantially increases resources and capacity in order that more rigorous and regular
workplace inspections can take place, the primary focus of these inspections to be on
abusive practices in the workplace rather than individual workers’ immigration status.
Compliance to all aspects of the Employment Act needs to be rigorously checked;
prosecution of employers and agents flouting the law must follow;
•
strengthens the capacity of the Department of Occupational Safety and Health in their
administration and enforcement of legislations in order to ensure a conducive working
environment and to avoid any more unnecessary injury or casualty. Prosecution of
employers flouting the law must follow;
•
addresses as a matter of urgency the situation facing domestic workers, through enforcing
basic employment standards and prosecuting agents and employers who breach basic
rights (including forcing the worker to work long hours; withholding passports; denial of
a day off; and underpayment of wages). A clear avenue for complaint for domestic workers
must be established and respected;
•
extends the coverage of the Employees’ Social Security Act 1969 to include migrant
workers, or amend the Workmen’s Compensation Act 1952 to be in tandem with the
benefits accorded under the Employees’ Social Security Act 1969; •
shifts the foreign employees’ levy payments to the employers (in line with the Government’s
ruling in 2009);
34 These recommendations include recommendations presented by the Malaysian Bar in conjunction with International
Migrants Day 2015, on December 18th 2015; recommendations from the Malaysian government’s National Human
Rights Commission (SUHAKAM); recommendations from earlier major reports like that of Amnesty International; and
recommendations carried year after year by local groups and unions. Nothing much has changed, sadly.
35 This is a recommendation from the 2015 World Bank Report on Malaysian Migrant Workers. ‘The role has to be taken by
the employer; the responsibility has to lie with the employer’. Quoted by World Bank senior economist Rafael Munoz Moreno:
http://www.straitstimes.com/asia/migrant-labour-helps-malaysia-world-bank
96
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Migrant Workers
On basic facilities including health
•
recognises and includes provision for the millions of migrant workers in any planning at
federal or state level, relating to the planning of services and basic amenities, including
housing;
•
establishes and enforces basic minimum standards for housing, including formulation of
proper housing guidelines to ensure that migrant workers have adequately sized, clean,
hygienic and secure accommodation; set and enforce standards of building use regarding
the number of people permitted to share space and facilities. Where deductions are made
for housing and other costs, such deductions need to be clearly shown on payslips and
complaints about such deductions investigated;
•
reviews the situation relating to healthcare costs for migrant workers, including a review
of how any present insurance scheme(s) works or not, how compensation is paid or not
to workers who are killed or injured and whether it is sufficient; and the consequences of
excessive health charges on public health and the health of migrant workers. At the same
time to review policy with regard to undocumented migrants, to ensure access is both
affordable and free from fear of harassment and/or arrest;
ers,
ant
the
ular
on
tus.
ed;
On children
•
develops a legislative framework for the protection of all migrant children, particularly
unaccompanied children, in line with international standards. This would include
complying with provisions of the CRC relating to the right to education and to ensure that
no child is deprived of his or her right to healthcare services; and ensuring any detention
of children complies to international standards and guidelines;
•
investigate the situation of economic exploitation of migrant children on plantations and
“take measures to ensure and protect the best interests of the child, as required under
article 3 of the UN CRC” as recommended by the UN Special Rapporteur on the Right
to Food. This would include replacing the piece-rate system on plantations with salaried
payment schemes to discourage parents from bringing their children with them to work;
•
ensures that the on-going revision of the Child Act (2001) provides further protection for
children victims of trafficking;
heir
ing
of
ing
asic
l of
kers
ant
the
nt’s
onal
man
and
n by
eno:
On the accountability of authorities
•
promptly investigates all complaints of ill-treatment, extortion or other misconduct by
police or others acting under the ambit of the law, including RELA agents;
•
properly resources an Anti-Trafficking in Persons strategy which will be effective and
unwavering in identifying, arresting, and prosecuting those involved in human trafficking,
whoever they might be;
•
ensures that places of detention, including immigration depots, comply with minimum
international standards and honour commitments to international treaties and standards;
97
On combatting xenophobia
•
98
presents positive imaging of migrant workers, including full recognition of their contribution
to the Malaysian economy, to ensure they are welcomed in this country as full participants
in our present and our future, rather than marginalised and unfairly targeted as responsible
for a variety of social ills.
ion
nts
ble
99
LAW & THE JUDICIARY
The
reti
Inte
App
sole
Ad
sug
reli
Fre
Un
con
“….any attack on the judiciary which undermines the confidence of the public in this institution
amounts to an attack on the administration of justice.”
Tun Arifin Zakaria, Chief Justice of Malaysia
Opening of Legal Year Speech, 10 January 2015
“Criticism, even in strong terms, of judgments – which, in effect, serve to correct or point out an
injustice or advance the administration of justice – should be accepted or even welcomed.”
Christopher Leong, President, Malaysian Bar (2013-2015)
Opening of Legal Year Speech, 10 January 2015
“A “seditious tendency” is a tendency….to bring into hatred or contempt or to excite disaffection
against the administration of justice in Malaysia or in any State.”
Section 3(1)(c) of the Sedition Act 1948
In 2015, the Malaysian courts once again saw a diverse range of cases brought before it. Many of
the issues are addressed more comprehensively elsewhere in this Report, but we highlight several
notable cases dealing with those critical issues below. As we look back on the year under review, it
may be useful to pause and reflect on the decisions and their reasoning as part of a critical analysis
of the law in Malaysia and the thinking of the judiciary.
The sensitivity underlying this analysis is clear for all to see in the above quotations from two
speeches and an extract from the Sedition Act 1948. If judges are sensitive about criticism of their
judgments, is it a case of judicial indignation at the intemperate venting on the part of a public that
is ignorant of the law, or a case of embarrassment at weak reasoning that has been publicly exposed
for all to see and shudder. The reader will have to decide.
100
Dee
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aga
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1
2
3
on 2
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Law & The Judiciary
The question of how judges are appointed was raised in the course of the year. One recentlyretired judge of the Court of Appeal has suggested, in a lecture delivered at a local university on
International Human Rights Day 10 December 2015, that the membership of the existing Judicial
Appointments Commission should be expanded, and that the Prime Minister should cease to be the
sole person who decides who should be appointed as a judge.1
A different view was expressed by a former Chief Justice of the Federal Court of Malaysia. He has
suggested that some judges were too liberal in their outlook, and failed to give due regard to the
religious and cultural nature of our society.2
Freedom of religion
Under this heading eight specific cases are looked at. The first two deal with the issue of unilateral
conversion of a child’s religion and legal custody of children.
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Deepa Subramaniam
This is one of two cases concerning a couple who were married under civil law and where subsequent
to the marriage and the birth of children, the husband decides to convert to Islam. Under existing
law, the conversion of one spouse to Islam will give the non-converting spouse the right to petition
for a divorce, as Malaysian law does not permit a mixed marriage between a Muslim and a nonMuslim. In this case, husband N Viran @ Izwan Abdullah had converted to Islam and in April 2012
had obtained a custody order over their two children. Notwithstanding this, on 7 April 2014 the
Seremban High Court had granted custody of the couple’s two children to Deepa. On 9 April 2014
the convert husband Izwan forcibly removed the son from Deepa’s custody. Based on the custody
order obtained from the High Court, Deepa obtained a recovery order in respect of her son from the
High Court. However the Royal Malaysian Police refused to execute the recovery order given that
Izwan also had a custody order. The matter was heard at the Court of Appeal, where Izwan’s appeal
against the custody order from the civil court was dismissed on 17 December 2014. The Court of
Appeal also affirmed the recovery order. On 14 January 2015 leave (permission) to appeal to the
Federal Court was granted to Izwan to raise the question of which court had jurisdiction over the
matter, and whether a recovery order could be granted when there was a custody order given by
the Syariah court. Oral argument was heard on 25 June 2015, with a decision to be delivered at a
date to be fixed.3
Indira Gandhi
On 30 December 2015, the Court of Appeal in a 2-1 majority decision reversed a decision of the
Ipoh High Court and ruled that whether three children of a non-Muslim marriage between M Indira
Gandhi and her husband K Pathmanathan @ Muhammad Ridhuan Abdullah had been properly
converted to Islam by their Muslim-convert father was a question within the exclusive jurisdiction
of the Syariah court, and not the civil court. This was so notwithstanding that the three children
were unilaterally converted by their father, in contravention of various requirements under Section
96 of the Administration of the Religion of Islam (Perak) Enactment 2004.4 The minority opinion
1 https://www.malaysiakini.com/news/322779, accessed on 30 March 2016.
3 http://www.freemalaysiatoday.com/category/nation/2015/06/26/federal-court-hears-landmark-custody-case/, accessed
on 29 March 2016.
101
was that the conversion was void from the beginning because of non-compliance with the relevant
legislation. This was a matter of administrative law, and therefore not within the purview of the
Syariah court.
As we assess the impact of these two decisions, an announcement by the religious authorities in the
state of Perlis on 27 July 2015 bears consideration. On that date a fatwa (religious opinion) was
issued stating that custody of Muslim children could be granted to a non-Muslim if the circumstances
warranted it.5
The next two cases deal with the challenges faced when seeking a determination of one’s religious
status. The outcome could not be more different.
Jamilah Jan et al
On 10 February 2015 the Kuala Lumpur High Court dismissed an application for judicial review by
Jamilah Jan Vasanthegokelam, aged 55, and her four sons Mohd Sharif Abdullah, 35, Mohd Jeffrey
a/l Mohd Baser, 32, Mohd Jass a/l Mohd Baser, 28 and Mohd Naser a/l Mohd Baser against a decision
by the National Registration Department (NRD) to refuse to amend its records to change their
names and to state that they are non-Muslims. The court accepted that according to the records of
the NRD, Jamilah’s second husband Mohd Baser a/l Kalakan was registered as a Malaysian citizen
professing the religion of Islam. As such there was no error in their records. An appeal to the Court
of Appeal was dismissed on 30 October 2015. The Court of Appeal found that the applicants had
identified themselves as being Indian Muslim and professing the religion of Islam, and that their
contention that the religion was mistaken stated in the official record was not supported by any
cogent evidence.6
Rooney Anak Rebit
On 19 December 2015, the Kuching High Court granted an application by Azmi Mohamad Azam
Shah @ Roneey for leave (permission) to challenge his classification as a Muslim. Rooney had
been registered as a Muslim when his parents converted to Islam while he was still a minor, and
therefore became a Muslim by virtue of his parents’ conversion. The Sarawak Islamic Council and
the Sarawak Islamic Religious Department were not objecting to his application to “come out from
Islam” but the National Registration Department was insisting that they would only amend their
records if there was an order from the Syariah Court. The High Court, in granting the application
for leave, held that the civil court had jurisdiction to hear the case as it involved an individual’s
freedom of religion pursuant to Article 11 of the Federal Constitution.7
The next case deals with the issue of the substantive enjoyment of the freedom of religion.
Jill Ireland
This case, involving the confiscation of 7 compact discs of Christian material containing the word
‘Allah’ was heard by the Court of Appeal on 23 April 2015, during which the Ministry of Home
Affairs presented arguments why the CDs should not be returned to Jill Ireland. The Court of
Appeal also heard a cross-appeal by Jill Ireland on her constitutional right to freedom of religion,
which included the use of the word ‘Allah’. An earlier hearing scheduled on 10 February 2015 was
used instead to hear an application by the Federal Territory Islamic Council (MAIWP) to intervene
5
6
7
102
https://www.malaysiakini.com/news/306264, accessed on 30 March 2016.
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Law & The Judiciary
in the Government’s appeal against the High Court ruling ordering the return of the eight CDs.
This application by MAIWP was subsequently denied on 5 March 2015. On 23 June 2015, the
Court of Appeal ordered the Malaysian Government to return the eight CDs to Jill Ireland within 30
days, upholding the decision of the High Court. It also ruled that the question of the constitutional
right of Jill Ireland to use the word “Allah” be remitted to the High Court for consideration.8 As of
22 July 2015, the CDs had not been returned, and neither had any notice of appeal been filed by
the Government.9 On 12 August 2015 the Government announced that it would not appeal the
decision, and would return the CDs; it did not however specify any date for their return.10 The CDs
were finally returned on 17 September 2015.11
Case management of the issue remitted back to the High Court for consideration was held on 2 July
2015, with a further case management date fixed for 12 August 2015.12 On 18 September 2015 it was
disclosed that the Federal Territories Islamic Religious Council (MAIWP) and the Selangor Islamic
Religious Council (MAIS) have both filed an application to intervene in the matter, and a further
case management date was fixed for 4 November 2015.13 It is likely that further case management
dates will take place until a hearing date is fixed to consider the applications to intervene.
In considering the issue of freedom of religion, regard also has to be had to the question of intrareligious management, and how that affects both adherents and non-adherents of the religion. The
next three cases address this issue.
Victoria Martin
This case involves an appeal by a non-Muslim lawyer against the denial of the right to practice
Syariah law in the Syariah courts of the Federal Territories. On 4 February 2015, the Federal
Court ordered counsel in the case to expand their legal arguments to include the question of the
constitutionality of a provision in Syariah legislation that prohibited non-Muslims from practising in
the Syariah courts. The matter was adjourned to 14 May 2015 for further argument.14 On 14 May
2015, counsel for one of the appellants raised a further point, suggesting that Islamic enactments
were not subject to the fundamental liberty provisions of the Federal Constitution. As this was a
novel argument, the Federal Court adjourned the matter once again, till 13 August 2015, in order
for parties to undertake further legal research on the point.15 A decision on this case would only be
handed down in 2016.
8 http://www.channelnewsasia.com/news/asiapacific/malaysia-appeals-court/1934368.html, accessed on 30 March 2016.
9 http://www.themalaymailonline.com/malaysia/article/deadline-expires-tomorrow-but-sarawakian-christian-yet-to-getback-allah-cd, accessed on 30 March 2016.
10 http://www.themalaymailonline.com/malaysia/article/no-appeal-home-ministry-to-return-allah-cds-to-sarawakchristian-soon-lawye, accessed on 30 March 2016.
11 http://www.heraldmalaysia.com/news/bittersweet-emotions-for-sarawakian-as-putrajaya-finally-returns-allahcds/25180/5, accessed on 30 March 2016.
12 http://www.thestar.com.my/news/nation/2015/07/02/courts-august-date-for-jill-ireland-case/, accessed on 30 March
2016.
13 http://www.themalaymailonline.com/malaysia/article/despite-return-of-christian-allah-cds-a-second-islamic-councilseeks-to-int, accessed on 30 March 2016.
14 http://www.themalaymailonline.com/malaysia/article/federal-court-to-decide-on-law-barring-non-muslims-fromshariah-practice, accessed on 30 March 2016.
15 http://www.freemalaysiatoday.com/category/nation/2015/05/14/islamic-body-suggests-constitution-does-not-apply-tomuslims/, accessed on 30 March 2016.
103
Kassim Ahmad
The Kuala Lumpur High Court declined to grant judicial relief to Kassim Ahmad, an 82-year old
former academic and Islamic scholar, in his action to stop the Federal Territory Islamic Department
from proceeding with charges against him for deriding Islam and disobeying a fatwa under Sections
7 and 9 of the Syariah Criminal Offences (Federal Territories) Act 1997. The alleged offences
were said to have been committed when Kassim Ahamd delivered a talk in February 2014 at a
seminar organised by the Perdana Leadership Foundation in Putrajaya. Kassim Ahmad was arrested
on 26 March 2014 in his home in Kulim in the state of Kedah, which was outside the territorial
jurisdiction of the Federal Territory Islamic Department. The court ruled that as the matter involved
offences against the precepts of Islam, the matter fell within the jurisdiction of the Syariah court.
As such, any application for review of the charges should be made to the Syariah High Court and
the Syariah Court of Appeal pursuant to the Administration of Islamic Law (Federal Territories) Act
1993.16 However on 21 December 2015, the Court of Appeal ruled that his arrest in March 2014
was unlawful. The Court of Appeal cited three reasons: an amendment in the arrest warrant which
was held to be defective and which rendered the warrant null and void; the lack of jurisdiction of the
Federal Territory Islamic Department over Kassim Ahamd, who was a resident of the state of Kedah,
and which meant he was not obliged to obey a fatwa from the Federal Territory Islamic Council;
and the denial of Kassim Ahmad’s constitutional right in that he had been held in excess of 24 hours
before being produced before being charged. More importantly, however, the Court of Appeal held
that the civil High Court had supervisory jurisdiction over an inferior tribunal, including the Syariah
court, when it had erred in law.17
Negri Sembilan transgender case
The Court of Appeal had, on 7 November 2014, held that Section 66 of the Syariah Criminal
(Negri Sembilan) Enactment 1992 was unconstitutional. In so doing, it overturned a decision of
the Seremban High Court that upheld a Syariah court’s conviction of three transgender women
for cross-dressing. The state government of Negri Sembilan and four other parties appealed the
decision, and during oral argument on 13 August 2015, their counsel raised a preliminary objection
that the trial should have proceeded by way of a constitutional challenge with the leave (permission)
of a single Federal Court judge based on Article 4(4) of the Federal Constitution, rather than by way
of a judicial review. On 8 October 2015 the Federal Court accepted the preliminary objection, and
set aside the decision of the Court of Appeal.18 It is noteworthy that one of the judges that upheld
the appeal at the Court of Appeal, who has since retired, has publicly criticised the decision of the
Federal Court.19 He stated that the preliminary objection had never been raised throughout all the
proceedings leading up to the hearing by the Federal Court, and should therefore never have been
allowed. The regional office of the United Nations High Commissioner for Human Rights, based in
Bangkok, Thailand, has called for Section 66 of the Syariah Criminal (Negri Sembilan) Enactment
1992 to be amended so that cross-dressing is no longer criminalised. Such a provision violated the
right to live with dignity, to freedom of movement, to work, to equality before the law, the freedom
from discrimination and freedom of expression of transgender women. It stated that Malaysia had
an obligation to repeal such discriminatory laws and to legally recognize the gender identity of
transgender persons.20
17 https://www.malaysiakini.com/news/324055, accessed on 29 March 2016
18 http://www.freemalaysiatoday.com/category/nation/2015/12/19/federal-court-decision-on-transgender-casedisturbing/, accessed on 30 March 2016.
104
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Law & The Judiciary
It may be observed from the decisions in these eight cases that the courts were, to varying degrees,
attempting the extremely difficult manoeuvre of defining and then negotiating the space between
this fundamental freedom and the dominant position that Islam has come to take in Malaysia. A
parallel issue was the question of jurisdiction – whether it was the civil court or the Syariah court
that had the legal jurisdiction to determine the question. The results do not always point to a
consistent approach being taken, which leaves this area open to more uncertainty and litigation.
Security offences, terrorism and human rights
Another critical balancing act that the Malaysian courts had to grapple with was in respect of
whether security considerations, especially in an environment of heightened terrorist concerns, had
a limiting or restrictive effect on the enjoyment of fundamental liberties enshrined under the Federal
Constitution. If so, what was the permissible extent of those limits or restrictions.
The key case in this regard was the arrest of Khairuddin Abu Hassan and his lawyer Matthias Chang
using the Security Offences (Special Measures) Act 2012 (SOSMA). Both men were arrested, on
18 September 2015 (Khairuddin Abu Hassan was briefly released on 23 September, only to be rearrested) and 8 October 2015 respectively, and charged on 12 October 2015 in the Kuala Lumpur
Magistrate’s Court for the offence of attempting to commit sabotage under Section 124L of the
Penal Code. The act of sabotage was in relation to the lodging of reports about possible corrupt
practices surrounding the 1MDB financial situation with law enforcement agencies in France, the
United Kingdom, Switzerland, Hong Kong and Singapore, acts which, it was alleged, were intended
to be a conspiracy to harm the banking and financial system in Malaysia. As the charge fell within
the meaning of a security offence under Part VI of the Penal Code, the case needed to be heard in
the High Court. The prosecution applied for a remand of 30 days to transfer the case to the High
Court (a procedure which would have taken a few hours, in practice, or at worst a few days) but was
granted a remand of 14 days.21 It should be noted that a person arrested under SOSMA could be
detained for up to 28 days before being produced before a Magistrate. Once the case was transferred
to the High Court, the Penal Code does not provide for bail.
The case was re-mentioned at the Magistrate’s Court on 23 October 2015 wherein the transfer to the
High Court was granted. On 3 November 2015, the Federal Court declined to hear an application
to consider three constitutional questions concerning the charges, and ordered the High Court to
hear the matter.22 The High Court then heard the matter on 6 November 2015 and set 18 November
2015 for a hearing on the application for bail.23 On 18 November 2015 the High Court held that
the charges did not fall within the ambit of SOSMA, and granted the two men bail of RM10,000
each, pending a hearing in January 2016.24 The Government has indicated that it will appeal the
decision.25
21 http://www.themalaymailonline.com/what-you-think/article/respect-the-rule-of-law-and-release-dato-sri-khairuddinand-matthias-chang, accessed on 29 March 2016.
23 http://www.thestar.com.my/news/nation/2015/11/06/outburst-over-prison-hardship-chang-seeks-bail-as-cellmateshave-tb-hiv/, accessed on 29 March 2016.
24 http://www.therakyatpost.com/news/2015/11/18/former-umno-man-and-lawyer-released-on-rm10000-bail-each/,
accessed on 29 March 2016.
105
The High Court decision is important in that it ruled against an attempt by the Government to
use SOSMA to expand what constituted a security offence. However the court did not decide that
the act of lodging such reports could not constitute an offence. It remains to be seen therefore
whether at the full trial of the charge, the court will decide that no offence could possibly have been
committed by an exercise of a freedom of expression (and to make such reports).
At a public forum organised by the Bar Council on 4 November 2015, former Attorney General
Abdul Gani Patail expressed continued support for SOSMA, which was introduced during his time
as Attorney General. He however declined to comment on the Khairuddin Abu Hassan and Matthias
Chang case.26
Another question was what constituted “support” for a terrorist organisation. On 20 October 2015,
an army corporal was sentenced to seven months in jail for having a mobile telephone containing
an image of the Islamic State terrorist group/s flag. He was convicted pursuant to Section 130JB(1)
(a) of the Penal Code.27
A related issue is the possibility that the Government may set up specialised courts to deal with
terrorism-related offences and trials. At least one opposition Member of Parliament has spoken
up against the establishment of such courts, citing on the one hand the ability of ordinary criminal
courts to handle such matters, and on the other hand concerns about the abridgment or abrogation
of due process by such courts.28
Freedom of assembly
Apart from the general challenges to the exercise of the freedom of assembly in Malaysia, there now
exists conflicting decisions as to whether the provision that criminalises a failure to comply with the
requirement to give a minimum of 10 days’ advance notice of an assembly, pursuant to the Peaceful
Assembly Act 2012 (PAA), is constitutional or not. In the case of R. Yuneswaran, a panel of judges
of the Court of Appeal held on 1 October 2015 that an RM6,000 fine imposed by Section 9(3) of
the PAA, upon conviction for the failure to give the required notice under Section 9(1) of the PAA,
was not unconstitutional.29
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This decision conflicts with another decision, also at the level of the Court of Appeal, by a different
panel of judges, in April 2014, which held that Section 9(3) of the PAA was unconstitutional. A
majority of the judges in this case held that Section 9(1) of the PAA was also unconstitutional.
On
cha
Ass
sea
Notwithstanding the April 2014 Court of Appeal decision, 2015 saw many arrests for alleged public
assembly violations. On 4 August 2015, two activists, Adam Adli Abdul Halim and Shukri Abdul
Razab and were ordered to be released from police custody after their period of remand was reduced
from six days to four days by the Kuala Lumpur High Court. A third activist, Mandeep Singh, was
released after his four-day remand expired. All three had been arrested for having called for a rally
known as “TangkapNajib” to protest against the Prime Minister, and to call for him to resign.30
On
the
pro
con
13”
29 http://www.thestar.com.my/news/nation/2015/10/01/court-appeal-rules-peaceful-assembly-act-legal/, accessed on 29
March 2016.
31
32
33
34
35
36
37
38
106
Law & The Judiciary
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29
On 8 September, seven persons, including civil society leaders and opposition politicians were
charged for participating in a public assembly known as “KitaLawan” either on 21 or 28 March
2015 at Sogo shopping centre in Kuala Lumpur in violation of Section 4(2)(c) of the Peaceful
Assembly Act 2012.31 At a preliminary hearing on 6 October 2015, all seven gave notice to two
separate Magistrate’s Courts that they would be filing an application for constitutional review by the
Federal Court in respect of the Peaceful Assembly Act 2012. Their cases were all adjourned until 7
December 2015 pending the reference to the Federal Court.32
On 6 October 2015, state assemblyperson Niz Nazmi Nik Ahmad was charged for failing to give 10
days’ prior notice under Section 9(1) of the Peaceful Assembly Act 2012 in relation to a “Black 505”
rally in May 2013. It was this case that led to the Court of Appeal decision in April 2014 holding that
the criminalisation of the failure to give notice was unconstitutional. Notwithstanding this decision,
the prosecution attempted to charge him for the same offence on 6 May 2014, but the court held
that it was bound by the Court of Appeal decision and dismissed the charge. However, after the
contrary Court of Appeal decision on 1 October 2015, he was charged for the same offence for the
third time. He raised an objection to the charge, but on 3 November 2015 the court dismissed the
objection, and his trial will now proceed.33
Similarly, after the 1 October 2015 Court of Appeal decision, there was a flood of prosecutions
for violating the Peaceful Assembly Act 2012. On 21 October 2015, Jannie Lasimbang, a former
Commissioner of Human Rights and now a Deputy Chairperson of BERSIH 2.0 representing Sabah,
was charged for an offence under the Peaceful Assembly Act 2012 in relation to the BERSIH 4.0 rally
in Kota Kinabalu.34
On 3 November 2015, Maria Chin Abdullah, Chairperson of BERSIH 2.0, was herself charged for an
offence under Section 9(1) of the Peaceful Assembly Act 2012.35 On 11 December 2015 she applied
to the High Court to have the charges struck out. The Sessions Court granted her a stay in the court
proceedings pending the outcome of the High Court application.36
On 13 November 2015 Annie Ooi, better known as “Auntie BERSIH” for her active participation in
all the BERSIH rallies, was also charged for participating in the BERSIH 4.0 rally contrary to Section
4(2)(c) of the Peaceful Assembly Act 2012.37
On 14 December 2015, two opposition Members of Parliament from the state of Sarawak were
charged with participating in a BERSIH 4 rally in Kuching, contrary to Section 4(2)(c) of the Peaceful
Assembly Act 2012. They were released on bail. If convicted, both men face disqualification of their
seats in Parliament. Their cases were fixed for mention in January 2016, and trial in March 2016.38
On 21 December 2015, Adam Adli’s prosecution at the Magistrate’s Court for an offence under
the Peaceful Assembly Act 2012 was postponed to a date in 2016 pending the hearing of the
prosecution’s submission to oppose an application by him to refer the matter to the High Court on
constitutional grounds. Adam Adli, who was charged together with civil society movement “Jingga
13” chairperson Mohd Fariz Abd Talib, filed their application under Section 30 of the Courts of
107
Judicature Act 1964 on 17 December 2015. In their application, both are saying that their gathering
which began outside Sogo Shopping Centre on 28 February 2015 and which then proceeded to
the Kuala Lumpur City Centre park area was an exercise of the constitutional right to freedom
of assembly, and that the prohibition of a moving assembly under Section 4(2)(c) of the Peaceful
Assembly Act 2012 was unconstitutional.39
Cou
me
On a brighter note, on 10 January 2015 Mohd Fahmi Reza Mohd Zarin won his lawsuit for wrongful
detention against the Kuala Lumpur City Hall (DBKL) and the Royal Malaysian Police. He had been
detained by DBKL officers who were trying to clear Dataran Merdeka in downtown Kuala Lumpur
of a group of people who had decided to camp there in protest on 22 April 2012 as part of an
“Occupy Dataran” camp-in. The court agreed that he had been wrongfully detained, and awarded
him damages, exemplary damages and costs.40
Ano
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Freedom of association
Fre
Malaysian law gives to the Registrar of Societies (ROS) a wide range of powers to intervene in the
affairs of societies established under the Societies Act 1966, which include political parties. In 2015
we saw the effect of the Societies Act 1966 in respect of the Malaysian Indian Congress (MIC).
Sim
asse
of e
wit
adm
On 23 February 2015, certain members of the MIC applied to court to challenge four ROS directives
in relation to alleged irregularities relating to the party’s internal leadership elections.41 On 15
June 2015, an ROS order for fresh elections to take place was upheld.42 On 25 June 2015 the ROS
confirmed that G. Palanivel was no longer the president of the party, and authorised the Deputy
President to act as President and organise fresh leadership elections.43
On 28 August 2015, Anina Saadudin, a member of the Prime Minister’s United Malays National
Organisation (UMNO) political party, filed a lawsuit seeking the repayment to UMNO of the
remaining balance of the RM2.6 billion that had been deposited into the personal bank accounts
of the Prime Minister. He had earlier stated that the funds were received by him on behalf of
the party.44 Pursuant to UMNO’s constitution, it was confirmed on 1 September 2015 that Anina
Saadudin had been automatically expelled from the party pursuant to the party’s constitution.45 On
11 September 2015, Anina Sadudin filed a lawsuit against UMNO challenging her expulsion.46 On
21 September 2015, the Prime Minister was ordered to file his defence.47 On 7 December 2015,
her lawsuit challenging her expulsion from UMNO was struck out by the court, on the ground that
Section 18C of the Societies Act 1966 did not allow decisions by political parties to be adjudicated.48
On 10 December 2015 she filed an appeal against that decision.49 On 31 December 2015, the High
40 http://www.therakyatpost.com/news/2015/01/10/city-hall-police-found-guilty-unlawfully-detaining-student-activist/,
108
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Court struck out her lawsuit against the Prime Minister on the ground that she was no longer a
member of UMNO.50
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Another challenge to freedom of association comes from the religious authorities. The organisation
known as Sisters in Islam (SIS) had been declared by the Selangor Islamic Affairs Council as having
deviated from Islamic teachings. On 10 December 2014, SIS was granted leave to challenge this
declaration. At a case management held on 7 July 2015, hearing of the application for judicial
review was fixed for 12 November 2015.51 Case management was set for 26 October 2015. The
judicial review would also have a bearing on the direction to the Malaysian Communications and
Multimedia Commission to block access to deviant Islamic websites.52
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The contrasting decisions of the MIC on the one hand, and UMNO on the other, raises questions
about the freedom of association in Malaysia.
Freedom of expression or speech
Similar to the spike in prosecutions for alleged offences under the law relating to freedom of
assembly in 2015, there has also been an increase in the number of prosecutions affecting freedom
of expression or speech. The courts have been ambivalent in their response, seemingly agreeing
with prosecutions where the affected party has been the Malay Rulers, the religion of Islam or the
administration of Government, but disapproving of other prosecutions.
On 5 January 2015, Wan Ji Wan Hussin, an independent Muslim preacher, applied to refer his
charge under the Sedition Act 1948 to the High Court on the ground of unconstitutionality. He was
charged for a Facebook posting in 2012 that allegedly insulted the Sultan of Selangor.53
Chan Hong Keong, an engineer, was convicted by the Sessions Court on 1 June 2012 of an offence
under the Sedition Act 1948 for posting comments on a website in February 2009 which were
held to have insulted the then Sultan of Perak. He was sentenced to one year’s jail and a fine of
RM50,000. He appealed against both conviction and sentence, but this was rejected by the High
Court in February 2014. He then appealed to the Court of Appeal. On 7 January 2015, the Court
of Appeal upheld his conviction and the fine, but set aside the custodial sentence.54
On 9 January 2015 Hishamuddin Rais was found guilty by the Kuala Lumpur Sessions Court for
an offence under the Sedition Act 1948, and was fined RM5,000. He was found guilty of calling
for street demonstrations to be held to overthrow the government, in remarks made at the Kuala
Lumpur and Selangor Chinese Assembly Hall on 13 May 2013.55
On 3 April 2015, cartoonist Zulkiflee Anwar Ulhaque, better known as Zunar, claimed trial to nine
counts of sedition. He was charged in respect of nine tweets which he made about the judiciary in
connection with the Anwar Ibrahim guilty verdict by the Federal Court.56 On 6 November 2015
Zunar filed a constitutional challenge to all the nine charges.57
50 http://www.themalaymailonline.com/malaysia/article/court-rules-plaintiff-no-longer-umno-rep-bins-rm2.6b-sharelawsuit-against, accessed on 31 March 2016.
55 http://www.themalaymailonline.com/malaysia/article/activist-hishamuddin-rais-found-guilty-of-sedition, accessed on
29 March 2016.
109
On 25 June 2015, opposition Member of Parliament Teresa Kok sought to get her sedition trial
transferred to the High Court, but was unsuccessful. She had been charged in respect of a parody
video clip that had been aired over social media, which was allegedly critical of government.58
However, on 20 November 2015, she was informed that the charges against her had been dropped.59
On 5 October 2015 former Melaka Chief Minister Abdul Rahim Thamby Chik was charged with
sedition in respect of a comment he made about the alleged apostasy of the Raja Muda (Crown
Prince) of Selangor on a Facebook posting. He also faced an alternative charge under Section 233(1)
(a) of the Communications and Multimedia Act 1998. He pleaded not guilty.60 On 5 November
2015, his trial was fixed for 5 January 2016.61
On 13 October 2015 activist Khalid Ismath was charged with 11 counts under the Communications
and Multimedia Act 1998 and three counts under the Sedition Act 1948. The charges were in
respect of alleged social media postings regarding the Johor royal family. He was denied bail.62
However he was eventually granted interim bail on 29 October 2015.63
On 16 October 2015 opposition Member of Parliament S. Sivarasa was charged with sedition for a
speech he gave during a “KitaLawan” rally.64
On 30 October 2015, the Temerloh Sessions Court found Wan Fatul Johari, 68 years old, guilty
of three counts of insulting the Malay Rulers on Facebook in violation of Section 233(3) of the
Communications and Multimedia Act 1998, and sentenced him to a fine of RM120,000, in default
30 months jail. He was found guilty of insulting the Sultan of Kelantan on 31 August 2012, and
the Malay Rulers and the Yang DiPertuan Agong on 3 and 4 June 2013. He was not represented by
legal counsel during the proceedings.65
On 2 November 2015, S Arutchelvan, a member of the central committee of Parti Sosialis Malaysia,
was charged in the Kuala Lumpur Sessions Court for an offence under Section 4(1)(c) of the Sedition
Act 1948 in respect of a comment he posted on 10 February 2015 on Facebook in relation to the
Court of Appeal’s decision to find Anwar Ibrahim guilty of sodomy. He faced an alternative charge
under Section 233(1)(a) of the Communications and Multimedia Act 1998 for abuse of network
facilities.66
On 13 November 2015 blogger Lawrence Jayaraj Edwin John was charged with posting an
article on the Federal Court’s decision in Anwar Ibrahim’s second sodomy trial that was said to be
seditious. As has become the norm, there was an alternative charge under Section 233(1)(a) of the
Communications and Multimedia Act 1998. He pleaded not guilty. A next mention date was fixed
for January 2016.67
On 16 November 2015, an opposition politician, Hassan Karim, was charged under both the
Sedition Act 1948 and the Communications and Multimedia Act 1998 for remarks made against
the Sultan of Selangor. He pleaded not guilty, and a mention date was fixed for December 2015.68
65 www.utusan.com.my/berita/mahkamah/hina-raja-melayu-8232-warga-emas-8232-didenda-rm120-000-1.152544,
66 http://www.thestar.com.my/news/nation/2015/11/24/psms-arutchelvan-charged-with-sedition/, accessed on 29 March
2016.
110
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On 4 December 2015, former Minister Zaid Ibrahim was charged under the Communications and
Multimedia Act 1998 for causing “annoyance by intentionally making statements that were hurtful
to others”. He had in a speech called for the Prime Minister to resign.69
After losing his challenge against the constitutionality of the Sedition Act 1948 at the Federal Court,
which ruled on 6 October 2015 that it was constitutional, Associate Professor Azmi Sharom went on
trial on 15 December 2015 in the Sessions Court for an offence committed under Section 4(1)(b) of
the Sedition Act 1948. However his legal counsel immediately applied for the case to be transferred
to the High Court.70 On 16 December 2015 the Sessions Court ruled that it would not allow the
case to be transferred to the High Court. Counsel then sought to raise several preliminary issues
relating to the issue of possible defences that could be raised before the actual trial got under way. It
was expected that the trial proper would be heard in the early part of 2016.71
On 16 December 2015, civil society activist Muhammad Safwan Anang @ Talib won his appeal
to reduce the sentence imposed on him on his conviction for an offence under Section 4(1) of the
Sedition Act 1948. Muhammad Safwan had been sentenced in September 2014 to 10 months’
jail, but this was reduced to an RM5,000 fine, or two years’ jail in default. Notwithstanding the
reduction in sentence, he intends to appeal again against his conviction.72
Does the right to freedom of expression or speech include the right, especially for a journalist, to
protect a source? It would appear not. On 27 November 2015, the Court of Appeal ruled that issues
of national security overrode the principle of journalistic confidentiality and held that a journalist
who was a witness in a trial involving an alleged terrorist must disclose the source of her story.73
Restrictions were not just attempted on verbal speech, but also on printed publications.
On 24 July 2015, the Ministry of Home Affairs announced that with effect from 27 July 2015 it was
suspending the publishing permit of The Edge Weekly and the Edge Financial Daily for three months.
The suspension was due to the publications’ reporting of the 1MDB financial scandal.74 On 5 August
2015, the Kuala Lumpur High Court granted leave (permission) to challenge the suspension.75
On 14 August 2015 the High Court however refused to grant a stay of the suspensions.76 On 7
September 2015, the two publications made submissions in the Kuala Lumpur High Court to quash
the suspension order.77 On 21 September 2015 the Kuala Lumpur High Court ordered that the
suspensions be lifted,78 but the Government announced that it would appeal the
decision.79 The Government’s appeal was filed on 28 September 2015.80 At the hearing of the
Government’s appeal on 13 October 2015, the Government’s application for a stay of the lifting of
the suspension was refused.81
78 http://www.thestar.com.my/news/nation/2015/09/21/court-the-edge-publications-decison-to-ban-quashed/, accessed
on 31 March 2016.
111
In a rather more bizarre interpretation of “publication”, and in anticipation of the BERSIH 4.0
rally, the Government had on 27 August 2015 gazetted a ban on any publication that contained
the words “BERSIH 4”, including any t-shirts. Access to BERSIH 2.0’s website was also blocked by
the Malaysian Communications and Multimedia Commission (MCMC). On 18 September 2015
BERSIH 2.0 filed an application to challenge the ban. It also wrote to the MCMC demanding that
access to the website be unblocked.82 On 22 October 2015 the High Court granted leave to BERSIH
2.0 to file a judicial review of the “BERSIH 4” ban.83 On 2 November 2015 the Shah Alam High
Court announced that the case would be heard in January 2016.84
Restrictions on freedom of expression or speech have also included attempts to ban books and even
cartoons from being published or distributed. However on 11 November 2015, the Federal Court
upheld the decision of the Court of Appeal to lift the ban imposed on two books of cartoons drawn
by Zunar.85
A slightly more complex situation is where there is an attempt by the religious authorities to prohibit
books deemed contrary to Islamic teachings and to punish their publishers.
The main case involved Borders bookshop and ZI Publications. On 26 February 2015, Borders
manager Nik Raina Nik Abdul Aziz, who was the senior-most Muslim employee at the bookshop,
was given a discharge not amounting to an acquittal by the Syariah court for distributing a book
that was deemed to have gone against Islamic teachings.86 On 9 March 2015 the Federal Territories
Islamic Department filed an appeal against the discharge. On 13 May 2015, however, the Federal
Territories Islamic Department wrote to confirm that they were withdrawing their appeal,87 but it
was not until 23 June 2015 that the appeal was finally withdrawn at the Syariah Court of Appeal.88
Notwithstanding this, the Federal Court held on 28 September 2015 that the publisher of the book,
Ezra Zaid, would still have to face charges brought by the Selangor state religious authorities for
having published the book. It held that the relevant Selangor state legislation was validly enacted
and not unconstitutional.89
On 10 September 2015, leave was granted to author Mohd Faizal Musa to challenge the banning of
four of his books. It is alleged that these books are related to Shia Islam teachings.90
The Government also sought to restrict freedom of expression via films. On 14 December 2015, the
trial began of Lena Hendry, accused of screening a documentary film about allegations of genocide
in the civil war in Sri Lanka without the film being approved for public screening by the Film
Censorship Board.91 Lena had previously sought to challenge the constitutionality of the requirement
for approval under the Film Censorship Act 2002, arguing that it was an unreasonable restriction of
her freedom of expression guaranteed under the Federal Constitution. The Federal Court had ruled
against her on 14 September 2015. A witness at the trial confirmed that the complaint against the
public screening of the documentary film had actually come from the Sri Lankan High
82
83
84
85
86
87
88
89
90
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Commission to Malaysia, but that the witness had received instructions from his superiors to say
that the complaint had come over the Internet. Other discrepancies in his testimony were also
exposed. The trial would continue in 2016.
And finally, even a simple act of non-verbal, non-printed dissent in the form of releasing yellow
balloons in a mall at which the Prime Minister and his wife were present could end up with a
prosecution. On 23 September 2015 artist Bilqis Hijjas was charged under Section 14 of the Minor
Offences Act 1955 for “insulting behavior” with intent to provoke a breach of the peace.92
Freedom of movement
There were challenges to the freedom of movement in Malaysian in 2015. On 22 July 2015, in
relation to the 1MDB financial scandal, opposition Members of Parliament Tony Pua and Rafizi Ramli,
who had been in the forefront of criticism against 1MDB, found themselves restricted from foreign
travel.93 It was alleged that the travel ban was due to their involvement in activities detrimental to
parliamentary democracy contrary to Section 124B of the Penal Code.94 On 19 August 2015, Tony
Pua filed an application for judicial review of his travel ban.95 Tony Pua was also deported from
Miri, Sarawak on 23 September 2015, after the authorities there acknowledged that they had made
a mistake in letting him in.96
In November 2014, former President of the Malaysian Bar, former Co-Chairperson of BERSIH 2.0
and current Patron of civil society movement “NegaraKu”, Ambiga Sreenevasan was prohibited from
entering Sabah. She filed for judicial review of this prohibition. On 28 September 2015 the Kota
Kinabalu High Court upheld the travel ban. The High Court held that as Sabah had immigration
autonomy within Malaysia, the court could not review the decision of the immigration authorities
of the state.97
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Right to vote
While the Malaysian Federal Constitution makes provisions for the right to vote, a crucial area
of contention is the way the boundaries of constituencies for Parliament and the state assemblies
are determined. Under the Federal Constitution, constituency boundaries can be reviewed at a
minimum of eight years after the conclusion of the previous review.
A review of the constituency boundaries for the Sarawak state assembly began in 2015. On 15 May
2015, the re-delineation exercise commenced by the Election Commission was nullified, on the
basis that insufficient information had been made available to voters in the notices sent out by the
Election Commission such that voters were unable to decide whether or not they would be affected
by the proposed constituency changes.98 On 15 June 2015 it was announced that the Court of
Appeal would hear the Election Commission’s appeal on 9 July 2015.99 As the case involved the
92
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96
97
98
99
113
state of Sarawak, counsel from Peninsular Malaysia had to be specifically permitted to represent the
applicants at the appeal, and on 6 July 2015 the Chief Judge of Sabah and Sarawak granted ad hoc
admission to the lawyers concerned.100
In oral argument, counsel for the applicants alleged that the re-delineation exercise actually involved
a movement of voters from one constituency to another.101 On 7 August 2015 the Court of Appeal
ruled that the re-delineation exercise was valid.102 On 4 September 2015 the results of the redelineation exercise was officially gazetted. Notwithstanding the gazetting, on 6 October 2015 the
applicants filed an application to the Federal Court for leave for appeal against the decision of the
Court of Appeal.103 The application for leave was heard on 15 October 2015 and denied, on the
basis that the appeal was now academic as the results had been gazetted and the recommendations
sent to the Prime Minister as provided for under the Federal Constitution.104
Labour rights
In January 2015, the Kuala Lumpur High Court ruled that the National Union of Bank Employees
(NUBE) and its officers were immune from lawsuits as provided for under Section 22 of the Trade
Unions Act 1959.105 Malayan Banking Berhad had filed a lawsuit against NUBE alleging that NUBE
and its general secretary had published articles on NUBE’s website containing defamatory statements
against the bank. The bank had filed a suit in 2011, but this was struck out by the High Court. The
bank successfully appealed the decision to the Court of Appeal in 2012, and the case was remitted
to the High Court for trial.
Right to citizenship
M. Navin was born to a Malaysian father and Filipina mother, who were not married to each other.
He was issued with a Malaysian birth certificate. When his father applied for a Malaysian identity
card for him, the application was refused and his original birth certificate revoked on the ground
that as his mother was not married to his father at the time of his birth, he was considered to have
Filipino citizenship following that of his unwed mother. Although his birth certificate had been
revoked, he had been previously issued with a Malaysian Passport. He had applied for citizenship
and the issuance of an identity card on several further occasions, but all his applications were rejected
by the National Registration Department. In proceedings in 2014, the High Court had granted his
application and had ordered the National Registration Department to issue him a Malaysian identity
card within 30 days. The National Registration Department appealed. On 29 July 2015, the Court
of Appeal upheld the findings of the High Court but varied its order. It ordered the Ministry of
Home Affairs and the National Registration Department to reconsider M.
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Navin’s application for citizenship and the issue of a Malaysian identity card pursuant to Article 18
of the Federal Constitution. The National Registration Department had hitherto relied on the more
narrow provisions of Article 15A of the Federal Constitution, which the Court of Appeal found to be
an unduly restrictive approach.106 The Court of Appeal gave the Ministry of Home Affairs and the
National Registration Department six months to reconsider the application.
Right to identity
A case involving four transgender women was decided by the Court of Appeal on 19 June 2015. A
report and analysis of this transgender case has already made elsewhere in this chapter. However
from a judicial perspective, the case is noteworthy for being one in which a civil court specifically
overruled the decision of a Syariah court, and held that rather than being a Syariah matter, it was a
question of fundamental liberties, particularly the freedom of expression. As such, the latter had no
jurisdiction over the matter.107 Overall, the right to identity was affirmed.
High profile cases
The Altantuya Shaaribuu murder case
On 13 January 2015 Federal Court delivered its decision. Chief Inspector Azilah Hadri and
Corporal Sirul Azhar Umar, who were found guilty of the murder of Altantuya Shaaribuu by the
High Court, but who had their guilty verdict reversed by the Court of Appeal in August 2013 due
to serious misdirection by the High Court judge, had their guilty verdicts reinstated by the Federal
Court.108 The sentence of death by hanging was affirmed. Chief Inspector Azilah was sent to await
execution (subject to any application for clemency). As Corporal Sirul was not present at the
decision, a warrant of arrest was issued against him. Efforts to detain Corporal Sirul failed as he had
inexplicably been allowed to leave Malaysia for Australia, where the law prohibits the extradition of
any person facing the death penalty in the country seeking that extradition.
In a related matter, on 19 June 2015 the High Court issued preliminary directions in the civil lawsuit
filed by Altantuya Shaaribuu’s father in respect of her death.109 The case remained outstanding at
the end of the year under review.
Anwar Ibrahim
The sodomy prosecution of former Deputy Prime Minister Anwar Ibrahim came to a conclusion
on 10 February 2015 when the Federal Court upheld the guilty verdict and 5-year prison sentence
imposed by the Court of Appeal. Quoting from the unanimous decision, the court held that, “Taking
into consideration the seriousness of the offence and the fact that appellant had taken advantage of
his position as an employer of the young victim, the five-year sentence is not grossly excessive.”110
Attorney General Abdul Gani Patail also defended the decision to prosecute Anwar Ibrahim under
Section 377B of the Penal Code, which he stated was a less serious offence than Section 377C.111
106
107
108
109
110
111
https://www.malaysiakini.com/news/306610, accessed on 18 April 2016.
115
On 20 August 2015 it was announced that case management would be held on 26 August 2015 in
relation to an application to the Federal Court to review their decision.112 On 16 November 2015
the review hearing began.113 The basis of the application to review revolves around whether or not
there was either fresh or additional evidence that could be introduced in relation to the case.
In November 2015, the United Nations Working Group on Arbitrary Detention published an opinion
stating that, in their view, Anwar Ibrahim’s detention in prison was arbitrary and unnecessary, and
called for his immediate release and the restoration of his political rights.114 The Prime Minister’s
Office, responding to the call, asked for the legal process in Malaysia to be respected, stating that
Anwar Ibrahim’s trial was a criminal, not political, case.115 It also pointed out that the Malaysian
judiciary was independent, citing as proof the many court decisions that had gone against the
Government.
A. Kugan
On 22 May 2015, police constable V. Navindran lost his final appeal against his conviction for
causing hurt to A. Kugan, who died in police custody six years ago. He had appealed against his jail
sentence of three years.116 In a related case, on 3 August 2015, the Inspector General of Police and
the government of Malaysia were granted leave by the Federal Court to appeal against the decision
of the High Court holding the Royal Malaysian Police and the government of Malaysia liable for his
wrongful death. Three questions of law have been raised: whether Section 8(2) of the Civil Law
Act 1956, which bars the awarding of exemplary damages in an estate claim, is applicable where
the death of the deceased is a result of breach of his constitutional right to life; whether, for the
purpose of an estate claim under Section 8 of the Civil Law Act 1956, the acts that make up the
tort of misfeasance in public office must be acts that occurred before the death of the deceased; and
whether a separate award for misfeasance in public office can be made in favour of the estate when
the injury caused to the deceased is the exact injury for which an award for assault and battery had
already been made to the estate.117 The case remained outstanding at the end of the year under
review.
Aminulrasyid Amzah
The civil lawsuit by the family of 15-year old Aminulrasyid Amzah who was shot dead by a police
officer in a car chase was heard this year. At a hearing on 8 July 2015, the policeman in question,
Corporal Jenain Subi, admitted that fleeing from police inspection was not a situation which would
have allowed him to open fire with his weapon. He admitted that ignoring the siren from police
patrol cars in pursuit was also not a situation which would have allowed him to open fire with
his weapon. He also admitted that setting his weapon, a sub-machine gun, to “auto” mode was a
mistake, and that he should only have put it to “manual” mode.118 Case management to arrange for
written closing submissions was held on 20 October 2015,119 and a decision was expected in the
new year.
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Wahid Md Don
The conviction and sentence imposed on the former Director General of Immigration by the Kuala
Lumpur Sessions Court on 30 October 2013 was upheld by the Kuala Lumpur High Court on 16
December 2015. The accused was charged with accepting bribe from businessman Datuk Seri Low
Chang Hian as inducement to speed up approval of 4337 visa applications for Bangladeshi workers
in Malaysia. He was fined RM300,000 and sentenced to six years in jail. The High Court however
granted him a stay of execution pending an appeal to the Court of Appeal.120
Khir Toyo
On 22 September 2015, the Federal Court dismissed the final appeal by former Mentri Besar of
Selangor Khir Toyo and upheld his conviction and one-year jail sentence for obtaining for himself
and his wife two lots of land and a bungalow in Seksyen 7, Shah Alam, from Ditamas Sdn Bhd,
through its director Shamsuddin Hayroni. The property was bought at a significant discount to its
original purchase price by the vendor. He was charged under Section 165 of the Penal Code which
provides for a maximum sentence of two years’ jail or fine, or both, upon conviction.
Nisra Nisran Angit
On 13 November 2015 the Deputy Director General of the Orang Asli (indigenous people of
Peninsular Malaysia) Development Department was charged in the Sessions Court over bribery
allegations involving RM74,000.121 The trial had yet to take place at the end of the year under
review.
MH17
Bringing alleged perpetrators of crime to justice is a constant issue in transnational criminal law. This
is more so when it involves a high profile event which has led to many deaths of innocent people.
Thus the question of how to investigate and prosecute the alleged perpetrators of the shooting down
of MH17 is of keen interest. Which legal forum would be the most appropriate? Would it be the
courts of the nationality of the carrier, Malaysia? Would it be the courts of the country where the
aircraft departed, or which suffered a large number of casualties, like the Netherlands or Australia
or Belgium? Or the country over whose airspace the aeroplane was shot down, Ukraine? Even
the question of under which legal regime the case should be heard is of concern. Was it simply an
international crime, or was it specifically a war crime which could be brought to trial before the
International Criminal Court (ICC)? If it is the latter, would the ICC have jurisdiction even though
neither Ukraine nor Malaysia was State Parties to the ICC (even though there has been a campaign
to persuade Malaysia to join)? Or would an ad hoc international court or tribunal have to be
specifically set up? In any event, long negotiations in this regard came to naught when the Russian
Federation vetoed a resolution at the United Nations Security Council of a proposal to create an
international tribunal.122 The question of an appropriate forum is thus still left open.
MH370
Towards the end of 2015, cases began to be heard in Malaysian courts arising out of the disappearance
of Malaysia Airlines flight MH370. One in particular that is noteworthy is a suit brought about by
the two children of parents who disappeared together with the aircraft. On 28 December 2015,
122 https://www.malaysiakini.com/news/306682, accessed on 18 April 2016.
117
at a case management hearing, the Malaysian Government, one of the defendants in the action,
applied to strike out the suit. Malaysia Airlines Berhad, another of the defendants, argued that it
was not a successor company to Malaysia Airlines System Berhad, and that the legislation that placed
the previous company under administration did not specifically provide that the new company
would take over the liabilities of the previous company.123 This legislation was introduced by
the Malaysian Government and passed in Parliament in 2015. It remains to be seen whether the
courts will sanction this measure by the Malaysian Government to help Malaysia Airlines Berhad
to possibly avoid and/or limit liability for that ultimate breach of fundamental liberties, namely the
abrogation of the right to life. The matter is scheduled for further case management in 2016.
Conclusion
What seems clear from the cases reviewed above is that court decisions have been varied. Overall,
decisions, whether in civil or criminal cases, have been made both in favour and against the
government of the day. However, upon more careful consideration, it is possible to advance the
argument that while there has been some reassertion of the proper role to be played by the civil
courts in freedom of religion issues, the separate sphere of Syariah law even when it conflicts with
fundamental liberties has also been upheld. The decisions of the civil courts in terms of protecting
fundamental liberties have been mixed, with the need to protect the institutions of state and the
security of the public/others a major determinant.
118
on,
at it
ced
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by
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ivil
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119
pop
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FREE AND FAIR ELECTIONS
By Wong Chin Huat (fellow, Penang Institute)
Key to the maintenance of the electoral one-party state in Malaysia is the constituency re-delineation
process which enables excessive malapportionment and gerrymandering to result in vast vote-seat
disproportionality between the ruling coalition Barisan Nasional (BN) and the opposition. In the last
national election in 2013, the BN retained its power by winning 60% of parliamentary seats with
a mere 47% of votes as the opposition coalition Pakatan Rakyat could only win 40% of seats with
51% of votes.
This chapter focuses on the constituency re-delineation exercise for the state of Sarawak which
commenced in January and concluded with parliamentary approval in December. The exercise can
only happen after a minimal interval of eight years and is carried out separately in three different
units of review: the states of Malaya (strangely including the Federal Territory of Labuan off Sabah),
Sabah and Sarawak. The previous round of re-delineation was carried out in Sarawak in 2005, two
years later than the rest of the country. This round, Sarawak was the first unit to undergo the exercise
and Sabah is expected to follow.
The exclusive focus on the re-delineation hence allows us to scrutinise the re-delineation process in
detail. Those who are interested in manipulation in electoral process – instead of electoral system –
are advised to consult the same chapter for the previous years.
The Purpose of Constituency Re-delineation – Equal and Meaningful Representation
Constituencies are delineated to facilitate equal and meaningful representation. It should be guided
by the principle of “one person, one vote, one value” as political equality of citizens is a hallmark
of democracy. As demographic changes and settlement pattern over time may render constituencies
vastly unequal in size or deviating from meaningful boundaries, re-delineation becomes important
to restore equal and meaningful representation.
In exactly opposition to the equal and meaningful representation are two malpractices called
malapportionment and gerrymandering.
Malapportionment creates constituencies that are significantly unequal in the size of electorate,
under-representing voters in over-crowded constituencies and over-representing voters in thinly120
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Free and Fair Elections
populated constituencies. Malapportionment can be objectively determined by comparing the
electorate sizes of individual constituencies against the average size. The greater the deviation from
the average, the worse is the malapportionment. In many countries, seats in national legislature
may be allocated to sub-national divisions like states/provinces first before actual constituencies are
carved out. In other words, malapportionment may happen in two ways: inter-state and intra-state.
In contrast, gerrymandering manipulates the composition – instead of size -- of constituency
electorates by drawing up constituencies that systematically disadvantage certain parties. Therefore,
gerrymandering can happen with or without malapportionment. In the First-Past-The-Post (FPTP)
elections, all it takes to win a constituency in a straight fight is a simple majority, or 50% of votes
plus one. Hence, if the disadvantaged party’s supporters can be divided into several constituencies
to prevent them forming majority in any of them, the disadvantaged party is outright denied
representation. This tactic is called “cracking”. On the other hand, if the disadvantaged party’s
supporters are unnecessarily concentrated in their strongholds way beyond a comfortable majority,
then the disadvantaged party will be winning fewer constituencies than otherwise. This tactic is
called “packing”.
Unlike malapportionment which can be mathematically determined by comparing sizes of
individual constituency electorates and their average, gerrymandering has no cut-and-dried rules
to determine the ideal boundaries. The ideal or overarching boundaries instead lie in the eye of
the beholder. They can be administrative (states, municipalities, etc), physical (rivers, mountains,
etc), infrastructural (road, railway, etc), economical (industrial, agricultural, etc) or socio-cultural
(ethnic, religious, linguistic, etc). Gerrymandering is normally found from its consequence – the
shift of electoral strengths between parties – or from its symptom – the emergence of odd-shaped
constituency defying reasonable expectations. In fact, the term “Gerrymandering” owes its origin to
Elbridge Gerry, a 19th Century Governor of Massachusetts and a “salamander-shaped” constituency
he created.
Constituency re-delineation exercises in Malaysia are governed by the 13th Schedule of the Federal
Constitution. While it does not explicitly state equal and meaningful representation as the goal of
such exercises, its Section 2 in Part 1 lists down four principles. It reads,
“The following principles shall as far as possible be taken into account in dividing any unit
of review into constituencies pursuant to the provisions of Articles 116 and 117 (a) while having regard to the desirability of giving all electors reasonably
convenient opportunities of going to the polls, constituencies ought to be delimited so that
they do not cross State boundaries and regard ought to be had to the inconvenience of State
constituencies crossing the boundaries of federal constituencies;
(b) regard ought to be had to the administrative facilities available within the
constituencies for the establishment of the necessary registration and polling machines;
(c) the number of electors within each constituency in a State ought to be
approximately equal except that, having regard to the greater difficulty of reaching electors
in the country districts and the other disadvantages facing rural constituencies, a measure
of weightage for area ought to be given to such constituencies;
(d) regard ought to be had to the inconveniences attendant on alterations of
constituencies, and to the maintenance of local ties.”
121
While sub-section 2(b) may be purely driven by administrative need and hence willingly observed,
sub-sections 2(a) and 2(d) can be seen as safeguards against gerrymandering and sub-section 2(c) as
safeguard against intra-state malapportionment.
M
Sub-section 2(a) spells out the neatly-nested nature of Malaysia’s electoral-political units: States
consist of parliamentary constituencies, which in turn consist of state constituencies. There has
never been any violation of this provision in the legal sense. However, for the Borneo states of Sabah
and Sarawak which joined Malaya and Singapore as equal partners to form Malaysia in 1963, the
question arises on whether their “Divisions” should be politically treated like the “States” in Malaya
such that constituency boundaries cannot cross divisional boundaries. During the colonial time,
Malayan states and Borneo divisions were administered by British officers of the rank of Resident.
Respecting the divisional boundaries is thus recognition of the uniqueness of the Borneo states and
their parity with Malaya.
To
Se
The phrase “maintenance of local ties” in Sub-section 2(d) is the main safeguard against gerrymandering.
Although “local ties” is undefined in the Federal Constitution, the Election Commission has in its
documentations and processes recognised the relevance of administrative, physical, infrastructural,
economical and socio-cultural boundaries as bases of political representation.
Sub-section 2(c) provides the clearest safeguard on paper against corrupt practice in constituency
re-delineation. It spells out two guidelines: first, that the rule is for all constituencies within any state
to be “approximately equal” in electorate size; and, second, that exceptions may be made for lowdensity rural constituencies on the basis of “area” or landmass which naturally poses transportation
challenges. It is important to note that “a measure of weightage for area” once had its bounds, until
the clause “to the extent that in some cases a rural constituency may contain as little as one half of
the electors of any urban constituency” was deleted in the 1973 Constitutional Amendment. The
allowance on deviation from the average was originally even stricter in the original Article 116(4),
which was deleted with the insertion of the 13th Schedule: “… the allowance to be made shall not
increase or reduce the number of electors in any constituency to a number differing from the electoral
quota [average] by more than fifteen per cent.”
While the caps on deviation were loosened over time and eventually eliminated, it is undeniable
that sub-section 2(c) still provides for equal apportionment as a rule and exception only on the
ground of “area”. It cannot be construed as a deliberate classification of constituencies on the degree
of urbanisation. In the last round of constituency re-delineation exercises in 2003 and 2005, the
Election Commission (EC) however deliberately misinterpreted sub-section 2(c) and produce its
own five-tiered guideline of malapportionment. (Table 1)
Table 1: The Election Commission’s guidelines on Malapportionment of Electoral
Constituencies in the Constituency Re-delineation Exercises in 2003 and 2005
Class
2003
(Malayan States including
Labuan)
Parliamentary
State
Constituency Constituency
122
2003
(Sabah)
Parliamentary
Constituency
State
Constituency
2005
(Sarawak)
Parliamentary
Constituency
State
Constituency
S
Sou
Ma
mo
allo
form
by
eac
Par
form
Sab
12%
197
abs
Thi
prin
of
veh
add
sea
ma
inst
ed,
) as
Metropolitan
50,000Town/
69,000
voters
Town centre
oral
e
uency
25,00029,000
Voters
27-49 km2
Semi-urban
40,00049,000 voters
15,00024,000
Voters
50-99 km2
ng.
its
ral,
able
the
gree
the
its
30,00049,000
Voters
8-26 km2
ates
has
bah
the
aya
me,
ent.
and
ncy
tate
owion
ntil
f of
The
(4),
not
oral
70,00090,000 voters
Semi-rural
30,00039,000 voters
10,00014,000
Voters
100-250 km2
Rural/
Inland
20,00029,000 voters
7,000-9,000
Voters
>250 km2
40,00050,000 voters
18,00025,000
Voters
8-60 km2
30,00039,000 voters
15,00018,000
Voters
10,00014,000
Voters
501-1000 km2
20,00024,000 voters
8,00010,000
Voters
1001-1500 km2
<=20,000
Voters
25,00035,000
Voters
11-26 km2
61-500 km2
25,00029,000 voters
60,00069,000 voters
<=8,000
voters
>1500 km2
50,00059,000 voters
20,00025,000
Voters
27-49 km2
40,00049,000 voters
15,00020,000
Voters
50-90 km2
30,00035,000 voters
10,00015,000
Voters
100-250 km2
20,00029,000 voters
7,00010,000
Voters
>250 km2
Source: The EC Reports on Constituency Redelimitation, 2003 and 2005
Malaysia’s constitutional provision on inter-state apportionment of parliamentary seats is much
more problematic. Initially, Article 116(3) of Malaya’s Federal Constitution in 1957 stipulated the
allocation of seats based on the percentages of both electorate and population. The mathematical
formula was however eliminated in a 1962 amendment. From 1963 onwards, the matter is governed
by Article 46, which spells out the absolute number of parliamentary constituencies allocated to
each region or state. Instead of dividing a total of constituencies across the states, the Malaysian
Parliament adds up constituencies allocated to the states to get its total. This started in 1963 with the
formation of Malaysia, when federal seats were allocated in absolute numbers for Malaya, Singapore,
Sabah and Sarawak to deliberately over-represent Sabah and Sarawak (together, 25% of seats with
12% of population) and under-represent Singapore (9% of seats with 17% of population). With the
1973 constitutional amendment, even individual Malayan states were given parliamentary seats in
absolute numbers.
This additive approach to inter-state representation has two problems: first, there is no guiding
principle to check against inter-state malapportionment; second, this facilitates continuous increase
of parliamentary seats, for states and overall. In fact, seat increase has become the convenient
vehicle to worsen inter-state malapportionment. In 2003, 21 parliamentary constituencies were
added for West Malaysia, with its total jumping from 144 (out of 193 seats) to 165 (out of 219
seats). The allocation of these 21 seats however has worsened -- rather than mitigating -- inter-state
malapportionment. The severely under-represented Selangor was given only five additional seats
instead of 10, while the already over-represented Pahang was given three additional seats.
123
A further twist to the problem is the unscrupulous practice by the EC that it commenced the redelineation exercise based on some new number of seats it decided, even though there was no
change to Article 46. Once its re-delineation proposal was adopted by the Parliament, “retrospective”
amendment to Article 46 to increase seats as per its proposal became a ‘fait accompli’, and, the entire
issue of inter-state malapportionment easily escaped the scrutiny of both the parliamentarians and the
public. 1 The EC planned to repeat the scheme for the new round of constituency re-delineation2 and
even some opposition parliamentarians were in favour for such increase3. However, the Coalition for
Clean and Fair Elections 2.0 (Bersih 2.0) threatened to challenge such an unconstitutional practice
in court.4 For Sarawak, the EC eventually opted to act constitutionally - its proposal was based on
the existing 31 parliamentary constituencies (as there was no amendment to Article 46) and the new
number of 82 state constituencies (as a result of an amendment to the concerned state law.)
The Effects of Constituency Re-delineation – Are Malapportionment and Gerrymandering
mitigated?
Can
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the
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(6,3
Bar
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Did the 2015 constituency re-delineation exercise for Sarawak promote more equal and meaningful
representation or did it succumb to worse malapportionment and gerrymandering?
We begin with comparing the degree of malapportionment or disparity before and after the redelineation.5
For parliamentary constituencies, direct comparison is possible as there was no seat increase.
Graphic 1 shows almost no changes in the deviations from the state average, except for P195 Bandar
Kuching and P196 Stampin. These two neighbouring constituencies in Kuching swapped the extent
of their deviations mainly because a state constituency N11 Batu Lintang was taken out of Stampin
and added into Bandar Kuching.
For state constituencies, since 11 seats were added, a one-to-one comparison is impossible. Graph
2 nevertheless matches 71 of the 82 “new” constituencies (ranging from left to right N01 Opar to
N82 Bukit Sari) in 2015 with their “forerunners” during 2013. The red bars indicate the deviation
from state average after the 2015 re-delineation while the blue bars indicate the deviation during the
2013 general election6. The 11 newly added ones are shown with only the red bar. It is clear that
the re-delineation has also done little to reduce the disparity of electorate size across constituencies.
In fact, the under-representation of many oversized constituencies was worsened by the emergence
of thinly-populated “new” constituencies.
1 This complicated scheme is easier to comprehend with actual specifics. The last redelineation exercise for West Malaysia
commenced on August 8, 2002 and the EC’s recommendation was approved by the Dewan Rakyat (Lower House of the
Parliament) on April 8, 2003. The recommendation was based on 165 parliamentary seats in West Malaysia. Throughout this
period, Article 46 was not amended and constitutionally West Malaysia had only 144 seats. The constitutional amendment
bill to increase the seats were passed by Dewan Rakyat only on June 19, 2003 and gazetted on August 14, 2003.
2 Shahanaz Habib, 2014. “EC in bid to increase Parliament seats by up to 20%”, The Star, February 23, http://www.
thestar.com.my/news/nation/2014/02/23/ec-in-bid-to-increase-parliament-seats-by-up-to-20/, as accessed on March 13,
2016.
3 Meena Lakshana, 2014, “Pakatan MPs say yes to increasing parliamentary seats in delineation exercise”, FZ.com, April
20, 2014, URL: http://www.fz.com/content/paktan-mps-say-yes-increasing-parliamentary-seats-delimitation-exercise, as
accessed on April 24, 2014.
4 Melati A. Jalil, “Bersih to challenge EC if delineation exercise ‘illegally’ increases seats” The Malaysian Insider, 15
December 2014. http://webcache.googleusercontent.com/search?q=cache:EsYQ0XvrTLQJ:www.themalaysianoutsider.com/
malaysia/article/bersih-to-challenge-ec-if-delineation-exercise-illegally-increases-seats+&cd=7&hl=en&ct=clnk&gl=us
5 While there was a small increase of 2.32% in electorate between 2013 (during general election) and 2015 (as per the
redelineation report), the increase was too small to affect our conclusion.
6 The electorates of state constituencies in 2013 are estimates as the early/postal voters are aggregated at the parliamentary
constituency level and allocated to the state constituencies on a pro rata basis.
124
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ave
as 1
7
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Can such worsened or uncorrected intra-state malapportionment be justified? Here we must not fall
into the trap of directly comparing the metropolitan areas like Kuching, Sibu, Miri and Bintulu with
the rural areas. Instead, we should look at the over-represented rural constituencies to see if they
qualify to be the exception under sub-section 2(c) of the 13th Schedule.
In Table 1, if we look at all the 20 parliamentary constituencies with less than average electorate size
from P199 Serian to P207 Igan, there is no clear correlation between electorate size and area size.
Undoubtedly, P216 Hulu Rajang deserved over-representation (having an electorate as small as 68%
of state average) with its vast area of 34,080 km2 (nearly the size of Pahang). Next on the list would
be P220 Baram (22,075 km2, nearly the size of Perak), P214 Selangau (9,193 km2), P215 Kapit
(6,331 km2) and P221 Limbang (4,221 km2). The vast contrast in landmass between Hulu Rajang,
Baram, Tanjong Manis and Igan is shown in Map 1.7
Map 1: The Malapportionment of Four “Rural” Parliamentary Constituencies as per the
Election Commission’s Final Report on Re-delineation.
gful
re-
ase.
dar
ent
pin
aph
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ion
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hat
ies.
nce
ysia
the
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ment
ww.
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, 15
om/
the
tary
However, if the land-locked Perak-sized Baram could have 31,476 voters or 88% of the state
average, why should the coastal P207 Igan – with only one tenth of Baram’s area – have as few
as 18,082 voters? Similarly, one can find no constitutional ground to support the excessive over7 The maps in the first and second round of display and in the final report submitted to the Parliament can be found at
https://www.academia.edu/23399981/Sarawak_Constituency_Redelineation_2015-1st_Display-Map
https://www.academia.edu/23400317/Sarawak_Constituency_Redelineation_2015-2nd_Display-Map
https://www.academia.edu/23402834/Sarawak_Constituency_Redelineation_2015-Final_map
125
representation of P206 Tanjong Manis, P210 Kanowit, P200 Batang Sadong and P209 Julau. If the
over-representation of these five constituencies is mitigated, naturally the under-representation of
urban constituencies can be corrected.
Table 2 shows similar problems with the apportionment of state constituencies. Out of the 82
constituencies, 50 of them (from N07 Samariang to N40 Kabong) have an electorate size between
66.67% and 133.33% of the state average. The grave malapportionment stems from 19 excessively
small constituencies and 13 excessively large ones.
There was no clear correlation between electorate size and area size between the 19 smallest ones.
Some are definitely qualified for over-representation on the ground of vast areas, such as N65 Belaga
(11,579 km2), N66 Murum (10,894 km2), N78 Mulu (9,475 km2), N80 Batu Danau (3,743 km2)
and N81 Bakelalan (3,444 km2).
But that is not the case for N24 Sadong Jaya (76 km2), N18 Serembu (311 km2), N25 Simunjan (323
km2), N38 Kalaka (422 km2), N36 Layar (409 km2), N27 Sebuyau (548 km2), N37 Bukit Saban (577
km2), N26 Gedong (632 km2).
Had the over-representation of these parliamentary and state constituencies been mitigated in the
2015 re-delineation exercise, the under-representation of the urban constituencies would have been
less severe. As a matter of fact, P200 Batang Sadong, P201 Batang Lupar and P204 Betong which
consist fully or partly of these very small state constituencies do not qualify to be parliamentary
constituencies on their own.
If the re-delineation exercise has failed to rectify malapportionment, did it at least mitigate
gerrymandering? While the subjective nature of what constitutes gerrymandering makes it
impossible to produce a laundry list of all possible violations, one can find some glaring instances
where divisional boundaries are deliberately violated, hence violating sub-section 2(d) and arguably
also sub-section 2(a), if interpreted in Sarawak’s historical context. One such example is the
parliamentary constituency of P214 Selangau which spans across three divisions - Sibu, Bintulu and
Mukah can easily be reorganised to be in only one division. (Map 2) Similarly, P216 Hulu Rajang
and P217 Bintulu unnecessarily span across divisions.
G
The most ridiculous example of gerrymandering is perhaps the partition of Bintangor town. At first
glance, the Muara Payang stretch of Rajang River is the natural boundary between P208 Sarikei
(in the Sarikei Division) and P206 Tanjong Manis (mainly in the Mukah Division). The Bintangor
town (codenamed as Polling District 2084605 Bandar) located on the south coast of Rajang River is
therefore placed in P208 Sarikei but the constituency boundary suddenly crosses the river and takes
its neighbouring village (codenamed as Polling District 2064208 Bintangor) into P206 Tanjong
Manis. Evidently, the Bintangor villagers have little “local ties” with Tanjong Manis, the main town of
which is two hours away by car. They should have remained in P208 Sarikei where the main town is
only 20 minutes away. (See Map 3) The same could be said of five other polling districts of Tanjong
Manis which are actually located in the Sarikei Division. The gerrymandering however explains the
excessively small electorates of Tanjong Manis (19,627 voters) and its northern neighbour P207
Igan (18,082 voters) discussed earlier. Without the 10,023 voters taken from the Sarikei Division,
Tanjong Manis and Igan combined would only have 27,686 voters, too small to justify the continued
existence of two parliamentary constituencies.
We can conclude therefore that the 2015 Sarawak constituency re-delineation exercise has failed
to reduce both malapportionment and gerrymandering. The logical question to ask then is: why
does the EC bother to re-delineate constituencies if its aim is not to ensure equal and meaningful
representation?
126
G
the
n of
82
een
vely
nes.
aga
m 2)
323
577
the
een
ich
ary
gate
s it
ces
bly
the
and
ang
Graphic 1: The EC’s Failure to Reduce Malapportionment of Sarawak Parliamentary Constituencies in
the 2015 Re-delineation Exercise
first
kei
gor
r is
kes
ong
n of
n is
ong
the
207
on,
ued
led
why
gful
Graphic 2: The EC’s Failure to Reduce Malapportionment of Sarawak State Constituencies in the 2015
Redelineation Exercise
127
Table 2: Electorate and Area of Parliamentary Constituencies in Sarawak after the 2015
Re-delineation Exercise
Electorate
Deviation
from the state
average
Tab
Exe
No
Parliamentary Constituency
Area (sq km)
1
P195 Bandar Kuching
81,992
129.16%
35
2
P219 Miri
74,132
107.19%
771
3
P212 Sibu
66,375
85.51%
1,399
4
P196 Stampin
58,111
62.42%
194
5
P217 Bintulu
57,887
61.79%
8,300
6
P211 Lanang
57,477
60.64%
722
7
P194 Petra Jaya
51,987
45.30%
126
8
P198 Puncak Borneo
42,142
17.78%
1,328
9
P197 Kota Samarahan
39,029
9.08%
745
10
P193 Santubong
37,826
5.72%
1,501
11
P208 Sarikei
37,083
3.64%
712
12
P199 Serian
34,602
-3.29%
1,463
13
P220 Baram
31,476
-12.03%
22,075
14
P202 Sri Aman
30,443
-14.91%
2,678
15
P218 Sibuti
29,363
-17.93%
1,576
16
P205 Saratok
28,175
-21.25%
1,666
17
P215 Kapit
27,899
-22.02%
6,331
18
P201 Batang Lupar
27,212
-23.94%
1,990
19
P213 Mukah
27,167
-24.07%
2,985
20
P214 Selangau
27,071
-24.34%
9,193
21
P204 Betong
26,807
-25.08%
1,398
22
P192 Mas Gading
26,171
-26.85%
1,481
23
P221 Limbang
24,977
-30.19%
4,211
24
P216 Hulu Rejang
24,293
-32.10%
34,080
25
P209 Julau
22,932
-35.91%
2,858
26
P200 Batang Sadong
20,977
-41.37%
1,031
27
P210 Kanowit
19,862
-44.49%
2,187
28
P203 Lubok Antu
19,819
-44.61%
3,294
29
P206 Tanjong Manis
19,627
-45.14%
2,024
30
P222 Lawas
18,138
-49.31%
3,889
31
P207 Igan
18,082
-49.46%
2,206
No
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
128
)
35
71
99
94
00
22
26
28
45
01
12
63
75
78
76
66
31
90
85
93
98
81
11
80
58
31
87
94
24
89
06
Table 3: Electorate and Area of State Constituencies in Sarawak after the 2015 Re-delineation
Exercise
Parliamentary
Constituency
Deviation
from
the state
Electorate average
Area
(sq km)
No.
State Constituency
1
N54 Pelawan
P212 Sibu
31,388
132.06%
12
2
N10 Pending
P195 Bandar Kuching
30,881
128.31%
14
3
N51 Bukit Asek
P211 Lanang
28,908
113.72%
53
4
N52 Dudong
P211 Lanang
28,569
111.22%
669
5
N11 Batu Lintang
P195 Bandar Kuching
28,238
108.77%
15
6
N74 Pujut
P219 Miri
26,532
96.16%
17
7
N75 Senadin
P219 Miri
26,257
94.12%
703
8
N12 Kota Sentosa
P196 Stampin
25,210
86.38%
35
9
N09 Padungan
P195 Bandar Kuching
22,873
69.10%
6
10
N73 Piasau
P219 Miri
21,343
57.79%
51
11
N06 Tupong
P194 Petra Jaya
20,713
53.13%
99
12
N45 Repok
P208 Sarikei
20,282
49.95%
144
13
N68 Tanjong Batu
P217 Bintulu
19,289
42.61%
35
14
N07 Samariang
P194 Petra Jaya
17,694
30.81%
17
15
N53 Bawang Assan
P212 Sibu
17,645
30.45%
1,074
16
N55 Nangka
P212 Sibu
17,342
28.21%
313
17
N72 Lambir
P218 Sibuti
17,125
26.61%
473
18
N19 Mambong
P198 Puncak Borneo
17,018
25.82%
497
19
N13 Batu Kitang
P196 Stampin
16,856
24.62%
80
20
N46 Meradong
P208 Sarikei
16,801
24.21%
568
21
N02 Tasik Biru
P192 Mas Gading
16,640
23.02%
471
22
N79 Bukit Kota
P221 Limbang
16,316
20.63%
468
23
N04 Pantai Damai
24
N20 Tarat
25
N14 Batu Kawah
26
N16 Muara Tuang
27
N59 Tamin
28
N76 Marudi
29
N08 Satok
30
N23 Bukit Semuja
31
N48 Meluan
32
N70 Samalaju
P193 Santubong
16,160
19.47%
373
P198 Puncak Borneo
16,159
19.47%
520
P196 Stampin
16,045
18.62%
79
P197 Kota Samarahan
15,562
15.05%
399
P214 Selangau
14,469
6.97%
3,492
P220 Baram
14,085
4.13%
3,538
P194 Petra Jaya
13,580
0.40%
10
P199 Serian
13,160
-2.71%
572
P209 Julau
13,009
-3.82%
2,006
P217 Bintulu
12,927
-4.43%
2,257
129
33
N67 Jepak
P217 Bintulu
12,873
-4.83%
701
71
34
N69 Kemena
P217 Bintulu
12,798
-5.38%
5,307
72
35
N17 Stakan
P197 Kota Samarahan
12,761
-5.66%
100
73
36
N60 Kakus
37
N05 Demak Laut
38
N71 Bekenu
39
N39 Krian
40
N63 Bukit Goram
41
N32 Simanggang
42
P214 Selangau
12,602
-6.83%
5,701
74
P193 Santubong
12,365
-8.58%
223
75
P218 Sibuti
12,238
-9.52%
1,103
76
P205 Saratok
11,694
-13.54%
829
77
P215 Kapit
11,459
-15.28%
876
78
P202 Sri Aman
11,366
-15.97%
307
79
N21 Tebedu
P199 Serian
11,279
-16.61%
485
80
43
N82 Bukit Sari
P222 Lawas
11,051
-18.30%
445
81
44
N56 Dalat
P213 Mukah
10,985
-18.79%
658
82
45
N50 Machan
P210 Kanowit
10,932
-19.18%
976
46
N15 Asajaya
P197 Kota Samarahan
10,706
-20.85%
246
47
N33 Engkilili
P203 Lubok Antu
10,384
-23.23%
1,298
48
N22 Kedup
P199 Serian
10,163
-24.86%
406
49
N41 Kuala Rajang
P206 Tanjong Manis
9,995
-26.11%
778
50
N47 Pakan
P209 Julau
9,923
-26.64%
852
51
N30 Balai Ringin
P202 Sri Aman
9,811
-27.47%
1,314
52
N29 Beting Maro
P201 Batang Lupar
9,677
-28.46%
472
53
N42 Semop
P206 Tanjong Manis
9,632
-28.79%
1,246
54
N62 Katibas
P215 Kapit
9,601
-29.02%
3,820
55
N01 Opar
P192 Mas Gading
9,531
-29.54%
1,010
56
N44 Jemoreng
P207 Igan
9,528
-29.56%
724
57
N34 Batang Ai
P203 Lubok Antu
9,435
-30.25%
1,996
58
N64 Baleh
P216 Hulu Rejang
9,427
-30.30%
11,607
59
N77 Telang Usan
P220 Baram
9,343
-30.93%
9,062
60
N03 Tanjong Datu
P193 Santubong
9,301
-31.24%
905
61
N35 Saribas
62
N31 Bukit Begunan
63
N40 Kabong
64
P204 Betong
9,296
-31.27%
412
P202 Sri Aman
9,266
-31.49%
1,057
P205 Saratok
9,157
-32.30%
415
N18 Serembu
P198 Puncak Borneo
8,965
-33.72%
311
65
N49 Ngemah
P210 Kanowit
8,930
-33.98%
1,211
66
N36 Layar
P204 Betong
8,835
-34.68%
409
67
N27 Sebuyau
P201 Batang Lupar
8,804
-34.91%
548
68
N28 Lingga
P201 Batang Lupar
8,731
-35.45%
970
69
N57 Tellian
P213 Mukah
8,698
-35.69%
1,227
70
N37 Bukit Saban
P204 Betong
8,676
-35.86%
577
130
01
71
N80 Batu Danau
P221 Limbang
8,661
-35.97%
3,743
07
72
N43 Daro
P207 Igan
8,554
-36.76%
1,482
00
73
N78 Mulu
P220 Baram
8,048
-40.50%
9,475
01
74
N66 Murum
P216 Hulu Rejang
7,648
-43.46%
10,894
23
75
N25 Simunjan
P200 Batang Sadong
7,513
-44.46%
323
03
76
N58 Balingian
P213 Mukah
7,484
-44.67%
1,100
29
77
N38 Kalaka
P205 Saratok
7,324
-45.85%
422
76
78
N65 Belaga
P216 Hulu Rejang
7,218
-46.64%
11,579
07
79
N81 Bakelalan
P222 Lawas
7,087
-47.60%
3,444
85
80
N61 Pelagus
P215 Kapit
6,839
-49.44%
1,635
45
81
N24 Sadong Jaya
P200 Batang Sadong
6,752
-50.08%
76
58
82
N26 Gedong
P200 Batang Sadong
6,712
-50.38%
632
76
46
98
06
78
52
14
72
46
20
10
24
96
07
62
05
12
57
15
11
11
09
48
70
27
77
131
Map 2: P214 Selangau - A parliamentary constituency spanning across three divisions
vot
on
The
Gra
Image credit: Thomas Fann (DART)
Map 3: The Partitioning of the Bintangor Town
Image credit: Thomas Fann (DART)
The Process of Constituency Re-delineation – What has gone wrong?
Stipulated in Part 2 of the 13th Schedule and represented by Graphic 3, the process of constituency
re-delineation consists of four steps: (1) proposal by the Election Commission, (2) objections from
three specific types of stakeholders (state governments, local authorities and 100 or more affected
132
voters), (3) local enquiries where the EC hears out the objectors, and (4) approval by the Parliament
on a simple majority. The first three steps are to repeat for one round unless there is no objection.
The actual dates where this process took place are in Table 4.
Graphic 3: The Re-delineation Process
ncy
om
ted
133
Table 4: Key events in the 2015 Constituency Re-delineation Exercise for Sarawak
Date
Event
Ma
Re-
Remark
Amendment to the Dewan Undangan Negeri (Composition of Membership) Bill 2014,
Amendment passed in
Dewan Undangan Negeri
2014.11.11
Amendment coming in
force
2014.12.05
Increase from 71 to 82
Re-delineation Process / Legal Challenge
st
1 Round of Display
2015.01.052015.02.04
In 50 local authorities/district offices,
for 31 parliamentary constituencies
High Court’s Decision
2015.02.17
Leave granted to See Chee How and Pauls
Baya for judicial review.
1st Round of Local Enquiries
2015.02.232015.03.06
41 enquires in 11 locations
(community halls, hotel, etc)
for 16 parliamentary constituencies;
no enquiries for 23 disqualified
objections
2 Round of Display
2015.03.302015.04.29
In 23 local authorities/district offices, for
17 parliamentary constituencies
2nd Round of Local Enquiries
2015.05.112015.05.13
10 enquires in 2 locations (hotels)
for 2 parliamentary constituencies;
no enquiries for 8 disqualified objections
and 4 representations supporting the EC
High Court’s Decision
2015.05.16
Re-delineation was nullified. The EC was
ordered to republish its notice of display
Court of Appeal’s
Decision
2015.08.07
The COA ruled that EC was not duty
bound to disclose further details than
what it had already disclosed.
EC report submitted to
the PM
Federal Court’s Decision
2015.08.21
This was first revealed in the EC’s affidavit
for the Federal Court.
2015.10.15
The FC ruled that the matter was
academic.
EC report laid before
Dewan Rakyat
Draft Order passed by
Dewan Rakyat
Order coming in Force
2015.11.26
Together with the draft order.
2005.12.03
Passed by 130:72.
2015.12.19
Gazetted on 2015.12.17
nd
Col
Ma
It is
Sar
the
sur
suc
eac
Ad
del
are
re-o
So, whose fault is it that malapportionment and gerrymandering were not addressed in this round
of constituency re-delineation for Sarawak?
8
134
Map 3: Exclusion of 38 out of 71 Sarawak’s “Old” Constituencies from Sarawak’s Constituency
Re-delineation Exercise
uls
or
ns
EC
as
ay
vit
und
Colour Legend:
Maroon - excluded constituencies
It is important to stress the difference between increase in seats and re-organising of constituencies.
Sarawak did not get 11 new constituencies as it did not gain any new territories. The carving out of
the so-called 11 “new” constituencies was actually the re-organising of 11 clusters of constituencies
surrounding them. These 11 clusters might be adjacent to each other, resulting in a single cluster
such that all 71 constituencies were affected. Alternatively, these 11 clusters might be isolated from
each other such that many constituencies were untouched.
A detailed examination of the EC’s final proposal8 shows the latter. Shockingly, the EC only redelineated the boundaries of 33 “old” state constituencies – out of which 44 “new” constituencies
are created -- while 38 other “old” constituencies remain untouched. There were only 5 “clusters” of
re-organised adjacent constituencies:
1. 16 “old” constituencies in the Kuching and Samarahan Divisions, with 4 “new” constituencies
carved out;
2. 4 “old” constituencies in the Betong Division, with 1 “new” constituency carved out;
3. 2 “old” constituencies in the Sibu Division (N54 Pelawan and N55 Nangka), with no “new”
constituencies carved out;
4. 10 “old” constituencies in the Mukah, Sibu, Kapit, Bintulu, Miri and Limbang Divisions,
with 5 “new” constituencies carved out;
8https://www.academia.edu/23403150/Sarawak_Constituency_Redelineation_2015-Final_Report
135
5. 2 “old” constituencies in the Miri Division (N73 Piasau and N75 Senandin), with no “new”
constituencies carved out.
Was the EC driven by partisan calculation in choosing which constituencies and how to re-delineate?
Lee Wee Tak, of the Coalition for Clean and Fair Elections 2.0 and the Malaysian Electoral Roll
Analysis Project (MERAP), did an analysis on where BN voters and Opposition voters in the 2013
general elections were located before and after the re-delineation exercises for all state constituencies.
9
(Table 5) The analysis was based on polling districts10, the building blocks of constituencies, where
votes cast for various parties in 2013 were publicly known. Where polling districts have stayed
intact, re-delineation of constituencies simply means different combinations of polling districts.
Where polling districts were redrawn, votes for parties were projected pro-rata with necessary
assumptions made.
Wh
of t
re-d
stat
leve
ma
num
obj
con
to t
num
cer
dist
Des
Kid
wh
was
Table 5: Electoral Strength of BN and Opposition across Constituencies Before and After Redelineation
Suc
clea
The selective coverage of re-delineation explains why malapportionment was not reduced. Those
untouched constituencies include many of the largest ones: N10 Pending (2nd largest), N51 Bukit
Asek (3rd largest), N52 Dudong (4th largest), N74 Pujut (6th largest), N09 Padungan (9th largest), N45
Repok (12th largest) and N53 Bawang Assan (15th largest). The EC provided no explanation why
these over-sized constituencies were not subject to the re-delineation.
Category
BN
strongholds
BN
marginals
Opposition Opposition
marginal
strongholds
Total
%, BN votes in 2013
>60%
>=50% to
60%
<=40%
to <50%
<40%
-
Unredelineated (A)
21
9
3
5
38
Redelineated, before (B)
21
4
4
4
33
Redelineated, after (C)
27
7
8
5
44
Total, before
redelineation (A+B)
43
14
7
9
71
Total, after Redelineation
(A+C)
48
16
9
9
82
Changes due to
Redelineation
6
3
2
0
11
Table 5 shows that 21 out of the BN’s 42 strongholds and 4 out of its 13 marginal constituencies were
“reorganised” and the BN gained in net six more strongholds and three more marginal constituencies
after the re-delineation exercise. In comparison, four out of the opposition’s nine strongholds and
four out of its seven marginal constituencies were “reorganised” but the opposition only gained in
net two more marginal constituencies.
9 Other than those who vast valid votes in 2013, the new electorate also includes two groups of “non-voters” (i) registered
voters who then abstained or cast spoiled votes; and (2) newly registered voters. If the percentage of non-voters is too small
or insignificant, then new distribution of BN voters may become decisive. However, if the percentage of non-voters is high,
the electoral strength of BN and the opposition may be harder to predict.
10 Malaysia’s electoral divisions are nested in the following orders: states, parliamentary constituencies, state constituencies,
polling districts. With voters ranging from hundreds to thousands, polling districts are not tied to any administrative divisions
like mukim or village. Hence, the EC has a complete free hand in reorganising polling districts, which is not part of but
normally precedes the redelineation process.
136
The
clea
serv
List
stat
Bar
pro
Kie
of e
enq
11
http
http
12
13
edu
ew”
ose
ukit
N45
why
ate?
Roll
013
ies.
here
yed
cts.
ary
Re-
were
cies
and
d in
ered
mall
igh,
cies,
ions
but
While objection cannot be raised on the ground of electoral winnability, was the public informed
of the EC’s obvious bias, both in the sense of excluding more than half of the constituencies from
re-delineation and in the post-redelineation outcome? No. The EC failed to provide not only a
state-wide overview of its re-delineation proposal, but also adequate information at the constituency
level. Information supplied in the first and second displays was limited to a state-wide constituency
map (in the same format and scale of Map 1) and a list of all 82 proposed constituencies with the
number of voters under its constituting polling districts.11 The public who had 30 days to raise any
objection from the first day of display was not given two other sets of corresponding information:
constituency-level map and constituency electoral roll. These are imperative not least because, prior
to the re-delineation exercise, the EC had reorganised Sarawak’s polling districts and increased its
numbers from 861 to 887. In fact, while the EC claimed that the re-delineation exercise was based on
certified electoral roll dated April 30, 2014, there was no electoral roll organised by the new polling
districts. Hence, for example, while we were told that 973 voters were listed under polling district
Desa Damai (newly created) for N68 Tanjung Batu (newly carved out from the old constituency N59
Kidurung)12, this knowledge alone was meaningless for us to know whom these 973 voters were,
which area Desa Damai covered, and possibly where Tanjung Batu would end if the polling district
was on the constituency border.
Such incomplete information hence violates Section 4, Part II of the 13th Schedule which states
clearly that the EC
“shall publish in the Gazette and in at least on newspaper circulating in the constituency a
notice stating –
(a) the effect of their proposed recommendations, and (except in a case where they propose
to recommend that no alteration be made in respect of the constituency) that a copy of their
recommendations is open to inspection at a specified place within the constituency; and
(b) that representations with respect to the proposed recommendations may be made to the
Commission within one month after the publication of such notice,
and the Commission shall take into consideration any representation duly made in accordance
with any such notice.”
The phrase “effect of their proposed recommendations” implies that the EC has the duty to state
clearly the changes so that the affected voters would be able to ascertain if the EC’s recommendation
serves their interests.
Listing the lack of information on the effect of the EC’s proposal as one of the grounds, Batu Lintang
state assemblyperson See Chee How (Parti Keadilan Rakyat) and Pauls Baya, a voter from P220
Baram filed for judicial review in the High Court at Kuching on the validity of the re-delineation
proposal and notice for display. Their application was granted leave by High Court Judge Yew Jen
Kie on February 17.13 Despite the pending judicial review, the EC went ahead to start the first round
of enquiries on February 23, the second round of display on March 30 and the second round of
enquiries on May 11.
11 The first and second display notices can be downloaded from
https://www.academia.edu/23399812/Sarawak_Constituency_Redelineation_2015-1st_Display-Proposal
https://www.academia.edu/23400106/Sarawak_Constituency_Redelineation_2015-2nd_Display-Proposal
12 see page 64, the 1st Display Notice with the Polling District (DM) list.
13 The High Court judgement on the leave for judicial review can be downloaded from https://www.academia.
edu/23438779/High_Court_judgement-20150217-leave_for_JR_on_Sarawak_redelineation
137
On May 15, Judge Yew Jen Kie ruled in favour of the applicants, finding “the Notice, the
detailed particulars of the recommendation disclosed … do not show the effect of the proposed
recommendation”, hence the Notice published was “null and void and of no effect” and that the EC
must republish the Notice.14
In o
“su
Ser
wo
The High Court verdict was an unprecedented setback for the EC but it was overturned by the Court
of Appeal in response to the EC’s appeal.15 Judges Mohd Zawawi, Idrus Harun and Abdul Rahman
Sebli used the submission of 64 objections received by the EC after the first display as evidence that
“the notice has achieved its intended objective, which is to inform the voting public that there will
be changes to the state constituencies due to the proposed recommendations and they have a right
to object to the changes by making representations under section 5(b) of the Thirteenth Schedule.”
They conveniently ignored that some of the 64 objections were submitted in protest against the
insufficient information. They completely disregarded the possibility that more objections might
have emerged had information been adequately supplied.
Put
and
pro
dec
the
“the
the
the
the
See and Baya’s further appeal to the Federal Court were unanimously dismissed by judges Md Raus
Sharif, Abu Samah Nordin and Hasan Lah. The judgement was made on the grounds, amongst
others, that the matter was now academic, and there was little prospect for the appeal to succeed
even if leave was granted16. The Judges ignored the fact the matter could become academic only
because the EC continued the display-and-inquiry process despite the pending judicial review.
Ho
and
the
and
cas
disp
stan
just
app
its
the
Despite the inadequate information, the EC received 64 and 41 objections17 after the first and second
rounds of display. That their objections could not reverse or mitigate the continuity and worsening
of malapportionment and gerrymandering should be blamed mainly on the EC’s recalcitrance and
the flaws in the objection process.
Some objectors even offered counter suggestions on how constituencies might be more equally or
meaningfully re-delineated. Take for example, the 100 voters led by Kidurong (renamed as Tanjong
Batu in re-delineation) state representative Chew Chiu Sing submitted a nine-page objection letter.
According to the EC’s redelineation proposal, the Division of Bintulu was to be divided into three
partial parliamentary constituencies: P217 Bintulu (which contained part of Division of Miri),
P214 Selangau (which spanned across the Divisions of Bintulu, Sibu and Mukah), and P216
Hulu Rajang (which was located predominantly in the Division of Kapit), resulting in fragmented
representation. P217 Bintulu was to have four state constituencies. Chew and his colleagues
criticised malapportionment in the EC proposal, as P217 Bintulu (57,887 voters) and N68 Tanjong
Batu (19,289 voters) which would respectively have 3.20 and 2.86 times of voters of their smallest
counterparts, P207 Igan and N26 Gedung. As a counter proposal, they listed two sets of 14 and
23 polling districts to constitute two parliamentary constituencies and three state constituencies,
entirely in the Division of Bintulu and with “approximately equal” number of voters. Their counter
proposal was however rejected by the EC on the ground that creation of “one more” parliamentary
constituency and “one more” state constituency was beyond the scope of the re-delineation. The EC
simply refused to see that adjustments can and should be made across the entire state of Sarawak.
14 The High Court judgement on the judicial review itself can be downloaded from https://www.academia.edu/23438957/
HC_judgement-20150515-JR_on_Sarawak_redelineation
Technically, the declaration that the publication of notice was null and void was made on May 25 as a clarification.
15 The Court of Appeal judgement can be downloaded from https://www.academia.edu/23438958/COA_judgement20150807-JR_on_Sarawak_Redelineation page 12.
16 See Jonathan Chia (2015), “Federal Court rules EC’s re-delineation exercise valid, end to appeal bid”, Borneo Post,
October 16, 2015, URL at http://www.theborneopost.com/2015/10/16/from-71-to-82/#ixzz47ep0eb8C
17 A minority of these were not objections but praise to the EC.
138
Ou
one
Ma
stat
dist
was
sign
The
con
P20
out
the
tho
the
not
Sen
con
que
Lin
the
sed
EC
In other instances like P199 Serian, objectors’ counter-proposals were rejected on the ground that
“such proposal would alter the overall boundary structure between P198 Puncak Borneo and P199
Serian. In some other instances like P200 Batang Sadong, a counter proposal was rejected because it
would affect polling districts in “P202 Seri Aman which was involved in the re-delineation exercise.
ourt
man
hat
will
ght
le.”
the
ght
Put simply, the EC arbitrarily chose which clusters of constituencies should be re-delineated
and rigidly defended their proposal even though their proposal was violating the constitutional
provisions and better alternatives were available. They offered no explanation whatsoever for their
decisions, as if they were not constrained by the Federal Constitution. In letting off the EC from
the question of inadequate information in the display stage, the Court of Appeal judges claimed that
“the [re-delineation] process does not end with the publication of notice. It is only the beginning of
the process. The consultation process itself will take place at the enquiry held under section 5(b) of
the Thirteenth Schedule.” The EC’s conduct in the local enquiries proved the Court’s expectation for
the EC to act constitutionally in enquiries to be a wishful thinking.
aus
ngst
eed
nly
How much difference did the enquiry process make to the EC proposal? Were malapportionment
and gerrymandering reduced or worsened? Table 6 studies the changes to electorate sizes between
the 1st display and the final report. The changes affected 13 out of 19 parliamentary constituencies
and 25 out of the 44 state constituencies involved in the re-delineation exercise. The most curious
cases happened in P199 Serian, P218 Sibuti and P219 Miri, where changes introduced in the 2nd
display was simply reversed in the final report. The EC did not offer reasons for its “flip-flopping”
stance. It is important to note here that the EC did not formally announce their decisions and
justifications on matters raised in the local enquiries. While changes made after the 1st display will
appear in the 2nd display, changes made after the 2nd display will only be known when the EC tables
its report to the Parliament, practically denying the affected parties any other avenue to challenge
the EC’s decisions.
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ent-
Out of the remaining 10 cases, only four cases turned out to be fully positive. P216 Hulu Rajang and
one of its state constituencies gained more voters, making them less over-represented. P206 Tanjong
Manis also saw a slight increase in electorate and more even distribution of electorate between its
state constituencies. For 200 Batang Sadong and P220 Baram, the electorate were more evenly
distributed across their state constituencies. The effect on the over-crowded P198 Puncak Borneo
was mixed – it lost some voters but the gap between N19 Mambong and N18 Serembu widened
significantly.
The remaining five cases are really problematic. Already having much fewer voters than most other
constituencies, N58 Balingan (of P213 Mukah), N61 Pelagus (of P215 Kapit) and N40 Kabong (of
P205 Saratok) saw their electorate sizes further shrinking after the inquiries. However, the most
outrageous cases were the electorate increase for N11 Batu Lintang and N12 Kota Sentosa, whereby
their electorates increased respectively from 24,640 to 28,238 and from 21,247 to 25,210 even
though they were already oversized. The boundary change to N11 Batu Lintang was proposed by
the Padawan Town Council chairman Loh Khere Chiang on the ground that constituencies should
not cross local authority boundaries. The EC’s justification for packing more voters to N12 Kota
Sentosa were however unconvincing, citing grounds like ease of electoral administration and ease of
constituency service provision which do not make sense for an urban constituency. It begs a simple
question: why can’t there be another state constituency to accommodate the excess voters from Batu
Lintang and Kota Sentosa?
Post,
139
Table 6: Changes to the Proposed Electorate Size of Parliamentary and State Constituencies in
Sarawak between the 1st Display and the Final Report Submitted to the Parliament
Parliamentary
Constituency
1st
display
2nd
display
Final
Report
State
Constituency
1st
display
2nd
display
Final
Report
P195 Bandar
Kuching
78,394
81,992
81,992
N09
Padungan
22,873
22,873
22,873
N10 Pending
30,881
30,881
30,881
N11 Batu
Lintang
24,640
28,238
28,238
58,111
N12 Kota
Sentosa
21,247
21,247
25,210
N13 Batu
Kitang
20,107
20,819
16,856
N14 Batu
Kawah
19,643
16,045
16,045
P196 Stampin
60,997
P198 Puncak
Borneo
42,854
58, 111
42,142
42,142
N18 Serembu
9,677
8,965
8,965
N19
Mambong
16,803
16,227
17,018
N20 Tarat
16,374
16,950
16,159
P199 Serian
34,602
34,602
34,602
N21 Tebedu
11,279
12,699
11,279
N22 Kedup
10,163
9,150
10,163
N23 Triboh
13,160
12,753
13,160
20,977
N24 Sadong
Jaya
6,752
6,752
6,752
N25
Simunjan
7,885
7,513
7,513
P200 Batang
Sadong
20,977
N26 Gedong
6,340
6,712
6,712
P205 Saratok
28,777
28,175
28,175
N38 Kalaka
7,324
7,324
7,324
N39 Krian
11,694
11,694
11,694
N40 Kabong
9,759
9,157
9,157
9,286
9,995
9,995
20,977
P206 Tanjong
Manis
19,025
19,627
19,627
N41 Kuala
Rajang
N42 Semop
9,739
9,632
9,632
P213 Mukah
27,167
27,167
27,167
N56 Dalat
8,536
10,985
10,985
N57 Tellian
9,858
8,698
8,698
N58 Balingian
8,773
7,484
7,484
140
Remarks
Worsened underrepresentation for both
P195 and N11
P2
Re
P2
P2
Worsened underrepresentation for N12,
but reduced underrepresentation for N13,
N14 and P196
P2
P2
Reduced underrepresentation for
P198 but worsened
malapportionment
between N18, N19
and N20
Changes in the 2nd
display was reversed
Rec
Tak
Reduced
malapportionment
between N25 and N26
Worsened overrepresentation for both
P205 and N40
Reduced overrepresentation for
P206 and reduced
Malapportionment
between N41 and N42
Worsened
Malapportionment
between N56, N57
and N58
A.
6.
7.
8.
B. P
1.
s in
oth
12,
13,
d
26
oth
42
P215 Kapit
28,555
P216 Hulu
Rejang
23,637
P218 Sibuti
29,363
27,899
N61 Pelagus
8,394
6,839
6,839
N62 Katibas
9,601
9,601
9,601
N63 Selirik
10,560
11,459
11,459
24,293
24,293
N64 Baleh
8,771
9,427
9,427
N65 Belaga
7,218
7,218
7,218
N66 Murum
7,648
7,648
7,648
28,634
29,363
N71 Bekenu
12,238
12,238
12,238
N72 Lambir
17,125
16,396
17,125
P219 Miri
74,132
74,861
74,132
N73 Piasau
21,343
21,343
21,343
N74 Pujut
26,532
26,532
26,532
N75 Senadin
26,257
26,986
26,257
P220 Baram
31,476
31,476
31,476
N76 Marudi
16,728
14,085
14,085
N77 Telang
Usan
6,691
9,343
9,343
N78 Long
Lama
8,057
8,048
8,048
27,899
Worsened overrepresentation for
P215 and worsened
malapportionment
between N61 and N63
Reduced overrepresentation for P216
and N64
Changes in the 2nd
Changes in the 2nd
Reduced
malapportionment
between N76, N77
and N78
Recommendations
Taking the lesson from the Sarawak re-delineation, we recommend the following:
A. Principles
6. The phrase “approximately equal” in Sub-section 2(c), Part 1, the 13th Schedule of the Federal
Constitution, should have its deviation bounds – for example 15% or 33.33% from the state
average explicitly spelled out.
7. Sub-section 2(a), Part 1, the 13th Schedule of the Federal Constitution, should be revised to
prohibit constituency boundary crossing the divisional boundaries in Sabah and Sarawak.
8. Article 46 of the Federal Constitution should be amended to state only the total number of
parliamentarians and the Inter-state allocation of parliamentary seats should be determined
mathematically based on the proportion of electorates in states/territories.
B. Procedures
1. The EC should be compelled to reveal all relevant information pertaining to “the effects of their
[the EC] proposed recommendation” as per Section 4, Part II, the 13th Schedule of the Federal
Constitution. Information on the “effects” should include:
•
At the macro/regional level, a full list of all changes to constituency boundaries in Malaya/
Sabah/Sarawak and the grounds, if certain constituencies are excluded, should be provided.
•
At the micro/constituency level, electoral rolls and constituency maps organised by the
latest list of polling districts.
141
2. The local enquiries should be open to all concerned citizens and media such that an objecting
party gets to listen to the cases made by other objectors. Legal representation and audio/video
recording must be allowed for enquiry participants.
3. The EC must release a report on their decisions within 14 working days after the local enquiries
and the grounds of their decisions must be according to the principles spelled out in the 13th
Schedule of the Federal Constitution.
142
ing
deo
ries
3th
143
NATIONAL HUMAN RIGHTS
COMMISSION OF MALAYSIA
(SUHAKAM)
The establishment of the Human Rights Commission of Malaysia (SUHAKAM) in 1999 is often
perceived as a way to minimize public outcry against the on-going human rights violations committed
by the Government of the day. One could say that SUHAKAM was established in 1999 in order to
silence or at least reduce international and domestic criticism in the light of the crackdown against
the Reformasi movement. Despite the absence of any genuine intention to protect human rights at
the outset, SUHAKAM has grown substantially since its inception and now plays a unique role in
the human rights discourse of Malaysia.
The Human Rights Commission of Malaysia Act 1999 outlines SUHAKAM’s duties and the power
vested in it as a statutory body. According to the Act, SUHAKAM is tasked with the protection of
human rights with the function to promote awareness and provide education in relation to human
rights; to advise and assist the government in the formulation of legislation and administrative
decision; to recommend for the ratification and ascension to international human rights treaties; and
to inquire into complaints regarding infringement of human rights.
In essence, the duties imposed on SUHAKAM in the Act do not depart from most other National
Human Rights Institution (NHRI)’s directive. Despite the similarity, the absence of adequate judicial
recourse for human rights violations and the absence of any other recourse for victims of human
rights violations has led to a curious scenario where SUHAKAM has been expected by many to
undertake greater responsibility when it comes to addressing complaints by victims of human rights
violations.
Through the years, SUHAKAM has been subjected to various criticisms. Some criticisms are rooted
in the weakness of the Act governing SUHAKAM while others are due to the perceived lack of
positive and proactive actions by SUHAKAM when addressing human rights issues in Malaysia.
Willing Participant or Victim of Circumstance?
One of the strongest criticisms levelled against SUHAKAM is the perceived lack of contribution by
SUHAKAM to the human rights discourse in Malaysia. This criticism can be traced to the absence of
SUHAKAM’s influence in Parliamentary discourse and administrative decisions. While the absence
of substantive contribution in this regard cannot be denied, SUHAKAM maintains that they have
fulfilled their obligations through the annual submission of their Human Rights Report to the
Parliament.
144
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National Human Rights Commission of Malaysia (Suhakam)
While some may demand that SUHAKAM adopt a more proactive stance and push for the Parliament
to engage with their report, it would be manifestly unfair for SUHAKAM to shoulder the full blame
for this failure. Since the first report was submitted, the motion for the annual report to be tabled
and debated in Parliament has always been shot down by the government of the day. The call by
SUHAKAM’s commissioner for a special parliamentary committee1 to look into SUHAKAM’s annual
report was treated with similar disdain.
Further, in regard to the introduction of new legislations and administrative decisions, SUHAKAM
has largely been ignored by the government. Disregarding SUHAKAM’s duty to advise the
government in the legislative and executive process under Section 4(1)(b) of the Act, the government
has consistently failed to consult SUHAKAM in any meaningful manner. As an example, in April
2015 the government claimed that SUHAKAM was consulted during the drafting of the Prevention
of Terrorism Act 2015 (POTA). Soon after, the chairman of SUHAKAM, Tan Sri Hasmy Agam came
out to dispute that assertion and claimed that SUHAKAM was not consulted on the drafting of
POTA nor were they consulted in the amendment to the Sedition Act 19482. Rather than a formal
consultation, it was reported that SUHAKAM was only briefed by the Government on the proposed
legislations and amendments.
Government Interference into SUHAKAM Operation
The budget tabled in 2015 has been criticised by various quarters for a wide variety of reasons.
Despite the excitement and heated debate around the budget, many missed the budget cut suffered
by SUHAKAM. In the newly tabled budget, SUHAKAM’s budget was cut by a massive 50 per cent
from roughly RM 11 million to a meagre RM 5.5 million. Such a huge reduction in budget would
jeopardize the operational capacity of SUHAKAM and limit the public campaigns that can be run
by SUHAKAM.
SUHAKAM’s attempt to engage with the relevant minister, Paul Low was swiftly put to an end
with the Minister in questioning calling for SUHAKAM to tap into its fixed deposit3. It is a curious
development since the same minister has previously claimed that SUHAKAM was not ‘toothless’ as
it had a RM 12 million budget and engaged and collaborated with government agencies to protect
human rights4.
ted
k of
Considering the overhead cost of operations, SUHAKAM would certainly be forced to cut back
on its operational capacity in the short term. In the long term, it would not be unimaginable for
SUHAKAM to be forced to seek alternatives for its headquarters and reduce the amount of officers
serving in SUHAKAM. Approaching this issue in the long term, it is difficult to imagine SUHAKAM
being able to strategize its direction for the next few years without adequate financing and the threat
of shrinking budget.
by
e of
nce
ave
the
1 Bernama, ‘Suhakam: Set up panel to review annual reports’, MalaysiaKini, <https://www.malaysiakini.com/
news/314940> accessed 18th April 2016
2 Christine Cheah, ‘Suhakam: We were not consulted’, The Star Online, <http://www.thestar.com.my/news/
nation/2015/04/16/suhakam-we-were-not-consulted-hasmy-no-consultation-on-pota/> accessed 18th April 2016
3 Kow Gah Chie, Use your fixed deposit, Low tells Suhakam after budget cut’, MalaysiaKini, <https://www.malaysiakini.
com/news/322425> accessed 18th April 2016
4 da Lim, ‘With RM12m backing from Putrajaya, Suhakam not toothless, minister says’, Malay Mail Online, <http://
www.themalaymailonline.com/malaysia/article/with-rm12m-backing-from-putrajaya-suhakam-not-toothless-minister-says>
accessed 18th April 2016
145
This decision by the government to slash SUHAKAM’s budget by such amounts can be interpreted
as a direct interference in the operations of SUHAKAM as this would effectively limit and restrict
SUHAKAM’s operations. This decision can also be interpreted as the government’s lack of commitment
to the promotion of human rights in Malaysia. Further, the decision to reduce SUHAKAM’s budget in
such a manner clearly contravenes Section 19(1) of the Act and it signals a failure by the government
to fulfil its legal obligations under the Act.
On a different note, one could interpret this turn of events as a sign of SUHAKAM’s success in
discharging its duties as an NHRI.
SUHAKAM’s Investigations, Inquiries and Report
In the absence of any other channels for addressing human rights violations, SUHAKAM remains the
primary body for addressing complaints on human rights violations. While SUHAKAM has accepted
the strictures imposed by its governing Act, the minimal power afforded in the Act severely limits
SUHAKAM’s ability to investigate human rights violations. The introduction of the Enforcement
Agency Integrity Commission (EAIC) has in creative ways empowered SUHAKAM in the discharge
of its duties.
SUHAKAM has reported that they have conducted joint investigations with EAIC and conducted spot
checks against immigration detention centre using powers invested in the EIAC. While it remains
to be seen whether there will be future collaboration and cooperation between these organizations,
the willingness to cooperate with other statutory body to better protect and promote human rights
is a positive development.
SU
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for
con
Wh
shif
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cam
Oth
suc
Inte
org
hav
Apa
gov
inc
wit
age
on
and
Beyond that, SUHAKAM still has to contend with its restricted power to investigate. The proposal
for amendments of the Act to empower SUHAKAM with more investigative power has failed to
materialize despite the Minister Paul Low’s initial positive remarks on the proposed changes in
20135.
Las
pro
bef
valu
the
if S
dur
SUHAKAM’s Contributions to the On-going Human Rights Situation
Co
In 2015, SUHAKAM issued statements on various issues including the right of the child, civil and
political rights, indigenous peoples’ rights and others. In total, SUHAKAM issued 47 press statements
in 20156 which included the current human rights situation in Malaysia such as those involving
the missing indigenous children in Kelantan; concerns on the use of the Sedition Act 1948, the
introduction of the National Security Council Bill 2015, the stifling of freedom of assembly as well
as the plight of asylum seekers, refugees and migrants in Malaysia7.
On
abo
am
be
Considering SUHAKAM’s unique position as a NHRI, any official media statement it releases carries
notable impact in the public sphere. With the inherent potential for influencing public discourse on
human rights issues, it is of upmost importance that SUHAKAM be more proactive in issuing media
statements on other less known human rights violations.
5 Ida Lim, ‘With RM12m backing from Putrajaya, Suhakam not toothless, minister says’, Malay Mail Online, <http://
www.themalaymailonline.com/malaysia/article/with-rm12m-backing-from-putrajaya-suhakam-not-toothless-minister-says>
accessed 18th April 2016
6 SUHAKAM, ‘Press Statement – 2015’, SUHAKAM, <http://www.suhakam.org.my/pusat-media/sumber/arkib/pressstatements/press-statements-2015/> accessed 18th April 2016
7 List of all press statements issued by SUHAKAM in 2015 can be found at: <http://www.suhakam.org.my/pusat-media/
sumber/arkib/press-statements/press-statements-2015/>
146
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National Human Rights Commission of Malaysia (Suhakam)
SUHAKAM & Civil Society
During its early establishment, civil society has been among the more vocal critics of SUHAKAM
for its failures and shortcoming. The lack of formal collaboration and engagement in the past also
contributed to the frigid and occasionally hostile relationship between civil society and SUHAKAM.
While some of the earlier criticisms against SUHAKAM remain relevant, recent developments have
shifted the dynamics in the relationship between SUHAKAM and civil societies.
In 2015, SUHAKAM publicly collaborated with civil society in its public campaigns. The joint
campaign calling for Malaysia’s ascension to the United Nations Convention against Torture and
Other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT Campaign) was one
such collaboration. The on-going UNCAT Campaign is jointly organized by SUHAKAM, Amnesty
International Malaysia, The Malaysian Bar, Lawyers for Liberty and SUARAM. Other local groups and
organizations such as Kuala Lumpur and Selangor Chinese Assembly Hall Civil Rights Committee
have also joined the campaign as partners.
Apart from joint campaigns, SUHAKAM has also served as host and mediator between various
government agencies, civil society and other stakeholders on various issues. Some of these events
included a conference on the Universal Periodic Review (UPR) in which SUHAKAM collaborated
with the Ministry of Foreign Affairs in hosting a session between civil society and government
agencies on UPR. SUHAKAM has also organized a meeting between the government and stakeholders
on the Trans Pacific Partnership Agreement (TPPA). Such efforts by SUHAKAM are commendable
and should continue in the future.
Last but not least, SUHAKAM has stationed SUHAKAM observers on several public gatherings and
protests. While it is regrettable that SUHAKAM’s presence did not prevent government harassment
before and after the public gatherings, the presence of SUHAKAM as an impartial observer is highly
valued and should be maintained. In selected cases, SUHAKAM Commissioners have offered to be
the mediators between civil society and the Royal Malaysian Police8. Such a role is commendable
if SUHAKAM can prevent hostile confrontation between the public and the Royal Malaysian Police
during protests.
Conclusion
One can say that recent developments and shifting perception of SUHAKAM have shifted the debate
about whether or not SUHAKAM is a toothless tiger. Bearing in mind the lack of political will to
amend SUHAKAM’s governing act to further empower SUHAKAM, the label of ‘toothless tiger’ will
be unlikely to disappear any time soon.
This label will only change with substantive legal reforms. Nevertheless, the willingness to engage and
courage to challenge shown by SUHAKAM in 2015 will help this NHRI to garner support from civil
society and the general public. Such public support and moral authority derived from such support
would make SUHAKAM a force to be reckoned with when approaching government agencies on
matters pertaining to human rights. To this end, SUARAM welcomes the developments in 2015
and hopes that SUHAKAM will maintain its impetus and continue to challenge the government on
human rights issues while engaging with civil society and the general public for the protection and
promotion of human rights.
ress-
dia/
8 Kumara Sabapatty, ‘As long as we keep it peaceful, police will allow Bersih 4.0 – James Nayagam’, Malaysia Gazatte,
<http://www.malaysiagazette.com/en/national/long-we-keep-it-peaceful-police-allows-bersih-40-james-nayagam>
18th
April 2016
147
149
SPECIAL FEATURE INDIGENOUS PEOPLES’ RIGHTS
Malaysia is home to a wide diversity of indigenous peoples. From the well-known communities
of East Malaysia to the less mentioned communities in West Malaysia, the indigenous peoples of
Malaysia have faced a variety of challenges. Their plight was further highlighted by tragic events in
2015.
The tragedy involving seven Orang Asli children in Kelantan focused the nation’s attention on the
serious lapse in care and protection for the Orang Asli in Malaysia. The families of the victims
have made allegations against government agencies including their tardiness in commencing the
search for their children. The police had earlier accused the families of hiding the children which
consequently delayed the search for these children1.
for
(co
cen
stat
tan
SUH
edu
to e
foll
In
Kam
said
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and
the
com
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tied
acc
of t
After the funeral for the children who lost their lives, school attendance at the school drastically
dropped due to fear caused by the tragedy2. While attendance gradually recovered after much effort,
the impact of this tragedy on the Orang Asli community is unlikely to be forgotten for some time yet.
On
nat
for
Sem
and
aga
Towards the end of 2015, The Star revealed the poor living conditions of the Jahai Tribe in Royal
Belum State Park in Perak and the mysterious disease that has plagued the tribe in the recent years3.
According to their report, there is a notable discrepancy between the accounts given by the local
indigenous settlement and the government agencies involved. Perak Health Department claimed in
their report that the death was caused by oral thrush and the figure that 200 Orang Asli
Wh
Kam
for
peo
reco
children in the village have died through the disease is not possible and there is no evidence to show
this4.
In
by
Chi
pro
In another exposé by The Star, the Kuala Betis Transit Centre for pregnant Orang Asli women in
Gua Musang was found to be in such poor condition with little or no essential necessities provided
1 Melati A. Jalil, ‘No delay in search, Orang Asli kids were hiding, says top cop’, The Malaysian Insider, <http://www.
themalaysianinsider.com/malaysia/article/no-delay-in-search-orang-asli-children-were-hiding-says-top-cop> accessed 30th
November 2015
2 Mohd Fakri Awang Lah & Mohamed Bakri Darus, Bernama, ‘Big drop in Orang Asli attendance at SK Tohoi, posttragedy’, MalaysiaKini, <https://www.malaysiakini.com/news/317865> accessed 6th May 2016
3 Shanjeev Reddy & Elroi Yee, ‘Dead and Forgotten’, The Star: RAGE, <http://rage.com.my/dead-and-forgotten> accessed
26th November 2015.
4 Bernama, ‘Perak denies 200 Orang Asli children died in Belum’, MalaysiaKini, <https://www.malaysiakini.com/
news/321344> accessed 6th May 2016
150
5
thes
6
Nati
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7
nati
8
oran
9
oran
ties
s of
s in
the
ims
the
ich
ally
ort,
yet.
Special Feature - Indigenous Peoples’ Rights
for the families5. The Orang Asli Development Department (JAKOA) claimed that ‘gotong-royong’
(community self-help) had been carried out with the local community and that a new transit
centre located away from the flood-prone area would be completed in February 20166. While their
statement regarding the new transit centre is certainly welcomed, it remains to be seen whether any
tangible action will be taken to remedy the state of affairs at the present transit centre.
SUHAKAM has also reported and acknowledged the deplorable state of affairs relating to the
education provided for the Orang Asli community with specific concerns raised in the area of access
to education for Orang Asli children and the reports of abuse of Orang Asli children by teachers7
following the tragedy in Kelantan.
In early June 2015, the village of the Jakun people living in the Gunung Arong forest reserve in
Kampung Batu 10 was torn down by enforcement officers. Awang Rambai, a village representative
said that the operation involved more than 100 officers including police officers and Forestry
Department officers. It was reported that the villagers have been staying there for the past six years
and claim the right to the land and the forest produce. Unfortunately, there was no response to
their letters to the Menteri Besar and Prime Minister. Following the demolition of the village, the
community was forced to stay in makeshift tents by the roadside8.
Centre for Orang Asli Concerns (COAC) released information about a Temiar girl who had been
tied up and beaten by three teachers. The girl in her primary school was beaten after she had been
accused of stealing money from a teacher. Allegedly, a friend of the teacher went to visit the mother
of the girl and intimidated them in order for them to withdraw the police report9.
On 30th September 2015, the Semai from Kampung Senta in Bidor, Perak managed to secure their
native title rights to their customary land under common law. The High Court ruled favourably
for the plaintiffs, the Semai and declared that part of the disputed land was customary land to the
Semai; that the second defendant, the state government of Perak have the fiduciary duty to identify
and gazette the customary land as reserve land of the indigenous peoples; permanent injunction
against Bionest Corporation Sdn Bhd until they cease the infringement of the customary lands.
oyal
rs3.
ocal
d in
While this victory may seem small in the greater scheme of things, the security for the Semai of
Kampung Senta stands as a significant victory in the struggle of the indigenous peoples of Malaysia
for recognition of their rights to their native customary land and their entitlements as the original
peoples of Malaysia. The ruling therefore compels state governments to take positive action in
recognising customary lands under common law.
ow
In Sarawak, the construction of Baram hydroelectric Dam in Baram, Miri has been put on hold
by the Sarawak Government in the run up to the Sarawak state elections. The reason given by the
Chief Minister of Sarawak, Tan Sri Adenan Satem, was that the people in Baram do not want the
project. While this development is certainly welcomed, the statement made by the Chief Minister
n in
ded
ww.
30th
ost-
ssed
om/
5 Neville Spykerman, ‘Home for expectant orang asli mother rundown, filthy and ill equipped’, The Star, <http://www.
thestar.com.my/News/Nation/2015/11/25/Trauma-in-the-transit-centre/> accessed 26th November 2015.
6 ‘RM468,000 facility for pregnant orang asli will be ready in February’, The Star, <http://www.thestar.com.my/News/
Nation/2015/11/26/New-transit-centre-coming-RM468000-facility-for-pregnant-orang-asli-will-be-ready-in-February/>
accessed 26th November 2015.
7 ‘Protect Orang Asli children, Suhakam tells Putrajaya’, the Malaysian Insider, <http://www.thestar.com.my/news/
nation/2015/10/15/suhakam-orang-asli/> accessed 30th November 2015
8 Loh Foon Fong, Kathleen Ann Kili, ‘Orang asli homes torn down’, <http://www.thestar.com.my/news/nation/2015/06/04/
orang-asli-homes-torn-down-50-left-homeless-after-100-officers-move-in-before-lunch/> accessed 6th May 2016
9 COAC, ‘Temiar girl tied up and beaten by 3 teachers’, COAC facebook, <https://www.facebook.com/notes/center-fororang-asli-concerns-coac/temiar-girl-tied-up-and-beaten-by-3-teachers/949301041780489/> accessed 6th May 2016
151
insinuates that the development in the area would be reduced as a result10. Further, the cessation of
the construction work at this juncture does not necessarily mean an end to the Baram dam project
as the project has been temporarily “put on hold” in the past.
Apart from these notable cases that were widely publicized by the media, there have been countless
other violations of human rights inflicted on the indigenous peoples of Malaysia. Some of these
violations relate to the ineffective use of funds by relevant ministries that led to poor growth and
development, poor water quality that led to poisoning11 and in other cases, land tussles between
the community and corporations supported by government12. The disastrous floods that plagued
Malaysia late 2014 and early 2015 further exacerbated the human rights violations13 suffered by the
indigenous communities, especially concerning their economic, social and cultural rights.
We would hope that with the heightened media focus on the plight of the indigenous peoples in
Malaysia during 2015, this will lead to concrete and sustained action by the state to remedy the
poor state of affairs confronting our indigenous peoples that we have documented through the years.
10 ‘Baram damn on hold for now, says Sarawak CM’, the Malaysian Insider, <http://www.themalaysianinsider.com/
malaysia/article/baram-dam-on-hold-for-now-says-sarawak-cm> accessed 23rd November 2015.
11 ‘Millions allocated, but Orang Asli still drinks filthy water’, MalaysiaKini, <https://www.malaysiakini.com/news/317189>
accessed 6th May 2016
12 Ida Lim, ‘Ejected from centuries-old home for dam project, Pahang orang asli sue TNB’, Malay Mail Online, <http://
www.themalaymailonline.com/malaysia/article/ejected-from-centuries-old-home-for-dam-project-pahang-orang-asli-suetnb> 6th may 2016
13 Zurari Ar, ‘Malay villages ‘robbing’ shy Orang Asli tribes off flood aid, activists allege’, Malay Mail Online, <http://
www.themalaymailonline.com/malaysia/article/malay-villages-robbing-shy-orang-asli-tribes-off-flood-aid-activists-allege>
accessed 6th May 2016
152

detention without trial

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