detention without trial
Transcription
detention without trial
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. Ack For Exe Ch Ch Ch Ch Ch Ch Ch Ch Ch Ch Ch Ch Spe 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 iv v vii 2 14 20 32 46 50 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. I am Ma ded ada vili it h and I b Ma mo I am det But gro tim clai gov Thi gov rest are The dem mo 201 info of t rece Tak bee IV ons the for ort 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, In 2 of s The pow Wit reg obs and Maina Kiai United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association The def 201 det the offe cou Raz Apa vio The crim Bak in c Det The det thro 124 SO ma VI ple not with the heir and ght. ook 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. Des rall har prin org Ber In c 201 and dur par for Fre The uni the by Rel non Oth from Freedom of Expression Ge 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. The Tra of com imp exh Azi 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. VIII Asy The to w refu of R out the Des cha has and mes aws pter MA ous not ases ved ng. ery ard AM ian Act ing 948 the der MA, dia. der ide 984 n to ifty bly ajib ent As tuk 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 the him the in ans. the led n of red ent for were ely, ded ted may em 1 *N info sign DETENTION WITHOUT TRIAL Wh 201 con inv Fol in J Jan wer in 2 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 2 Sec SO glan In c day the mo SO terr Cod out Un her det rep und The wit of c pro 6 nati 7 is ap Part trial SOS eral hat has ysia oint rity ber, ice, cial me Detention Without Trial * 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 tp:// SMA 15> OTA mme 23rd 132- 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 Malaysia Human Rights Report 2015 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. Thi of 2 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 On Lum the ind his 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. th 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. As to t hea Act the Thi det the Ma a fo List 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 4 11 12 com 13 <htt islam 14 15 insta Nov 16 com 17 astro Nov Detention Without Trial loh This deplorable state of affairs persisted until Ardit’s parents managed to secure a visit on evening of 27th October 2015. sed was es 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. der d at ted ian der cers hat ent ing the hias ion r be din cies the VI late was use ion ates AM ing son were 7th on. 110- ngan pan- om/ 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 Malaysia Human Rights Report 2015 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 20 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 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 Detention Without Trial 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 Malaysia Human Rights Report 2015 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 DD ext pow the Ver Wit arre bee arre sub be Na in P som disa vot The the the Arm In t arre dee pro Wh spe gra and 29 30 them traffi 31 www putr 32 acce Detention Without Trial 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 for hat k of ion the ion der the by oyal 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. 29 Shahanaaz Habib, ‘Malaysia faces a sustained terrorism threat’, The Star Online, <http://www.thestar.com.my/news/ 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 Malaysia Human Rights Report 2015 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 Detention Without Trial 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 Malaysia Human Rights Report 2015 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 Malaysia Human Rights Report 2015 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> accessed 9th March 2016 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 The The of Ma as a obt In t wh cau the vict Kug wo Wit file the Wh exe is m to d On the the stan use it im ope Wh SUA Ma aga for At to r are the 13 mala 14 prov Police Abuse of Power d of om tal he kap his iate of a hed d to ase med ged he lice by 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 Malaysia Human Rights Report 2015 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 Malaysia Human Rights Report 2015 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 Malaysia Human Rights Report 2015 20 Malaysia Human Rights Report 2015 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 Freedom of Expression 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 Malaysia Human Rights Report 2015 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 Freedom of Expression 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 Malaysia Human Rights Report 2015 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 of CMA and the Sedition Act 1948 for news report covering the conference of rulers 8 Zulkifli Sulong 30th March 2015 Detained and Investigated under Section 233 of CMA and the Sedition Act 1948 for news report covering the conference of rulers 9 Ho Kay Tat Rearrested under CMA after his bail for 9 charges under the Sedition Act. 31st March 2015 Detained and investigated under Section 233 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 Detained and investigated under Section 233 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 Freedom of Expression 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 Malaysia Human Rights Report 2015 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 Freedom of Expression 11 Mawlana Ali Peace be on Him Institute’s Department of Curriculum Studies 1st July 2015 12 Mawlana Hazir Imam Institute’s Department of Curriculum Studies 1st July 2015 13 Ya Ali Madad Institute’s Department of 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 Malaysia Human Rights Report 2015 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 Sim CM of S pro has refl Asp was the ally, the ous ces Freedom of Expression 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 On mic nal the ion ent alay lify- mes ssed tute bat_ 31 Malaysia Human Rights Report 2015 32 Malaysia Human Rights Report 2015 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 Malaysia Human Rights Report 2015 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 Freedom of Assembly and Movement 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 Malaysia Human Rights Report 2015 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 pea var com Afte ind Far Dat issu org Him A ra Ma Des of B Sev was to h ow Alth or s dem arre Sec seiz Fre In 2 from MP and ind The from inc to h 14 com 15 thes 201 16 Mar 17 them acce ges ses, tan hat the were Jay he ent ukri ce9. was ine ors ors sia’s p:// ally ent and l hat gely om/ ssed ww. ssed .nst. om/ ww. 16. gov. om/ Freedom of Assembly and Movement 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 Malaysia Human Rights Report 2015 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 bar of t to Sar bar On rem dom to c the alte 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 Freedom of Assembly and Movement 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. y to ion ical ear. 15, and eful the -to’ lies still pur The ous y. eld m of bill zers nst ews/ The -by- 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 Malaysia Human Rights Report 2015 42 Freedom of Assembly and Movement ment Malaysia Human Rights Report 2015 43 Malaysia Human Rights Report 2015 44 Freedom of Assembly and Movement ment Malaysia Human Rights Report 2015 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 a di righ diffi ma bef the righ cor The NG As bee und the inte Har For thro NG 201 me Mo Eve wit Bra me The The Sec 15 ‘un und On from sub For Ger wer the Sep as P eve With 976 and any iew the r of any der nt’s the t is r an der hen hly the the der uld der OC ces Freedom of Association 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 Malaysia Human Rights Report 2015 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 Malaysia Human Rights Report 2015 ent ers’ ave bal the ees ysia on the man man the s of ent her lity ing unt kers ent ake MG/ MG/ ww. 49 In Cri con law 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> accessed 24th March 2016 50 Wit pro und the pun per In tab Kel 201 was pro con dea the and is u pun use Sya Cu The Abd Thi to D in 2 con givi cus 4 mala acce 5 freem Mar 6 <htt bill> 7 www The her hile f in e in hild are nce are ers. be ial. lity, and een pite heir tp:// ssed ness 21> 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 Malaysia Human Rights Report 2015 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 In wit had rep wit for Sab As not to f or s bot of t Un Apa oth sec the reg Am by cha sch foll sch In wit Keb stu ow for a jo was 13 them Nov 14 com 15 acce 16 them acce 17 them Febr 30th lim ing the iew ing the The ivil ourt ous t is heir for find the ing and test s in the mal by ous and ent . php/ ww. ort> ww. -to- Mail ndu- om/ Freedom of Religion and Belief 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 Malaysia Human Rights Report 2015 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 Co Fre vio be the sho cur In cou pro the not stan Chi Freedom of Religion and Belief uty ion ups, ces d to The and be twa ion 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. heir alal ged nes the iew be hat ted no sian nts- om/ om/ lley- ww. arch 55 Malaysia Human Rights Report 2015 57 wh con car reg 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 In a bise bet to m in a Dep Ena The wo as w two wer atti In is i the doc of w out clu It is disc opt per pop bec reco the In t The 7 8 on thre Syar Inst Bah 9 201 10 201 IQ) a is sex em ity2 and ght der ut’4 ons ical mily ous ent nts, lice ong h in ons. ish, 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). 10 Human Rights Watch, I am Scared to be a Woman: Human Rights Abuses against Trans People in Malaysia, (September 2014) pages 48-50. 59 Malaysia Human Rights Report 2015 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 Section 55. Male person posing as a woman 1,000 ≤ 6 months 1992 Negeri Sembilan Section 66. Male person posing as a woman 1,000 ≤ 6 months 1995 Sabah Section 92. Male person posing as a woman, or vice versa 1,000 ≤ 6 months 1995 Selangor Section 30. Male person posing as a woman 1,000 ≤ 6 months 1996 Penang Section 28. Male person posing as a woman 1,000 ≤ 1 year 1997 Federal Territory Section 28. Male person posing as a woman 1,000 ≤ 1 year 1997 Johor Section 28. Male person posing as a woman 1,000 ≤ 1 year 2001 Sarawak Section 25. Male person posing as a woman 1,000 ≤ 1 year 2001 Terengganu Section 33. Male person posing as a woman 1,000 ≤ 1 year 2012 Pahang Section 33. Male person posing as a 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 201 inte sele par The Abd sod the per LG per bec Thi the env mo effo serm be g Rei On sya “An be imp 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 Nov 008 ntly, hed are ual med e in 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 Malaysia Human Rights Report 2015 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 Arr In J Kel Cod and exc bot All sen two Sec gen mo stat aW psy hum Bet a sp wer dep Na All insu nat reli gen wo The gen hea arb 20 22 J 21 201 22 201 23 iew afee HR) NO) tuk ase the the ied ans e as the The the hts. t is, ourt its rds t in also GBT t in fect e of tals ties the oint ver, sets line, eal,” 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. 21 Human Rights Watch, I am Scared to be a Woman: Human Rights Abuses against Trans People in Malaysia, (September 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 Malaysia Human Rights Report 2015 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 Gen as a she acc kno wh Giv Asi per inte reco Sex det pro Hat On hum clai righ the spr app stat As Min the LG LG of e Thi irra Sup the Naj Isla 27 28 M 28 29 Onl 30 31 Mala 32 30 J d in en, der ion na yah ved the sia, ons. ally ical ing rs nt’s 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 wn x of 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 ery ma ing 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 until ived a. A cally tire.’ ayak ans, , 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 Malaysia Human Rights Report 2015 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. oth alle fou It is opp tha and adv mil Isla com Dat “It’s for am cha libe Mo In J nip in a onl the stat the of w 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 In aut to h eati 37 Onl 38 Dec 39 22, 40 201 41 42 ers, The ue33 ent tate ule, also mely ral, ted the ates 13 n in ck, ack ion zes ted 15, ian ysia M in aris led part the 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 Malaysia Human Rights Report 2015 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 Malaysia Human Rights Report 2015 ndu 8. Meaningfully engage LGBTIQ persons to develop strategies to reduce violence against LGBTIQ persons in all areas and space om ress ent tter and een acts aki gak ion s in heir ort, elf- der for 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 Malaysia Human Rights Report 2015 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 see Ma on Tha to stro Ma det Thi to r this trea the and spe asy and tha asse Hig As cata no pre dai To all t wh 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 Nu As o wit 45, wit refu Syr Thi Bur 2 Mala amo 3 kers ials ore s in and for ups ian kers will . s in 15, end our nts’. hat the that nals the 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 Malaysia Human Rights Report 2015 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- Rig and leas wo Situ Bef imp fram and Bur ASE bee But saw of t be, disa The wit but Me out pol Thi the bro Pre Bur Ma Aun Des littl hum inte 6 effec cand 7 8 the this term the new e of sia. the ees, with heir e in ts), r in s or n to ard hts) and tial hey eed ow the the ain n of will erm y in ere ace d to um e in key ion ural -for- Asylum Seekers and Refugees 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 Malaysia Human Rights Report 2015 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 Dea 201 the cam con also Ins con Ban For tho bet be dep vio and traf The Roy bet quo on smu ‘Ins tha 13 http 14 exam som for a such regio by c Cam jul/2 15 did Dep See imm 16 grav reve 17 18 the 19 mas ore en, An 15, oats man ese the hat the ian …. ned n or d to t in and had aid me hat were and em who by ion o so ion/ Asylum Seekers and Refugees 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 Malaysia Human Rights Report 2015 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 Pre set refu acc of b and the hea rela lack ext The and and con It c gov or con The wit no UN still in a the cen Ma cos trau Res Wit the exa Firs Ma 10, to 8 any 23 Con 24 this has on. hat were mad ent nal ing ing na the ists ing wait ons me the pes. heir For the and egal up, e of the hey wed ier2 ouse ians mp- Asylum Seekers and Refugees 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 Malaysia Human Rights Report 2015 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, gee ain, dly ees ers. and cial ure gee risk rge Asylum Seekers and Refugees 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 Malaysia Human Rights Report 2015 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 201 exp reac the tha hom In wo unw a po Alth aga see Xen exa com hum env traf Hu The ma the ab traf Rou in N Esp fram am acti run The hig was see Rap traf 37 entr tect CR not nly or a tely ren g it This nt’s out ties and fear irth or a and ion ntly ans ees dard ews. lp if bahcess rous Asylum Seekers and Refugees 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 Malaysia Human Rights Report 2015 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 to t Con enf In M and and asy civi Mo s of gya lies the ion ntigees y to bts, ims g.’39 om ates the ific en, not the h as ism rge 967 and ion nge Asylum Seekers and Refugees 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 Malaysia Human Rights Report 2015 • • • • 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. Malaysia Human Rights Report 2015 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. The ext resp of m refe On how the loca mo pro The mig 3 wor 4 Imm 5 oil w http righ 6 mon http Migrant Workers 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. yet d or sive out ble 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. here xtra nge ing em nts here red our me Modern day slavery ted lish ent ion , in t is ker t to 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 Malaysia Human Rights Report 2015 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 Har Un det cen any det cha Alth sold Do Ov wo ma and abu sala of p abu sca Dom dom into Ma The imp a se insi sala dom the 13 wor and htm such on m refu mon http 14 15 16 and site d to ute ers. ing heir ans ave able ses, here ion nce the ally der vely y11, t or ght 015 s are 485. ions kers rent st of ion/ t for t-atrted org. ted. ent, nted age, iots. Migrant Workers 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 Malaysia Human Rights Report 2015 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. 18https://www.malaysiakini.com/news/289532 19https://www.malaysiakini.com/news/289158 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 Ch Chi The to m gov stat Ho The wo faci An wo ann enc gam The pub allo mo inte ma Mo The and recr of c org reg traf Oth to h com Bhd now bei 24 25 26 labo and saw ners ers, e of kers as a hey here her for sks sia, gees hole kers ing ical d in 015 ook ing kers also ould said ash. sday 5 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 Malaysia Human Rights Report 2015 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. gov of t recr and of t hum stat TPP aga live RE If w and Ma bef To Offi on mig On 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 freed and r of ical hat on tive ion Real her ong ine sia. ent our ose eur s to pid n of g to ons egal ing the ren nto The with n’31. 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 ian uary lion June 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 Malaysia Human Rights Report 2015 • 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 On On hts of cies em 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 Malaysia Human Rights Report 2015 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. Malaysia Human Rights Report 2015 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 Thi to t law for Mu had Ser the ord Hig Izw aga App Fed ma the dat Ind On Ipo Gan con of t wer 96 1 2 3 on 2 4 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. ion ysia 015 an 15) 015 ion 948 y of eral w, it ysis wo heir hat sed 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. 2 https://www.malaysiakini.com/news/303396, 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. 4 https://www.malaysiakini.com/news/324916, accessed on 29 March 2016. 101 Malaysia Human Rights Report 2015 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. https://www.malaysiakini.com/news/317854, accessed on 29 March 2016. https://www.malaysiakini.com/news/323922, accessed on 29 March 2016. in t Thi Cou day righ 22 the dec wer Cas 201 disc Rel cas dat In c reli nex Vic Thi Sya Cou con the 201 wer nov for han 8 9 back 10 chri 11 cds/ 12 201 13 seek 14 shar 15 mus ant the the was ces ous by rey ion heir s of zen ourt had heir any am had and and om heir ion ual’s ord me t of on, was ene 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 Malaysia Human Rights Report 2015 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 16 https://www.malaysiakini.com/news/285469, accessed on 29 March 2016. 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. 19 https://www.malaysiakini.com/news/323941, accessed on 29 March 2016. 20 https://www.malaysiakini.com/news/315425, accessed on 30 March 2016. 104 It m atte this par tha con Sec Ano wh a lim Con The usin 18 arre Ma Pen pra Un to b the the Cou gra det to t The Hig to c hea 201 the eac dec 21 and 22 23 have 24 acce 25 old ent ons ces at a ted rial ved urt. and Act 014 ich the ah, cil; urs eld iah nal n of men the ion on) way and eld the the een d in ent the om had y of ase- 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. 22 https://www.malaysiakini.com/news/318211, accessed on 30 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. 25 https://www.malaysiakini.com/news/321722, accessed on 30 March 2016. 105 Malaysia Human Rights Report 2015 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 On cha 201 Ass sep Fed Dec On day rall the the tha con thir obj Sim for Com was in K On offe to t pro On all t 4(2 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” 26 https://www.malaysiakini.com/news/318336, accessed on 30 March 2016. 27 https://www.malaysiakini.com/news/316470, accessed on 30 March 2016. 28 https://www.malaysiakini.com/news/323658, accessed on 30 March 2016. 29 http://www.thestar.com.my/news/nation/2015/10/01/court-appeal-rules-peaceful-assembly-act-legal/, accessed on 29 March 2016. 30 https://www.malaysiakini.com/news/307330, accessed on 30 March 2016. 31 32 33 34 35 36 37 38 106 Law & The Judiciary t to hat ore een eral me hias 15, ing B(1) with ken nal ion now the eful ges ) of AA, ent A blic dul ced was ally 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 31 https://www.malaysiakini.com/news/311481, accessed on 30 March 2016. 32 https://www.malaysiakini.com/news/315981, accessed on 30 March 2016. 33 https://www.malaysiakini.com/news/318286, accessed on 31 March 2016. 34 https://www.malaysiakini.com/news/316515, accessed on 30 March 2016. 35 https://www.malaysiakini.com/news/318203, accessed on 30 March 2016. 36 https://www.malaysiakini.com/news/323037, accessed on 30 March 2016. 37 https://www.malaysiakini.com/news/319362, accessed on 30 March 2016. 38 https://www.malaysiakini.com/news/323348, accessed on 30 March 2016. 107 Malaysia Human Rights Report 2015 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 kno dev dec rev jud Mu 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 39 https://www.malaysiakini.com/news/324138, accessed on 29 March 2016. 40 http://www.therakyatpost.com/news/2015/01/10/city-hall-police-found-guilty-unlawfully-detaining-student-activist/, accessed on 30 March 2016. 41 https://www.malaysiakini.com/news/290054, accessed on 30 March 2016. 42 https://www.malaysiakini.com/news/301874, accessed on 30 March 2016. 43 https://www.malaysiakini.com/news/303078, accessed on 30 March 2016. 44 https://www.malaysiakini.com/news/310213, accessed on 31 March 2016. 45 https://www.malaysiakini.com/news/310718, accessed on 30 March 2016. 46 https://www.malaysiakini.com/news/311972, accessed on 30 March 2016. 47 https://www.malaysiakini.com/news/312999, accessed on 30 March 2016. 48 https://www.malaysiakini.com/news/322466, accessed on 31 March 2016. 49 https://www.malaysiakini.com/news/322863, accessed on 31 March 2016. 108 The abo On cha cha Cha und hel RM Cou of A On an for Lum On cou con Zun 50 laws 51 52 53 54 55 29 M 56 57 Law & The Judiciary ing d to om eful Court struck out her lawsuit against the Prime Minister on the ground that she was no longer a member of UMNO.50 gful een pur an ded 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 the 015 ves 15 OS uty nal the nts f of ina On On 15, hat d.48 igh vist/, 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. 51 https://www.malaysiakini.com/news/304308, accessed on 30 March 2016. 52 https://www.malaysiakini.com/news/315452, accessed on 31 March 2016. 53 https://www.malaysiakini.com/news/285363, accessed on 29 March 2016. 54 https://www.malaysiakini.com/news/285660, accessed on 29 March 2016. 55 http://www.themalaymailonline.com/malaysia/article/activist-hishamuddin-rais-found-guilty-of-sedition, accessed on 29 March 2016. 56 https://www.malaysiakini.com/news/294139, accessed on 30 March 2016. 57 https://www.malaysiakini.com/news/318660, accessed on 30 March 2016. 109 Malaysia Human Rights Report 2015 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 58 https://www.malaysiakini.com/news/303039, accessed on 30 March 2016. 59 https://www.malaysiakini.com/news/320383, accessed on 30 March 2016. 60 https://www.malaysiakini.com/news/314551, accessed on 30 March 2016. 61 https://www.malaysiakini.com/news/318532, accessed on 30 March 2016. 62 https://www.malaysiakini.com/news/315569, accessed on 30 March 2016. 63 https://www.malaysiakini.com/news/317609, accessed on 30 March 2016. 64 https://www.malaysiakini.com/news/315989, accessed on 30 March 2016. 65 www.utusan.com.my/berita/mahkamah/hina-raja-melayu-8232-warga-emas-8232-didenda-rm120-000-1.152544, accessed on 29 March 2016. 66 http://www.thestar.com.my/news/nation/2015/11/24/psms-arutchelvan-charged-with-sedition/, accessed on 29 March 2016. 67 https://www.malaysiakini.com/news/319419, accessed on 31 March 2016. 68 https://www.malaysiakini.com/news/319691, accessed on 31 March 2016. 110 On Mu to o Afte wh tria the to t cas rela was On to r Sed jail red Doe pro of n wh Res On sus The 201 On Sep the sus dec Gov the 69 70 71 72 73 74 75 76 77 78 on 3 79 80 81 rial ody nt.58 d.59 with wn 3(1) ber ons e in il.62 or a ilty the ault and by sia, ion the rge ork an be the xed the nst .68 544, arch Law & The Judiciary 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 69 https://www.malaysiakini.com/news/322165, accessed on 31 March 2016. 70 https://www.malaysiakini.com/news/323399, accessed on 30 March 2016. 71 https://www.malaysiakini.com/news/323516, accessed on 30 March 2016. 72 https://www.malaysiakini.com/news/323510, accessed on 30 March 2016. 73 https://www.malaysiakini.com/news/321303, accessed on 31 March 2016. 74 https://www.malaysiakini.com/news/306053, accessed on 30 March 2016. 75 https://www.malaysiakini.com/news/307401, accessed on 30 March 2016. 76 https://www.malaysiakini.com/news/308526, accessed on 30 March 2016. 77 https://www.malaysiakini.com/news/311383, accessed on 31 March 2016. 78 http://www.thestar.com.my/news/nation/2015/09/21/court-the-edge-publications-decison-to-ban-quashed/, accessed on 31 March 2016. 79 https://www.malaysiakini.com/news/321993, accessed on 30 March 2016. 80 https://www.malaysiakini.com/news/313238, accessed on 30 March 2016. 81 https://www.malaysiakini.com/news/315548, accessed on 30 March 2016. 111 Malaysia Human Rights Report 2015 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 91 112 https://www.malaysiakini.com/news/312766, accessed on 31 March 2016. https://www.malaysiakini.com/news/316656, accessed on 30 March 2016. https://www.malaysiakini.com/news/318071, accessed on 30 March 2016. https://www.malaysiakini.com/news/319078, accessed on 31 March 2016. https://www.malaysiakini.com/news/290303, accessed on 30 March 2016. https://www.malaysiakini.com/news/298202, accessed on 30 March 2016. https://www.malaysiakini.com/news/302808, accessed on 30 March 2016. https://www.malaysiakini.com/news/313758, accessed on 31 March 2016. https://www.malaysiakini.com/news/311794, accessed on 31 March 2016. https://www.malaysiakini.com/news/323318, accessed on 30 March 2016. Com tha exp And bal pro Off Fre The rela wh trav par Pua Mir am In N and ent Kin aut of t Rig Wh of c are min A re 201 bas Ele by App 92 93 94 95 96 97 98 99 4.0 ned by 015 hat SIH igh ven ourt wn ibit ders op, ook ries eral ut it al.88 ok, for ted Law & The Judiciary 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 g of the ide ent n of led the 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 93 94 95 96 97 98 99 https://www.malaysiakini.com/news/313249, accessed on 31 March 2016. https://www.malaysiakini.com/news/305833, accessed on 31 March 2016. https://www.malaysiakini.com/news/305932, accessed on 31 March 2016. https://www.malaysiakini.com/news/309099, accessed on 30 March 2016. https://www.malaysiakini.com/news/313297, accessed on 31 March 2016. https://www.malaysiakini.com/news/313784, accessed on 30 March 2016. https://www.malaysiakini.com/news/298505, accessed on 30 March 2016. https://www.malaysiakini.com/news/301921, accessed on 30 March 2016. 113 Malaysia Human Rights Report 2015 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. 100 101 102 103 104 105 114 https://www.malaysiakini.com/news/304205, accessed on 30 March 2016. https://www.malaysiakini.com/news/304620, accessed on 30 March 2016. https://www.malaysiakini.com/news/307689, accessed on 30 March 2016. https://www.malaysiakini.com/news/314676, accessed on 30 March 2016. https://www.malaysiakini.com/news/315789, accessed on 30 March 2016. https://www.malaysiakini.com/news/285144, accessed on 29 March 2016. Nav of t nar an Nat Rig Ac rep from ove que juri Hig The On Cor Hig to s Cou exe dec ine any In a file the Anw The on imp into his Att Sec 106 107 108 109 110 111 the hoc ved peal rethe the the ons ees ade UBE nts The ted her. tity und ave een hip ted his tity ourt y of Law & The Judiciary 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. https://www.malaysiakini.com/news/302440, accessed on 30 March 2016. https://www.malaysiakini.com/news/286144, accessed on 30 March 2016. https://www.malaysiakini.com/news/302393, accessed on 30 March 2016. https://www.malaysiakini.com/news/289244, accessed on 29 March 2016. https://www.malaysiakini.com/news/289168, accessed on 29 March 2016. 115 Malaysia Human Rights Report 2015 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. Wa The Lum Dec Cha in M gra Khi On Sela and thro orig pro Nis On Pen alle rev MH Brin is m Thu of M cou airc or the inte Inte nei to p spe Fed inte MH 112 113 114 115 116 117 118 119 116 https://www.malaysiakini.com/news/309299, accessed on 30 March 2016. https://www.malaysiakini.com/news/319633, accessed on 30 March 2016. https://www.malaysiakini.com/news/318086, accessed on 29 March 2016. https://www.malaysiakini.com/news/318167, accessed on 29 March 2016. https://www.malaysiakini.com/news/299312, accessed on 15 April 2016. https://www.malaysiakini.com/news/307140, accessed on 15 April 2016. https://www.malaysiakini.com/news/304519, accesed on 18 April 2016. https://www.malaysiakini.com/news/316400, accessed on 18 April 2016. Tow of M the 120 121 122 5 in 015 not ion and er’s hat ian the for jail and ion his Law here the the and hen had der lice on, uld lice with as a for the Law & The Judiciary 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, 120 https://www.malaysiakini.com/news/323610, accessed on 30 March 2016. 121 https://www.malaysiakini.com/news/319361, accessed on 30 March 2016. 122 https://www.malaysiakini.com/news/306682, accessed on 18 April 2016. 117 Malaysia Human Rights Report 2015 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. 123 https://www.malaysiakini.com/news/324757, accessed on 29 March 2016. 118 Malaysia Human Rights Report 2015 on, at it ced any by the had the all, the the ivil with ing the 119 pop elec the ma car 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 In elec ger elec plu to rep sup the call Un ind to d the etc) (eth shif con Elb he Con Con suc ion seat last with with ich can ent ah), wo cise s in m– ion ded ark cies ant led ate, nly- 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 Malaysia Human Rights Report 2015 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 Free and Fair Elections 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 Malaysia Human Rights Report 2015 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 into the qua In T from Un of s be (6,3 Bar Ma Ele 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 Ho ave as 1 7 http http http Free and Fair Elections reno ve” tire the and for tice on new ing 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 r to ion the hat ies. nce ysia the this ment ww. 13, April , as , 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 Malaysia Human Rights Report 2015 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 Free and Fair Elections 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 Malaysia Human Rights Report 2015 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 Free and Fair Elections 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 Malaysia Human Rights Report 2015 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 Free and Fair Elections 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 Malaysia Human Rights Report 2015 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 Free and Fair Elections 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 Malaysia Human Rights Report 2015 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 Free and Fair Elections 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 Malaysia Human Rights Report 2015 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 Free and Fair Elections 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 Malaysia Human Rights Report 2015 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 Free and Fair Elections 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. ond ing and y or ong ter. ree ri), 216 ted ues ong est and ies, nter ary EC ak. 957/ 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 Malaysia Human Rights Report 2015 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 Free and Fair Elections 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 display was reversed Changes in the 2nd display was reversed 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 Malaysia Human Rights Report 2015 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 Malaysia Human Rights Report 2015 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 Wh to e for and SUH rep Fur has gov has 201 of T out PO con legi Go The Des by from jeop by SUH wit dev it h hum Con on SUH serv bei of s 1 new 2 nati 3 com 4 www acce ten ted r to nst s at e in wer n of man tive and nal cial man y to hts 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 Malaysia Human Rights Report 2015 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 Du for con Wh shif In 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 Thi cou soc wo ma and hum pro 8 <htt Apr ted rict ent t in ent s in the ted mits ent rge pot ains ons, hts osal d to s in and nts ing the well ries on dia tp:// ays> 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 Malaysia Human Rights Report 2015 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 Dep and the com Cen 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 acce 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 Malaysia Human Rights Report 2015 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