2011 - Suaram

Transcription

2011 - Suaram

MALAYSIA
HUMAN RIGHTS
REPORT 2011
CIVIL & POLITICAL RIGHTS
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Published by:
SUARAM Komunikasi
433A, Jalan 5/46
Gasing Indah
46000 Petaling Jaya
Selangor
Malaysia
Tel: +603 7784 3525
Fax: +603 7784 3526
Email: [email protected]
Website: www.suaram.net
Cover design and layout by:
Bright Lights at Midnight
Printed by:
Polar Vista Sdn Bhd
ISBN: 978-967-11043-1-6
SUARAM © 2012
All rights reserved. No part of this publication may be produced, stored in
a retrieval system, or transmitted in any form, or by any means, electronic,
mechanical, photocopying, recording or otherwise, without prior permission of the publisher.
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TABLE OF CONTENTS
Foreword
Acknowledgments
Executive Summary
7
10
12
CHAPTER 1:
Detention Without Trial
15
CHAPTER 2:
Abuse of Powers by the Police and Other Enforcement Agencies
35
CHAPTER 3:
Freedom of Expression and Information
56
CHAPTER 4:
Freedom of Assembly and Association
75
CHAPTER 5:
Refugees
88
CHAPTER 6:
Free and Fair Elections
101
CHAPTER 7:
Law and Judiciary
121
CHAPTER 8:
SUHAKAM
132
CHAPTER 9:
Right to Housing, Movement and Life
143
VOICES OF THE PEOPLE: SELECTED STORIES
Who Killed the Guppy Union?
A Humbling Experience
Stop Lynas: Fight for our future generations
153
159
163
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FOREWORD
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Malaysia Human Rights Report 2011
Salam perjuangan,
I
t is with great honour to have been invited
to pen this page and stand in solidarity
with my fellow human rights defenders
whom I have acquainted with in my student
days circa 1970s in the United Kingdom.
Many budding human rights defenders have
blossomed from the spirit of our struggle for
basic human rights. There is a reason for it.
I recall the last time I turn the pages
of the Federal Constitution, I have not seen
any amendments to the provisions in regard
to fundamental liberties. Our rights are still
enshrined in the highest law of the country.
However, as I gather my thoughts for this
piece, I notice that I could not recall any
protection or safeguard given by the state
when its people exercise these rights. The
violations and denial of these rights are
rampant, arbitrary and unconstitutional.
I must confess that none of our Prime
Ministers have taken their promises made
to the people as seriously as Prime Minister
Najib. He had on the eve of Malaysia Day
pledged to repeal all forms of preventive
detention laws, the Restricted Residence and
Banishment Act as well as Section 27 of the
Police Act 1967, in line with international
laws and practices. Let us evaluate this.
While Prime Minister Najib attempted
to ease the financial burden of Malaysians
through superficial initiatives such as Bantuan
Rakyat 1Malaysia and Kedai Rakyat
1Malaysia, central human rights issues
remain unresolved. The Internal Security Act
1960 has been repealed but not abolished, if
I may say so. This can be gleaned from the
the spirit of the Securities Offences (Special
Measures) Act 2012. Next, was the speedy
passing and implementation of the Peaceful
Assembly Act 2012. This flew in the face of
promisee who were hopeful to see an end to
s27 of the Police Act 1967. The Parliament
had, through the Peaceful Assembly Act
2012, put a heavy price tag on freedom of
assembly. Again, Prime Minister Najib like his
predecessors had failed to uphold and protect
the constitutional freedoms of the rakyat.
The violence during BERSIH 2.0 was
repeated at BERSIH 3.0. While records show
a decrease in number of arrests i.e. 388, the
acts of violence against unarmed, peaceful
demonstrators escalated at a worrying
degree. A total of 909 tear-smoke shells were
used in comparison to 262 in BERSIH 2.0.
The chairperson and its steering committee
members were subsequently sued by the
government for allegedly caused damage to
public properties during the rally
Sitting at the 20th Regular Session
of Human Rights Council in Geneva,
I found myself nodding in agreement
when Special Rapporteur for Freedom
of Assembly and Association made the
following recommendation to member states
in which Malaysia was one of the countries
mentioned specifically. Mr Kiai had urged the
government to enact legislations to protect
and not restrict freedom of assembly and
association. Legislation enacted to regulate
assembly and association which contains
vague and broad terms cannot be considered
to be a protection to the freedom of assembly
and association. He added that assemblies
cannot be subjected to approval from the
State but a prior notice at most, which should
not be burdensome.
I ponder that in so far as Malaysia is
concerned, I may or may not be able see
meaningful changes in my lifetime. The
budding human rights defenders may, I hope.
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Foreword
At this moment, as long as human
rights still appear as dark spots in Malaysia,
SUARAM’s human rights report will be
the voice for human rights defender. My
friends took great pride in their service to
human rights, and this report is a proof of
their commitment, courage and tenacity in
difficult times. With this, I leave you with
an adaptation of a quote from Sen. Jose W.
Diokno, “…Human rights is not just legal
concepts, it is the essence of mankind. Deny it
and you deny humanity..”
Congratulations on the report, SUARAM.
Salam BERSIH,
Maria Chin Abdullah
Executive Director
EMPOWER
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ACKNOWLEDGEMENTS
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Acknowledgements
The SUARAM Human Rights Report 2011
was made possible through the efforts and
contributions of numerous individuals and
organisations, and financial assistance from
the National Endowment for Democracy.
The report was mainly written and
coordinated by Tan Beng Hui. Other
contributors are:- Andrew Khoo (“Law and the
Judiciary”); Dr Wong Chin Huat (“Free and Fair
Elections”); Arutchelvan (“Who Killed the Guppy
Union?”); Clement Chin (“Stop Lynas – Fight for
Our Future Generations”); and Siti Z. Kasim (“A
Humbling Experience”).
The principal editor of this report was Dr Kua
Kia Soong. Various sections were reviewed
by Nalini Elumalai, Yap Heng Lung, Sarah
Devaraj and Andika Wahab.
The photographs in this report are courtesy
of Malaysiakini. Azlan Zamhari provided
assistance in selection of the photographs.
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EXECUTIVE SUMMARY
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Executive Summary
O
n the eve of Malaysia Day 2011,
Prime Minister Najib Razak took
many by surprise by announcing
that his administration, in a move to review
outdated laws in the country, would abolish
the long criticised Internal Security Act
1960 (“ISA”). He declared that this was
part of the ruling coalition’s transformation
programme to turn Malaysia into a ‘modern
and progressive nation’, and would include
other legislation such as the Emergency
proclamations and parts of the Printing
Presses and Publications Act 1984 and the
Police Act 1967.
While some welcomed this move, there
were also those who saw these offerings as
the Prime Minister’s attempt at boosting his
flagging prospects of being returned to power
at the next general election, especially after
the Barisan Nasional (“BN”) government’s
poor handling of BERSIH 2.0, a movement
for electoral reforms. Of concern too was
the selectiveness of the laws targeted for
reform. This glaringly omitted a range of
other pernicious legislation – the Official
Secrets Act 1972, the Sedition Act 1948, and
the Dangerous Drugs (Special Preventive
Measures) Act 1985, to name a few – at the
same time ignoring calls to enact progressive
laws like a national Freedom of Information
Act, that would improve the protection and
promotion of human rights in the country.
By the year’s end, the ISA remained not
only in place but was also employed against
suspected militants after its abolishment had
been pronounced. Only the Emergency laws
and the less-utilised Banishment Act 1959 and
Restricted Residence Act 1933 were repealed.
The newly adopted Peaceful Assembly Act,
which was meant to enhance the freedom of
assembly, turned out even more restrictive
than Section 27 of the Police Act 1967 that
it replaced. These results did little to inspire
confidence in the Prime Minister’s Malaysia
Day promises.
Equally indicative of the state of human
rights in the country, were a number of
other developments throughout the year.
These raised more questions about the ruling
coalition’s commitment towards ensuring
greater democratic spaces and practices.
The arrest of the EO6 – six members of
the left-leaning Parti Sosialis Malaysia – for
allegedly promoting BERSIH 2.0, shone the
spotlight on the Emergency (Public Order
and Prevention of Crime) Ordinance 1969
(“EO”) that was used to detain them without
trial for almost a month. Previously little
known, this legislation – which is like the ISA
in that those arrested have no right to trial –
has been widely and disproportionately used
in Malaysia against those involved in petty
crimes like robbery and theft. In the first eight
months of 2011 alone, the EO was used to
arrest over 700 people.
Where the ISA was concerned, the number
of detentions recorded by SUARAM through
media monitoring and reports received, stood
at 27. Even though this was only slightly more
than the arrests made in 2010 (25 persons), it
needs remembering that in September 2011,
the Prime Minister had also announced that
the law would be abolished. Importantly,
unlike their EO counterparts who were
released when the Emergency laws were
repealed, he did not extend this promise to
those detained under the ISA. The fact that
the government continued to provide very
little information about those it had arrested
under this law, including their detention status,
made it difficult for human rights advocates to
secure their release.
Another area in which violations was glaring
was in relation to the persistent culture of
abuse by law enforcers i.e. the police, prison
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and immigration officials, and non-state
actors like RELA. At least 25 people died in
the hands of the police and other enforcement
agencies in 2011, up from the 18 cases
SUARAM recorded the previous year. There
were also close to 60 cases of other kinds of
abuse that SUARAM registered, ranging from
physical violence to other degrading forms of
treatment, as well as corruption.
Similarly revealing was the ruling coalition’s
unwillingness to guarantee free and fair
elections. Instead of embracing civil
society’s proposals to improve the electoral
system, it was uncompromising and brutal
in its response, as demonstrated in events
surrounding and during the BERSIH 2.0
rally on 9th July 2011. There was also much
evidence of it being involved in foul play
and campaign irregularities where elections
in 2011 were concerned. This was clear in
the case of the polls in Sarawak, Tenang,
Merlimau and Kerdau. At the same time,
there was evidence provided on the Election
Commission tampering with the electoral
rolls, which at minimum raises doubts about
their integrity and credibility.
Refugees, migrants and asylum seekers were
not spared either. Instead of ratifying the
1951 Convention Relating to the Status of
Refugees, which requires states to protect and
uphold the rights of refugees, the government
introduced a biometric registration scheme,
the 6P, which it promoted as a chance for
all who signed-up to receive amnesty. The
scheme, however, was also its way of dealing
with the ‘problem’ of unwanted ‘illegals’ and
ensuring that they got deported. The lack
of distinction between these three categories
of non-citizens also meant that they were all
treated the same, even though many refugees
were officially registered with the local office
of the United Nations High Commissioner
for Refugees (“UNHCR”).
On a more insidious note, the BN government’s
tacit support for acts of intolerance – and in
some instances, violence – justified in the
name of defending Islam, was a particularly
worrying feature of 2011. Controversies
around the Allah issue, Seksualiti Merdeka,
and the raid of the Damansara Utama
Methodist Church (“DUMC”) by the
Selangor religious department showed the
extent to which the BN government was
prepared to let non-state actors like the
Malay ethno-nationalist body, Perkasa, and
Utusan Malaysia, an Umno-owned Malay
newspaper, engage in hate speech. That this
took place while the freedom of expression
and assembly of others critical of its rule was
curbed, was telling.
All of the above, together with the reluctance
to grant Suhakam, the national human
rights commission, greater independence
and powers, and the refusal to accede to
other major international human rights
instruments, showed that the BN government’s
human rights record for 2011 was bleak, little
difference to that of the past.
Fortunately, the year also demonstrated
an increasingly aware civil society with
more and more standing up to hold the
state accountable for its actions. Whether
to do with the freedom of association and
assembly, free speech and expression, or the
right to information or participation in the
electoral process, Najib’s administration was
confronted by growing numbers of dissenting
Malaysians.
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CHAPTER 1:
DETENTION WITHOUT TRIAL
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I
n post-Independent Malaysia, there have
been three primary means by which
the government has detained persons
without trial: the Internal Security Act
1960 (“ISA”), the Emergency (Public Order
and Prevention of Crime) Ordinance 1969
(“EO”), and the Dangerous Drugs (Special
Preventive Measures) Act 1985 (“DDA”). In
2011, both the ISA and EO made headlines
when the Prime Minister announced that his
government would be abolishing these laws
along with the less notorious – but nonetheless
problematic – Restricted Residence Act 1933
(“RRA”) and the Banishment Act 1959
(“BA”). As the year drew to a close, the EO,
RRA and the BA were removed, but the ISA
continued to remain on the statute books.
There was also legitimate concern that the
legislation that would eventually replace the
ISA would not only replicate but also further
embolden the powers of the state.
Also significant in the year was the use of
the EO on six politicians and activists from
Parti Sosialis Malaysia for their alleged
involvement in the Bersih 2.0 rally. This drew
global attention to a law that had previously
been liberally employed but whose use was
generally under the radar of the public
eye. Furthermore, unless highlighted in the
media or by organisations like SUARAM
and Suhakam, the national human rights
commission, the government continued to
provide very little information about most
detention without trial cases resulting in those
arrested having little or no access to justice.
This situation was particularly acute for those
who were non-Malaysians.
1. Government Policies
1.1 Reforms to the Internal Security Act
and the Emergency Ordinance
On the eve of Malaysia Day 2011, Prime
Minister Najib Razak declared that the
Internal Security Act 1960
Based on an Emergency law to combat the
communist insurgency in the 1940s and
1950s, the ISA has been used against those
who allegedly commit acts that are ‘prejudicial
to the security of Malaysia’ or which threaten
the ‘maintenance of essential services’ or
‘economic life’. Detainees are subjected to an
initial 60-day detention period, and no judicial
order is required for this. Upon completion of
this term, the Home Ministry may release an
ISA detainee on restricted orders, or renew
his or her detention sentence for another
two years. There is no cap on the number
of extensions permitted. Those released
conditionally are usually subject to restrictions
on their activities, movement, residence, and
employment, including prohibition against
holding public office or taking part in political
activities.
ISA would be abolished. This surprise
announcement came two years after he took
office and had pledged a comprehensive
review of the draconian law.1 According to
him, this move was in line with his Political
Transformation Programme (“PTP”), which
together with the already existing Government
Transformation Programme (“GTP”) and
the Economic Transformation Programme
(“ETP”), would turn Malaysia into a ‘modern
and progressive nation’ by the year 2020.2
Besides the ISA, the Prime Minister stated
that the EO – which was another tool that
enabled the government to detain anyone
without charge for up to two years – would
be repealed through the lifting of three
emergency proclamations that had been in
place for forty years.3 These were eventually
revoked in November when the Home
Minister Hishammuddin Hussein also
announced that the remaining 36 people
detained under the law would be released.4
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In his speech, the Prime Minister identified
several other laws that to be reviewed or
abolished under the PTP: the RRA,5 the BA,6
the Printing Presses and Publications Act
1984 (“PPPA”), and the Police Act 1967. The
first two legislations were repealed in October
20117 and showcased as the government’s
seriousness in removing laws that were
outdated and irrelevant;8 the last was amended
in November 2011, ostensibly to allow
individuals greater freedom of assembly.9 The
PTP, Najib said, recognised that balancing
national security and individual freedoms
guaranteed under the Federal Constitution
was ‘a precursor to an orderly and prudent
political transformation’.10
Accordingly, though the ISA would be
repealed, two laws formulated under Article
149 of the Federal Constitution11 ‘as a means
of preventing subversive activities, organised
terrorism and crime to maintain peace
and order’ would take its place.12 Najib not
only justified the introduction of these new
preventive detention laws by pointing to
the existence of anti-terrorist legislation in
‘advanced democratic nations like the United
States and United Kingdom’, but claimed
as well that this was in line with Syariah
principles of preventing evil and entrusting a
ruler to decide what was in the people’s best
interest.13
Nevertheless, he countered that these laws
would respect and protect basic human rights,
for instance, making a court order necessary
for further detention in all cases except
those pertaining to terrorism. This transfer
of powers to the judiciary – previously the
Home Ministry and its Special Branch
arm had the carte blanche to arrest anyone
deemed a threat to ‘national security’ – is
significant even though the institution remains
subservient to the demands of the Federal
executive.14 Likewise, the Prime Minister
assured Malaysians that arresting political
detainees would be a practice of the past.
Here it is worth noting that once the new laws
are passed those currently held under the ISA
will not be automatically released. Instead,
there will be a six-month transition period,
after which their cases would be reconsidered
under the new legislation.15
1.2 Civil society’s response
There was much hype in the mainstream
media, around the Prime Minister’s
announcement that the ISA would be
rescinded. Interestingly, few of these reports
drew attention to a clarification by the de
facto Law Minister that the law would not
be repealed in 2011, and that the new draft
law would only be tabled in Parliament at
the next sitting in March 2012.16 Suhakam
and Amnesty International (Malaysia) for
example, were among those cited as hailing
this as a positive step for the country.17
Suhakam, however, also took the opportunity
to urge the government to ratify the remaining
international human rights treaties,18 and
to ensure that all new legislation enacted
complied with international human rights
principles.19
The fact that this was potentially a preelection gimmick was not lost on everyone.
This was especially given the government’s
mishandling of the BERSIH 2.0 rally in
July 2011,20 which was widely believed to
have cost it to lose much middle ground.
Thus even though SUARAM and Gerakan
Mansuhkan ISA (“GMI”, Abolish ISA
Movement) welcomed the news as well, they
claimed this as a victory of many years of
struggle by civil society groups.21 SUARAM
was ‘cautiously optimistic’ and pressed the
Najib administration to execute this promise
immediately. It criticised the two anti-
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terrorism laws that would be enacted in place
of the ISA and the EO,22 pointing out that
this would merely be window-dressing if they
allowed the government to continue detaining
people without trial. In its view, there was no
basis for these laws to be introduced. As well,
the human rights NGO maintained that there
were sufficient provisions in existing law to
deal with any potential threat to the nation.23
The excitement around Najib’s apparent turn
into a ‘progressive democrat’24 lost colour
when news broke that 13 people – including
seven Malaysians – had been detained under
the ISA in Sabah in November 2011, barely
two months after the Premier’s ‘historic’
announcement. They were allegedly
members of Jemaah Islamiyah (“JI”) and
were nabbed on grounds of trying to ‘revive
militant activities in Sabah’.25 As the USbased Human Rights Watch noted, “..it’s still
business as usual in Malaysia when it comes
to trampling suspects’ basic rights…” The
organisation also expressed concern that
the new laws enacted under Article 149 of
the Federal Constitution would end up with
security provisions that were too broad or
vague, resulting in a continuation of detention
without charge and a denial of basic rights.26
In November 2011, the Home Minister
confirmed that the replacement laws would
indeed provide for detention without trial,
and that this would apply to ‘extreme cases
of militancy’.27 Once again, the example of
laws in the US, UK and Australia were cited
to rationalise the need for similar legislation
in Malaysia even though these have already
been criticised for having differing degrees
of repressiveness. Importantly, it has also
been argued that there have been no moves
to dismantle other equally draconian laws like
the Sedition Act 1948 and the Official Secrets
Act 1972.28
2. Arrests and Violations
Detention without Trial Laws
under
2.1 The Internal Security Act
SUARAM recorded a total of 27 arrests
under the ISA for the year 2011. The majority
of those detained were allegedly militants or
terrorists (or supportive of these movements),
and human traffickers. There were also 25
persons who were released and/or deported
including two who had been detained in
2009. According to the Home Minister, 37
individuals remain held at the Kamunting
Detention Camp (“KDC”), while another
13 were being subjected to the initial 60-day
solitary confinement period. These include
both Malaysians and non-Malaysians.
2.1.1 ISA arrests, 2011
At a glance, the number of ISA arrests in
2011 (27 persons) was only marginally higher
than the 25 arrests from the previous year.
This figure, however, is significant against
Prime Minister Najib’s announcement
earlier in September, that the ISA would be
abolished. It is also a considerable increase
from the seven arrests recorded for 2009
(See Table 1.1). As well, it needs pointing out
that the practice of withholding information
relating to such arrests, and denying detainees
the right to legal counsel, continued to prevail
throughout 2011.
Case 1: Three unidentified individuals
In February 2011, the media reported that
three ‘transnational criminals’ had been
detained under the ISA but did not reveal
their names or details of their arrest. The
Home Minister ignored SUARAM’s call for
an open investigation to be conducted and
for legal aid services to be extended to the
detainees.
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Table 1.1: Known ISA Statistics 2009, 2010 and 2011
Category
Arrests made
Releases made
Deported
Restricted order
Detention orders renewed
Number of detainees held under ISA
(KDC/60 days)
2009
2010
2011
7
40
16
22
7
9
25
15
11
2
4
24
27
20
5
NA
5
27
* Of this figure, 13 were held for the initial 60-day period while 16 more were detained in KDC.
Source: SUARAM media monitoring and documentation
Case 2: Kadir Hashim
On 1st April 2011, Kadir Hashim, 42,
was arrested for supposedly being part of a
subversive movement. Disabled, Kadir ran a
restaurant in Kuala Lumpur. He was also a
member of the opposition political party, Parti
Keadilan Rakyat. After close to two weeks of
being detained, his family was finally allowed
to see him for 30 minutes. His lawyers made
several attempts to see him as well but had
their applications denied each time. Later they
lodged a complaint to Suhakam to intervene
but this too failed. Following public pressure
for his release, Kadir was unconditionally
freed on 19 April.29
Case 3: Abdul Majid Kunji Mohamad
The following month, 60-year old Abdul
Majid Kunji Mohamad, was detained for
allegedly channelling funds and providing
logistical support to a militant group in
Southern Philippines with connections to the
Moro Islamic Liberation Front (MILF). Only
after his wife, Suriati Othman, held a press
conference did Bukit Aman consent to her
visiting her husband. This was ten days after
he had been taken away. According to Suriati,
Abdul Majid looked pale and urged her not
to press further, indicating that he would be
deported to Singapore soon. Despite protests
from anti-ISA activists, Abdul Majid was
Abdul Majid Kunji Mohamad was detained for alleged
connection with Moro Islamic Liberation Front (Photograph
courtesy of Gerakan Mansuhkan ISA)
deported without first gaining access to his
lawyers, and then detained under the ISA
in Singapore. The GMI appealed with a
memorandum to Suhakam, and later, the
Singapore government, but to no avail.30
Case 4: Three unidentified individuals
Also in May 2011, another three unidentified
individuals were detained for their alleged
involvement in human trafficking. Two of these
were non-citizens. SUARAM condemned the
arrests and asked the government why all of
them were not charged under the country’s
Anti-Trafficking in Persons Act 2007,
instead.31
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Case 5: Thirteen ‘militants’ in Sabah
As noted earlier, another 13 persons were
arrested under the ISA in Tawau, Sabah in
November 2011, after the Prime Minister
had declared that the law would be abolished.
These arrests drew widespread criticisms,
from among others, Suhakam who called for
them to be charged in an open court. When
opposition members of parliament attempted
to table an emergency motion to discuss these
arrests in the Dewan Rakyat, they were told
by the BN-appointed Speaker that the issue
‘cannot be discussed publicly’ because it
involved ‘elements of secrecy’.32
Mother and children grieving over the detention of husband/
father who was alleged to be involved in reviving militant activities
in Sabah (source : SUARAM)
Table 1.2: List of Arrested ISA Detainees (as at December 2011)
No
Name
Allegation
Arrest date
Status
1
Unknown
Human trafficking and
transnational crime
transnational crime
transnational crime
Subversive movement
9 Feb 2011
Unknown
2
Unknown
9 Feb 2011
Unknown
3
Unknown (Woman)
9 Feb 2011
Unknown
4
Kadir Hashim
1 Apr 2011
Released
20 Apr 2011
Deported
19 June 2011
Unknown
5
6
Abdul Majid Kunji
Mohd
Unknown
7
Unknown
Human trafficking
24 May 2011
Unknown
8
Unknown
Human trafficking
24 May 2011
Unknown
9
Razali Kassan
Jemaah Islamiah (JI)
May 2011
NA
10
JI
5 Jun 2011
11
Abdul Haris
Syuhaidi
Indian citizen
4 Aug 2011
12
Indian citizen
13
Indian citizen
Terrorist (Babbar Khalsa
International)
International)
International)
Released
20 Apr 2011
Deported
19 Aug 2011
Deported
19 Aug 2011
Deported
19 Aug 2011
Provide funds to militant
6 May 2010
group in Southern Philippines
Human trafficking
24 May 2011
4 Aug 2011
4 Aug 2011
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14
Indian citizen
International)
Militant
15
Mohd Nazri Dollah
16
17
14 Nov 2011
Deported
19 Aug 2011
NA
Yusof Saripuddin
Militant
14 Nov 2011
NA
Militant
14 Nov 2011
NA
Militant
14 Nov 2011
NA
19
Muhd Adnan
Umar
Muhd Abduh
Umar
Adwan
Militant
14 Nov 2011
NA
20
Faizal Hamma
Militant
14 Nov 2011
NA
21
Joni @ Muadz
Militant
14 Nov 2011
NA
22
Azmi
Militant
14 Nov 2011
NA
23
Suriadi
Militant
14 Nov 2011
NA
24
Darto Bandu
Militant
14 Nov 2011
NA
25
Bakar Baba
Militant
14 Nov 2011
NA
26
Unknown
Militant
14 Nov 2011
NA
14 Nov 2011
NA
18
6 Aug 2011
Unknown
NA
27
Table 1.3: ISA Detainees in Kamunting Detention Centre (as at Dec 2011)
No.
Name
Allegation
Arrest
Date
Status
1
Shadul Islam
(Bangladesh)
Document
forger
22 May
2008
2
Mahamad
Nakhrakhel
(Thailand)
Muhammad
Zahid Zahir Shah
(Pakistan)
Razali Kassan
“
“
Sent to
KDC 18 Jul
2008
“
“
“
JI
May
2011
JI
25 Jun
2009
3
4
5
Sulaiman Bohari
(Singapore)
Extention
1st
2nd
17Jul
17Jul
2010
2012
Detention
period
1yr
“
“
1yr
“
“
“
8mths
Sent to
KDC Jul
2011
Sent to
KDC 20
Aug 2009
Jul
2013
-
3mths
19 Aug
2011
19
Aug
2013
2mths
21
SUARAM-2011.indb 21
8/18/12 2:03 PM
6
Anthony
7
Umar Fareths
(Sri Lanka)
Hemachandran
(Sri Lanka)
Tanabal
(Sri Lanka)
Ravindran
(Malaysia)
Muniandy
(Malaysia)
Mohd Fadzullah
8
9
10
11
12
Human
trafficking
“
NA
NA
NA
NA
NA
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
International
terrorist
15 Jul
2010
Sent to
KDC 2
Sept 2010
Sent to
KDC 5 Oct
2010
NA
1 Sept
2012
-
1yr
4 Oct
2012
-
1yr
NA
NA
“
4 Oct
2012
“
“
“
13
Mustawan Ahbab
(Indonesia)
“
11 Aug
2010
14
Unknown
(Foreigner)
Unknown
(Foreigner)
Human
trafficking
“
13 Oct
2010
“
Mohd Nazri
Dollah
Yusof Saripuddin
Muhd Adnan
Umar
Adwan
Faizal Hamma
Joni @ Muadz
Azmi
Suriadi
Darto Bandu
Bakar Baba
Unknown
Unknown
Militant
NA
-
-
NA
“
“
14 Nov
2011
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
NA
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
15
16
17
18
19
20
21
22
23
24
25
26
27
Note: There were 22 other individuals detained under the ISA. There are no available details
about their arrest.
22
SUARAM-2011.indb 22
8/18/12 2:03 PM
2.1.2 ISA releases, 2011
Eight immigration officers were released
from custody in August 2011 after being
detained in October 2010 for alleged human
trafficking. While SUARAM welcomed this
development, it questioned the government’s
selective actions in setting free only these ISA
detainees. All 20 non-citizens released from
detention in 2011 were deported upon their
release, even when some of their families were
still residing in Malaysia.
Table 1.4: List of ISA Detainees Released (as at Dec 2011)
No.
Name
Allegation
Sent to
KDC
23 May
2009
20 Aug
2009
“
Release date
“
Arrest
Date
1 Apr
2009
25 Jun
2009
“
1
JI
5
Abdul Matin
(Msia)
Samsuddin
Hussein (Msia)
Abd Latif Omar
(Msia)
Immigration
officer (Msia)
“
Human
trafficking
“
13 Oct
2010
“
6
“
“
“
“
7
“
“
“
“
8
“
“
“
“
9
“
“
“
“
10
“
“
“
“
11
“
“
“
“
12
Kadir Hashim
Abdul Majid Kunji
Mohd
1 Apr
2011
6 May
2011
60 days
13
Subversive
movement
Providing
funds to
Southern
Philippines
militants
2
3
4
“
May 2011
Detention
period
2yrs
“
“
“
“
NA
2 Aug 2011
11mths
“
“
“
“
“
“
“
“
“
“
“
“
“
“
“
20 Apr 2011
“
60 days
19 Jun 2011
(deported)
“
“
“
“
“
“
19days
44days
23
SUARAM-2011.indb 23
8/18/12 2:03 PM
14
15
Abdul Haris
Syuhaidi
Indian citizen
16
“
JI
Terrorist
(Babbar
Khalsa
Internatl.)
“
5 Jun
2011
NA
60 days
Jul 2011
30days
NA
4 Aug 2011
(deported)
NA
“
“
“
“
“
“
19 Aug 2011
“
17 Source: SUARAM
“
“
“
“
media monitoring
and documentation
18
19
Maitikurban Sirji
(Uighur)
Faizal Hamma
Illegal
activities
Militant
20
Yusof Saripuddin
Militant
6 Aug
2011
14 Nov
2011
“
2.2 Emergency Ordinance (Public Order
and Prevention of Crime) 1969
As a piece of legislation that allows for the
judicial system to be bypassed, the EO has
been used far more than the ISA. Further,
while it has traditionally been associated with
underworld figures and hard-core criminals,
since the early 2000s there has also been a
shift towards using it against those involved in
petty crimes like motorcycle thefts. In 2011,
the law was employed for the first time against
politicians and activists.
2.2.1 The EO6
On 25th June 2011, six members of Parti
Sosialis Malaysia (“PSM”) – Michael
Jeyakumar Devaraj, M. Sarasvathy, M.
Sukumaran, A. Letchumanan, Choo Chon
Kai and R. Sarat Babu – were arrested
while heading to Georgetown by bus to
join a campaign called ‘Udahlah, Bersaralah
(Enough, Retire Now)’.33 This aimed at
raising awareness among Malaysians,
especially those in rural areas, to bring about
60 days
“
“
“
“
“
“
“
13 days
“
“
change at the forthcoming general election.34
The campaign also promoted the upcoming
BERSIH 2.0 rally that was calling for free and
fair elections. The EO6 – as they popularly
came to be known later – were initially
remanded for seven days while they were
investigated for allegedly carrying materials
that promoted communism and for trying to
‘wage a war against the King’.35
Upon their release, they were promptly
rearrested under Section 3(1) of the EO for
being “involved in foreign and subversive elements”.36
It later emerged that they were arrested for
being “movers and activists” of BERSIH 2.0,
a charge categorically denied by their lawyer.
As well, he pointed out that despite the earlier
insinuations of their ‘communist leanings’,
the police affidavit on why the six were
detained did not mention anything about
communism.37
Emergency Ordinance (Public Order
and Prevention of Crime) 1969
First drafted in response to the May 1969
24
SUARAM-2011.indb 24
8/18/12 2:03 PM
racial riots, today the EO allows the police to
detain persons for up to 60 days to prevent
them from ‘acting in a manner prejudicial to
public order’ as well as to suppress violence
or crimes. After the initial 60-day detention
period is over, the Home Minister can issue
an order for detention without trial for up to
two years. If this is unnecessary, the Minister
may release the detainee but issue orders
that impose limits on a suspect’s freedom of
movement and other civil liberties.
The EO6 were eventually released without
restrictions on 29th July 2011, after 28 days
in detention. This came after an extensive
and prolonged public campaign that drew
on local and international pressure. Besides
PSM, other fellow activists, members of
the public, and even some Barisan Nasional
(“BN”) leaders, support came from the United
Nations Special Rapporteur on Promotion
and Protection of the Right to Freedom of
Opinion and Expression, Frank la Rue and
the Chair-Rapporteur of the United Nations
Working Group on Arbitrary Detention,
El Hadji Malick Sow.38 Both issued a joint
statement to express their concern over the
EO6’s continued incarceration. They also
urged the government to address the matter
of preventive detention, and to cease acting
punitively against peaceful demonstrations.39
During their detention, the six were
prevented from seeing their family members
and lawyers until numerous attempts were
made. Even then, they each only had 15
minutes of visiting time, and that too in the
presence of police officers who recorded their
conversations. They noted that though they
had been arrested under the EO, they were
treated like ISA detainees (e.g. they were
arrested by Special Branch officers from Bukit
Aman which is unusual in EO cases; they
were kept at the Police Remand Centre and
not at Bukit Aman or district police stations;
The infamous EO6 (Photograph courtesy of Malaysiakini)
and they were interrogated for long durations
by a Special Branch official flanked by twhree
police officers).40
On 3rd August 2011, the government finally
settled on charges against the EO6 and the
other 24 PSM members who had originally
been arrested along with them. They were
accused of:- one, possessing documents for
an illegal assembly, and two, for being in
possession of subversive documents.41 Barely
three weeks later, the Public Prosecutor’s
Office announced that it would not proceed
with their trial. While welcoming this
decision, PSM questioned the Deputy Public
Prosecutor’s decision to get the court to
discharge them not amounting to an acquittal
25
SUARAM-2011.indb 25
8/18/12 2:03 PM
as this left room for them to be charged for the
same offence in future.42
2.2.2 EO cases and statistics, 2011
Aside from the high-profile EO6 case, the EO
continued to be liberally used in 2011 until it
was repealed in November 2011. In the first
eight months alone, there were over 700 other
individuals who had been detained under
this law. It is important to note the variation
across the states with Selangor (275) recording
the highest number of EO arrests, followed
by Johor (86), Kedah (58), Sarawak (56) and
Kuala Lumpur (50) compared to Sabah
which only issued two detention orders (See
Figure 1). Also, the overwhelming majority of
detainees are men; only ten are women.43
There are three EO detention centres in
Figure 144
Police action under the Emergency
(Public Order and Prevention of Crime)
Ordinance 1969
Number of
Detention orders under Restriction orders under
cases#
Section 4(1)
Section 4A(1)
Contingent
Perlis
Kedah
Penang
Perak
Selangor
Kuala
Lumpur
Negeri
Sembilan
Malacca
Johor
Pahang
Terengganu
Kelantan
Sabah
Sarawak
Bukit Aman
Commercial
Crime Dept.
Total
2009
2010
%
2009
2010
%
2011*
2009
2010
%
2011*
10
62
62
94
351
52
27
83
77
75
331
88
170
34
24
-20
-6
69
4
25
46
58
291
44
24
60
50
49
238
58
500
140
9
-16
-18
32
8
58
45
43
275
50
7
10
13
31
65
5
2
31
13
18
125
28
-71
210
0
-42
92
460
2
2
3
6
43
1
16
40
150
18
8
56
12
6
16
167
1
9
151
103
7
1
6
47
27
11
89
140
37
14
8
14
69
97
27
889
-7
-64
100
700
133
47
259
145
8
125
38
0
0
3
43
8
5
25
80
37
15
4
1
52
52
15
213
-36
-3
0
0
-67
21
170
200
27
86
18
14
6
2
56
22
NA
2
31
33
0
1
2
7
7
0
25
50
8
0
1
0
12
54
2
1150
61
-76
0
0
-100
71
671
0
4
13
1
0
2
0
5
3
NA
1009
1216
716
768
722
220
385
86
* Jan 1 - Aug 22, 2011
# The total number of cases for 2011 was not available
Source : Bukit Aman
26
SUARAM-2011.indb 26
8/18/12 2:03 PM
the country:- Simpang Renggam, Machang
and Muar. Many of those held were sent to
the Simpang Renggam detention centre. In
a parliamentary written reply provided in
October 2011, the Home Ministry disclosed
that as of 19th September 2011, there were
654 people detained at this centre. Of this,
117 had been arrested for alleged gangsterism
and blackmail; 457 for robbery, burglary
and stealing; 75 for snatch theft; two for
involvement in prostitution and three for
kidnapping.
Among the cases recorded by SUARAM are
as listed below.
In March 2011, three individuals in Rawang
(Selangor) were arrested under the EO for
allegedly possessing a stolen vehicle. Another,
Adi Paulus, was reported as having been
detained, also in Rawang police station for
reasons that are unknown. In the same month,
Ravinchandran Vellian was arrested for
‘robbery’, and subsequently sent to Machang
detention centre. Three more, Muhamad
Arif bin Abu Samah, and two siblings
Mohamed Ramadan bin Mohamed Ali and
Mohamed Rafe bin Mohamed Ali, were also
charged under the EO for motorcycle theft in
Selayang (Selangor). In May 2011, after being
remanded several times, the trio were issued
restriction orders and banished for two years
to Mersing (Johor), Chenon (Pahang), and
Kulim (Kedah) respectively.
During this month, the EO was used against
three other brothers (Mark, Sarawan
and Puroshothaman) for allegedly being
gangsters. They were sent to detention centres
in Machang, Muar and Simpang Renggam
in July 2011. Also arrested was Manivannan
Poonga who had to endure going on a
‘remand road show’ (i.e. brought from one
detention centre to another) in Perak, Melaka
and Selangor before landing up at Simpang
Renggam in July 2011. This was only after
SUARAM had protested and Chang Lih
Kang, Teja (Perak) state assemblyperson
organised a sit-in protest at the Ipoh District
Police Headquarters.
The EO has also been extended on those
allegedly involved in snatch theft and
attempted rape. Such was the case of
Raymond who was arrested in July 2011 and
sent to Simpang Renggam in September 2011.
Sankaran Nair Surentharan was arrested in
July 2011 as well for alleged robbery, and sent
to the Muar detention centre. The last two
EO arrests that SUARAM recorded were in
September 2011. This involved Mohd Afiq
Abdul Majid and Mohd Hafiz Samad who
were detained on the 6th September 2011
but continued to serve the prescribed 60-day
sentence after Prime Minister Najib Razak’s
much-publicised announcement that the EO
would be abolished.
2.2.3 Critique of the EO
As in the past, many of those detained under
the EO in 2011 were for petty crimes that do
not commensurate with the original objectives
of the law. According to the Principal Assistant
Director of Bukit Aman’s D7 unit that
oversees EO arrests, the police were forced to
use the EO in cases where they were certain
that a suspect had committed the crime but
did not have sufficient evidence to obtain a
conviction in court. Using the EO in such
cases, he continued, was to safeguard public
interest and security.45 Apart from violating
their right to due process, EO detainees have
also been subjected to physical and emotional
torture. In the case of Muhamad Arif,
Mohamed Ramadan and Mohamed Rafe,
they complained that they were forced to
sign blank documents, severely assaulted with
metal pipes, wire and aluminium rods.
On top of this, the two brothers were denied
27
SUARAM-2011.indb 27
8/18/12 2:03 PM
The cheque amounting to RM13,000.00 requested by Inspector Zulkifly from parents of Ramadan and Rafe for early release
(source : SUARAM)
access to their family and lawyer for almost
two months. Their family was also duped of
RM13,000.00 by someone claiming to be
one Inspector Zulkifly to secure their release.
Muhd Arif ’s family claimed that they too
were approached to pay RM15,000.00 for his
release.46 On 22nd June 2012, the brothers
filed a civil suit against the government for
unlawfully detaining them under the EO.
They maintained that they were arrested on
trumped-up charges and were scapegoats to
‘solve’ a series of motorcycle thefts in their
area. They also said that the Home Ministry
had thus far failed to substantiate any of the
allegations against them. The case was still
pending as at 31st December 2011.
Also of concern was the large proportion
of youths – their actual numbers remain
unknown – who have come to be detained
under the EO. Suhakam discovered 30
such persons, aged 16 to 21, just at one
of the country’s Rehabilitation Centres in
Machang during a visit there in April 2011.47
Rather disconcerting was the fact that all
30 of them claimed that they did not have
legal representation at any stage. As with
Muhamad Arif, Mohamed Ramadan and
Mohamed Rafe, SUARAM’s position was
that the Home Minister should not impose
conditional releases on youths including
using the RRA on them since this would
violate their freedom of movement, right to
education, and right to livelihood, among
others. It would also deprive them of a
better life with their families, and force upon
them, the difficulties of being confined to a
particular area.48
The indirect repercussions of the EO should
also be noted. Given very little information
about the status or condition of their loved
ones, families are often vulnerable to being
exploited by opportunistic elements. As
highlighted earlier, the family members of
Mohd Ramadhan and Mohd Rafee, for
example, paid RM13,000.00 to a person who
claimed to be a police inspector to secure
their release. When this did not happen and
they received phone threats for more money
by several others who also claimed to be the
police, they sought SUARAM’s assistance.
28
SUARAM-2011.indb 28
8/18/12 2:03 PM
2.3
Dangerous
Drugs
(Special
Preventive Measures) Act 1985
The DDA is employed to detain those
suspected of being involved in the trafficking
of dangerous drugs. As an even more obscure
legislation compared to the EO, not to
mention the ISA, the police are said to have
abused this law to detain people without
trial, particularly since its victims are usually
not well known or have little or no means
to challenge the authorities. Worse, despite
SUARAM’s numerous attempts at obtaining
details about those arrested under this law, the
government has withheld such information
and made it difficult to have an accurate
picture of those who have been detained.
Dangerous Drugs (Special Preventive
Measures) Act 1985 (DDA)
Under this law, the Home Minister has the
powers to issue two-year detention without
trial or restricted orders to a person suspected
of having been or associated with ‘any activity
relating to or involving dangerous drugs’
(Section 6(1)). Section 11A of the DDA also
empowers the Minister to extend a detention
order, for a period not exceeding two years but
without a cap on the number of extensions.
These difficulties notwithstanding, in 2011,
SUARAM dealt with several ongoing
DDA cases including that of Letcymanan
Kumar, who was arrested in August 2010
and sent to Batu Gajah detention centre;
and Selvachsanthiran, whose habeus corpus
application was ruled out by the court. In
addition, there was the high profile court case
of actor Khaeryll Benjamin (Benjy) who had
the DDA used against him in 2010. Benjy had
filed a habeus corpus against his detention in
May 2010 but this was rejected and he was
sent to the Simpang Renggam detention
centre. He was finally released in March 2011
under restrictive orders. He was fully freed
following the repeal of the RRA in October
the same year.
In September 2011, SUARAM also handled
the case of Paramsivam Chelliah who was
arrested under the DDA on 30th July 2011
and sent to the Batu Gajah detention centre
the following month. SUARAM sent letters of
appeal to the detention centre and the Home
Ministry but did not receive any reply. Besides
this case, there were a handful of Malaysiakini
reports in the past year which also highlighted
the use of the DDA. For example, during an
anti-drug operation ‘Ops Tapis’ conducted in
Klang in May 2011, seven people including
a RELA member were arrested.49 In October
and December 2011, two men were reported
to have died while detained under the DDA.
The first, 43, died in the Kota Baru court lockup, while the second, 50, died while he was
being held under investigation at the Bukit
Jalil detention centre. Both were found dead
in their respective cells. The police classified
the former as a case of “sudden death”, but no
details were forthcoming about the latter.50
3. Other News
Malaysia was taken aback in early 2011 when
former Premier Mahathir Mohamad said that
he had once attempted to abolish the ISA but
that the police had resisted this move.51 Then
Inspector General of Police, Haniff Omar,
had earlier confirmed that it was him and
not the Home Minister who also happened to
be the Prime Minister, who was responsible
for the infamous ISA sweep in 1987, Ops
Lalang, where over 100 social activists and
political leaders were detained. SUARAM
and GMI questioned the powers of the police,
especially in relation to the ISA, and called for
immediate reforms to the police force.52
They also saw it fit to take a position against
29
SUARAM-2011.indb 29
8/18/12 2:03 PM
civil society actors and political leaders who
publicly called for the ISA to be used. In
the first instance, the GMI expressed regret
over a statement by the Persatuan Pengguna
Islam Malaysia (“PPIM”, Muslim Consumers
Association of Malaysia) which urged the
government to take stern action, including
the use of the ISA against an individual who
allegedly mocked the Islamic call to prayer
on YouTube.53 SUARAM also took to task,
the member of parliament for Sri Gading,
Mohamad Aziz, who said that the ISA
should be used against Ambiga Sreenevasan,
the head of BERSIH 2.0, and PAS Deputy
President Mat Sabu, to ensure that the 9th July
rally would not take place as that, he claimed,
would ‘cause hardship’ to the people.54
regular updates on their status. Where
non-Malaysians
are
concerned,
representatives of their governments
must be informed as soon as a citizen of
their country is arrested.
On a more positive note, in April 2011, the
Selangor state government passed a motion
to set-up a secretariat that would run the
state’s detention without trial campaign
with GMI and SUARAM. Its scheduled
activities including putting up billboards
against the ISA, organising fora on detention
without trial, and anti-ISA awareness raising
programmes for the people of Selangor.55
4. Recommendations
i.
Ensure that the legislation replacing the
Internal Security Act does not perpetuate
or worsen human rights abuses under the
existing law. We do not accept detention
without trial or incommunicado
detention in any form.
ii. Release all remaining ISA detainees
immediately.
iii. Institute measures that will ensure
transparency and accountability when
arresting a person under preventive
laws. This includes immediately issuing
details of those detained and providing
30
SUARAM-2011.indb 30
8/18/12 2:03 PM
End Notes
1
2
3
4
5
Just earlier in the same year, de facto Law Minister
Nazri Aziz had stated that the government had
no intention of repealing the ISA or the EO
because these were still required for national
security (‘Spotlight on the EO’, The Star, 11
Sept 2011, <http://thestar.com.my/news/
story.asp?sec=nation&file=/2011/9/11/
nation/9469539>, Accessed: 11 Sept 2011).
‘PM announces repeal of the ISA, three
Emergency proclamations’, The Star, 15 Sept
2011, <http://thestar.com.my/news/story.as
p?file=%2F2011%2F9%2F15%2Fnation%
2F2011091520571>, Accessed: 16 Sept 2011.
‘Judges picked on merit’, New Straits Times, 25
Oct 2011, <http://test.nst.com.my/cmlink/
new-straits-times/local/general/judgespicked-on-merit-1.17790>, Accessed: 26 Oct
2011.
There have been four emergencies declared
since Independence. Two were pronounced
for the states of Sarawak (1966) and Kelantan
(1977). Another two were nationwide, the
first in 1964 following the Confrontation with
Indonesia, and the second in 1969 after the
May 13th riots. However, in 1971, a court
ruled that the 1969 proclamation superseded
the 1964 one. Hence, even though the latter
was never revoked, only three proclamations
were recognised as being in existence (‘The
laws in question’, The Star, 16 Sept 2011,
< h t t p : / / t h e s t a r. c o m . my / n e w s / s t o r y.
asp?file=/2011/9/16/nation/20110916
092450&sec=nation>, Accessed: 17 Sept
2011).
’36 Emergency Ordinance detainees to be
released’, The Sun, 25 Nov 2011, <http://www.
thesundaily.my/news/219300>, Accessed: 26
Nov 2011.
Under this law, the Home Minister could confine
the movements of a person to a certain area
whenever he deemed necessary. This included
placing him/her under police supervision
for up to five years, renewable on a yearly
basis thereafter. Those found in areas they
are forbidden to be present in were liable to a
maximum of three years in jail.
6
This law enabled the Home Minister to arrest
and detain any non-citizen, and banish them
from the country. Anyone found contravening
a banishment order would face up to 15 years
imprisonment.
7
Orders governing 125 persons were also
lifted with the removal of the Restricted
Residence Act. See ‘Restricted Residence and
Banishment Act repealed, 125 released’, The
Sun, 6 Oct 2011, <http://www.thesundaily.
my/news/167062>, Accessed: 6 Oct 2011.
8
The Banishment Act, for example, was last
used in 1977. Instead, cases previously dealt
with under this law have been addressed under
the Immigration Act 1959/1963 (Act 155).
9
A critique of the new Peaceful Assembly Act
2011, passed in November, is presented in
Chapter 4.
10 ‘PM announces repeal of the ISA, three
2F2011091520571>, Accessed: 16 Sept 2011.
11 Under this provision, Parliament can ‘legislate
special laws against subversion and acts
prejudicial to public order, such as terrorism’.
Such laws also do not have to be consistent
with the other fundamental liberties recognised
under the Federal Constitution.
12 ibid. See also ‘Two new laws to replace Internal
Security Act’, Malaysiakini, 15 Sept 2011,
<www.malaysiakini.com/news/175956>,
Accessed 6 Dec 2011.
13 ‘PM announces repeal of the ISA, three
2F2011091520571>, Accessed: 16 Sept 2011.
31
SUARAM-2011.indb 31
8/18/12 2:03 PM
14 ‘When it comes to changes in Malaysia’s security
laws read the political fine print’, Jakarta Globe,
19 Sept 2011, <http://www.thejakartaglobe.
com/commentary/when-it-comes-to-changesin-malaysias-security-laws-read-the-politicalfine-print/466135>, Accessed: 21 Sept 2011.
15 ibid.
16 ‘ISA replacement laws to be tabled next
year’, Malaysiakini, 16 Sept 2011, <www.
malaysiakini.com/ news/175995>, Accessed
6 Dec 2011.
17 ‘Najib’s promise to repeal restrictive laws a
boost for human rights, says Hasmy’, The Star,
17 Sept 2011, <http://thestar.com.my/news/
nation/9520723>, Accessed: 17 Sept 2011.
18 To date, Malaysia has only acceded to or
ratified three such treaties: the Convention on
the Elimination of All Forms of Discrimination
Against Women (CEDAW), the Convention
on the Rights of the Child (CRC), and the
Convention on the Rights of Persons with
Disabilities.
19 Najib’s promise to repeal restrictive laws a
boost for human rights, says Hasmy’, The Star,
17 Sept 2011, <http://thestar.com.my/news/
Amnesty International had also echoed this
call.
20 For more on Bersih 2.0, see Chapters 2, 4, and 6.
21 ‘Ex-detainees seek apology, compensation”,
Malaysiakini, 16 Sept 2011, <www.malaysiakini.
com/news/176013>, Accessed: 6 Dec 2011.
22 ‘Repeal of the ISA: Reform should be
sincere and not selective’, Press Statement
by SUARAM, 17 Sept 2011, <http://www.
suaram.net/?p=1333>, Accessed: 18 Sept
2011.
23 Malaysia already has laws to address terrorismrelated offences. See the Penal Code and
the Criminal Procedure Code of 2006,
and the Anti-Money Laundering and AntiTerrorism Financing Act 2001. See also ‘ISA
repeal: Beware of old poison in new bottles’,
Malaysiakini, 29 Sept 2011, <www.malaysiakini.
com/news/177196>, Accessed: 2 Mac 2012).
24 In response to Najib’s Malaysia Day
announcement, The Star newspaper ran
a piece which quoted the Economist as
referring to Najib as a ‘radical, mature,
progressive democrat’ in the making (See
‘Changes set to transform Najib into
radical, mature, progressive democrat’, The
Star, 18 Sept 2011, <http://thestar.com.
my/news/story.asp?file=/2011/9/18/
nation/9524384&sec=nation >, Accessed: 13
March 2012).
25 ‘IGP: 13 suspected JI members arrested
under ISA in Tawau’, The Star, 17 Nov
2011,
<www.thestar.com.my/news/story.
asp?file=/2011/11/17/nation/20111117180
201&sec=nation>, Accessed: 6 Dec 2011.
26 ‘Malaysia: End use of Internal Security Act’,
Human Rights Watch, 21 Nov 2011, <www.hrw.
org/news/2011/22/21/malaysia-end-useinternal-security-act>, Accessed: 13 Jan 2012.
27 ‘New law replacing ISA to include detention without
trial’, The Star, 21 Nov 2011, <http://thestar.com.
my/news/story.asp?file=/2011/11/21/nation/2
0111121193708&sec=nation>, Accessed: 22 Nov
2011.
28 ‘When it comes to changes in Malaysia’s
security laws read the political fine print’,
Jakarta Globe, 19 Sept 2011, < http://www.
thejakartaglobe.com/commentary/whenit-comes-to-changes-in-malaysias-securitylaws-read-the-political-fine-print/466135>,
Accessed: 21 Sept 2011.
29 ‘Disabled ISA detainee released’, Malaysiakini,
20 Apr 2011, <http://www.malaysiakini.
com/news/ 162007>, Accessed: 21 Apr 2011.
32
SUARAM-2011.indb 32
8/18/12 2:03 PM
30 ‘Memorandum to the Singapore High
Commission’, issued by Gerakan Mansuhkan
ISA, 9 Jun 2011, <http://llgcultural.com/
eng/index.php?option=com_content&view=
article&id=139:gerakan-mansuhkanisamemorandum-to-the-singapore-highcommission&catid=34:press-statements2010&Itemid=56>, Accessed: 10 Jun 2011.
31 The same criticism had been raised in 2010
when nine individuals – including eight
Immigration Department officials – were
detained under the ISA for human trafficking
activities. ‘Alleged human trafficking: Why
invoke the ISA?’, Free Malaysia Today, 30
May 2011, <http://www.freemalaysiatoday.
com/category/nation/2011/05/30/
alleged-human-trafficking-why-invoke-isa/>,
Accessed: 31 May 2011.
32 ‘Motion to debate ISA arrests shot down’,
Malaysiakini, 23 Nov 2011, <http://www.
malaysiakini.com/news/182141>, Accessed:
24 Nov 2011.
33 They were part of a group of 30 people
travelling from Sungai Petani to Penang island.
They were stopped at the Sungai Dua toll plaza
in Seberang Prai. Apart from arresting the six,
the authorities also took away 24 others from
this group. The women who were on board
the bus later lodged reports that they had been
harassed and assaulted by the authorities.
34 PSM lancar kempen ‘Udahlahtu… bersaralah’’,
Free Malaysia Today, 20 Jun 2011, <http://www.
freemalaysiatoday.com/2011/06/20/psmlancar-kempen-%E2%80%9Cudahlah-tubersaralah%E2 %80%9D/>, Accessed: 6 Dec
2011.
35 ‘Six arrested under EO’, The Star, 2 July
2011, <http://thestar.com.my/news/story.
asp?file=/2011/7/2/nation/20110702163
541&sec=nation>, Accessed: 6 Dec 2011;
and ‘IGP: No more discussions’, The Sun,
4 Jul 2011, <http://www.thesundaily.my/
news/67136>, Accessed: 4 Jul 2011.
36 ‘Six re-arrested under Emergency Ordinance
for further probe’, The Sun, 3 Jul 2011,
asp?file=/2011/7/3/nation/9023375&>,
Accessed: 3 Jul 2011.
37 ‘Counsel; PSM six not detained over red
links’, The Star, 21 Jul 2011, <http://thestar.
com.my/news/story.asp?file=/2011/7/21/
courts/9144246&sec=courts >, Accessed: 22
Jul 2011.
38 See ‘More call for release of six PSM members’,
The Star, 22 Jul 2011, <http://thestar.com.
nation/9153113&sec=nation >, Accessed:
22 Jul 2011. Other groups which backed
the release of the EO6 included Amnesty
International, Human Rights Watch, Forum
Asia, Freedom House, Frontline Defenders,
World Organisation against Torture (OMCT),
International Federation for Human Rights
(FIDH) and the Inter-Parliamentary Union. At
the level of state bodies, the European Union,
UN Human Rights Council, and the ASEAN
Intergovernmental Commission on Human
Rights (AICHR) also spoke out against their
detention.
39 ‘Malaysia: Government risks undermining
democratic progress, say UN experts’,
UN Office of the High Commissioner for
Human Rights, n.d., <http://www.ohchr.
org/en/NewsEvents/Pages/DisplayNews.
aspx?NewsID=11225&LangID=E>,
Accessed: 12 Jul 2011. In 2010, the UN
Working Group on Arbitrary Detention
had already visited Malaysia, and after
investigation, recommended that the EO be
repealed as it allowed ‘the police and AG’s
office to elude the normal penal procedures
for common crimes and offences’ (‘Use of
EO under the spotlight’, The Star, 11 Sept
2011,
<http://thestar.com.my/news/
33
SUARAM-2011.indb 33
8/18/12 2:03 PM
40 Personal testimonies of the EO6 detainees.
six
charged
with
possessing
41 ‘PSM
subversive documents’, The Star, 3 Aug
asp?file=/2011/8/3/nation/2011080312000
5&sec=nation>, Accessed: 3 Aug 2011.
42 ‘PSM 30 trial will not proceed’, The Star, 20
story.asp?file= %2F2011%2F9%2F20%2Fco
urts%2F9533791&sec=courts >, Accessed: 20
Sept 2011.
43 ‘722 held under EO this year’, The Star,
11
Sept
2011,
<http://thestar.com.
my/news/stor y.asp?file=/2011/9/11/
nation/9467959&sec=nation>, Accessed: 6
Dec 2011.
11
Sept
2011,
Dec 2011.
11
Sept
2011,
nation/9467959&sec=nation>, Accessed: 6 Dec
2011.
46 Testimony of the victims’ family shared with
SUARAM. See also ‘Test case in the works
to free trio held under EO’, Malaysiakini, 30
May 2011, <http://www.malaysia kini.com/
news/165499>, Accessed: 31 May 2011.
47 ‘Not right to detain teens under, says SUHAKAM’,
The Star, 8 Sept 2011, <http://thestar.com.my/
news/story.asp?sec=nation&file=/2011/9/8/
nation/9343154>, Accessed: 6 Dec 2011.
49 ‘Rela member, women arrested in drug bust’,
Malaysiakini, 16 May 2011, <http://www.
malaysiakini. com/news/164255>, Accessed:
17 May 2011.
50 ‘Another “sudden death” in Kota Baru lockup’, Malaysiakini, 9 Oct 2011, <http://www.
10 Oct 2011; ‘Man found dead in Bkt Jalil
lock-up’, Malaysiakini, 2 Dec 2011, <http://
www.malaysiakini.com/news/182970>.
Accessed: 3 Dec 2011.
51 ‘Dr M: Cops stopped me from scrapping
ISA’, Malaysiakini, 17 Feb 2011, <http://www.
malaysiakini. com/news/156258>, Accessed: 6
Dec 2011.
52 ‘Anti-ISA groups seek Dr M’s backing to drop
the law’, Malaysiakini, 18 Feb 2011, <http://
www.malaysiakini.com/news/156361>,
53 ‘Group wants action against azan-mocking
video’, Free Malaysia Today, 15 Mac 2011,
<http://www.freemalaysiatoday.com/
category/nation/2011/03/15/group-wantsaction-against-azan-mocking-video/>,
Accessed: 16 Mac 2011.
54 ‘Now UMNO MP wants ISA on Mat Sabu
and Ambiga’, Harakah Daily, 21 Jun 2011,
<http://en.harakahdaily.net/index.php/
berita-utama/2998-now-umno-mp-wants-isaon-mat-sabu-and-ambiga.html>, Accessed: 22
Jun 2011.
55 ‘Selangor government to launch anti-ISA
campaign’, Malaysian Digest, <http://www.
malaysiandigest.com/news/21914-selangorgovt-to-launch-anti-isa-campaign.html>,
Accessed: 28 Apr 2011.
48 ‘Suaram: Detention under the EO is arbitrary!
Repeal detention without trial laws’, Press
Statement, Released on 18 May 2011.
34
SUARAM-2011.indb 34
8/18/12 2:03 PM
CHAPTER 2:
ABUSE OF POWERS BY THE POLICE AND
OTHER ENFORCEMENT AGENCIES
SUARAM-2011.indb 35
8/18/12 2:03 PM
T
hroughout 2011, there continued
to be numerous cases of law
enforcement authorities misusing
their powers. Nowhere was the propensity
for such abuse better illustrated than around
the BERSIH 2.0 campaign where Malaysians
and observers across the world witnessed the
aftermath of state-sanctioned harassment,
intimidation and violence. Equally significant
were the many media reports of violations i.e
deaths in custody, police shootings including
those that proved fatal, corruption, torture
and other forms of degrading treatment –
committed by police, immigration or prison
officials against ordinary members of the
public.
Despite this situation, there was still no sign
of a truly independent body being set-up to
look into the misconduct of those entrusted to
uphold law and order in the country. Instead,
Home Minister Hishammuddin Hussein
deemed it appropriate to say that it was better
to rely on the government’s political will to
monitor the police.1 Greater public awareness
on police violence and the abuse of powers
by law enforcers, however, resulted in more
and more victims – or their families – coming
forward to lodge complaints and demand for
justice. While this public pressure forced the
authorities to investigate some cases of such
impropriety, the results of these investigations
were rarely made known.
In 2005, the Royal Commission to Enhance
the Operation and Management of the Royal
Malaysia Police Force, formed in response to
mounting public criticism of the Malaysian
police, made various recommendations for
the institution’s improvement. Among these
were proposals to deal with the issue of
police abuse of power, specifically by setting
up an Independent Police Complaints and
Misconduct Commission (“IPCMC”).
Rather than adopting this recommendation,
the Malaysian government opted to create the
Enforcement Agency Integrity Commission
(“EAIC”). This, it claimed, was a superior
proposition, as it would allow the public to
report misconduct by any law enforcement
officer or agency – not just the police – as
well as punish those who threaten or hurt
complainants.2 Critics have instead argued
that the EAIC “…lacks the independence that is
necessary for its role as investigator of misconduct and
abuse to be taken seriously…”, and that it may
suffer the same fate as the national human
rights body, Suhakam, that has no powers
of prosecution.3 Besides its watered-down
powers compared to what was proposed for
the IPCMC, the EAIC also does not take
on corruption complaints, deferring this to
the controversial Malaysian Anti-Corruption
Commission (“MACC”).
Despite being approved of in 2009, the EAIC
only started operations two years later in
2011. It received a mere 39 complaints in
the course of the year, prompting its Chair,
Heliliah Yusof, to admit that this start was “not
too encouraging” She also confirmed that after
the complaints were investigated, they were
forwarded to the “…relevant authorities such as
the Malaysian Anti-Corruption Commission, Attorney
General’s Chambers, and the disciplinary boards of
the agencies concerned, for further action…”4 As the
account below reveals, the continuing reports
of police abuse and violations reiterate the
importance of having the IPCMC, something
which the government is determined to avoid
for reasons known only to itself.
2 Police Violations
2.1 Deaths in custody
During parliamentary question time in
October 2011, Home Minister Hishamuddin
Hussein revealed that there were a total of ten
36
SUARAM-2011.indb 36
8/18/12 2:03 PM
Family and friends mourning over the demise of M. Krishnan who died in Bukit Jalil police station. (Photograph courtesy of Malaysiakini)
deaths under police custody in the first half
of the year. This was against seven deaths
recorded for the whole of the preceding year.5
He reported that most of these were due
to HIV/AIDS, Hepatitis C, heart disease,
asthma and tuberculosis. Given that no
additional details were given, this information
could not be verified. However, SUARAM’s
media monitoring of death in custody cases
for the same period strongly suggest that
alternative explanations also need to be taken
into account.
Case 1: M. Krishnan6
Arrested by the police for a drug-related
offence on 3rd January 2011, Krishnan was
found dead at Bukit Jalil police station four
days later. His first post-mortem at Hospital
Universiti Kebangsaan Malaysia indicated
that he died from a stomach ulcer. SUARAM
subsequently learned from Krishnan’s prison
mate that the deceased had been brutally
assaulted at the Dang Wangi police station
prior to his death. After the results of a second
post-mortem confirmed the earlier findings,
his family decided to take the case to court.
Case 2: Ooi Joo Kia7
On 5th January 2011, the national media
agency, Bernama, reported that a detainee at
the Nibong Tebal police lock-up had died of a
heart attack. Arrested along with seven others
to help with investigations in a case involving
computerised gambling activities, the police
claimed they administered emergency
treatment when Ooi suddenly collapsed but
to no avail. The case was classified as ‘sudden
death’ after the post-mortem found him to be
suffering from a heart disease, and with no
visible signs of physical injury.
Case 3: Hairul Amri Aliyas8
Twenty-six year old Hairul Amri was arrested
on 11th February 2011 on suspicion of theft.
Once detained, he tested positive for drugs
and was remanded for seven days. Before
37
SUARAM-2011.indb 37
8/18/12 2:03 PM
the week was over, he was found dead in his
cell. According to his prison mate, Hairul had
complained about the pain in his stomach
and had breathing difficulties. But the police
ignored him until he fell unconscious. His
mother later disputed the results of the postmortem which attributed his death to stomach
ulcers, stating that her son had never suffered
from this before.
Case 4: Tay Yu Khee9
In May 2011, Tay Yu Khee who had been
detained and was under investigation for drug
abuse, was discovered dead in his cell at the
Bukit Jalil police station. Official accounts
attributed his death to him slipping as he made
his way from the toilet back to his cell, and
fatally hitting his head as he fell. SUARAM
followed-up with a letter to the authorities,
reminding them of their obligation to
safeguard the well-being of detainees as stated
under the Akta Kaedah-kaedah Lokap (LockUp Procedures Act)(L.N.3289/1958)(4). The
human rights body also asked the police for
additional details pertaining to Tay’s death.10
Case 5: Unidentified Nigerian student11
In a police drug raid on a flat in Jalan
Kuching, a Nigerian student died, allegedly
when he was trying to escape from the
authorities. According to the official account,
the deceased collapsed after encountering
breathing difficulties as he attempted to flee
the scene. During the incident, the authorities
also arrested four other Nigerian nationals
who were said to be his accomplices.
2.2 Fatal police shootings
Apart from the cases cited above, there have
also been other instances of killings as well as
serious bodily harm caused by indiscriminate
police shootings. As in previous years, the
Royal Malaysian Police appeared to pursue
a ‘shoot first’ policy against suspects, and as
the majority of cases outlined below show,
self-defence was the most common excuse
cited to justify their actions. This policy has
been applied regardless of a suspect’s age,
nationality, or mental health.
Documentation by SUARAM reveals that in
2011, no less than 25 individuals had died in
this manner in the hands of the police (see
Table 2.1), an increase from the 18 cases
registered in 2010. (see Table 2.2 for statistics
in the past ten years)12 It is noteworthy
that there were at least seven non-citizens
among those killed, but all were portrayed as
hardcore or violent criminals in the media.
SUARAM’s efforts to press the police to
investigate these shootings and other forms of
abuses were met with silence the most of the
time. More often than not as well, the police
were not forthcoming with any information
making it impossible to identify the victims
and following-up cases with family members.
Case 1: Unidentified man13
Police in Bahau shot dead a 30-year-old man
who they claimed ran amok and charged at
them with a parang. They had responded to a
call for help from the man’s mother. However,
failing to persuade the man to give himself up
after three hours, they had used a taser gun
to stun him. This, they said, caused the man
to become more irate, leading him to attack a
police officer with his knife, at which point he
was shot and killed.
At the end of March 2011, police in Johor
fatally shot a man whom they believed had
just robbed a snooker centre along with
several others. The group was said to have
attacked two police officers who had gone
to investigate the crime scene, leading to
shots fired and the deceased being killed
while another man was injured. The police
also claimed that apart from being robbed,
38
SUARAM-2011.indb 38
8/18/12 2:03 PM
three patrons at the snooker centre had been
attacked by their assailants.
Case 3: ‘Oyong’15
Another man was shot dead by the police in
April 2011, this time in Sabah. Suspected
of having been involved in four robberies
around Lahad Datu and Kinabatangan, the
police claimed that they fired back after the
victim, ‘Oyong’, had opened fire while trying
to escape.
Case 4: Three unidentified Indonesian
men16
Also in April 2011, the police in Maran,
Pahang, shot and killed three Indonesian men
whom they claimed had been involved in a
burglary earlier in the day. They said that they
were forced to shoot when the suspects tried
to attack them with knives after they had been
cornered.
Case 5: Mohd Johari Abu Bakar17
The high-profile police shooting case
involving 14 year old Aminulrasyid Amzah in
April 2010 did not appear to leave any impact
on members of the police force.18 Instead, its
members shot dead another youth, Johari Abu
Bakar, 17, at the Cyber Valley Commercial
Centre on 13th May 2011. The victim was
suspected of having stolen the vehicle he
was driving during an armed robbery at a
house in Taman Megah. The police had also
tried to link him to the criminal activities of
his father who was shot dead in 2009 for his
supposed involvement in kidnapping and
gang robberies.
Case 6: Three unidentified men19
On 21st June 2011, Berita Harian reported
that in the wee hours of the morning, the
police had shot dead three ‘foreigners’ at an
oil palm estate in Pedas, Negeri Sembilan.
The men, believed to be in their 20s, were
killed after they allegedly tried to attack the
police with parang. The police also claimed
that the trio were responsible for a series of
robberies in Selangor and Melaka, and were
trying to escape from a botched attempt that
morning when they discovered by the police
patrol team.
In another case in Johor, police took down
a man who had held 30 children and four
kindergarten teachers captive for six hours.
Believed to be emotionally unsound, the man
had wielded a parang and threatened to kill the
children during negotiations with the police.
They shot and killed him when he allegedly
attacked them with a fire extinguisher and
other weapons.
Case 8: Unidentified Indonesian man21
Alerted by reports of a suspicious looking
car, the police in Penang ended up giving
chase and shooting its driver. The official
account alleged that the victim had fired at
the police first, and that the latter fired back
in self-defence. The police also made it a
point to state that the man, an Indonesian,
was believed to have been involved in several
other crimes before this.
Upon receiving a tip-off about drug-related
activities in a house in Balakong, the police
conducted a raid and arrested five people. Two
others tried to hide in a room but after three
hours, one of them, a woman, emerged. The
man, however, opened fire at the authorities.
The police retaliated and shot the suspect to
death.
Case 10: Mohd Malik23
Police opened fire at two men who attempted
to rob a cybercafé in Sungai Buloh in August
2011, killing one of them and injuring the
other. While stating that the same cybercafé
had been robbed five times previously, the
39
SUARAM-2011.indb 39
8/18/12 2:03 PM
police also admitted that neither of these two
suspects had a prior criminal record.
Case 11: Unidentified male youth24
In September 2011, an off-duty police
superintendent from Bukit Aman shot dead
a 19-year old youth. The incident took place
when the suspect, along with five accomplices
armed with parang, had allegedly tried to rob
the officer in Taman Tun Dr Ismail, a housing
estate. The superintendent opened fire and
killed the suspect, but the others succeeded in
escaping.
A 43-year old detainee charged under the
Dangerous Drugs Act 1952 died while under
court custody. Kota Bahru Police Deputy
Chief, Supt Idris Abd Rafar claimed that the
suspect was found by a policeman on duty at
3:00PM on 9th October 2011. He had been
arrested only days earlier. The police also
declared that their ‘investigation found no
foul play involved and [classified] the case as
sudden death’.26
The police were reported to have killed
another man, aged 28, on 12th October 2011
at Glenmarie, Shah Alam. SUARAM sent
a letter to the authorities asking for details
of their investigations into the matter but
received no response.
Case 15: Three unidentified Burmese
men29
On 4th December 2011, police from Bukit
Aman, Perak and Kedah launched a joint
operation before shooting and killing three
Burmese nationals who had allegedly
kidnapped a contractor’s 23-year-old son for
a RM500,000.00 ransom. They died after
a shootout at a Sungai Siput estate, two at
the scene and the third at the Sungai Siput
Hospital. The police later claimed that the trio
had been involved in three other kidnapping
cases, and were found in possession of a
revolver and several parang.30
Case 16: Unidentified Nigerian man31
On 5th December, a 31-year old Nigerian
admitted to Hospital Kuala Lumpur on
suspicion of being under the influence of
drugs, was shot dead. This occurred after
he had allegedly broken free from being
handcuffed to his bed in the ward, and
attacked an armed policeman on duty with
an iron rod. The victim was shot three times
and died on the spot. SUARAM issued a press
statement calling on the police to conduct a
full investigation into the death and to make
these findings public. There was no response
from the authorities.
Case 14: Four unidentified men27
In November 2011, police in Ipoh shot and
killed four men after they had allegedly tried to
flee in their car when they saw the authorities
approaching. There was an exchange of fire
when the car was chased into a dead end. The
police claimed they found a pistol, four parang,
two laptops, and two mobile phones in the
car, which was also allegedly stolen.
40
SUARAM-2011.indb 40
8/18/12 2:03 PM
Table 2.1 Fatal Police Shootings in 2011
No
1
2
3
4-6
13
Unidentified men (non-citizens)
(N.A.)
Unidentified man (Mental disability)
Unidentified man (Indonesian)
(30)
Unidentified man (34)
14
Mohd Malik (26)
14 Aug, early
morning
21 Aug, 6:45am
15
Unidentified youth (19)
27 Sept, 9:45pm
16
9 Oct
Place
Bahau, Negeri Sembilan
Permas Jaya, Johor Baharu
Lahad Datu, Sabah
Felda Jengka, Maran,
Pahang
Cyber Valley Commercial
Centre, Dengkil, Selangor
Kampung Batu 1,
Rembau, Negeri Sembilan
Srikids Kindergarten,
Johor Baharu
Jalan Paya Terubong,
Penang.
Taman Impian, Balakong,
Selangor
Kampung Baru Sungai
Buloh
Lorong Burhanuddin
Helmi 6, Taman Tun Dr
Ismail, Kuala Lumpur
Kota Bahru court lock-up
17
12 Oct, 9pm
Glenmarie, Shah Alam
7
8-10
11
12
Name /Age
‘Oyong’ (N.A.)
Unidentified men
(Indonesians) (N.A.)
Johari Abu Bakar (17)
Date /Time
9 Feb, 5pm
31 Mac, 5am
28 Apr, 7:35pm
28 Apr
13 May, 10:30pm
21 Jun, 5am
7 Jul
9 Jul, 2am
1 Nov, 9:30pm
18-21 Unidentified men (non-citizens
) (N.A.)
4 Dec
22-24 Unidentified Myanmarese men
(N.A.)
5 Dec
25 Unidentified Myanmarese men
(N.A.)
Jalan Changkat Larang,
Pengkalan, Ipoh
Sungai Siput
Kuala Lumpur
41
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Table 2.2: Statistics of victims of death in custody and police shooting
from 2002 to 2011
Year
Death in Custody
2002
18
2003
23
2004
19
2005
14
2006
14
2007
11*
2008
13
2009
7
2010
7
2011
10
Source: Government official statistics
* SUARAM media monitoring and documentation
Police Shooting
54
27
23*
12*
N/A
13*
82
88
18*
25*
2.3.1 The case of BERSIH 2.032
Following the reformation of the BERSIH
coalition – the Coalition for Clean and Fair
Elections – as a non-partisan entity in April
2010,33 the new body renamed BERSIH
2.0, announced that it would hold a rally on
9th July 2011 to highlight its eight demands.
These called on the government to:-34
1. Clean up the electoral roll and remove
irregularities so that it reflects the true
voting population;
2. Reform use of the postal ballot to ensure
all Malaysians have the right to vote;
3. Use indelible ink at the polls to prevent
voter fraud;
4. Ensure a minimum 21-day campaign
period so that both candidates and
voters respectively have more time to
disseminate and digest information;
Malaysians took to the streets for BERSIH 2.0’s 8 demands for
a clean and fair election. (Photograph courtesy of Malaysiakini)
42
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8/18/12 2:03 PM
5. Guarantee free and fair access to the
media for all parties;
6. Strengthen public institutions so that they
can act independently in upholding the
law;
7. End corruption, in particular so that
there is no more vote-buying; and
8. Stop dirty politics.
However, in the lead-up to and during the
BERSIH 2.0 rally, various acts of police abuse
or violence were recorded. The harassment
began as early as 19th June 2011, i.e. three
weeks ahead of the event, as the authorities
went about arbitrarily arresting those found
in possession of or wearing the signature
yellow BERSIH t-shirts. They also attempted
to intimidate over 40 BERSIH 2.0 leaders
and politicians who spoke publicly ahead
of the event, by summoning them to record
their statements. According to SUARAM, a
total of 191 individuals were arrested prior
to the event.35 As well, in an unprecedented
move, the police issued restriction orders
just 24-hours before the rally that barred 91
individuals including leaders of BERSIH
and opposition parties from entering the city
centre on the day.36
Among the other notable instance of police
abuse of powers during this period included:• Arresting leaders of the Parti Sosialis
Malaysia for promoting the upcoming
BERSIH 2.0 rally during their
‘Udah-lah, Bersara-lah’ roadshow,
and subsequently detaining them
under the Emergency Ordinance37;
• Obstructing pre-BERSIH 2.0 rally
events from taking place (e.g. by
deploying heavy police presence
in the vicinity of events; setting up
roadblocks leading to BERSIH 2.0
talks or public fora and diverting
members of the public away from
these; falsely informing the public
that a said venue was closed due to
an ‘illegal gathering’; etc.);
• Raiding the office of the BERSIH 2.0
secretariat without a search warrant,
and arresting seven employees and
a volunteer without telling them the
legal basis for their arrest. They also
seized documents and a computer
allegedly related to the organising of
the rally;
• Setting-up roadblocks along all major
highways and roads leading into the
capital on the day with the intention
of dissuading potential participants
from joining the rally. They also
conducted room-to-room searches in
targeted hotels in the city centre to
sieve-out and arrest those suspected
of being potential rally-goers;
• Employing excessive force and
violence to disperse the crowds
that had gathered peacefully at the
BERSIH 2.0 event, and arbitrarily
arresting those present. The
SUARAM helpline set up for the
day recorded complaints of persons
being beaten even when they did
not resist arrest, and were already
handcuffed;
• Indiscriminately firing tear gas
and water cannons at the crowd,
including those seeking shelter in
the compound of a hospital. The
government initially denied that this
had happened but later claimed that
water cannons had indeed been used.
However, it said that this was because
43
SUARAM-2011.indb 43
8/18/12 2:03 PM
it wanted to disperse the participants
who had trespassed into hospital
grounds. It was silent on the use of
tear gas at the hospital as captured on
video footage38; and
Tear gas being fired in the compound of Tung Shin Hospital
(Photograph courtesy of Malaysiakini)
Police personnel arresting suspected participants at Light Rail
Transit station (Photograph courtesy of Malaysiakini)
Memorandum by Keretapi Tanah Melayu informing the
public of its closure on 9th July 2011. (Photograph courtesy of
Malaysiakini)
Excessive chemical laced water cannon being used during the
rally to disperse peaceful demonstrators (Photograph courtesy of
Malaysiakini)
• Arresting a record number of
participants – estimated at around
1,700 individuals – on 9th July 2011.
Apart from the above, there was also one death
at the rally. Baharudin Ahmad was allegedly
asphyxiated by tear gas. An application by
family members for an inquest to confirm this
theory was rejected on grounds of it being
vexatious, frivolous and misconceived.39
2.3.2 Other examples of violations by
the police
Chemical laced water being fired towards Tung Shin Hospital
Case 1: S. Devan40
S. Devan, 20, lodged a police report after being
assaulted in Bahau by eight men claiming to
44
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be police officers from Johor. They had come
to the house in search of the friend he was
staying with. They then proceeded to assault
and abuse him when he said that he did not
know the whereabouts of his friend. One of
the men allegedly forced a gun into his mouth.
He was also threatened with detention under
the Emergency Ordinance and being sent
away to the Simpang Renggam detention
centre for two years. The men left but only
after warning Devan not to speak about what
had happened. For a while after the incident,
they also allegedly continued to threaten him
over the phone.
Case 2: S. Ganesan41
Another youth claimed that he was physically
assaulted and verbally abused by members
of the force for knocking into a policeman’s
motorcycle at a roadblock in the early hours
of the morning. According to S. Ganesan,
besides beating him repeatedly and calling
him ‘keling’, a derogatory term for Indians, he
was also told that he should just die so that
they could close their case. As with S. Devan,
Ganesan, aged 20, was also warned not to take
action. Though fearful, he lodged a report at
another police station on the same day.
Case 3: Yap Woon Kong42
An innocent bystander, Yap Woon Kong, was
killed when a suspect being pursued by the
police, rammed his car into him. The victim’s
family questioned the obligation of the police
to ensure the safety of members of the public
in such incidents.
Case 4: Xu Xue Ting and son43
In Melaka, a policeman who thought that a
woman had admonished him responded by
drawing out his pistol. The woman who was
standing nearby was allegedly scolding her
son – not the policeman – who was with her.
Both she and her son were later taken to the
police station and put in the lock-up.
Case 5: 30 non-citizen women44
In June 2011, the Malaysian police came
under the spotlight for chaining up and
branding the bodies of 29 women from
China and one from Vietnam whom they had
arrested during a raid at a high-end club in
Penang. The island’s police chief Ayub Yaakob
claimed that they marked these women –
suspected of being sex workers – with either
a tick or an “X” on their chest and forehead
to ensure they were easily identifiable and
could not escape in the chaos of the raid. The
same treatment was not accorded to eight
men who were also arrested at the scene. The
police chief justified these actions stating that
the women had ‘wrecked many marriages’
and that wives of men who patronised their
services had lodged complaints. Following
protests from various civil society groups, the
police announced that it would conduct an
internal inquiry into whether any officer had
abused police powers during the operations.45
The results of this inquiry were not made
known to the public.
Case 6: Hii Tiong Huat
On the eve of the BERSIH 2.0 rally, Hii Tiong
Huat was arrested by the police for publicly
demonstrating against their clampdown of
those suspected of supporting the event. He
claimed that he was beaten by the police
when he was detained. After being picked-up
for a third time, he was sent to the psychiatric
ward of Hospital Kuala Lumpur.
Case 7: Goh Kok Ming
Goh Kok Ming was arrested by six plainclothes
policemen at his home on the night of 28th
July 2011. He alleged that the authorities
had seized some documents and his mobile
phone. After placing him under remand, they
also verbally abused him and threatened to
use physical force if he did not cooperate.
Dissatisfied with Goh’s written statement,
45
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the Investigating Officer hit his head with a
chair and forced him to strip before torturing
him further. Under duress, Goh was forced to
make a false confession. During this time, he
learnt that the incident had been instigated
by a complainant who was well connected
to the local police. Brought to court for his
remand period to be extended, Goh informed
the judge that he was unwell and the latter
ordered the police to ensure that he got
medical treatment. This was ignored. Goh
was detained for a total of 12 days before
being released on bail.
Case 8: Xu Shu Mei46
A 26-year-old clerk accused of stealing was
illegally detained for six hours by her employer
and physically tortured before being sent to
the police station. There, she was subjected to
more abuse as the police blind-folded her and
beat her into confessing her crime. They also
denied her the right to legal representation
and prevented her from contacting her family.
Case 9: Mohd Ridzuan Mohd Noor47
A 23-year old garbage collector near Jitra,
Kedah, was assaulted by a policeman and
five others after he chided the former for not
throwing his rubbish into a bin. The two had
a brief argument before the policeman left
the scene but only after he had threatened
to shoot the victim. He then returned half
an hour later with his accomplices and
started beating Mohd Ridzuan until he fell
to the ground. Then they forcefully brought
him to the Kodiang police station where he
continued to be beaten before being lockedup. Upon his release half an hour later, Mohd
Ridzuan went to the Jitra hospital to seek
treatment and discovered that he had suffered
injuries to his cheek, shoulder and rib cage.
He subsequently lodged a complaint with the
police headquarters in Kubang Pasu but it is
unclear what the investigation’s outcome was.
Case 10: Wong Bee Fong48
In November 2011, Wong Bee Fong was
charged under the Penal Code for obstructing
the police from performing their duties.
Prior to this, she had held a press conference
claiming that an encounter with the police
in August 2004 had left her scarred and
fearful of men, and unable to pursue intimate
relationships with them. According to her,
she was driving home one night and was
stopped by the police. Claiming that she
had been drink-driving, they wanted her to
settle the matter with a RM3,000.00 bribe.
Instead of paying, she drove to the nearest
police station pursued by an unmarked police
car. There, she was forced out of the car and
allegedly sexually assaulted by 11 policemen.
Despite her complaints, the police did not
take any action then. They only did so after
she revealed the matter seven years later but
by way of detaining and charging her at the
Kajang magistrate’s court.
On 30th November 2011, the police shot
and injured a 23-year-old robbery suspect.
According to the official account, the suspect
had ignored police warnings to stop his car
and instead drove towards them before
crashing into three stationary vehicles. The
police responded by opening fire causing the
car to driver to lose control and crash into
a pole. The suspect was also injured in the
process.
These cases of police abuse notwithstanding,
a positive development was noted in 2011
when the High Court ruled that a police
lance corporal and the Inspector General of
Police had to pay RM900,000.00 in damages
to Johari Kasman whom the former shot
and paralysed in 2004.50 Before coming to
a decision, the presiding judge was told that
the plaintiff had a criminal record of stealing
vehicles, and that he had allegedly used his
46
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helmet to attack the defendent, and had
tried to grab his pistol. Given this, the latter
claimed, he was merely defending himself
when he shot Johari in his back.
and held for three days. During this time, he
was denied access to a lawyer and prevented
from contacting his family, which goes against
Section 28 of the Criminal Procedure Code.
2.3.3 Corruption
Case 4: Gunasegaran Muniandy,
Sureshkumar
Anave,
Magendran
Muniandy
On 4th September 2011, Gunasegaran
Muniandy was detained by the police for
riding his motorcycle without a helmet,
and not having his license with him. He
offered to return home to obtain his license.
Upon reaching home, he was beaten by two
unidentified policemen who had turned up
there. When his friend, Suresh, who was
present at the scene, asked why they were
hitting Gunasegaran, he ended up being taken
to the police station along with Gunasegaran
and his younger brother Magendran. There,
Gunasegaran was again physically assaulted
by six police personnel. They also beat up his
15 year-old brother Magendran. During this
commotion, the computer in the room fell and
broke. The police demanded RM1,000.00 in
compensation but after the victims said they
did not have any money, they asked them
for RM50.00 each instead. Gunasegaran,
his brother and Suresh were later released,
with the former given three summonses even
though he was only guilty of two offences. He
lodged a complaint with SUARAM thereafter.
Case 1: Victor Liaw Vui Lun51
Victor Liaw Vui Lun had wanted to evict his
tenants for failing to pay their rent on time.
Instead, they lodged a police report against
him resulting in his arrest. He claimed that
before he was thrown into the lock-up, a
police sergeant had taken RM200.00 from
him to ‘process’ the case. Even though his
lawyer posted bail on the second day, Victor
was not released till the following day. After
his court hearing, the same police sergeant
threatened to harass his family if he did not
cooperate with the investigations. Victor
was subsequently brought back to the police
station again. During this journey, he was
allegedly physically assaulted.
Case 2: Lee Swee Sing52
Lee Swee Sing, 48, a tuition centre teacher
was accused of stealing a handphone in the
library of Universiti Malaya in April 2011.
He was detained by campus security guards,
beaten and abused before being handedover to the police from Pantai police station.
When remanded at the Bukit Jalil detention
centre, he was not informed about his right
to legal counsel, but instead asked to pay a
bribe of RM100.00. He was also refused
medical attention for his high blood pressure
and eye irritation. He subsequently lodged a
complaint about the police misuse of powers
with Bukit Aman.
Case 3: Hiew Kok Ming53
Bank manager Hiew Kok Ming was detained
in June 2011 for driving without a seat belt.
After he was arrested, he was taken to the
Central Melaka Traffic Police Headquarters
Case 5: Lim Hen Sek and Ang Ling
Zher54
Lim Hen Sek, Ang Ling Zher and two friends
were driving home when they were stopped at
a police roadblock along the Sprint Highway.
The police seized photographs belonging
to one of their friends before ordering the
couple to proceed to Brickfields police station
to perform a urine test. At the station, they
were asked for a bribe, and later arrested by
plainclothes police. They were not informed
of the grounds for their arrest, nor were they
47
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allowed to call their family members.
3. Abuse of Power by Other Enforcement
Agencies
Apart from the police, other law enforcement
officers have also been implicated in cases of
misusing their powers. Among them are those
in the immigration and prisons departments,
as well as the auxiliary police force. As in the
other instances of death in custody or fatal
police shootings, the authorities appear able
to get away with impunity in most episodes
of this nature.
Case 1: Hairul Nizam Baharin
A photographer with the official news station,
Bernama, was allegedly assaulted by an
auxilliary police officer while carrying out his
duties on the morning of
9th January 2011. Hairul Nizam Baharin
was taking pictures near the Integrated
Transportation Terminal in Bandar Tun
Razak, Kuala Lumpur, when the official
approached him. For refusing to stop his
motorcycle and providing his identification
card, he was allegedly punched, beaten and
handcuffed before being taken to the police
station. He was released without being
charged. The case again raised questions
about the powers of the auxiliary police,
and whether or not they were adequately
trained for their job. The police eventually
investigated the alleged offender for criminal
intimidation under Section 506 of the Penal
Code, before handing the case over to the
Deputy Public Prosecutor.
55
Case 2: Ahmad Sarbani
Port Klang customs officer, Ahmad Sarbani,
56, was found dead on the first floor badminton
court of the MACC headquarters in Jalan
Cochrane on April 6. He was reported to have
gone there voluntarily to meet an MACC
investigating officer in relation to a bribery
case involving 62 customs officers. His death
came in the midst of the Royal Comission
Inquiry into the death of Teoh Beng Hock.
The coroner’s investigation concluded that
the victim had died due to severe head injuries
and ‘positional asphyxia’, consistent with
falling from a great height. However, she also
stated that there was no foul play or a third
party involved in Ahmad Sarbani’s fall from
the third floor of the MACC building. Instead,
she found the Assistant Superintendent
Kamal Awang Besar negligent for having left
the victim unattended in the witness room.56
Case 3: Ben Cheah Ping Xen3
Twenty-three year old Ben Cheah was brutally
assaulted by a senior prison officer and his
three accomplices in a convenience store on
30th April 2011 following a misunderstanding
over a traffic offence outside the shop. Police
in Keningau, Sabah were forced to act after
CCTV footage of the incident emerged
showing the victim being beaten with a baton,
belt and plastic stool.
Case 4: Two unidentified Singaporean
women58
In June 2011, Malaysians were shocked to
discover the treatment that had been meted out
to two Singaporean women who had driven to
Johor Bahru for supper but overlooked getting
their passports stamped when they crossed the
Malaysian border. Both were handcuffed, sent
to the Pontian detention centre and asked to
perform nude squats by local immigration
officials. They were released with a warning
48 hours later. This was not the first time that
law enforcement authorities had abused their
powers in this manner. In 2005, the police were
also found guilty of misusing their powers to
make a female detainee strip and perform
squats.59 Following the recommendations of a
Royal Commission of Inquiry into the matter,
the government had said then that it would
ban this practice. That decision appears to
48
SUARAM-2011.indb 48
8/18/12 2:03 PM
Illustration by Ahmad Syauqey Abdul Ghani depicting detainees which were forced to strip naked and defecate in front of each other
at Pengkalan Chepa Prison (Photograph courtesy of Malaysiakini)
have left little impact on its law enforcement
personnel.
113 other detainees when they
reached the prison grounds;
Case 5: Ahmad Syauqey Abdul Ghani
On 20th June 2011, Ahmad Syauqey was
stopped by the police when he was on
his way to his daughters’ school in Kota
Bahru, Kelantan. When he asked for some
identification, they allegedly responded by
hitting him and kicking his face three times.
Two days later, Syauqey lodged a police
report about this incident at the Bachok
police station. In protest against the police
abuse of powers, he burnt the police report.
This caused him to be arrested and placed
under remand. When he was unable to post
bail,60 he was transferred to the Pengkalan
Chepa prison where he encountered further
abuse. The following is a list of violations he
identified during his time in prison:61
• Brought to an open area and
ordered to defecate in front of
each other;
• The cells were overcrowded;
• The warden misused his powers
and had tortured the prisoners;
• The prisoners had no access to
medical treatment; and
• There were no proper prayer
facilities for Muslim prisoners.
After this incident was highlighted in
the media, the Pengkalan Chepa prison
authorities announced that they would carry
out an investigation into the claims.
• Forced to strip naked along with
49
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Table 2.3: Abuse of Power by Law Enforcement Officers Cases
No
Name /Age
Date
Place
1
2
3
4
5
6
7
Hairul Nizam Baharin (37)
Victor Liaw Vui Lun (25)
Lee Swee Sing (49)
Ahmad Sarbani (56)
S. Devan (20)
S. Ganesan (20)
Ben Cheah Ping Xen (23)
9 Jan
28 Feb
4 Apr
6 Apr
13 Apr
13 Apr
30 Apr
Bandar Tasik Selatan, KL
Gombak, KL
Kuala Lumpur
Kuala Lumpur
Bahau, Negeri Sembilan
Rembau, Negeri Sembilan
Keningau, Sabah
8
Yap Woon Kong (51)
21 Mei
Cheras, KL
Xu Xue Ting (41) and son
26 Mei
Melaka
Hiew Kok Ming (26)
28 Mei
Melaka
12-42 30 non-citizen women
2 Jun
Penang
43-44 Two unidentified Singaporean
women
45 Ahmad Syauqey (35)
9 Jun
Lokap Pontian
25 Jun
Bachok, Kelantan
9-10
11
46
Hii Tiong Huat (60)
8 Jul
Kuala Lumpur
47
Goh Kok Ming
28 Jul
Shah Alam
28
Xu Shu Mei (26)
2 Ogos
Bukit Mertajam, Penang
49-51 Gunasegaran Muniandy (22)
Sureshkumar Anave (22)
Magendran Muniandy (15)
52 Mohd Ridzuan Mohd Noor (23)
4 Sep
Tanjung Malim, Perak
24 Sep
Jitra, Kedah
53-54 Two female Chinese nationals
30 Sep
Kepong
2 Nov64
Kajang
4 Sep
Klang
3 Dec
Klang
55
Wong Bee Fong (39)
56
57-58 Lim Hen Sek and Ang Ling Zher
50
SUARAM-2011.indb 50
8/18/12 2:03 PM
Case 6: Two unidentified female
Chinese nationals62
Four RELA men attempted to blackmail two
Chinese nationals by accusing them of being
sex workers. The two women were having tea
in Kepong on 30th September 2011 when a
car pulled up in front of them and three men
got out, claiming to be police officers before
proceeding to handcuff them for engaging
in sex work. They demanded RM3,000.00
from the women to secure their release.
During this time a police patrol car came by
and upon discovering what was going on, the
police arrested one of the men for blackmail.
His three accomplices, however, managed to
escape.
4. Recommendations
i.
Set up an Independent Police Complaints
and Misconduct Commission (IPCMC).
ii. Immediately review current procedures
relating to the use of firearms on
criminal suspects and ensure that these
comply with international human rights
standards.
iii. Establish better complaints procedures
after police shootings to ensure that they
can be held accountable for their actions.
iv. Conduct an inquest into every death
in custody or police shooting within a
month of the incident.
v. Ensure that the police adhere to strict
guidelines in handling cases of death
in custody or police shootings. This
includes informing the magistrates
and government medical officers each
time such a death takes place, and not
removing a body until the designated
magistrate and medical officer has
inspected it.
51
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End Notes
1
“Opposing IPCMC Hishamuddin Admits
UMNO-BN Has No Political Will”,
Harakah Daily, 18 February 2011, <http://
www.harakahdaily.my/opposing-ipcmchishammudin-admits-umno-bn-has-nopolitical-will>, Accessed: 6 Dec 2011.
2
‘Errant enforcers under watch’, The Star,
16
May
2011,
May 2011.
3
Denison Jayasooria, Suhakam commissioner
cited in ‘EAIC hamstrung by lack of power’,
The Nutgraph, 17 Mac 2009, <http://www.
thenutg raph.com/eaic-hamstrung-bylack-of-power>, Accessed: 18 Mac 2009.
See also Andrew Khoo, ‘Why the EAIC is
unconstitutional’, The Nutgraph, 9 Jul 2009,
<http://www.thenutgraph.com/why-the-eaicis-unconstitutional/>, Accessed: 10 Jul 2009.
4
‘EAIC: Only 39 complaints made on
enforcement personnel’, The Star, 5 Mac
2 0 1 2 , < h t t p : / / t h e s t a r. c o m . my / n e w s /
nation/10854517>, Accessed: 6 Mac 2012.
5
Parliamentary reply to Chow Kon Yeow,
Member of Parliament (Tanjong), 6 Oct 2011,
Ref. No: 4060, Question 18.
6
‘Krishnan’s family rejects 2nd autopsy result’,
Malaysiakini, 25 Jan 2011, <http://malaysiakini.
com/news/154390>, Accessed: 26 Jan 2011.
7
8
‘Tahanan mati akibat serangan jantung’,
Kosmo, 5 Jan 2011, <http://www.kosmo.com.
my/kosmo/content.asp?y=2011&dt=0105&
pub=Kosmo&sec=Terkini&pg=bt_12.htm>,
Accessed: 6 Jan 2011.
‘Ibu sebak anak mati dalam lokap’, Website of
Parti Keadilan Rakyat, 21 Feb 2011, <http://
www.keadilandaily.com/?p=7293>, Accessed:
6 Dec 2011.
9
‘Tahanan polis maut tergelincir’, Berita
Harian, 11 May 2011, <http://www.
bharian.com.my/bharian/articles/
Tahananpolismauttergelincir/Article/>,
10 ‘Kematian dalam Tahanan Polis’, Letter from
Suaram to ACP Wan Abdul Bari Wan Abdul
Talib, Brickfields Police Station, 13 May 2011.
11 ‘Nigerian dies in Malaysia drug raid’, News
24, 9 Jun 2011, <http://www.news24.com/
Africa/News/Nigerian-dies-in-Malaysia-drugraid-20110609>, Accessed: 10 Jun 2011.
12 Given the lack of transparency and
adequate access to official statistics, the
information presented in this chapter is
based on SUARAM’s media monitoring and
documentation work.
13 ‘Polis tembak mati lelaki mengamuk serang
polis dengan parang’, Harian Metro, 9 Feb
2011, <http://www.hmetro.com.my/articles/
Polistembakmatilelakimengamukserangpolisdenganparang/Article/>, Accessed: 10 Feb
2011.
14 ‘Polis tembak mati lelaki dipercayai baru menyamun’, Berita Harian, 31 Mac 2011, <http://
www.bharian.com.my/articles/Polistembakmatilelakidipercayaibarumenyamun/
Article/>, Accessed: 1 Apr 2011.
15 ‘Polis menembak mati seorang lelaki di Lahad Datu, Sabah’, Komunitikini, 28 April 2011,
<http://komunitikini.com/news/polis-menembak-mati-seorang-lelaki-di-lahad-datusabah>, Accessed: 29 Apr 2011.
16 ‘Polis tembak mati tiga dipercayai perompak di
Maran’, Berita Harian, 28 Apr 2011, <http://
www.bharian.com.my/articles/PolistembakmatitigadipercayaiperompakdiMaran/Article/>, Accessed: 29 Apr 2011.
17 ‘Suaram kutuk tindakan polis tembak mati
remaja’, Press Statement, 16 May 2011.
52
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18 ‘Aminulrasyid’s friend denies they tried to ram
down cop’, The Star, 4 May 2010, <http://thestar.com.my/news/story.asp?file=/2010/5/4/
May 2010. The police fired 21 gunshots at
the vehicle which Aminulrasyid was in. Other
youths killed in the course of the previous year
were Mohd Shamil Hafiz Shapiei (15), Hairul
Nizam Tuah (20), and Mohd Hanafi Omar
(22).
19 ‘3 penjenayah warga asing ditembak mati’,
Berita Harian, 21 Jun 2011, <http://www.bharian.com.my/articles/3penjenayahwargaasin
gditembakmati/Article/>, Accessed: 22 Jun
2011.
20 ‘Malaysian police shoot hostage-taker to end
kindergarten siege’, 7 Jul 2011, <http://www.
guardian.co.uk/world/2011/jul/07/malaysia-children-hostage-machete>, Accessed: 8
Jul 2011.
21 ‘Penjenayah warga Indonesia mati ditembak’,
Berita Harian, 9 Jul 2011, <http://www.bharian.com.my/articles/PenjenayahwargaIndonesiamatiditembak/Article/>, Accessed: 10
Jul 2011.
22 ‘Lelaki disyaki terbabit kes dadah mati ditembak’, Berita Harian, 14 Aug 2011, <http://
www.bharian.com.my/articles/Lelakidisyakiterbabitkesdadahmatiditembak/Article/>,
Accessed: 15 Aug 2011.
23 ‘Polis tembak mati suspek kes samun di
Sungai Buloh’, Berita Harian, 21 Aug 2011,
<http://www.bharian.com.my/articles/PolistembakmatisuspekkessamundiSungaiBuloh/
Article/>, Accessed: 22 Aug 2011.
24 ‘Pemuda cuba samun polis mati ditembak’, 28
Sept 2011, <http://www.mummynemo.com/
2011/09/pemuda-cuba-samun-polis-mati-ditembak/>, Accessed: 29 Sept 2011.
25 ‘Tahanan lelaki ditemui mati dalam lokap’,
Malaysiakini, 9 Oct 2011, <http;//www.
malaysia kini.com/news/178184>, Accessed:
10 Oct 2011.
26 ‘Another “sudden death” in Kota Baru
lock-up’, Malaysiakini, 9 Oct 2011, <www.
10 Oct 2011.
27 ‘Suspect driving vehicle reported as lost, resists arrest and is killed in ensuing shoot-out’,
Sin Chew Daily, 13 Oct 2011.
28 ‘Empat penjenayah ditembak mati di Ipoh’,
Harian Metro, 1 Nov 2011, <http://www.
hmetro. com.my/articles/EmpatpenjenayahditembakmatidiIpoh/Article/>, Accessed: 2
Nov 2011.
29 ‘Three kidnap suspects shot dead’, The
Star, 5 Dec 2011, <http://thestar.com.
my/news/story. asp?file=/2011/12/5/
nation/10033546&sec=nation>, Accessed 6
Dec 2011.
30 ‘Captors roughed up kidnap victim, says
cop’, The Star, 6 Dec 2011, <http://thestar.
com.my /news/story.asp?file=/2011/12/6/
Dec 2011.
31 ‘Drug mule shot dead in attack on cop’,
The Malay Mail, 5 Dec 2011, <http://www.
mmail.com. my/content/86964-drug-muleshot-dead-attack-cop>, Accessed: 6 Dec
2011.
32 For a detailed list of state-backed violations,
see ‘Evidence and information on allegations
of violations of human rights prior to and
during the 9 July Perhimpunan Bersih 2.0’,
Joint submission by Bersih 2.0 and SUARAM
to Suhakam, 5 Aug 2011.
53
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33 The original configuration of Bersih involved
political parties and civil society groups. This
was formed in 2006. The body went on to
organise a rally in November 2007 to demand
that the electoral system be reformed to
ensure free and fair elections.
34 For details of these demands, see ‘Bersih 2.0’s
8 demands’, <http://bersih.org/?page_id=
4111>, Accessed: 12 Jan 2012.
35 See also ‘Army simulation exercise,
“Disperse of we’ll shoot”’, Malaysiakini, 6
Jul 2011, <http://www.malaysiakini.com/
news/169088>, Accessed: 7 Jul 2011.
36 ‘KL off-limits’, The Star, 8 Jul 2011,<http://thestar.com.my/news/story.asp?file=/2011/7/8/
Dec 2011.
37 See Chapter 1 for details.
38 ‘Tung Shin: Tiada apa lagi untuk diumum’,
Malaysiakini, 5 Oct 2011, <http://www.
6 Dec 2011.
39 ‘Court strikes out bid for inquest into Baharudin’s death’, The Sun, 14 Oct 2011, <http://
www.thesundaily.my/news/177351>, Accessed: 6 Dec 2011.
40 ‘Policeman shoved gun into my mouth’, Free
Malaysia Today, 19 May 2011, <http://
www.freemalaysiatoday.com/2011/05/19/
policeman-shoved-gun-into-my-mouth/>,
41 ‘Cops beat me, told me to die’, Free Malaysia
Today, 26 May 2011, <http://www.freemalaysia today.com/2011/05/26/cops-beat-metold-me-to-die/>, Accessed: 27 May 2011.
42 See Guang Ming Daily, 24 May 2011.
44 ‘Police branded women seized in raid’, 4 Jun
2011, <http://news.aol.co.uk/world-news/
story/police-branded-women-seized-inraid/1835691/>, Accessed: 5 Jun 2011.
45 ‘Probe ordered into X-mark incident’,
Malaysiakini, 5 Jun 2011, <http://www.
malaysiakini.com /news/166083>, Accessed:
6 Jun 2011.
46 ‘Clerk complains of being humiliated by employer and police’, Guang Ming
Daily,<http://www.guangming.com.my/
node/110327?tid=3>
47 ‘Tegur polis buang sampah, pekerja dakwa
dipukul’, Malaysiakini, 26 Sept 2011, <http://
www.malaysiakini.com/news/176888>, Accessed: 29 Aug 2011.
48 ‘Seven years on, ‘molest’ complainant
charged’, Malaysiakini, 2 Nov 2011, <http://
www.malaysiakini.com/news/180258>, Accessed: 3 Nov 2011; ‘Bring on the molest
witnesses, challenge cops’, Malaysiakini, 4
Nov 2011, <http://www.malaysiakini.com/
news/180508>, Accessed: 5 Nov 2011.
49 ‘Polis tembak lelaki rempuh anggota peronda’, Sinar Harian, 30 Nov 2011, <http://
www.sinarharian.com.my/edisi/selangor-kl/
polis-tembak-lelaki-rempuh-anggota-peronda-1.8929>, Accessed: 1 Dec 2011.
50 ‘Polis diperintah bayar RM900,000 akibat
kecuaian’, Malaysiakini, 21 Sept 2011, <http://
www.malaysiakini.com/news/176469>, Accessed: 22 Sept 2011.
51 Suaram documentation records, copy of
police report lodged on 9 March 2011.
52 ‘Suaram bersama mangsa penyalahgunaan
kuasa polis membuat laporan polis mengenai
kes isu rasuah dan lain-lain’, Press Statement
by Suaram, 27 Mei 2011.
43 See Sin Chew Daily, 27 May 2011.
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53 ‘Kes salah guna kuasa polis kian meruncing:
Suaram tuntut perubahan’, Press Statement
by Suaram, 13 Jun 2011.
54 ‘Husband and wife deliver memorandum to
Suhakam demanding for an inquest’, Sin Chew
Daily, 14 Dec 2011.
55 ‘‘Pukul’ jurugambar: NUJ desak polis tak
keterlaluan’, Malaysiakini, 10 Jan 2011,<http://
56 ‘Coroner rules death of Ahmad Sarbaini as
accidental’, The Sun, 26 Sept 2011, <http://
w w w. t h e s u n d a i l y. my / n e w s / 1 5 7 1 1 0 > ,
61 ‘Banduan penjara di Kelantan dakwa
dibogelkan’, Malaysiakini, 11 Aug 2011,
< h t t p : / / w w w. m a l a y s i a k i n i . c o m /
news/172685> Accessed: 6 Dec 2011.
62 ‘RELA men arrested after attempted
blackmail’, Guang Ming Daily, 30 Sept
2011,
http://www.guangming.com.my/
node/114644?tid=14, Accessed: 1 Oct 2011.
63 Bee Fong was assaulted on 13 Aug 2004. After
she brought this incident to public attention
seven years later, the police charged her on 2
Nov 2011 for obstructing them from carrying
out their duties at the time.
57 ‘Angry father seeks justice over “senseless”
assault on son’, Free Malaysia Today, 3 May
2011,<http://www.freemalaysiatoday.com/
category/nation/2011/05/03/angry-fatherseeks-justice-over-senseless-assault-on-son/>,
Accessed: 4 May 2011; ‘Assault caught on
CCTV, police forced to act’, Free Malaysia Today,
4 May 2011, <http://www.freemalaysiatoday.
com/2011/05/04/ assault-caught-on-cctvpolice-forced-to-act/>, Accessed: 5 May 2011.
58 ‘Hentikan penyeksaan dan penyalahgunaan
kuasa segara! Manakah tanggungjawab
kerajaan menjamin hak asasi manusia?’, Press
Statement by Suaram, 14 Jun 2011.
59 ‘Government settles with “nude squat”
woman’, The Malaysian Insider, 27 Jul 2011,
<http://www.themalaysianinsider.com/
malaysia/article/government-settles-withnude-squat-woman/>, Accessed: 28 Jul 2011.
60 He was charged on two counts, the first for
obstructing a public official from discharging
his duties under Section 186 of the Penal
Code, and the second, for behaving
‘indecently’ under Section 90 of the Police
Act. See ‘Prisoner’s right violation probe, The
Malay Mail, 10 Aug 2011.
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CHAPTER 3:
FREEDOM OF EXPRESSION AND INFORMATION
SUARAM-2011.indb 56
8/18/12 2:03 PM
L
ike previous years, the right of
Malaysians
to
freely
express
themselves and to access information
were seriously challenged under the Barisan
Nasional (“BN”) central government in 2011.
Prime Minister Najib Razak’s promise to
amend the Printing Presses and Publications
Act 1984 not only failed to materialise, but
instead his Home Ministry moved to further
tighten censorship laws by proposing that
its ambit cover the thus far relatively free
Internet. The authorities also revived talks
about a media regulatory body. Both ideas
were shelved – albeit conditionally – after loud
protests from civil society. Put in perspective,
where the Pakatan governments in Selangor
and Penang set new standards by introducing
freedom of information legislation this year,
the BN administration did not. Worse, the
latter clung on to an array of Federal laws
that trump these State initiatives, at the same
time reinforcing self-censorship and a culture
of secrecy.
speech, expression and information in the
legal and administrative realms.
This situation was compounded by the
increasing politicisation of ethnicity and
religion, and the intolerance this breeds
against those who question or express beliefs
that are different. As the cases dealt with in
this chapter show, it has become a norm for
the authorities to silence dissenting views
or expressions that it deems unacceptable
whether these come from politicians or
ordinary members of the public. More
worrying perhaps is the role of BN-owned
media and private actors in fuelling religiousor ethnic-based hatred, and the government’s
failure to act when this happens.
The BN government’s uncompromising
stance on these laws was evident in how
the High Court disposed of a challenge
by Hindraf co-founder P. Uthayakumar
to declare the SA illegal. His lawyers had
argued that this law contravened Article 4(1)
of the Federal Constitution and accordingly,
should be quashed.1 The judge, however,
concurred with the Attorney General’s office
that freedom of speech had to be weighed
against public interest, which he claimed the
SA upheld by protecting peace and national
security.2
1.1 Federal/BN-ruled states
1.1.1 Laws that silence
Article 10(1) of the Federal Constitution
guarantees Malaysians the freedom of speech
and expression. Nevertheless, these freedoms
are qualified by clauses (2), (3) and (4) of
the same article, which allow Parliament to
introduce laws that can limit these rights in
order to safeguard public order or morality.
Indeed, the application of legislation such as
the Sedition Act 1948 (“SA”), Official Secrets
Act 1972 (“OSA”), the Printing Presses
and Publications Act 1984 (“PPPA”), the
Communications and Multimedia Act 1998
(“CMA”), and the Film Censorship Act 2002
(“FCA”) throughout 2011, has continued to
restrict the freedom of speech, expression and
information in the country.
The year 2011 saw both the BN Federal
government and the Pakatan Rakyat (“PR”)
State governments vacillating between
restricting and facilitating the freedom of
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Communications and Multimedia Act 1998
Amongst other functions, this law prohibits the censorship of the Internet. Nevertheless,
it also allows for action to be taken against those who provide or facilitate ‘offensive
content’ which is deemed to ‘annoy, abuse, threaten or harass any person’. Under
Sections 211 and 233, for instance, offenders can be fined up to RM50,000 and/or jailed
for up to a year.
Official Secrets Act 1972
The primary main instrument to suppress and restrict the freedom of information in
Malaysia has been the OSA. Based on an ordinance introduced in 1911, the Act makes
it an offence to publish without authorisation, any information in the hands of the
government that has been classified as ‘secret’, ‘confidential’, or ‘restricted’. The penalty
for violating the law is a maximum of seven years imprisonment.
Printing Presses and Publications Act 1984
This law regulates the printing, production, reproduction and distribution of newspapers
and books as well as the importation of publications from abroad. Not only are
newspapers required to obtain a publishing permit that must be renewed annually, but
also, the Home Minister has the right to revoke these licenses if a publication is deemed
as containing anything ‘prejudicial to public order or national security’. This decision
cannot be challenged in court. Additionally, ‘foreign’ papers and periodicals must pay
large deposits that may be forfeited if the publisher does not appear in court if charged
with publishing materials regarded as ‘prejudicial to national interest’. The government
also has the power to censor or ban offending ‘foreign’ publications.
Sedition Act 1948
Another legacy of the British colonial government, this law is invoked against ‘any act,
speech, words, publication or other thing’ that fuels any of the following, deemed as acts
with a ‘seditious tendency’:
1. Hatred/contempt/disaffection against any ruler or government
2. Revolt by unlawful means
3. Conflict and hostility between races and classes of Malaysians
4. Questions the ‘right, status, position, privilege, sovereignty or prerogative established
or protected’ by the Federal Constitution (Part III relating to citizenship, Article 152
on national language, Article 153 on the special rights of the Malays and natives
of Sabah and Sarawak, Article 181 on the powers of the ruling chiefs of Negeri
Sembilan)
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The only glimmer of hope the Najib
administration offered during this period
was in the Prime Minister’s eve of Malaysia
Day speech where he promised, as part of
the government’s Political Transformation
Programme, to review and amend a number
of repressive laws including the PPPA.3
Specifically, this meant that the annual
renewal permit for newspapers would be
abolished and replaced with a one-off licence.
Most media freedom advocates greeted this
news with a healthy dose of scepticism. Some
like Pewaju (Penang Chinese Journalists and
Photographers Association) felt that the offer
was too little and almost 30 years too late since
the law had already successfully bred a culture
of self-censorship in the time that it had been
allowed to operate.4 Regardless, the year
passed with the promise remaining a promise
while the Home Minister continued to wield
‘absolute discretion to approve, remove,
renew or impose conditions on licences given
to the print media’.5
In fact, the year had not begun on a good note
for the PPPA as the media reported that the
Home Ministry was working on modifying
the law to extend its reach to the Internet.
This would primarily be done by redefining
the term ‘publication’ to encompass online
content, and potentially includes blogs and
sites like Facebook and YouTube within its
ambit. According to the ministry’s SecretaryGeneral, Mahmood Adam, such a move
would ensure that the relevant laws kept
abreast with changes in the digital era.6 He
had also indicated that the amendments
would be tabled soon, as early as the March
sitting of Parliament. In an unusual turn,
Liew Vui Keong, a Deputy Minister in the
Prime Minister’s Department, immediately
contradicted this announcement, claiming
that the government had no such plan for
when Parliament next convened.7
Before the matter could be clarified, it was
reported that a cross-ministerial body –
comprising Home Minister Hishammuddin
Hussein; Information, Communications
and Culture Minister Rais Yatim; Minister
in the Prime Minister’s Department Nazri
Aziz and the Attorney General – would be
established to look into guidelines to regulate
news channels, including the Internet. The
Minister in the Prime Minister’s Department,
Nazri Aziz, argued that it was necessary to
subject online content to sedition guidelines
so that ‘national security’ could be preserved.8
The guidelines were not new laws as such but
rather, he continued, sought to elucidate what
the public could or could not do under six preexisting legislation: the Penal Code, the SA,
the FCA, PPPA, CMA and the ISA. He also
felt it necessary to state that this was not an
attempt at clamping down on press freedom
or online publications.
Civil society and media advocacy groups
were highly critical of this development and
its impact on the last bastion of free speech,
expression and information in the country.9
They argued that the amendment would
contravene the Multimedia Super Corridor’s
10-point Bill of Guarantees, which includes
the government’s promise not to censor the
Internet.10 Twenty-one NGOs also issued
a press statement that decried the lack of
transparency and public consultation in this
process.11 It was widely believed that this
move was motivated by the ruling party’s
desire to tackle online dissent before the next
polls. Blog and social networking sites had
been a major factor behind BN’s heavy losses
at the 2008 General Election. Rais Yatim’s
remark below best sums up the government’s
intentions:
“…[B]loggers or those who use the alternative
media should remember that the laws remain
in force no matter where they are. They are
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unscathed as law enforcers did not go after
them [before]. But from now onwards if
complaints are made, actions will be taken
against them…”12
Instead, the government chose to appoint
Blog House Malaysia, a bloggers’ association
as the representative of ‘new media’ on this
body.15
These reform attempts were stalled when the
Prime Minister, sensing the potential backlash
from the electorate, was forced to intervene
and assure the public that his government
would leave the Internet unregulated.
However, he also made it a point to highlight
his administration’s sacrifice given that social
networking sites were tools ‘used to attack
and defame anyone…[and] even be used to
topple a government’.13 For good measure,
he warned that those who broke the law (e.g.
sedition) could still be prosecuted. Indeed,
even without new laws or amendments
to censor cyberspace, but as the following
examples show, the government has been
able to continue intimidating and persecuting
those who spread what it deems as false
information.
Many practitioners were repelled by the idea
that the government should be involved in
such a body as opposed to leaving this in the
hands of those in the industry.16 They believed
this was an attempt by the authorities to coopt them, thus stifling ‘non-conformist’ views
particularly within the alternative media.17
At its first meeting, strong objections were
recorded and editors of leading media houses
argued that this body would further worsen
their credibility and circulation.18 Without
their backing, the proposal was abandoned
and the government was forced to revisit the
idea of supporting a “self-regulating” press
council.19
1.1.2 The National Media Consultative
Council
Also in the course of the year, the Federal
government proposed that a Media
Consultative Council be set up, jointly led
by two Ministers – Rais Yatim, the Minister
of Information, Communications and
Culture, and Hishamuddin Hussein, the
Home Minister. The body’s stated aims
were to promote greater media-government
collaboration and improve ties to ensure that
‘national interests are protected and upheld’.
It was also tasked with ‘instilling patriotism’,
and claimed that it would seek to ‘guarantee
media freedom in accordance to the law (italics
added)’.14 In terms of membership, besides
a large government presence, news portals
like Malaysiakini, The Malaysian Insider,
Free Malaysia Today, and Merdeka Review
were not invited to be part of this initiative.
1.2 States under Pakatan Rakyat rule
1.2.1 Positive developments: Enactment
of FOI legislation
Against the Federal government’s resistance
to promoting civil liberties, the Selangor state
administration’s decision to enact a historic
Freedom of Information legislation can be
regarded as a major breakthrough. On 1st
April 2011, the state passed the Freedom of
Information bill that enabled members of
the public to freely access information that it
held.20 First tabled in July 2010, the revised
bill had gone through a Select Committee
that considered suggestions from various
stakeholders and represented a marked
improvement from the first bill.
Nevertheless, there remained room for
change, for example, with regards to clarifying
procedures for the appointment of members
to the State Information Board under Section
17(2).21 Section 18(1) also stipulates that it is an
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offence to use the information one obtains for
reasons other than what s/he stated in their
application. Further, unlike other countries
with the same law, this version is not proactive
in disclosing information through periodic
publications which could help increase the
transparency of public institutions.22
Just over six months later, the Penang state
assembly followed suit by passing its version
of a Freedom of Information law. Originally
tabled in October 2010, the government
conducted three rounds of public consultation
before adopting many of the amendments
that had been proposed.23 Like Selangor, the
final bill was vastly superior to the one initially
tabled at the Legislative Assembly.
1.2.2 Negative developments
Notwithstanding
these
groundbreaking
developments in Penang and Selangor, PRled state governments also came under fire
for mimicking their Federal counterparts
and being reactionary to criticisms of their
administration. In Penang and Kelantan, both
state governments banned Utusan Malaysia
from covering proceedings of their legislative
assemblies on grounds that its reports were
false or biased.24 Kelantan also forbade the
newspaper from functions that involved
its Mentri Besar, Nik Aziz Nik Mat, while
Penang continued an informal boycott of the
two BN-owned newspapers, Utusan Malaysia
and the New Straits Times by not inviting them
to state-organised press conferences.25
Censorship of expression was not limited
to actions of State legislatures alone. In
November 2011, Malaysiakini reported that
the Majlis Agama Islam Selangor (“MAIS”,
Selangor Islamic Council) had banned Aziz
Bari from speaking at a national seminar at
the Kolej Universiti Islam Selangor (“KUIS”).
Aziz was then law professor at Universiti
Islam Antarabangsa, and had been invited
to speak on the subject of Syariah Criminal
Law and the Malaysian Constitution. He had
also been embroiled in a controversy around
the Jabatan Agama Islam Selangor’s (“JAIS”)
raid of a multiethnic function at the premises
of a church (see below for details). KUIS
was a higher education institution owned
by MAIS.26 This religious body – whose
members are appointed, not elected – had
also utilised the powers it has under Syariah
law to reign-in two popular PAS leaders in the
state: Khalid Samad, Shah Alam Member of
Parliament and Rani Othman, Selangor PAS
Commissioner. Both were prevented from
speaking at local mosques. MAIS claimed
that it was going by a decree of the Sultan of
Selangor that forbade politicians from giving
speeches in either mosques or surau in the
state.27
As several of the case studies below illustrate
too, expressions of sexuality have not been
spared from restrictions either. Apart from
Federal and State lawmakers, politicians and
religious figures, local councils also jumped
into the fray to regulate bodily expressions.
In March 2011, the Majlis Bandaraya Shah
Alam (“MPSA”, Shah Alam City Council)
announced that it would no longer issue
licences for advertisements which featured
anything related to sex or the supernatural.
The Mayor, Mazalan Md Noor claimed that
the MBSA had taken action as it had received
many complaints on the matter.28
2. Freedom of Expression
2.1 Violations of freedom of expression
There were numerous episodes throughout
the year where action had been taken to
prevent or persecute certain individuals and
organisations for speaking out on particular
issues. Of these, the most contentious centred
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on anyone or group perceived as challenging
authority and ranged from how history
has been constructed to the powers of the
monarchy and what counts as ‘Islamic’.
Case 1: Hata Wahari
Press freedom in Malaysia suffered a major
blow with the sacking of Hata Wahari, a
senior journalist from the UMNO-owned
Utusan Malaysia.29 In 2010, in his capacity as
president of the National Union of Journalists
(NUJ),30 Hata had blamed Utusan’s dwindling
circulation on its editorial policies which he
argued, politicised ethnic issues and created
social discord. He had also criticised the
paper’s failure to be objective and independent
in its coverage, choosing instead to be proUMNO in its reports.31 After subjecting him
to a domestic inquiry, Hata was terminated
on grounds that his statements to other media
on this matter had tarnished the company’s
name.
Case 2: Mohamad Sabu
In September 2011, the BN government
charged Mohamad Sabu, PAS deputy
president, under Section 500 of the Penal
Code for allegedly defaming the police
personnel (and their families) who were
involved in the 1950 Bukit Kepong incident.
Historically held up as an episode in which
26 members of the force had fought to death
to defend their station against a communist
attack, Mat Sabu – as the politician was
more popularly known – was punished for
going against this narrative. In a speech
he delivered the previous month in Tasik
Gelugor, Penang, he had instead referred
to Mat Indera, the man who led the attack
against the Bukit Kepong police station, as
a freedom fighter. The authorities deemed
this as criminal defamation, a charge which
carries a maximum jail sentence of two years
and/or a fine.32 If convicted, Mat Sabu will be
ineligible to contest at the forthcoming polls.
Mat Sabu claimed that hyped-up by ‘libelous’
reports which media like Utusan Malaysia
generated against him, several people had
threatened him including one who said that
he would splash acid at Mat Sabu’s wife and
daughter.33 His home was later subject of an
attempted arson attack34 and the politician
also had to contend with threats of mass
protests by Perkasa if he did not apologise
for his Bukit Kepong remarks.35 PAS
questioned the Prime Minister’s sincerity in
implementing democratic reforms, when he
blatantly flouted the promise he made just a
week before Mat Sabu was charged, i.e. that
no individual would be persecuted for their
political beliefs.36
President of Perkasa, Ibrahim Ali maintained that it is Perkasa’s
right to stage a protest against Mat Sabu if no apology is
forthcoming. (Photograph courtesy of Malaysiakini)
Case 3: Abdul Aziz Bari
Another figure barred from questioning
the authority of the ruling party and its
state apparatuses was Abdul Aziz Bari,
constitutional law expert at the Universiti
Islam Antarabangsa. Aziz had waded into the
controversy over the JAIS raid on a church,
the Damansara Utama Methodist Church
(“DUMC”)37 by commenting on the Sultan’s
views about the matter. This was deliberately
twisted as insulting the Sultan of Selangor,38 the
official head of Islam in the state. Aziz ended
up being suspended by the university. The
police and the Malaysian Communications
and Multimedia Commission (“MCMC”)
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The PKR representative was arrested and
charged under Section 4(1) (c) of the Sedition
Act 1948 for allegedly posting subversive
blog content about the Sultan of Selangor.
If convicted, he stands to be fined up to
RM5,000.00 or three years’ imprisonment.
The Selangor assemblyperson had denied
that his post was about the Sultan but he
continued to be attacked by the right-wing
ethno-nationalist group Perkasa, which
demanded that the politician be hanged for
waging ‘war’ against the monarchy.40
Constitutional Law Expert, Professor Dr Abdul Aziz Bari
commenting on his suspension from Universiti Islam
Antarabangsa following his comments on the Damansara Utama
Methodist Church raid by Jabatan Agama Islam Selangor
later investigated him under the Sedition Act
and the Communications and Multimedia
Act respectively. Additionally, he received
an envelope containing a bullet and a death
threat warning him not to disrespect the
Sultan.39
Constitutional Law Expert, Professor Dr Abdul Aziz Bari
commenting on his suspension from Universiti Islam
Antarabangsa following his comments on the Damansara Utama
Methodist Church raid by Jabatan Agama Islam Selangor
Case 4: ‘Dissident’ bloggers
The authorities also harassed and censored
bloggers in the course of the year. Those
aligned to the opposition came under heavy
scrutiny as the experience of Shuhaimi
Shafiei, Seri Muda assemblyperson, attests.
Ordinary Malaysians were not spared either.
The police questioned blogger Chan Lilian
under the Sedition Act 1948 and Police Act
1967, and seized her computer and modem
after another blogger alleged that her tweet on
29th June 2011 had ‘incited’ Christians to go
against the Federal government. Furthermore,
the Inspector General of Police, Ismail Omar,
was reported as saying that he would look
into ‘investigating disrespectful comments’
on Prime Minister Najib’s Facebook page.41
Although the MCMC dropped the case
against another blogger, Hassan Skodeng,
the Centre for Independent Journalism
(“CIJ”) argued that it was disturbing that the
matter had been drawn out this far. This, the
NGO said, made the MCMC appear “…to
be sending a disturbing message to bloggers
that satire would not necessarily be tolerated,
in direct contradiction of its own code…”
Further, it argued that “…the law invoked against
the blogger (Section 233(3) (1) (a) of the CMA) was
too broad and could be abused to ‘threaten or harass
online users…”42
Case 5: Seksualiti Merdeka
The freedom to express one’s sexual and
gender identity was another controversial
subject that came under severe attack in
2011. Like a number of contentious incidents
throughout the year, this started after a
front-page report by Utusan Malaysia drew
63
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Ambiga Sreenevasan was accused of promoting free sex and unnatural sex by officiating the opening of Seksualiti Merdeka 2011.
attention to an initiative called Seksualiti
Merdeka43. Run by a group of individuals and
organisations supportive of sexuality rights, its
programmes had taken place without trouble
for three years running. In 2011, however,
Utusan chose to sensationalise the initiative,
themed ‘Queer without Fear’, by going to town
with a series of articles that demonised not
only the lesbian, gay, bisexual and transsexual
(LGBT) communities, but also BERSIH 2.0
leader, Ambiga Sreenevasan. Amongst other
claims, Utusan accused Ambiga of promoting
‘free sex’ and ‘unnatural’ sex. Politicised in
this manner, it was only a matter of time that
the police swooped in to ban the event two
days later. They called in over 50 persons
for questioning and investigated them under
Section 298(A) of the Penal Code and Section
27A (1) (c) of the Police Act 1967.44
Responding to criticisms that the police had
no authority to act in this manner, Deputy
Inspector-General of Police Khalid Abu
Bakar retorted “…anything to do with the rights
of lesbians and homosexuals is out [of the question],
no way…”45 International human rights
body, Human Rights Watch reminded the
government that it had committed itself to
upholding the highest standards of human
rights when it was elected onto the UN Human
Rights Council earlier in the year. Banning
the festival not only went counter to this
promise, but also contradicted the Council’s
June 2011 resolution on ‘Human Rights,
Sexual Orientation and Gender Identity’ that
expressed the Council’s “…grave concern at acts
of violence and discrimination in all regions of the
world, committed against individuals because of their
sexual orientation and gender identity…”46
Case 6: Poco-poco
Women’s ability to express themselves through
dance also came under attack in 2011. Pocopoco (a local dance that resembles line dancing)
has been very popular among some groups of
Malaysian women, Muslims and non-Muslims
64
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alike. In April 2011, the media reported that
the mufti of Perak, Harussani Zakaria, had
issued a fatwa prohibiting Muslim women
from performing the poco-poco. Fatwa, which
are meant to be legal opinions, are given
the force of law in Malaysia once they are
gazetted. Harussani claimed that this fatwa
was needed because the dance had Christian
and cult origins, and hence was unsuitable for
Muslims. He ignored the fact that the dance
has long been practised – at least 20 years –by
women (but also some men) from all walks of
life, and that many do so to keep fit.47
Case 7: Anti-Lynas
The Atomic Energy Licensing Board (“AELB”)
of Malaysia was accused of withholding
information pertaining to the contentious
Lynas Advanced Materials Plant being built
in Gebeng, Pahang. According to Member of
Parliament for Kuantan and a loud advocate
of the anti-Lynas campaign, Fuziah Salleh,
, the original report from the International
Atomic Energy Agency had stipulated that
the company behind this venture, Lynas
Corporation, needed to produce “…a better
long-term waste management plan…”48 Instead,
the AELB had used Section 41 – the provision
dealing with secrecy – of the Atomic Energy
Licensing Act 1984 to deny the public any
information of this nature.49 Later Fuziah
also claimed that a leading talk radio station
abruptly cancelled her interview, implying
that they had been pressured to do so “…dari
orang atas…” (from the top). The producer of
the show denied this allegation, and blamed
the cancellation on a miscommunication.50
Case 8: Media ownership
Besides restrictive laws, it is well known
that the BN’s ownership of key media
establishments has tremendously helped in
the ruling government’s efforts to muzzle
those critical of its rule or dare to express
views that are different to the projected
norms. The UMNO-controlled Media Prima,
for example, controls ‘five newspapers, four
commercial television channels, three radio
stations and a clutch of outdoor advertising
companies’.51 As the coverage of events
such as BERSIH 2.0, Seksualiti Merdeka,
and the suspensions of Hata Wahari and
Aziz Bari reveal, the mainstream media is
overwhelmingly biased against those whom
the authorities perceive or identify as threats.
This may explain Malaysia’s ranking of 144
out of 197 countries in the Freedom House’s
global report on the state of press freedom,
released in 2012.52
2.2 Positive developments
Universities and University Colleges
Act 1971
The freedom of association of tertiary students
in Malaysia is severely curtailed through this
legislation. Under Section 15, for example,
no student or student body is permitted to
join, support or even show ‘sympathy’ for
‘any society, political party, trade union or
any other organization…’ unless they obtain
written approval in advance from the ViceChancellor. Those guilty of breaking this law
face a fine of up to RM1,000 and/or a six
month jail term.
At the end of October 2011, the Court of
Appeal managed to buck the trend above by
ruling that Section 15(5) of the Universities
and University Colleges Act 1971 (“UUCA”)
– which gives public universities the authority
to take disciplinary action against students
involved in politics – was unconstitutional
and violated the freedom of expression.53
The 2-1 majority decision by judges Mohd
Hishamudin Mohd Yunus and Linton Albert
(Low Hop Bing, dissenting judge) overturned
the Kuala Lumpur High Court decision which
deemed the UUCA as constitutional. The
appellants were four students from Universiti
65
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Student activists in mock coffins protesting against the oppressive Universities and University Colleges Act 1971 (Photograph courtesy
of Malaysiakini)
Kebangsaan Malaysia – Muhammad Hilman
Idham, Muhammad Ismail Aminuddin, Woon
King Chai and Azlin Shafina Mohd Adzha
–who had been arrested in April 2010 for
allegedly participating in the Hulu Selangor
by-election. Prior to that the university had
also initiated disciplinary proceedings against
them but the Board had found the four not
guilty.54
Not all welcomed this landmark ruling.
Gabungan NGO Malaysia, for example, urged
the BN government to defend and uphold
the UUCA claiming that students would not
respect lecturers if they were allowed to hold
different political ideologies from the latter.55
Nazri Aziz, de facto Law Minister, attempted
to downplay the ruling, saying that it was
only ‘an opinion of the court’, i.e. not legally
binding on the government. His statement
did not go down well even within his own
coalition where three fellow Member of
Parliament openly disagreed with him. One,
Deputy Higher Education Minister, Saifuddin
Abdullah, also said he had met with several
Cabinet ministers to persuade them not to
lodge an appeal at the Federal Court as even
if it won, it would have lost on moral grounds.
The trio, however, were not in favour of
repealing the UUCA, only in amending it.56
3. Freedom of Information
3.1 Violations of freedom of information
Case 1: The Al-kitab ban
In March 2011, it was reported that the
authorities had seized thousands of Malaylanguage Bibles. Five thousand copies had
been held in Port Klang since the end of 2009,
while another 30,000 were confiscated more
recently when they reached Kuching port.
Imported from Indonesia for distribution in
Sabah and Sarawak, these were impounded
because they contained the word ‘Allah’. The
Home Ministry’s Publication and Qur’anic
Texts Control Division attributed the ban to
a 1986 Cabinet directive, which prohibited
66
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The controversial Al-Kitab bearing “Perjanjian Baru Mazmur dan Amsal ini Untuk Kegunaan Penganut Agama Kristian Sahaja”
non-Muslims from using the terms ‘Allah’,
‘Solat’, ‘Kiblat’ and ‘Kaabah’.57The Minister
added that the books could not be released
since there was a case pending in court to
challenge this ruling.58
Bibles. While these copies would also be
spared of any stamp or serial number, those
in West Malaysia had to have the words
‘Christian Publication’ and bear a sign of the
cross on the front cover.60
The matter was further complicated when the
Christian Federation of Malaysia said that
the Prime Minister had given his assurance
at the end of 2009, that Malay-language
bibles could be freely circulated in Sabah and
Sarawak. In response to this situation, the
Federation’s chairperson Bishop Ng Moon
Hing said “…It would appear as if the authorities
are waging a continuous, surreptitious and systematic
programme against Christians in Malaysia to deny
them access to the Bible in Bahasa Malaysia…”59
The matter was put to rest when the Cabinet
agreed on a 10-point solution that included
letting Christians in East Malaysia freely
import and locally print Malay language
Case 2: Radio Free Sarawak
Radio Free Sarawak (“RFS”), an alternative
voice to the government-controlled media
in the State, came under scrutiny in March
2011. This happened after the youth wing of
Parti Pesaka Bumiputera Bersatu Sarawak
– whose head is the Chief Minister Taib
Mahmud – made a police report about its
activities. Announcing that the government
would probe into the matter, Home Minister
Hishammuddin Hussein said, “…This is not
about politics. This is about spreading malicious lies,
the issue of unity and harmony among the races…”61
Earlier, the station’s disc jockey, Peter John
Jaban, claimed that due to his activities
67
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with RFS, his family in Kuching had been
subjected to harassment by the authorities.62
During the Sarawak State election, RFS had
also alleged that a hired agent in Belgium had
jammed its broadcasts.63
Case 3: Sex Manual by the Obedient
Wives Club
The controversial women’s group, the
Obedient Wives Club64– part of the group
Global Ikhwan which is an off-shoot of the
banned Al-Arqam movement – was thrown
into the spotlight with an oddly-named
publication Seks Islam: Perangi Yahudi untuk
kembalikan seks Islam kepada dunia (Islamic Sex:
Fighting against Jews to return Islamic sex to
the world). A hundred-and-twenty-eight pages
long, this pocket-sized manual came under
heavy fire not only for being explicit about sex,
but also in foregrounding women (specifically,
wives) as proactive sexual agents.65 Among
the offending passages cited by detractors was
one which was interpreted as encouraging a
Muslim man to have sex simultaneously with
all four wives. Significantly, critics cut across
the divide from women’s groups to religious
bodies. The Home Ministry’s Publication and
Qur’anic Texts Control Division eventually
banned the publication citing two grounds:one, the group’s links to the banned Al-Arqam
movement; and two, that the contents of the
manual contravened JAKIM’s guidelines for
Islamic publications.66
Case 4: Undilah
A public service announcement devised to
encourage young Malaysians to register as
voters and to participate at the forthcoming
polls was yet another casualty of the censorship
axe. Undilah, a four-and-a-half minute video,
featured various personalities including
politicians from both PR and BN. The
Minister of Information, Communications
and Culture, Rais Yatim, said that the
MCMC had directed the two largest networks
in the country (Astro and Media Prima) not
to air the video because “…it offended certain
segments of society…” He further said that there
were “…subliminal messages aimed at influencing
the audience…”67 There was some level of
confusion again as the Prime Minister had
supposedly already clarified that there was no
ban. The MCMC directive was also criticised
by certain quarters within the ruling party,
again demonstrating a push from within
to recognise the importance of opening up
spaces for free speech and expression. It was
earlier reported that the video-clip was barred
because it featured prominent political leader
and dissident UMNO Member of Parliament,
Tengku Razaleigh Hamzah, stating that there
were “…many problems…” in the country.68
Case 5: Community programme by
Sisters in Islam
A three-day programme that Muslim women’s
rights organisation Sisters in Islam was
scheduled to conduct in Penang was stopped
at the last minute by the assemblyperson for
the area, Makhtar Sapee (Sungai Bakap).
He had objected to the group using ‘Islam’
in its name which he claimed, was ‘too
controversial’.69 He said he would only allow
the programme to proceed if the NGO did
not name itself as an organiser. A PKR
assemblyperson, Makhtar politicised the issue
further by alleging that Sisters in Islam was
supported by UMNO, whereas that those in
the area were PAS and PKR supporters. The
programme was to raise Muslim women’s
awareness on legal reforms, and had been
confirmed one-and-a-half months earlier.70
Case 6: My Balik Pulau booklet
Ultranationalist Malays took to burning
multiple copies of ‘My Balik Pulau’ to prevent
its circulation as a tourism booklet in Penang.
They called the publication dangerous as it was
underlined by ‘political and racist motives’, as
well as distorted history and insulted Malays
68
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in Penang. The group Gabungan Bela Hak
Insan (Gabungan) comprising Persatuan
Anak Jati Melayu, Badan Anti-Islam Liberal,
International Islamic Propagation Society and
Sekretariat Dakwah demanded that the state
take action against the NGO behind it, Arts
Ed. Further, even though the current Chief
Minister claimed that the booklet was funded
under the previous BN state government,
Gabungan insisted that his administration
ban it, failing which they would turn to the
Home Ministry. The booklet first came into
question after Pulau Betong assemblyperson,
Muhammad Farid Saad, had highlighted the
matter in Utusan Malaysia.71
4. Recommendations
i.
Repeal the Sedition Act, the Printing
Presses and Publications Act, Official
Secrets Act, and the Film Censorship
Act to ensure freedom of expression and
information.
ii. Enact a Freedom of Information Act
at the Federal and State levels which is
reflective of the peoples’ right to know,
with public interest as the overriding
principle.
iii. Prevent the monopoly of ownership of
the press and broadcasting stations, and
prohibit ownership by political parties.
iv. Ensure that state-run broadcast media
is independent and non-partisan,
answerable to Parliament and not the
Ministry of Information.
69
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End Notes
‘NGOs “horrified” by PPPA proposal’,
Malaysiakini, 31 Jan 2011, <http://
1 Feb 2011.
1
Uthayakumar was also seeking to have a 2007
sedition charge (for publishing a ‘seditious’
letter on the Police Watch Malaysia website)
against him dropped.
9
2
‘Sedition Act stays, says KL High Court’,
Malaysiakini, 26 Jan 2011, <http://
malaysiakini.com/news/ 154504>, Accessed:
27 Jan 2011. The judge had also rejected
Uthayakumar’s application for sedition
charges against him to be dropped.
10 See ‘The MSC Malaysia Bill of Guarantees’,
Website of MSC Malaysia, <http://www.
mscmalaysia.my/topic/MSC+Malaysia+Bill
+of+Guarantees>, Accessed: 2 Feb 2011.
3
The other laws identified for change included
the ISA, Emergency Ordinance, Restricted
Residence Act, Banishment Act, Police Act,
and the University and University Colleges
Act.
4
‘Penang journalists: Genuine reforms
please’, Malaysiakini, 17 Sept 2011, <http://
18 Sept 2011.
5
According to the Centre for Independent
Journalism, this was one of the factors that may
have resulted in Malaysia being categorised as
‘not safe’ for the press in 2011, as indicated
in the Freedom of the Press Report released
by Freedom House in 2012. See ‘Malaysia
ranked 29th in Asia-Pacific press freedom
index’, The Star, 5 May 2012, <http://thestar.
nation/11228 567&sec=nation>, Accessed: 5
May 2012.
6
‘Online sites to be included under PPPA’,
Malaysiakini, 25 Jan 2011, <http://malaysiakini.
com/news/154483>, Accessed: 26 Jan 2011.
7
‘No change to publishing law in March:
Liew’, Malaysiakini, 27 Jan 2011, <http://
28 Jan 2011.
8
‘Gov’t ready to contravene MSC’s bill of
guarantees’, Malaysiakini, 26 Jan 2011,
<http://malaysiakini.com/news/154562>,
11 ‘Net Censorship’ forum urges govt to allow selfregulation’, The Star, 10 Feb 2011, <http://thestar.
Feb 2011. See also ‘Bar Council slams plan
to amend PPPA’, Malaysiakini, 28 Jan 2011,
12 ‘Guidelines on media laws to be tabled in
cabinet’, Malaysiakini, 2 Feb 2011, <http://
malaysiakini.com/news/155176>, Accessed: 3
Feb 2011.
13 ‘Gov’t won’t suppress cyberspace, says
PM’, Malaysiakini, 17 Feb 2011, <http://
18 Feb 2011.
14 ‘New portals excluded from govt’s media
council’, Malaysiakini, 25 Jul 2011, <http://
26 Jul 2011. The patron of Blog House is
former premier Mahathir Mohamad.
15 ‘The patron of Blog House is former premier
Mahathir Mohamad. ibid.
16 The push for a self-regulating body goes back
as far as the 1970s but the government has
consistently rejected this call. ‘Media veteran
pooh-poohs gov’t council’, Malaysiakini, 3
May 2011, <http://malaysiakini.com/news/
163097>, Accessed: 4 May 2011.
17 ‘Dons: Media council plan a bit to combat
dissent’, Malaysiakini, 27 Jul 2011, <http://
malaysiakini.com/ news/171151>, Accessed:
28 Jul 2011.
70
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8/18/12 2:03 PM
18 ‘Gov’t yet to drop media council proposal’,
Malaysiakini, 27 Jul 2011, <http://malaysiakini.
com/news/171218>, Accessed: 28 Jul 2011.
revives
“self-regulatory”
press
19 ‘Gov’t
council’, Malaysiakini, 16 Sept 2011, <http://
17 Sept 2011.
20 ‘Selangor passes freedom of information
enactment’, The Malaysian Insider, 1 Apr 2011,
malaysia/article/selangor-passes-freedomof-information-enactment>, Accessed 6 Dec
2011. See also ‘CIJ: Still some dark clouds
over sunshine law’, Malaysiakini, 2 Apr 2011,
21 This body deals with appeals for rejected
applications as well as recommendations for
improvement.
22 ‘Approval of freedom of information bill
historic’, The Sun, 4 Apr 2011, <http://
www.thesundaily.my/news/local/approvalfreedom-information-bill-historic>, Accessed:
6 Dec 2011.
23 ‘Penang adopts FOI bill despite BN
opposition’, Malaysiakini, 5 Nov 2011, <http://
6 Dec 2011.
24 See ‘Utusan banned from next Penang assembly’,
Malaysiakini, 10 May 2011, <http://malaysiakini.
com/ news/163716>, Accessed: 11 May 2011;
and ‘K’tan bans Utusan from MB’s functions’,
Malaysiakini, 18 Jun 2011, <http://malaysiakini.
com/news/167309>, Accessed: 19 Jun 2011.
25 Ding Jo-Ann and Jacqueline Ann Surin (2012),
Freedom of Expression in Malaysia 2011: An annual
review by Centre for Independent Journalism, Kuala
Lumpur: Centre for Independent Journalism.
26 ‘Selangor Islamic council puts bar on Aziz
Bari’, Malaysiakini, 23 Nov 2011, <http://
24 Nov 2011.
27 ‘Mosques in Selangor told not to invite
politicians for talks’, Malaysiakini, 8 Sept
2011,
<http://www.malaysiakini.com/
news/175242>, Accessed: 9 Sept 2011.
28 ‘Ban on sexy, superstitious ads in Shah
Alam’, Malaysiakini, 6 Mac 2011, <http://
7 Mac 2011.
29 ‘NUJ president sacked from Utusan’,
Malaysiakini, 2 May 2011, <http://
3 May 2011.
30 He subsequently stepped down from this post
after he was sacked.
31 According to Hata, his “crime” was issuing a
press statement ‘asking the editors to please
go back to our [their] real function, to submit
unbiased information to the public.’ He also
alleged that Utusan was spreading government
propaganda and racialising issues. ‘Umnoowned mouthpiece seeks to muzzle truth
teller’, Malaysiakini, 8 Jan 2011, <http://
9 Jan 2011.
32 ‘Defaming the dead possible under criminal
defamation’, Malaysiakini, 23 Sept 2011,
33 ‘Acid attack threat against Mat Sabu’s wife and
daughter’, Malaysiakini, 8 Sept 2011, <http://
9 Sept 2011.
34 ‘Police probe arson attack on Mat Sabu’s
house’, Malaysiakini, 20 Sept 2011, <http://
21 Sept 2011.
71
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35 ‘Mat Sabu unfazed by Perkasa warning’,
Malaysiakini, 29 Sept 2011, <http://malaysiakini.
com/news/177235>, Accessed: 30 Sept 2011.
36 ‘PAS: PM breaking promise with Mat Sabu
charge’, Malaysiakini, 21 Sept 2011, <http://
22 Sept 2011.
37 JAIS justified the raid claiming that the
organisers of the dinner, an NGO called
Harapan Komuniti, had broken the law by
proselytising to Muslims at the event. The 12
present were later sent for religious counselling.
38 Aziz had said that the Sultan’s decree that
no group should be prosecuted over the
controversial church search was ‘unconventional
and inconsistent’. See ‘UM law lecturer defends
Aziz Bari’, Malaysiakini, 26 Oct 2011, < http://
Oct 2011; and ‘Prof gets show-cause letter over
statements on church issue’, The Star, 21 Oct 2011,
<http://thestar.com.my/news/story.asp?file=/
2011/10/21/nation/9743465&sec=nation>,
39 ‘UIA’s Dr Aziz Bari receives bullet and warning
note’, The Star, 29 Oct 2011, <http://thestar.
com.my/news/ story.asp?file=/2011/10/29/
nation/20111029170516&sec=nation>,
40 ‘Shuhaimi to be charged on Monday’,
Malaysiakini, 3 Feb 2011, <http://malaysiakini.
com/news/155194>, Accessed: 4 Feb 2011.
43 ’20 NGO anjur Seksualiti Merdeka’,
Utusan Malaysia, 2 Nov 2011, <http://
utusan.com.my/utusan/info.
asp?y=2011&dt=1102&pub=utusan_
malaysia&sec=Muka_Hadapan&pg=mh_01.
htm&arc=hive>, Accessed: 3 Nov 2011.
44 ‘Police ban Seksualiti Merdeka festival’,
Malaysiakini, 3 Nov 2011, <http://
4 Nov 2011; ‘Seksualiti Merdeka: Cops to quiz
more witnesses’, Malaysiakini, 12 Nov 2011,
Accessed: 13 Nov 2011.
45 ‘Police ban Seksualiti Merdeka festival’,
Malaysiakini, 3 Nov 2011, <http://
4 Nov 2011.
46 ‘Malaysia: Reverse ban on sexual diversity
festival’, Human Rights Watch, 8 Nov 2011,
<www.hrw.org/news/2011/11/08/malaysiareverse-ban-sexual-diversity-festival>,
47 ‘Perak cleric bans “Christian” line dance’,
Malaysiakini, 1 Apr 2011, <http://malaysiakini.
com/news/160378>, Accessed: 2 Apr 2011.
48 ‘AELB not forthcoming with info on Lynas
plant’, Malaysiakini, 6 Dec 2011, <www.
malaysiakini.com/news/ 183337 >, Accessed:
7 Dec 2011.
49 ibid.
41 ‘Suaram ticks off cops for probe on blogger
Chan’, Malaysiakini, 1 Aug 2011, <http://
2 Aug 2011.
50 ‘Radio station “did not can” anti-Lynas
interview’, Malaysiakini, 21 Dec 2011, <http://
42 Hassan, whose real name is Irwan Abdul
Rahman, posted a satirical piece involving
Tenaga Nasional Bhd for which he was
charged with ‘intending to hurt others’.
See ‘CIJ remains disturbed over satire
suit’, Malaysiakini, 17 Mac 2011, <http://
18 Mac 2011.
51 Ding Jo-Ann and Jacqueline Ann Surin (2012),
Freedom of Expression in Malaysia 2011: An annual
review by Centre for Independent Journalism, Kuala
Lumpur: Centre for Independent Journalism.
72
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52 Freedom House (2012), Press Freedom in 2011:
Breakthroughs and pushbacks in the Middle East,
<http://www.freedomhouse.org/sites/
default/files/FOTP%202012%20Booklet.
pdf>, Accessed: 4 Jun 2012.
53 ‘Section 15 of UUCA unconstitutional, rules
court’, Malaysiakini, 31 Oct 2011, <www.
malaysiakini.com/ news/180024 >, Accessed:
1 Nov 2011.
54 In his 21-page judgement, Justice Hishamudin
wrote that the freedom of expression:
[I]s fundamental to the existence of democracy
and the respect of human dignity. This basic
right is recognised in numerous human rights
documents such as Article 19 of the Universal
Declaration of Human Rights and Article 19
of the International Covenant on Civil and
Political Rights… I am at a loss to understand
in what manner a student, who expresses
support for, or opposition against a political
party, could harm or bring about an adverse
effect in public order or public morality…
(ibid.)
55 ‘Akta Universiti dan Kolej Universiti perlu
dipertahan’, Utusan Malaysia, 2 Nov 2011,
<http://www.utusan.com.my/utusan/
info.asp?y=2011&dt=1102&pub=Utusan_
Malaysia&sec=Kampus&pg=ka_01.htm>,
56 ‘KJ rebuts Nazri: Court decisions legally
binding’, Malaysiakini, 3 Nov 2011, <http://
malaysiakini.com/ news/180413 >, Accessed:
4 Nov 2011.
57 ‘Bible ban based on 1986 cabinet decision’,
Malaysiakini, 11 Mac 2011, <http://
12 Mac 2011. It should also be noted that
this prohibition has also been codified under
Syariah law. See for example the Selangor
Enakmen Ugama Bukan Islam (Kawalan
Pengembangan di Kalangan Orang Islam)
Section 9 Schedule.
58 This court case goes back to 2009 when the
Catholic Church went to court after the Home
Ministry revoked the annual permit for its
publication ‘Herald’ because its usage of
‘Allah’ contravened the 1986 Cabinet ruling.
After the Court ruled in favour of the Church,
the Ministry went to the Court of Appeals on
grounds of safeguarding national security, and
averting confusion among Muslims. ibid.
59 ‘Group: PM consented to BM bibles’,
Malaysiakini, 10 Mac 2011, <http://malaysiakini.
com/news/158242>, Accessed: 11 Mac 2011.
60 ‘Gov’t lifts ban on printing of Malay bibles’,
Malaysiakini, 2 Apr 2011, <http://malaysiakini.
com/news/ 160443>, Accessed: 3 Apr 2011.
61 ‘Home Ministry to probe Radio Free Sarawak’,
Malaysiakini, 8 Mac 2011, <http://www.
9 Mac 2011. The station operates from the
United Kingdom and is helmed by journalist
Claire Rewcastle Brown and social activist
Peter John Jaban.
62 ‘DPM rubbishes Radio Free S’wak harassment
claim’, Malaysiakini, 5 Mac 2011, <http://
6 Mac 2011.
63 ‘Anti-Taib radio returns to the airwaves
this week’, Malaysiakini, 3 Oct 2011, <www.
4 Oct 2011.
64 Set-up in June 2011, the group – which takes
off from the now-defunct Polygamy Club, setup in 2009 – has drawn much criticism for
encouraging women to practise unqualified
devotion to their husbands. When first
launched, it was ridiculed for supposedly
encouraging women to behave like sex workers
in bed to satisfy their husband’s sexual desires.
See ‘Club to coach wives to be whores in bed’,
Malaysiakini, 4 Jun 2011, <http://malaysiakini.
com/news/166038>, Accessed: 5 Jun 2011.
73
SUARAM-2011.indb 73
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65 At a press conference to clarify the aims of
the manual and the Obedient Wives Club, its
Malaysian chapter chairperson claimed that
portions of the manual had been misrepresented.
‘Sex guide not un-Islamic, says Obedient Wives
Club’, Malaysiakini, 21 Oct 2011, <http://
Oct 2011.
66 ‘OWC’s sex guidebook banned, says report’,
Malaysiakini, 2 Nov 2011, <http://malaysiakini.
com/news/180356>, Accessed: 3 Nov 2011.
67 ‘Umno youth chief against banning of Undilah
video’, Malaysiakini, 1 Oct 2011, <www.
Oct 2011.
68 ‘MCMC must explain pulling plug on Undilah
video’, Malaysiakini, 23 Sept 2011, <http://
Sept 2011.
69 The religious right that objects to the
organisation’s use of ‘Islam’ in its name has
made various attempts to get it to drop this term.
See for example, ‘Court rules in favour of Sis’,
The Star, 30 Oct 2010, <http://thestar.com.my/
news/story.asp?sec=courts&file=/2010/10/30/
courts/7327961>, Accessed: 1 Nov 2010.
70 ‘PKR rep cancels forum abruptly, frustrating
SIS’, Malaysiakini,27 May 2011, <http://
May 2011.
71 ‘Malay NGOs set fire to “My Balik Pulau”
booklet’, Malaysiakini, 9 Feb 2011, <http://
Feb 2011.
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CHAPTER 4:
FREEDOM OF ASSEMBLY AND ASSOCIATION
SUARAM-2011.indb 75
8/18/12 2:03 PM
T
wo other long-standing human rights
concerns in the country relate to the
violations around the freedom of
assembly and association. In 2011, contrary
to Prime Minister Najib Razak’s assurances of
political reform towards greater democracy,
Malaysians and other observers witnessed
the BN government’s dogged resistance to
upholding these basic rights. This was clearest
in its handling of the over 50,000-strong
BERSIH 2.0 rally in the middle of the year,
and the Peaceful Assembly Bill, mocked by
some as the Restricted Assembly Act, which
it hurriedly introduced before the year was
over. Both showed as well, how impossible it
was for the state to marry two incongruous
objectives, at one level its promise to protect
constitutional rights, and at another, its desire
to continue to stifle dissent (couched in terms
of maintaining public order).
The latter also meant that opposition political
parties continued to face hurdles in their quest
to gain greater public support and be able
to contest at the forthcoming 13th General
Election. Such was the experience of the
Human Rights Party and the Pakatan Rakyat
coalition, whose applications for official
recognition were stalled by the Registrar of
Societies.
1.1 Peaceful Assembly Act
The BN-led government hastily passed
the Peaceful Assembly Act on the 29th
of November 2011. Hailed by the Prime
Minister as ‘revolutionary’, the new legislation
was to replace Section 27 of the Police Act
1967, which he had earlier identified in his
Malaysia Day speech, as being outdated and
in need of change. This, he claimed, would
remove the requirement for police permits
to be obtained, eliminate jail time penalties
(monetary fines would however remain),
and turn the police into ‘facilitators’ of
constitutionally guaranteed rights (as opposed
to gatekeepers of public assemblies).1 This
gesture came amidst widespread rumours that
Najib would call for a snap general election
within months.
While the abolition of the pre-existing law was
welcomed– Section 27 had given the police
long-standing powers to deny citizens the
right to assembly2 – many objected to the new
bill for a number of reasons. For one, there
was no public consultation involved in the
formulation of the law. The bill was adopted
after less than four hours of debate in the
Dewan Rakyat with only six parliamentarians
involved, three from the PR parties, two from
BN and one pro-BN independent.3 After it
was unexpectedly produced for tabling on 22
November 2011, the authorities ignored calls
for the bill’s passage to be delayed to give the
public a chance to give their feedback and
ensure that the new legislation would help,
not hinder, the freedom of assembly.
More critically, the ‘revolutionary’ law was
seen as regressive and in many ways, worse
than the one it was replacing. Apart from
continuing the ban on street protests, it
introduced a host of other conditions that
impinged on the freedom of assembly. For
instance, it would require organisers to seek
advance notice of 30 days for all gatherings,
failing which they would be fined up to
RM10,000.00 (USD3,200.00). Further, even
though a police permit was no longer needed,
an event can only proceed if the police
allow it. The new law will also empower the
police to arrest those who ‘bring, allows to
come or recruits’ children under-15 to such
gatherings (except for those approved by
the Home Minister). As well, they no longer
need a warrant to arrest a person who does
not comply with this law. Finally, those who
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partake in a public protest can be detained and
fined up to RM20,000.00 (USD6,400.00).4
Critics questioned why the government had
completely disregarded the recommendations
of the 2004 Royal Commission to Enhance
the Operation and Management of the
Royal Malaysian Police on this matter.
As pointed out by Bersih 2.0 chairperson
Ambiga Sreenevasan, the Commission had
deemed that actions restricting the right to
assembly were ‘unconstitutional’ and ‘may
be challenged’.5 The government was also
criticised for ignoring the results of the inquiry
by the National Human Rights Commission
(Suhakam) into the Kesas Highway protest
in 2000.6 This had called on the authorities
to ‘allow the use of public places… for
gatherings organised by all sectors of society,
without any discrimination’ as well as to use
‘restraint’ when dispersing crowds.7
Following the huge public outcry that greeted
the bill,8 the media reported that Cabinet
had ordered it to be reviewed.9 This news
broke just 24-hours after the Home Minister
Hishammuddin Hussein had categorically
stated that the government would not bow
to calls to withdraw the bill.10 Subsequently,
six amendments were made to four sections
with the result of reducing the ‘notification,
appeals and response periods’. Thus, for
example, the requirement for 30 days notice
to be given before holding a gathering was
reduced to 10 days. As a whole, however, the
changes were superficial.11 The controversial
bill was passed by BN legislators after the
PR representatives staged a walk-out. The
following month, the Dewan Negara rubberstamped the law’s passage.12
Since then, several UN human rights experts
have cautioned that the new legislation
defined ‘assembly’ too vaguely, imposed overly
broad restrictions on gatherings, and gave
‘excessive authority’ to law enforcers and the
Home Minister.13 The Special Rapporteur on
the Rights to Freedom of Peaceful Assembly
and of Association, Maina Kiai, expressed
‘deep regret’ that neither Suhakam nor civil
society had been ‘meaningfully consulted’ in
the drafting process. Another, Frank La Rue,
Special Rapporteur on the Promotion of the
Freedom of Opinion and Expression, argued
that the level of democracy in a country
was best gauged by how much freedom
of expression a person had, including the
freedom to participate in a peaceful assembly.
Two other experts, one concerned with the
rights of migrants and the other the rights
of human rights defenders, were equally
alarmed by how the law prevented migrants
and youth, from being part of peaceful
gatherings.
2. Violations of Freedom of Assembly
2.1 Anti-Interlok demonstrations
In early 2011, the Human Rights Party and
Hindraf (Hindu Action Rights Force) – set-up
to represent working class Indians and defend
Hindu rights – organised several activities to
protest against the government’s decision at
retaining the novel, Interlok, in the secondary
school syllabus.14 These were part of the
lead-up to a larger ‘People’s Solidarity March
against UMNO Racism’ scheduled for 27
February 2011. During this time at least 79
people, including party leaders, were arrested
on various grounds such as ‘obstructing
the police in discharging their duty’15 and
‘obstructing traffic and moving in a large
group’.16
On the night before the anti-racism march,
the police swooped in and detained over
100 persons, including HRP leader P.
Uthayakumar. They also locked down
the city centre in a pre-emptive move to
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stop the event.17 Despite this, pockets of
protestors were reported to have marched
towards different points in the capital on the
designated date. The crackdown on the rally
resulted in at least 54 activists being charged
in courts in the Klang Valley, Seremban and
Ipoh.18 The move was widely condemned, in
particular for its arbitrary arrest of Indians –
whom the police had assumed were Hindraf
supporters – found walking on the streets on
the day.19
2.2 Anti-Lynas campaign
In March 2011, Malaysians learnt that a new
rare earth processing plant would be built in
Gebeng, Pahang by an Australian company,
Lynas Corp. Touted as the largest such
refinery in the world, this would be the second
initiative in the country to process rare earths,
after the highly controversial operations in
Bukit Merah, Perak in the 1980s.20 Surprised
and angered by this development – including
the lack of transparency and accountability
of those involved – there were no less than 10
protests against this project for the rest of the
year.21 While a number of these were allowed
to proceed without incident,22 others were
marred when the authorities intervened.
For example, the first to be arrested in
conjunction with this cause were four DAP
members who were at a protest outside the
party’s Beserah service centre in May.23
Anti-Lynas organisers were confronted with
various forms of intimidation and harassment
by both state and non-state actors, each time
they held an activity. At one protest, the police
were alleged to have stood by and watched as a
group who claimed to be pro-Lynas physically
assaulted the anti-Lynas activists present. 24 At
another, the authorities attempted to disrupt a
2000-strong rally by preventing the speakers
from taking the stand.25 This was after they
had failed to discourage the organisers by
withdrawing their permit at the 11th hour, a
move described as an attempt ‘to bully and to
intimidate’.26
2.3 May Day rally
At the annual Labour Day rally in Kuala
Lumpur, the police arrested at least 21
persons including Parti Sosialis Malaysia
(PSM) Secretary-General S. Arutchelvan,
and Sungai Siput parliamentarian Jeyakumar
Devaraj, when they tried to move into Dataran
Merdeka. Around 400 people had gathered
in the vicinity of the Bar Council building to
Anti-Lynas protestors displaying placards and banners detesting Lynas Corporation’s rare earth refinery in Gebeng, Kuantan
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demand for a minimum wage and to say no
to the proposed goods and services tax (GST),
among others. Prior to the day, the organisers
had sent a letter to the police requesting their
cooperation and assistance. They pointed out
that they had previously held such a gathering
for the last 16 years without incident. Twenty
of those arrested were released on police
bail, but S. Arutchelvan was re-arrested
on a dubious 15-year-old alleged robbery
charge.27 Suaram came up with an immediate
statement that questioned why the police
denied permits to those who were merely
organising an international workers’ day
event. It also highlighted how the arresting
officers used intimidation, refused to show
their authority cards, and forced the detainees
to strip off their shirts in public.28
2.4 Bersih 2.0
Undoubtedly the most severe infringements
on the right to peaceful assembly in 2011
occurred in relation to the Bersih 2.0 rally on
9th July 2011. Although this incident is also
discussed elsewhere in this report, it is worth
briefly repeating how the BN-led government
deprived Malaysians of their fundamental
liberty to publicly assemble and peacefully
express their views on the day. Their actions
can be broadly grouped under three areas.
At one level, these involved harassment
and intimidation tactics to deter the event
organisers from proceeding with the rally.
This ranged from disrupting public talks and
ceramah leading up to the rally to raiding
the Secretariat’s office and detaining those
present. At another level, the authorities
imposed physical restrictions to make it
difficult for people to attend the march. For
example, setting up of roadblocks, detaining
those coming into the city with yellow shirts,
and imposing restriction orders on over 90
individuals the night before, barring them
from entering the city the next day. The third
Jalan Stadium was barricaded with barbed wire to restrict
BERSIH 2.0 entry to Stadium Merdeka (Photograph courtesy
of Malaysiakini)
and final level was the actions the government
authorised for the day. The widespread use of
not only the police but also its riot control arm,
the Federal Reserve Unit (“FRU”) along with
their arsenal of water cannons and tear gas,
reflects the extremes to which the government
went in its attempt to disperse the crowds and
shutdown the event.
2.5 Protests against the Peaceful
Assembly Bill 2011
Unconvinced of the government’s exaltations
about its new Peaceful Assembly Bill, civil
society actors mobilised to make their
objections known.
Series of protests initiated by Kempen Kebebasan Berhimpun movers to
stage objections to the Peaceful Assembly Bill (source : SUARAM)
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argued that even though the Constitution also
allows for restrictions to be imposed, this did
not equal the right to wipe out street protests.
They named the Prime Minister and the
government as respondents and also sought
a declaration that both had ‘exceeded and
abused their powers’ by introducing a bill that
went against the Constitution.32 The High
Court (Appellate and Special Powers Division)
dismissed the application with costs.33
Led by members of the Malaysian Bar, a group of over 1,000
demonstrators marched to the Parliament to hand over an
alternative draft bill to Deputy Minister in the Prime Minister’s
Department, Liew Vui Kong (Photograph courtesy of
Malaysiakini)
On the morning the Dewan Rakyat was
scheduled to pass the new law, the legal
fraternity organised a ‘Walk for Freedom’
which drew more than 1,000 protestors, many
of whom were lawyers. The rally moved
from Lake Gardens to Parliament before
handing over an alternative draft bill to Liew
Vui Keong, Deputy Minister in the Prime
Minister’s Department.29 For their efforts,
those who participated in the walk were told
that they could potentially be charged for
being part of an ‘illegal’ assembly. Kuala
Lumpur police chief, Mohamad Salleh,
claimed that the organisers, the Malaysian
Bar Council, had not applied for a permit,
and said his personnel would prevent the
march from proceeding.30 The Bar Council
was also subjected to the wrath of de facto
Law Minister Nazri Aziz, who not only
criticised the protest march but also said
that the professional body ought tobe brave
enough to turn itself into a political party and
contest in the elections.31
Elsewhere, the Islamic political party PAS
filed an application for leave to challenge the
constitutionality of the Peaceful Assembly Bill,
specifically, that it went against Article 10 of
the Federal Constitution. The lawyers for PAS
Others resorted to more creative forms of
protest. For example, the Kuala Lumpur
People’s Assembly, the actors behind the
Occupy Dataran movement in Malaysia,
announced that they would bring the global
Occupy phenomenon to Parliament to assert
their right to peacefully assemble.34
A modified version of “Flashmob 1000 Malaysians Appreciate
Christmas Tree” by KillTheBill at Kuala Lumpur City Centre
Another group, KillTheBill.org, held weekly
events at KLCC, a popular shopping centre
in the capital – better known as the KL Twin
Towers – for four consecutive Saturdays.
These ranged from flashmobs and walks
through the park to singing and picnicking
on the grounds of one of Kuala Lumpur’s
most iconic landmarks.35 Their objective of
showing members of the public what peaceful
assembly meant was conveyed not through
placards or banners but by wearing yellow
and carrying the national flag. In this instance,
however, rather than the government, it
was the management of the centre that
took measures to deter these gatherings. For
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example, one week they turned on the park
water sprinkler system to prevent those who
had gathered from proceeding with their
event.36 Later they issued a legal notice via
Facebook, to the seven individuals behind the
event ‘Flashmob 1000 Malaysians Appreciate
Christmas Tree’, warning them of a court
injunction if they did not call off the planned
event.37 They then announced that they
would take action against anyone acting ‘out
of the ordinary’ at its premises.38 Despite these
actions, the organisers were able to proceed
with their activities, albeit in a modified
version.39
Protests held in Penang to condemn BERSIH 2.0 and to force
Penang chief Minister Lim Guan Eng out of office (Photograph
courtesy of Malaysiakini)
2.6 Other pro-BN rallies
Not all demonstrations that took place in 2011
were disrupted or banned by the authorities.
On the contrary, there were a number that
were allowed to proceed in varying degrees,
despite their intentions to fuel hatred and
create conflict. For example, just before the
BERSIH 2.0 rally, around 300 supporters
from UMNO, Perkasa and another NGO,
Suara Anak-Anak Mamak Pulau Pinang held
a noisy protest in Georgetown to condemn
both Pakatan Rakyat and the organisers of
the BERSIH 2.0 rally. The police detained
eight demonstrators including Ezam Mohd
Nor who had threatened to repeat such a
protest to force Penang Chief Minister Lim
Guan Eng out of office. However, they only
took action after the protestors had marched
for about 1.5km across Georgetown and
drawn a lot of attention to their cause. By
then, the demonstrators had also displayed
random acts of violence, namely behaving
aggressively, striking the windscreens of
passing vehicles, and physically assaulting
some media personnel on duty. Further,
even after the police had instructed them
to disperse, the protestors regrouped and
continued giving incendiary speeches while
the police stood watch.40
Before the year ended, another two such
demonstrations were held, again in Penang,
and again directed at the administration of
Lim Guan Eng, the DAP Chief Minister.
On 31 October 2011, a group calling itself
Pertubuhan Islam Gabungan Amal claimed
responsibility for the lunchtime protest
involving around 200 bikers who rode to
and congregated outside the Penang State
Legislative Assembly building, demanding a
‘racing track’ for their use. They were dressed
in yellow t-shirts with the words ‘LGE racist’
(in reference to Lim Guan Eng) and ‘Save
Penang’. They were allowed to honk their bike
horns for at least 15 minutes before the police
stepped in to break them up. Five persons
were arrested but released on the same day.41
The police claimed that they had allowed
the group to hand over their memorandum
‘because we are a democracy’.42
A month later another vociferous crowd of
300 people gathered outside Komtar, which
houses the State government’s offices to
demand the resignation of the Chief Minister’s
political secretary, Ng Wei Aik for being rude
and a racist. Organised by groups including
Pertubuhan Pribumi Perkasa Malaysia
(“Perkasa”) and Pertubuhan Kebajikan Sejati
Malaysia, the protestors again disrupted
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traffic for about an hour. The police arrested
nine persons, including Perkasa’s northeast
district chief, Mohd Rizuad Mohd Azudin,
after they had handed over a memorandum
to a State government representative.43
3. Violations of Freedom of Association
the HRP as a political party. The HRP filed
another application for judicial review on
11 October 2011, seeking to overturn the
Home Minister’s decision and have the
HRP registered officially through a mandamus
order.49 The case is pending.
3.2 Pakatan Rakyat
3.1 Human Rights Party
The Human Rights Party (HRP) continued
to press for its legal recognition in 2011.
In February 2011, three months after it had
submitted its application to the Registrar of
Societies, the party decided to issue a 14-day
ultimatum to the authorities.44 Its leader, P.
Uthayakumar, argued that there were double
standards at work as the Registrar hadtaken
only two weeks to approve the application by
the Malaysian Makkal Sakti Party, whereas
the HRP had been made to wait with no end
in sight.45 This, Uthayakumar maintained,
meant that the partywould be unable to
participate in the forthcoming general
election, widely expected soon.
To make matters worse, a local news daily
reported that the RoS had proposed that
all existing applications and those by new
political parties be rejected outright to avoid
what he claimed was ‘draining politicking’.46
The HRP information chief, S. Jayathas
retorted that this decision would violate the
Federal Constitution that guaranteed the
right of association.47 On 4 August 2011, the
RoS eventually issued a letter stating that the
HRP application had been rejected for two
reasons: one, that the party was not ‘properly
organised’, and two, that its constitution did
not meet the requirement set by the RoS.48
Following this, citing that it was now a
moot point, the Kuala Lumpur High Court
dismissed P. Uthayakumar’s application for a
judicial review to get the RoS, Home Minister
and the Federal Territory RoS to recognise
The PR coalition suffered the same fate as the
HRP in 2011. Despite having re-submitted its
application to the RoS due to the resignation
of the then pro-tem chairperson Zaid
Ibrahim in November 2010, it was learnt via a
report in the New Straits Times, that the RoS
Director-General Abdul Rahman Othman
had claimed that the coalition had not put in
a new application since then. Parti Keadilan
Rakyat (“PKR”) Secretary-General Saifuddin
Nasution maintained that the coalition had
in fact met with the RoS Chief Assistant
Director (Societies Division) after holding an
emergency general meeting in March 2011
(where a new PR chair was elected). However,
they were told that their new application could
not be processed until a decision had been
made on the earlier application that Zaid had
submitted. Saifuddin also clarified that since
then, PR has been regularly following-up on
this matter with the RoS but has not been
given a decision to date.50
3.3 Deregistration of associations
Apart from opposition political parties,
members of at least two ordinary societies
had their freedom of association curtailed
when the RoS deregistered their organisations
on technical grounds. In the first instance,
the Malacca Chinese Assembly Hall was
deregistered under S42 of the Societies Act
1966, for proceeding with its Annual General
Meeting without sufficient quorum. As Melaka
MCA head Gan Tian Loo pointed out, this
example showed how the RoS needed to take
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into account those who ‘unintentionally make
mistakes due to their lack of understanding of
certain regulations’.51
In the second instance, the Federal Territory
RoS struck off the Malaysian Medical
Association (MMA) following allegations of
irregularities in the manner in which the AGM
and the election of its office bearers were
conducted in May 2011. While RoS Senior
Assistant Director Desmond Das Michael
Das was quoted as saying that MMA had
‘clearly violated certain laws’ and deserved
being deregistered, MMA was given a sixmonth reprieve by the Home Ministry after it
submitted an appeal.52 The MMA President
attributed the problem of not sending out a
complete list of candidates contesting the
elections within the stipulated timeframe, and
failing to include the elections as an item in its
agenda, to technical errors.53
4. Recommendations
i. Repeal the Peaceful Assembly Act 2012.
ii. Amend the Police Act 1967, the Societies
Act 1966, the Universities and University
Colleges Act 1971, and other laws that
restrict the freedom of assembly and
association.
iii. Grant students of voting age the full
range of freedoms enjoyed by other
Malaysian citizens.
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End Notes
1
‘Najib describes peaceful assembly Bill
as “revolutionary”’, Malaysiakini, 24 Nov
2011,<http://www.malaysiakini.com/
2
Section 27 of the Police Act required organisers
of public gatherings to obtain a police permit
beforehand.
3
‘Done deal: Peaceful Assembly Bill passed’,
30 Nov 2011.
4
See ibid.; ‘Peaceful Assembly Bill 2011
bans street protest’, Malaysiakini, 22 Nov
news/182037>, Accessed: 23 Nov 2011;
‘Government tables Peaceful Assembly Bill’,
The Malaysian Insider, 22 Nov 2011, <http://
www.themalaysianinsider.com/malaysia/
article/government-tables-peaceful-assemblybill/>, Accessed: 23 Nov 2011.
5
‘Civil society: Dzaiddin’s report on assembly
ignored’, Malaysiakini, 22 Nov 2011, <http://
6
Coincidentally on the 25 November, the Shah
Alam High Court acquitted 11 persons who
had been charged with being part of the
illegal 100,000 People’s Gathering along the
Kesas Highway in 2000 (‘Court acquits 11 in
2000 Kesas highway protest’, Malaysiakini, 25
news/182420>, Accessed: 26 Nov 2011).
7
ibid. [?‘Civil society: Dzaiddin’s report on
assembly ignored’, Malaysiakini, 22 Nov
news/182106>, Accessed: 23 Nov 2011.]
8
See for example ‘Outrage over new
peaceful assembly law’, Malaysiakini, 23
Nov 2011,<http://www.malaysiakini.com/
9
Some also made it a point to highlight the role
of the Prime Minister in this. ‘Cabinet orders
review of Assembly Bill’, Malaysiakini, 25
10 He had also accused the opposition of
generating public dissatisfaction around the bill
to gain political mileage. ‘Hisham shoots down
calls to withdraw Assembly Bill’, Malaysiakini,
24 Nov 2011, < http://www.malaysiakini.
com/news/182280>, Accessed: 25 Nov 2011.
11 ‘Government amends Assembly Bill’,
30 Nov 2011.
12 ‘Game over: Dewan Negara passes Assembly
Bill’, Malaysiakini, 20 Dec 2011, <http://www.
21 Dec 2011.
13 ‘Peaceful Assembly Bill comes under UN
fire’, Malaysiakini, 8 Dec 2011, <http://www.
9 Dec 2011.
14 The novel was deemed unsuitable as a school
textbook because it allegedly cast Indians in a
derogatory manner, including through the use
of the word ‘pariah’.
15 See for example ‘Nine arrested at “Interlok”
demo at Batu Caves’, Malaysiakini, 20 Jan
news/153920>, Accessed: 21 Jan 2011.
16 ‘Police clamp down on HRP convoys, scores
arrested’, Malaysiakini, 13 Feb 2011, <http://
www.malaysiakini.com/news/155898 >, 14 Feb
2011.
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17 ‘Uthaya, 108 others arrested to quash HRP
rally’, Malaysiakini, 27 Feb 2011, <http://
Accessed: 1 Mac 2011. Earlier the authorities
had detained a HRP member before the start
of a forum that he had organised. ‘Crackdown
on anti-Interlok forums continue’, Malaysiakini,
21 Feb 2011, <http://www.malaysiakini.
com/news/156619 >, Accessed: 22 Feb 2011..
18 ‘54 Hindraf activists prosecuted thus far. 21 in
KL, 22 in Seremban 5 in Selayang and 6 in
Ipoh maliciously prosecuted up to date by racist
UMNO regime at K.L. Court. All released on
bail of RM2,000 in KL and RM1,700 bail in
Seremban.’, Human Rights Party, 3 Mac 2011,
<http://www.humanrightspartymalaysia.
com/2011/03/03/54-hindraf-activistsprosecuted-thus-far-21-in-kl-22-in-seremban5-in-selayang-and-6-in-ipoh-maliciouslyprosecuted-up-to-date-by-racist-umnoregime-at-k-l-court-all-released-on-bail-ofrm2000-00/>, Accessed: 6 Dec 2011
19 ‘HRP leaders detained under Police, Societies
Act’, Malaysiakini, 27 Feb 2011, <http://www.
1 Mac 2011.
20 The failure of Japanese company Mitsubishi
Chemical to deal with the radioactive waste
produced by its Asian Rare Earth factory
has since been linked with scores of deaths in
nearby villages in the 1980s and early 1990s.
See ‘New rare earth plant revives radiation
fears’, Malaysiakini, 9 Mac 2011, <http://
www.malaysiakini.com/news/158149 >,
21 The group also had a significant presence at
rallies organised by others like Bersih 2.0 and
the Bar Council, and held a picket outside the
Lynas headquarters in Australia.
22 This included the earliest response to Lynas,
i.e. a gathering outside Parliament by about
100 residents from the areas surrounding the
Lynas Advanced Material Plant (LAMP), and
the first protest in Kuantan on Mother’s Day
which drew around 1,000 people, most of
them mothers.
23 ‘Four arrested at anti-Lynas protest’,
16 May 2011.
24 See ‘Intimidation spooks anti-Lynas group’,
1 Jun 2011.
25 ‘Police disrupt 2,000-strong “Green Rally”’,
Malaysiakini, 9 Oct 2011, <http://www.
10 Oct 2011.
26 ‘No freedom of assembly for green protestors’,
Malaysiakini, 9 Oct 2011, <http://www.malay
siakini.com/news/178144>, Accessed: 10 Oct
2011.
27 He maintained that this was a politically
trumped-up charge, and was subsequently
released on condition that he report to the
Alor Setar police station. See ‘May Day: 21
freed, PSM sec-gen re-arrested’, Malaysiakini,
1 May 2011, <http://www.malaysiakini.com/
news/162966>, Accessed: 2 May 2011.
28 ‘Suaram condemns May Day arrests’,
4 May 2011.
29 ‘More than 1,000 march against Assembly
Bill’, Malaysiakini, 29 Nov 2011, <http://www.
30 Nov 2011.
85
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30 KL police: Bar Council’s “Walk for Freedom”
illegal’, Malaysiakini, 29 Nov 2011, <http://
31 ‘Done deal: Peaceful Assembly Bill passed’,
30 Nov 2011.
32 ‘Assembly Bill: Court defers decision on PAS
challenge’, Malaysiakini, 12 Dec 2011,<http://
33 The judge ruled that the application was
premature, and awarded RM8,000 in costs
to the government. ‘Court throws out PAS’
challenge to Assembly Bill’,
15
Dec 2011, <http://www.malaysiakini.com/
news/184190>, Accessed: 16 Dec 2011.
34 ‘“Occupy” movement to hit Parliament’,
malaysia kini.com/news/182639>, Accesed:
29 Nov 2011. ‘Dataran’ refers to Dataran
Merdeka, literally, Independence Square, a
landmark in the nation’s history.
35 ‘Civil society to campaign against Assembly
25 Nov 2011; ‘400 protest at KLCC against
“unconstitutional” bill’, Malaysiakini, 26
Nov 2011,<http://www.malaysiakini.com/
36 ‘200 brave water sprinklers to protest Assembly
4 Dec 2011. See also ‘KLCC gardeners
disrupt “Kill the Bill” picnic’, Malaysiakini, 17
Dec 2011, <http://www.malaysiakini.com/
37 This was in reference to the meeting point
for the flashmob at KLCC, i.e. the giant
Christmas tree at the centre of the mall. After
being threatened with a court injunction by
the operators of KLCC, they renamed their
event ‘Malaysians Can Go Shopping and
Pose with Xmas Trees without Police Permit’.
See ‘KLCC warns flashmob organisers via
Facebook’, Malaysiakini, 8 Dec 2011, <http://
38 ‘KLCC warns visitors ahead of Saturday’s
protest’, Malaysiakini, 9 Dec 2011, <http://
39 ‘Yellow-clad flashmob defies KLCC injunction
threat’, Malaysiakini, 10 Dec 2011, <http://
40 For instance, they assaulted two members of
the media, and hit another journalist on the
back and threatened to throw him into the
sea if he continued to take close-range photos
of them. ‘300 stage rowdy protest against
Penang CM, Bersih’, Free Malaysia Today, 1
Jul 2011, <http://www.freemalaysiatoday.
com/2011/07/01/rowdy-umno-protestersdisrupt-city-life/>, Accessed: 6 Dec 2011.
41 ‘Mat rempit accuse Penang CM of racism’,31
Oct 2011, <http://www.malaysiakini.com/
news/ 180057>, Accessed: 1 Nov 2011; Yellow
shirt bikers protest outside Penang Assembly,
The Star, 31 Oct 2011, <http://thestar.com.
my/news/story.asp?file=/2011/10/31/natio
n/20111031145653&sec=nation>, Accessed:
1 Nov 2011.
42 ibid.
43 ‘Nine held in protest against Penang
administration’, The Sun, 30 Nov 2011,<http://
86
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44 A full set of papers for HRP’s registration
proper was submitted in November 2010.
‘HRP questions ROS’ double standards’,
Malaysiakini, 18 Feb 2011, <http://www.
19 Feb 2011.
45 In fact he claimed that this application had
been denied for 12 years dating back to the
time that he and his supporters had tried to
establish another party, Parti Reformasi Insan
Malaysia (Prim), which was now the HRP. ibid.
53 ‘Liow to meet MMA president over
de-registration’,
Malaysiakini,
17
Nov
news/181684>, Accessed: 18 Nov 2011;
‘Ministry gives MMA six-month reprieve’,
1 Dec 2011; ‘MMA to explain “deregistration”
issue’, The Star, 6 Dec 2011, <http://thestar.
Dec 2011.
46 He also claimed that as a public official, he
had the right to determine what was best in
this regard. ‘Political party cap: ROS not
above constitution, says HRP’, Malaysiakini, 21
Feb 2011, <http://www.malaysiakini.com/
news/156615>, Accessed: 22 Feb 2011.
47 ibid.
48 ‘ROS rejects HRP’s bid to register as political
party’, Malaysiakini, 16 Aug 2011, <http://
49 ‘High Court judge recuses self from hearing
HRP case’, Malaysiakini, 2 Nov 2011, <http://
50 ‘ROS “lying”about Pakatan registration’,
4 Nov 2011.
51 ‘Malacca Chinese Assembly Hall deregistered’, The Sun, 13 Oct 2011, <http://
Accessed: 14 Oct 2011.
52 ‘Ministry gives MMA six-month reprieve’,
1 Dec 2012.
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CHAPTER 5:
REFUGEES, ASYLUM SEEKERS,
UNDOCUMENTED MIGRANTS AND
TRAFFICKED PERSONS
SUARAM-2011.indb 88
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Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons
O
fficial statistics of the United
Nations High Commissioner for
Refugees (“UNHCR”), indicate that
by December 2011, a total of 95,000 refugees
and asylum-seekers had registered with its
office in Kuala Lumpur.1 Of this, the majority
came from Myanmar (88,000)2 while the
remainder (7,000) were mostly Sri Lankans,
Somalis, Iraqis and Afghans. The UNHCR
also acknowledged that there are many
asylum-seekers who remain unregistered,
conservatively estimated at around 10,000.3
Sixty years after the introduction of the 1951
United Nations Convention Relating to the
Status of Refugees, Malaysia remains among
a minority of states that have not ratified
this treaty. In so doing, the government
demonstrates a deep-seated reluctance to
recognise and abide by a set of internationally
agreed-upon standards governing the rights
of refugees. This and the fact that there are
no laws to separately deal with refugees or
asylum-seekers have long cast doubts over
Putrajaya’s efforts to deal with them. In
2011, this matter came to the fore in several
ways, the most prominent being the proposed
refugee/asylum-seeker swap with Australia.
The 6P programme, a registration exercise
to identify and potentially deport ‘illegal’
immigrants, refugees and asylum-seekers also
drew considerable negative attention for its
discriminatory dimensions.
1. Government policies
1.1 Worrying increase in RELA numbers
Ikatan Relawan Rakyat Malaysia (“RELA”
People’s Volunteer Corps) was formed as
an auxiliary enforcement body under the
Home Ministry in 1972, primarily to help
maintain public order by way of helping
with community services and emergency
duties. However, the powers of this body
Despite heavy criticisms on RELA’s abuse of powers and lack of
training, the government is set to boost its members to 2.6 million
by the end of 2011 (Photograph courtesy of Malaysiakini)
were considerably expanded after the
Essential (RELA) (Amendment) Regulation
was adopted in 2005. Since then, RELA has
been increasingly utilised in anti-crime and
policing operations such as those to flush
out and arrest suspected ‘illegal’ immigrants.
Besides having the powers of arrest, they can
also enter homes or search a person on the
street without a warrant.4
In January 2011, the government announced
that the membership of RELA had grown to
2.1 million members, and that it hoped this
would hit the 2.6 million mark by the end of
the year.5 This staggering increase – a growth
of almost four times since 20096 – sent out
alarm bells among human rights advocates
because of the many problems associated with
the group’s lack of training and its reputation
of members abusing their powers.7 This
situation is made worse by the fact that RELA
personnel also have legal immunity so long as
their actions are carried out in good faith. The
government’s preoccupation with boosting
RELA numbers rather than addressing its
existing organisational shortcomings was
criticised on the grounds that this would lead
to even greater human rights violations in
future.
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1.2 The ‘Malaysian Solution’
The Australian and Malaysian governments
signed a Memorandum of Understanding
(“MoU”) in July 2011, paving the way for
an asylum seeker-refugee swap deal, better
known as the ‘Malaysian Solution’.8 Under
this, Australia would deport to Malaysia, 800
asylum seekers who had landed on its shores.
In return, it would accept for resettlement,
4,000 refugees certified by the UNHCR in
Kuala Lumpur. This bilateral arrangement
was proposed as a regional response – the
Bali Process on people Smuggling, Human
Trafficking and Related Transnational Crimes
in Asia-Pacific – to the problem of irregular
migration.9 It was argued to be necessary to
deter people trafficking and asylum seekers,
particularly those who braved dangerous
waters in their attempt to reach Australia.10
Despite these official assurances, the ‘solution’
was rejected on several grounds.11 For one, it
glossed over the realities of why people flee
from their home countries. Allowing a country
that had ratified the UN Convention on the
Status of Refugees (i.e. Australia) to devolve its
obligations onto another country that had not
(i.e. Malaysia) was also seen as problematic.
This was particularly since Malaysia does
not respect the principle of non-refoulement
which stipulates that an asylum seeker should
not be returned to places where s/he could
face persecution or threats to her/his life.12
It was thus feared that the swap deal would
erode the protection extended to asylum
seekers in the region.
There was concern too that those affected
could face lengthy processing times, or
worse, be subjected to inhumane detention
conditions and other forms of torture or
cruelty such as caning which is provided
for under the law.13 Human Rights Watch,
a US-based NGO, accused the Australian
government of using Malaysia not only as a
dumping ground for boat people it rejected
but also to boost its flagging popularity among
voters, while Putrajaya was said to be in line
to profit financially from the exchange.14
The deal was ultimately scuppered after the
Australian High Court ruled that Canberra
could not relocate its asylum seekers to a
country that did not have in place, adequate
protections for refugees.15 Citing its Migration
Act, 1958, the Court reminded the Australian
government that a third country was required
to
“…provide access for asylum seekers to
effective procedures for assessing their need
for protection; provide protection for asylum
seekers pending determination of their refugee
status; and provide protection for persons given
refugee status pending their voluntary return to
their country of origin or their resettlement in
another country…”
The law also expects this third country to
‘meet certain human rights standards in
providing that protection’.16 Realising that
it did not have the numbers to amend this
law for the deal to go through, the Gillard
administration was eventually forced to
abandon the ‘Malaysian solution’.17
1.3 The ‘6P’ Programme
In 2011, another major government policy
relating to non-citizens in the country
was the large-scale amnesty programme
codenamed ‘6P’ – pendaftaran (registration),
pemutihan (legalisation), pengampunan (amnesty),
pemantauan
(monitoring),
penguatkuasaan
(enforcement) and penghantaran (deportation).
Using a biometric registration scheme,
this was widely promoted to non-citizens
who enlisted – including those who did not
have valid papers – as a chance to continue
working legally in Malaysia. As well, it was
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said to be a means of ensuring that they would
not be exploited by low wages, poor working
conditions or human traffickers.18
These seemingly altruistic intentions aside, it
soon became apparent that the government
had other reasons for embarking on this
programme. One was to get statistical
information on the number of ‘illegal’
immigrants in the country, which it claimed
was large enough to pose a threat to national
security. Hence, even though the registration
exercise may have granted some noncitizens temporary work permits to help
‘ease labour shortages in the plantation and
service industries’,19 in the long run it would
have enabled the government to repatriate
everyone else whose skills or services were not
needed. The Human Resources Minister had
argued that this would “…reduce dependency on
foreign workers in line with the country’s aim to become
a high-income nation…”20 The government also
made it clear that anyone who did not come
forward to register under the ‘6P’ scheme
would be considered ‘illegal’, and arrested if
caught.21
This exercise was initially scheduled to run for
three weeks. However, its deadline was later
extended ‘until further notice’.22 From initially
Executive Director of Tenaganita, Irene Fernandez calling
the government to clarify on the 6P program, which does not
differentiate the fundamental differences in migrant status
only targeting undocumented migrant
workers, its scope was also subsequently
widened to documented migrant workers and
refugees with UNHCR cards. The haphazard
nature of the scheme demonstrated its weak
conceptualisation and a lack of consultation
with those involved. Migrant workers’ rights
groups like Tenaganita called upon the
government to publicly clarify the ‘objectives,
procedures and policy for the registration
of refugees and how it will impact on their
continued stay in the country; what the new
opportunities and benefits for the refugee
community will be; and how will it impact on
their resettlement process’.23 Despite this, very
little information was provided as to how this
programme would impact on their lives.
Unsurprisingly, the result confused not only
among the non-citizen populace but also
employers, foreign missions and even some
immigration officials.24 Many among the
former were unsure how the scheme would
operate and this made them vulnerable
to unscrupulous work placement agents
(approved by the state) who demanded
exorbitant fees for help with the registration
process. Ranging from RM3,600.00 to
RM4,000.00, this cost was fully borne by the
migrant worker, rather than their employers.25
For refugees in particular, the scheme’s
one-size-fits-all approach had additional
repercussions. Besides the very short notice
they got to register themselves at Putrajaya
– and many, after waiting hours in queue
were turned away because the Immigration
Department was ill-equipped and could not
cope with more than 2,500 applicants a day –
those who were eventually processed received
a slip of paper stating “Purpose: Return to Home
Country”. Having left their country because
of political persecution, the idea of being
deported back was a source of great anxiety.
Limiting the amnesty programme to only
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UNHCR card-carrying refugees was also
problematic as it excluded about 20,000 to
30,000 persons waiting to be registered with
UNHCR. If anything, these undocumented
refugees would be more vulnerable given that
they are not documented under the UNHCR
system.26
Finally, during the raids conducted under the
6P operations, there were many refugees and
asylum seekers – with or without the UNHCR
registration card – who ended up being
arrested and sent directly to immigration
detention centres. This is because their
housing areas were deliberately targeted
in crackdowns. At no point after they had
been detained did the authorities try to get
UNHCR to verify their status.
1.4 The ‘Myanmar swap’
Undeterred by the failed asylum seekerrefugee swap with Australia, the Malaysian
government attempted to introduce a similar
bilateral programme in October 2011, but this
time with Myanmar.27 Under this supposedly
mutually beneficial arrangement, Malaysia
would exchange an unspecified number of
Myanmar citizens in its detention camps for
Malaysians held in Myanmar. This, Home
Minister Hishamuddin Hussein announced,
was in line with the 6P programme and the
government’s objective of easing overcrowding
in its immigration holding centres,28 as well as
to combat cross-border crimes.29
Like the Malaysian Solution and the 6P
programme, this proposal was heavily
criticised by human rights activists.
SUARAM, for instance, highlighted how
the swap ignored the internal strife under
junta’s military ruling in Burma which was
why thousands of civilians – mostly ethnic
minorities – had fled the country in the first
place to seek international protection. Further,
Malaysia-Myanmar deal would ease overcrowding in immigration
holding centres as well as combat cross-border crimes, according
to Home Minister Hishamuddin Hussein (Photograph courtesy
of Malaysiakini)
there are records of dissidents and minority
groups, including women and children, being
systematically prosecuted and forced into slave
labour.30 Sending these refugees back would
endanger their lives, a direct contravention of
international customary law governing their
rights and wellbeing.31
Earlier, SUARAM had also questioned an
initiative proposed by the Ministry of Human
Resources to bring in 45,000 Indian migrant
workers to fill job vacancies in 13 subsectors
across the country. The NGO argued that
these positions could have been offered to
refugees already in the country.32
2. Arrests, Detentions and Deportations
Like previous years, the Malaysian authorities
continued throughout 2011, to arrest and
detain asylum seekers, undocumented
migrants and refugees. SUARAM was alerted
to a number of cases during this time, the
majority involving Sri Lankan and Burmese
nationalities. The largest arrest took place
off the shores of Pulau Bedong, Penang in
October 2011, when almost 100 Burmese boat
people were apprehended.33 Earlier in April,
six Sri Lankan refugees allegedly carrying fake
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UNHCR documents were arrested in Kuala
Lumpur. They were released after UNHRC
intervened. Sometimes, even those registered
with UNHCR are not spared either, as the
usual practice among law enforcers is to first
arrest before releasing those who are innocent.
Such was the case in May 2011 when 23
Burmese asylum-seekers were detained. Even
though some among them had UNHCR
cards, they were all assumed to be suspects
and arrested.
For a long time now, the weak standards of
immigration detention camps in Malaysia
have been a cause of concern among human
rights groups.34 In April 2011, news reports
of over a hundred male detainees breaking
out from the Lenggeng Detention Centre in
Negeri Sembilan state, two hours south of
Kuala Lumpur, confirmed their fears that
issues like overcrowding, poor diet, sanitation,
inadequate medical care, and indefinite
periods of detention continued to persist.35
According to the state deputy police chief, it
was likely that many of those who escaped
had become frustrated after waiting for
three to twelve months at the centre while
the UNHCR arranged for their resettlement
in third countries. In 2010, Home Ministry
officials had already acknowledged that these
detention centres needed improving after
a report identified them as “ticking time
bombs”36 The Working Group on Arbitrary
Detention had also specifically sighted the
‘overcrowded Lenggeng detention centre’
as problematic following its fact-finding
mission to Malaysia in 2010.37 In its press
statement on the incident, SUARAM called
for the authorities to look into the detention
administration process and poor treatment of
detainees rather than blame them for what
happened.38
The Malaysian government’s low tolerance
of those who are non-citizens was also
demonstrated when it deported a group of
ethnic Uighurs to China in August.39 The
Uighurs – Turkic-speaking and predominantly
Muslim – are a politically persecuted minority
in China and there were serious concerns that
they would be tortured or ill-treated if they
were deported back home. Despite this, one
official said that the eleven were expelled
because they were neither refugees nor asylum
seekers. Instead, they were part of a humansmuggling syndicate that falsely tried to claim
UN refugee status for those trafficked. The
UNHCR was denied permission to see those
deported as well as five others who remained
in custody in Malaysia.40 Putrajaya’s actions
were said to ‘follow an extremely disturbing
trend of Uighurs deported from countries
with strong trade and diplomatic ties to
China’.41
3. Other State-Sanctioned Violations
Stories of law enforcement agencies abusing
their powers have also appeared from
time to time in the media. Although some
locals in particular those from marginalised
communities have faced similar treatment
by these authorities, being non-citizens in
Malaysia has made it even easier for refugees,
asylum seekers and undocumented migrants
to be targeted. Complaints of being extorted
and arbitrarily arrested during crackdowns
are very common.42 As well, they have been
subjected to physical violence.
From as far back as 1995, activists have
claimed that Malaysia serves as a transit point
for human trafficking syndicates.43 It has since
also gained a reputation as not only a source
but also a destination country. Officially, the
largest number of trafficked cases in the
country in 2011 involved commercial sex
(217), followed by forced labour (70), violations
of immigration laws (38), and sale of babies
(30).44 In September, Wikileaks exposed
contents of a leaked confidential cable from
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SUARAM refugee desk coordinator, Andika Wahab (far right) together with community leaders holding consultation at Suhakam
office. (source : SUARAM)
the US embassy in Malaysia which referred
to a report that ‘generally corroborated
allegations’ that lower-level immigration
authorities were involved in the trafficking of
refugees at the Malaysia-Thai border.45
to Malaysia; refugees who failed would end up
on Thai farms, factories, plantations or fishing
industries if they were men, while the women
were sold into brothels, hotels or domestic
work.
According to the cable, the report, based on
research conducted by the US Senate Foreign
Relations Committee showed that Malaysian
immigration authorities would transport
refugees to the Thai border in official vehicles
from the Immigration Detention Centres
in the early hours of the morning, to hand
over to traffickers across the Thai border.
Each refugee group had sold around 45-100
men, women and children. For their efforts,
the officials received between RM400.00700.00 (USD130.00-230.00) per refugee.
The refugees would be given a final chance
at this stage, to pay a ransom ranging from
RM1,500.00- 1,900.00 (USD500.00- 630.00).
Those who managed to pay would be returned
These allegations were ‘categorically denied’
by then immigration Director-General,
Mahmood Adam, who is the present Home
Ministry Secretary-General. He argued
that the starting salary of RM1,300.00
(USD430.00) per month for newly employed
immigration officials was sufficient (i.e. they
did not have to look elsewhere to supplement
their income). Instead, he ‘indirectly tried
to implicate’ RELA members who assist the
immigration department by helping to beef
up security at the detention centres.
These violations against non-citizens have
occurred with impunity largely because the
state has allowed it.
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For example, the expanded authority of
voluntary bodies like RELA46 which as noted
earlier, not only gives them enforcement
powers but also allows them to search
premises and arrest or detain anyone without
a warrant means that they are even more
powerful than the police who have to obtain
search warrants to do the same. Yet it does not
take a lot to become a RELA member since
there is no standard educational requirement.
To make matters worse, these volunteers are
not well trained for their job. On average,
they receive between three to fourteen days
of training. Little of this has to do with
standard operating procedures to conduct
an immigration procedure, much less human
rights.47
Under constant pressure (primarily from
the US) to address human trafficking in the
country, the Malaysian government responded
in 2011 by introducing the ‘6P’ programme.
This, the Home Minister claimed, was ‘one
of the most effective ways to check on illegal
activities involving foreigners’,48 and part
of a larger agenda to combat transnational
crime. The government also announced that
between 2008 and July 2011, 492 people
had been arrested for human trafficking
activities.49 Its seriousness in tackling this issue,
however, was questioned when it released eight
immigration officials who had been arrested
under the ISA in October the previous year,
for their involvement in human trafficking.
The Home Minister justified this outcome
by saying that the eight had been remorseful,
and cooperated with the authorities.
Speaking on this matter, the Suhakam chair
pointed out that it would have been better to
charge the offenders in court rather than use
the ISA on them. This way, “…they would have a
chance to prove their innocence; more effective deterrence
if they are found guilty; better administration of
justice and better observance and protection of human
rights…”50 The public would also have been
privy to the details of their offence. Instead,
little is known about this. Their ‘lenient’
sentence also made the Anti-Trafficking in
Persons and Anti-Smuggling of Migrants
Act 201051 which has harsh penalties for this
crime appear redundant.
Under Section 6 of the Immigration Act
1959/63, the state can also sentence a
non-citizen without valid papers with a
maximum of six strokes of the rotan (cane).52
This practice is clearly prohibited under
international law as it subjects those found
guilty to torture and degrading treatment.
Human rights activists again went up in
arms when the Home Minister announced in
March 2011, that close to 30,000 ‘foreigners’
had been caned between 2005 and 2010 for
violating immigration laws.53 Groups like
Amnesty International claimed that many
migrant workers were exploited by labour
agents and subsequently ran foul of the law
through no fault of theirs. This view was
corroborated by research conducted by the
Malaysian Trades Union Congress. Instead
of taking action against unscrupulous agents
and employers, the state targets these refugees
and migrant workers.
4. Recommendations
i.
To immediately ratify the 1951
Convention Relating to the Status of
Refugees and its 1967 Protocol.
ii. To legally recognise refugees and any
person of concern to UNHCR in
Malaysia.
iii. To allow refugees and any person of
concern to UNHCR to work legally and
to earn a living in Malaysia.
iv. To develop alternatives to detention
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especially where children and women are
concerned.
v. To remove RELA’s widespread powers
of arrest by revising the Essential (RELA)
(Amendment) Regulation 2005.
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End Notes
1
‘Working for refugee rights’, The Star,
7 Nov 2011, <http://thestar.com.my/
n e w s / s t o r y. a s p ? f i l e = / 2 0 1 1 / 1 1 / 7 /
Nov 2011.
11 See for example, ‘UN questions legality of
Malaysia refugee swap’, ABC, 24 May 2011,
<http://www.abc.net.au/news/2011-05-24/
un-questions-legality-of-malaysia-refugeeswap/2728102>, Accessed: 6 Dec 2011.
2
These included Chins, Rohingyas, Myanmar
Muslims, Rakhine, Mon, Kachins and other
ethnic groups.
3
See ‘Figures at a glance’, UNHCR Malaysia
website,
<http://www.unhcr.org.my/
About_Us-@-Figures_At_A_Glance.aspx>,
4
‘A growing source of fear for migrants in
Malaysia’, The New York Times,10 Dec 2007,
<http://www.nytimes.com/2007/12/10/
world/asia/10malaysia.html?ex=13549428
00&en=9c0af7528f386bc7&ei=5088&partn
er=rssnyt&emc=rss>. See also section below
‘Other state-sanctioned violations’.
12 See Article 33(1) of the 1951 Refugee
Convention which states that ‘No Contracting
state shall expel or return (‘refouler’) a refugee
in any manner whatsoever to the frontiers
of territories where his [sic] life or freedom
would be threatened on account of his [sic]
race, religion, nationality, membership of a
particular social group or political opinion’.
Cited in ‘Halt “6P” registration of refugees
immediately’, Malaysiakini, 25 Aug 2011,
5
’RELA sasar 2.6 juta ahli menjelang akhir
2011’, Berita Harian, 13 January 2011. This
figure was in fact attained by the middle of the
same year.
6
‘Objections against use of Rela to fight crime’,
Malaysiakini, 30 Jul 2009, <http://www.malaysia
kini.com/news/109590>, Accessed: 31 Jul 2009.
7
See also below, under the section ‘Other statesanctioned violations’.
8
‘Australia and Malaysia in refugee swap
deal’, Al-Jazeera, 22 Jul 2011, <http://
en g lis h .aljazeera.n et/n ew s /as ia-pac if
ic/2011/07/201172223937449686.html>,
9
For more info about this regional engagement,
see <http://www.baliprocess.net>.
10 ‘Refugee issue grows’, The Star Online,
24 Dec 2011, <http://thestar.com.my/
n e w s / s t o r y. a s p ? f i l e = / 2 0 1 1 / 1 2 / 2 4 /
nation/10154611&sec=nation>.
13 Malaysia has not ratified the United Nations
Convention Against Torture.
14 ‘HRW urges UN against refugee swap’,
26 Jul 2011, <www.malaysiakini.com /
news/171087>.
15 “Aussie High Court rules asylum del with M’sia
unlawful’, The Sun, 31 Aug 2011, <http://www.
thesundaily.my/news/128762>, Accessed: 6
Dec 2011.
16 ‘ Aust-M’sia deal failure a ‘major embarrassment’,
Malaysiakini, 1 Sept 2011, <www.malaysia kini.
com/news/174579>. See also ‘Canberra-KL
refugee swap deal in doubt’, Malaysiakini, 17 Sept
2011, <www.malaysiakini.com/news/176096>.
Accessed: 2 Sept 2011; and ‘Australia abandons
refugee-swap deal with Malaysia’, Malaysiakini,
13 Oct 2011, <http://thestar.com.my/ news/
story.asp?file=/2011/10/13/nation/20111013
162640&sec=nation>, Accessed: 14 Oct 2011.
17 ‘Australian PM Julia Gillard drops Malaysia
asylum plan’, BBC News, 13 Oct 2011,
<http://www.bbc.co.uk/news/world-asiapacific-15285848>, Accessed: 6 Dec 2011.
97
SUARAM-2011.indb 97
8/18/12 2:03 PM
18 ‘Gov’t to offer illegals amnesty to work’,
malaysiakini. com/news/166209>.
19 ibid.
20 ‘New deadline for 6P exercise’, The Star
Online, 15 Feb 2012, <http://thestar.com.
Feb 2012.
21 “ The government claimed that it would
engage a four million strong enforcement task
force comprising immigration officers, nearly
3 million RELA personnel, 125,000 police
officers and 110,000 members of the army to
sweep out these ‘foreign’ nationals after that
amnesty programme was over. See ‘4 Juta
Penguatkuasa Digerak”, Utusan Malaysia, 15 Oct
2011, <http://www.utusan.com.my/utusan/
info.asp?y=2011&dt=1015&pub=utusan_
malaysia&sec=Muka_Hadapan&pg=mh_02.
htm&arc=hive>, Accessed: 6 Dec 2011.
22 ‘Biometric registration of legal foreign workers
to go on indefintely’, The Malaysian Insider, 29
Jul 2011, <http://www.themalaysianinsider.
com/malaysia/article/biometric-registrationof-legal-foreign-workers-to-go-onindefinitely/>, Accessed: 30 Jul 2011.
23 ‘Halt “6P” registration of refugees immediately’,
Malaysiakini, 25 Aug 2011, <www.malaysiakini.
com/ news/174040>, Accessed: 26 Aug 2011.
24 ‘Employers say biometric system ‘riddled with
problems’, The Malaysian Insider, 1 Aug 2011,
malaysia/article/employers-say-biometricsystem-riddled-with-problems/>, 2 Aug 2011.
25 ‘Workers in Malaysia urged to join amnesty
program, The Jakarta Globe, 5 Aug 2011,
<http://www.thejakartaglobe.com/home/
workers-in-malaysia-urged-to-join-amnestyprogram/457289>, Accessed: 6 Aug 2011;
‘Why ask illegal immigrants to pay for
amnesty?’, Malaysiakini, 6 Jun 2011, <www.
6 Jun 2011.
26 ‘Thousands of refugees turned away’, Free
Malaysia Today, 23 Aug 2011, <http://
www.freemalaysiatoday.com/category/
nation/2011/08/23/thousands-of-refugeesturned-away/>, Accessed: 24 Aug 2011.
27 Between the Australian and Myanmar deals, the
Malaysian government also announced that it
would sign a similar pact with the government
of China in August 2011. See ‘KL-Beijing
to sign pact on tackling human trafficking’,
The Star, 17 Aug 2011, <http://thestar.com.
nation/9314045&sec=nation >, Accessed:18 Aug
2011 .
28 ‘Opposition to M’sia-Burma detainee swap
grows’, Malaysiakini, 21 Oct 2011, <www.
22 Oct 2011.
29 ‘Myanmar and Malaysia to swap detainees’,
The Star, 18 Oct 2011, <http://thestar.com.
my/ news/story.asp?file=/2011/10/18/parli
ament/9714711&sec=parliament>,
30 ‘Burmese detainee swap will tar nation’s
reputation’, Malaysiakini, 19 Oct 2011, <www.
20 Oct 2011.
31 ‘Malaysia-Burma detainees swap: Recognition
to tyranny’s regime’, Press Statement by
SUARAM, 18 October 2011. See also,
‘Detainee swap with Myanmar not the answer’,
The Sun, 19 Oct 2011, <www.thesundaily.my/
32 ‘Government should allow refugees to work
instead of importing foreign workers’,
Press Statement by SUARAM, 28 Feb 2011.
98
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33 ‘No to forced deportation and provide the 97
Burmese refugees with access to UNHCR
immediately’, SUARAM letter to the Prime
Minister, 7 Oct 2011.
40 ‘M’sia condemned for deporting Uighurs to
China’, Malaysiakini, 23 Aug 2011, <www.
24 Aug 2011.
34 See SUARAM Human Rights Reports,
various years.
41 Spokesperson of the US-based Uyghur
American Association, quoted in ibid.
35 The facility had 348 male and 192 female
detainees. Those who escaped – mostly
from Myanmar and Thailand but also from
Bangladesh, Nepal, Nigeria and Iran – had
first set their detention block on fire. This is not
the first time those locked up at immigration
detention camps have managed to break out.
See ‘109 immigration detainees escape after
depot blaze’, Malaysiakini, 5 Apr 2011, <www.
6 Apr 2011.
42 See above also, section on ‘RELA’.
36 ‘Massive manhunt for Lenggeng camp
escapees’, Malaysiakini, 6 Apr 2011, <www.
7 Apr 2011.
37 Report of the Working Group on Arbitrary
Detention (Addendum), Mission to Malaysia,
Human Rights Council, 16th session, 8 Feb
2011, A/HRC/16/47/Add.2.
38 ‘Home Ministry to embark comprehensive
investigation on the cause(s) of the incident’,
Press Statement by SUARAM, 6 Apr 2011.
See also, ‘Siasat punca rusuhan, tahanan lari
diri’, Malaysiakini, 7 Apr 2011, <http://www.
malaysiakini.com/letters/160841>, Accessed:
8 Apr 2011.
39 See ‘Forced return of 11 Uighurs from
Malaysia’, Press Statement by SUARAM,
HEI, Tenaganita, Civil Society Committee
of LLG (Cultural Development Centre), 25
Aug 2011, posted on the website of the Asia
Pacific Refugee Rights Network, <http://
refugeerightsasiapacific.org/2011/08/25/
forced-return-of-11-uighurs/>, Accessed: 26
Aug 2011.
43 ‘Opposition to M’sia-Burma detainee swap
grows’, Malaysiakini, 21 Oct 2011, <www.
6 Dec 2011.
44 ‘People trafficking likely to have negative
economic impact’, The Star, 14 Oct 2011,
asp?file=/2011/10/14/nation/2011101413
0419&sec=nation >, Accessed: 15 Oct 2011.
45 ‘Wikileaks: Immigration dept linked to
human trafficking’, Malaysiakini, 4 Sept
2011,
<http://www.malaysiakini.com/
46 Although RELA is voluntary, its regular
members were paid RM4 per hour, while the
officers got RM5.80 per hour. These rates
were upped in January 2012 (‘Govt raises
Rela staff allowance by RM2’, The Star, 28 Jan
asp?file=/2012/1/28/ nation/201201281630
09&sec=nation >, Accessed: 28 Jan 2012).
47 ‘Reduce RELA members’, Interview with Andika
Wahab, SUARAM Refugee Coordinator, BFM
radio, 9 Feb 2011, <http://bfm.my/assets/files/
MarketWatch/2011-02-09%20Podcast%20
-%20CA%20RELA.mp3>, Accessed: 10 Feb
2011.
48 ‘Red card for human traffickers’, The Star, 11
99
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49 ‘492 arrested for human trafficking
since 2008’, The Star, 23 Aug 2011,
<http://thestar.com.my/metro/stor y.
asp?sec=nation&file=/2011/8/23/
nation/20110823183027>, Accessed:
24 Aug 2011.
50 ‘Suhakam: Eight left off lightly over human
trafficking’, The Star, 5 Aug 2011, <http://
thestar. com.my/news/story.asp?file=%2F20
11%2F8%2F5%2Fnation%2F9240529&sec=
nation >, Accessed: 6 Aug 2011.
51 This was previously the Anti-Trafficking in
Persons Act 2007 but was later amended to its
present name in 2010.
52 There is also no limit to how long s/he can
be imprisoned. See Eva-Lotta Hedman (2010),
‘Refugees in Malaysia’, IDEAS Today, No. 3,
pp9-12.
53 ’30,000 caned over the past five years,
says Amnesty’, Malaysiakini, 11 Mac 2011,
Accessed: 12 Mac 2011. See also ‘Malaysia
perlu henti sebat imigran, kata Suaram’, The
Malaysianinsider, 14 Mac 2011, <http://www.
themalaysianinsider.com/bahasa/article/
malaysia-perlu-henti-sebat-imigran-katasuaram/>, Accessed: 14 Mac 2011.
100
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CHAPTER 6:
FREE AND FAIR ELECTIONS1
8/18/12 2:03 PM
A
s the 12th Parliament of Malaysia
stepped into its fourth year, 2011
witnessed a bitterly fought and
substantially rigged State elections of Sarawak,
in which Chief Minister Taib Mahmud –
whose 30-year reign had been compared
to that of the former President of Egypt,
Hosni Mubarak – became the focus of the
Opposition’s campaign. Consequently, while
the Sarawak BN managed to stay in power, it
suffered major setbacks with a sharp drop in
popular votes (from 61.84 to 55.36 per cent)
and the loss of most urban constituencies.
The year also saw three by-elections for State
seats in Johor, Malacca and Pahang and the
50,000-strong rally organised by the Coalition
for Clean and Fair Elections 2.0 (Bersih 2.0)
on 9 July, which represented a new leaf in
the history of political participation in the
country.
Despite having regular polls since 1955,
with a brief two-year interruption in 196970, Malaysia should not be mistaken as
a democracy. Elections complement an
array of other human rights abuses – from
detention without trial to general suppression
of civil and political rights – to maintain
an authoritarian system, which may be
called an ‘electoral one-party state’.2 As this
chapter demonstrates, the flaws of Malaysia’s
electoral system and process can be seen in
relation to four areas: institutional, franchise,
contestation and polling. In this, the Election
Commission (EC), the body tasked with
overseeing Federal and State elections in the
country,3 continued to live up to its name as
the ‘BN’s 14th component party’ in 2011,
as evinced in its partiality and inconsistency
when carrying out its tasks.4
1. Institutional:
delineation
Constituency
re-
The Federal Constitution calls for intra-state
equal apportionment of Parliamentary seats
but with rural weightage on technical grounds.5
The Election Commission has capitalised
on this, treating it as a rule rather than an
exception to justify the mal-apportionment
of constituencies.6 Through this, it has
succeeded in creating rural constituencies
– from which the Barisan Nasional (BN)
currently derives much support – that are
larger than urban ones. Compounded by
the effects of gerrymandering,7 there is now
severe vote-seat disproportionality meaning
that votes cast for different parties can have
very different values, thus running against the
democratic ideal of ‘one person, one vote’.
For instance, in the 2011 Sarawak State
elections, Parti Pesaka Bumiputera Bersatu
(PBB), the dominant party in the State BN
coalition, won all 35 seats it contested and
was one seat short of forming a majority.
However, it succeeded in doing so by winning
only 28.66 per cent of all votes. Together with
its three allies and holding just over 55 per cent
of votes, the PBB controlled a 77.46 per cent
majority in the State Legislative Assembly. In
comparison, the three PR parties won only
21.13 per cent of seats despite winning twice
as many popular votes. Put differently, PBB
won 1.72 times the seats its votes warranted
while the opposition Parti Keadilan Rakyat
(PKR) won only 0.24, meaning that one vote
for the PBB was worth more than seven times
a vote for PKR.
2. Franchise
The greatest threat to the probity and
legitimacy of Malaysian elections lies
with the electoral roll. Unlike some newly
democratising countries, outright rigging
tactics such as ballot stuffing, discarding,
spoiling and miscounting of ballots are not
widely employed in Malaysia. The major
issues in the polling process include nonregistration, postal votes, impersonation,
multiple voting, and secrecy. These can be
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traced back to how the electoral register is
managed and organised; in other words, the
quality of franchise.8
To begin, the Bruno Manser Fund, a Swiss
organisation working on Sarawak, claimed
that about 480,000 or a third of total eligible
citizens in the State were unregistered voters,
and that most of them were from rural
communities who had suffered under the Taib
government’s land grab and logging policies.
It also said that thousands more Sarawak
natives did not even possess identity papers
to qualify for franchise.9 In the entire State
– the same geographical size as Peninsular
Malaysia – the EC has only one single office
in the capital, Kuching, and a very limited
operating budget. This has contributed to a
voter registration rate which is as low as 20-30
per cent in certain inland constituencies.10
Moreover, Malaysia has a very rigid system
for absentee voting. This is limited to a postal
voting system which is further restricted to a
select group of persons. These include military
personnel; civil servants posted overseas (e.g.
diplomats); and tertiary students abroad, as
well as the spouses of these citizens. Election
workers and members of the EC can apply
to cast postal ballots, and the EC can also
designate other categories of voters as postal
voters via notification on gazette. As noted
in Chapter 7, in October, six Malaysians
working in the United Kingdom filed a suit
asking the High Court to compel the EC to
register them as absent voters.11
2.1 Tampering and contamination of
electoral rolls12
Different studies conducted in 2011 lend
further credibility to criticism of a flawed
electoral register. For example, research
by academic Ong Kian Ming, under the
Malaysian Electoral Roll Analysis Project
(MERAP)13 indicates that between the 4th
quarter of 2010 and the 3rd quarter of
2011, 106,743 names were deleted from
the electoral roll without any explanation.
Similarly, 6,762 names appear to have been
added in the course of the year without
going through the public display process. A
persistently high number of older voters on
the electoral register also suggested that there
was a likelihood of dead voters being retained.
The 3rd quarter electoral rolls, for instance,
had over 65,000 voters who were aged 85 or
older, and of these, 1,000 were listed as being
100 years old.14 While the failure to remove
such names can be due to the non-reporting
of deaths by the families concerned, it is more
likely that even in cases where deaths are
reported, some names continue to remain on
the electoral roll.15
In another analysis of the electoral roll by
Mimos Berhad, at least 52,722 voters were
found to be registered under the same address
with more than 100 voters. The number of
voters registered at some dubiously dense
premise was as high as 258,271 or about
two per cent of the total voters. Assuming
that each of these premises legitimately
accommodated 10 persons – which exceeds
the capacity of most urban homes – then
as many as 183,471 names could have been
added to the list thus diluting those who are
genuine voters. Interestingly, many such
addresses with high numbers of registered
voters are found in urban areas. To make
things more difficult, in Selangor, which is
currently held by the opposition PR coalition,
the EC has reorganised the electoral roll in at
least 12 parliamentary constituencies, creating
larger ‘localities’ which means that it is harder
to conduct a voter verification audit.16
Another indicator of non-resident voters
and falsified registrations are unrecognisable
voters and invalid addresses. In a voter
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registration audit conducted between 4 June
and 6 July 2011 by the independent pollster
the Merdeka Centre, and election watchdog
the National Institute for Democracy and
Electoral Integrity, eight per cent of the 1,177
names randomly selected from the electoral
roll did not have a valid address.
An electoral roll with voters who have
identical, similar or confusing personal
information in their National Registration
Identity Cards (NRIC) – suggesting
fraudulent or multiple registrations of voters
– is also deeply problematic.17 For instance,
in examining the voter registration lists for
2011, PAS discovered that at least 560 persons
nationwide had the same old NRIC number
as another voter. Further, the MERAP team
found that as many as 15,855 voters with
‘gender-confused’ identities where their new
NRIC numbers did not correspond to their
gender identity. This was most obvious in the
case of 148 Malay voters since their names –
‘bin’ (son of) or ‘binti’ (daughter of) – clearly
indicated their sex yet they were listed as the
opposite genders.
More importantly perhaps, official data
provided by the EC showed similar
inconsistencies. For example, according to EC
records, both Lakshima a/p M. Govindasamy
and B. Leelambigay a/p Batumalay were born
30 years and seven days apart, but share the
same old NRIC number (7863005) and live
in the same house (See Image 1). In another
instance, a Malay woman and a Chinese man,
Suodah binti Salleh (New NRIC No: 58051103-5576) and Teh Boon Keat (New NRIC No:
600502-10-6729) are respectively recorded as
being born in Kelantan on 11 May 1958 and
in Johor on 2 May 1960. Nevertheless, they
have the same old NRIC number (5926363)
and reside in the same house (see Image 2).18
There have also been instances where two
voters with the same name (Hanif@Hanis
Alias) and old NRIC number (4526779), have
been found living under the same roof (Lot
12, Kampung Bukit Sungai Puteh, Lembah
Jaya Utara). Both were born in Perak and
share the same birth day but were born a
year apart, i.e. 1952 and 1953 thus resulting
in them having different new NRIC numbers
(See Image 3).
Image 1: Two voters living at the same address with the same old NRIC number
(Source: PAS Selangor)
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Image 2: A Malay woman and a Chinese man living in the same address
with the same old NRIC number (Source: PAS Selangor)
Image 3: Two voters with the same name and old NRIC number
living at the same address. (Source: PAS Selangor)
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A separate analysis done for Bersih 2.0
showed that from the 4th quarter of 2007 to
the 2nd quarter of 2011, there was a nine per
cent growth rate in the number of military
and police voters nationwide (i.e. an increase
of 16,976 persons). These new postal voters
were not evenly distributed but concentrated
in selected constituencies. The highest rise
happened in Lembah Pantai, from 154 to
1,731 votes, i.e. a growth of 1,024 per cent.
Rather than being a response to a need for the
military or police to be deployed for security
purposes, closer scrutiny suggests that this shift
in numbers is more likely to do with unseating
the incumbent, Nurul Izzah Anwar Ibrahim
from PKR, who won the 2008 election by a
margin of 2,804 votes. If all the postal votes
go to the BN as the current arrangement
provides for, the coalition only needs to win
by a margin of 1,227 votes to regain the seat
they lost in 2008.
The MERAP study also found many military
and police personnel remaining as postal
voters despite passing their retirement age, i.e.
55 for the military and 50 for the police. One
example is Wan Rasidy bin Roni, recorded as
being born on 19 November 1900 and thus
should have been 111 years old in 2011 (See
Image 4). Likewise, there is evidence of new
postal voters beyond the age limit of 30, being
recruited.
The existing data also raises questions about
the integrity and credibility of the electoral
roll. In the 2011-Q2 electoral roll for
Setiawangsa, Harisah binti Ab Ghani (NRIC
No: 770130035668) (female) was listed as
being married to Zaini binti Hamzah (Military
IC No: T1110543) (female). However, when
Zaini binti Hamzah’s NRIC number was first
located in the EC website, it was found that
she had now become Zain bin Hamzah (male)
and had shifted back to Ketereh, Kelantan.
In the most recent check, however, Zain had
been reverted back to Zaini binti Hamzah.
The current voting constituencies for both
Zaini and Harisah are unknown as both are
listed as ‘being processed’ in the EC website
(See Image 5).
Table 6.1: Top 10 parliamentary seats with the highest increase in the number of
military and police voters between Q4/2007 and Q2/2011
Rank
Seat
Winning
Party
(2008)
Q4/2007
Q2/2011
Increase Increase Margin Increase/
(%)
(2008)
Margin
(%)
1
Lembah
Pantai
PR
154
1731
1577
1024.0%
2,805
56.22%
2
Telok
Kemang
PR
5566
6757
1191
21.4%
2,804
42.48%
3
Lumut
BN
11066
12239
1173
10.6%
298
393.62%
4
Pekan
BN
4346
5344
998
23.0%
26,464
3.78%
5
Hulu Langat
PR
2574
3502
928
36.1%
1,745
53.18%
6
Taiping
PR
3104
4021
917
29.5%
11,298
8.12%
7
Sepanggar
BN
579
1398
819
141.5%
11,461
7.15%
8
Pengkalan
Chepa
PR
1703
2439
736
43.2%
11,311
6.51%
9
Bayan Baru
PR
1312
1980
668
50.9%
11,029
6.06%
10
Bandar
Kuching
PR
1130
1782
652
57.7%
9,952
6.56%
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Image 4: A 111-year-old policeman on the list of postal voters
Image 5: Zaini bte Hamzah (female) aka Zaini bin Hamzah (male)
Screenshot of Zaini bte Hamzah / Perempuan being change to Zaini bin
Hamzah / Lelaki and being transffered from Setiawangsa to Ketereh
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The final worrying trend to note has been
the unusually large size or large increases
in ‘foreign-born’ voters. According to the
MERAP study, in the 3rd quarter of 2011,
there were 64,874 voters listed as ‘foreigners’
in the EC database. In most States, more than
half of these were marked as ‘Malaysianborn’ in their NRICs. The highest percentage
comes from Sabah, where 47,818 or 96.8 per
cent of the 49,389 ‘ethnic foreigners’ were
born in Malaysia (see Table 6.2).
3.1 Campaign irregularities
Malaysia has seen extremely short campaign
periods despite the much longer allowance
provided for under the law. This is problematic
as it means a non-level playing field for the
opposition particularly since the BN can have
a head-start in wooing voters. All three byelections in the peninsular in 2011 allowed
only eight days of campaigning. In Tenang,
this was particularly problematic as the
monsoon season meant that there were floods
Table 6.2: ‘Ethnic foreigners’ amongst Malaysian-born voters by State
State
‘Foreigners’
Stated as Malaysianborn on NRIC
Perlis
Kedah
Kelantan
Terengganu
Penang
Perak
24
152
306
207
237
1377
6
68
113
104
166
1042
Percentage of
Malaysian-born
‘ethnic foreigners’
25.0%
44.7%
36.9%
50.2%
70.0%
77.9%
Pahang
840
513
61.1%
Selangor
4826
2910
60.3%
Wilayah Persekutuan
Kuala Lumpur and
Putrajaya
Negeri Sembilan
2048
1272
62.1%
674
442
65.6%
Melaka
763
515
67.5%
Johor
1684
868
51.5%
Wilayah Persekutuan
Labuan
Sabah
2000
1958
97.9%
49389
47818
96.8%
Sarawak
387
327
84.5%
Total
64874
58122
89.6%
Source: Ong Kian Ming, MERAP
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towards the tail-end of the campaign period.
In Merlimau, two weeks before nomination,
the BN Chief Minister of Melaka, Mohd Ali
Rustam, was already seen walking, cycling or
driving around to meet voters on a daily basis.
Flags and banners of the Malaysian Chinese
Association (MCA), a BN component party,
were found everywhere in the town area weeks
earlier while numerous operation centres were
setup in shop-lots and houses. The EC did not
act against such pre-nomination campaigning.
A more serious problem during campaigning
is the violence and intimidation directed
against opposition parties and their
supporters. On 27 January in Tenang, for
example, individuals wearing 1Malaysia
t-shirts prevented several PKR members led
by Pantai Jerejak state assemblyman Sim
Tze Tzin from campaigning in Ladang Bukit
Dato. The delegation was eventually forced
to leave the estate after a shouting match.
In Merlimau, the auxiliary police in Sime
Darby’s Kempas Estate allegedly stopped
opposition activists, citing instructions from
‘headquarters’.19 According to another news
report, PR leaders also claimed that locals
were warned not to attend their ceramah and
those who chose to ignore this risked having
their vehicles vandalised.’20 Over in Kerdau,
PAS alleged that their leaders were prevented
from speaking to all 22 mosque congregations
in the constituency.
Likewise PKR Sarawak claimed that officials
of government agencies from within the
State and also from West Malaysia had
intimidated and harassed rural supporters of
the opposition party. Armed forces personnel,
for example, allegedly threatened to destroy
their schools if the rural folk voted for the
opposition.21 Also in Sarawak, and as noted in
Chapter 9, the state abused its powers under
Section 65 (I)(a) of the Immigration Act
1959/1963 and prevented non-Sarawakian
activists critical of Taib from entering or
remaining in the State. This included political
activist Steven Ng, academic-activist Wong
Chin Huat, lawyer-activist Haris Ibrahim,
Bersih 2.0 chair Ambiga Sreenevasan, and
election observers Syed Ibrahim Syed Noh
and Ong Boon Keong.
Another issue during the campaign period is
that of smearing. In Merlimau, leaflets with
doctored photographs of five PR leaders,
Anwar Ibrahim, PAS spiritual leader Nik Aziz
Nik Mat, Selangor Executive Councillors
Teresa Kok and Elizabeth Wong, and
Serdang MP Teo Nie Ching, with their heads
Doctored pictures of opposition leaders were distributed to the locals in Merlimau. (Photograph courtesy of Malaysiakini)
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8/18/12 2:03 PM
superimposed on half-naked female bodies
in suggestive poses, were circulated on the
first day of campaigning.22 Another leaflet
accusing the Chinese of being traitors to the
country was circulated in Taman Muhibbah,
Taman Merlimau Baru, Taman Debunga,
Taman Seri dan Taman Pasir. Malay ultraright group Perkasa, whose symbol was found
on the leaflet, denied any involvement and
lodged a police report against it. The outcome
of the police investigation, if any, was not
made known.23 In a separate development,
PAS candidate Yuhaizad Abdullah had to
hold a press conference to debunk a rumour
that his candidacy was against the wishes of
his wife, a school teacher, and many other
family members who were civil servants.24
3.2 Corrupt practices
DAP alleges vote-buying in Tenang – A torn RM3,000.00 cheque
issued by MCA branch in Tenang (Photograph courtesy of Free
Malaysia Today)
Three types of vote-buying can be identified
in Malaysia: direct, indirect and ‘treating’. In
2011, several allegations of direct vote-buying
involving the exchange of money, surfaced.
During the Tenang by-election, the DAP
accused the MCA of giving out RM3,000
cheques signed by a branch chairperson,25 but
the latter denied this. In Merlimau, the DAP
again claimed that on polling day, a group
of people were handing out RM100 cash to
Chinese voters along a footpath about 200
meters from a polling station. The DAP leader
who lodged the police report also said that he
recognised one man in the group as a MCA
local councillor.26 Over in Sarawak, the DAP
produced a video clip showing a government
official from the Sibu Municipal Council,
allegedly buying votes from four women,
believed to be teachers engaged as election
workers (and hence qualified to be postal
voters). The incident took place at the Sanyan
Building near the postal voting centre.27
After the polls were over, two more videos
of vote-buying emerged. These were made
available by Ong Boon Keong, coordinator
of the Election watchdog Malaysian Election
Observers Network (Meonet). The first
showed a tuai rumah (head of the longhouse)
in the Tamin constituency admitting to
having received RM10,000 on behalf of his
longhouse in exchange for his support for
the BN.28 Speaking in Iban, the tuai rumah
claimed that some BN representatives gave
the longhouse development and security
committee three cheques, one for RM5,000
was given on the morning of 13 April, while
two others totalling RM5,000 were delivered
earlier. On top of that, 14 heads of families
living in the community were allegedly given
RM50 each as well. The predominantly Iban
constituency, Tamin, was ultimately won by
the BN-PRS candidate Joseph Mauh Ikeh.
With 4,998 votes, he defeated PKR’s Mengga
Mikui who garnered only 3,706 votes.29
In the second video,30 allegedly shot in the
verandah of the Rumah Unban Anak Endu
longhouse at Tenting Terentang in Nanga
Selangau, stacks of ringgit notes were shown
placed on the floor for open distribution to
members of the longhouse on the night of 14
April, two days before the polls. According to
Ong, the tuai rumah of Rumah Unban Anak
Endu and other longhouses were summoned
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8/18/12 2:03 PM
to the BN office in Selangau town where
three assistants to the BN candidate gave
them cheques. The tuai rumah of Rumah
Unban Anak Endu then cashed his cheque
to distribute RM50 to each resident who
was expected to vote for the BN.31 Ong
later produced photocopies of vouchers and
claimed that the payments to the tuai rumah
had come from the Chief Minister’s office.32
On 25 April, election watchdog Sibu Election
Watch (SEW) highlighted that more than 100
indigenous voters had gone to the Sarawak
United People’s Party (SUPP) Sibu office to
demand the balance of the RM400 payment
they were each promised for supporting the
party in the election. SUPP claimed that the
party was only paying wages to these voters.
In Kerdau by-election, Minister for Women, Family and
Community Development, Shahrizat Abdul Jalil distributed
gifts under the ‘Teman 1Azam’ project on the condition that the
locals put up BN logo at their homes. (Photograph courtesy of
Malaysiakini)
SEW countered that one voter from Rumah
Ujang said there was a quarrel with their
tuai rumah who held back their payment,
arguing that the villagers had voted for the
opposition instead. SEW also produced a
letter expressing the anger of members of the
longhouse with their tuai rumah for failing to
pay them the balance of what was promised.33
None of these cases have resulted in any
known investigation or prosecution.
Besides these examples of direct vote-buying,
there were instances of indirect vote-buying
too where constituents were induced to
vote for the ruling party in exchange for
‘development’. On 19 February, no less than
the Prime Minister, Najib Razak, was seen
as openly bribing Chinese constituents in
Merlimau, saying ‘Lu tolong gua, gua tolong
lu (You help me, I help you)’ to around 1,000
people at a campaign event.34 At the Kerdau
by-elections in February, he promised the
residents there that he would increase Federal
allocations to the constituency if they voted
for the BN candidate. He said, ‘We don’t buy
votes, but if you support us we can increase the
allocation tomorrow or later. But show support
for Barisan Nasional first’35 The following day,
28 February, the Minister for Women, Family
and Community Development, Shahrizat
Abdul Jalil distributed gifts from the Welfare
Department to low-income families, under
the ‘Teman 1Azam’ project on the condition
that they put up the BN logo at their homes.36
During these by-elections, the BN was also
alleged to have wooed voters through a
1Malaysia ‘NGO’ which first surfaced in
the Galas by-election in November 2010.
On the eve of polling day in Tenang, this
‘NGO’ organised a 500-table dinner for local
Chinese voters, which was attended by the
BN candidate Mohd Azahar Ibrahim, MCA
President Chua Soi Lek and Johor Menteri
Besar Abdul Ghani Othman. Skimpilyclad dancers and lucky draws with prizes
such as plasma televisions and motorcycles
were offered to the villagers. Earlier, its
‘coordinator’ denied any political links and
funding from the BN and said that its money
came from businessmen supportive of Najib’s
1Malaysia idea.37 The following month, the
same NGO organised a dinner for around
1,000 Indian voters in Merlimau. Each
was given a free 1Malaysia t-shirt and the
opportunity to win prizes such as motorcycles,
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8/18/12 2:03 PM
bicycles and electrical appliances in a lucky
draw.38 During the Kerdau by-election,
the NGO organised two free dinners at the
Kerdau Chinese Primary School. Besides a
free banquet meal, the organisers held singing
and dancing shows, as well as a lucky draw.39
At the same time, there have been allegations
that a number of top BN politicians might
have exercised ‘undue influence’ during
their campaigning at these by-elections. For
example, on 28 February, the Deputy Prime
Minister Muhyiddin Yassin handed-out
RM18.4mn to the principals of 586 primary
schools under the ‘Anugerah Tawaran Baru’
scheme. This recognised schools that showed
a big leap in their performance and achieved
National Key Result Area (NKRA) targets
in 2010. In his speech, Muhyiddin openly
admitted that this was part of his efforts to
woo the votes of teachers. He went on to say
what could be construed as a subtle threat:
‘In fact I shouldn’t have to campaign with
teachers, looking at the faces (I know) they
are 100 percent BN supporters’.40 Similarly at
another function, the Melaka Chief Minister
reportedly told the crowd comprising RELA
members, the civil volunteer corps, that the
Home Minister, Hishammuddin Hussein was
a ‘general’ and thus, ‘Everyone should listen
to the general’s instruction, and that is, to vote
BN on 6 March’41.
3.3 Impartial public institutions
3.3.1 Development and funding
The abuse of state apparatus and resources
to gain votes for the ruling BN coalition
was also evident in the 2011 by-elections. In
Tenang, senior politicians and government
administrators who promised public projects
or allocations included the Prime Minister,
his Deputy, Rural and Regional Development
Minister Mohd Shafie Apdal, and Johor
State Education Department director,
Markom Giram. These covered a wide
range of promises such as an allocation for
FELDA (RM1.6bn), a new religious school
(RM2.4mn), maintenance of 15 schools
(RM1.7mn), upgrading of mosques, surau and
religious schools (RM1.13mn), 20 new houses
for the Orang Asli (RM660,000), a mobile
clinic, and various other projects to the tune
of RM30 million.42 During the by-election,
it was also rumoured that single mothers in
the constituency would be given RM200
and hampers, parents who earned less than
RM2,000 would receive RM450, and those
who put up BN flags could get RM1,000.
MCA State Executive Council member Tan
Kok Hong denied these rumours and said
it was the Welfare Department, rather than
the party, that were offering these financial
incentives.43
The Merlimau by-election saw almost all
the Federal frontbenchers helping in the
campaign of the BN candidate, Roslan
Ahmad. On 4 March alone, Malaysiakini
reported the presence of four ministers and
three deputy ministers on the campaign trail.
Not only did they refrain from distinguishing
between their governmental duties and their
partisan message, but rather, they deliberately
conflated the two. For example, the Minister of
Domestic Trade, Cooperative and Consumer
Affairs Ismail Sabri Yaacob, donated 20
laptops and pasted 1Malaysia stickers onto
55 taxis. Rural and Regional Development
Minister, Shafie Apdal, announced allocations
of RM8,000 to upgrade roads, and RM2,000
for local activities when meeting voters at the
Sime Darby Kempas Plantation.44
Other BN leaders who lavished Merlimau
with handouts included PM Najib Razak,
DPM Muhyiddin Yassin, Malacca Chief
Minister Mohd Ali Rustam, de facto Minister
of Islamic Affairs Jamil Khir Baharom,
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Tourism Minister Ng Yen Yen and the BN
candidate. Their ‘gifts’ included upgrading a
jetty (RM5.5mn), building a religious school
(RM1.5mn), repairing of mosques, surau and
religious schools (RM371,000), upgrading
of tourism infrastructure, and distributing
hampers as well as bicycles to needy students.
Indian voters were not left out either. They
were promised a ‘magnificent’ temple and
a new Tamil school building to house 175
students who had been sharing premises with
a secondary school for 40 years45.
Similarly, the Kerdau by-election witnessed
appearances by BN leaders like Najib and
Muhyiddin, along with Health Minister Liow
Tiong Lai, Minister of Housing and Local
Government Chor Chee Heung, and Minister
in the Prime Minister’s Department, Koh Tsu
Koon. They handed out ‘gifts’ like funds to
build a new mosque (RM2mn) and schools
including one for Tamil students (RM6.1mn),
as well as to upgrade the water supply
infrastructure (RM9.25mn), infrastructure
for the Chinese and Indian communities
(RM650,000), and village infrastructure
(RM220,000). They also extended aid to
an old folks home (RM50,000), settled cess
payments for Felda settlers in Jengka 22
(RM13,000 per person),46 and distributed
hampers and food packages from the Health
Ministry.
3.3.2 Political retaliation
In Tenang, the Johor Education Department
had also allegedly abused its position by
campaigning for the ruling party and
harassing the PAS candidate, Normala
Sudirman’s teacher husband Maarof Abd
Mutalib. The latter complained about an
attempt by the State’s education department
to transfer him from Tenang to a school in
Pasir Gudang, Johor Bahru, on grounds that
he could not ‘control his wife’. The directive,
which ordered Maarof to relocate within 24
hours, was later retracted after the couple
protested. However, the Johor Education
Department director Markom Giram denied
that the transfer had anything to do with
the by-election and claimed that they were
unaware at the time that Maarof ’s wife was
the chosen PAS candidate.47
In a separate incident, Makrom was shown
on a Youtube video clip, instructing teachers
‘to help the government to win the by-election
this round’.48 He also told the teachers to
organise motivational programmes for their
students, after which they were required to
meet with the students’ parents to ascertain
their political affiliations. Johor PAS deputy
commissioner Dzulkefly Ahmad subsequently
lodged a police report on Markom’s alleged
campaigning activities but Markom denied all
allegations. He said he was merely identifying
the political tendencies of teachers to ensure
that they ‘support the government’s policies’
and those teachers who were identified as
anti-government would be sent for courses
‘to let them understand that a government
servant [sic] should not be against government
policy’.49
In Sarawak, PKR claimed that several tuai
rumah were replaced by pro-BN men following
the 16 April State election. This went
contrary to the practice where the tuai rumah,
even though on the government payroll, were
elected by members of their community. In
Machan, Kanowit, for instance, six tuai rumah
were sacked without reason after the State
elections. Nevertheless, it is widely believed
that this was because their longhouses had
supported the PKR candidate. In Ngemah,
Kanowit, the State government was said to
have appointed the losing candidate rather
than the winner as the tuai rumah.50
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3.3.3 Racist propaganda
Another state institution, the Biro Tata
Negara (BTN, National Civics Bureau), was
utilised during the Merlimau by-election, to
persuade voters not to support the opposition
candidate. Specifically, its officials showed
a DVD around 40 minutes long, which first
detailed how the DAP was a threat to Malays
and Muslims, before concluding that the
party’s aim was to abolish Article 3 (Islam as
the religion of the Federation), Article 152
(National language) and Article 153 (Special
position of the Malays and natives of Sabah
and Sarawak).51
capacity crowds in various towns. Earlier,
two indigenous activists, Abun Sui Anyit and
Nicholas Mujah had been arrested over the
possession of materials like CDs and leaflets
containing reports from Radio Free Sarawak
and TV Sarawak Bebas. They were detained
separately under Sedition Act and Film
Censorship Act respectively.53
3.4 Media controls and attacks
The BN government’s control over the mass
media was most evident during the Sarawak
by-elections. According to media watchdogs,
the Centre for Independent Journalism
(CIJ), Charter 2000-Aliran, and Writers’
Alliance for Media Independence (WAMI),
during the lead-up to these polls, Sarawak
Report, an internet portal fiercely critical of
the Taib Mahmud administration suffered
interruptions to its service before eventually
experiencing a full-scale Distributed Denial
of Service (DDoS) attack on 10 April.52
The site was rendered inaccessible for
three days, eventually forcing the owners to
relocate its site. Subscription-based news
portal Malaysiakini was attacked in the same
manner on 12 April, forcing its owners to turn
to social media to get their news out.
Further, news on critical issues such as
native customary land, poverty, the rape of
Penan women by logging company workers,
and Taib’s rule were all under-reported or
censored. According to a Malaysiakini report
on 13 April, UMNO-controlled TV stations
were ordered not to broadcast footage of the
opposition’s nightly talks which had drawn
Abdul Taib Mahmud was sworn in for the seventh time as Chief
Minister of Sarawak despite being linked to international money
laundering involving Ta Ann Holdings (Photograph courtesy of
Malaysiakini)
4. Polling, Counting and Tabulation
The most common issues during the polling
stage are impersonation and multiple voting,
otherwise known as the phenomenon of
‘phantom voters’. Although the EC finally
agreed to the use of indelible ink to help
overcome these problems – it did so only after
tremendous pressure was generated by the
Bersih 2.0 rally – other problems continued to
prevent free and fair elections in 2011.
While there were no allegations of irregularities
in the polling, counting and tabulation stages
at the Tenang elections, the by-election itself
was marred by the government’s failure to
halt the polling process on 30 January when
serious floods hit most of the constituency,
including the Labis town centre. One of the
polling stations badly affected by the floods
was SMK Kamarul Arrifin, the polling centre
for Bandar Labis Tengah. Flood waters cut
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off the road connecting the school to the
town and stranded many voters, journalists
and even VIPs including the Deputy Prime
Minister.54 Despite this, the EC chief Abdul
Aziz Yusof refused to extend the polling time
on grounds that government agencies were
helping to transport voters to the polling
centres. The opposition complained that the
government had been ‘selective’ in assisting
voters as there was more transportation
deployed to pro-BN areas.55 As well, PR
claimed that Chinese-majority polling centres
in town registered a low turnout. However,
exact figures were not known because the EC
did not reveal the turnout rate for each polling
station.
In Merlimau, PAS Merlimau by-election
campaign chief Halim Abdul Rahman
accused BN of hiring 750 students as
phantom voters for the day. The Pengkalan
Chepa MP claimed that students had been
offered a reward to vote using identity cards
of registered voters in Merlimau.56 However,
after the by-election, PAS did not produce
any evidence to substantiate their claim.
Interestingly, at no point did the BN refute
this allegation either.
A different challenge surfaced in Sarawak
where some electoral officers were found
without the Borang 14 (Form 14), which
records the total number of votes obtained
by the respective parties after the counting
process. This form, to be signed at the end
of the count by the representatives of the
respective candidates at the polling centre,
may be tampered with otherwise. In fact,
PKR claimed that in a few polling stations,
the opposition’s counting agents were not
given their copies of Borang 14, hence
denying them any evidence of the votes they
had won.57 PKR deputy president Azmin
Ali claimed that the EC staff ’ started off
by refusing to surrender the Borang 14 to
PKR’s agents in N14 Asajaya and N18
Tedelu, and that eventually, the trend spread
to other areas ‘as if there is a general order
(for this)’. He claimed that the BN feared
PKR’s performance in the urban areas after
seeing the opposition party’s strong support in
interior constituencies like Krian, Kakus and
even Layar.58
5. Recommendations
i. Cleanup the electoral rolls.
ii. Reform the postal voting system to
ensure transparency and to enfranchise
Malaysian citizens living abroad.
iii. Ensure a minimum of 21 days for
electoral campaigning.
iv. Strengthen public institutions involved
in the electoral process, including
the judiciary, Election Commission,
Malaysian Anti-Corruption Commission,
police and broadcasting media to ensure
their independence and professionalism.
v. Curb corruption and vote-buying by
imposing a compulsory audit of all
election expenses, campaign financing,
a full disclosure of source of financing
and expenditure, and setting a limit on
campaign expenses.
vi. End dirty politics and unethical practices
that appeal to religious or communal
sentiments, including false statements,
personal attacks, and all forms of
intolerant statements particularly against
women and marginalised groups.
vii. Ensure that there is free and fair access to
the media for all contesting at the polls.
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viii.Remove any restrictions that deny an
independent body the right to observe
the elections.i
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8/18/12 2:03 PM
End Notes
1
This chapter was written by Dr Wong Chin
Huat. The author is a political scientist by
training and a journalist lecturer by trade,
based at Monash University Sunway Campus.
He is also a Steering Committee member of
the Coalition for Clean and Fair Elections 2.0
(Bersih 2.0).
2
Wong, Chin-Huat, Chin, James and Norani
Othman (2010) ‘Malaysia - towards a topology
of an electoral one-party state’, Democratization,
17:5, pp920-949
3
Malaysians have only two ballots to cast, one
for the Parliamentary representative and
the other for the State legislator. There is
no elected third-tier of government as city,
municipality and district authorities are all
appointed, either by the State of Federal
Government. The office bearers of village or
community governing bodies – which have
no taxing authority and little administrative
power – are also appointed.
4
Commissioners of the Election Commission are
former top civil servants, i.e. trained to execute
instructions of ministers in their careers, rather
than standing up to them. Apart from this,
their appointments are recommended by the
Prime Minister. As well, the agency is funded
out of the Prime Minister’s Department; and
its staff recruited from amongst federal, state
and local government officials, many of whom
do not observe administrative neutrality.
5
See the Federal Constitution, Section 2(c), Part
1 of the 13th Schedule.
6
Mal-apportionment of constituencies refers to
disparity of electorate size across constituencies,
which may be the outcome of following certain
administrative, socio-cultural, economic or other
‘natural’ boundaries, or simply due to deliberate
manipulation.
7
Unlike mal-apportionment, gerrymandering
occurs when constituencies are deliberately
drawn in a partisan manner to result in certain
compositions of the electorate that would
benefit some parties and disadvantage others.
8
Apart from these, there are other problems
that deprive Malaysians of the right to vote.
These include the voting eligibility age which
has been set at 21, compared to most other
countries which has set this at 18 or even lower.
See Saya Anak Bangsa Malaysia, ‘Malaysian
civil society’s memorandum on electoral
reforms in Malaysia’, 12 Jul 2012, <http://
www.sayaanakbangsamalaysia.net/index.
php?option=com_
content&view=article&id
=412:malaysian-civil-societys-memorandumon-electoral-reforms-in-malaysia-2010&catid=
1:letters&Itemid=88>, Accessed: 13 Jun 2010.
9
The Bruno Manser Fund, ‘Taib maintains
power in a scandal-filled election’, The Borneo
Project, 19 Apr 2011, <http://borneoproject.
org/updates/taib-maintains-power-in-a-scandal-filled-election>, Accessed: 22 Jun 2012.
10 Ong BK, ‘Sarawak’s low voter registration
problems: a response to EC’, Loyar Burok, 22
Feb 2010, <http://www.loyarburok.com/
human-rights/express-yourself/sarawaks-lowvoter-registration-problems-a-response-toec/>, Accessed: 13 Jun 2010.
11 They are part of the estimated 700,000 to one
million overseas Malaysians who cannot vote
due to the restrictions under the current system.
12 Wong, Chin Huat, ‘The cleanest electoral rolls’
in Wong Chin Huat and Soon Li Tsin (eds)
Democracy at stake? Examining the 16 by-elections
in Malaysia 2008-2011, Petaling Jaya: SIRD
(forthcoming). Unless otherwise indicated, this
is the primary source of detailed information
in this section on the electoral roll.
117
8/18/12 2:03 PM
13 Presentation at the press conference held by
Bersih 2.0, ‘Data Integrity and Transparency,
Election Commission’ at the Kuala Lumpur
and Selangor Chinese Assembly Hall, (KLSCAH), 23 Apr, 2012.
20 ‘PAS comes under more attacks’, Free Malaysia
Today, 4 Mac 2011, <http://www.freemalaysiatoday. com/category/nation/2011/03/04/
pas-comes-under-more-attacks/>, Accessed:
5 Mac 2011.
14 Presentation at the Tindak Malaysia public
forum, ‘How clean will the 13th General Elections be?’, Civic Centre, Petaling Jaya, 24 Apr
2012.
21 PKR Sarawak, ‘Submission before the Parliamentary Select Committee on Electoral Reform’, 8 Dec 2011, <http://www.barubian.
net/2011/12/submission-before-parliamentary-select.html>, Accessed: 22 Jun 2012.
15 PAS, for example, has twice highlighted the existence of dead voters on the electoral rolls in
Shah Alam, once in 2007 and the second time
2008. Despite this, the EC has done little to
rectify the problem.
16 Bangi, for instance, is now seven times its size
in 2008.
17 All Malaysians are supposed to have only
one unique 7-/8-digit Old NRIC number
(phrased out in 1991), one unique 12-digit
New NRIC number (since 1991) and, for
military or police personnel, one unique
military/police identity card.The 12 digits
in the NRIC basically means yymmdd-ss###g where ‘yymmddd’ refers to the ‘date
of birth’, while ‘ss’ refers to the Malaysian
state or the foreign country of the birth place
while ‘###g’ is a set of randomly generated
number, with g refers to ‘gender’, indicating
a male by an odd number and a female by an
even number.
18 The address was the same but written in a
slightly different manner. It is uncommon in
Malaysia to find a Muslim and a non-Muslim
of different genders living under the same
roof as the former can easily be charged with
khalwat (‘close proximity’), a crime under the
country’s Syariah laws.
19 The estate manager, Abdul Aziz Jamal, later
denied that there was such an instruction from
the company’s headquarters. ‘Estate guards
shut out Pakatan campaigners’, Malaysiakini,
2 Mac 2011, <http://www.malaysiakini.
com/news/157517>, Accessed: 3 Mac 2011.
tembak/>, Accessed: 29 Sept 2011.
22 ‘Doctored lewd photos outrage Pakatan in
Merlimau’, Malaysiakini, 27 Feb 2011, <http://
Accessed: 28 Feb 2011.
23 ‘Hate leaflets begin to flood Merlimau’,
25 Feb 2011.
24 ‘I have my family’s full backing’, New Straits
Times, 28 Feb 2011, p4.
25 ‘DAP alleges vote-buying in Tenang’, Free
Malaysia Today, 30 Jan 2011, <http://www.
freemalaysia today.com/category/nation/2011/01/30/dap-alleges-vote-buyingin-tenang/>, Accessed: 31 Jan 2011.
26 ‘DAP MP alleges vote-buying in Merlimau’,
7 Mac 2011.
27 ‘DAP identifies man in alleged vote-buying’,
Malaysiakini, 14 Apr 2012, <http://www.
malaysiakini. com/news/161505>, Accessed: 22 Jun 2012. The video is available at <http://www.youtube.com/watch?
v=Ky6otCCcusg>, Accessed: 22 Jun 2012.
28 The video is available at http://www.youtube.
com/watch?v=qe80f_ujRig, as accessed on
June 22, 2012.
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8/18/12 2:03 PM
29 ‘BN gave us RM10,000, claims “tuai rumah”’, Malaysiakini, 20 Apr 2011, <http://
www.malaysiakini.com/news/162000>, Accessed: 22 Jun 2012.
30 See<http://www.malaysiakini.tv/video/21648/more-evidence-on-alleged-votebuying-in-sarawak.html>, Accessed: 22 Jun
2012.
31 ‘More “evidence” of alleged vote-buying
in Sarawak’, Malaysiakini, 26 May
2011, <http://www.malaysia kini.com/
news/165174>,Accessed: 22 Jun 2012.
32 ‘S’wak CM’s office “issued cheques to buy
votes”’, Malaysiakini, 30 May 2011, <http://
www.malaysia kini.com/news/165492>, Accessed: 22 Jun 2012. In a move likely aimed
at curbing curb his whistle-blowing exploits,
Ong was deported by Sarawak immigration
officials without reason when he returned
there to conduct follow-up work in May 2011.
33 ‘Polls watchdog reiterates S’wak vote-buying
claim’, Malaysiakini, 27 Apr 2011, <http://
www.malaysia kini.com/news/162602>, Accessed: 28 Apr 2011.
34 ‘Is the EC hazy, selective or gutless?’, Malaysiakini, 27 Feb 2011, <http://www.malaysiakini.com/news/ 157163>, Accessed: 28 Feb
2011.
35 ‘Support BN for more funds, Najib tells
Kerdau voters’, The Malaysian Insider, 27
Feb 2011, <http://www.themalaysianinsider.
com/malaysia/article/support-bn-for-morefunds-najib-tells-kerdau-voters/>, Accessed:
28 Feb 2011.
36 ‘100 kotak “bantuan” BN tiba ke Kerdau’,
1 Mac 2011.
37
1Malaysia dinner to derail Pakatan megaceramah’, Malaysiakini, 27 Jan 2011, <http://
www.malaysia kini. com/news/154676>,
Accessed: 28 Jan 2011; ‘1Malaysia “NGO” reemerges with goodies in hand’, Malaysiakini,
23 Jan 2011, <http://www.malaysiakini.com/
news/154231>, Accessed: 24 Jan 2011.
38 ‘Biawak if lucky: No goodies for Merlimau
poor’, Malaysiakini, 4 Mac 2011, <http://
39
‘BN-Pakatan night events side by side’, Malaysiakini, 3 Mac 2011, <http://www.malaysiakini.com/news/157560>, Accessed: 4 Mac
2011.
40 ‘BN woos teachers with RM18.4 million bounty’, Malaysiakini, 28 Feb 2011, <http://www.
1 Mac 2011.
41 ‘BN-Pakatan night events side by side’,
4 Mac 2011.
42 Felda to get RM1.6b as Najib woos settlers in
Tenang’, The Malaysian Insider, 18 Jan 2011,
<http://www.themalaysianinsider.com/malaysia/article/felda-to-get-rm1.6b-as-najibwoos-settlers-in-tenang/>, Accessed: 19 Jan
2011;
<http://www.themalaysianinsider.
com/malaysia/article/muhyiddin-warnstenang-against-making-mistake/>, Accessed:
43 ‘By-election windfall for Tenang residents’,
Malaysiakini, 23 Jan 2011, <http://www.malaysiakini.com/news/154233>, Accessed: 24
Jan 2011.
44 ‘BN-Pakatan night events side by side’,
4 Mac 2011.
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45 ‘Merlimau: By-election and the promised
lands’, Malaysiakini, 13 Feb 2011, <http://
Accessed: 14 Feb 2011.
53 ‘Sarawak activists, lawyer detained ahead of
polls’, Malaysiakini, 7 Jan 2011, <http://www.
8 Jan 2011..
46 Cess payments refer to ‘monies deducted
from the sale of rubber for the purpose of
replanting rubber plantations with oil palm’.
See ‘After Kerdau=Merlimau, reform or
revolt’, Harakahdaily, 6 Mac 2011, <http://
en.harakahdaily.net/index.php/columnist/
dr-dzulkefly-ahmad/2393-after-kerdaumerlimau-reform-or-revolt.html>, Accessed:
7 Mac 2011.
54 Two military trucks were sent to rescue the
Deputy Prime Minister and his entourage
out of the flooded area. The operation was
criticised for not helping the locals who were
similarly stranded, despite having ample
space in these vehicles. Muhyiddin dismissed
these saying that the government had fulfilled
both the obligation to evacuate flood victims
and ensure that the constituents were able to
exercise their right to vote.
47 ‘Johor Education Dept chief: Transfer not due
to politics’, Malaysiakini, 17 Jan 2011, <http://
48 ‘Johor Education Dept Director on video’,
anilnetto.com, 17 Jan 2011, <http://anilnetto.
com/malaysian-politics/malaysian-elections/
johor-education-dept-director-caught-onvideo/>, Accessed: 18 Jan 2011.
49 ‘Markom was “just looking for anti-gov’t
teachers”, Malaysiakini, 17 Jan 2011, <http://
50 PKR Sarawak, ‘Submission before the
Parliamentary Select Committee on Electoral
Reform’, 8 Dec 2011, <http://www.
barubian.net/2011/12/submission-beforeparliamentary-select.html>, Accessed:
22 Jun 2012.
51 ‘BTN hits the campaign trail for BN’,
2 Mac 2011.
55 ‘Pakatan decries selective assistance to voters’,
Malaysiakini, 30 Jan 2011, <http://www.
31 Jan 2011.
56 There is a polytechnic in Merlimau with
over 5,000 students. ‘“Buying” students to
influence parents’, Free Malaysia Today, 5
Mac 2011, <http://www.freemalaysiatoday.
com/category/nation/2011/03/05/buyingstudents-to-influence-parents/>, Accessed: 6
Mac 2011.
57 PKR Sarawak, ‘Submission before the
Parliamentary Select Committee on Electoral
Reform’, 8 Dec 2011, <http://www.
barubian.net/2011/12/submission-beforeparliamentary-select.html>, Accessed:
22 Jun 2012.
58 ‘PKR cries foul over withholding of tally
sheet’, Malaysiakini, 16 Apr 2011, <http://
Accessed: 22 Jun 2012.
52 CIJ, Charter 2000-Aliran and WAMI, ‘Control
of information handicaps Sarawak elections’,
Sarawak News, 15 Apr 2011, <http://
sarawaknews.wordpress.com/2011/04/15/
sarawak-elections-handicapped-by-mediacontrol/>, Accessed:22 Jun 2011.
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CHAPTER 7:
LAW AND THE JUDICIARY
8/18/12 2:03 PM
“
“
…My administration is committed to an independent judiciary which is an essential
ingredient in any successful nation-building effort… The relationship must not only
be proper, it must be seen to be proper…
”
Najib Razak, Prime Minister of Malaysia,
Speech at the annual judges’ conference, Putrajaya1
…The judiciary was an important organ in the separation of powers and each
branch – executive, judiciary and legislature – must ensure that respect and noninterference exist…
D
”
espite these noble claims by the
Prime Minister and the Chief Justice
(as he then was), the idea that judges
and the courts were impartial did not gain
a lot of traction in 2011. Whether it had to
do with how the government continued to
influence developments within the judiciary,
or the conduct of judges themselves, how
free the judiciary was remained a question
mark throughout the year. Though perfectly
well placed to introduce new benchmarks for
human rights by making progressive rulings,
few judges capitalised on this opportunity to
set higher standards. Instead their decisions
deprived some citizens of their rights, while
others were left rueing their lack of recourse
to justice. The year was also marked by a
series of ongoing and new high profile trials.
All were important in demonstrating the
challenges of ensuring a truly independent
judiciary.
Chief Justice Zaki Azmi (as he then was)
cited at the same conference above
1. Judges and the Administration of
Justice
1.1 Appointments to the judiciary
In reply to a written question posed in
Parliament by M. Manogaran (DAP-Teluk
Intan), Prime Minister Najib said that seniority
was not a decisive factor in the appointment
of the Chief Justice of Malaysia.2 He said
that the Judicial Appointments Commission
(“JAC”) had deliberated on the names of all
senior judges during the selection process, and
in accordance with the judicial Appointments
Commission Act 2009 (“JACA”) this selection
was done via a confidential vote and majority
decision. The selection criterion was also
supposedly based on merit, measured against
one’s integrity, competency, professional
experience, and assertiveness in passing
judgments. Further, under the JACA
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Law and the Judiciary
2009, the Prime Minister in advising the
Yang di-Pertuan Agong now considers the
names chosen by the JAC for top judicial
appointments.3
On 12th September 2011, the government
announced changes to three of the top four
positions in the Malaysian judiciary. Arifin
Zakaria was appointed Chief Justice, Md Raus
Sharif the President of the Court of Appeal,
and Zulkefli Ahmad Makinudin the Chief
Judge of Malaya. Controversy nonetheless
dogged outgoing Chief Justice Zaki Azmi
right until the end. Parliament passed an
amendment to the Judges’ Remuneration
Act 1971, effectively allowing the outgoing
Chief Justice to retire on a full pension even
though he had not served as a judge for at
least 15 years. Specifically, this enables the top
judiciary to be entitled to full pensions after
serving a total of not less than three years in
any one or more of the top judicial positions.
Non-senior judges would, however now have
to serve for 18 years before being entitled to a
full pension.4
1.2 Judicial conduct
On 20th October 2011, the President of the
Malaysian Bar called for investigations to be
launched into the conduct of two judges.5
The first involved Sessions Court judge Chan
Jit Lee, who embraced claimant and Member
of Parliament (MP) Karpal Singh after
awarding him RM2 million in compensation
for a 2005 accident which had left the latter
wheelchair-bound. The fact that the judge
had hugged the politician in open court and
had admitted knowing the claimant raised
questions as to whether she should have
recused herself from hearing the case.6
The second involved Court of Appeal
Judge Abdul Malik Ishak who was accused
Court of Appeal Judge Abdul Malik Ishak was accused of
plagiarizing a Singapore judgment. (Photograph courtesy of
Malaysiakini)
of plagiarising a judgment written by a
Singaporean judge in 2000. Such behaviour
violates the Judges’ Code of Ethics 2009,
where Section 6(1) states that a judge “…shall
act at all times in a manner that promotes integrity
and impartiality of the judiciary…” In addition,
Section 7(8) of the Code provides that a judge
“…shall not conduct himself in a manner which is
not befitting of a judge or which brings or is calculated
to bring disrepute to his office as a judge…” The
matter came to a close when the office of the
Chief Justice of Malaysia issued a statement
that there was no merit to this allegation.7
1.3 Plea bargaining
In late 2010, the Chief Justice Zaki Azmi
announced that plea bargaining would
become possible after Parliament passed the
Criminal Procedure Code (Amendment) Act
2010. However, the amendments were not
enforced pending feedback from both the
judiciary and practitioners. Given this delay,
the courts themselves came up with a new set
of guidelines for trial judges to participate in
the process of plea bargaining, and speedily
dispose of criminal cases.8 Magistrates,
Sessions and High Court judges are now
expected to follow these guidelines.9
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In short, the guidelines stipulate that the
request for plea bargaining must come from
the accused. It is the duty of the counsel to
ensure that the client does not plead guilty
unless s/he committed the crime. If an
application is made to the court, it must be
forwarded to the Public Prosecutor.10 Once
this request is made, the prosecution has to
respond promptly. Both parties have to reach
an agreement on the sentence, preferably
in writing, and the sentence that is finally
imposed must be within the range agreed to
during the plea bargain application. If the
court disagrees with the proposed sentence,
it must inform the parties involved. Failing
to reach an agreement, the case will go to
trial. The court’s agreement is vital because
the judge has the discretion to whether or
not to agree with the sentence imposed. The
entire process must be done transparently,
and the notes of evidence form part of the
proceedings.11
1.4 Death penalty
In the course of 2011, the courts continued
to hand down the mandatory death sentence
on those convicted of trafficking in drugs. For
example, on 25th October 2011, the Shah
Alam High Court ruled that Japanese national
Mariko Takeuchi, a former nurse found in
possession of 2,493gm of methamphetamine
at the Kuala Lumpur International Airport
on 30th October 2009, would be sentenced
to death.12
2. Judges and Democracy
2.1 The right to vote
On 15th November 2011, the High Court
granted leave to six Malaysians living in the
United Kingdom for judicial review of the
decision by the Election Commission (“EC”)
not to register them as absent voters in the
Edmund Bon, counsel for six Malaysians living in the United
Kingdom contemplates that about 700,000 to 1,000,000
Malaysians would be voting by way of postal votes if they could
be registered as absent voters. (source : SUARAM)
next general election.13 Teo Hoon Seong,
Paramjeet Singh, V. Vinesh, Yolanda Sydney
Augustin, Sim Tze Wei and Leong See See
claimed that they applied to the EC between
January and March 2011 to be registered as
absent voters under the Elections (Registration
of Electors) Regulations 2002. Instead, they
were registered as ordinary voters. Only after
they sought an explanation from the EC were
they told that their applications had been
rejected on the grounds that they were not
entitled to be registered as absent voters.
The six wanted a declaration that as
Malaysians staying abroad, they were
entitled to be registered as absent voters and
accordingly, sought a court order directing the
EC to register them as such. Alternatively, they
asked for a court order directing the EC to
make regulations and take appropriate action
within 14 days from the court ruling to allow
them to be registered as absent voters and/or
postal voters so that they could exercise their
right to vote at the next general election.14 As
at the year end, the application proper had
not yet been heard.
2.2 BERSIH 2.0
On 28th September 2011, the High Court
allowed the Steering Committee of BERSIH
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2.0 to file an application for judicial review
of an order dated 1st July 2011 and made
under the Section 5 of the Societies Act 1966.
Following that order, the Minister of Home
Affairs had declared BERSIH as an unlawful
society as it was allegedly used for purposes
prejudicial to the interests of Malaysia’s
security and public order. The application will
be heard on 29th March 2012.15
On 10th October 2011, 24 supporters of the
BERSIH 2.0 rally charged with aiding an
unlawful organisation and being in possession
of subversive documents were freed. Sessions
Court judge Ikmal Hishan Mohd Tajuddin
ordered a discharge not amounting to
acquittal to all of them at the onset of the
trial. He allowed an application from the
prosecution to drop the charges against
them pursuant to Section 254 of Criminal
Procedure Code which states that the Public
Prosecutor is able to drop charges at any stage
of the proceedings.16
On 28th October 2011, six others who had
been arrested at the same incident were
also subsequently granted a discharge not
amounting to an acquittal. They were
Sungai Siput Member of Parliament D.
Jeyakumar, Parti Sosialis Malaysia deputy
president M. Sarasvathy, Sungai Siput
branch secretary A.P. Letchumanan, branch
president M. Sukumaran, Bayan Baru branch
president Choo Chon Kai and Youth chief
R. Saratbabu. The six had received much
attention for having been detained for a
month under the Emergency (Public Order
and Prevention of Crime) Ordinance.17
On 13th October 2011 the High Court in
Kuala Lumpur struck out an application to
hold an inquest into the death of Baharudin
Ahmad, who collapsed during the July 9
BERSIH 2.0 rally. Baharudin had allegedly
died of asphyxiation of teargas at the Avenue
K building in Jalan Ampang. Judge Su Geok
Yam allowed a preliminary objection by the
Deputy Public Prosecutor to strike out the
application, and ruled that it was ‘premature,
vexatious, frivolous, misconceived and an
abuse of the court process’. Baharudin’s wife,
Rosni Malan, had filed the application at the
High Court on 1st August 2011 seeking an
order to determine the cause of her husband’s
death. The judge ruled that the High Court
had ‘no jurisdiction to entertain Rosni’s
application at this stage’.18
On 22nd November 2011, the High Court
fixed 13 January 2012 to hear an appeal by the
prosecution against the acquittal of 17 persons
arrested for taking part in the BERSIH illegal
assembly in November 2007. The 17 had
been acquitted by the Sessions Court on 19
November 2010, and the appeal was filed on
25 November 2010. Amongst those acquitted
were Members of Parliament Tian Chua,
Mohamad Sabu and N. Gobalakrishnan.19
2.3 University and University Colleges
Act 1971
As noted in Chapter 3, on 31st October 2011,
the Court of Appeal ruled that a provision in
the Universities and University Colleges Act
From left: Azlin Shafina Mohd Adzha , Muhammad Ismail
bin Aminuddin, Muhammad Hilman bin Idham and Woon
King Chai of Universiti Kebangsaan Malaysia were arrested on
22nd April 2010 for allegedly participating in Hulu Selangor byelection. (Photograph courtesy of Malaysiakini)
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1971 (“UUCA”) which restricted students
from expressing support of, or opposition
to, any political party, was unconstitutional.
A three-man panel held by a 2-1 majority
that Section 15(5) of the UUCA 1971 was
unreasonable and violates the freedom of
speech. The appellants were four Universiti
Kebangsaan Malaysia (UKM) political
science students who had been apprehended
on 25th April 2010, during the Hulu Selangor
by-election.
2.4 Peaceful Assembly Act 2012
At the end of the year, an application by the
Deputy President of PAS, Mohamad Sabu,
treasurer Hatta Ramli and central committee
member Dzulkefly Ahmad for leave to
challenge Prime Minister Najib Abdul Razak
and the government and halt the passage
of the Peaceful Assembly Bill was dismissed
with costs by the Kuala Lumpur High Court
(Appellate and Special Powers Division). In
so doing, Judge Rohana Yusof said that as
Members of Parliament, at least two of the
applicants had ample opportunity to discuss
and oppose the passage of the bill in the
Dewan Rakyat, instead of abusing the court
process to do so. The judge also said that the
application was premature, because the bill
was still in the midst of being passed into
law. The validity of the legislation could still
be challenged in court when it became law.
Any attempt by the court to remedy or rule
on the matter would constitute interference
in the Parliamentary legislative process and
be in breach of the doctrine of separation of
powers. She awarded RM8,000.00 in costs to
the government.20
3. Holding Government to account
3.1 Law enforcement agencies
The inquiry into the death of Teoh Beng Hock
ended in the course of 2011 but its findings
were inconclusive. On 5th January 2011, the
magistrate conducting the inquiry managed
to rule out both foul play and suicide as the
cause of death, whilst still returning an ‘open’
verdict. This decision was generally disputed,
and the government eventually conceded to
mounting pressure for a Royal Commission
of Inquiry (“RCI”) to be established. On 21st
July 2011, the RCI released its report which
concluded that Teoh Beng Hock had been
driven to commit suicide by the aggressive,
relentless, oppressive and unscrupulous
interrogation that he underwent at the
hands of three Malaysian Anti-Corruption
Commission (“MACC”) personnel. The
three named were Selangor MACC deputy
director Hishamuddin Hashim and two of his
officers, Mohamad Anuar Ismail and Ashraf
Mohd Yunus. On 22nd September 2011 the
High Court allowed the Public Prosecutor to
withdraw the application to review the decision
of the Magistrate in the death inquiry.21 The
following month, the High Court in Kuala
Lumpur dismissed a leave application by
Teoh Beng Hock’s brother seeking a review of
the RCI findings into Teoh’s death. The judge
dismissed this application on grounds that the
High Court was bound by the earlier ruling
of the Federal Court on the controversial V.K.
Lingam video clip.22
On 27th September 2011, the inquiry into
the death of Selangor Custom’s assistant
director Ahmad Sarbaini Mohamed, ended
when the magistrate ruled that this was an
accident, not murder, foul play or suicide.
The cause of death was attributed to severe
head injuries and ‘positional asphyxia’ due
to his fall from the third floor of the MACC
building in Jalan Cochrane, Kuala Lumpur.
The magistrate ruled that the theory that
Ahmad Sarbaini was murdered could not
be supported, nor was there any evidence of
suicide, foul play or third party involvement in
his death. Based on the evidence before him,
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he thus concluded that the victim fell from the
third floor of the MACC building and landed
on the badminton court and died there. He
returned a verdict of misadventure.23
3.2 Questioning government’s decision
on allocation to Members of Parliament
On 25th February 2011, the High Court
granted an application by MP Jeyakumar
Devaraj, for leave for judicial review. The
MP had sought to question the allocation
of federal funds to elected members of
Parliament. This was because presently, only
government MPs receive such allocations.
In contrast, the allocations for MPs in
opposition-held constituencies derive from the
local authority. An appeal by the Government
against the decision was heard in the Court of
Appeal on 21st September 2011. Judgement
was reserved.24
3.3 Police misconduct
On 15th September 2011, police corporal
Jenain Subi who fired the shots which killed
student Aminulrasyid Amzah, 15, on 26th
April 2010 was sentenced to five years
imprisonment by the Sessions Court at Shah
Alam.25 Sessions Court judge Latifah Mohd
Tahar said the defence had failed to raise
‘reasonable doubt’ against the prosecution’s
case. Instead the police acknowledged that
21 gunshots had been fired, showing there
was an intention to cause death.26 The
incident not only caused a public uproar and
accusations of both brutality and a shoot-tokill policy by the police, but also revived calls
for an Independent Police Complaints and
Misconduct Commission.
4. High profile trials
4.1 Anwar Ibrahim
The trial of former Deputy Prime Minister
Anwar Ibrahim on charges of sodomy
continued in the course of the year and was
punctuated by small procedural victories for
the defence and even greater ones by the
prosecution. This included the High Court
rejecting the need for Prime Minister Najib
Razak and his wife Rosmah Mansor from
having to give evidence. It also included the
High Court allowing the screening of a socalled ‘sex video’ allegedly showing Anwar
Ibrahim having sexual relations with a woman
in a hotel room.
On 29th December 2011, the Minister of
Information, Communications and Culture
Rais Yatim stated that the decision of any trial
should not be influenced by demonstrations.
He said this in response to the planned
gathering of Parti Keadilan Rakyat supporters
on 9th January 2012 to receive the decision in
the Anwar Ibrahim sodomy trial. He said, “…
demonstrations cannot change the flow or channels of
the legal process of the country and if that is what
they demand, it would destroy our nationhood…”
He also made it a point to add, “…they should
accept the fact as judges are not intimidated by street
demonstrations…”27
4.2 Ling Liong Sik
The trial of Ling Liong Sik, former
Federal transport minister and president
of the Malaysian Chinese Association, for
corruption, is on-going.
4.3 Mohamad Khir Toyo
On 23rd December 2011, the former Mentri
Besar of Selangor, Mohamad Khir Toyo,
was found guilty of abusing his influence to
purchase a luxury home and land at a discount
of up to RM3 million. The High Court ruled
that the RM3.5 million that he paid for the
property was ‘inadequate consideration’.
Judge Mohtarudin Baki sentenced him to
12 months’ imprisonment and ordered the
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seizure of the property.28 The judge agreed
with the Deputy Public Prosecutor who
argued that the conviction under Section 165
of the Penal Code also invoked Section 36
of the Prevention of Corruption Act, which
mandates that the court seize property which
is the subject of a graft offence. In delivering
the judgment, he said, ‘When public and
private interests meet, public interest must
be given priority. The accused abused his
position as the highest executive in the state.
A fine will not be sufficient.’29 However, the
judge granted Khir a stay of the execution
pending an appeal against the decision.
Khir had been charged with illegally
obtaining for himself and his wife two lots
of land and a house at No. 8 and 10, Jalan
Suasa 7/1L from Ditamas Sdn Bhd through
its director Datuk Shamsuddin Hayroni. The
property was purchased at RM3.5 million
although Ditamas had bought it for RM6.5
million on 23rd December 2004. The state
assemblyman for Sungai Panjang was alleged
to have committed the offence at the official
residence of the Selangor Mentri Besar at
Jalan Permata 7/1, Section 7, Shah Alam on
29th May 2007.
4.4 Tay Choo Foo
On 27th December 2011, the online news
portal Malaysiakini carried an article by
William Leong, MP for Selayang, in which he
related an example of the loss of confidence in
the Malaysian judiciary.30 Leong highlighted
the case of Tay Choo Foo, who was sued by
the administrators of the estate of the late
Tunku Mansur for the purchase price of 1.2
million Harrisons Holdings Berhad shares.
Tay contended that the shares had been given
to him by Tunku Mansur as commission for
arranging an investor to participate in the
management buy-out led by Tunku Mansur.
The High Court accepted the hearsay
evidence from the claimant’s witness and
ordered Tay to pay RM13 million. The Court
of Appeal and Federal Court both upheld the
High Court judgment.
That the High Court allowed hearsay
evidence of a purported conversation between
the witness and Tunku Mansur to be admitted
under Section 32(1)(b) of the Evidence Act
1950, was significant. Until the Federal
Court upheld the High Court decision, this
provision had only ever been used to allow
a statement made by a deceased clerk in the
entry of account books and records kept in
the ordinary course of business. The Federal
Court held that Section 32(1)(b) of the
Evidence Act should be given a broad and
liberal interpretation. This decision adopted
a new approach that differed from what
lawyers and academics have traditionally
understood as the law. The decision may be
a development of the law but it gives rise to
the issue of satisfying the requirements of
certainty and predictability which are essential
to the legitimacy of judicial decisions.
5. Recommendations
i.
Courts must ensure that the right to a
fair trial is always upheld and protected.
This includes being more vigilant in
preventing any party from manipulating
the process, the law, and regulations in
his/her favour.
ii. Courts must treat public interest litigation
as another means to impose checks
and balances on the executive and the
legislature.
iii. To
ensure
transparency
and
accountability of the judicial appointment
and promotion process, membership of
the Judicial Appointments Commission
must be expanded to include lawyers
and members of the public. Diversity
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in backgrounds and experiences of
Commission members will engender
confidence in the selection process, as
well as the integrity and independence of
those chosen as members of the judiciary.
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End Notes
1
‘Najib says was invited by CJ’, The
Malaysian Insider, 7 Sept 2011, <http://www.
themalaysianinsider. com/malaysia/article/
najib-says-was-invited-by-cj/>, Accessed: 8
Sept 2011.
2
‘Judges picked on merit’, New Straits Times, 25
Oct 2011, <http://test.nst.com.my/cmlink/
new-straits-times/local/general/judgespicked-on-merit-1.17790>, Accessed: 26 Oct
2011.
3
The appointment of the Chief Justice of
Malaysia is governed by Article 122B of the
Federal Constitution, whereby the Yang diPertuan Agong appoints the Chief Justice on
the advice of the Prime Minister.
4
5
‘Revised law rewards judiciary’s top three,
works other judges longer’, The Malaysian
Insider, 29 Aug 2011, <http://www.
themalaysianinsider.com/malaysia/article/
revised-law-rewards-judiciarys-top-threeworks-other-judges-longer/>, Accessed: 30
Aug 2011.
‘Proper judicial conduct must be upheld at all
times’, The Malaysian Bar website, 20 Oct 2011,
<http://www.malaysianbar.org.my/press_
statements/proper_judicial_conduct_must_be_
upheld_at_all_times.html>, Accessed: 21 Oct
2011.
6
‘Karpal gets RM2mn’, The Star, 8 Oct
2011,<http://thestar.com.my/news/story.
asp?file=/2011/10/8/courts/9655023&sec=courts
>, Accessed: 9 Oct 2011.
7
‘Complaint against plagiarist judge dismissed’,
Malaysiakini, 30 Dec 2011, <http://www.
31 Dec 2011.
8
This enables presiding judges to indicate to
parties the sentence to be meted out when the
accused pleads guilty.
9
The guidelines were contained in a judgment
delivered by the President of the Court of
Appeal in the case of air-condition repairer,
M. Manimaran, 30. The accused was
sentenced to six year’s jail and ten strokes of
the rotan for drug possession two years earlier.
The Public Prosecutor appealed on grounds
of inadequacy of sentence, but the Court of
Appeal set aside the conviction and ordered
a retrial. ‘New rules for judges to have say in
plea bargaining’, New Straits Times, 1 Oct 2011,
<http://www.malaysianbar.org.my/legal/
general_news/new_rules_for_judges_to_
have_say_in_plea_bargain.html>, Accessed:
2 Oct 2011.
10 A lawyer who is authorised by the client can
also make this application.
11 ibid.
12 ‘Death penalty for woman’, The Star,
27 Oct 2011, <http://thestar.com.my/
courts/9771291&sec=courts>, Accessed: 28
Oct 2011.
13 The High Court set 13 December 2011 for
case management and 3 January 2012 for the
hearing.
14 ‘Six in Britain get leave for judicial review’,
The Star, 15 Nov 2011, <http://thestar.com.
Sept 2011.
15 ‘High Court to hear Bersih’s application on
March 29’, The Star, 23 Nov 2011, <http://thestar.
Nov 2011.
16 ’24 Bersih rally backers walk free’, New Straits
Times, 11 Oct 2011, <http://www.malaysianbar.
org.my/legal/general_news/24_bersih_rally_
backers_walk_free.html>, Accessed: 12 Oct
2011
130
8/18/12 2:03 PM
17 See Chapter 1 for details.
25 The Sun, 16 September 2011.
18 ‘Wife’s request for inquest denied’, New
Straits Times, 14 Oct 2011, <http://www.
malaysianbar.org.my/legal/general_news/
wifes_request_for_inquest_denied.html>,
26 ‘Corporal guilty of causing Aminulrasyid’s
death, jailed 5-years’, The Sun, 15 Sept 2011,
<http://www.thesundaily.my/news/144311>,
19 ‘Jan 13 hearing of appeal in Bersih case’, New
Straits Times, 22 Nov 2011, <http://www.
jan_13_hearing_of_appeal_in_bersih_case.
html>, Accessed: 23 Nov 2011.
20 ‘Court throws out PAS’s challenge to Assembly
thesun daily.my/news/382559>, Accessed: 16
Dec 2011.
27 ‘Judges not intimidated by street protests’,
30 Dec 2011.
28 ‘Khir Toyo gets 12 months’ jail for graft’, The
Malaysian Insider, 23 Dec 2011, <http://www.
themalaysianinsider.com/malaysia/article/
khir-toyo-guilty-of-graft/>, Accessed: 24 Dec
2011.
29 ibid.
21 ‘Judge agrees to strike out application
to revise Teoh inquest verdict’, The Star,
23
Sept
2011,
Sept 2011.
30 ‘The dangers of judicial corruption’,
28 Dec 2011.
22 In this landmark ruling, the Federal Court
had ruled that the findings of a commission
of inquiry appointed by the Yang di-Pertuan
Agong cannot be challenged in court. See
‘Court “no” to review over Teoh’s death’,
New Straits Times, 5 Oct 2011, <http://www.
court_no_to_review_over_teohs_death.
html>, Accessed: 6 Oct 2011.
23 ‘Court rules out foul play’, New Straits Times,
27 Sept 2011, <http://www.malaysianbar.
org.my/legal/general_news/court_rules_out_
foul_play.html>, Accessed: 28 Sept 2011. See
also Chapter 2.
24 ‘Appellate Court reserves decision on
MP’s allocation appeal’, The Sun, 22 Sept
2 0 1 1 , < h t t p : / / w w w. t h e s u n d a i l y. m y /
news/152631>, Accessed: 23 Sept 2011.
131
8/18/12 2:03 PM
CHAPTER 8:
THE NATIONAL HUMAN RIGHTS COMMISSION
(SUHAKAM)
8/18/12 2:03 PM
The National Human Rights Commission (Suhakam)
I
n January 2011, the United Nations
International Coordinating Committee
of National Institutions for the Promotion
and Protection of Human Rights (“ICC”)
announced that the Malaysia’s national
human rights body, Suhakam, had kept its
tier ‘A’ status. This was after the peer-review
group decided that Malaysia, who had been
in danger of losing this ranking since its 2008
review, had finally done enough to comply
with the Paris Principles, a key condition
for re-accreditation every five years.1 Its
international rating notwithstanding, like
2010, 2011 was a mixed bag for Suhakam.
As the picture that emerges from the account
below shows, the year saw a more proactive
but still insufficiently empowered national
human rights body.
On one hand, Suhakam lent its voice to the
growing number of calls for reforms. For
example, the Commission was more visible
in making public statements that called-out
the government on various state-sanctioned
human rights violations. It also conducted
high profile inquiries into two major human
rights concerns, one the violations around
BERSIH 2.0, and another on land rights.
On the other hand, as a government-funded
body, it continued to suffer from a lack of
powers, autonomy and resources. This in turn
hindered its ability to serve as an effective
check and balance mechanism. Indeed, it
could be said that Suhakam was just another
player in the chorus of dissent that often
followed controversial decisions taken by the
government in 2011. That its interventions
did not make a significant impression on
government policy is telling on the extent of
its influence.
rights body continued to show signs of
progress by responding to human rights
violations, and making known its position on
major rights concerns of the nation. This is
particularly noteworthy given the pressure
to toe the line whenever its Commissioners
dared to go beyond positions approved of by
the establishment.
1.1 Detention without trial
The National Human Rights Commission
has been calling for the abolishment of the
Internal Security Act (“ISA”) since 2003. It
continued to push for this outcome in 2011, at
the same time urging the government to repeal
all other preventive laws. It also appealed
to the government to pay serious heed to
the findings and recommendations of the
United Nations Working Group on Arbitrary
Detention (“UNWGAD”) arising out of its
fact-finding mission to Malaysia in 2010.2 The
Commission submitted a written statement
and made an oral intervention at the 16th
regular session of the Human Rights Council
during the interactive dialogue with the
UNWGAD when this expert body presented
its report on Malaysia. The spokesperson
of Suhakam was reported as saying that the
Commission was of the opinion that “…these
[preventive] laws are inconsistent with human rights
principles and may lead to gross violations of human
rights…”3
1. Suhakam’s Position on Selected Key
Human Rights Issues in Malaysia
Back home, Suhakam lent support to calls
pressing the Federal government to release
the six Parti Sosialis Malaysia members who
had been arrested under the Emergency
Ordinance. Its press statement pointed out
that detention without trial was “…a violation
of human rights principles which are clearly
stated in Article 9, 10 and 11 of the Universal
Declaration of Human Rights [UDHR]…”4
The year 2011 featured an increasingly
prolific Suhakam as the national human
In November 2011, Suhakam Chairperson,
Hasmy Agam, issued a strongly worded
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Sha’ani Abdullah urged the police not to
“treat this with hostility or be antagonistic”. He also
said that as part of the criminal justice system,
Suhakam was playing its role in helping to
bring criminals to justice, and hoped that the
police would cooperate rather than impede
investigations.8
Suhakam Chairperson, Hasmy Agam in a statement blasted the
Home Ministry’s arrest of 13 individuals in Sabah just after the
Prime Minister’s announcement to repeal the ISA. (Photograph
statement when 13 people were arrested in
Sabah under the ISA.5 He maintained that
this contradicted “the bold and historic decision”
of Prime Minister Najib in announcing
the repeal of the ISA and its provision for
arbitrary detention. He also called for the
detainees to be charged in an open court with
legal representation. The Home Minister
dismissed this call by claiming that Suhakam
had been “completely irresponsible” because it
had not checked its facts first. Had it done
so, he argued, it would have realised that
those detained were “most dangerous” to both
Malaysia and its neighbours. He justified his
claims by revealing that the police had found
large amounts of firearms and explosives
during their operation.6
1.2 Abuse of powers by law enforcers
The National Human Rights Commission
also weighed in on the matter of deaths in
custody in 2011. In the earlier mentioned
case of M. Krishnan whose friends and
family claimed was beaten to death at a police
station lock-up,7 Suhakam conducted its
own investigations to verify these allegations.
Earlier the authorities had alleged that the
victim had died of a stomach ulcer. In taking
on this matter, commissioner Muhammad
Suhakam Commissioner Muhammad Sha’ani Abdullah states
that in cases of death in police custody, Suhakam plays a role
in helping to bring criminals to justice and urges the police
to cooperate rather than impede investigation. (Photograph
1.3 Freedom of assembly
In the lead-up to the BERSIH 2.0 rally,
Suhakam reiterated its position that “…it is the
right of members of the public to assemble and express
its views in a peaceful manner…” This, the body
pointed out, was in line with Article 10(1) (b) of
the Federal Constitution, and Article 20(1) of
the UDHR. Therefore, the right should apply
to all, be it the rally organised by BERSIH 2.0
or the gatherings called by Perkasa or UMNO
Youth. It also reminded the police to utilise
“proportionate and non-violent methods” if it needed
to control or disperse the crowd during the
assembly.9 The government reacted to this by
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saying that it had no plans to repeal laws that
curtailed freedom of assembly. The de facto
law minister, Nazri Aziz, however, revealed
that the Home Ministry was working with the
Attorney General’s Chambers to harmonise
Section 27 of the Police Act with provisions
of the Federal Constitution. He claimed this
was needed to ensure that Article 10(1) (b) of
the Constitution was not “abused or adversely
affect safety and public order”.10
While the national human rights body
welcomed the government’s announcement
that it would introduce a Peaceful Assembly
Bill, it also held that there was room for
improvement to ensure that “…the right of
the people to express themselves through peaceful
public assemblies is protected and can be expressed
in a manner that meaningfully reflects the essence
of that right…”11 In particular, it urged the
government to consider feedback from the
public, and to provide more opportunities
to gather such views and hold discussions
before enacting this legislation. It welcomed
the repeal of Sections 27, 27A, 27B, and 27C
of the Police Act 1967 but cautioned that
the replacement Bill came with too many
restrictions that would impede rather than
facilitate the freedom of assembly.12
1.4 Freedom of association
Suhakam viewed with alarm, the
recommendation by the Registrar of Societies
(“RoS”) to cap the number of political parties
in the country at 33. Stating that this served
“no real purpose and would only generate controversy”,
it implored the RoS to drop the idea,
arguing that this would otherwise result in
curtailing the freedom of association as well
as expression. Its Chairperson made it clear
that while the law gave the RoS discretionary
powers over the approval of such applications,
“…the will of the people forms the basis of the
Government’s authority, thus the citizens have the right
to select their representatives…” He also reminded
that the Commission had recommended
back in 2007, that the powers of the RoS be
transparent and proportional to the law.13
1.5 Freedom of expression
Several hundred undergraduate students
handed Suhakam a memorandum calling for
the abolition of the University and University
Colleges Act 1971 (“UUCA”) on 16th
December 2011.14 The group spokesperson
said that they wanted the government to
know that students would no longer tolerate
restrictions to academic freedom. They also
rejected moves to amend the UUCA, wanting
it to be repealed instead. They also demanded
that the Educational Institutions (Discipline)
Act 1976 and the Private Higher Educational
Institutions Act 1996 be abolished to give
students freedom of speech, run campus
elections, student bodies and activities, and
take part in politics. Later in the year when
the government announced that the UUCA
would be amended, Suhakam welcomed the
move that would allow students above 21
the freedom of expression and association.
It took the opportunity as well, to urge the
government not to appeal against the decision
of the Court of Appeal that declared Section
15(5) of the UUCA unconstitutional.15
In presenting its Annual Report for the
previous year, Suhakam had also drawn
attention to the importance of having an
independent media council and allowing
the media to self-regulate. The Law Minister
replied by stating that “…freedom of expression
as guaranteed by the constitution has never been
sanctioned by the government…”, that people could
freely air their views in the media provided
this was not “…to the detriment of national safety
and unity…”.16
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1.6 Free and fair elections
In welcoming news about the formation of
the Parliamentary Select Committee (“PSC”)
on electoral reforms, the Suhakam chair
Hasmy Agam pointed out that since 2007,
the Commission had forwarded various
recommendations with regard to free and
fair elections. These included “equal access
to the media, a longer election campaign period and
automatic registration of all eligible voters”.17 He
also said that Suhakam hoped the PSC would
be given sufficient time to deliberate on the
numerous concerns that had been raised.
The High Court granted leave for an
application by six Malaysians living in Britain
to compel the Election Commission (“EC”)
to register them as absent voters in the next
general election. In support of the court
decision, Suhakam said that Malaysia should
adopt the best practices of other democratic
countries if it wanted to be considered
a democratic country. Commissioner
Muhammad Sha’ani Abdullah told The Star
that, “…The right to participate in democracy is a
basic human right, whether you are in your country
or overseas…” Further, he called on the EC
and other related authorities to “...be proactive
and innovative in figuring out how to tackle the
logistics…”18
1.7 Right to land
In the midst of Suhakam’s national inquiry
into land rights, the government announced
that it would not wait for the results of this
exercise – due for completion in mid-2013
– but instead, proceed with plans to amend
the Aboriginal Peoples Act 1954. The
national human rights institution protested by
reminding that back in 2008, it had already
alerted the government of its “…fiduciary
obligation to consult and obtain consent from native
communities prior to taking action that might infringe
on their native title rights…”19 Not only was this
in line with the UN Declaration on the Rights
Suhakam reminds the government of its fiduciary obligation to consult and obtain consent from native communities prior to taking
actions that might infringe on their native title rights. (Photograph courtesy of Malaysiakini)
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Table 8.1: Table of Press Statements by Suhakam in 2011
Item
Issue
Preventive laws
Freedom of assembly and association
Free and fair elections
Indigenous rights
Freedom of the media
Freedom of religion
Freedom from torture
Freedom of expression
Right to housing
Other human rights violations
Announcements
Total
Source: Suhakam
1
2
3
4
5
6
7
8
9
10
11
of Indigenous Peoples, but also upheld by
the Federal Constitution and court decisions
that recognise the status of the orang asal and
their land rights.
1.8 Refugees and asylum seekers
The country’s official human rights body has
also consistently called the government to
recognise the status of refugees in Malaysia
especially those with UNHCR cards. Earlier
this year, Commissioner Muhammad
Sha’ani Abdullah urged the government
and the police to stop harassing refugees
with UNHCR documents, and to hand over
Burmese refugees picked up by the authorities
to NGOs that are prepared to stand as
guarantors for them while waiting for their
refugee status to be verified.20
1.9 Sexuality rights
Another point of departure for Suhakam in
2011 was its public position on sexuality rights,
specifically the rights of sexual minorities.
Besides expressing concern over the “ill
2010
2011
2
2
1
1
1
1
4
12
5
11
1
2
1
2
1
1
3
5
32
treatment, discrimination, bullying, humiliation and
intimidation” of sexual marginals, as noted in its
Annual Report for the year, the Commission
insisted:
“…that the sexual minority groups’ rights
and fundamental liberties must be upheld
and respected at all times. They are entitled
to enjoy their human rights like all human
brings. Brutality and violation of their rights
cannot be justified…”
It also called for the introduction of laws and
other forms of redress to deal with the problem
of violence against sexual minorities.21 This
was the first time that the Commission has
ever publicly expressed support for sexuality
rights, and it indicates a step forward for
Malaysians at large towards accepting this
minority.
1.10 Law and the judiciary
In relation to the second Anwar sodomy trial,
Mohd Saiful Bukhari’s22 father, Azlan Mohd
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Lazim accused Suhakam of being biased as
it had rejected his application to investigate
the possibility of getting his son’s hearing
postponed. This was a rare instance in 2011
where criticism of Suhakam’s impartiality
had been publicly highlighted. Suhakam
secretary Hashimah Nik Jaafar clarified that
even though the national human rights body
was empowered to investigate any complaint
about human rights infringements, it was
also constrained by the law which states that
Suhakam “…shall not investigate any complaints
which are the subject of any proceedings pending
in any court…”23 Hashimah added that the
Commission had instead informed the Chief
Justice to take appropriate action, and that it
would also continue to monitor the case.
2. Programmes for 2011
2.1 National Inquiry into the Land Rights
of Indigenous Peoples in Malaysia
Suhakam set a landmark this year not only by
conducting its first-ever national inquiry, but
also by making the land rights of the orang asal,
the focus of its attention. The initiative was in
response to numerous complaints on alleged
infringements to the customary land rights
of indigenous peoples that the Commission
had received over the years. According to its
Chairperson, since it was established 11 years
ago, Suhakam had received around 2,000
land rights-related complaints.24 Recognising
that these violations are in various forms,
are longstanding, persistent and systemic
in nature, the national inquiry sought to
comprehensively study the root causes of
the problems identified, and recommend
appropriate solutions.
It has thus far successfully conducted
introductory sessions and public consultations
with relevant stakeholders. Up till the end of
October 2011, the inquiry’s public consultation
sessions recorded almost 900 complaints from
across the country (Semenanjung 287, Sabah
407, and Sarawak 198).25 It also received a
total of 61 submissions from the indigenous
communities (35), government agencies (18),
and NGOs (8).26
2.2 Public inquiry
In a similar manner to the national inquiry
above, Suhakam decided to conduct a public
inquiry into the human rights violations at the
BERSIH 2.0 rally after receiving numerous
memoranda and complaints including the
use of excessive force by the authorities. The
inquiry began on 11th October 2011 with the
following terms of reference:- (i) To identify
human rights violations on or before 9 July
(i.e. the day of the rally); (ii) To establish how
these occurred, and to determine the processes
and agencies involved; and (iii) To make
recommendations to prevent a recurrence
of these human rights infringements.27 As
at 31st December 2011, the panel had held
seven sittings, and heard testimonies from 16
witnesses. It will continue its investigations in
2012.
2.3 Human Rights Education
In March 2011, Suhakam met with the
Deputy Inspector General of Police Khalid
Abu Bakar to discuss several contentious
human rights concerns involving custodial
deaths, detention of minors, the conduct of
police during public assemblies, as well as
the use of ISA. The Deputy IGP welcomed
Suhakam’s efforts at conducting training
workshops for police officials – run annually
since 2008 – and expressed his hopes for a
closer partnership with human rights body.
Suhakam also conducted five workshops for
120 senior prison officials nationwide, and
engaged with the Prison Department in the
hope of getting it to adopt a permanent
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human rights curriculum for its officials.28
Back in 2009, Suhakam, together with
the Ministry of Education, had piloted a
human rights education programme for
schoolchildren. Called the “Human Rights Best
Practices Programmes in Schools”, the Commission
kicked-off this initiative in five locations with
the objective of eventually making human
rights a way of life in the school context. In
2011, it expanded this programme to another
12 schools reaching out to primary and
secondary, as well as vernacular and orang
asli students. It noted progress in the pilot
schools where some students now actively
participated in electing their school leaders.
Likewise, a Peti Suara Hati programme was
in place to encourage students to speak up
about their concerns.29
Elsewhere, Suhakam has been active in
encouraging members of the public to
lodge human rights complaints with them.
According to its Commissioner Muhammad
Sha’ani Abdullah, unless this happened, the
body was unable to act against a said violation.
More importantly, he called on voters to
pressure their representatives in Parliament
not only to promote human rights but also
to support the recommendations Suhakam
makes annually, and in so doing, help “…get
Suhakam back our teeth…”30
3. Challenges
Despite its efforts at speaking out on human
rights abuses in the country, Suhakam’s
influence remained muted throughout
the course of 2011. Its interventions had
little real impact on policy. For instance, a
Wikileaks cable revealed that the Suhakam
Commissioner for Sarawak had informed
US embassy officials that, “…the government
largely ignores Suhakam’s recommendations…” to
protect indigenous peoples’ rights.31 Where
responding to complaints in a timely manner
was concerned, the Commission continued
to be challenged. It also appeared to have
little effect in persuading the government
to ratify more international human rights
treaties. Though brave in taking a position
on the controversial issue of sexuality rights,
developments in 2011 also demonstrated
that Suhakam remains vulnerable to being
attacked by the religious right on this subject.
In 2011, Suhakam received a total of 1232
complaints. Out of this, 825 were rightsrelated but only 150 had been processed,
the remainder still under investigation. In
Sarawak, 53 cases pertaining to human rights
violations were lodged, and 20 successfully
resolved. The situation in Sabah was the
grimmest.
Two-hundred-and-nineteen
human rights cases were registered but only
20 had been solved.32
The low numbers of solved cases can be
attributed to a shortage of resources and
effective engagement with civil society.
Take, for example, Suhakam’s educational
programmes. The lack of financial and
human resources has hindered the best
practices initiative for schools and limited
its scope. Where this can partly be resolved
by collaborating with civil society partners
– the expertise of the Commission can
be supplemented by the experience and
knowledge of NGOs working in the field of
human rights – this option has not been fully
explored. In the case of Suhakam’s human
rights education programme with the police,
while representing a positive step towards
inculcating human rights awareness, this still
falls short as a method to ensure that human
rights principles are adopted as part of the
standard operating procedure for all police
personnel.
Suhakam has also been seen as lacking in
the ability to contribute to the drafting of
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guidelines and bills that end up as law. For
instance, when the government introduced
the Peaceful Assembly Bill, it was the Bar
Council that came up with an alternative Bill
for the government to consider. To be seen
as a truly independent and effective body
that is responsive to the aspirations of the
people, Suhakam also has to play a greater
role by providing amicus curie and making
interventions in human rights court cases, as
well as initiate law and private members bills
on key human rights concerns.
human resources so that it can carry out
its functions effectively and efficiently.
This includes playing a larger role in key
human rights court cases, being able to
influence laws to ensure that they include
the highest human rights standards, and
bringing cases to court.
For the most part, the National Human
Rights Commission’s desire to be given
greater independence and powers continued
to remain a dream in 2011. In relation to
having the authority to bring certain issues
to court, Commissioner Detta Samen aptly
summed up, “…we can make a proposal on this
but, at the end of the day it is not for us to decide…”33
Suhakam Chair Hasmy Agam had also
pointed out that the body had no powers to
act on its recommendations, at best it could
“only listen to, investigate and analyse complaints”34
Perhaps the best indicator of this situation
was how once again, the national human
rights commission failed in 2011 to have its
Annual Report tabled in the Dewan Rakyat
for debate.35 This was despite the fact that its
Chair had earlier expressed confidence that
Cabinet would approve this for the first time
since Suhakam was formed a decade ago.
4. Recommendations
i.
Ensure that Suhakam is fully independent
and that its recommendations are binding
on the government. One of the first
steps towards this is allowing Suhakam’s
Annual Report to be tabled in the Lower
House of Parliament for debate.
ii. Further strengthen the national human
rights body with greater financial and
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8/18/12 2:03 PM
End Notes
1
2
3
4
5
Countries with tier ‘A’ status usually have
speaking rights for sessions of various UN
bodies including the treaty bodies and the
Human Rights Council. In 2008, the ICC gave
the Malaysian government an ultimatum to
strengthen its national human rights institution,
Suhakam, or risk this body being downgraded
to the ‘B’ tier. Specifically, the government
was to be evaluated on its selection process for
new commissioners, and the Key Performance
Indicators of this body (‘Suhakam retains its
“A” status in the ICC after a long struggle’,
Press Release by Suhakam, 9 Feb 2011).
Besides repealing all repressive detention
without trial laws (e.g. the Internal Security
Act, Emergency Ordinance, Dangerous Drugs
Act and the Restricted Residence Act), the
UNWGAD had called on the government to
improve conditions of places of detention,
look into the excessive powers of the police,
improve detention conditions, end the arrest
of immigrants and refugees, ratify other
human rights treaties, and extend invitations to
Malaysia to other Special Procedures mandate
holders of the UN Human Rights Council.
‘Human Rights Council concludes interactive
dialogue on enforced disappearances,
arbitrary
detention
and
internally
displaced persons’, Press Statement, 8
March
2011
<http://www.ohchr.org/
en/NewsEvents/Pages
/DisplayNews.
aspx?NewsID=10818&LangID=E >. See
also Human Rights Commission of Malaysia
(Suhakam) (n.d.), Oral statement at the 16th
Human Rights Council Regular Session
(Agenda Item 3), Geneva.
‘Detention without trial is a violation of
human rights principles’, Press Release by
Suhakam, 21 Jul 2011.
‘Preventive detention laws contradict the
principles of human rights’, Press Release by
Suhakam, 18 Nov 2011.
6
‘Hisham slams “irresponsible” Suhakam
statement’, Malaysiakini, 19 Nov 2011, <http://
7
See Chapter 2.
8
‘Suhakam to also investigate custodial death’,
12 Jan 2011.
9
‘The right to hold peaceful assemblies must be
protected’, Press Release by Suhakam, 28 Jun
2011.
10 ‘Gov’t rebuffs Suhakam’s freedom of assembly
plans’, Malaysiakini, 30 Jun 2011, <http://
11 ‘Peaceful Assembly Bill must not impose
restrictions on the rights of everyone to
assemble peacefully’, Press Release by
12 ‘Suhakam tries to apply brakes to Assembly
malaysiakini.com/news/182282 >, Accessed:
25 Nov 2011.
13 ‘Capping political parties restricts the freedom
of association’, Press Release by Suhakam, 22
Feb 2011.
14 ‘Undergraduates hand memorandum to
Suhakam, Govt’, The Star, 17 Dec 2011,
asp?file=/2011/12/17/nation/20111217174
341&sec=nation>, Accessed: 18 Dec 2011.
15 ‘Amendment to the Universities and University
Colleges Act 1971 welcomed’, Press Release by
16 ‘Gov’t rebuffs Suhakam’s freedom of assembly
plans’, Malaysiakini, 30 Jun 2011, <http://www.
malaysiakini. com/news/16843>, Accessed: 1
Jul 2011.
141
8/18/12 2:03 PM
17 ‘Suhakam: Give ample time for PSC on polls
reform’, Malaysiakini, 18 Aug 2011, <www.
19 Aug 2011.
18 ‘Electoral reform panel keeping an
eye on absent voter case’, The Star, 15
Nov
2011,
<http://thestar.com.my/
Nov 2011.
19 ‘Suhakam laments plans to amend Act’,
The Star, 25 Aug 2011, <http://thestar.
Aug 2011.
20 ‘Judge agrees to strike out application
to revise Teoh inquest verdict’, The Star,
23
Sept
2011,
Sept 2011.
21 ‘Respect rights of sexual minorities, gov’t
reminded’, Malaysiakini, 7 Apr 2012, <http://
8 Apr 2012.
22 Mohd Saiful Bukhari was the man who
accused Anwar of having sodomised him in
the trial that has become infamously known as
Sodomy II.
23 ‘Suhakam’s bias: Not reasonable’, Press Release,
17 Aug 2011.
24 ‘Suhakam seeks power to solve NCR land
issues’, Malaysiakini, 22 Sept 2011, <http://
25 ‘Suhakam seeks public views on native land
rights’, Malaysiakini, 31 Oct 2011, <http://
26 Suhakam (2012), Annual Report 2011, Kuala
Lumpur: Human Rights Commission of
Malaysia (Suhakam).
27 ‘Calling for public submission on evidence and
information on allegations of violations of
human rights prior to and during the public
assembly on 9 July 2011’, Press Release, 22 Jul
2011.
28 Suhakam (2012), Annual Report 2011,
Kuala Lumpur: National Human Rights
Commission, pp32-33.
29 ibid., pp23-24.
30 ‘Debate Suhakam’s report in Parliament’,
Malaysiakini, 28 Sept 2011, <http://www.
29 Sept 2011.
31 ‘Wikileaks: US warned of severe corruption
in Malaysia’s Sarawak state’, Mongabay.
com, 30 Aug 2011, <http://news.mongabay.
com/2011/0830-taib_wikileaks.html>,
32 Suhakam (2012), Annual Report 2011,
Kuala Lumpur: National Human Rights
Commission, p42.
33 ‘Suhakam seeks power to solve NCR land
issues’, Malaysiakini, 22 Sept 2011, <http://
34 ibid.
35 By law, Suhakam is required to submit its
Annual Report in Parliament. However, there
is law to compel the legislature to debate this.
‘Suhakam report: Cabinet approval needed’,
19 May 2011.
142
8/18/12 2:03 PM
CHAPTER 9:
RIGHT TO HOUSING, FREEDOM OF MOVEMENT
AND THE RIGHT TO LIFE
8/18/12 2:03 PM
U
nderstanding the state of play on
human rights in Malaysia for 2011 is
incomplete without an analysis of the
violations involving the right to housing, the
freedom of movement, and the right to life,
particularly where human rights defenders
and political figures were concerned. In the
course of the year, there were at least two cases
which highlighted the lack of housing security
especially when land where one has resided
on, is deemed needed for ‘development’.
During the year, the BN government also felt
it fit to restrict the movements of several key
human rights and political figures, preventing
those travelling from the peninsula to enter
the State of Sarawak. It also denied entry to
two lawyers, one from France, the other from
the United Kingdom, who had arrived in
Malaysia to represent their clients in human
rights-related cases.
As the preceding chapters have indicated,
2011 was also marked by a worrying trend in
the increasing number of threats of violence
– including death – directed at human rights
defenders, politicians and others who appear
to challenge the establishment. Importantly,
these violations took place within a context
of highly politicised religion and ethnicity,
making it extremely difficult to hold
accountable, perpetrators of such violence.
Indeed, there appeared little that was done
about these kinds of violations, leading many
to believe that there are some in the country,
who are allowed to threaten the lives of others
with impunity.
1. Right to Housing
SUARAM dealt with two cases related to
housing rights in 2011. The first involved
the residents of 41 homes in the Bukit Jalil
Estate. Located along Jalan Puchong, this
was originally a plantation sprawled over
1,800 acres. This was whittled down to 26
acres following ‘developments’ such as the
Bukit Jalil Sports complex, a light rail transit
(“LRT”) station, a golf course and a detention
centre. Those still residing in the estate are
former plantation workers. On 14th March
2011, they filed a civil suit against the mayor,
seeking a declaration that they had exclusive
rights to and equity on the land. They also
sought an injunction to prevent the Dewan
Bandaraya Kuala Lumpur (“DBKL”, Kuala
Lumpur City Hall) from demolishing their
homes.
Former plantation workers and residents of Bukit Jalil were
victims of the Emergency (Clearance of Squatters) Ordinance
despite having lived on the land for generations since 1940s.
Despite this – not to mention they had
been living on the land since 1940 – DBKL
threatened to forcibly evict them and
destroy their homes the following day. This
was also particularly troubling given that
the outcome of joint meetings between
the residents, DBKL and the Ministry of
Human Resources was still undetermined.
Lawyers for the Bukit Jalil residents applied
for and successfully obtained an interim
injunction against DBKL on grounds that
it was unlawful and unconstitutional for the
authorities to use the Emergency (Clearance
of Squatters) Regulations to demolish these
houses. They also argued that eviction could
only occur “through the ordinary court process and
[if they obtained] a writ of possession”1
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Right to Housing, Freedom of Movement and the Right to Life
The residents succeeded in getting the
demolition plan to be temporarily put on
hold. Nevertheless, at the full hearing of
their application, High Court Judge Zabariah
Mohd Yusof ruled that there were no flaws in
the eviction notices issued, and that the DBKL
could legally cite the Essential (Clearance of
Squatters) Regulations promulgated under
the Emergency Ordinance to force them
out of their homes.2 The residents filed an
appeal but this was dismissed by the Court of
Appeal on 10th August 2011. The following
day, the High Court allowed an application
by the Kuala Lumpur mayor to strike out the
earlier-mentioned suit by the Bukit Jalil estate
residents, on grounds that it was vexatious,
frivolous and an abuse of court process.3
The second case involved three families –
formerly residents of Kampung Muniandy,
in Petaling Jaya Selatan (“PJS”) – whose
homes were demolished on 3rd June 2011
by a developer, Peter’s Brickworks. One of
these was occupied by a disabled man. This
action came after earlier demolition efforts
had been put on hold after a stop-work
order was obtained from the court on 30th
May 2011. However, the order, which was to
enable the State government to negotiate with
the developer and for the Majlis Bandaraya
Petaling Jaya (Petaling Jaya City Council) to
issue a formal letter in response to a list of
Kampung Muniandy homes destroyed although residents’
demands of PPR units have not been met. (Photograph courtesy
of Malaysiakini)
demands by the residents – i.e. to obtain a
waiver of rental for their Projek Perumahan
Rakyat units4 and their outstanding bank
interest until the units are completed – before
they vacated their longhouse homes, ended at
12noon on 3rd June 2011.
According to one resident, they did not get
any such assurance and were now homeless
with nowhere to go. This case in fact
originated from the time of the previous
Selangor BN administration’s ‘Zero Squatter
Policy’ which resulted in ‘squatter’ homes
being cleared for ‘development’ purposes.
Although Peter Brickworks had offered the
option of purchasing low-cost flats to residents
of Kampung Muniandy who vacated their
homes, these three families were left in
limbo after an unrelated dispute involving
the developer and a third party. Following
the incident, the current Selangor Menteri
Besar’s press secretary Arfa’eza A. Aziz said
that the state would seize the 11 acres of land
from the developer and ensure that affordable
housing and a school would be built there
instead.5
2. Freedom of Movement
Apart from those affected by preventive laws
like the Internal Security Act, the Emergency
Ordinance, the Dangerous Drugs Act, the
Banishment Act and the Restricted Residence
Act, and until they were abolished in October
2011, there were others whose freedom of
movement were arbitrarily restricted in the
course of the year. The most notable of these
were several activists and politicians from the
peninsula who had planned to be in Sarawak
in April 2011 for what was anticipated to be
the most closely ever fought State elections.
Those barred were:
•
Native customary rights land activist,
Steven Ng (3rd April 2011)
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8/18/12 2:03 PM
•
•
•
Political activist Wong Chin Huat (8th
April 2011)
Bersih 2.0 Steering Committee member
Haris Ibrahim (13th April 2011)
Bersih 2.0 Chairperson Ambiga
Sreenevasan (15th April 2011)6
None were given a reason for the ban but
Haris Ibrahim learnt that he was ‘blacklisted
on orders from above’.7 All were refused entry
based on Section 65(1)(a) of the Immigration
Act 1959/63.8 In response, SUARAM and
Bersih 2.0 called on the national human
rights commission, Suhakam, to address the
‘arbitrary abuse of the state’s immigration
autonomy’ and to uphold the right of all
Malaysians to move freely across the country.9
Ambiga subsequently filed a suit against the
Sarawak Chief Minister Taib Mahmud,
the Director General of the Malaysian
Immigration Department, and other relevant
authorities to challenge her deportation
orders.10 On 4th August 2011, the Kuala
Lumpur High Court dismissed this judicial
review application on technical grounds,
including that it should have been filed in
Sarawak, not Kuala Lumpur.11
Prior to this, PKR Member of Parliament,
Sivarasa Rasiah had also been denied entry
into the State in March 2011. He arrived to
attend the party’s State convention but upon
reaching the airport, was issued a deportation
order under the same Immigration Act
1959/63 provision. He too was told that
these were the ‘chief minister’s orders’.12
Later in May 2011, Ong Boon Keong,
the coordinator of the Malaysian Election
Observation Network, was deported from
Sarawak. Ong had come to follow-up on the
previous month’s polls. Specifically, as part of
his voter education work, he planned to visit
villagers living in Bengoh – one of the hot
seats contested – to find out if they had fully
understood the implications of their votes.
Unlike Sivarasa, he had obtained a 90-day
permit but was detained by 20 immigration
officials after he had entered the State and
had reached the village. They claimed that
he was held because he had ‘immigration
records’ even though they could not spell out
what these were. They also verbally insisted
that he leave without producing the necessary
papers.13
The Director General of Immigration deemed it expedient to
prohibit Bourdon’s (pic) entry into Malaysia for the interest of
public security (Photograph courtesy of Malaysiakini)
Other high profile state actions circumscribing
the freedom of movement in 2011 involved
two non-Malaysian lawyers, the first a French
citizen, and the second, a British. The former,
William Bourdon, was SUARAM’s legal
counsel in the on-going court case in France
relating to corruption charges involving the
Malaysian government in the purchase of
two Scorpene submarines from the French
naval arms producer DCNS. Bourdon was
in Malaysia to brief SUARAM, and speak
at three of its fundraising dinners. He was
detained at the Kuala Lumpur International
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8/18/12 2:03 PM
Airport after he had flown in from Penang.14
According to Lawyers for Liberty, Bourdon’s
detention was purportedly carried out under
Section 9(1)(a) of the Immigration Act that
empowers the Director-General to ‘prohibit
entry and cancel permits of individuals
considered prejudicial to the nation, “where
he deems to be expedient to do so”’.15
The second individual to be barred from
Malaysia was Imran Khan, the British
laywer for the Human Rights Party. He was
in Malaysia to conduct a fact-finding mission
as part of follow-up plans to the party’s class
action suit against the UK government.
Instead he was detained for 12 hours before
being deported on grounds that he posed
a threat to national security. According to
Khan, the authorities had not provided him
the reason for their actions, apart from the
fact that their instructions came from ‘the very
top’. He later discovered that he had been
labelled a ‘prohibited immigrant’ though
what this meant was never made clear.16
3. The Right to Life
Article 3 of the Universal Declaration of
Human Rights guarantees the right to life.
Similarly, even though this may be qualified,
the Federal Constitution of Malaysia also
recognises the government’s obligation to
uphold this right.17 Despite these guarantees,
the year was marred by a number of violent
threats made against those who spoke out
about human rights or were perceived as
challenging the status quo, in particular, the
position of Islam and Malay rights. Among
those to be violated in this manner were human
rights defenders like Ambiga Sreenevasan,
Chairperson of BERSIH 2.0 and others
associated with its campaign, including the
current Malaysian Bar chairman, Lim Chee
Wee, and several PKR and PAS politicians.
Between 22nd and 23rd June 2011, they
and several journalists received a lengthy text
message that said:“…Kalau perhimpunan ni jadi, aku dan org2
aku akan bunuh ambiga dan korang2 keliling
dia satu persatu, termasuklah orang2 politik
bangang yg bersekongkol ngan kafir laknat tu..
ini amaran aku. Korang tengokla nanti…”
(I am warning you. If this rally takes
place, my people and I will kill Ambiga
and those around her one by one,
including these stupid politicians who
are hand-in-hand with this scorned
infidel... this is my warning. You
watch.)18
The sender of the sms made it a point to tell
the Malay PAS and PKR leaders that Ambiga
was a ‘scorned infidel’, ‘a tool of those political
dogs who are out to destroy the Malays’ and
called them ‘deaf, dumb, blind and illiterate’
for not being able to see this. A few days
earlier, Malay ultranationalist group Perkasa
held a demonstration where they torched and
stomped on posters of Ambiga.19
A dead chicken hanging at the door of DAP MP of Serdang, Teo
Nie Ching’s service centre in January 2011. (Photograph courtesy
of Malaysiakini)
In October 2011, Aziz Bari, law professor at
the Universiti Islam Antarabangsa received
a bullet through post, warning him not to
disrespect the Sultan or face the prospects of
being murdered. It was believed that this was
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connected to his earlier comments in August
where he was seen as questioning the Sultan of
Selangor’s statement about the State religious
department’s raid on a local church.20 Earlier,
the NGO embroiled in this controversy,
Harapan Komuniti, was forced to relocate its
premises after a package was delivered there,
bearing the words “Jangan cabar Islam” (Don’t
challenge Islam). Fearing what it contained,
the group handed over the unopened package
to the police and lodged an official report.21
Others were appalled when Dewan Negara
senator, Ezam Mohd Nor, proclaimed that
news portals Malaysiakini and the Malaysian
Insider – and by implication, their staff and
other occupants of their buildings – ought to
be burnt down for being ‘enemies of Islam’.22
He later denied that he literally meant ‘burn’,
but remained adamant that the web portals
had to ‘burn’ the same way they had “‘burnt’
the hearts of Muslims over the issue of
apostasy”.23
blood still dripping – hanging on the grill door
of her service centre in Sungai Chua. There
was also a poster pinned onto the signboard
of her centre saying “Ingat! Ini satu Peringatan
Teo Nie Ching, Tentera Jihad” (Take note! This is
a reminder Teo Nie Ching, the Jihad Army)’.26
Before the year ended, another DAP
politician, Taiping Member of Parliament,
Nga Kor Ming also received a death threat,
this time in an envelope containing a bullet
and a warning that outlined three methods of
execution:“…Mampus cepat dengan peluru…” (fast
death by the bullet); “…Mampus lambat
simbah dengan asid kat muka…” (slow
death by acid splashed on face); and
“…Mampus lambat langgar dengan
kereta, pakai kerusi roda…” (slow death
in a car accident, forced to use a
wheelchair)…”27
The note also said, “…Ini amaran dari orang
Melayu – jangan kurang ajar…” (This is a warning
from the Malays, don’t be insolent)’.28
The threat note at DAP MP of Serdang, Teo Nie Ching’s service
centre (Photograph courtesy of Malaysiakini)
Another group under attack was political
leaders.24 In late 2010, DAP Member of
Parliament for Serdang, Teo Nie Ching was
criticised ostensibly for being ‘inappropriately
dressed’ while in a mosque setting.25 Following
this in January 2011, party workers found a
chicken whose throat had been slit – and with
While those aligned with the opposition
Pakatan Rakyat were particularly vulnerable
to these kinds of threats, BN politicians were
not completely spared of such harassment.
In the lead-up to the BERSIH 2.0 event,
the UMNO Youth head Khairy Jamaluddin
tweeted that he and several other Youth
leaders had received a text message that
appeared ‘like a threat to security’. He did
not divulge the details of the message but
Bernama reported that it referred to the
‘slaughter’ of UMNO Youth leaders at
the rally.10 In August, the Home Minister
himself, Hishammuddin Hussein, became the
recipient of two bullets that were sent to his
office. Although these came with a message,
the Minister refused to reveal its contents.30
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8/18/12 2:03 PM
4. Recommendations
i.
Uphold the right to adequate and
affordable housing, as well as the security
of tenure against forced evictions,
harassment and intimidation.
ii. Desist from using the Essential (Clearance
of Squatters) Regulations promulgated
under the Emergency Ordinance.
iii. Ensure that Malaysians have the right
to freely move within and out of the
country (and to re-enter when they
choose to). Non-Malaysians should also
be allowed the freedom of movement so
long as they pose no threat to the security
of Malaysia.
iv. Take immediate measures to stop the
politicisation of ethnicity and religion,
including the use of Islam to justify
attacks against human rights defenders,
politicians and those perceived as
challenging the status quo. Those who
propagate hate crimes or issue threats of
violence should be apprehended under
the corresponding laws of the country.
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End Notes
1
‘Temporary relief for Bkt Jalil Estate residents’,
The Star, 16 Mac 2011, <http://thestar.com.my/
news/story.asp?sec=central&file=/2011/3/16/
central/8273009>, Accessed: 17 Mac 2011.
10 ‘Bersih chief sues Taib over deportation from
S’wak’, Malaysiakini, 26 May 2011, <http://
2
These regulations are promulgated the
Emergency Ordinance. ‘Bukit Jalil residents’
injunction against DBKL ruled invalid’,
11 May 2011.
11 Ambiga fails to challenge S’wak deportation
order’, Malaysiakini, 4 Aug 2011, <http://
3
‘Court strikes out Bukit Jalil residents’ suit’,
Malaysiakini, 11 Aug 2011, <http://www.
12 Aug 2011.
12 This was the second time Sivarasa had been
prohibited from entering the State. The first
was in 2009. ‘MP Sivarasa barred from entering
Sarawak’, Malaysiakini, 12 Mac 2011,<http://
4
Urban settlers who have been evicted from
their homes are allocated a new home under
this scheme.
13 ‘Deported from S’wak, but why?’, Malaysiakini,
25 May 2011, <http://www.malaysiakini.
com/news/165089>, Accessed: 26 May 2011.
5
‘Longhouse torn down, S’gor to punish
developer’, Malaysiakini, 3 Jun 2011, <www.
4 Jun 2011.
6
See ‘Bersih 2.0 queries Sarawak’, The
Malaysian Insider, 15 Apr 2011, <http://www.
themalaysianinsider.com/mobile/malaysia/
article/bersih-2.0-queries-sarawak-for-barringambigas-visit>, Accessed: 16 Apr 2011.
14 He was not prevented from entering the island
State when he first touched down in Malaysia.
It was only after he had presented a speech at
the SUARAM fundraiser in Penang that he
was detained upon arrival in Kuala Lumpur.
‘French lawyer deported after being held at
KLIA’, Malaysiakini, 22 Jul 2011, <http://
7
‘Haris Ibrahim barred from Sawarak’,
Malaysiakini, 13 Apr 2011, <http://www.
14 Apr 2011.
15 ibid.
8
Under this provision, the State Director of
Immigration must comply with a directive by
‘the State authority’ and not issue a permit
or pass to any person(s) wanting to enter the
State.
9
‘BN S’wak entry ban on critics an abuse of
power’, Malaysiakini, 5 Apr 2011, <http://
16 In 2007, Hindraf leader P. Waytha Moorthy
filed a four trillion pound lawsuit against the
British government for bringing Indians from
the continent to Malaysia (then Malaya) as
indentured labourers, and thereafter, leaving
them in the hands of a post-colonial government
which systematically deprived them of their
rights. ‘Deported lawyer: Gov’t irrational, fears
opposition’, Malaysiakini, 27 Aug 2011, <http://
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8/18/12 2:03 PM
17 Article 5(1) of the Federal Constitution reads,
‘no person may be deprived of life or personal
liberty except in accordance with law’ [emphasis
added in italics]. It should be noted that
under the law, the death penalty and corporal
punishment in the form of whipping are both
permissible.
18 ‘Sms death threat against Ambiga making its
rounds’, Malaysiakini, 23 Jun 2011, <http://
Accessed: 24 Jun 2011.
19 ibid.
20 He was subsequently suspended by the
university. ‘Prof Aziz Bari receives bullet in
the mail’, Malaysiakini, 29 Oct 2011, <http://
21 The organisation which provides services for
single mothers, people with HIV/AIDS, and
children had held a thanksgiving dinner at the
church premises. This became the target of
the raid by the Selangor religious authorities,
JAIS (Jabatan Agama Islam Selangor).
‘Harapan Komuniti relocates after “threat”’,
28 Aug 2011.
22 ‘Ezam’s threats against web portals “criminal”’,
14 Aug 2011.
23 ‘I didn’t mean “burn” literally, Ezam’,
Aug 2011.
24 Not all threats against politicians arise in
response to their human rights beliefs or
because they are perceived as challenging
authority. In the case of Kedah State
assemblyperson, Lim Soo Nee, he received
a bullet and note demanding that he not
seek re-election at the next polls. See ‘Kedah
ex-co member receives bullet in envelope
shock’, Malaysiakini, 5 Aug 2011, <http://
6 Aug 2011.
25 There were two complaints, one in August and
another in December, both pertaining to her
dressing. On one of those occasions, she had
allegedly worn ‘tight clothes’ for an aerobics
session in the compound of a mosque. ‘Dead
chicken in threat against Serdang MP’,
20 Jan 2011.
26 ibid.
27 ‘Nga gets death threat, bullet in mail’, Malaysiakini,
28 Dec 2011, <http://www.malaysiakini.com/
28 ibid.
29 ‘Khairy: I, too, received sms threat’,
27 Jun 2011.
30 ‘Home Minister receives live bullets, death
threat’, Malaysiakini, 24 Aug 2011, <http://
151
8/18/12 2:03 PM
VOICES OF THE PEOPLE:
SELECTED STORIES
8/18/12 2:03 PM
Voices of the People: Selected Stories
Who Killed the Guppy Union?
This is a story of brave women unionists defeated by a system which protects union-busting
bosses, and where the Trade Union Department and Industrial Relations Department are
toothless while the Court remains innocently dumb and deaf to the workers’ plight.
In 1998, Anwar Ibrahim was sacked as the
Deputy Prime Minister. It was a significant
event in the country and brought to birth
the Reformasi movement. That same year, in
Cheras Jaya, three women unionists were
sacked. Their crime was trying to form a
union. Unlike Anwar, who was tried, jailed
and finally freed, this case of the three women
unionists is yet to be over. They continue to
wait for justice as the Federal Court has not
set a date to hear their leave application.
Their plight may not have national appeal
like Anwar’s case but remains significant
as these three women formed a union that
was systematically destroyed because it
represented the interest of workers against the
interest of profits and the bosses.
Fourteen years have passed. The workers have
nothing to lose except their chains, says Karl
Marx in his writings in 1848. In this case,
the three women have lost everything except
their chains. Yet they fight on. This morning,
I received a call from the lawyer representing
the three workers. He said that the Guppy
bosses are objecting as the main applicant for
the appeal Koyilvani (Vani), the chairperson
of the Union was declared a bankrupt last
year. I called Vani to verify the facts and she
said yes and that was because she could not
settle her housing loan. As I was pondering
what to say, she told me, “Whatever, please
ensure our case goes on!” That has been the
story of the Guppy Union. Fourteen years
of uphill struggle against a system which is
patriarchal, exploitative and pro-capital.
It all started in 1997 when a group of
women walked out of their factory after their
employer Guppy Union Industries Sdn. Bhd.
increased their daily wage by a mere 10 sen.
Obviously frustrated, the workers demanded a
bigger rise as they realised that their company
which makes plastic products had been very
successful. The company even exported dog
kennels overseas and this has been always
been the talk among the workers, that it built
dog homes for the export market but their
own workers lived a “dog’s life”.
The bosses could not tolerate such a wildcat
strike and wanted to smash the rebellion.
The company brought in the police during
negotiations to scare the workers and stop
their strike. They also increased the daily wage
a bit more. It was the start of a confrontation
between workers who needed more money
to feed their family and the company which
wanted more profits to feed their greed.
The workers who were mainly women then
decided that they need an organisation to
protect them.
This is when they decided to form a union.
They approached members of Community
Development Centre (CDC) a grassroots
organisation based in Kajang, for help.
On 16 November the same year, the workers
held a historic meeting at the MCA hall at
“Chow Lai” in Balakong. Over thirty attended
and they unanimously agreed to form a union.
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8/18/12 2:03 PM
When the Pro-tem Committee was selected, it
ended with a seven person all women team.
It was amusing to hear some women leaders
among them suggest that they should allocate
some places for men. The normal scenario is
always the opposite, where men will decide
to give some positions to women as a token
gesture. Since there were hardly any capable
men to fill these positions, the first all women
union Pro-tem Committee was formed. It
was called Kesatuan Sekerja Pekerja-pekerja
Guppy Industries Sdn. Bhd.
On 7 December 1997, the proud Pro-Tem
leadership of Guppy Union went to put in
their application form with the Registrar
of Trade Unions (RTU). The Registrar
was extremely hostile after learning that it
was an all women union. The RTU tried to
discourage the women by asking them to drop
the idea, ridiculed them by saying that they
would need men to run around to do work
which they felt women were not capable of.
Finally after many obstacles, and five months
of haggling, the union was finally registered
on 27 April 1998 with 813 members.
The new young Union leadership was
excited. Never did they imagine that they
were heading towards the chopping block
of the company. The Union immediately
sprang into action. It circulated the good news
in three languages Malay, Mandarin and
Tamil to all the workers along with its new
registration certificate. They proceeded to
produce union membership forms, payment
receipts, opened a bank account and discussed
a schedule to meet with workers and to hear
their grievances.
The first hostility from the bosses came when
the Union requested permission to put up a
notice at the guard house and canteen. The
company immediately rejected this request
and said that no space within the factory
would be allowed for this purpose. The
Union resorted to distribute flyers and leaflets
instead.
The company then started targeting some key
workers whom they felt were behind settingup the Union, and started to give them final
warnings, stating that their distribution of
leaflets was creating problems and their
actions disruptive to production.
Two days after three workers were given a
warning, the Guppy bosses sent some of their
representatives to the CDC office in Kajang.
They tried to convince the CDC activists that
the Guppy bosses had been taking care of the
workers welfare and hence there is no need for
a union. They also said that the father of the
current General Manager has no tolerance
for a union and did not want any union to
exist in the factory or his backyard.
The newly formed Union was confused. They
were registered by the Government yet could
not get the Company to negotiate with them.
The RTU then told the workers that they
needed at least ¾ of all workers to join the
Union to be recognized by the company and
have the right to negotiate. The RTU also
told the workers to give the company a list
of the Union Pro-tem Committee members
so that the company would know whom to
communicate with.
This was the fatal error which the Union
learnt later. This was what the company
needed. Until that moment, they knew that
the workers were getting organised but did
not know who was leading them. With the
list, the company knew who was running the
Union and in less than 4 days, the entire Protem Committee was slapped with suspension.
On 4 June 1998, the entire leadership of
the Union was suspended on four charges:
tarnishing the company’s name, forcing
workers to join the Union, involvement in
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unnecessary activities (i.e. union activities)
during work time, and threatening the well
being of other workers.
With the Union leadership suspended for
two weeks, the Guppy Bosses had a field
day in threatening and demolishing the
Union. The company met the remaining
terrified workers in rows, separated them, and
intimidated them. The workers were told to
sign confession papers that they were forced
to join the Union, and warned that those who
joined would be treated more strictly. Those
who refused to sign were either persuaded to
help the boss or threatened with termination
or else given a rough time. The workers were
shocked. They expected that with the Union,
they would be better protected. They never
expected that would happen since their Union
had been approved by the government.
Meanwhile the suspended leadership went to
the RTU to lodge a complaint. Sadly, they got
no protection. They were instead directed to
the Industrial Relations Department (IRD),
which in turn told them to wait as they had
only been suspended, not sacked. Both these
departments did not intervene though there
were blatant violations of union and workers
rights. They allowed the Guppy Union to be
killed and torn to pieces. Perhaps they are
designed to work that way. Create a false
avenue for the workers to complain and file
their grievances as long as the interest of the
capaitalist is not hindered.
The RTU kept telling the Union that they
should work on getting recognition from the
company rather then focus on the suspension
of its leadership. Meanwhile the Company
called the seven suspended leaders. They
decided to sack three and kept 4 with strict
warnings. This was also a way to show to the
IRD that they are not so cruel after all.
The sacked were the top three leaders – the
Chairperson Koyilvani, Secretary Roshamiza
and Treasurer Ratna. There was no Domestic
Inquiry conducted. The panel called the three
individually and told them that they would be
sacked immediately but they had two options:
either they admit that they are guilty and be
paid three months salary plus the two weeks
full salary which was held back during their
suspension or if they plead not guilty, they
would only be paid two weeks full salary. All
three pleaded not guilty. The other four union
committee members were allowed to return
back to work with strict warnings that they
should not be doing union activities or face
the same fate.
Listening to the advice of the RTU, the
Union focused on building membership to
get recognition and let the case of the sacked
leaders to be handled by the IRD. This was
yet another piece of bad advice. The RTU
and IRD had not protected the Union when
its leadership was placed under duress, and
now told them to keep going even though they
no longer had their Chairperson, Secretary
and Treasurer. It was like telling them, you
can still walk with your crutches.
The Union continued to be active and
campaigned outside the factory premises,
collecting signatures and support for their
petition. This went on for another two years.
The three sacked unionists kept winning every
election since thethey were unopposed, a sign
that their popularity never waned.
After collecting more than 200 new members,
more than the required number needed to
get official recognition, on 23 August 2000,
the company informed the Union that its
application to be officially recognised was
rejected on grounds that it failed to gain the
support of the majority of workers. The
Union was baffled as they had more than the
requisite 3/4 of workers as members. Then
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they were notified that there was another
factory in Prai whose workers had not been
taken into consideration. Never once was the
Union notified of the existence of another
factory nor did the RTU advise them of this
matter. Instead, the RTU and IRD agreed
with the decision of the company.
With this, the company thought that they
had demolished the Union. However,, the
wounded Union fought on. It continued to
hold meetings in small numbers, meeting
workers during their breaks and tried to keep
the flame burning. It was an uphill task as
defeat after defeat befell them. The company
remained paranoid about the workers. In one
instance, seeing that the workers were still
supporting Koyilvani and seeing her at the
gate of the company, still popular, a company
official shouted at her and the other workers,
“…either you shut the Union or I close the
company!”
After failing to stop the Union, the company
went on to sack the next two lifelines of the
Union, the Deputy Chairperson Rahimah
and Assistant Treasurer Visalatchy. Both were
arrested on a false charge of stealing workers’
money. A kangaroo court inquiry was held
and both were sacked. The two have been
the leading unionists inside the factory since
the other three had been sacked. This was yet
another major blow. Once again the IRD told
the workers to file the case while the RTU told
the Union to bring the workers from the Prai
factory into its fold.
With little hope, the sacked women unionists
continued their fight. They went to Prai, 300
kilometers away, where the other Guppy
factory was located and went about organising
the workers there. It was yet another great
battle. With few contacts, they stayed outside
the gate of the factory, hoping to meet workers
during their breaks and after office hours to
get enough members to join the Union. CDC
members helped them. Money was collected
from well wishers and friends to keep the
Union going.
Soon, against the odds and to the dismay
of the Guppy bosses, the women unionists
managed to get a team of workers in Prai to
form a committee. They stayed to highlight
the issues faced by the workers in Prai and
soon more women joined their union. Then
the axe fell again. Two leading Prai unionists
who were the most active organisers were
sacked. This brought to an end the Prai
chapter. More reports were lodged with the
IRD, RTU and the Minister.
In total, the Guppy Union had made 15
reports to the IRD on union victimisation,
three reports to the Human Resource
Ministry on the victimisation and all forms
of exploitation by the Guppy Management,
around seven police reports against the
Guppy Management, and seven other reports
to the Labour Department.
None of this stopped the Guppy bosses. With
the law prohibiting the right of workers to
strike; it made the Union weak and irrelevant.
Between 1945 till 1948, 67 per cent of the
Malayan workforce was unionised. The 1948
emergency and subsequently every major law
and workers’ regulations made the Union
and the workers weak. Today there are only
around 7 per cent workers who are unionised
with most of them not recognised to negotiate
or conduct proper Collective Agreements.
The RTU and IRD are designed to kill
unions and weaken workers’ organisations.
The bosses have the upper hand as they can
sack the union leadership; prevent them from
entering company premises; manipulate the
laws to prevent unions from being recognised;
and while they slaughter the unions, the RTU,
the IRD, the HR Minister do nothing.
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Numerous negotiations were held. But at the
end of the day, the government officials would
say to the Union, “…we are very sympathetic
to you, but we can’t do much, our hands are
tied and one must follow the law, we can’t take
sides…”. Another officer would say, “…You
shouldn’t have acted emotionally, he is your
employer, he is paying you…”. Interestingly,
all the actions taken by the said government
officials were only after the workers got sacked
or punished. There is no preventive measure
at all. Ultimately the workers are the victims,
they are the ones who get made redundant
or sacked or degraded or intimidated or
harassed and the worst is being left without
employment. Under such circumstances,
what is industrial harmony when workers
livelihood gets trampled upon?
Finally, the case of the sacked Union activists
went on another roller coaster trip, this time
involving the Industrial Court, the High
Court, the Court of Appeal and now at the
Federal Court.
The workers lost in the Industrial Court.
The first hearing of the case started on 30
September 1998. This went for years but
ended without a verdict as the Chairperson
did not write his judgement. Pressure for the
judgement to be made only resulted in the
entire case being retried. The new trial started
on 26 July 2004. On 31 May 2006, after two
years, the unionists were told that they had
lost the case. This was despite the fact that
the factory boss had admitted that he had
targeted the Union. The Court felt that it was
not an act of union busting.
The Union appealed. On 14 December
2004, the High Court reversed the Industrial
Court’s decision, stating that the verdict to
sack the workers was too harsh and that the
latter did not take into account the aspect of
union busting.
Yet, this sympathetic verdict was crushed
when the Court of Appeal in February this
year, took just 20 minutes to throw out the
the three unionists’ case by upholding the
Industrial Court’s decision to dismiss them for
attempting to form a union fourteen years ago.
The judges, Abdul Wahab Patail, Anantham
Kasinathan and Linton Albert, did not show
much compassion nor empathy and upheld
the judgment in favour of the union-busting
boss of Guppy.
The Court of Appeal felt that the three
unionists were sacked for conducting
union work during working hours. This is
categorically untrue and all the workers have
testified against this lie. It was the employer’s
words against the workers’ words. Yet the
Industrial Court chairperson believed the
employer’s story and awarded a judgment
against the workers. The Court of Appeal
did the same. The verdict was outrageous
and disgraceful and missed the whole point
of justice.
This seems to be the fate of workers who
braved themselves to form a union. Perhaps
it is time the RTU close its office rather than
merely providing lip-service. The court has
to be condemned for giving leeway to the
union-busting bosses. They have indulged
themselves not on the substance of the matter
but rather on trivial issues in determining a
verdict.
The Guppy Union story, after 14 years, points
to a conspiracy against unionists and unions
who fight for the betterment of workers.
The Guppy Union was told to fight with all
its arms and shields taken away. Only unions
who ‘kowtow’ (obey) and are ‘yellow’ are
allowed to function. The Guppy Union’s
fate and many others have been ruined by a
system which protects the minority capitalist
class against the majority working class. The
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entire IRD, RTU, Human Resources Ministry
have colluded with the bosses but make out
that there is justice and fairplay. Various
instruments and mechanisms are created
in the name of industrial harmony. But the
harmony seems to be only enjoyed by one side
only.
The time will come when workers will decide
to remove these instruments. As long as these
inequalities exist, there will continue to be
workers and unions formed to protect their
interests. A new dawn of the human race
is only possible when every worker is paid
according to his/her due labour and enjoys
his/her labour and life.
S.Arutchelvan
18-6-2012
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A Humbling Experience
Where do I begin with writing about the
Orang Asli or aborigines? How do I describe
my short journey and experience with these
wonderful, lovable, unassuming and extremely
shy people, a section of our Malaysian society
which is forgotten, trampled on and seem to
have no rights whatsoever.
I will not delve into who they are nor their
history as there are many books and journals
that have been written on these. This is my
personal view, private feelings and opinions
after having spent a little bit of time with
them and experiencing their way of life.
I first became involved with the Orang Asli
when I joined the Human Rights Committee
under the Malaysian Bar back in 2007. During
that time, I was dabbling into Migrants/
Refugees, Children as well as many other
issues including the Orang Asli. By default,
I was invited by Dato Ambiga Sreenevasan
into the Orang Asli Committee which was
newly formed under the Bar Council. It came
about after the scandal in Hospital Gombak
for the Orang Asli where there were many
untoward things happening. Dato Ambiga,
together with a few of us, was very involved
in this case and it culminated in a meeting
with the Health Minister in Putrajaya. Due
to the pressure on the issue, the Hospital is
now under the Health Ministry instead of
JAKOA (Jabatan Kemajuan Orang Asli,
Department for the Advancement of Orang
Asli) that mismanaged it in the first place.
Dato Ambiga realised there were just too
many issues affecting the Orang Asli that she
felt a committee that concentrates purely on
the Orang Asli was required. Hence, the Bar
Council Committee for Orang Asli Rights
was born.
Through this Committee, I was invited to
visit many Orang Asli villages especially in
Gua Musang, Kelantan. These Orang Asli
are from the Temiar tribe. I must admit that
prior to this, my knowledge and exposure to
the Orang Asli were limited but within a short
period of time being involved with them, I
came to realise that there were so many unfair
policies and treatment towards the Orang
Asli. It became apparent to me, that the rights
of the Orang Asli were minimal or even to the
point where I should say, non-existent!
I am revolted by how little, if any, our
government respects their ownership of their
own land, heritage and autonomy. Too many
people think material possessions matter
compared to love, respect, freedom and
dignity.
Hearing the testimonies of ancestral
connections with their patch of forest and
their determination to keep this, I was struck
by how most of us have lost any sense of
place and attachment to the land. I have
moved around all the time and bought and
sold houses without feeling ties to the soil. But
here, in the Temiar land, their soil is like their
blood. It is everything. To lose it would be to
lose their identity. I am made to understand
that these feelings run across indigenous
tribes all over the world.
My passion to help the Orang Asli get
their land recognised as theirs, including
places where they have been evicted, and
stopping loggings, plantations, mining and
other profit-making schemes on their lands
which masquerade as ‘development’. These
activities, conducted to actually destroy
them, increases more and more as each day
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passes by. They are suffering as their land and
forests are exploited by timber and palm oil
companies. Their rivers and sources of water
are polluted. The real obscenity is that they
drink that water. They have no choice but to
bathe in it and to bathe their children in it.
Do the Orang Asli benefit from such
‘development’? I can’t see it nor can they. We
need to think about whether development
brings any benefits to those who are largely
self-sufficient. They get their own food and
build their dwellings where the water is
still clean. Has ‘development’ offered them
anything helpful? It’s easy to see where it has
led. The state governments and their cronies
have been determined to steal tribal lands, and
do not want to be questioned about their own
superiority. They espouse politico-economic
models to the Orang Asli. They try to
assimilate the Orang Asli into the mainstream
society but at best, they have been integrated
to serve certain quarters of society.
As for large-scale infrastructure development
– dams and mines, even irrigation – its real
effect on the ground is invariably to enrich the
elites while impoverishing the Orang Asli who
live there. It would be interesting to know into
which bank account vast sums of money paid
by land grabbers – the state’s treasury or a
group of officials who are literally selling their
country to the highest bidder – have gone.
The fact that little has been done to explain
to the Orang Asli why they are being moved
without compensation, except the pittance
they get paid for their crops and orchards, if
they are lucky.
Personally, I cannot see why the government
sees it fit to supply the Orang Asli with low
quality brick houses. Traditional housing has
many benefits, not least the fact that it is free.
But ‘development’ decrees that this must be
replaced by modern dwellings. These so-
called modern dwellings are hot, have no
clean running water, no electricity and are of
extremely poor quality. A lot of the Orang
Asli build their own traditional huts adjacent
or next to these modern houses as it is more
livable. Some even refuse to live in these
brick houses. People who have an ancient,
self-sufficient, lifestyle don’t need to live in
concrete houses or have some pittance-paying
jobs.
As experts in these issues will confirm, the
principle of ‘informed consent’ applies.
Tribal communities do indeed turn down
‘development’ when they are properly
consulted and informed about the implications
thereof. I think this begs interesting questions
about our own development too. Having spent
time with the Orang Asli, while these people
are materially poorer, they are certainly
happier – the family, the community, friends,
nature – while our so called ‘developed’
societies emphasise the things that erode our
happiness and well-being, hence the high
rates of depression.
The Orang Asli should, of course, have access
to the best possible medical care, just like
everyone else. No sensible person will argue
with that. I am just concerned that we should
respect the wishes of the minority community,
rather than imposing outsiders’ ideas of
‘development’ on them.
If we actually listen to the Orang Asli, from
whichever tribe they may come from, they
will almost always want decent health care
and education for their children – whilst at the
same time holding on to their land, and their
own ways of life. The two are not mutually
incompatible, indeed there are plenty of
thriving examples of tribal peoples who have
done exactly that.
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Many Orang Asli have observed that even the
modern medical attention they might receive
from the government doesn’t begin to solve
the illnesses the same government’s policies
have inflicted on them. It isn’t ‘backwardness’
that makes many of these Orang Asli reject
development projects, it is rational anxiety
about the future.
religions (usually) remain intact and are
rooted to the systems that sustain them.
We, on the other hand, squander our life
support systems like there is no tomorrow.
Our religion is ‘progress’, which these days
mean conforming to a capitalist system that
disempowers most and treats everything and
everyone as a resource to be exploited.
So is it possible to offer the Orang Asli any
truly beneficial development? Yes, if we
accept their right to reject what we, with
our ‘advanced’ wisdom, can give; we have to
stop thinking of them as childish when they
make decisions we wouldn’t. Everyone wants
control over their future and not everyone
wants the same things out of life. But such
truisms are hardly ever applied.
The Orang Asli are a significant and
important portion of humanity. Their
heritage, their ways of life, their stewardship
of this planet, and their cosmological insights
are an invaluable treasure house for us all.
‘Development’, at least for most of the Orang
Asli, isn’t really about lifting them out of
poverty. It is about masking the takeover of
their territories. The deception works because
the conviction ‘we know best’ is more deeply
ingrained today than it was a generation
ago. As a Temiar Batin once told me: ‘They
told us, the plantations are for the Orang
Asli. But when it happened, we realised we
are not benefitting from it. Instead, we have
been pushed out from our land and it is more
difficult now to find our food and income
as the jungle is further and the rivers are
polluted. How are we going to live?’
In a 21st century of expensive water, food,
housing, education, healthcare and power,
self-sufficiency has its attraction. It may not
boost GDP figures, but there are many tribal
peoples in the world who live longer and
healthier lives than millions in nearby slums.
Who’s to say they’ve made a bad choice?
Think about it. These people live sustainable
lives by making use of the resources and
energy flows that surround them. Their
We are simply an incredibly arrogant
bunch. We speak but we never listen, and we
patronise thinking we are better even though
we’re destroying the planet that supports us in
the process of ‘development’, whilst they can
live off a local economy.
The real obligation we have to the Orang Asli
is to leave them in peace, to allow them to
make their own decisions and to stop forcing
our own culture on them. Whether they want
development or prefer to live the way they
have done for millennia is not something we
should even be thinking about. It should only
be up to them. Who are we to make those
decisions for them?
There have been studies which show that
indigenous peoples are key to preserving the
world’s forests. I am convinced that it is the
developed world that has to learn humility
and to honour our natural world and selves.
The best way to do so is actually from the
rarer ‘intact’ and less intact but ‘older’
cultures like the Orang Asli. If anything that
the old cultures need, they need to know that
they have had it right all along, in most ways,
and that they need not feel less than anyone
or anything.
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What the older cultures have found a way
to facilitate is an autonomy and self-mastery
and a dignified inter-relatedness that the
desk-bound, next-paycheck bound, eating
alone-in-front-of-tv cultures could barely even
dream about. However, the real challenge is
to authenticate a natural and native self-risen
authority. Our appreciative respect to such
self-sustaining and life-sustaining cultures will
go a long way towards this.
And last but not least, the greatest problem
is the removal of choice from ‘development’.
But this is exactly how capitalist economies
have thrived – by flooding one with a choice
of respirators but eliminating the choice to
free and fresh air. We must accept that the
diversity of humankind, with the knowledge
it can bring, is valuable for all.
It may seem so simple and straightforward
therefore it is astonishing how some people
are still unable to grasp the message that
the Orang Asli should be in control of their
futures and be allowed the respect to make
their own decisions. That doesn’t mean they
‘can’t have access to the Internet or 21-century
healthcare’. Why on earth should they not
have those things? But does it mean that just
because they may want those things (as many
do) they can’t also be thriving members of
their own societies, on their own land, making
their own decisions.
We can do better than this. If only we cared
enough to try. It’s all down to the groundswell
of public opinion.
Siti Z Kasim
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Stop Lynas: Fight for our future generations
Since my involvement in the anti-Lynas
campaign, I have joined the NGO in
campaigning locally and have met the Green
Party Parliamentarians in Canberra and
Perth, Australia. I have also met Nick Curtis,
CEO of Lynas at his small office in Pitt Street,
Sydney.
When we confronted him on his permanent
waste disposal plan, he was at a loss because
Lynas had not come out with it yet. He just
repeated what he had been saying on TV
and nothing else. When I asked him what he
thought of the village folks at Gebeng laying
down their lives to prevent the plant from
operating, he said that I was threatening him.
But I insisted that it will become a reality if
Lynas forces the people into such a dilemma.
After visiting the politicians in Australia
during our anti-Lynas campaign, I realised
the limitations they have in stopping Lynas
because of their own loopholes in exporting
hazardous products.
Moreover, Parliament in Western Australia
is controlled by miners. As such, the rare
earth ore transported by trucks from the
Lynas distillation plant in Mt. Weld, Western
Australia can sneak into Perth and Fremantle
port without any problems. The reality is that
Australians have their own set of politics and
problems at their own backyard.
After the anti-Lynas campaign trip to Sydney,
Canberra, Albury, Perth and Fremantle, I
concluded that the root cause of the Lynas
controversy stems from our own corrupt and
irresponsible government. Bearing that in
mind, we have to fight Lynas here and if we
need a political solution at the end, so be it.
As I highlight the following arguments and
opinions, we have everything to lose and
nothing to gain from this infamous rare earth
project in our own backyard.
Many questions remain unanswered with the
way the Lynas project was bulldozed without
proper public engagement and a Detailed
Environment Impact Assessment (DEIA)
report. Instead, the government resorted to
an orchestrated media blitz to justify their
decisions to approve the Lynas Advanced
Material Plant (LAMP).
A lie may take care of the present, but it has
no future. Amidst all the debate between the
government and the anti- Lynas campaigners
on the safety of Lynas, the majority of people
have decided that they will not risk their
livelihood and environment to allow Lynas to
operate in Gebeng, Kuantan.
Lynas was a done deal when they moved
from Teluk Kalong, Kemaman to Kuantan,
Gebeng.
Many residents in Kuantan and Kemaman
have resigned themselves to the fate of living
next to the world’s largest rare earth plant.
Within a few years they will be living next
to the world’s largest toxic and radioactive
dumpsite. Thousands of residents here, Singapore,
Thailand and Indonesia will be exposed
to the radioactive pollution in three forms
i.e emission of gaseous waste into the air,
discharge from the waste water, and solid
waste.
The general population’s cancer cases will
increase tremendously and many innocent
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children will suffer from leukaemia. Former
Premier Mahathir has claimed that Lynas is
safe. This was the same lie that he repeated
to the residents of Bukit Merah, Perak. The
fishing, tourism, poultry and hotel industries
will be affected by the radioactive pollution
and collapse in due time. The aftermath of 12
years of tax-free operations will leave Kuantan
and Kemaman uninhabitable forever.
In fact, he should apologise to the families of
the victims who died due to the radioactive
pollution from the Asian Rare Earth
(“ARE”)company during the early 1980s.
Unfortunately, there were no legal suits
initiated by the victims against him and his
Cabinet for approving the Asian Rare Earth
plant.
It will be too late when tragedy strikes Gebeng,
Kuantan and Kemaman. The whole land
area with the coastal line will be polluted and
the fishing industry will especially be wiped
out. Many local people and foreign countries
will boycott the local products when these
are blacklisted as hazardous and radioactive.
Birds’ nest, palm oil, rubber and seafood
industries in the East Coast of Peninsular
Malaysia will be the most affected by the
contaminations. The huge volume of dust in
the air and heavy metals discharged from the
plant into the sea will have an adverse impact
on the food chain and agriculture industries.
We have to stand up to protect our families’
health and welfare. The destiny of our country
and wellbeing is in our hands. When we
tolerate the inhumane act of the government,
we are giving up our human rights to them.
As such, we must reclaim it through our antiLynas campaign.
Until today, The Atomic Energy Licensing
Board (“AELB”), the Science, Technology
and Innovation Ministry (“MOSTI”) and
Ministry of International Trade and Industry
(“MITI”) are singing the same tune, a
reminiscent of ARE’s approval in the past.
Lynas is exporting the plant and their waste to
Kuantan. It is one huge package of toxic rubbish
because the plant materials cannot be used as
scrapped metal when it is decommissioned.
Similarly, like Bukit Merah, it must be buried
in the grounds. Why? Because the dust is
harmful and dangerous with radioactive
pollutants. In America, rare earth waste is kept in
mountains with granite rocks located in
a stable area with no known risk of an
earthquake. This reflects how serious the
American authorities are with regard to rare
earth waste disposals. In comparison, Lynas
in Gebeng is located in an unstable reclaimed
swamp. The soil is very unstable and with the
sheer weight of millions of tonnes of toxic
and radioactive waste, the containment wall
can easily crack. The toxic and radioactive
heavy metal will sink to the bottom of the sea.
Crustaceans, prawns, clams and fishes that
feed at the bottom of the sea will be the first
to be affected in the food chain.
Kuantan and Kemaman residents have to
choose between a ;slow and painful’ death
from cancer or step up their resistance to
Stop Lynas from firing their furnace. The
first phase of fighting Lynas in the preoperation stage during the last few years is
about to end. If we fail to stop Lynas at the
construction phase, it will be more difficult to
fight the Goliath when the plant commences
production of rare earth alloy.
We have to step up our campaign over the
next six months. It’s a do or die battle for our
survival in fighting environmental injustices.
Silence means accepting the inevitable
mega disaster to happen the moment Lynas
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commences operations. Our family health
and wellbeing will be destroyed forever.
BN leaders have no human conscience for
bringing a radioactive plant here and turning
Kuantan and Kemaman into toxic wasteland.
Either the people are fools to fight Lynas or the
government approving bodies are liars for hiding
the truth about the ecological, economic and human
disaster from the people.
By controlling the media, they have prevented
the public from knowing the real facts and
truth about the dangers of rare earth’s harmful
effects. Instead, they spin half distorted truths
about its waste and usage. Many people are
still confused between external and internal
radiation, the latter of which is extremely
dangerous. The government media strategy is
to confuse the people if they cannot convince
them about the safety of the plant.
development and progress they want. I believe
that sustainable development is crucial for
nation building and for preserving our ecosystem.
For the sake of our country and future
generations, I wish to appeal to all Malaysians
to come forward and join our anti-Lynas
campaign before the temporary operating
licence (TOL) is given to Lynas. I shudder to
think of the thousands of human lives wasted
due to cancer from exposure to radioactive
pollution. Prevention is better than cure.
Clement Chin
Steering Committee, Himpunan Hijau
Why can’t the Lynas CEO and their experts
come to Kuantan and face the residents
here for a debate or forum? The fears
of the 700,000 affected residents around
greater Kuantan cannot be dispelled with
government approving bodies forcing their
arguments down the throats of the people to
silence them. The government, stakeholders,
contractors and suppliers all have a role in this
rare earth project .
Concerned citizens must continue to fight
until Lynas is stopped and charge those
involved in court for a crime against humanity
and environment. We have to stop Lynas
and save Malaysia from a ticking time bomb
that is disastrous. The people must get the
Parliamentarians to enact more stringent laws
to prevent such toxic plants from operating in
Malaysia.
The future of Malaysia lies in the people
hand in determining what sort of holistic
165
8/18/12 2:03 PM
SUARAM NEEDS YOUR SUPPORT
8/18/12 2:03 PM
SUARAM needs your support
SUARAM works for “a society that is peaceful,
free, equal, just and sustainable through a process
of empowering people and building mass movement
for human rights”. We are a non-profit NonGovernmental Organisation (NGO) that
needs your financial support to be sustainable.
Your financial contribution can be made by
banking in to:
We publish comprehensive, detailed and
objective human rights report on Malaysia
without fail every year. Our small staff of
dedicated activists also does other advocacy
work including:
or by
•
•
•
•
•
•
•
Monitoring, research and documenting
human rights violations;
Campaign and advocacy for the abolition
of all detention-without-trial laws;
Campaign and advocacy to ensure the
accountability of the police and other
enforcement agencies;
Organising educational programmes
such as human rights trainings and
workshops for the public;
Publishing educational materials for the
public;
Providing support and assistance to
the victims of human rights and their
families.
Our coordinators are also responsible
for Outreach and Events, Coalition
Building, and Regional and International
Solidarity. We need funds to be able to
sustain a bigger office in view of our
growing portfolios.
Hong Leong Bank Berhad account
(Current a/c no: 0300 0065 200)
Swift Code: HLBBMYKL
Cheque payable to
Suara Inisiatif Sdn Bhd
Thank you in anticipation.
Salam Berjuang,
The Staff and Secretariat of SUARAM
You can support human rights defenders and
stand up against human rights violations by
contributing to SUARAM’s work.
167
8/18/12 2:03 PM

2011 - Suaram

Transcription

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