Cover design and layout by: Bright Lights At Midnight. Printed by: Polar Vista Sdn. Bhd.

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2 Published by: SUARAM Kommunikasi 433A, Jalan 5/46 Gasing Indah Petaling Jaya Selangor Malaysia Tel: Fax: Website: Cover design and layout by: Bright Lights At Midnight Printed by: Polar Vista Sdn. Bhd. Photograph images on the front and back covers: A mob of protestors led by several Malay- and Islamic-based political parties and NGOs forcibly halting a public forum on religious conversion s organised by the Malaysian Bar Council on 9 August Intolerance towards matters of race and religion was one of the most regressive trends in 2008, creating an environment which severely hampered the state of human rights in the country. SUARAM 2009

3 Contents Introduction Acknowledgments Executive Summary CHAPTER 1: Detention Without Trial and Restriction of Movement CHAPTER 2: Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies CHAPTER 3: Freedom of Speech and Expression CHAPTER 4: Freedom of Information CHAPTER 5: Freedom of Assembly and Association CHAPTER 6: Freedom of Religion and Matters Pertaining to Religion CHAPTER 7: Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons CHAPTER 8: Law and The Judiciary CHAPTER 9: Human Rights Comission of Malaysia (suhakam) CHAPTER 10: Free and Fair Elections VOICES OF THE PEOPLE: SELECTED STORIES Adat and Human Rights in Sarawak US-Malaysia Free Trade Agreement: Who Benefits? CONCLUSION AND GENERAL TRENDS A Call for Genuine Human Rights Reforms

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5 Introduction

6 Malaysia Human Rights Report 2008 Suaram s Human Rights Report 2008 is a report card of the ruling Barisan Nasional (bn) government in the throes of struggling to survive the worst defeat by Malaysian voters at the 12th General Elections. Thanks to the relentless efforts of 2007, the grassroots movement for human rights and democratic change gathered momentum to deal a decisive blow to the arrogant ruling coalition that had ruled Malaysia since Independence in A series of demonstrations against the rising fuel price, toll fees and inflation, the mammoth rallies of the Coalition for Clean and Fair Elections (bersih) and the Hindu Rights Action Force (hindraf) in 2007 set the stage for the political tsunami that swept the country on 8 March The General Elections in 2008 saw the ruling bn suffering its biggest loss in Malaysian electoral history and the opposition coalition Pakatan Rakyat winning 82 seats in the 222-seat Parliament. This is only the second time since the country s independence in 1957 that the ruling coalition has been denied its two-thirds majority in the Parliament. The Pakatan Rakyat also captured five of the thirteen state governments in the country, thus eroding the bn s political hegemony and posing a serious challenge to the dominance of the bn coalition of mono-ethnic based parties in Malaysia. Did this electoral victory translate into meaningful reforms, democratisation and greater respect for human rights in Malaysia? suaram s 2008 report is a mirror of the reality. The post-elections events have been dramatic and reveal the nexus between ethnicity and power. In 2009, one of the Pakatan Rakyatcontrolled state governments, namely Perak, lost its power to the bn as a result of the cross over of three elected representatives under dubious circumstances. The courts have faced a barrage of disputes ever since while the role of the monarchy in the controversy has been questioned. The manner in which the civil courts handled the disputes has left much to be desired. In this crisis, restrictions to freedom of assembly and abuse of police powers have been seen. The 2008 general elections and subsequent events reveal the rising awareness of civil society in Malaysia. ngos and the alternative media have shown greater confidence and trust amongst various groups that have transcended ethnicity and religion. Solidarity has been shaped by demands for equal justice, equal opportunity and equal dignity without discrimination. The bn is now in a political dilemma. We are beginning to see an era in which the leadership of bn is left with little choice but to reform and respect human rights. It is indeed gratifying that through this political change and struggle, suaram has been able to monitor, to document and to fight for human rights together with other ngos and other freedom loving Malaysians. Our vision is a Malaysia that has broken the barriers of race and religion and an end to corruption, cronyism and authoritarian rule. Finally, the Secretariat of suaram dedicates this year s Human Rights Report to all Malaysians who have braved the repression and created the changes in the last general elections. Salam berjuang K. Arumugam Chairperson June

7 Acknowledgments

8 Malaysia Human Rights Report 2008 The publication of suaram Human Rights Report 2008 involves efforts and contributions of numerous individuals and organisations. The publication of the report was made possible with the financial assistance from the National Endowment for Democracy. The report was mainly written and coordinated by John Liu. Other contributors are: Andrew Khoo (Law and the Judiciary); Wong Chin Huat (Free and Fair Elections); SACCESS (Adat and Human Rights in Sarawak); and Y. Kohila (The US-Malaysia Free Trade Agreement: Who Benefits?). The principal editor of this report is Dr. Kua Kia Soong, with editorial assistance from Dr. Yeoh Seng Guan and Chuah Siew Eng. Various sections were reviewed by Nalini Elumalai, K. Shan, Tah Moon Hui and Temme Lee. Yoong Pui Shen assisted in the proofreading of some portions of the draft. Various photos in this report are courtesy of Gerakan Mansuhkan isa (gmi), Malaysiakini and Jaringan Rakyat Tertindas (jerit). Wong Chai Yi and Lee Soo Wei provided assistance in selecting and obtaining some of the photographs in this report. 8

9 Executive Summary

10 Malaysia Human Rights Report 2008 The year 2008 was most notably marked by the 12th General Elections which saw the ruling Barisan Nasional (bn) coalition s biggest loss in Malaysian electoral history. The 2008 General Elections saw the opposition coalition, Pakatan Rakyat winning 82 seats in the 222-seat Parliament. This is only the second time since the country s independence in 1957 that the ruling coalition has been denied its two-thirds majority in the Parliament. 1 In addition, Pakatan Rakyat now controls five of the thirteen state governments in the country, thus eroding the bn s political hegemony and posing a serious challenge to the dominant-party regime of the bn in Malaysia. The unprecedented outcome of the 2008 General Elections was a manifestation of the popular aspiration for reforms and greater respect for human rights in the country. It had come about through the great disappointment with the increasing failure of state institutions, such as the judiciary, the police, the Anti-Corruption Agency (aca), and the Human Rights Commission of Malaysia (suhakam), to uphold justice, equality, human rights and democracy, as highlighted by suaram in Major events in 2007, including the landmark demonstrations organised respectively by the Malaysian Bar Council, the Coalition for Clean and Fair Elections (bersih), and the Hindu Rights Action Force (hindraf), culminated in the huge setback for the bn government in the 2008 General Elections. But despite the huge loss of popular support, the bn government has still generally failed to respond to the demands for reforms, democratisation and respect for human rights. In recent years, we have noted the deterioration of human rights in Malaysia as a result of the bn government s failure to implement reforms despite having continuously pledged and reaffirmed its commitment towards the promotion and protection of human rights. 3 In 2008, the major regressive trends in human rights have persisted: DETENTION WITHOUT TRIAL The government continued to detain persons without trial, with 43 individuals still detained under the isa as of 5 December 2008; 10 arrests were made under the isa in 2008, including a blogger, an opposition Member of Parliament, and a journalist. RECOMMENDATIONS FOR REFORMS The government failed to implement most of the recommendations made by suhakam and the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police (Royal Police Commission). POLICE ABUSE OF POWER Abuse of power by the police remained unchecked while the Government continued to drag its feet in setting up the Independent Police Complaints and Misconduct Commission (ipcmc); in 2008, suaram recorded a staggering number of 44 deaths by police shootings through media monitoring, with possibly more cases unreported, while the government disclosed 13 cases of deaths in police custody. PRESS FREEDOM Press freedom continued its decline in world rankings with Malaysia placed at an all-time low position of 132nd out of 195 countries in 2008, dropping from 124th in

11 Executive Summary FREEDOM OF ASSEMBLY The government was selective in recognising the right to freedom of assembly; while some assemblies were tolerated by the government, those which were held to oppose government policies were repressed. REFUGEES, MIGRANTS, AND ASYLUM SEEKERS In October 2008, Abdullah Badawi announced that he would retire as Prime Minister in March 2009, following intense pressure for him to step down both from outside and also within the bn coalition. The transition of leadership in the bn and the government s response to growing criticisms and political challenges from both within and outside the bn will have major implications on human rights and fundamental freedoms in Malaysia Refugees, undocumented migrants and asylum-seekers continued to face arrests and other serious human rights abuses as a result of the Malaysian government s refusal to recognise the rights of these groups. INTERNATIONAL STANDING ON HUMAN RIGHTS Malaysia s credibility at the international level took a further blow due to its lack of commitment in promoting and protecting human rights. This was best illustrated in the possible downgrading of suhakam, as a result of its lack of compliance with international standards. The year also saw the perpetuation of racial and religious intolerance as a result of heightened politicisation of race and religion by the bn government after its biggest loss in the 12th General Elections. Throughout Malaysia s modern political history, the racebased ruling coalition has continued to invoke the spectre of racial conflict 4 to consolidate power and to justify its control of power, especially in times of political crises. This was seen once again in 2008, when the bn coalition s poor showing in the 12th General Elections resulted in challenges to the leadership of Abdullah Badawi. 11

12 Malaysia Human Rights Report

13 Chapter 1: detention without trial and restriction of movement

14 Malaysia Human Rights Report 2008 In contravention of the many pledges and commitments made by the Malaysian government to safeguard and promote human rights, including its statement to the un Human Rights Council in 2006 that the government had [ ] made the guarantee of the individual s fundamental rights and liberties, as enshrined in the Constitution [ ], 1 laws which permit detention without trial continued to be used extensively by the government in Numerous calls were made for the review and abolition of laws permitting detention without trial, particularly the Internal Security Act 1960 (isa). This included political parties within the ruling coalition and even a highranking cabinet minister. Besides the isa, the government has powers to detain individuals without trial under other legislations, which include the Emergency Ordinance (Public Order and Prevention of Crime) 1969 (eo) a law enacted after the racial riots in 1969 and the Dangerous Drugs (Special Preventive Measures) Act 1985 (dda). While not as well known as the isa, these two laws have nevertheless been used extensively to arrest and detain suspected criminals without charging them with any offences. Ignoring calls for the abolition of such detention-without-trial laws, the government instead, on more than one occasion in 2008, reaffirmed the need for these laws. For instance, on 15 May 2008, Home Minister Syed Hamid Albar said, Malaysia is a cosmopolitan country comprising various races, religions and cultures, and this law has to be retained to thwart any threat before it emerges. As such, for the moment, the government has no plan to abolish the isa. 2 One week earlier, on 6 May 2008, the same minister had said that the government did not plan to review or abolish the dda, another law which provides for detention without trial. 3 The legislative enactments that provide for detention without trial have also been a source of major concern for, among others, the Human Rights Commission of Malaysia (suhakam) and the Royal Commission to Enhance the Management and Operations of the Police Force (Royal Police Commission) in recent years. In 2003, suhakam released the Review of the Internal Security Act 1960, calling for the review of the isa, which has adversely affected the status of human rights in Malaysia. 4 suhakam proposed that the government consolidate all laws pertaining to national security, including the isa, into one statute that takes a tough stand (on) threats to national security and yet conforms (to) international human rights principles. 5 Specific offences related to threats to national security must be spelt out clearly in this proposed anti-subversion law. suhakam also recommended in its 2003 review that the government take various interim measures, including amending the isa, before a new security law is put in place. This included: 6 Defining clearly the detention criteria under the isa. Reducing the detention period from two years to three months. Either charging or releasing a detainee after the three-month period. Allowing judicial review of detention orders. Requiring detaining authorities to submit an annual isa report to Parliament and making the detention order valid for one year only unless reviewed by Parliament annually. Echoing the recommendations by suhakam, the Royal Police Commission (set up in 2004) in its report submitted to the King in 2005, also highlighted its concerns about preventive legislations that provide for detention without trial. The Royal Police 14

15 Detention Without Trial and Restriction of Movement Commission, stressing the need to respect the principle of right to trial, recommended: Amendments to Section 73 of the isa 1960 requiring a detained person to be produced before a magistrate within 24 hours, be allowed access to family and lawyers, and the detention period be limited to a maximum of 30 days. Amendments to Section 3 of the dda 1985 requiring a detained person to be produced before a magistrate within 24 hours and be allowed access to family and lawyers. The Commission also recommen ded limiting the detention period to a maximum of 30 days. The repeal of the Restricted Residence Act (rra) 1933 that allows the preventive detention of suspected criminals in a specific residential area that may extend up to the lifetime of a person. The repeal of the eo The partial repeal the Prevention of Crime Act However, in December 2008, Home Minister Syed Hamid Albar rejected the recommendations made by suhakam, saying that the Commission only looked at the issue from their perspective when it called for the isa to be reviewed. The minister said that the government was looking at the issue from a much wider plane and had to take into consideration the over-arching interest of the public. 7 At the end of 2008, there were 43 persons still detained under the isa in addition to an estimated 1,000 persons under the eo, while the number of persons detained without trial under the dda is unknown. Meanwhile, many others who have been released from detention still face restrictions on their movement, under the Restricted Residence Act 1933 (rra). Internal Security Act 1960 (isa) The isa was the extension of a colonial legislation enacted to combat the communist insurgency in the 1940s and 1950s. Ironically, it was introduced in 1960, the same year the Emergency was declared officially over. In the post-independence era, it was used extensively against political dissidents, students, and labour activists. Since then, the isa has been invoked against those who commit acts deemed to be prejudicial to the security of Malaysia or threatening to the maintenance of essential services or economic life. The government determines who falls under these categories and, using a strained interpretation of the legislation, has detained scores of individuals under the isa in cases that would normally require prosecution. Under the isa, detainees are subject to an initial 60-day detention period in special police holding centres, for the purpose of investigation. No judicial order is required for such detentions. The locations of these holding centres are kept secret, and detainees are transported to and from these centres in blindfolds. Visits by family members are purely discretionary and, contrary to Article 5(3) of the Federal Constitution, 8 detainees are denied access to lawyers. During the initial detention period, detainees are commonly subjected to torture and other cruel, inhumane and degrading treatment. At the end of the 60-day period, the Home Ministry may choose to release a detainee on restrictive orders, or order further detention without trial for a term of two years. The ministry can renew the two-year detentions indefinitely. Some isa detainees were detained for more than ten years and in one case, even for sixteen years. Detainees may also be released with or without conditions at any time during detention. Conditions can include restrictions on activities, movement, 15

16 Malaysia Human Rights Report 2008 residence, and employment; orders to remain indoors during certain hours; and prohibitions against holding public office or taking part in political activities. In recent years, detainees who are issued two-year detention orders are held in the Kamunting Detention Camp (kdc) in Perak. Calls for the Review and Repeal of the isa In the past, the call to review or repeal the isa had been made mainly by civil society and opposition political parties. However, in 2008 various politicians and member political parties of the ruling-bn coalition have joined the chorus. On 14 September, in response to the arrests of blogger Raja Petra Kamaruddin, opposition Member of Parliament Teresa Kok, and journalist Tan Hoon Cheng under the isa, Zaid Ibrahim, the minister in charge of law in the Prime Minister s Department, strongly criticised the government s actions saying that there are many laws which the police could have used to detain the three people without having to use the isa and that the government had misused the isa from its original stated purpose. 9 Zaid Ibrahim eventually resigned from his ministerial post in the cabinet on 16 September. In an open letter to the Prime Minister after his resignation, Zaid Ibrahim wrote that the misuse of the isa has been made possible because the government and Malaysians holding a candlelight vigil outside the Kamunting Detention Camp in Perak, in June, calling for the ISA to be abolished and the detention camp to be closed. (Photograph courtesy of Gerakan Mansuhkan ISA) 16

17 Detention Without Trial and Restriction of Movement the law mistakenly allowed the Minister of Home Affairs to detain anyone for any particular reason he thinks fit. He also cited the cases of the use of isa during Operasi Lalang in 1997; in 2001 on Reformasi activists; in 2007 on leaders of the Hindu Rights Action Force (hindraf), and the latest series of arrests in September 2008, as instances [ ] [which] strongly suggest that the government is undemocratic. Zaid Ibrahim went on to state, Through its continued use in the manner described above and in the face of public sentiment, it is only natural that the isa has become in the mind of the people an instrument of oppression and the Government is one that lends itself to oppressiveness. 10 Several political parties within the ruling bn coalition have also lobbied for the isa to be reviewed. In October, the Malaysian Chinese Association (mca) called for the isa to be reviewed, followed not long after by three other major component parties in the BN, namely the Malaysian Indian Congress (mic), Parti Gerakan Rakyat Malaysia (gerakan), and the Progressive People s Party (ppp). In March, the Bar Council, during its 62nd annual general meeting unanimously passed a motion for the repeal of the isa and for the release of those detained under the Act. On 20 September 2008, in an extraordinary general meeting held in response to the arrests of three individuals under the isa on 13 September 2008, the Bar Council once again unanimously passed a resolution calling for the repeal of the isa and the release of all isa detainees. A wife of an ISA detainee speaking at the Extraordinary General Meeting of the Malaysian Bar Council in September. The Bar Council passed a resolution calling for a repeal of the ISA. (Photograph courtesy of Gerakan Mansuhakna ISA) 17

18 Malaysia Human Rights Report 2008 The Government s Position on the isa Despite the numerous calls and recommendations by individuals, ngos, political parties, as well as commissions set up by the government to either repeal or review the isa, the administration under the premiership of Abdullah Badawi continued to view this law as relevant, invoking and also threatening to use it in the name of national security. The bn government has often cited the maintenance of peace and security of the general public as a justification for its use of laws such as the isa. For instance, in July 2007, Prime Minister Abdullah Badawi said, [T]he government feels that [the] isa is significant because we use it to maintain peace and to ensure the security of the general public. 11 In 2008, this position was maintained despite strong calls for the isa to be reviewed or abolished. In September, Home Minister Syed Hamid Albar, reiterated We have no plans to do away with the isa. 12 The statement was reported to have been made based on a decision from a Cabinet meeting. In November, in its report submitted to the un Human Rights Council for the purpose of the Universal Periodic Review (upr), the Malaysian government argued: The isa [ ] aims to counter the subversive elements and threats prejudi cial to the national security. Its purpose is to provide for the internal security of Malaysia, preventive detention, the prevention of subversion, the suppression of organised violence against persons and property in Malaysia and matters incidental thereto. The isa is needed to maintain peace, stability and security of persons in Malaysia. 13 In December, Deputy Prime Minister Najib Razak said that the isa has protected the country from terrorism and that the main reason why there have been no serious acts of terrorism in this country is because we have in place the isa. 14 These statements reaffirming the need for the isa, and also the government s continued use of the law, are in stark contradiction to Prime Minister Abdullah Badawi s proclamations of promoting democracy under his leadership. In reality, no substantive improvements have been made as fundamental liberties and basic human rights based on universal standards and principles continued to be ignored. Indeed, scores of individuals have been detained without trial during his five years of premiership. They range from persons spreading rumours through sms, political dissidents, and alleged terrorists. (Source: SUARAM monitoring) 18

19 Detention Without Trial and Restriction of Movement ISA Statistics in 2008 Based on suaram s monitoring, as of 31 December 2008 there were 43 detainees in the Kamunting Detention Camp. Most of them were alleged members of religious extremist groups, including the Jemaah Islamiah (ji) while another significant number comprises those allegedly involved in counterfeiting currency and falsifying documents. To date, none of the detainees have been charged with any offences. Ten individuals were arrested under the isa in 2008, while seven new detention orders and twenty extensions of detention orders were signed by the Home Minister. Thirty-four detainees were known to have been released in Jemaah Islamiah (ji) and Darul Islam (di) Since 2001, the isa has been used extensively against those alleged by the Malaysian government to be terrorist-linked or have Islamic/ ideological connections with other groups in the Philippines, Pakistan, Afghanistan and Indonesia. The arrested persons are mostly labelled as members of Jemaah Islamiah (ji), an alleged Islamic terrorist group based in Indonesia. A significant number of persons arrested under the isa were also accused to be members of the Kumpulan Militan/Mujahiddin Malaysia (kmm, Malaysian Militant Group). On 20 October 2006, Deputy Internal Security Minister Johari Baharum released a statement claiming all detainees allegedly linked with JI and Kumpulan Militan/ Mujahiddin Malaysia had been freed. Johari was quoted as saying, There will not be any other kmm and ji members that will be freed, as all of them have already been freed. 15 Johari Baharum s statement was misleading, as individuals accused of involvement in alleged Islamic extremist movements continued to be the predominant group of isa detainees in While all remaining detainees accused of being members of the kmm had been released in 2006, those arrested for allegedly belonging to ji continued to comprise the majority of isa detainees in 2006, 2007 and As of December 2008, there were still 12 detainees accused of being part of ji detained under the isa. Many of them were initially arrested as kmm suspects, but their letters of arrest later accused them of being ji members instead. Such arbitrariness in the charges raises doubts about the reliability of the evidence in the possession of the authorities. Another alleged Muslim militant group, Darul Islam (di), has also been the target of the isa in recent years. At the end of 2008, a total of 13 di members were detained under the isa. As in the case of the ji, the di detainees have been accused of attempting to overthrow the government through militant means. The di members have allegedly been trained in making bombs and using firearms. It has also been alleged that the group, based in Sabah is an offshoot of the Indonesian movement, and aims to create an Islamic state spanning Indonesia, Malaysia and Southern Philippines. The government further claimed that di had helped several Indonesian militants including two individuals who were allegedly involved in the Bali bombings in However, in the absence of judicial scrutiny, the authorities claims have not been corroborated. The Hindu Rights Action Force (hindraf) Another group that has been labelled as terrorist-linked is hindraf, which on 25 November 2007, organised a massive rally in the capital Kuala Lumpur, and numerous other smaller rallies nationwide, demanding 19

20 Malaysia Human Rights Report 2008 equality and fair treatment for ethnic Indians, a minority group which hindraf claims has been marginalised and discriminated against in Malaysia. hindraf had also filed a class action suit against the British government for initially bringing the Indians to Malaya as indentured labourers and exploiting them for 150 years. In the run-up to the rally, on 23 November 2007, three hindraf leaders were arrested under the Sedition Act for alleged inflammatory speeches made while on tour in several cities and towns around the country. After the 25 November mass rally, which drew some 30,000 people, threats to use the isa on the leaders of hindraf were made by several top government leaders, including Prime Minister Abdullah Badawi, Deputy Prime Minister Najib Razak, and umno Youth Chief Hishamuddin Hussein. The government also embarked on an intensive propaganda campaign to demonise the organisation, linking it to terrorists. On 7 December 2007, Prime Minister Abdullah Badawi reportedly ordered the police to monitor hindraf leaders for their links to terrorist groups. When asked whether hindraf was a terrorist organisation, Deputy Minister Najib Razak said that they were certainly an extremist organisation. Minister in the Prime Minister s Department Nazri Aziz also said that the Liberation Tigers of Tamil Eelam (ltte) 16 in Sri Lanka and the Rashtriya Swaymsevak Sangh (rss) in India were supporting hindraf. Nazri was reported as saying, We are monitoring hindraf and if the links are confirmed, then it is clear that hindraf is a terrorist organisation. 17 On 13 December 2007, after numerous threats and warnings, five hindraf leaders were detained under the isa. Defending the decision to detain the five under the isa, the Inspector-General of Police (igp) Musa Hassan reiterated the government s allegations that the group clearly [has] links with international terrorist organisations. 18 Musa also said that the five hindraf leaders were trying to sow hatred against the government, and reiterated warnings by the government that more hindraf leaders and supporters could be arrested under the isa. 19 Inciting Racial Tension Ever since its introduction in 1960, the isa has been used during times of political crisis faced by the ruling coalition party, bn, which is made up of race-based political parties. The bn s modus operandi has been to invoke the spectre of racial conflict and censoring discussions deemed too sensitive in a multi-ethnic society. The isa is then deployed to detain political dissidents deemed to be guilty of inciting racial tension. Its most infamous use was in 1987 when Operasi Lalang saw 106 individuals detained under the isa during a time when the leadership of the ruling umno under then-prime Minister Mahathir Mohamad faced serious political challenges from another faction within the same party. Under a similar backdrop of challenge to power faced by Prime Minister Abdullah Badawi in September 2008, three individuals were arrested within a period of 24 hours under the isa for allegedly inciting racial tensions. (A detailed discussion on this will follow in the section isa Arrests in 2008.) Forgers of Documents and Foreign Agents In recent years, the government has extended the use of the isa beyond its original purpose of combating communist insurgency to cover also criminal activities such as currency counterfeiting and the forgery of passports and identity cards. A number of alleged foreign agents have also been detained under the 20

21 Detention Without Trial and Restriction of Movement isa. Their detention under the isa exposes the flimsy justification for the isa since such alleged criminals clearly exist in every country in the world. Malaysia already has ample laws to deal with such crimes without having to invoke detention without trial. Of those who were arrested under the isa in 2008, six individuals were detained for alleged forgery of documents. As of December 2008, eight of the 43 isa detainees held in the Kamunting Detention Camp have been accused of forging documents; another is alleged to be a foreign agent. Foreign Nationals There are also a number of foreign nationals detained under the isa in the Kamunting Detention Camp. Those who were eventually released were deported back to their home countries. As of December 2008, there were eleven foreign nationals incarcerated under the isa. ISA Arrests in 2008 Ten individuals were arrested under the isa in In May, six individuals were arrested for allegedly forging documents. All six of them received two-year detention orders and were sent to the Kamunting Detention Camp. Out of those six, four remained incarcerated under the isa as of December On 12 September 2008, the police launched a series of arrests under the isa. The arrests began with Raja Petra, webmaster Marina, the wife of Raja Petra Kamaruddin, seen here together with supporters and friends at a vigil to demand for the release of Raja Petra when he was detained under the isa in September. (Photograph courtesy of Gerakan Mansuhkan isa) 21

22 Malaysia Human Rights Report 2008 of Malaysia Today. Raja Petra s blog is wellknown for uncovering political scandals and corruption in the government. Prior to his isa detention, Raja Petra was already facing charges of sedition and criminal defamation. On the same day as Raja Petra s arrest, a senior journalist for the Chinese-language newspaper Sin Chew Daily, Tan Hoon Cheng, was also arrested and detained in connection to her report regarding derogatory remarks uttered by a leader of the ruling party, the United Malays National Organisation (umno) against the Chinese community in Malaysia. Home Minister Syed Hamid Albar claimed that she was detained to ensure her own safety after her report had led to an uproar! The Home Minister s justification attracted a wave of strong public criticism. 20 Opposition Member of Parliament and Selangor state executive councillor Teresa Kok, was the third person to be detained under the isa on 12 September She was arrested for allegedly inciting racial and religious tension by making requests to mosque officials at several locations in the state of Selangor to tone down their amplified calls to prayer. This accusation has been denied not only by Kok but also by the mosque officials concerned. In a press statement issued upon her release on 19 September 2008, Teresa Kok said that three main questions were asked to her by the police during her one-week detention. They were: 21 Whether she had mobilised a group of residents to present a petition to oppose the call to prayer at the Bandar Kinrara mosque. Whether she had made a statement that 30 percent of the Selangor state Islamic Department (jais) allocation be given to other non-islamic religious bodies. Whether she had opposed the Jawi (Arabic script) road signs in Kuala Lumpur. Kok also stated that these questions were based entirely on a false and malicious article which appeared in the Malay-language daily, Utusan Malaysia, on 10 September Two major problems with the continued use of the isa were once again obvious in the series of arrests in September 2008: The isa arrests were clear cases of abuse of police powers, as the arrests were made based on unsubstantiated allegations and had no substantial links with national security a justification commonly made by the government to defend its use of the Act. The isa appears to be invoked by the government as a convenient legal tool to assert control of power during times of internal political crises. With regards to the latter, it is worth noting that umno obtained its worst electoral performance during the March 2008 General Election. In August, umno also suffered a huge defeat in the Permatang Pauh byelection at the hands of the leader of the opposition People s Justice Party (Parti Keadilan Rakyat, pkr), Anwar Ibrahim. The political crisis within the ruling party worsened when Anwar Ibrahim publicly announced his intentions to entice members of parliament from the parties in the ruling coalition to cross over and join the opposition ranks and to form a new government. As a result of intense local and international pressure on the government, Tan Hoon Cheng was released on 13 September 2008, one day after her arrest while Teresa Kok was released on 19 September Raja Petra Kamaruddin was released on 7 November 2008 through a habeas corpus application. On 17 October 2008, in another case of abuse of powers by the police under the isa, Cheng Lee Whee, a secretariat member 22

23 Detention Without Trial and Restriction of Movement of suaram s Johor Bahru branch was arrested under Section 28 (Dissemination of false reports) of the isa for spreading information that could cause fear among the people, after she had lodged a report against the police for the arrests of 27 persons during an attempt to stop a forced eviction operation in a village near Johor Bahru. Section 28 of the isa provides for an offence in making and spreading false reports likely to cause public alarm. She was released on 18 October 2008, after the police failed to obtain a remand from the Magistrate. (Source: suaram monitoring) 23

24 Malaysia Human Rights Report 2008 Renewed Detention Orders in 2008 In 2008, the Home Minister signed the renewal orders of detention of twenty isa detainees. Out of that number, one had been detained since 2001; three since 2002; another three since 2004, while the remaining thirteen had been detained since The names of those who received renewed detention orders in 2008 are as follows: 24

25 Detention Without Trial and Restriction of Movement * Total period in detention upon expiry of the current detention order in parentheses. (Source: suaram monitoring) isa Releases in 2008 In 2008, a total of thirty-four detainees were released. However, eighteen of them were given restricted residence orders and twelve foreigners were deported back to their respective home countries. 25

26 Malaysia Human Rights Report

27 Detention Without Trial and Restriction of Movement (Source: SUARAM monitoring) Judicial Review In December 2007, the five hindraf leaders detained under the isa P. Uthayakumar, M. Manoharan, R. Kenghadharan, V. Ganabatirau and T. Vasanthakumar challenged the detention orders made by the Internal Security Minister (now known as the Home Minister) by filing habeas corpus applications at the Kuala Lumpur High Court. In their habeas corpus applications, the five hindraf leaders challenged the legality of their detention orders because there had been no 60-day investigation period under Section 73 of the isabefore they were given two-year detention orders under Section 8. They contended that their detentions were a procedural non-compliance as previous detentions under Section 8 of the isa have invariably been preceded by arrests under Section 73. The hearing was conducted between 24 and 28 January 2008 before Judicial Commissioner Zainal Azman Abdul Aziz. Counsel for the five HINDRAF leaders detained under the ISA, together with their family members and supporters, at the Kuala Lumpur High Court before the hearing of the habeas corpus application of the five in January. (Photograph courtesy of Gerakan Mansuhkan ISA) The Observatory for the Protection of Human Rights Defenders, an international human rights group who observed the hearing, expressed concerns that a hearing on such a politically sensitive matter was conducted by a Judicial Commissioner, a judicial officer who sits without tenure and who is therefore more vulnerable to the perception of bias and that the detainees were not present in a court hearing on the legality of their detention. 22 The inter- 27

28 Malaysia Human Rights Report 2008 national human rights group further noted that it was not able to make oral and written submissions in the form of an amicus curiae brief despite having informed the court of its intention to do so, as the Attorney-General had indicated that the respondents would object to submissions of any kind. 23 On 26 February 2008, the court delivered its judgement, rejecting the habeas applications of the five. In his judgement, Judicial Commissioner Zainal Azman Abdul Aziz said that the detention order issued by the Internal Security Minister was valid and met all requirements under the isa and that none of these requirements were violated. He also noted that the minister could order the detention of a person under Section 8(1) of the isa. 24 On 4 August 2008, the lawyers of the five hindraf members filed a new habeas corpus appeal at the Federal Court, but this too was dismissed unanimously by the judges on 11 February 2008 who ruled that a detention order could be issued under Section 8 of the isa without waiting for full investigation by the police. The year, nevertheless, witnessed an important judgement made by the Shah Alam High Court which resulted in the release of an isa detainee. On 7 November 2008, blogger Raja Petra Kamaruddin was freed in a habeas corpus application as High Court Judge Syed Ahmad Helmy ruled that the detention of Raja Petra under the isa was illegal and unconstitutional as the Home Minister had not followed proper procedure under Section 8 of the Act under which Raja Petra was detained. Torture, Cruel and Inhuman Treatment under the ISA Over the years, suaram has documented innumerable cases in which detainees are subject to torture and other forms of inhuman, cruel and other forms of degrading treatment while in detention under the isa, eo and the dda. The reluctance of the Malaysian government to ratify the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (cat) 25 allows a culture of torture and impunity and indicates the government s disregard for international human rights standards. In its 2007 report, suaram highlighted the court case of Abdul Malek Hussin, who was detained in In 2007, Abdul Malek Hussin won a lawsuit against the government over his arrest and torture in 1998, and was awarded RM2.5 million in damages on 18 October Kuala Lumpur High Court judge Mohd Hishamuddin Mohd. Yunus ruled that Abdul Malek s detention was unlawful and that he had been assaulted and tortured under custody. The judge in awarding exemplary damages to the plaintiff said that it was to show the court s abhorrence against the gross abuse of power by the police and the use of the isa. 26 In his judgement, the judge also noted the existence of torture chambers and that acts of torture committed by police personnel still went unpunished. International law unequivocally prohibits torture and all cruel, inhuman or degrading treatment or punishment. In 2008, another case of torture while under isa detention was documented. Sanjeev Kumar was tortured until he was paralysed while under isa detention from July 2007 to 9 September

29 Detention Without Trial and Restriction of Movement Box 1.1: Recorded Testimony of Sanjeev Kumar Krishnan On 28 July 2007, Sanjeev Kumar Krishnan, Identification Number xxxx, was arrested at Kedai Motor Sanjeevi, a motorcycle repair shop, of the address No. 3 Taman Permai, Jalan Slim Lama, 35900, Tanjung Malim, Perak. He was arrested by a number a policemen who were not in uniform and a uniformed police officer. At the time of arrest, both his hands were cuffed and he was not told the reason of his arrest. He was later brought to his residence in a Proton Wira to the address No. 799, Taman Bernam, Tanjung Malim, Perak. The police ransacked his house for about 2 hours and confiscated a parang (machete) and some firecrackers that were kept in the house. The detainee was then brought back again to Kedai Motor Sanjeevi which is owned by the detainee and his brother. Police officers searched the shop but did not confiscate anything. Although the brother of the detainee had asked police officers the reason for his brother s arrest, the police officers failed to give an answer and merely stated that the family would be receiving a letter by the police later in the evening. Sanjeev Kumar was then brought to the Tanjung Malim Police Station at around 2pm. Between 2pm to 3pm, Sanjeev Kumar s wife, Sharmila received a detention order from the police stating that her husband had been arrested under the isa. The family was only allowed to see Sanjeev two weeks after his arrest at the Bukit Aman police headquarters. During his 55-day detention period, Sanjeev s wife and family were only allowed to see him three times. Sanjeev was sent to the Kamunting Detention Camp on 22 September 2007, when he was given a detention order for 2 years. Physical and Mental Torture During the detainee s period of detention, he was subject to torture and abuse. Among the abuses he suffered in the hands of the Special Branch of the Police : Interrogations were conducted from 8am to 11pm without any breaks. Should the detainee fail to answer any questions directed by the officers, the Special Branch officers would threaten him by saying that they would not release him. Sanjeev was also put under solitary confinement in a small dark room. Sanjeev was tortured, kicked and hit brutally by the Special Branch officers. His body and head were punched and kicked. His left hand and leg were hit several times with a hard object. He was also often hit with a filled bottle of water. The detainee was made to drink his own urine 3 to 4 times. The Special Branch officers also hit the detainee s penis and a hard object was inserted into the detainee s anus. During the physical abuse, the detainee was also insulted by the Special Branch officer using vulgar and obscene language. At the Kamunting Detention Camp After he was sent to the Kamunting Detention Camp, Sanjeev complained that his left hand and leg were not functioning properly. Despite his complaints, he did not receive sufficient medical treatment. On 11 April 2008, Sanjeev was sent to a medical clinic, located within the detention camp. However, as the pain was 29

30 Malaysia Human Rights Report 2008 too serious, he had to be sent to the nearby Taiping Hospital for treatment. When he arrived at the hospital, he was deprived of medical attention as one of the wardens in the Kamunting Detention Camp by the name of Sharom said that the doctor in charge was not available and sent Sanjeev back to the detention camp. That same night, on 11 April 2008, Sanjeev complained of tremendous pain and had to be admitted into the hospital. On 18 April 2008, Sanjeev was discharged from the hospital. Unfortunately, he was discharged in a wheelchair and pronounced paralysed - he was unable to move his left leg and hand. Family members of Sanjeev Kumar, who is paralysed as a result of torture in ISA detention, outside the police station after lodging a report on the torture in detention. (Photograph courtesy of Gerakan Mansuhkan ISA) The evidence revealed in October 2007 during Abdul Malek s civil suit against the Malaysian government, and the testimony provided by Sanjeev Kumar on his torture in detention in 2008, reaffirm the fact that torture and other inhuman or degrading treatment or punishment goes hand-in-hand with detention without trial. Emergency Ordinance (Public Order and Prevention of Crime) 1969 (eo) In 2008, the less well-known eo continued to be used mainly on alleged underworld kingpins and suspected criminals. The eo was originally drafted to curb the spread of violence and destruction after the May 1969 racial riots. The preamble of the ordinance states, By reason of the existence of grave emergency threatening the security of Malaysia [ ] immediate action is required for securing public order, the suppression of violence and the prevention of crimes including violence. 27 In 2005, the Royal Police Commission had recommended the repeal of the eo because the law had outlived its purpose and had facilitated the abuse of fundamental liberties. 28 However, to date, the eo is still used to detain and restrict suspected criminals without charging them. The eo provides the police with the power to detain persons for up to 60 days for the purpose of preventing any person from acting in a manner prejudicial to public order and the suppression of violence or the prevention of crimes. 29 According to the legislation, there is no need to obtain a remand order from a magistrate. All that is required is for a police officer of, or above the rank of, deputy superintendent to report the circumstances of the arrest to the Inspector -General of Police (igp) or his designated officer. After the initial 60-day detention period, the Internal Security Ministry can make an order of detention without trial for a period of two years. If detention is unnecessary, the Internal Security Ministry may impose restricted orders on suspects requiring them to be supervised by the police, to reside within the limits of an area, to periodically report to the police, to remain home during specific hours, and to abide by other restrictions on their movements. 30

31 Detention Without Trial and Restriction of Movement As the majority of individuals detained without trial under the eo tend not to be political dissidents or well-known personalities, the legislation is far less well-known compared to the isa. Consequently, the police have been conveniently using the eo over the years to arrest thousands of individuals without ever bringing them to court. Although the authorities typically characterise eo detainees as underworld kingpins and dangerous criminals, suaram has received numerous reports of individuals arrested under the eo for alleged petty crimes. According to former detainees who were recently released from the Simpang Renggam detention centre, there are currently over 1,000 people detained under the eo, including minors. 30 The detention of minors under the eo is indeed a matter of grave concern, especially considering that the conditions of the Simpang Renggam detention centre have been widely reported to be deplorable and highly unsanitary. 31 This, and the fact that detention under the eo can be renewed indefinitely, contravenes the Convention of the Rights of the Child (crc), 32 of which Malaysia is a signatory. According to Article 37(b) of the crc, no child shall be deprived of his rights unlawfully or arbitrarily. The document also states that the arrest, detention or imprisonment of a child shall be in conformity with the law and shall only be used as a measure of last resort and for the shortest appropriate period of time. Over the years, a significant number of eo detainees have successfully won their freedom through habeas corpus applications but many were re-arrested immediately after the court had released them. 33 However, it is difficult to ascertain the exact number of eo detainees re-arrested throughout the year. Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA) Similar to the isa and the eo, the Dangerous Drugs (Special Preventive Measures) Act 1985 (dda) also gives powers to the Home Minister to hand a two-year detention order to any suspect who has been or is associated with any activity relating to or involving in dangerous drugs. 34 On 6 May 2008, in response to a question in the Parliament, Home Minister Syed Hamid Albar revealed to the Parliament that between 2002 and March 2008, the dda has been used against a total of 11,142 persons, out of which 5,203 persons were given detention orders whilst another 6,019 were given orders of restricted residence. He also said that in the same period, the government had released 10,311 persons, out of which 1,568 persons were given restricted residence orders after their detention orders had lapsed. 35 The minister, however, did not specify the number of persons detained in each specific year during the said period. In the same parliament proceeding, the Home Minister said that the dda will not be repealed. 36 Restrictive Residence Act and Deportations after Release While the three preventive laws provide the Home Minister with arbitrary powers to detain and arrest individuals, the Restrictive Residence Act 1933 (rra) confers the minister with similar discretionary powers to restrict the movement of individuals. Under the rra, the Home Ministry may deem it necessary that the suspect be required to reside in a particular district or be prohibited from entering any particular district. As with the other detention-without-trial laws, these restrictive residence orders may be renewed by the minister after every two years. 31

32 Malaysia Human Rights Report 2008 Most detainees released from the isa, the eo or the dda are given certain conditions before their release, including strict restrictions on their movements under the rra. For example, newly released detainees are prohibit ed from leaving their residential districts and are required to report to the police on a daily basis. isa detainees who are foreign nationals, on the other hand, often face deportation to their home countries, even when a detainee s family resides in Malaysia. In August 2008, four Indonesians, Shahrial Sirin, Abdullah Minyak Silam (both alleged ji members and detained since 2002), Zainuddin Suharno, and Jaki Hamid (both alleged di members and detained since 2006), were deported to Indonesia immediately after being released from isa detention despite having families residing in Malaysia. Other Forms of Restriction of Movement Violations of freedom of movement have also occurred due to the abuses of state autonomy powers of the East Malaysian states of Sabah and Sarawak, in relation to powers over immigration. This autonomy is derived from an agreement signed during the formation of Malaysia in Thus, Sabah and Sarawak have different immigration laws from those used in Peninsula Malaysia which provide the two state government exclusive controls over who can enter the two states respectively. In recent years, the states autonomy over immigration controls has been abused by the Sarawak state government in order to stifle dissent in the state. This was seen in the cases of Sarawakian community leaders who were either denied renewal of their passports or had applications for a new one denied with no reason given, while those from outside Sarawak have been blacklisted and barred from entering the state. Over the years, scores of other individuals, both from Sarawak and from Peninsula Malaysia, mainly activists working on issues relating to Sarawak, have encountered similar restrictions of movements. In suaram s 2007 Human Rights Report, two such cases were documented in that year, while many others have been recorded since Despite guarantees in Article 9(1) of the Federal Constitution that no citizen may be banished or excluded from the country, 38 the government has banned Chin Peng, the former leader of the Communist Party of Malaysia (cpm), from returning to Malaysia because of his involvement in the communist insurgency from the 1940s until a peace agreement was signed in Living in exile in Thailand, Chin Peng sought to return to Malaysia by filing a petition to the High Court in Penang in However, the High Court ruled that Chin Peng must submit identification documents to prove that he was born in Malaysia. Chin Peng filed an appeal, and in 2008, the Court of Appeal upheld the High Court ruling, thus forcing him to continue to live in exile in Thailand. In March 2008, hindraf leader Waythamoorthy had his passport revoked by the Malaysian government. Since the arrest of the five hindraf leaders in December 2007, right after they had organised a massive rally in Kuala Lumpur, Waythamoorthy has been living in a self-imposed exile for fear of arrest if he returned to the country. In response to Waythamoorthy s allegation, Home Minister Syed Hamid Albar claimed that the government had never revoked his passport and that the government would not revoke the passport of its citizen unless the person relinquished his citizenship. Syed Hamid also said that the invalidity of Waythamoorthy s passport was probably because it had expired. 40 However, in a press statement dated 18 May 2008, Waythamoorthy provided detailed evidence of his itinerary before his passport 32

33 Detention Without Trial and Restriction of Movement became invalid, showing that his passport only expires in the year 2010 and that the validity of his passport was indeed cancelled abruptly. 41 Summary Thus, despite strong calls for the repeal or review of preventive detention laws, especially the isa, the government maintained its position that these laws are needed to maintain peace, stability and security of persons. This position was reiterated several times throughout the year. Although more releases were made in 2008 as compared to previous years, the government did not seem to indicate willingness to either review or repeal the isa. In fact, the government stated that it will not abolish the isa, and a similar statement was also made with regard to the dda. In September 2008, the arrests of three individuals, all within a period of 24 hours, manifest an old trend of invoking the isa under the pretext of curbing racial tensions. At the end of 2008, 43 individuals still remained in detention under the isa. The year saw no less than a Cabinet minister resign in protest over the arbitrary use of the isa, clearly demonstrating the unpopularity of the Act. The physical torture inflicted upon isa detainee Sanjeev Kumar resulting in his partial paralysis once again validated the many testimonies of torture and other cruel, inhuman, and degrading treatment suffered by victims of the three detention-without-trial laws. 33

34 Malaysia Human Rights Report

35 Detention Without Trial and Restriction of Movement 35

36 Malaysia Human Rights Report 2008 End notes 1 Malaysia (2006) Aide-Memoire; Malaysia s Candidature to the United Nations Human Rights Council, dated 28 April 2006 (p. 1) Government decides to retain isa without any amendment, Bernama, 15 May 2008, bernama/v5/newsindex.php?id= (last accessed: 15 June 2009). Syed Hamid Albar, 6 May 2008, First Meeting of the First Session of the Twelfth Parliament, Hansard, DR (p. 13) pdf/dr pdf (last accessed 27 November 2008). suhakam (2003) Review of the Internal Security Act 1960, Kuala Lumpur: suhakam (p. 86). Ibid. (p. 88). Ibid. (pp ). Syed Hamid: Suhakam s isa review call s perspective not wide enough, The Star, 13 December 2008, my/news/story.asp?file=/2008/12/13/ nation/ &sec=nation (last accessed: 15 June 2009). Article 5(3) of the Federal Constitution states, Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice. Zaid wants isa to be used specifically for terrorists, communist subversives, Bernama, 14 September 2008, (last accessed: 15 June 2009). Zaid Ibrahim s letter to the Prime Minister of Malaysia, dated 29 September 2008, published in The Star, 30 September 2008, asp?file=/2008/9/30/nation/ &sec=nation (last accessed: 15 June 2009). Cited in suaram (2008) Malaysia Human Rights Report 2007: Civil and Political Rights, Petaling Jaya: suaram (p. 8). Internal Security Act to stay for now, says Syed Hamid, Sunday Star, 21 September Malaysia (2008) National Report Submitted in Accordance with Paragraph 15(A) of the Annex to Human Rights Council Resolution 5/1, Malaysia, Human Rights Council Working Group on the Universal Periodic Review, Fourth Session, Geneva, 2-13 February 2009, A/ HRC/WG.6/4/MYS/1/Rev.1 [dated 19 November 2008] (p. 14, para 80-81).. Najib: isa has protected country from terrorism, New Straits Times, 2 December Semua anggota kmm, ji dibebaskan [All kmm, ji members released], Utusan Malaysia, 21 October The ltte is a Tamil nationalist organisation that has fought for a separate state from Sri Lanka. ltte has been declared a terrorist group in the United States. Hindraf has links with Tigers, New Straits Times, 8 December

37 Detention Without Trial and Restriction of Movement igp says detention of hindraf leaders under isa necessary, New Straits Times, 15 December Ibid. See, for instance, suaram s Human Rights Reports of 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, and Other publicly available accounts of former isa detainees include Syed Husin Ali (1996) Two Faces: Detention without Trial, Kuala Lumpur: insan; Kua Kia Soong (1999) 445 Days Under Operation Lalang: An Account of the 1987 isa Detentions, Kuala Lumpur: Oriengroup; and Koh Swe Yong (2004) Malaysia: 45 Years Under the Internal Security Act, Petaling Jaya: sird. Teresa Kok, Press statement, dated 19 September Observatory for the Protection of Human Rights Defenders (2008) Malaysia Mortgaging freedom for Security: Arbitrary detention of five hindraf leaders, Paris & Geneva: FIDH & OMCT (p. 12). Ibid. Manoharan a/l Malayalam v. Menteri Keselamatan Negeri, Malaysia & Penguasa, Tempat Tahanan Perlindungan Taiping, Perak, High Court of Malaya (Criminal Applications no ). Adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 39/46 of 10 December RM2.5m for ex-detainee, The Sun, 19 October Emergency (Public Order and Prevention of Crime) Ordinance 1969 (Ordinance 5, 1969), promulgated by the Yang di- Pertuan Agong under Article 150(2) of the Constitution. Royal Commission to Enhance the Management and Operations of the Royal Malaysia Police (2005) Laporan Suruhanjaya Diraja Penambahbaikan Perjalanan dan Pengurusan Polis Diraja Malaysia [Report of the Commission to Enhance the Management and Operations of the Royal Malaysia Police]. Kuala Lumpur. (p. 343). Emergency (Public Order and Prevention of Crime) Ordinance 1969, Section 4(1). Interview with a newly-released eo detainee, 1 April See also Youths held without trial in Simpang Renggam, Malaysiakini, 27 February 2007, (last accessed: 20 April 2009). See for instance, Human Rights Watch (2006) Convicted before Trial: Indefinite Detention under Malaysia s Emergency Ordinance, Vol. 18, No. 9(C). New York: Human Rights Watch (pp ). Adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 44/25 of 20 November See for instance, suaram (2007) Malaysia Human Rights Report Petaling Jaya: suaram (pp ). Section 6(1) Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316). 35 Syed Hamid Albar, 6 May 2008, op. cit. 37

38 Malaysia Human Rights Report Ibid. (p. 14). See suaram (2008) op. cit. (pp ) Article 9(1) of the Federal Constitution states, No citizen shall be banished or excluded from the Federation. The Haadyai Agreement 1989 stipulated that the cpm would disband all armed units, terminate all armed activities, and destroy all weapons and landmines placed in Malaysia. The agreement also stated that cpm members who wanted to re-establish legal residence in Malaysia could do so after spending at least 6 months in pre-designated places in Thailand. Those taking residence in Malaysia would have to swear allegiance to the King and abide by the Federal Constitution and laws of Malaysia. Hindraf leader still has passport, The Star, 17 May Waythamoorthy, Press statement, Home Minister lied to cover up the bungle of Government, dated 18 May

39 chapter 2: ABUSE OF POWERS BY THE MALAYSIAN POLICE AND OTHER LAW ENFORCEMENT AGENCIES

40 Malaysia Human Rights Report 2008 The Royal Malaysian Police has been known for its non-compliance with inter national human rights standards and in using unacceptable levels of violence in apprehending and investigating alleged criminals. This can be attributed to the Malaysian government s disregard for international human rights law and standards, demonstrated by its refusal to ratify the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (cat). 1 The Malaysian government has also abstained from voting on the Optional Protocol to the cat 2 that would allow human rights experts to regularly monitor conditions of detention. This situation is compounded by the fact that the government has consistently failed to discipline the police for their human rights violations. Despite numerous recommendations made for police reforms, including by commissions set up by the government, these have been ignored. They include the proposal to set up the Independent Police Complaints and Misconduct Commission (ipcmc), more than three years after the recommendation was made. As a result of this, serious human rights violations continue to be committed by the police with increasing impunity in The year saw many individuals and groups ranging from activists and political parties to the general public and criminal suspects being subjected to threats, harassment, arbitrary arrests, detentions, violence and brutality. Deaths in police custody continue to be unacceptably high; numbering 13 cases in 2008 and usually attributed to various diseases. There were also at least 44 deaths by police shooting in These were justified by the police as self-defence shootings. Meanwhile, there were numerous complaints of violent police reactions to peaceful assemblies, the arbitrary detention of protestors, abuse and torture of detainees throughout the year. Recommendations for Police Reforms In 2004, the Royal Commission to Enhance the Management and Operations of the Police Force (Royal Police Commission) was formed with the primary objective to make recommendations to modernise the force, improve its service and efficiency, eliminate corruption and police brutality, and restore public confidence in the police. The Commission pinpointed three priorities for reform of the police force reduce crime, eradicate corruption, and end human rights abuses. In its report submitted to the King in April 2005, the Commission revealed that the public was generally dissatisfied with a number of key areas. These included police inaction or delays in taking action on reports lodged, the level of corruption within the force, its inefficiency and lack of accountability, poor service (such as refusal to take police reports, rude responses to complainants who are illiterate or are not able to write in Malay, insensitivity towards feelings of victims of a crime, etc.), and the officers abuse of power. 3 The Commission concluded that at all levels in pdrm [the Royal Malaysian Police], the corruption awareness is significantly low, in particular, among the rank and file. 4 With reference to the abuse of power, the Commission raised concerns about the long detention and chain-smoking remand of suspects; the issuance of threats and extortion of money from people, particularly from migrant workers; and acts of inhumanity, torture and degradation carried out by police personnel during interrogation. 5 Government s Response On 12 April 2007, in a parliamentary written reply to Opposition member of parliament Wan Azizah Wan Ismail, Prime Miniser 40

41 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies Abdullah Badawi said that the government had implemented 69 of the 125 recommendations of the Royal Police Commission while another 23 were in the process of implementation. However, the Prime Minister did not specify which recommendations had been implemented. 6 In September 2007, several muchanticipated changes to the Criminal Procedure Code that strengthen the rights of criminal suspects were brought into force. These amendments were based on proposals made by a Parliamentary Select Committee on the Penal Code and the Criminal Procedure Code in Among the key changes to the Criminal Procedure Code were: 7 A new Section 28A, which require an arresting officer to inform a detainee of the reason for his/her arrest and enable the suspect to contact his/her lawyer or family free of charge within 24 hours of arrest. Amendments to Section 117 of the Criminal Procedure Code limit the period the police may hold a person for investigations and reduce the powers of the Magistrate to order further detentions. For offences punishable by less than 14 years of imprisonment, the maximum period is four days during the first detention and three days during the second detention. For offences punishable by imprisonment of 14 years or more, the maximum period is seven days during the first detention and seven days during the second detention. Statements of suspects taken by police under Section 113 of the Criminal Procedure Code, often obtained by way of coercion and torture instead of professional investigation, have been made inadmissible in court as evidence, while the new Third Schedule of the Criminal Procedure Code sets out The Royal Police Commission had drafted a 104-clause for the ipcmc and set May 2006 as the deadline for its establishment. In November 2007, it was reported that the draft bill for the setting up of the ipcmc was being streamlined by the Attorney-General s Chambers based on feedback and views from various quarters and agencies. In November 2007, Minister in the Prime Minister s Department Nazri Abdul Aziz said that the bill would be tabled during the then-ongoing Parliament sitting. 8 By 31 December 2007, the establishment of the ipcmc was already more than one and a half years past its deadline set by the Royal Police Commission, with no signs of it being set up by the government. Instead of an ipcmc Bill, a Special Complaints Commission (scc) Bill 9 was proposed by the government in December The proposed scc Bill was opposed by civil society groups 10 as it was seen as a much watered-down version of the ipcmc proposed by the Royal Police Commission. 11 The bill of the newly-proposed complaints mechanism was also criticised by the chairman of the Royal Police Commission, who claimed that it was a major departure from the recommendetailed guidelines for body searches by the police or any law enforcement agencies. However, many other recommendations relating to human rights protection, especially those found in Chapter 10 of the Royal Police Commission report have generally either not been implemented or not fully implemented. In 2008, no progress was made with regards to the recommendations of the Royal Police Commission. Some of the major recommendations still unimplemented are: i. The Independent Police Complaints Misconduct Commission (ipcmc) 41

42 Malaysia Human Rights Report 2008 dations made by the Commission in Mohamed Dzaiddin Abdullah, who headed the Royal Police Commission, in response to the scc Bill, said that the government did not accept the core recommendation of an independent oversight body. 12 While the draft ipcmc bill proposed by the Royal Police Commission was intended to address the inadequacy and ineffectiveness of the internal mechanisms in the police force which failed to ensure supervision and command accountability in protecting the rights and the interests of the public, the proposed scc instead, places three permanent members, namely the Inspector-General of Police (igp), the Director-General of the Public Complaints Bureau, and the Director- General of the Anti-Corruption Agency (aca) in the oversight governance structure. As this commission is aimed at dealing with the misconduct and abuse of powers by enforcement agencies officers, the composition of members from the very same enforcement agencies in the proposed commission seriously undermines the independence of this body. The definition of misconduct in the scc bill is also problematic in that it does not explicitly include corruption, a major problem in the country that has led to serious human rights violations and impunity. In recent years, a number of allegations of high-level corruption in the police force have surfaced, involving no less than the top-ranked and third highest-ranked police officers (in 2007). In the Royal Police Commission-proposed ipcmc, corruption is clearly spelt out in the scope of police misconduct. Besides these deficiencies of the scc Bill, the proposed commission has no powers to conduct independent investigations into the police force as submissions will be redirected to the police to investigate complaints received. After the first reading of the bill in the Parliament, the scheduled debate on the bill on 18 December 2007 was deferred. As of 31 December 2008, there were no further developments on the setting up of the ipcmc. ii. Preventive Laws Also of concern to the Royal Police Commission is the existence of a range of preventive legislations that restrict fundamental liberties and abuse the safeguards provided for human rights. The Royal Police Commission therefore recommended: Amendments to Section 73 of the Internal Security Act 1960 to allow a detained person to be produced before a magistrate within 24 hours and to be allowed access to family and lawyers and to limit the detention period to a maximum of 30 days. Amendments to Section 3 of the Dangerous Drugs (Special Preventive Measures) Act 1985 to allow a detained person to be produced before a magistrate within 24 hours and be allowed access to family and lawyers. The Commission also recommends limiting the detention period to a maximum of 30 days. The repeal of the Restricted Residence Act 1933 that allows preventive detention of suspected criminals in a specific residential area that may extend up to the lifetime of a person. The repeal of the Emergency (Public Order and Prevention of Crime) Ordinance The partial repeal the Prevention of Crime Act As of 31 December 2008, none of these recommendations had been implemented, despite growing calls for the repeal of preventive laws. (See Chapter 1: Detention without Trial.) 42

43 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies iii. Section 27 of the Police Act Another important recommendation of the Royal Police Commission is the amendment to Section 27 of the Police Act 1967, which requires the obtaining of a police permit to organise gatherings. In its report, the Royal Police Commission recommended, inter alia, the repeal of Sections 27A, 27B and 27C of the Police Act, 13 which means that the police cannot stop or disrupt assemblies or gatherings in private premises. However, at the end of 2008, these sections of the Police Act were still in place. Several ceramah (public gathering involving political speeches) throughout the year, held on private premises, were disrupted by the police. The report also acknowledges the fact that freedom of assembly is a fundamental right guaranteed by the Federal Constitution. 14 Furthermore, the Human Rights Commission of Malaysia (suhakam) also made recommendations in its Report of suhakam Public Inquiry into the Incident at klcc on 28 May 2006, stating that peaceful assemblies should be allowed without a licence. 15 However, throughout 2008, public gatherings continued to be clamped down because groups did not have police permits. (See Chapter 5: Freedom of Assembly and Association.) iv. Code of Practice for Arrest and Detention A set of Principles and Code of Practice Relating to the Arrest and Detention of Persons was proposed by the Royal Police Commission to prevent torture and abuse of detainees. In the commission s proposal, an independent Custody Officer shall be responsible for the welfare and custody of every detainee, procedures for police interview including tape recordings, video surveillance and access to lawyers. Failure to comply with this code, as emphasised by the commission, should be subject to disciplinary actions. However, as of 31 December 2008, there has been no information on the adoption and implementation of this recommendation. v. Deaths in Police Custody The Royal Police Commission also made recommendations relating to deaths in police custody. The Commission recommended that for every case of death in police custody, the police must submit a report of studden death within one week, and an inquest must be held within one month. However, inquests into cases of death in custody have been extremely slow, with several long overdue cases still pending in the courts. In addition to the recommendations by the Royal Police Commission, the Parliamentary Select Committee on the Penal Code and the Criminal Procedure Code, in its 2006 report, also recommended the legislation of a Coroner s Act with a view of establishing a Coroner s Court and improving the procedures for inquests into deaths in police custody. 16 This, too, had not been implemented as of December Deaths in Prisons and Police Custody: Recent Official Statistics A number of official statistics have been released by the government on different occasions in the past few years. 17 However, it has to be highlighted that the government s statistics on deaths in prisons and in police custody are unreliable. 18 On 3 March 2009, the Home Minister, in a parliamentary written reply, said that there were 153 cases of death in police custody in the period between 1999 and The minister, however, did not provide the 43

44 Malaysia Human Rights Report 2008 breakdown of cases for each year in the said period. 19 Earlier, on 8 July 2008, the Home Minister had released statistics on deaths in police custody and prisons. According to the Home Ministry, there were 1,535 cases of deaths in prisons, rehabilitation centres, and immigration detention centres in the period between 2003 and 2007, while 85 cases of deaths in police custody were recorded in official statistics in the same period. 20 In April 2007, the government revealed that there were 14 deaths under police custody in In the parliamentary reply by the Internal Security Ministry, 108 deaths occurred under police custody between 2000 and From that figure, 7 died in 2000, 16 in 2001, 15 in 2002, 23 in 2003, 19 in 2004, and 14 each in 2005 and 2006 respectively. 21 Meanwhile, in March 2007, the government revealed that there had been 95 deaths in the Simpang Renggam detention centre in Johor from 2000 to March Out of the total number, 77 people died of HIV, followed by poor health (16), suicide (1) and electrocution (1). 22 The Simpang Renggam detention centre houses remand prisoners, and Emergency Ordinance and Dangerous Drugs Act detainees. Deaths in Police Custody, 2008 According to official government statistics, there were 13 deaths in police custody in Not all cases were reported in the media. The cases documented by suaram through media monitoring in 2008 were: i. Goh Yan Peaw Detained: 9 January 2008 Died: 20 January 2008, Segamat police lockup According to a news report in Sin Chew Daily, 24 Goh Yan Peaw was arrested together with his wife and brother by the police on 9 January 2008 at their house in Segamat. They were held under the Emergency Ordinance for allegedly hiding drugs, bombs, porno tapes and fireworks. Goh was sent to Johor police headquarters for investigation the next day after his arrest. On 16 January, he was brought to the magistrate s court in Segamat, which granted the police a remand order of seven days for Goh Yan Peaw. According to Segamat ocpd Abdul Majid, Goh was brought back to the Segamat police lock-up on 19 January At about 4.00am in the morning, Goh was found unconscious in the detention cell and died after he was sent to hospital. The police told the family that Goh had died from a fall in toilet. However, Goh s mother showed a medical certificate which indicated the result of a recently completed medical check-up of Goh, certifying that he was in good health. Goh s wife, who last met her husband when they were brought to the Segamat Magistrate s court for remand application, said that she found Goh to have lost a lot of weight, his face was pale, his lips were in light purple color and his eyes seemed to have swelled. ii. Kamarul Ariffin Detained: 8 July 2008 Died: 13 July 2008, Tanah Merah Police Headquarters Lockup Arrested on 8 July 2008 and remanded for further investigation under Section 3(1) of the Drug Dependants (Treatment and Rehabilitation) Act for his alleged involvement in drug-related activities. On 11 July 2008, he was taken to Tanah Merah Hospital for a medical examination after he complained of pain and cramps and was then brought back to the police lockup. He fell unconscious at about 7.50am on 13 July 2008 and was confirmed dead one hour later by the doctor

45 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies iii. Burhanuddin Sulaiman Detained: 1 September 2008, Ampang Jaya District Police Station Died: 1 September 2008, Ampang Jaya District Police Station Burhanuddin Sulaiman was a former Royal Malaysian Air Force lieutenant-colonel, arrested for sexually molesting a 17 yearold girl. He was arrested and detained at the Ampang Jaya District Police Station on 1 September 2008 at about 12pm. At about 7pm on the same day, he was found lying on the floor and was pronounced dead by paramedics who arrived about 10 minutes later. The first post mortem revealed that he had suffered a heart attack. 26 iv. Suria Ramesh Detained: 20 November 2008, Kulim Died: 22 November 2008, Kota Setar District Police Headquarters Suria Ramesh was arrested in Kulim in connection to several alleged robbery cases. The police claimed that he committed suicide. 27 Deaths in Prisons The government also disclosed a total of 255 cases of deaths in prisons in Of these, the following cases were documented by SUARAM: i. Ong Chee Leong Detained: 8 July 2007 Died: 18 January 2008, Penang Prison in-house clinic Ong Chee Leong was arrested on 8 July 2007 and had been in detention in the Penang Prison since he was charged with the murder of a girl. He was found dead hanging from a towel tied to a beam at the prison clinic. State Criminal Investigation Department chief sac ii Abdul Samah Mat said that Ong was still alive when wardens found him. They tried to revive him by applying cardio pulmonary resuscitation but he died shortly afterwards. The police also claimed that Ong had suffered from depression, and often cried while being kept in solitary confinement, especially during the last few days before his death. 29 ii. Uthayachandran A/L Gaur Chandran Died: 18 May 2008, Sungai Buloh Prison Uthayachandran, detained since 2005 in the Sungai Buloh Prison pending trial for a drugrelated offence, died on 18 May 2008 after he was severely beaten up by fellow inmates. Another inmate was reported to have sustained injuries in the same incident. According to the police chief of Selangor, Khalid Abu Bakar, Uthayachandran sustained severe injuries to his neck and was pronounced dead when he was sent to the Sungai Buloh Hospital. 30 Uthayachandran s father claimed that the deceased had made several requests to be transferred to another cell block before he died as he was threatened by fellow inmates. These requests, according to his father, were denied. The deceased s family also claimed that Uthayachandran was not given any medical attention before he was brought to the hospital. 31 However, this claim was dismissed as baseless by Sungai Buloh Prison Director Narander Singh. According to Narander Singh, no such request was recorded by the prison authorities. 32 On 31 July 2008, eight Sungai Buloh Prison inmates were charged with the murder of Uthayachandran under the Penal Code

46 Malaysia Human Rights Report 2008 iii. Kee Lian Kok Detained: May 2006 Died: 19 May 2008, Sungai Buloh Prison Kee was arrested by police for alleged involvement in kidnapping and causing the death of his brother-in-law. Kee was on trial, his case was scheduled to resume in the courts on 23 June 2008 but he was found unconscious at about 10am (19 May 2008) in his cell and was pronounced dead when he was rushed to the Sungai Buloh Hospital. According to his family members, Kee was kept in a dark room from March 2008 until his death. 34 iv. Chai Hong Yik Detained: 24 September 2007 Died: 3 June 2008, Sungai Buloh Prison Chai Hong Yik was arrested on 24 September 2007 in connection with the murder of two single women. He was charged on 8 October 2007 and awaiting trial. He was found unconscious at about 9am (3 June 2008) by a warden and pronounced dead when he reached the hospital. Early post mortem report concluded that the deceased had suffered from a heart attack. 35 Inquests into Cases of Deaths in Police Custody In 2005, the Royal Police Commission report noted the deaths of 80 persons while in police custody between 2000 and However, only six inquests have been carried out at the time of the publication of the Royal Police Commission report. 36 In April 2006, the then-chief Judge of Malaya, Siti Norma Yaakob, questioned the decision by deputy public prosecutors and magistrates not to have inquests for 22 deaths whilst in police custody between 2000 and 2004 when the law made it mandatory in such cases. She said this after quoting the Royal Commission s above findings. She also highlighted that although in 39 out of 80 cases the Sudden Death Report (sdr) was prepared and submitted to the magistrate in April 2004, inquests had not yet been initiated. 37 In a parliamentary written reply from the Internal Security Ministry (now known as the Home Ministry) on 23 April 2007 to a question on the number of inquests held over the cases of deaths in custody from 2000 to 2006, the exact number of inquests was not stated. The reply merely stated that all deaths in custody are investigated. 38 Inquests into deaths in police custody generally take a long time to resolve with many long overdue cases still pending in the courts. An illustration of the slow progress of inquests can be seen in the case of Ulaganathan Muniandy who died in police custody in Ulagantahan (19 years old at the time of his death), was held in the Kajang Police Station, initially under Section 302 of the Penal Code and later under the Emergency Ordinance, from 12 May 2003 until his death on 21 July The cause of Ulaganathan s death was classified as undetermined by medical authorities at the Kajang Hospital. 39 According to his mother, in her three visits to him in the month of May 2003, she found several bruises on Ulaganathan s body, including swollen eyes, bruises in the region of the eyes and swellings on the legs. He was also said to have lost a lot of weight. The last time he was visited by his mother on 11 July 2003, Ulaganathan was unable to sit while eating, and his eyes were still swollen. In March 2006, suaram was informed that an inquest was to be held into this case of death in custody. However, since then, neither the family members of the deceased nor suaram have been notified of further developments on the case. Finally, in October 2007, it was discovered that the inquest into Ulaganathan s death had already been postponed six times. 46

47 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies In 2008, the inquest into Ulaganathan s death was only heard for one day, on 21 July 2008, before being postponed again for the 9th time, to 25 September As of 31 December 2008, more than five years after his death, the inquest has yet to be completed. Ulaganathan s case underscores two major problems pertaining to the conduct of inquests on cases of death in police custody: Inquests into cases of deaths in custody are extremely slow. Ulaganathan s case is but one of many which have been postponed for several years. In many cases, family members are not notified of the commencement and postponement of inquests. Thus, many other cases may have had inquests conducted without the knowledge of the family members concerned. However, on 29 July 2008, the family of Ulaganathan won its civil suit against the police, two years after filing the suit before the Kuala Lumpur High Court. In its judgement, the High Court Judge ruled that the death of Ulaganathan was caused by the unlawful acts and negligence of the police. The judge also ruled that the police had breached its statutory duties in Ulaganathan s death. However, the Attorney-General s Chambers has filed an appeal on the judgement. As of 31 December 2008, the appeal has yet to be heard in the Court of Appeal. Deaths by Police Shootings International law clearly stipulates the basic criteria for the use of arms. For instance, in the United Nations Code of Conduct for Law Enforcement Officials it is stated, Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty. 40 (Emphasis added) Whereas principle 9 of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials states: Law enforcement officials shall not use firearms against persons except in selfdefence or defence of others against the imminent threat of death or serious threat to life [ ] In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. 41 (Emphasis added) However, the Malaysian police have tended to be trigger-happy 42 with minimal regard to these international standards. In 2008, there were at least 44 deaths by police shootings reported in the media. There may well be many more cases of deaths by police shootings which were unreported. However, no official statistics on this was made available by the government in The cases reported in the media documented by suaram in 2008 were: On 1 January 2008, a 26-year old man allegedly involved in a drug syndicate was shot dead by the police during a special police operation at a car park in Cheras, Kuala Lumpur. According to the police, the man had fired a few shots at the police when they arrested a member of the syndicate before trying to flee in his car. A police patrol car then gave chase and fired several shots at the car, hitting the 26- year old man who lost control of the car and eventually succumbed to injuries. 43 On 26 February 2008, English- language daily The Star reported that the police had shot dead three members of a gang, two of whom were Indonesians, who had just robbed a bank customer in Kelana Jaya, Selangor. After a chase 47

48 Malaysia Human Rights Report 2008 by the police, the robbers reportedly got out of their car and attacked the police with parangs (machete). 44 On 2 May 2008, a murder suspect, Muhisbudin Isumumin, a 42-year old from Acheh, Indonesia, was shot dead by the police. According to a news report, the police had raided a location in Kuala Lumpur after detecting seven suspects of the murder case but Muhsibudin slipped through the police cordon. The police then trailed him for several minutes and a shootout erupted, resulting in the suspect being shot dead. It was also reported that the police had seized two semi-automatic pistols and a revolver during the operation. 45 On 16 June 2008, the police shot dead four foreigners, believed to be Indonesians, near a toll plaza in Simpang Pulai, Perak, after they had robbed a family. The police claimed that the four had opened fire at the police who were approaching them. 46 On 17 July 2008, a suspected car thief was shot dead by the police. Trying to flee from the police with a stolen police car, the suspect rammed into 30 vehicles before he tried to attack the police with a sickle. The police then shot the man several times and he died on the spot. 47 On 5 August 2008, a Liberian national, suspected to be involved in a money scam was shot dead while attempting to attack policemen with a parang. He, together with two other accomplices, were wanted by the police for a string of money scams in Puchong, Kuala Lumpur, after the police had received at least five reports in the past six months from several businessmen who were duped. A team of police officers confronted them after they were reported to be spotted outside a workshop in Kampung Baru Puchong, Kuala Lumpur. When faced by the team of policemen, the deceased reportedly attacked the policemen with a parang, resulting in him being shot twice. The police claimed that they had fired a warning shot but he had lunged at the policemen. 48 On 26 August 2008, two foreigners, suspected for robbery in the states of Selangor and Negri Sembilan were shot dead by the police in Serendah, Selangor. The police claimed that they had flagged down the vehicles and identified themselves but the two men had rushed out from the van and charged at the policemen with a parang and a sickle. The police then opened fire, killing the two on the spot. 49 On 2 September 2008, four men, suspected to have planned a robbery at a petrol station, were killed in a shootout with the police in Shah Alam, Selangor. It was reported that the suspects had fired three shots at the police when they were approached, and the police had returned fire. Two other suspects managed to escape. The police said that the four persons killed had previous criminal records. 50 On 3 September 2008, The Star reported two men shot dead by the police at a petrol station along the North-South Expressway near Bukit Kayu Hitam, Kedah. The men, aged 29 and 25, reportedly fired shots at two teams of policemen when they were stopped by the policemen. The police claimed that the two were on the wanted list for various criminal activities, including robbery, murder and kidnapping. 51 On 24 September 2008, police in the East Malaysian state of Sarawak shot 48

49 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies dead three Indonesians who were suspected of carrying out several armed robberies during an operation near Kuching. It was reported that the police opened fire after one of the men pulled out a pistol and charged at them during a raid launched after a public tip-off. According to the police, they seized a pistol, 10 bullets, two parangs, a knife, a screwdriver and a face mask from them. 52 On 26 October 2008, an armed man, identified as Lim Chee Hiong, suspected to have robbed three chefs at a restaurant and a house, was shot dead by the police in Bandar Seri Alam, Johor. He was killed on the spot by the police who fired several shots at him when he attempted to attack a 49-year-old female chef whom he had stabbed in the hand and leg despite a police warning to surrender. 53 On 4 November 2008, a suspected criminal high on the wanted list of the police was killed in a shootout with police near Klang, Selangor. The man, in his 20s, was shot dead as he was about to get into a car after leaving a computer shop. According to the police, a team of patrolling policemen approached him and asked to check his identity card, but he had opened fire at them instead. State deputy police chief Senior Asst Comm I Jamshah Mustafa said the policemen were forced to retaliate. 54 On 5 November 2008, the police shot to death two Indonesians suspected to be professional assassins in a shootout. The two Indonesians, identified as Mat Shaari and Andi, were believed to have killed a few other Indonesians on orders from fellow countrymen. 55 On 16 November 2008, four Indonesians wanted by the police for suspected involvement in 24 armed robberies in Negri Sembilan, Melaka and Selangor were shot dead by the police. The police claimed that the Indonesians were fleeing in their car from a pursuing police team after committing a robbery. They allegedly attempted to attack the police after their car was cornered by the police. 56 On 30 November 2008, a suspect in the theft of several luxury cars was shot to death in a standoff with police in Larkin, Johor. He was reported to have been shot dead when he tried to run over several policemen while evading arrest. According to a news report, the suspect hit a policeman s motorcycle and a police car, forcing the police to open fire. 57 On 18 December 2008, Indonesian newspaper Jakarta Post reported that four men, two of whom were believed to be Indonesians, were shot dead by the police. The other two were local residents. The four, aged between 30 and 40 years, were suspected members of a robbery gang. They were suspected to have broken into houses and tied up residents before stealing their valuables. According to the same news report, in the previous week, four Indonesians were killed in a shootout with the police in Sarawak. Police said they found firearms, knives and wire-cutters in a car which the men had driven to the Malaysian border. 58 On 4 December 2008, the police killed five suspected armed robbers in a shootout after a high-speed car chase from Petra Jaya to Samarahan in Sarawak. According to the police, the policemen returned fire when one of the armed men started shooting after their car was 49

50 Malaysia Human Rights Report 2008 blocked by police patrol cars. The second suspect, armed with a shotgun, also fired at the policemen while the other three tried to attack them with machetes and a knife. The police claimed that the gang was involved in 38 robberies in the Kuching and Samarahan districts since July In many of the cases, the circumstances of police shootings indicate that the police do not try to apprehend suspects but rather, shoot to kill. In virtually all cases of shooting deaths, the police claim that the suspects were armed and dangerous, and that returning fire was necessary. However, a closer examination would reveal that a large number of the suspects shot dead by the police were merely armed with parangs and knives. These cases are in clear contravention of the principles of restraint and proportionality in the international standards on the use of firearms by law enforcement officers. Principles 5(a) and (b) of the United Nations Code of Conduct for Law Enforcement Officials clearly state that whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: 60 Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved. Minimise damage and injury, and respect and preserve human life. Furthermore, in many cases, the police were not reported to have observed sufficient warning before firing shots at criminal suspects. This practice goes against the international standards on the use of firearms by law enforcement officers, as outlined in the United Nations Code of Conduct for Law Enforcement Officials: In circumstances provided under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for warning to be observed [ ]. 61 Other Cases of Abuse of Powers by the Police, 2008 i. Police Crackdown on Peaceful Assemblies Police violence and brutality were seen in a number of assemblies held in Police intolerance towards peaceful assemblies was demonstrated by numerous arrests made by the police with reports and accounts of police violence, either when making arrests or when dispersing the crowds. Several cases where injuries were caused by police violence during assemblies were recorded in the crackdown on peaceful assemblies in The year also saw, on at least two separate occasions, minors being arrested and detained by the police for attending assemblies. Protest against Price Hikes in klcc On 26 January 2008, in a protest against price hikes, 47 persons were arrested by the police. The police had declared the rally illegal and obtained a court order on 25 January 2008, banning five people from being within a one-kilometre radius of the venue, Kuala Lumpur City Centre (klcc). About 200 police personnel were present within the vicinity of the protest venue. Even before the protest had actually started at about 2pm, five women and four men were picked up at a train station near the protest venue and brought to the Kuala Lumpur police contingent headquarters for questioning in connection with the rally. Those picked up included a leader of the women s wing of the Pan-Malaysian Islamic Party (pas) Aiman Athirah Al-Jundi 50

51 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies and the Secretary-General of the Socialist Party of Malaysia (psm) S. Arutchelvan. Before he was arrested, he was shown a copy of the court order by one of the police officers. At the venue of the protest, about 100 protestors were stopped by a barrier of police officers as they attempted to march towards klcc from a nearby area. This resulted in a scuffle between the protestors and the police, resulting in one woman sustaining injuries to her shoulder after being struck during the pushing and shoving. At one point, Dang Wangi ocpd Zulkarnain Abdul Rahman was heard shouting orders to the police officers, Drag them back into the trucks! They were rough against us, be rough against them. 62 Of the 47 arrested by the police, 12 were released on the same day, while the remaining 35 were charged at the Kuala Lumpur Sessions Court on 28 January 2008 with taking part in an illegal assembly. Among those arrested and charged was Malaysiakini journalist, Syed Jaymal Zahiid, who claimed that he was punched on the head and had his hair pulled by the police during his arrest. He lodged a police report after his arrest. Protest against the isa in Penang On 11 May 2008, 5 people were arrested during a 45-minute rally in Penang organised by hindraf to demand the release of isa detainees, while another 2, including suaram staff, Lau Shu Shi and Teh Chun Hong, were arrested after they lodged police reports at the Georgetown police headquarters. Lau was leaving the police station when an officer allegedly raised his voice against her. When she told him to lower his voice and show respect, a shouting match ensued. Lau was then taken in for questioning under Section 90 of the Police Act 1976, while Teh was detained for recording the incident and his video camera was seized. The five arrested during the rally were freed on police bail after being held for seven hours, while suaram s Lau and Teh were detained overnight after being remanded for one day for unruly conduct at the police station. The seven, released on police bail, claimed that the police had abused their power and acted against police procedures as they had to extend their police bail on two occasions: They were released on two-week bail in stages on 11 May 2008 and 12 May 2008 respectively; they were then told their bail had been extended for another week when their previous bail expired on 23 May On 29 May 2008, however, they were told that their bail was to be extended yet again by another two weeks. The seven denounced the delay by the police in investigating their case and suggested that the authorities were using scare tactics to hinder the anti-isa protest. The twice-extended bail was also criticised as a waste of public resources by the police. 63 As of December 2008, there were no charges against the seven. Submission of Letter on the isa to the Prime Minister in Putrajaya On 23 October 2008, 12 persons, including the six-year old niece of isa detainee and the Hindu Rights Action Force (hindraf) leader P. Uthayakumar were arrested when they tried to submit a letter to the Prime Minister. The group had attempted to submit a handwritten letter urging the Prime Minister to release all those detained under the isa. First Anniversary of the bersih Rally, November On 9 November 2008, 23 persons were arrested during a peaceful assembly to commemorate the first anniversary of the massive bersih rally held on 10 November These included a member of Parliament, state assemblypersons and journalists. A 53-51

52 Malaysia Human Rights Report 2008 year old woman named Dian Abdullah was attacked from behind by a few policemen, causing her to fall and injure the back of her hand. Member of Parliament Tony Pua and Selangor state assemblyperson Lau Weng San also alleged that they were manhandled and punched respectively. Anti-isa Assembly in Ampang, Kuala Lumpur On 23 November 2008, 9 persons were arrested in relation to an anti-isa assembly organised by the Abolish isa Movement (Gerakan Mansuhkan isa, gmi). Seven individuals were arrested during the event while another two individuals, opposition Member of Parliament Salehuddin Ayub and Vice President of the opposition pas Mohamad Sabu, were arrested when they visited the seven arrested at the police station where they were being held. jerit Bicycle Campaign In December, 120 individuals were arrested during a bicycle campaign organised by the Network of Oppressed People (Jaringan Rakyat Tertindas, jerit), held over a period of 15 days, from 3 December 2008 to 18 December The campaign, held to demand the government makes a number of policy and institutional reforms, kicked off on 3 December 2008 in the northern state of Kedah and ended on 18 December 2008 at the Parliament in Kuala Lumpur. The campaigners, comprising teams of cyclists and volunteers, were harassed by the police at almost every point of their campaign. On 4 December 2008, a volunteer, Ruben Loganathan was arrested at Merbau Pulas, Kedah, for distributing leaflets containing the demands of the campaign. He was released under police bail on the same day. ii.on 5 December 2008, jerit cyclists were stopped by the police when they were leafleting at Teluk Kumbar, Penang. On 6 December 2008, 16 jerit activists were arrested at Skudai, Johor. They were released on the same day without charge. On 9 December 2008, two activists were arrested at Taiping and another six were arrested at Kuala Kangsar, Perak. One of the female jerit activists, Helen Mary Johnson, was molested and punched on the face by a police officer while she was taking photographs. Another jerit activist, Lee Huat Seng, had his camera confiscated by the police and he was also hit on the arm by the police. On 15 December 2008, two groups of campaigners, taking different routes on bicycles, were arrested. The first group, consisting 39 individuals, were arrested at Bangi Lama Estate, Selangor, while the second group, comprising 56 individuals, including 26 cyclists who were minors, were arrested and held at the Rawang police station in Selangor for a night. At the Rawang police station, the 56 individuals who were arrested claimed that they were made to stand in heavy rain in the middle of the night by the police. Defending the police s actions, Selangor Chief Police Officer (cpo) Khalid Abu Bakar said that the minors were detained by the police to save them from being misused and exploited by irresponsible people. 64 He also claimed that the minors did not know what they were participating in despite the fact that the organisers of the campaign had shown the police written consent from the parents of the minors and that they could withdraw their participation at any point if they wanted to. The detention of minors by the police also contravenes the United Nations Convention 52

53 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies on the Rights of the Child (crc), 65 of which Malaysia is a party to. 66 Developments after the Batu Buruk Incident On 20 January 2008, Suwandi Abdul Ghani and Muhammad Azman Aziz two individuals who were arrested on 9 December 2007 on the grounds of causing injury to a police officer and participating in an illegal assembly in Batu Buruk on 8 September 2007 were finally released after the High Court granted them bail, setting aside an earlier ruling by the Sessions Court. As of 31 December 2008, the two were still awaiting trial for the charges against them. The incident in Batu Buruk, Terengganu in September 2007 saw a political gathering turning into excessive violence, when the police broke up the gathering and fired shots at unarmed civilians. The shootings by a plain-clothed police officer caused serious injuries to two unarmed civilians. 67 Throughout 2008, no investigation was conducted on this incident of shooting by the police. As such no one has been held accountable for the incident. ii. Torture and Other Forms of Cruel, Inhuman and Degrading Treatment Malaysia s non-compliance with international human rights standards, demonstrated by its refusal to sign the Convention against Torture Other Cruel, Inhuman and Degrading Treatment and Punishment (cat) has allowed the police to commit acts of torture and other forms of cruel, inhuman and degrading treatment with impunity. Police officers dragging individuals during arrests in the Bandar Mahkota Cheras incident in May. (Photograph courtesy of Malaysiakini) 53

54 Malaysia Human Rights Report 2008 Excessive Use of Force, Bandar Mahkota Cheras On 27 May 2008, during a protest by residents of Bandar Mahkota Cheras, Kuala Lumpur against the actions of a toll company to barricade a toll-free route, excessive and unwarranted force was used by the police resulting in serious injuries to a 21-year old man. On the day of the incident, residents who had gathered to dismantle a concrete barrier erected by a highway concessionaire were met by a group of men alleged by the residents to have been hired by the concessionaire. This resulted in a clash between the two groups and the Federal Reserve Unit (fru) was called in to control the situation. During the course of the incident, four individuals in a car nearby were stopped by the fru personnel, and were assaulted by the fru and plain-clothed police officers. The incident left 21-year-old Chang Kiun Haur, the driver of the car, seriously injured. The four were subsequently arrested and were released on the following day. On 14 June 2008, suhakam decided to hold a public inquiry on the incident. The panel of inquiry commenced on 23 July 2008 and adjourned on 25 July 2008, and subsequently resumed its hearing on 27 August suhakam s panel of inquiry concluded its inquiry on 29 August 2008 after hearing the testimonies of 26 witnesses. In the public inquiry, Chang Jiun Har testified that more than ten police officers had surrounded his car and the side window was broken by fru personnel and he was subsequently dragged out from the car by at least A car with its window smashed by police officers during the Bandar Mahkota Cheras incident. A 21-year-old man who was driving the car was severely injured due to the excessive use of force by the police. (Photograph courtesy of Malaysiakini) 54

55 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies five personnel. He further testified that he was made to lie down on the road and was hit and beaten on the head, face and arm. A medical officer who examined Chang Jiun Har in the emergency ward at the Kajang Hospital on 28 May 2008 testified that Chang sustained a deep laceration wound, the loss of one upper jaw tooth, and suffered concussion. The medical officers also testified that Chang was unable to immediately recollect incidents leading to his injuries. Another doctor, who examined Chang on 29 May 2008, noted that he sustained head injury, swelling on his eyes and chest, and a minor posterior injury to his head. In its report, suhakam concluded that the police had used excessive force and breached international standards outlined in the Basic Principles on the Use of Force and Firearms by Law Enforcement Officers. 68 suhakam said: Similar recommendations made in suhakam s Report of Public Inquiry into the Incident at klcc on 28 May 2006 and suhakam s Report on Freedom of Assembly have remained unheeded by the Police. This is evident by the recurrence of excessive use of force and unprofessional Police conduct in the dispersal of peaceful assemblies in the past assemblies and the incidents of heavyhandedness action of fru personnel as found in this Public Inquiry. 69 suhakam made three main conclusions: 70 That there was excessive use of force by the law enforcement personnel against Chang Jiun Haur and Chan Siew Meng during the incident; That the excessive use of force by the law enforcement personnel had violated the safety and security of Chang Jiun Haur and Chan Siew Meng; and That the police and fru personnel were responsible for the violation of human rights in the incident. suhakam also recommended that: 71 The police and fru urgently implement the international standards as guidelines for their personnel on the use of force; The police and fru require all their personnel to display their names and badge numbers visibly and clearly during field operations; and The police conduct their own investigations to ascertain which personnel used excessive violence with a view of taking disciplinary action against the said personnel and, where necessary, to recommend to the Public Prosecutor for further action. Torture in Police Detention, Brickfields, Kuala Lumpur In December, Prabagaran, a car park attendant claimed that he was tortured during police custody when he was detained from 23 December 2008 to 28 December He lodged a police report on 11 January 2009 naming 11 policemen, including a chief inspector, for being responsible for scalding him with hot water during his detention. Prabagaran was arrested in Desa Sri Hartamas, Kuala Lumpur on 23 December 2008 for alleged extortion and released on police bail on 28 December On 3 March 2009, the Home Minister revealed, in a reply to a parliamentary question, that 7 of the police officers named by Prabagaran in his police report have been charged while the remaining 4 have been cleared from the case, after investigations

56 Malaysia Human Rights Report 2008 SUARAM activist Cheng Lee Whee arrested by the police under Section 28 of the ISA following a report lodged by her on a case of police brutality in Johor. (Photograph courtesy of Malaysiakini) iii. Police Connivance and Brutality in Forced Evictions In recent years, suaram has documented numerous cases of police connivance and brutality in forced eviction operations in villages of urban settlers. Some previous cases include Kampung Berembang and Kampung Rimba Jaya in 2007, where activists and villagers attempting to stop these operations were arrested and cracked down with force by the police. Many of the cases involve the deployment of the Federal Reserve Unit (fru) of the police force, who cooperated with the developers in these operations despite court injunctions and appeals pending in courts. In 2008, at least one other case of such police connivance and violence was seen, in October, when 27 persons were arrested during a forced eviction operation in Kampung Plentong Tengah, Johor. On 16 October 2008, developer Bukit Lenang Sdn. Bhd. carried out a forced eviction operation after obtaining a court order to demolish the village. However, the forced eviction operation was resisted by human rights activists and villagers as an appeal against the court order was due to be heard on 29 October 2008 at the Johor Bahru High Court. During the operation, the police force deployed 533 police officers from various units including the Federal Reserve Unit, air police unit, marine police unit, canine unit and bomb specialist unit against 200 unarmed civilians. 73 Among those arrested was suaram Johor Branch coordinator Nyam Kee Han, who suffered injuries to both his hands and had his shirt torn when the police made arrests. Many other activists and villagers also suffered from injuries. The 27 arrested, who had their statements taken by the police, were denied access to lawyers. They were released on a bail of RM1,000 several hours after their arrests. As of 31 December 2008, no charges had been made against them. iv. Abuse of the Internal Security Act (ISA) In response to the arrests of the 27 individuals in Kampung Plentong Tengah, Johor, on 17 October 2008, Cheng Lee Whee, a secretariat member of suaram s Johor branch, lodged a police report against the police for abusing its powers. For this, she was arrested by the police under Section 28 (Dissemination of false reports) of the isa for allegedly spreading information that could cause fear among the people. Section 28 of the isa provides for, making it an offence to spread false reports likely to cause public alarm. She was released on 18 October 2008, after the police had failed to obtain a remand from the Magistrate. On 24 October 2008, suaram lodged a complaint with suhakam on the abuse of 56

57 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies powers by the police in both the arrests of the 27 activists and villagers on 16 October 2008 and also the arrest of Cheng Lee Whee under the ISA on 17 October Commenting on the use of Section 28 of the isa on Cheng Lee Whee, suhakam commissioner Khalid Ibrahim said, [ ] I do not see anything seditious in it because she just said that they were abusing their power. She did not (add) any religious or racial sentiments, as far as I understand. 74 He also noted the possibility of a public inquiry by suhakam on the abuses of power by the police in the arrests related to the forced eviction in Kampung Plentong Tengah. However, as of 31 December 2008, no public inquiry was held on this matter by suhakam. v. Harassment and Threat On 6 November 2008, lawyer N. Surendran was questioned by the police for statements he allegedly made during proceedings in court. Surendran was representing those who were arrested for a public assembly against the ISA on 24 October He allegedly told the Magistrate that the police were negligent when one of the arrested individuals whom he represented, Mary Lourdes, a diabetic patient, had fainted in court as she did not have access to insulin during detention. In response to this, the Bar Council came out calling for an end to harassment of lawyers, saying that cases of lawyers being harassed or intimidated are on the increase. 75 The year saw an alarming increase in the cases of deaths by police shootings, with at least 44 deaths reported by the media. Deaths in police custody also remained high, with 13 cases in Despite this, the government has still not implemented the recommendation made by the Royal Police Commission in 2005 to set up the ipcmc and to conduct inquests into every case of death in police custody. The partiality and selectiveness of the police in persecuting groups and individuals was also obvious throughout the year, especially in the police regulation of public assemblies, with those organised by opposition political parties and groups associated with them targeted for crackdown. As no substantial efforts and commitments were made by the government to discipline the police, impunity in the force has become increasingly rampant. Summary Serious abuses of power by the police continued to occur throughout the year, ranging from arbitrary arrests to torture. There were no major improvements in the government s and the police s recognition of international human rights standards in

58 Malaysia Human Rights Report 2008 End notes Adopted and opened for signature, ratification and accession by un General Assembly resolution 39/46 of 10 December Adopted by un General Assembly resolution 57/199, 18 December countries voted in favour, 42 abstained and 4 voted against it. Royal Commission to Enhance the Management and Operations of the Royal Malaysia Police (2005) Laporan Suruhanjaya Diraja Penambahbaikan Perjalanan dan Pengurusan Polis Diraja Malaysia [Report of the Commission to Enhance the Management and Operations of the Royal Malaysia Police]. Kuala Lumpur. (pp ). Ibid. (p. 43). Ibid. (pp ). Parliamentary Written Reply to Wan Azizah Wan Ismail (Permatang Pauh), 12 April Parliamentary Select Committee on the Penal Code and the cpc (2006) Laporan Jawatankuasa Pilihan Khas Dewan Rakyat Untuk Mengkaji Rang Undang-undang Kanun Keseksaan (Pindaan) 2004 dan Rang Undangundang Kanun Tatacara Jenayah (Pindaan) 2004 [Report of the Parliamentary Select Committee on the Penal Code and the cpc], Kuala Lumpur. Nazri Abdul Aziz, 6 November 2007, Third Meeting of the Fourth Session of Eleventh Parliament, Hansard, DR , pp , pdf (last accessed: 28 December 2008) Special Complaints Commission Bill, D.R. 57/2007. See Memorandum of Civil Society Organisations to the Parliament on the Proposed Special Complaints Commission Bill, 18 December See Annex to this chapter, for a comparison between the proposed ipcmc and the scc Bill. Dzaiddin: It s not what we had in mind, New Straits Times, 14 December Royal Commission to Enhance the Management and Operations of the Royal Malaysia Police (2005) op. cit. (p ). Ibid. (p. 339). suhakam (2007) Report of suhakam Public Inquiry into the Incident at klcc on 28 May 2006, Kuala Lumpur: suhakam (p. 97). Parliamentary Select Committee on the Penal Code and the cpc (2006) op. cit. (p. 71). See suaram Human Rights Reports 2005, 2006 and For example, in October 2002, the Parliament was told that there were six deaths in 2000, 10 in 2001, and 18 from January to September In October 2003, the figure for 2002 was reported to Parliament as 16. In May 2004, the figures changed yet again to 7 deaths in 2000, 14 in 2001, and 15 for all of Similar discrepancies are found in the figures of deaths in custody for In May 2004, Parliament was told that 15 detainees died 58

59 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies in police custody in The number increased to 23 deaths in a July 2005 report. It is hard to believe that authorities are only now learning of custodial deaths that occurred several years ago. The government s inconsistent statistics once again underscores the unreliability of their figures. Parliamentary reply to Manogaran A/L Marimuthu (Teluk Intan) at the Dewan Rakyat, 3 March 2009, Question 60, Reference Number Wan Ahmad Farid Wan Salleh, 8 July 2008, Second Meeting of the First Session of the Twelfth Parliament, Hansard, DR (p. 14) pdf (last accessed: 3 December 2008). Parliamentary written reply to Wong Nai Chee (Kota Melaka) at the Dewan Rakyat, 23 April 2007, quoted in 108 kematian dalam tahanan polis [108 deaths in police custody], Bernama, 23 April 2007; 108 police custody deaths in six years, Malaysiakini, 23 April 2007, malaysiakini.com/news/66324 (last accessed: 20 April 2009). Fu Ah Kiow, 29 March 2007, First Meeting of the Fourth Session of Eleventh Parliament, Hansard, DR , p. 19, pdf/dr pdf (last accessed: 20 April 2009). Parliamentary reply to Loh Gwo-Burne (Kelana Jaya) at the Dewan Rakyat, 30 June Sin Chew Daily, 21 January Youth dies in police lock-up, The Star, 14 July Ex-rmaf officer found dead in police lock-up, New Straits Times, 2 September Indian M sians dying in police custody, Malaysiakini, 26 November 2008, (last accessed: 15 June 2009). Parliamentary reply to Loh Gwo-Burne (Kelana Jaya) at the Dewan Rakyat, 30 June Sin Chew Daily, 19 February Gaduh dalam penjara: Seorang banduan mati, satu cedera [Fight in prison: One inmate dies, one injured], Utusan Malaysia, 19 May Police report lodged by Kumeresan A/L Ganesan at the Batu Arang police station, Gombak, Selangor, on behalf of the family of Uthayachandran A/L Gaur Chandran. Report number: BT ARANG/000557/08, dated 19 May Prison: No record of transfer request, New Straits Times, 20 May Lapan banduan didakwa bunuh tahanan [Eight inmates charged with murder of detainee], Utusan Malaysia, 1 August Boy s suspected killer found dead in prison, The Sun, 20 May 2008; Dead murder accused s family demands answers, New Straits Times, 21 May Sin Chew Daily, 4 June

60 Malaysia Human Rights Report Royal Commission to Enhance the Management and Operations of the Royal Malaysia Police (2005) op. cit. (p. 348). Inquests not held despite being required, The Star, 2 April Parliamentary written reply to Wong Nai Chee (Kota Melaka), 23 April 2007, op. cit. Department of National Registration, Death Certificate, Ulaganathan A/L Muniandy (dated 22 July 2003, registration number C699909). UN Code of Conduct for Law Enforcement Officials, Adopted by UN General Assembly resolution 34/169, 17 December 1979 (Article 3). UN Basic Principles on the Use of Firearms by Law Enforcement Officials, Adopted by the Eight UN Congress on the Prevention of Crime and Treatment of Offenders, Havana, Cuba, 27 August 7 September 1990 (Principle 9). This phrase was first known to be used on the Malaysian police by then-president of the National Human Rights Society (HAKAM), Raja Aziz Addruse, in a letter which appeared in the New Straits Times, 11 April Drug Syndicate Member Shot Dead, Two Policemen Injured in Shootout, Bernama, 2 January 2008, bernama.com/bernama/v5/newsindex. php?id= Three gang members shot dead, The Star, 26 February 2008, my/news/story.asp?file=/2008/2/26/ nation/ &sec=nation (last accessed: 15 June 2009) Murder suspect shot dead by Malaysian police, People s Daily Online, 3 May 2008, cn/90001/90777/90851/ html (last accessed: 15 June 2008). Fatal end for four robbers, New Straits Times, 17 June Car thief shot dead after 3-hour pursuit, New Straits Times, 18 July African scam gang member shot dead, New Straits Times, 6 August Two robbers shot dead, The Star, 27 August 2008, fightcrime/story.asp?file=/2008/8/27/fi ghtcrime/ &sec=fightcrime (last accessed: 15 June 2009). Four Members of Mamak Gang Shot Dead Bernama, 2 September 2008, v5/newsindex.php?id= (last accessed: 15 June 2009). Wanted: Duo shot dead at petrol kiosk, The Star, 3 September 2008, asp?file=/2008/9/3/fightcrime/ &sec=fightcrime (last accessed: 15 June 2008). Malaysian police shot dead three Indonesian robbery suspects, Jakarta Post, 25 September 2008, (last accessed: 15 June 2009). Man who held up three chefs shot dead, The Star, 27 October 2008, 60

61 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies asp?file=/2008/10/26/nation/ &sec=nation (last accessed: 15 June 2009). Wanted criminal killed in shootout with cops, The Star, 5 November 2008, news/story.asp?file=/2008/11/5/ nation/ &sec=nation (last accessed: 15 June 2009). Malaysian police shoot down two suspected Indonesian hitmen, Antara News, 7 November 2008, en/view/?i= &c=nat&s= (last accessed: 15 June 2009). 4 wanted men shot dead, The Straits Times, 17 November 2008, Breaking%2BNews/SE%2BAsia/Story/ STIStory_ html (last accessed: 15 June 2009). Dead suspect mastermind, The Star, 3 December more Indonesian gangsters shot dead by Malaysian police, Jakarta Post, 18 December 2008, com/news/2008/12/18/2-more-indonesian-gangsters-shot-dead-malaysian-police.html (last accessed: 15 June 2009). Foreigners die in shootout with police after high-speed car chase, The Star, 5 December bn Basic Principles on the Use of Firearms by Law Enforcement Officials, op. cit. (Principle 5). Ibid. (Principle 10) psm s Aru to be charged, others expected to go free, Malaysiakini, 26 January 2008, news/77487 (last accessed: 15 June 2009). Anti-isa protestors furious over charge delay, Malaysiakini, 3 June 2008, (last accessed: 10 June 2009). We acted to save under-aged cyclists, Malaysiakini, 16 December 2008, (last accessed: 10 June 2009). Freedom of expression of the child is provided for in Article 13 of the crc and freedom of association and peaceful assembly is accorded to the child in Article 15. Article 37 states that the arrest and detention of the child should be used only as a measure of last resort and for the shortest appropriate period of time; no child should be subjected to torture; and during arrest and detention, the child should have prompt access to legal services. Malaysia acceded to the convention in See suaram (2008) Malaysia Human Rights Report 2007: Civil and Political Rights, Petaling Jaya: SUARAM (p. 45). suhakam (2009) Report of suhakam Public Inquiry Into the Allegation of Excessive Use of Force by Law Enforcement Personnel During the Incident of 27th May 2008 at Persiaran Bandar Mahkota Cheras 1, Bandar Mahkota Cheras, Kuala Lumpur: suhakam. Ibid. (p. 36). 70 Ibid. (pp ). 61

62 Malaysia Human Rights Report Ibid. (pp ) Parliamentary reply to Manogaran A/L Marimuthu (Teluk Intan) at the Dewan Rakyat, 3 March 2009, op. cit. suaram, Memorandum to suhakam on Police Brutality in Kampung Plentong Tengah, dated 24 October Inquiry into Kampung Plentong fracas? Malaysiakini, 24 October 2008, www1.malaysiakini.com/news/91908 (last accessed: 10 June 2009). Malaysian Bar Council, Press release, Harassment of lawyers on the increase, dated 13 November 2008, pdf=1&id=19369 (last accessed: 3 December 2008). 62

63 Chapter 3: freedom of speech and expression

64 Malaysia Human Rights Report 2008 In 2008, Malaysia continued its downward slide in the Reporters Sans Frontières (rsf) s press freedom index dropping to 132nd position out of 195 countries its lowest ranking ever. In 2007, Malaysia was placed 124th. The international media watchdog cited Malaysia as one of the countries where the taboos are still inviolable and the press laws hark back to another era. 1 In some countries, including Malaysia, said rsf, it is strictly forbidden to report anything that reflects badly on the president or monarch, or their family and close associates. 2 The continued decline in the level of press freedom in Malaysia is a manifestation of the general worsening of the state of freedom of speech and expression in the country in When the Barisan Nasional (bn) suffered its biggest loss in the General Elections of March 2008, many analysts pointed out that the unprecedented results was caused by, among other factors, bn s failure to carry out reforms and promises of greater respect for human rights. Unfortunately, throughout 2008, the bn government still failed to make substantive reforms. There were, however, some minor improvements, including relatively fairer coverage to opposition political parties and leaders in the media, especially after the General Elections, and the initiative of having live telecast of parliamentary proceedings and debates. This was in part, due to the fact that the Opposition coalition was in control of five states and the mainstream media had no alternative but to cover news about the new incumbents of these states. In April 2008, immediately after the General Elections, in a gesture towards the freedom of speech and expression, Home Minister Syed Hamid Albar pledged to uphold media freedom by promising reviews on restrictive laws pertaining to the press. He said, [F]or me, the bottom line is that we need press freedom in order for us to have a check and balance in government. 3 He also said, I have told my officers that I want to have a re-look at the Printing Presses and Publications Act so that we can move with the times. 4 Despite these pledges, freedom of speech and expression remained one of the most severely violated of our freedoms in The year saw critics and opposition politicians being harassed and prosecuted. For the very first time in Malaysia, several individuals were charged with sedition and criminal defamation for entries posted on their blogs while an array of repressive laws, including the Printing Presses and Publications Act (pppa), the Official Secrets Act (osa), and the Sedition Act, remained firmly in place and continued to be used by the government at its convenience. Post-2008 General Elections also witnessed the deepening politicisation of race and religion, thus creating an environment which further hampered the state of freedom of expression in the country. Repressive Legal Framework Laws like the Printing Presses and Publications Act 1984 (pppa), the Official Secrets Act 1972 (osa), and the Sedition Act 1948 are part of the powerful legal machinery that represses free speech in Malaysia. These laws create a culture of fear and a high level of self-censorship among the local media, even though freedom of speech and expression in Malaysia is guaranteed by Article 10 of the Federal Constitution. In particular, the pppa seriously curtails freedom of the press. The pppa, which covers newspapers, books, and foreign publications, gives the discretion to the Internal Security Ministry to grant and revoke newspapers publishing licenses. This Act makes it compulsory for mass circulation newspapers to have a publishing permit that must be renewed annually. Applications for a permit can be re- 64

65 Freedom of Speech and Expression jected by the minister whose decision cannot be challenged in a court of law, and a permit can be revoked anytime if a publication contains anything that is deemed to be prejudicial to public order or national security. Foreign papers and journals must pay large deposits that may be forfeited if the publisher does not appear in court to face charges of publishing materials deemed to be prejudicial to national interest. Ministry officials have the power to censor or ban offending foreign publications. The Sedition Act was introduced during the British colonial era to pre-empt contempt for the administration of justice and to quell popular discontent. The all-encompassing Sedition Act deems unlawful any act, speech, words, publication or any other thing that has any of the following seditious tendencies: to bring into hatred or contempt or to excite disaffection against any ruler or against any government; or against the administration of justice; or against the Yang di-pertuan Agong (king) or ruler of any state; to excite revolt by unlawful means; to promote feelings of ill-will and hostility between races or classes of the population; to question any matter, right, status, position, privilege, sovereignty, or prerogative established or protected by the provisions of Part III of the Constitution (provisions relating to citizenship) or Article 152 (national language), Article 153 (special rights of the ethnic Malays and natives of Sabah and Sarawak), or Article 181 of the Constitution (powers relating to the ruling chiefs of Negeri Sembilan). In addition, it is an offence to utter any seditious words or to print, publish, sell, offer for sale, distribute, or reproduce any seditious publications or import any seditious publications. Offenders face a fine of up to RM5,000 and/or imprisonment of up to three years, and a second offence carries a sentence of up to five years imprisonment. These restrictions work in tandem with the Constitution (Amendment) Act 1971 that makes it unlawful for anyone, including a Member of Parliament while debating in a parliamentary session, to question issues of citizenship, national language, ethnic Malay special rights, and matters pertaining to the rulers. The osa, in addition, criminalises many acts and statements in the name of protecting state secrets. The provision that affects fundamental freedoms the most is the one stating that a conclusive certificate may be produced by the minister or public officer in charge to categorise any official document as an official secret. Such a classification cannot be questioned in court. This conclusive evidence makes it almost impossible to challenge a charge for any non-authorised possession or use of a document even though it may not be a secret or security risk, and its dissemination has public interest value. The penalty for violating the osa is imprisonment for up to seven years. Furthermore, other laws such as the Trade Unions Act 1959, the Societies Act 1966, the Universities and University Colleges Act (uuca) 1971 and the Police Act 1967, impose an array of restrictions on the exercise of freedom of association, freedom of assembly and related activities, and they also undermine the proper and favourable workings of the freedom of speech and expression. State Ownership and Control of the Media Compounding the above legal restrictions is the ownership and control of all mainstream newspapers, television, and radio channels by 65

66 Malaysia Human Rights Report 2008 the component parties of the ruling coalition, or held by media owners loyal to the ruling parties. For instance, Media Prima Berhad, a corporation which has close links with the ruling United Malays National Organisation (umno), owns English-language newspapers New Straits Times and Malay Mail, Malay-language dailies Berita Harian and Harian Metro, and television stations tv3, ntv7, 8tv and tv9. umno, the dominant political party in the bn coalition, owns Utusan Malaysia, the largest-selling Malay-language newspaper in Malaysia, while the Malaysian Chinese Association (mca), another component party of the bn, owns the largest-selling English-language daily in Malaysia, The Star. The ruling-bn government thus effectively controls the editorial policies of the media industry, resulting in the staunch pro-government perspective of the mainstream media in Malaysia. For instance, an analysis conducted by media monitoring groups Centre for Independent Journalism (cij), Writers Alliance for Media Independence (wami) and Charter 2000-Aliran on news coverage of six major newspapers in the country during the 12th General Elections revealed that a majority of the stories and space in the newspapers were dominated by bn candidates. The study, covering The Star, New Straits Times, The Sun, Utusan Malaysia, Malaysia Nanban and Makkal Osai, over a period from 25 February 2008 to 8 March 2008, revealed the following proportion of space given to pro-bn stories: Utusan Malaysia (82%), Malaysia Nanban (70%), Makkal Osai (66%), The Star (63%), New Straits Times (60%), and The Sun (43%). On the other hand, the highest percentage of space for proopposition news was found in Makkal Osai, which allocated 23% of its news on the elections to opposition parties and candidates. 5 In recent years, the Rimbunan Hijau timber tycoon Tiong Hiew King has taken control of four major Chinese-language newspapers Sin Chew Jit Poh, Guangming Daily, Nanyang Siang Pau, and China Press. Tiong, who owns Sin Chew Media Corporation Bhd., in October 2006, acquired Nanyang Press Holdings after the Malaysian Chinese Association (mca) announced its decision to sell off 21.02% of its controlling 44.4% stake in Nanyang Press Holdings to Tiong. The purchase increased Tiong s stake in Nanyang from 23.74% to 44.76%, and cemented Tiong s monopoly of the country s Chinese-language press. Of the six major Chinese newspapers, Oriental Daily and Penang-based Kwong Wah Daily are the only two not under Tiong s control. In April 2007, four Chinese-language dailies Sin Chew Daily, Guang Ming Daily, China Press and Nanyang Siang Pau were consolidated under one company owned by Tiong. This consolidation of major Chineselanguage dailies under one company has been criticised by media watchdogs, saying concentration of ownership under Tiong would curb competition and threaten press freedom, and further diminish diversity and plurality of information in the country. 6 Tiong s commercial interests are dependent on the patronage of the ruling coalition and this is evident in the slant of the media he controls. Racial and Religious Sensitivities Discussions on topics deemed sensitive for a multi-ethnic society have often been discouraged, censored or banned by the bn government over the years. However, this censorship does not seem to apply to the ruling party umno or the press it controls. The bn government has long justified its restrictions on freedom of speech and expression on the grounds of maintaining racial harmony and social order. In 2008, there were many instances of restrictions based on these grounds. In January 2008, the government renewed the publication licence for the Malaylanguage segment of Catholic weekly The 66

67 Freedom of Speech and Expression Herald, reversing the December 2007 decision to terminate the weekly s licence of its Malaylanguage segment. Despite the renewal, the Cabinet decided that the weekly could not use the word Allah in its publications as the use of the word is deemed by the government to be exclusive to Islam. 7 In March, the weekly filed a judicial review against the government to challenge the decision to ban the word Allah from being used by The Herald in its publications. (See discussion on The Herald s judicial review in Chapter 6: Freedom of Religion.) In August, The Herald was reported to have been issued a show-cause letter by the Home Ministry for publishing political articles. 8 As soon as the General Elections ended in March 2008, umno-owned Malay-language dailies looked on the results as a threat to the special position of the Malays and racial harmony in the country. For instance, on 15 March 2008, just one week after the General Elections, Malay-language broadsheet Utusan Malaysia carried a news story on its front page entitled Pembangkang perlu bertanggungjawab 9 [ Opposition must be responsible ] a warning issued by the Prime Minister to opposition leaders to be responsible in making statements which touched on the sensitivities of certain ethnic groups in the country, including the special position of the Malays. On the same page, the paper also published two other news pieces, entitled 3,000 bantah hapus deb di. P. Pinang 10 [ 3,000 against the abolition of nep in Penang ] and Mansuh deb hina Melayu 11 [ Abolition of nep an insult to Malays ], which suggested that the Democratic Action Party (dap) s proposal to abolish the New Economic Policy (nep), an affirmative action policy introduced in 1971 as a temporary measure aimed to restructure society and eradicate poverty, 12 would jeopardise the position of Malays vis-à-vis non-malays in Malaysia. In May 2008, opposition Member of Parliament, Karpal Singh was summoned by the police for questioning after police reports were lodged against him. The umno Youth, in its police statement on 5 May 2008, had asked the police to investigate Karpal Singh under the Sedition Act 1948 for causing uneasiness among the people of Perak particularly with regard to the powers of the Sultan. 13 This was in response to news reports which quoted Karpal as saying that the Sultan of Perak had no jurisdiction over the transfer of Director of the Perak Islamic Religious Department, Jamry Sury, out of the department. The issue surfaced after the Sultan of Perak had intervened 14 in the decision of the Menteri Besar (chief minister) of Perak, a Pakatan Rakyat-led state, to transfer Jamry Sury out of the Perak Islamic Department. Karpal was reported to have responded to this by saying, Sultan Azlan Shah did not have any say, as the Ruler of Perak, in the decision made by the state government and, by law, the palace cannot order the state government to reinstate Jamry. 15 In June, a forum about the Malaysian social contract organised by the Malaysian Bar Council prompted calls by individuals and groups, including umno vice-president Muhyiddin Yassin and umno Youth Chief Hishamuddin Hussein, to disallow open forums discussing this issue and those pertaining to the concept of Ketuanan Melayu (Malay Supremacy). Muhyiddin Yasin was quoted as saying, [I]f such a forum is held, it can touch on sensitive issues and can violate the Sedition Act. 16 The organisers nevertheless went ahead with organising the forum on 28 June On 29 June 2008, the Prime Minister said, There is no need to discuss these issues because it gives rise to various reactions from the Malays, including creating animosity and racial tension. [...] I do not understand where the loss is if these issues are not discussed. No need to discuss. 17 In October 2008, the Conference of Rulers reiterated the Prime Minister s state- 67

68 Malaysia Human Rights Report 2008 ment not to question the social contract with a press statement warning that [t]he actions of certain quarters in disputing and questioning these matters [ ] had caused provocation and uneasiness among the people. 18 Similar intolerance towards matters of race and religion was seen in another forum organised by the Malaysian Bar Council to discuss the issue of conflict of civil and Syariah laws facing families caught between the separate jurisdictions of these laws. The forum, held on 9 August 2008, was forcibly disrupted by a mob led by members of the ruling United Malays National Organisation (umno), the opposition People s Justice Party (Parti Keadilan Rakyat, pkr), Pan-Malaysian Islamic Party (Parti Islam Se-Malaysia, pas), and also several other Malay- and Islamic-based ngos. (See also Chapter 6: Freedom of Religion and Matters Pertaining to Religion.) On the next day, the Johor umno Youth lodged a police report against the Bar Council for organising the forum. This was followed by a statement by the Prime Minister on 11 August 2008, warning that there should be no more discussions which touch on the sensitivities of race and religion. Commenting on the Bar Council-organised forum, Abdullah Badawi also said that the Federal Constitution must not be questioned. 19 Such warnings against discussions of matters relating to race and religion were not only made by political leaders, but also by the police, as was seen in November, when Inspector-General of Police Musa Hassan warned non-muslim ngos not to interfere in matters involving Islamic laws or risk severe actions by the police. 20 This warning was made following the criticisms made by various ngos against a fatwa issued by the National Fatwa Council in October to curb the lifestyle of teenage girls who prefer the male lifestyle including dressing up in men s clothes [ and] engage in sexual activities. 21 In response, ngos criticised the fatwa as sexist and discriminatory which could lead to arbitrary arrests and undue harassment towards Muslim women. 22 On 7 November 2008, several civil society groups and individuals staged a protest in Kuala Lumpur against the issuance of the fatwa. (See discussion on fatwa in Chapter 6: Freedom of Religion.) Media Blackout and Self-Censorship Despite the relative improvement in the coverage given to the opposition in the mainstream media, especially after the huge inroads made by the opposition Pakatan Rakyat in the General Elections, there were still a number of cases reported throughout 2008 in which news blackouts were ordered. Various government officials also made known their displeasure towards the press for highlighting unflattering issues concerning the government and its related interests. One such instance was documented in February 2008, just prior to the General Elections, when Chinese-language daily Oriental Daily was reported to have issued a set of editorial guidelines to its reporters on elections coverage. This set of guidelines among others, restricted the paper from publishing any front-page cover stories on opposition parties, mentioning the opposition s mission to deny the incumbent government its two-thirds majority in the Parliament, and covering any contentious issues like the call for more Chinese vernacular schools. At the time when the guidelines were issued, Oriental Daily was still awaiting the renewal of its licence which had been pending since December On 14 October 2008, the Malaysian Communications and Multimedia Commission (mcmc) prohibited private broadcaster ntv7 from broadcasting live the debate between candidates for the bn-component party Malaysian Chinese Association (mca) s vice president post, citing late application. 68

69 Freedom of Speech and Expression Control over Publishing Permits and Publications Publishing permits and publications are severely curtailed by the government, especially through the pppa. Newspapers and organs of political parties operate within a tight democratic space and are compelled to apply for publication permits which are renewed annually. One clear example of this restriction can be seen in the case of Suara Keadilan, the official news organ of the opposition People s Justice Party (Parti Keadilan Rakyat, pkr), which obtained its publishing permit only on 21 April 2008 three years after it first made its application in Even for other opposition political parties which are allowed to publish their official newsletters, their circulation is strictly limited to party members only. However, just several days before Suara Keadilan was granted its permit on 16 April 2008, the Home Ministry refused to grant Tamil-language newspaper Makkal Osai its publication permit for allegedly breaching various guidelines. The newspaper was finally granted its permit on 24 April Makkal Osai is widely perceived to be critical of the leadership of the Malaysian Indian Congress (mic), a component member of the ruling-bn. The paper had given prominent coverage to the opposition parties and also to the mass rally organised by the Hindu Rights Action Force (hindraf) in November The paper is also linked to the former deputy president of the mic, S. Subramaniam, who has fallen out of favour with the political party s president, Samy Vellu. This was not the first time that Makkal Osai faced such difficulties. In August 2007, its licence was suspended for one month after the daily s publication of an image of Jesus Christ, holding a cigarette in one hand and a beer can in the other, was published on 21 August 2007 and was deemed unacceptable and a danger to public order. The suspension came even after the daily had made a public apology which was accepted by the Catholic Church in Malaysia. In September, three newspapers Sin Chew Daily, The Sun and Suara Keadilan were issued show-cause letters by the Home Ministry. The three newspapers were asked to show cause why action should not be taken against them and to provide proof that they had not breached publication guidelines. The show-cause letters were issued in the same week when three individuals blogger Raja Petra Kamaruddin, opposition member of Parliament Teresa Kok, and journalist Tan Hoon Cheng were arrested under the isa. (See Chapter 1: Detention without Trial.) The banning of book titles and publications, especially with regard to books on religion, is instructive. Front cover of the book, Muslim Women and the Challenge of Islamic Extremism published by NGO Sisters in Islam, which was banned by the government in August (Photograph courtesy of Malaysiakini) 69

70 Malaysia Human Rights Report 2008 In August 2008, two books, including one by the ngo Sisters in Islam (sis), were banned by the Home Ministry because they contained twisted facts that can undermine the faith of Muslims. According to Publications and Quranic Texts Control Division principal assistant secretary Abdul Razak Abdul Latif, the two titles, Pelik Tapi Benar Dalam Solat [ Strange but True in Prayers ] and Muslim Women and the Challenge of Islamic Extremism, were banned by a prohibition order under Section 7(1) of the Printing Presses and Publications Act eleven books written in English and Malay about Islam were banned for deviating from true teachings. In 2008, a total of 15 book titles were banned by the government. The Ministry of Home Affairs, in its official website, listed a total 1,434 book titles banned in Malaysia since June 1977 until July On 14 January 2008, the Internal Security Ministry seized 163 non-islamic books that allegedly had the word Allah for the purpose of studying them in an operation to check publications from tarnishing public order and morality. On 30 January 2008, A poster by Sisters in Islam for its campaign against the government s banning of books. 70

71 Freedom of Speech and Expression (Source: Official Website of the Ministry of Home Affairs) 71

72 Malaysia Human Rights Report 2008 Media Council On 26 June 2008, Home Minister Syed Hamid Albar said that the government was formulating a national media policy to regulate press freedom in the country. 24 Two months later, on 6 September 2008, Minister of Information Ahmad Shabery Cheek reported that the government would set up a National Media Council which would function as a monitoring body for the media and ensure that media reports were made based on true journalistic ethics. 25 This was in response to the controversy surrounding Ahmad Ismail, an umno division leader in Penang, who was reported to have made allegedly racist remarks but which he claimed was quoted out of context by the media. The idea to set up a statutory body to regulate the professional conduct of all journalists in print, broadcast, and the Internet was first put forward by the government in This proposed body, according to the draft proposal at that time, would be headed by a chairperson who must be at least an appellate court judge and made up of media representatives, academics, professionals, and representatives from ngos. Their duties were to include helping to preserve press freedom in accordance with Article 19 of the Universal Declaration of Human Rights (udhr); maintaining a certain standard of journalism; and hearing complaints with powers to censure. The proposal was handed over to the Human Rights Commission of Malaysia (suhakam) for further deliberation. Civil society groups, including the National Union of Journalists, were of the view that the media should be independent, self-regulated, and made up of an equal composition of public and media representatives. The nuj, at that time, also held that the pppa should first be repealed before any self-regulating mechanism is to be instituted. 26 In May 2004, the government announced that it would not embark on the proposal of setting up a media council, citing poor response from editors and journalists as the reason. 27 When the idea of a media council was revived in 2008, civil society groups working on media freedom voiced concerns that the setting up of a media council would create an additional layer of control over the media. For instance, two Malaysian media watchdogs described the proposal as a response from the government to tighten its control on the media when the reportage affects its reputation. 28 Considering that the proposal for a media council was revived in the midst of a national controversy arising from an alleged racist statement made by a politician, the groups also observed, Every time the media highlight political statements, they are sanctioned for being irresponsible. 29 The groups also urged the government to move away from its conventional top-down control on public discussion and the freedom of the press. 30 In November, the government held a consultation with journalists, bloggers, and civil society groups, on its latest proposal. Despite this, according to cij, it is very likely that the government will ignore the objections of these groups, and carry on with its plan to establish the media council. 31 Attacks on the Media and Journalists The deteriorating state of freedom of expression in the country is also manifested in the general lack of respect for the journalism profession and the various efforts by both state and non-state actors to stifle critical and dissenting views. Journalists are often exposed to threats, intimidations, arrests, and physical assault while performing their duties. 72

73 Freedom of Speech and Expression Attacks by State Actors In June, journalists were barred from entering the Parliament lobby where press conferences are usually held. In a protest against this denial of access, journalists from all print, online and electronic media boycotted all press conferences held outside the chamber, covering only the proceedings in the Parliament chamber. The ban was lifted after one day. On 26 January 2008, Malaysiakini journalist Syed Jaymal Zahiid was arrested by the police while covering a rally against rising prices. Fifty-six other people were arrested at the rally. Despite having identified himself as a journalist, Syed Jaymal was arrested by the police when he questioned the police officer on the arrests of the protestors. He was charged with obstructing a police officer from performing his duty. (See Chapter 5: Freedom of Assembly and Association.) Another journalist from Malaysiakini was arrested together with 23 others in a peaceful assembly of about 300 people on 9 November 2008 to commemorate the first anniversary of the mass rally organised by the Coalition for Clean and Fair Elections (bersih) on 10 November The fact that this was the second journalist from Malaysiakini to be arrested by the police while covering rallies in 2008 suggests that those who give wide coverage to views deemed to be adverse to the government are often targeted for harassment. Malaysiakini has in the past endured threats by the government and the police because of its editorial policies. 32 On 6 May 2008, the police questioned journalists R. Nadeswaran and Terence Fernandez from The Sun after they had exposed the transferring out of funds by the Association of Wives of Selangor Assemblymen (balkis) soon after the bn lost the Selangor state to Pakatan Rakyat in the General Elections. On 12 September, a journalist for the Chinese-language newspaper Sin Chew Daily, Tan Hoon Cheng, was arrested and detained under the Internal Security Act 1960 (isa) for her report regarding the derogatory racist remarks made by a leader of the ruling party, the United Malays National Organisation (umno), against the Chinese community in Malaysia. (See Chapter 1: Detention without Trial.) Attacks by Non-State Actors Besides the above-mentioned cases, journalists also sometimes face attacks from non-state actors. As documented by the local media watchdog cij, they include the following in 2008: 33 On 26 February 2008, Harian Metro reporter Mohd. Rashidi Karim and Berita Harian reporter Adha Ghazali were physically assaulted by a group said to be bn supporters while covering the election campaign in the Perlis state capital Kangar. On 27 May 2008, around 20 individuals armed with clubs, parangs and clubs turned on Utusan Malaysia photographer Roy Azis Abdul Aziz and Merdeka Review journalist Chow Z Lam after the two caught them in action against residents of Bandar Mahkota Cheras (Kuala Lumpur) attempting to demolish a barricade preventing access to a toll-free road. On 15 July 2008, four photographers covering the televised debate between pkr adviser Anwar Ibrahim and Information Minister Ahmad Shabery Cheek were assaulted by security personnel at the Dewan Bahasa dan Pustaka (Institute of Language and Literature), where the debate was held. Photographers Zulkifli Ersal of The Sun, Khairul Hasnor Mohd Khalili of The Edge, Othman Abu Bakar from The Edge Financial Daily, and camera person Hanafiah Hamzah from 73

74 Malaysia Human Rights Report 2008 Channel News Asia were also prevented from taking pictures of the speakers by security personnel. On 3 August 2008, a Guang Ming Daily photographer covering Anwar Ibrahim s public speech was assaulted by a group of people who were alleged to be pkr security personnel. pkr president Wan Azizah apologised over the incident but the party denied the attackers were from their security team. On 18 August 2008, during the Permatang Pauh by-election campaign, two photographers from New Straits Times and hbl Press Agency were beaten up by a group after the former took pictures of them harassing a passing vehicle belonging to the bn. On 11 September 2008, pkr barred Utusan Malaysia reporter from covering its function in Negeri Sembilan. On 16 December 2008, while on duty covering a meeting of the Malaysian Indian Congress (mic, a component party of the ruling-bn), Makkal Osai reporter S. Venugar was warned by mic president S. Samy Vellu not to publish his story. The party president also seized a camera from another photographer. Tightened Control over the Internet and Attacks on Bloggers The government tightened its control over the Internet in For the first time, several individuals were charged with sedition for writings or comments posted on the Internet. There were also numerous attacks launched against political bloggers while several websites were shut down in the year under review. The government s efforts to tightly control Raja Petra Kamaruddin arrested by the police in May under the Sedition Act for an article posted in his blog. (Photograph courtesy of Malaysiakini) 74

75 Freedom of Speech and Expression the Internet contravenes its 10-point Bill of Guarantees conceived in 1996 when the government said that it [will] ensure no Internet censorship 34 and its pledge in the Aide- Memoire of its candidature to the un Human Rights Council, that it will ensure the promotion of a free media, including in cyberspace. 35 (Emphasis added.) On 2 May 2008, seven policemen raided the home of popular blogger, Raja Petra Kamaruddin, and seized two of his computers. He was interrogated by the police for two hours and was told that he was being investigated under the Sedition Act This was in connection to an article titled, Let s send the Atlantuya murderers to hell, posted on his blog on 25 April The article, among other things, alleged that Malaysian Deputy Prime Minister Najib Razak and his wife, Rosmah Mansor, were involved in the October 2006 murder of Atlantuya Shaariibuu, a claim that has been denied by the Deputy Prime Minister himself. On 30 April 2008, the Deputy Prime Minister issued a statement through his press secretary, denying all allegations made by Raja Petra. 36 On 6 May 2008, Raja Petra Kamaruddin was charged with sedition under Section 4(1)(C) of the Sedition Act. Another individual, former banker Syed Akbar Ali was also charged with sedition on the same day as Raja Petra Kamaruddin. Syed Akbar Ali has been accused of allegedly posting seditious comments about Malays and Islam on one of Raja Petra Kamaruddin s article entitled, Malaysia s organised crime syndicate: All roads lead to Putrajaya. Raja Petra Kamaruddin and Syed Akbar Ali are the first individuals in Malaysia to be charged under the Sedition Act 1948 for postings in the Internet. On 17 July 2008, Raja Petra Kamaruddin was again arrested and charged with Raja Petra Kamaruddin arrested by the police in May under the Sedition Act for an article posted in his blog. (Photograph courtesy of Malaysiakini) 75

76 Malaysia Human Rights Report 2008 criminal defamation under Section 500 of the Penal Code for making a statutory declaration on 18 June 2008, which contains allegations implicating Rosmah Mansor, the wife of Deputy Prime Minister Najib Razak, and two others, in the high-profile murder of Mongolian national Altantuya Sharibuu. Raja Petra had stated that the statutory declaration was intended to urge all these parties who have been duly informed and have knowledge of this matter to come forward to reveal the truth so that the police are able to conduct a proper and thorough investigation into the murder of Altantuya. 37 No investigation appeared to have been made by the police on those names who were implicated in Raja Petra s statutory. On 17 September 2008, blogger Syed Azidi Syed Aziz was arrested at his home in the northern Peninsula Malaysia state of Kelantan. He was detained for three nights under the Sedition Act for investigations over an image of the national flag upside down published in his blog. In August, the hugely-popular and widely-read blog, Malaysia Today was blocked by Internet service providers under the instructions of the Malaysian Communications and Multimedia Commission (mcmc). mcmc chief operating officer was reported as saying that the site was blocked because they found that some comments on the website were insensitive [and] bordering on incitement. 38 On 11 September 2008, the ban on the website was lifted. Morality and Artistic Expression Raja Petra Kamaruddin arrested by the police in May under the Sedition Act for an article posted in his blog. (Photograph courtesy of Malaysiakini) On 12 September 2008, Raja Petra was arrested and detained under the isa for allegedly inciting racial tension. He was given a two-year detention order on 23 September Two other individuals were arrested on the same day, one of them a journalist. Raja Petra, however, was released on 7 November 2008 after Shah Alam High Court Judge Syed Ahmad Helmy ruled that the Home Minister who signed the two-year detention order of Raja Petra had not followed proper procedure, and thus making his detention unconstitutional and illegal. (See Chapter 1: Detention without Trial.) On 9 August 2008, the Kuala Lumpur pas Youth called for the ban on Canadian singer, Avril Lavigne s concert, scheduled to be held on 29 August On 19 August, the Ministry of Unity, Culture, Arts and Heritage scrapped Avril Lavigne s concert, but reverted its decision on 23 August Another serious violation of freedom of expression is the denial of choice of dressing. Under several state Syariah enactments, it is an offence for men to dress as women. 39 Exacerbating the existing restrictions, in October 2008 the National Fatwa Council issued a fatwa (edict) which ruled that it is forbidden in Islam for young women to behave like men and engage in lesbian sex. (See Chapter 6: Freedom of Religion and Matters Pertaining to Religion.) 76

77 Freedom of Speech and Expression Summary After the 12th General Elections, the bn government attempted to regain support by pledging to improve press freedom and ensuring fairer reporting by the mainstream media. However, events throughout 2008 have shown that freedom of speech and expression remained one of the most severely violated that year saw attacks by the bn government on bloggers and alternative Internet news portals even when the credibility of governmentlinked mainstream newspapers remained in question. Individuals were charged with sedition for postings on the Internet, while a popular news website was shut down. As usual, bn government justified its restrictions on freedom of speech and expression by using the hackneyed excuse of maintaining racial harmony and social order. 77

78 Malaysia Human Rights Report End Notes Reporters Sans Frontières, Press Freedom Index 2008: Only peace protects freedoms in post 9-11 world, (last accessed: 20 April 2009). Ibid. pkr finally gets permit for Suara Keadilan after waiting 8 years, Malaysiakini, 20 April 2008, com/news/81660 (last accessed: 20 April 2009). Ibid. Centre for Independent Journalism, 29 March 2009, Press statement, Utusan tops as the most pro-bn paper. See, for instance, Southeast Asian Press Alliance, 12 February 2007, Press statement: Chinese media merger harms competition at home and abroad, Centre for Independent Journalism, 6 February 2007, Press statement: Media Merger Harms Competition Home and Abroad, php?option=com_content&task=view&i d=254&itemid=8 (last accessed: 20 April 2009). Cabinet: Allah for Muslims only, The Sun, 4 January Herald gets show cause letter, Malaysia kini, 11 August 2008, (last accessed: 15 June 2009). Pembangkang perlu bertanggungjawab, Utusan Malaysia, 15 March 2008, asp?y=2008&dt=0315&pub=utusan_ Malaysia&sec=Muka_ Hadapan&pg=mh_04.htm (last accessed: 15 June 2009). 3,000 bantah hapus deb di P. Pinang, Utusan Malaysia, 15 March 2008, asp?y=2008&dt=0315&pub=utusan_ Malaysia&sec=Muka_ Hadapan&pg=mh_03.htm (last accessed: 15 June 2009). Mansuh deb hina Melayu, Utusan Malaysia, 15 March 2008, asp?y=2008&dt=0315&pub=utusan_ Malaysia&sec=Muka_ Hadapan&pg=mh_08.htm (last accessed: 15 June 2009). Second Malaysia Plan ( ) (p. 1). Perak Umno Youth Lodges Police Report Over Karpal s Statement, Bernama, 5 May 2008, bernama/v5/newsindex.php?id= (last accessed: 21 April 2009). The Sultan of Perak ordered the retraction of the transfer order made by the Perak Menteri Besar issued as the transfer order was made without seeking prior consent from the Sultan as the head of Islam and the Raja Muda of Perak as president of the Perak Islamic Affairs and Malay Customs Council. Perak Umno Youth lodges police report over Karpal s statement, Bernama, 5 May 2008, bernama/v5/newsindex.php?id= (last accessed: 15 June 2009). 78

79 Freedom of Speech and Expression Prohibit open forums on social contract, The Star, 29 June 2008, news/story.asp?file=/2008/6/29/ nation/ &sec=nation (last accessed: 15 June 2009). No need for forum on Malay supremacy, says Abdullah, The Star, 30 June Rulers defend social contract, The Star, 17 October 2008, my/news/story.asp?file=/2008/10/17/ nation/ &sec=nation (last accessed: 18 November 2008). Amaran kepada semua Jangan anjur lagi forum sentuh sensitiviti kaum, agama Perdana Menteri [Warning to all Do not organise any more forums which touch the sensitivities of race, religion Prime Minister] Utusan Malaysia, 12 August igp to Non-Muslims: Stay out of Muslim matters, The Star, 13 November 2008, asp?file=/2008/11/13/nation/ &sec=nation (last accessed: 18 November 2008). Malaysia Muslim body issues fatwa against tomboys, Reuters, 24 October 2008, (last accessed: 12 November 2008). See for instance, Sisters in Islam, 21 November 2008, Press statement, Fatwa on tomboys is regressive. See the Ministry of Home Ministry s official website: index.asp (last accessed: 20 April 2009) Ministry and press to work on National Media Policy, The Star, 26 June 2008, news/story.asp?file=/2008/6/26/ nation/ &sec=nation (last accessed 21 April 2009). Media Urged To Exercise Caution When Interpreting Certain Issues, Bernama, 6 September 2008, bernama.com/bernama/v5/newsindex. php?id= (last accessed: 21 April 2009). See suaram (2006) Malaysia: Human Rights Report 2005 Civil and Political Rights, Petaling Jaya: suaram Kommunikasi (pp ). Ibid. Centre for Independent Journalism & Writers Alliance for Media Independence, 8 September 2008, Press statement: Media council not a solution to irresponsible politics. Ibid. Ibid. Centre for Independent Journalism (2009) Malaysia: Freedom of Expression 2008, Kuala Lumpur: cij (p. 8). For example, in January 2003, the police raided the office of Malaysiakini and confiscated 19 computers after the umno Youth lodged a police report against the news organisation for publishing an allegedly seditious letter. The letter questioned the issues of Malay privileges, race relations, poverty and the government. See suaram (2004) Malaysia: Human Rights Report 2003 Civil and Political Rights, 79

80 Malaysia Human Rights Report Petaling Jaya: suaram Kommunikasi (p. 104). Centre for Independent Journalism (2009) op. cit. (p. 15). msc Malaysia Bill of Guarantees (point 7), MSC+Malaysia+Bill+of+Guarantees (last accessed: 15 June 2009). Malaysia (2006) Aide-Memoire; Malaysia s Candidature to the United Nations Human Rights Council, dated 28 April 2006 (p. 1). Deputy Prime Minister Dato Seri Mohd Najib Tun Razak, Press statement, dated 30 April 2008, org/2008/content/view/6840/84 (last accessed: 15 June 2009). Raja Petra Kamaruddin, Statutory Declaration, signed at the Kuala Lumpur High Court, dated 18 June Malaysia Today blocked! Order from mcmc, Malaysiakini, 27 August 2008, news/88683 (last accessed: 12 November 2008). In suaram s Human Rights Report 2007, we documented the case of Ayu, a transsexual, who was seriously beaten by officials from the Melaka Islamic Religious Affairs Department (Jabatan Agama Islam Melaka, jaim) for committing the offence of men dressing up as women in a public space. See suaram (2008) op. cit. (p. 127). 80

81 chapter 4: freedom of information

82 Malaysia Human Rights Report 2008 From the time Prime Minister Abdullah Ahmad Badawi took over the leadership of the country in 2003, many of his pledges for reforms, particularly those relating to transparency and integrity were not translated into action. This contributed to the lack of substantial improvements pertaining to freedom of information in Malaysia. In 2008, the results of the 12 th General Elections dramatically changed the political landscape of the country. It brought about two positive developments with regard to freedom of information: firstly, there was a greater representation of the opposition coalition, Pakatan Rakyat, in the Parliament at the federal level, while five states fell under the control of Pakatan Rakyat; secondly, the overwhelming swing of the popular vote from the Barisan Nasional (bn) to Pakatan Rakyat signalled the electorate s disapproval of the slow implementation of the BN s promises. This new political scenario saw some minor improvements relating to freedom of information. They were, among others: The pledge by two Pakatan Rakyat state governments (Penang and Selangor) to enact state legislation pertaining to freedom of information. The announcement by the Works Ministry to disclose the concession agreements between the government and 11 private highway toll companies in November. Still, their pledges remain to be actualised. To date, these two Pakatan Rakyat state governments in Penang and Selangor have not properly made good their promise to declare the assets of their executive council members. The Selangor state government made a feeble attempt which was unacceptable. 1 Despite these minor inroads, restrictive laws like the Official Secrets Act (osa), enacted in 1972, remained firmly in place, while the federal bn government remained resistant to proposals for a freedom of information law. While some 70 countries have passed freedom of information laws, a Minister in the Prime Minister s Department said in May 2008 that there was no need for such laws because the Cabinet could decide at any time to declassify documents as it saw fit. In recent years, Malaysia s position in Transparency International s Corruption Perception Index has been continuously low. In 2006, Malaysia was ranked 44 th in the world, a drop of five places from the previous year, while in 2007, it ranked 43 rd. In 2008, Malaysia s placing continued to drop in the index, down another four rungs, to 47th place out of 180 countries surveyed. A Fundamental Human Right Freedom of information is recognised as a fundamental human right, as stated in Article 19(2) of the Universal Declaration of Human Rights (udhr) 1948, 2 Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers. (Emphasis added.) But although freedom of speech and expression is a fundamental right in Article 10(1)(a) of the Federal Constitution of Malaysia, 3 freedom of information is not explicitly mentioned in the 1957 Constitution. Still, freedom of information, particularly in relation to government documents, is closely linked to transparency, accountability and good governance values pledged by Prime Minister Abdullah Ahmad Badawi When he came into office. The Prime Minister even set up an Institute of Integrity in 2004 to support the National Integrity Plan, which was aimed at promoting integrity and battling corruption in the country. 4 82

83 Freedom of Information Restrictions on Freedom of Information Restrictive legislation, particularly the osa, and a pervasive culture of secrecy severely hamper the right to know and freedom of information in the country. Information ranging from statistics about housing development to data regarding public funds is classified. Malaysians have thus been denied access to information on matters of public interest. Based on an ordinance in 1911, the osa makes it an offence to publish without authorisation any information classified as top secret, secret, confidential or restricted by public officers. Section 2 of the osa interprets the term official as relating to any public service, while official secret is defined as: [A]ny document specified in the Schedule and material relating thereto and includes any other official document, informa tion and material as may be classified as Top Secret, Secret, Confidential, or Restricted, as the case may be, by a Minister, the Menteri Besar or Chief Minister of a State or such public officer [ ]. 5 Because of the loose definition and broad interpretation of the Act as to what qualifies as an official secret, it is unclear how much information may be subject to classification as a state secret. This means that any information, the variety of which is potentially unlimited, may be classified by the government as official secret. There are also no clear exceptions for secrecy as required under international law, such as where disclosure would pose a real and serious risk to national security. 6 Examples of Undisclosed Information Among crucial information of public interest that had been classified under the osa was the Air Pollution Index (api), which was classified in 1997 when the country was hit with the problem of haze. It was reported that the information on air pollution was held back from the public because it could affect tourism in Malaysia. This information was, however, declassified by the government and revealed to the public in Another crucial area of information that is shrouded in secrecy is the Environmental Impact Assessment (eia). The eia is a process of evaluating the costs and benefits of a project, and allows alternatives to the proposed project to be considered. Although the process includes public feedback, it has not always been accessible to the public and the communities affected by the projects proposed. The problems pertaining to the eia include the lack of transparency in the process of appointing an eia consultant, the language of the report, and the narrowly defined issues dealt with in an eia. 8 For example, the eia for the Bakun dam project in the eastern state of Sarawak is also classified as an official secret. Although it was made public when first published, the document became unavailable during the 1990s. 9 This has been pointed out as problematic since such changes to the status of the document could lead to heavy fines or prison terms for those in possession of a copy. 10 In 2006, the Selangor state s water tariff was increased by 15%, raising queries from residents about the justification for the price hike. Demands to make public the water concession agreement between the water concessionaire and the state government, along with the audit report on the concessionaire, went unheeded. The state government, then under bn rule, insisted that the details of the agreement could not be made public on the grounds that the agreement was secret and confidential. Similarly, an agreement between the government and a toll concessionaire was 83

84 Malaysia Human Rights Report 2008 classified as secret when there were calls for the document to be made public in the wake of a hike in toll prices in early In February 2007, then-works Minister Samy Vellu said that the Prime Minister had agreed to make the documents public. It took more than a year, until 17 October 2008, before the Cabinet declassified the toll concession documents. The government s negotiations with the United States on the Free Trade Agreement (fta) since June 2006 have also been shrouded in secrecy. Various groups and sectors have raised their concerns as previous ftas between the United States and other countries have had a negative impact on the latter s agricultural and manufacturing sectors. This concern prompted appeals for the government to call off the talks. Exacerbating the situation is the reluctance of the government to disclose any information about the talks to its own people. A coalition of various groups and non-governmental organisations (ngos) urging the government to halt the talks have persistently requested that the Ministry of International Trade and Finance (miti) provide more information to the Malaysian public regarding the fta talks, but the ministry has rejected its request despite the coalition s willingness to exchange correspondence on the issue. The government has also failed to make public statistical information on the death penalty in the country despite calls for it to do so by human rights groups. In April 2008, Amnesty International, in its report Death Sentence and Executions in 2007, noted, Amnesty International remains concerned that executions may have taken place in Mongolia and Malaysia. However, due to the secretive nature of the use of the death penalty the organization was unable to obtain reliable information. 11 This statement was, however, interpreted by government officials and the police, including Home Minister Syed Hamid Albar and Deputy Inspector General of Police Ismail Omar, as accusing Malaysia of carrying out secret extra-judicial killings. Clarifying that its report merely asserted the fact that information on executions and the death penalty in Malaysia was shrouded in secrecy, the international human rights group once again called on the Malaysian government to release all statistics on executions and death sentences in Malaysia. 12 However, as of December, no such information was disclosed by the government. In May, the government rejected a request by dap member of Parliament Liew Chin Tong for a parliamentary written reply on the maintenance cost for each Royal Malaysian Air Force fighter plane and the average aviation duration flown for each year since 2004, considering the matter an official secret. 13 Official information relating to two significant events in Malaysian ethnicrelations history has also been kept secret. The government has refused to make public the report on the Kampung Medan ethnic clashes between 8 and 23 March The clashes resulted in six reported deaths and scores of others injured. Not only were official records of the clashes in Kampung Medan kept away from the public eye, a book documenting the incident was also banned under the Printing Presses and Publications Act (pppa) Authored by suaram secretariat member K. Arumugam based on research and eyewitness accounts of the incident, the book titled March 8 was banned in December To this date, the government has failed to bring to justice any of the perpetrators who committed the racist crimes in Kampung Medan. Similarly, official information relating to the nation s worst racial riot, the May 13 Incident which occurred in 1969, have been classified as secret to this day. The causes and events of the riot, which resulted in the 84

85 Freedom of Information loss of lives of 196 persons and wounded 180 according to official figures, 14 have been largely kept secret from the public. In 2007, there were renewed calls to declassify government documents pertaining to the 1969 riots after the release of a book by suaram director Kua Kia Soong, based on declassified documents in Britain. 15 However, in July 2007, a Minister in the Prime Minister s Department said that official documents would not be declassified by the government. In a parliamentary written reply, the minister said that the documents will not be declassified as the government has investigated the incidents and amended policies since the 1969 incident; thus there was no need for another investigation. 16 Persecution and Prosecution of Whistleblowers The osa has been often invoked to silence the opposition and whistleblowers, despite the existence of the government s National Integrity Plan, which specifically encourages Malaysians to be whistle blowers. While the opposition and whistleblowers have been threatened and even prosecuted for revealing official secrets, other quarters potential investors, for instance have been given access to information that was otherwise classified as secret. One such case documented in recent years was: In January 2007, the Malaysian police summoned four opposition party leaders Hatta Ramli (Pan-Malaysian Islamic Party/Parti Islam Se-Malaysia, pas), Ronnie Liu (Democratic Action Party, dap), Tian Chua and Khalid Ibrahim (People s Justice Party/Parti Keadilan Rakyat, pkr) under the osa for disclosing details concerning a toll concession agreement between the government and a highway concessionaire, Lingkaran Trans Kota Sdn. Bhd. (litrak). The four revealed that the government had guaranteed profits to concessionaires at the expense of road users. The document was exposed amidst growing calls for the disclosure of toll concession agreements in the wake of the steep hikes in toll charges. Following the revelation of the document, Works Minister Samy Vellu suggested to the Cabinet that the Attorney -General take action against those who had stolen and exhibited the toll concession agreements. 17 The four politicians were then called for questioning and threatened with charges for disclosing classified information, an offence punishable by up to seven years of imprisonment under Section 8 of the osa. However, the very same information revealed by the four was said to have been already published in the toll concessionaire s prospectus for institutional investors in Such inconsistent and selective revelation of information by the government was also seen when details from a classified agreement between the Selangor state government and water concessionaire Syarikat Bekalan Air Selangor Sdn. Bhd. (syabas) had reportedly been revealed to potential investors in a report in 2005 without any consequence. However, when the Coalition against Water Privatisation (cawp) and the Malaysian Trades Union Congress (mtuc) strongly objected to the November 2006 water tariff increase, demanding to see the concession agreement and the audit report on syabas, the same information was said to be classified. The groups that demanded the release of the concession agreement and the audit report were informed that both documents had been classified as secret and confidential. 85

86 Malaysia Human Rights Report 2008 Another major obstacle to freedom of information which has been highlighted by civil society, including suaram in recent years was the absence of legislation to protect whistleblowers. In 2007, suaram highlighted in its annual human rights report the Anti- Corruption Agency (aca) s persecution of three individuals from pkr who revealed the V.K. Lingam videotape. Sivarasa Rasiah, Sim Tze Tzin and Anwar Ibrahim had lodged a report with the aca regarding the contents of the videotape which suggested high-level corruption in the judiciary. Instead of following up on the evidence, the three were given notice to reveal the source of the videotape. Failure to do so would be an offence under the aca Act and punishable by a fine to up RM10,000 or a maximum two-year jail term. The three refused to reveal the source of their videotape on the grounds that there was no law that would guarantee the latter s safety. However, no charges were pressed against the three. After much campaigning by civil society and opposition political parties for legislation to protect whistleblowers, Prime Minister Abdullah Ahmad Badawi announced in April 2008 that the government would implement reforms to boost the fight against corruption, including for the aca to be made a fully independent body. He also announced that new laws would be passed to protect whistleblowers and witnesses. 19 However, on 8 May 2008, a different position was taken by Minister in the Prime Minister s Department Nazri Abdul Aziz. During a parliamentary debate, when asked by a member of Parliament from pas whether the government would enact a Whistleblower Protection Act and Freedom of Information (foi) Act, Nazri said, We have no plan to enact any of these acts because although we have the Official Secrets, the Cabinet can decide on anything that need to be declassified at anytime. 20 However, he later clarified that what he meant was that the government had no intention to amend any existing Act and that there was as yet no legislation on whistleblower protection. Nazri further clarified that the government had not made an about-turn on its plan to enact laws to protect whistleblowers, as had been announced by himself and also the Prime Minister. 21 On 16 December 2008, the Witness Protection Bill was tabled for its first reading in Parliament by Nazri. The proposed bill, among others, outlined the following: 22 A witness could apply to be included in the protection programme. Besides an individual, an enforcement agency could also ask in writing for a witness to be protected. For a witness below the age of 18, parents or guardians must apply for the child to be included in the programme. The Witness Protection Bill also details what information a witness is expected to reveal before being accepted in the programme and that includes the witness s criminal record, earnings, immigration status, and his or her financial liabilities and assets. The director-general of the programme can also send the witness for a medical, psychological and psychiatric examination to determine suitability for protection. If the witness is found to have provided false information, he or she can be fined up to RM10,000 and be jailed for not more than five years or both. However, only the Attorney-General has the final word to decide if a person can be included in the programme or not. Witnesses whose application have been rejected can appeal in writing within 14 days. 86

87 Freedom of Information For those in the programme, a participants registry will be compiled which will have participant details, a new identity (if one is requested), address, previous records and date of participation and leaving of the programme. No one can have access to the registry except for the minister concerned, the Attorney-General and other authorised persons with written permission by the Attorney-General. Participants or ex-participants cannot divulge their involvement in this programme. Unless given a written approval, people can be sentenced to 20 years in jail if they expose how the programme works or if they give information regarding officers were involved. A person provided with a new identity cannot divulge his original identity. A participant (including one given a new identity and no longer a participant) can use the new identity for any proceedings or any other matter. A programme participant or ex-participant, if needed to be a witness in a criminal proceeding under the new identity, must declare his status before the proceeding begins. If the witness true identity has to be revealed, it must be done in a closed proceeding or else an order has to be issued that the true identity not be revealed. Anyone who flouts the requirement can be fined RM50,000 or jailed up to 10 years or both. As of end December 2008, the bill was still pending in the Lower House of the Parliament. Campaign for Freedom of Information Legislation In 2004, a coalition calling for a Freedom of Information (foi) Act came into being. The coalition, which was comprised of various organisations, including women, environmental and human rights groups, launched a campaign in September 2006 to lobby for the drafting and legislation of an foi Act in Malaysia. In February 2007, the coalition took its campaign to the state of Kelantan, holding several meetings with parliamentarians and state assemblypersons to push for an foi Act in the state, which is governed by the federal opposition pas. An foi Bill, based on 10 principles, 23 was drafted and received positive responses from state legislators, who pledged to study the draft bill and planned to table it in the Kelantan State Assembly. 24 There were no substantive develop ments in the remaining months of However, the results of the 12th General Elections in March 2008, which saw Pakatan Rakyat winning 82 seats in the Parliament at the federal level and also forming five of the 13 state governments, increased the possibility of much-needed improvement relating to freedom of information. Throughout 2008, civil society groups engaged with the Pakatan Rakyat-led state governments to push for the enactment of state-level foi legislations. At the federal level, in the first parliamentary sitting in May, pkr Member of Parliament Sivarasa Rasiah tried to table a private member s bill on freedom of information. Although it appeared in the order paper, the House never reached the item as government bills were prioritised. Sivarasa re-submitted the bill twice during the year, but with no success. This was compounded by the bn s position, as articulated by Minister in the Prime Minister s Department Nazri that there was no need for an foi law

88 Malaysia Human Rights Report 2008 At the state level, after the 12th General Elections, the state governments in Selangor and Penang two of the five states which fell under the control of Pakatan Rakyat made public announcements to enact foi legislations in these states. However, on 16 June, Selangor Menteri Besar Khalid Ibrahim in an interview, appeared to have backtracked on his commitment to enact an foi legislation. He was quoted as saying: [T]here is a provision in the Federal Constitution [that state laws which are not consistent with federal legislation] can be declared null and void. So it would be a waste of time [to bring in a Freedom of Information Bill to replace the osa]. We can make [information] available. I think we are making things quite open compared with the previous group of people. 26 In response to Khalid s statement, 59 civil society groups released a public statement which pointed out that Item 7 of the State List in the Ninth Schedule of the Federal Constitution gives state governments jurisdiction over machinery of state government. As such, an foi Enactment in the state of Selangor would clearly be within the ambit of the constitutional jurisdiction given to state governments. The civil society groups emphasised that while the osa provides for the automatic classification of specified categories of documents, it in no way compels or forces the government and its officers to use it in respect of other types of documents. In any event, there is a clear provision that enables a state government to declassify documents that had previously been classified. The civil society groups further urged the Selangor state government to make a policy statement that it will not apply the osa to classify documents as secret, followed by a clear plan and timeline for the declassification process of important public documents and broad-based public consultations on the public's access to information. The groups also called for the establishment of a task force to review existing practices and a draft law for the state. In 2008, the Selangor state government, heeding civil society s call, set up a task force that included civil society groups to review practices and policies pertaining to public access to information and to draft an foi law for the state. As of 31 December 2008, the task force was still drafting the legislation. In June 2008, the Penang state government formed an ad-hoc committee to set guidelines on information that the public and the media can access directly from government departments. Chief Minister Lim Guan Eng said that the committee would direct departments to categorise and classify information that can be released to the public. He also said that the committee would hold discussions with media representatives and civil society for their feedback. 27 In December, he announced that the Penang state government will liaise with the Selangor state government on its plans to enact an foi Act in the state. 28 Summary While the change in political landscape after the 12th General Elections brought about a new momentum in the push for greater openness and transparency, genuine reforms have yet to be realised. In 2008, freedom of information continued to be hindered by a deeply-rooted culture of secrecy and the existence of restrictive laws, in particular the osa. For instance, we learnt that even the maintenance cost of airplanes was refused disclosure by the federal government. Another major setback was the federal government s resistance to reform the laws and policies which restrict freedom of 88

89 Freedom of Information information. This was clearly seen in 2008, when the bn government publicly stated that it would not repeal the osa nor enact an foi legislation at the federal level. Nevertheless, new inroads have been made in civil society s freedom of information campaign. The Pakatan Rakyat coalition has pledged to uphold principles, implement reforms and enact legislations to guarantee access to information and to ensure openness and transparency in governance. At the end of 2008, the Pakatan Rakyat-led Selangor had set up a task force to draft an foi legislation. The Penang state government had promised to enact an foi legislation but there has been no further positive development. Other Pakatan Rakyat-led states have made even less progress. It remains to be seen whether pledges will be translated into genuine reforms in the following year, failing which, the prospects of an open and transparent society in Malaysia will remain as distant as ever. 89

90 Malaysia Human Rights Report Principles for a Malaysian Access to Information Law By the Coalition for a Freedom of Information Act 1. Principle of Maximum Disclosure The government should pass a comprehensive freedom of information law based on the right to information which establishes the principle of maximum disclosure. Access to information is a basic necessity and right, not a luxury, indispensable to the aim of Malaysia to become an information society. The right to information is relevant to all members of society and their concerns. 2. Routine Publication Public bodies should routinely make available a wide range of information of public interest. A commitment should be made, over time, to publish all information which anyone might wish to access. This information should be made available on an equal, non-discriminatory basis. Documents of significant public interest should be available in Bahasa Malaysia. A specific commitment should be made to ensure that all individuals and groups affected by a project, development or policy are provided with all relevant information about that project, development, or policy. This information should be provided in an appropriate language and medium. 3. Independent Administrative Oversight Body An independent administrative body should be established with a mandate to oversee implementation of the freedom of information law and to adjudicate appeals against refusals to disclose information. Members of this body should be elected on the basis of credibility, expertise, and qualifications. The elections process should be open and transparent and involve civil society. This body should have the power to make binding decisions in relation to any appeals against refusals to grant access to information. 90

91 Freedom of Information 4. Promotion of Open Government Public bodies should be required to make adequate provision for training of their officials on the application of the freedom of information law. In addition, the administrative body with responsibility for oversight of the law should be given a mandate and adequate resources to provide central training resources and support. Training manuals should be developed in association with civil society. Public bodies should be required to adopt procedures to maintain records in an orderly fashion. The law should make it a criminal offence to obstruct access to information wilfully, including by destroying or altering documents, or by providing incomplete disclosure 5. Exceptions Exceptions to the right of access should be set out clearly and narrowly in the law, and should be limited to protection of legitimate interests in the areas of law enforcement, privacy, national security, commercial, and other relationships premised on confidentiality, public or individual safety, and the effectiveness and integrity of government decisionmaking processes. Access to information should not be refused unless disclosure would pose a real risk of significant harm to one of the protected interests. Furthermore, information should be disclosed notwithstanding the requisite risk of harm where this is in the overall public interest. Non-disclosure of information should be subject to an overall time limit of 20 years, to run from the date of creation of the document. 6. Processes and Costs The law should set out minimum procedural rules relating to the processing of requests, for example, in relation to time limits, notice of, and grounds for refusals to grant access and the like. Costs for access to information should be limited to the cost of duplication of the information. Public bodies should have the discretion to waive costs for public interest requests or other reasons. Rules for charging should be required to be approved by the independent administrative oversight body. 7. Open Meetings The law should establish a general presumption that official meetings are open to the public. This presumption may only be overridden by a specific decision of the meeting and that such a decision is to be made in public. 91

92 Malaysia Human Rights Report 2008 Details regarding the time, date, and venue of these meetings should be made easily available to the public. 8. Secrecy Laws and Practices The freedom of information law should prevail in case of conflict between it and any secrecy law. All secrecy provisions in other laws and guidelines should be reviewed, amended, and/or repealed within three years or they should lapse. In this regard, the Official Secrets Act, 1972 should be prioritised, as a matter of urgency. 9. Whistleblowers Individuals should be protected from any legal, administrative or employment-related sanctions for releasing in good faith information on wrongdoing. 10. Review of the Law The freedom of information law should provide for its own comprehensive review by parliament at least every five years. This review should be transparent and involve civil society. 92

93 Freedom of Information End Notes In March 2009, the Selangor state government disclosed the official income and liabilities of the Menteri Besar (chief minister) and ten state executive councillors on its official website. However, other information, for example bank savings, interest in private companies or shares, was not revealed. United Nations General Assembly Resolution 217 A (III), adopted 10 December Section 10(1)(a) of the Federal Constitution of Malaysia states, [E]very citizen has the right to freedom of speech and expression. For a detailed discussion of the state of freedom of speech and expression in Malaysia in 2007, please see Chapter 3: Freedom of Speech and Expression. See Institut Integriti Malaysia (2006), Pelan Integriti Nasional: Edisi Ringkas [National Integrity Plan: Concise Edition]. This document is available at: pdf (last accessed: 15 June 2009). Section 2 Official Secrets Act 1972 (Act 88). Article 19(3) of the International Covenant on Civil and Political Rights states that the exercise of the right to freedom of expression, including freedom to seek, receive and impart information and ideas of all kinds, may be subject to certain restrictions but these shall only be such as are provided by law and are necessary: (a) For the respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals. (United National General Assembly resolution 2200 A (XXI), adopted 16 December 1966) See Article 19 & Centre for Independent Journalism (2007) A Haze of Secrecy: Access to Environmental Information in Malaysia. London and Kuala Lumpur: Article 19 and Centre for Independent Journalism. (pp ). See Ibid. (pp ). See Article 19 & suaram (2005) Freedom of Expression and the Media in Malaysia. London and Kuala Lumpur: Article 19 and suaram. (pp ). Article 19 & Centre for Independent Journalism (2007) A Haze of Secrecy: Access to Environmental Information in Malaysia. London and Kuala Lumpur: Article 19 and Centre for Independent Journalism. (p. 63). Amnesty International (2008) Death Sentence and Executions in 2007, London: Amnesty International (p. 6). The document is available at en/library/asset/act50/001/2008/ en/b43a1e5b-ffea-11dc-b092-bdb d3d/act eng.pdf (last accessed: 15 June 2009). Amnesty International Malaysia, press statement (17 April 2008) Press Statement on Death Penalty Report, php?option=com_content&task=view &id=287&itemid=46 (last accessed: 15 June 2009). Question on secret issue rejected, mp sees red, Malaysiakini, 2 May 93

94 Malaysia Human Rights Report , news/82286 (last accessed: 15 June 2009). Malaysia, National Operations Council (1969) May 13 Tragedy: A Report. Kuala Lumpur: National Operations Council. See Kua Kia Soong (2007) May 13: Declassified Documents on the Malaysian Riots of Petaling Jaya: suaram. Nazri Abdul Aziz, Parliamentary written reply, 3 July 2007, cited in Government won t declassify documents, The Star, 4 July Cabinet says toll agreements to remain secret, The Sun, com/article.cfm?id=16815 (last accessed: 15 June 2009). Secret of toll agreement was out 10 years ago, The Sun, 28 February PM: ACA to be fully independent, Malaysiakini, 21 April 2008, malaysiakini.com/news/81664 (last accessed 15 June 2009). Nazri Abdul Aziz, First Meeting of the First Session of the Twelfth Parliament, Hansard, DR , (p. 6) DR pdf (last accessed: 15 June 2009). Whistleblower Act: No U-turn, clarifies Nazri, Malaysiakini, 8 May 2008, (last accessed: 15 June 2009) gov.my/billindexbi/pdf/dr312008e. pdf (last accessed: 15 June 2009). See Annex to this chapter, 10 Principles for a Meaningful Malaysian Access to Information Law, Coalition for a Freedom of Information Act. Kelantan to table FoI bill in June, Malaysiakini, 28 February 2007, (last accessed: 15 June 2009). Nazri: No need for law to protect whistleblowers, The Sun, 8 May 2008, cfm?id=22159 (last accessed: 15 June 2009). Selangor on track with pledges, Malaysiakini, 16 June 2008, malaysiakini.com/news/84569 (last accessed: 15 June 2009). Penang sets up freedom of info committee, The Star, 11 June 2008, asp?file=/2008/6/11/nation/ &sec=nation (last accessed: 15 June 2009). Penang to work with Selangor on Freedom of Info Act, The Star, 16 December 2008, asp?file=/2008/12/16/nation/ &sec=nation (last accessed: 15 June 2009). 22 The Witness Protection Bill 2008 is available on the official website of the Malaysian Parliament: 94

95 chapter 5: FREEDOM OF ASSEMBLY AND ASSOCIATION

96 Malaysia Human Rights Report 2008 The demonstrations and rallies which were organised in 2007 carried over into Compounded by significant electoral losses in the 12th General Elections in March 2008, the Barisan Nasional (bn) government sought to stop demonstrations and assemblies which were critical of its policies and legislations. In stark contrast, public rallies held to highlight issues which were not critical of the government were tolerated. The right to assemble in Malaysia is severely circumscribed by the Police Act 1967, which confers wide discretionary powers to the police to regulate assemblies, despite the clear provision in the Federal Constitution under Article 10 for the freedom of assembly and association. The Police Act 1967 inter alia requires a license to be obtained from the police for any public assemblies, meetings and processions. The application for the license can be refused but, even if issued, conditions can be imposed or the licence may be cancelled by the police at any time. Without such a license or upon the breach of conditions attached, the police can stop the assembly, meeting or procession and order its stoppage. Amendments were made to the Act in 1987, providing the police with even wider powers to stop and disperse activities in private places if the activity is directed to, or is intended to be heard or participated by persons outside the premises, or attracts the presence of 20 persons or more outside the premises, or is prejudicial to the interest of Malaysia or [ ] excite[s] a disturbance of the peace. 1 The amendments also provided the police with power to use force against participants in thwarting these events, whether in public or private places. The police may do all things necessary for dispersing them and for arresting them and, if any person makes resistance, may use force as is necessary for overcoming resistance. 2 The Act, in addition, provides the police with powers to regulate the playing of music in public places, and to prohibit the display of flags, banners, emblems or placards 3 and the use of loudspeakers, amplifiers and other devices. 4 Violators, including those participating in illegal assemblies, can be fined between RM2,000 and RM10,000 and can be imprisoned for up to one year. 5 Recommendations Relating to Freedom of Assembly The Human Rights Commission of Malaysia (suhakam) has, in several of its reports, stated that the ban on general assemblies is a violation of human rights, and reiterated that the right to assemble peacefully is a fundamental human right guaranteed by the Malaysian Constitution. For instance, in the Kesas Highway Incident Report in 2001, suhakam recommended, inter alia, that: 6 the right to hold assemblies should be applied equally; road-blocks should not be used to prevent assemblies from taking place; the police should exercise restraint when dispersing assemblies; the police should give warnings to disperse loudly and clearly for three times at 10 minute intervals; sufficient time should be given by the police for the crowd to disperse; and people who are trying to get away after the warning to disperse should not be chased and/or assaulted. In 2001, suhakam also released a report titled Freedom of Assembly, calling for amendments to regulations and legislation pertaining to public assemblies. It also stated that freedom of assembly does not necessarily disrupt peace or lead to public disorder and called for a relaxing of police control on rallies. 7 96

97 Freedom of Assembly and Association Then in March 2007, suhakam released another report on the freedom of assembly its public inquiry into alleged human rights violations during a public demonstration against increased fuel prices in Kuala Lumpur on 28 May In the report, the Commission recommended that peaceful assemblies should be allowed to proceed without a licence. 8 The commission concluded that the police had used excessive force; that they had infringed the rights of some of the participants; and that certain officers could be charged under the Penal Code. 9 The serious and repeated violations of freedom of assembly in 2008 clearly demonstrate the Malaysian government s disregard for not only the recommendations by suhakam but also the safeguards of this right under Article 20 of the Universal Declaration of Human Rights 1948 and Article 10 of the Federal Constitution. Public Assemblies, Demonstrations and the Government s Response In 2008, the government used various means to deter public assemblies, especially those organised by opposition political parties or groups affiliated to opposition political parties, and those held to highlight issues critical of the government. These included obtaining court orders to restrain certain individuals from attending demonstrations, denying bail for those arrested during demonstrations and demonising organisers of demonstrations and public assemblies. Organisers and participants of a demonstration against the rise in toll prices in January being arrested by the police. A total of 47 people were arrested during the demonstration on that day. (Photograph courtesy of Malaysiakini) 97

98 Malaysia Human Rights Report 2008 The year started with a crackdown on a protest against price hikes held on 26 January 2008, during which 47 persons were arrested by the police. On the previous day, the police had declared the rally illegal and obtained a court order banning five people from being within a one-kilometre radius of the protest venue, viz. Kuala Lumpur City Centre (klcc). Even before the protest had commenced at about 2pm, the police started arresting individuals. This included the Secretary-General of the Socialist Party of Malaysia (psm) S. Arutchelvan, one of the five individuals named in the court order, at a train station near the protest venue. Of the 47 arrested by the police, 12 were released on the same day, while the remaining 35 were charged at the Kuala Lumpur Sessions Court on 28 January 2008 with taking part in an illegal assembly. Among those arrested and charged was Malaysiakini journalist, Syed Jaymal Zahiid, who claimed that he was punched on the head and had his hair pulled by the police during his arrest. On 11 May 2008, five individuals were arrested during a 45-minute rally in Penang organised by hindraf to demand the release of isa detainees, while another two, including suaram s Lau Shu Shi and Teh Chun Hong, were arrested after they lodged police reports at the Georgetown police headquarters. The five arrested during the rally were freed on police bail after being held for seven hours while suaram s Lau and Teh were detained overnight after being remanded for one day for unruly conduct at the police station. As Organisers and participants of a demonstration against the rise in toll prices in January being arrested by the police. A total of 47 people were arrested during the demonstration on that day. (Photograph courtesy of Malaysiakini) 98

99 Freedom of Assembly and Association of December 2008, there were no charges against the seven arrested in relation to the protest. Then on 27 May 2008, during a protest by residents of Bandar Mahkota Cheras, Kuala Lumpur against the actions of a toll company to barricade a toll-free route, excessive and unwarranted force was used by the police resulting in serious injuries to a 21-year old man. On the day of the incident, residents who had gathered to dismantle a concrete barrier erected by a highway concessionaire were met by a group of men whom residents alleged to have been hired by the concessionaire. This resulted in a clash between the two groups and the Federal Reserve Unit (fru) was called in to control the situation. During the course of the incident, four individuals in a car nearby were stopped by the fru personnel, and were assaulted by the fru and plain-clothed police officers. The incident left 21-year-old Chang Kiun Haur, who was driving the car, seriously injured. The four were subsequently arrested but were released on the following day. In July, suhakam conducted a public inquiry into the incident and concluded that the police had used excessive force and breached international standards outlined in the Basic Principles on the Use of Force and Firearms by Law Enforcement Officers. 10 suhakam also reiterated its recommendations in two of its previous public inquiries related to public assemblies, saying: Similar recommendations made in suhakam s Report of Public Inquiry into the Incident at klcc on 28 May 2006 and suhakam s Report on Freedom of Assembly have remained unheeded by the Police. This is evidenced by the recurrence of excessive use of force and unprofessional Police conduct in the dispersal of peaceful assemblies in past assemblies and the incidents of heavyhandedness action of fru personnel as found in this Public Inquiry. 11 Again on 1 June 2008, during a walk organised by media reform groups and journalists to press for greater freedom of the press, the police required the participants to walk in pairs if they wanted to proceed with the event. This requirement of breaking up participants into pairs was to prevent the event from resembling a rally. Another march organised by groups of indigenous peoples to submit a memorandum on the rights of the indigenous peoples to the King on 13 September 2008, was originally planned to proceed from the Central Market to the Palace in Kuala Lumpur. This was halted by the police despite having been given assurance earlier that the event would be allowed to proceed. The march and the submission of the memorandum was to mark the first anniversary of the Declaration on the Rights of the Indigenous Peoples, adopted by the United Nations General Assembly in Their demands included the establishment of an Orang Asli native court in Peninsular Malaysia, the repeal of laws which marginalise the Orang Asal or indigenous people and an end to the government s practice of leasing native customary rights land without consulting native communities. According to the police, the march was stopped because the organisers did not have a police permit. However, the organisers said that they had already sent letters to the police two weeks earlier but the police only responded two days before the event. The organisers also claimed that they had been assured by the police on the morning of the event that the march would be allowed to proceed. On 23 October 2008, 12 persons, including the six-year old niece of isa detainee and the Hindu Rights Action Force (hindraf) leader P. Uthayakumar were arrested when they tried to submit a letter to the Prime Minister. The group had attempted to submit a handwritten letter urging the Prime Minister to release all those detained under the isa. 99

100 Malaysia Human Rights Report 2008 On 9 November 2008, 23 persons were arrested during a peaceful assembly to commemorate the first anniversary of the massive bersih rally held on 10 November They included a Member of Parliament, state assemblypersons and journalists. A 53-year old woman named Dian Abdullah was attacked from behind by a few policemen, causing her to fall and injure the back of her hand. Member of Parliament Tony Pua and Selangor state assemblyperson Lau Weng San also alleged that they were manhandled and punched respectively. On 23 November 2008, 9 persons were arrested in relation to an anti-isa assembly organised by the Abolish isa Movement (Gerakan Mansuhkan isa, gmi). Seven individuals were arrested during the event while another two individuals, opposition Member of Parliament Salehuddin Ayub and Vice President of the opposition Pan-Malaysian Islamic Party (Parti Islam Se-Malaysia, pas) Mohamad Sabu, were arrested when they visited the seven arrested at the police station where they were being held. In December, 120 individuals were arrested during a bicycle campaign organised by the Network of Oppressed People (Jaringan Rakyat Tertindas, jerit), held over a period of 15 days. The campaign was to call on the government to make a number of policy and institutional reforms. It kicked off on 3 December 2008 in the northern state of Kedah and ended on 18 December 2008 at the Parliament in Kuala Lumpur. The campaigners, comprising teams of cyclists and volunteers, Organisers and participants of a demonstration against the rise in toll prices in January being arrested by the police. A total of 47 people were arrested during the demonstration on that day. (Photograph courtesy of Malaysiakini) 100

101 Freedom of Assembly and Association Organisers and participants of a demonstration against the rise in toll prices in January being arrested by the police. A total of 47 people were arrested during the demonstration on that day. (Photograph courtesy of Malaysiakini) were harassed by the police at almost every step of their campaign. (See Chapter 2: Abuse of Powers by the Malaysian Police.) As in 2007, when the police linked hindraf to the Liberation Tigers of Tamil Eelam (ltte) after the former had organised a massive rally in November that year, 2008 also saw police efforts to demonise the organisers of demonstrations. In December, the Inspector General of Police (igp) Musa Hassan described those who participated in demonstrations as hypocrites who did not observe the democratic process. He also said that organisers of demonstrations are engrossed with demonstrations and demo crazy. 12 In response to a bicycle campaign organised by jerit, which saw the arrests of minors, the police branded the organisers as irresponsible people who misuse and exploit minors. 13 Double Standards in Regulating Assemblies In contrast to these cases above, other demonstrations and assemblies, especially those which did not target the ruling government, were tolerated. Several examples in 2008 demonstrate the double standards applied by the police in regulating assemblies. On 23 November 2008 the same day that nine participants of the anti-isa assembly were arrested another rally, held by the Heritage Associations, Malay Cultural Organisations and Related Bodies Cooperation Network (Pewaris) in support of the use 101

102 Malaysia Human Rights Report 2008 of the isa, was granted a permit and allowed to proceed without any interruption by the police. That same month, the youth wing of the Malaysian Indian Congress (mic), one of the main component parties in the ruling bn coalition, was allowed to hold a demonstration against the Sri Lankan government s military offensive against the Tamil minority in northern Sri Lanka. Assemblies pertaining to Malay rights and Islam were also tolerated by the police. At least three such assemblies were held in All of these assemblies, although racial and religious in nature issues often considered sensitive by the government were allowed to proceed: On 9 August 2008, in protest against a forum organised by the Malaysian Bar Council to discuss the issue of families caught between the separate jurisdictions of civil and Syariah laws, a demonstration was held by members of the ruling United Malays National Organisation (umno), the opposition People s Justice Party (Parti Keadilan Rakyat, pkr) and Pan-Malaysian Islamic Party (Parti Islam Se-Malaysia, pas), and also several other Malay and Islamic-based ngos. Despite the fact that several demonstrators had broken into the venue to forcibly stop the forum, the demonstration and break-in was allowed by the police. (See Chapter 6: Freedom of Religion and Matters Pertaining to Religion.) On 13 August 2008, the police granted a permit to students organising a march to oppose a proposal to allocate a quota of 10 percent for non-malays in the admission to Universiti Teknologi Mara (uitm), a university which has been opened only to Malays since its inception. On 29 December 2008, a rally organised by Yayasan Aminul Ummah Malaysia in Penang to protest against those who question Malay rights and matters especially ketuanan Melayu ( Malay supremacy ) was held with a police permit. Judiciary and Military Collusion in the Crackdown on Assemblies Organisers and participants of a demonstration against the rise in toll prices in January being arrested by the police. A total of 47 people were arrested during the demonstration on that day. (Photograph courtesy of Malaysiakini) Since 2007, the government has also attempted to stop public assemblies by obtaining court orders barring individuals from access to places surrounding the venues of planned assemblies. These court orders allow the police to arrest individuals named in the court orders if they are spotted in the prohibited areas. In 2008, such court orders were obtained on at least two occasions. In January, the police obtained a court order barring five individuals identified as organisers of a demonstration against the rise in fuel prices from being within a one-kilometre radius of the Kuala Lumpur City Centre (klcc), the protest venue. During the demonstration, 35 persons were arrested, including the five who were subsequently charged with violating the court order. In July, pkr leader Anwar Ibrahim received a court order barring him and his supporters from being within 5 kilometres of the Parliament building. The court order was obtained after Anwar had expressed his intention of attending a parliament debate session on a non-confidence motion by the opposition 102

103 Freedom of Assembly and Association coalition Pakatan Rakyat against the leadership of Prime Minister Abdullah Badawi. Also in July, a joint military-police exercise was held four days before an anti-fuel price hike rally, raising serious concerns of an unprecedented involvement of the military in public assemblies. On 3 July 2008, Inspector- General of Police Musa Hassan stated the possible inclusion of the military to assist the police to maintain order. 14 This proposal was strongly criticised by civil society organisations as it was seen as an effort to create an artificial environment of insecurity and to generate fear among Malaysians on the eve of a planned massive rally against the government s hugely unpopular policies. 15 Freedom of Association The right to freedom of association in Malaysia is severely restricted by laws such as the Societies Act 1966, under which any association consisting of seven or more members must register as a society. The government may refuse to register a new society, impose conditions in registering new societies, or deregister a society. Restrictions in breach of the fundamental right of freedom of association are also imposed on trade union officials through the Trade Unions Act Under Section 27 of the legislation, public officers are prohibited from joining any trade union, while Section 28 states that officers of trade unions cannot hold office in political parties unless exemptions are sought. Likewise, officials of the Bar Council, the professional body of the legal profession, face similar restriction under Section 46(A)(1) of the Legal Profession Act, which states, A person shall be disqualified for being a member of the Bar Council or a Bar Committee [ ] if he holds office in any trade union, any political party, or any organisation [ ] which has objectives or carries on activities which can be construed as being political in nature [ ]. The Universities and University Colleges Act 1971 (uuca) is another violation of the freedom of association for university students and academics. Under this Act, students and faculty members are not allowed to express support, sympathy or opposition to any political party or trade union, nor any action that may be construed as such. Registrar of Societies and Obstacles to Political Parties and Movements In 2008, the Socialist Party of Malaysia (Parti Sosialis Malaysia, psm) was finally registered as a political party, 10 years after it first filed its application. psm first submitted its application in 1998, but the bid was rejected by the Registrar of Societies (ros) in January psm brought the Home Ministry to court in November 2002 after the ministry rejected their appeal against the ros decision not to register them as a political party. psm said that they sent numerous letters to the ministry reminding them of their request, only to have their application rejected. In January 2003, psm s application for judicial review was rejected by the Kuala Lumpur High Court. Justice Abdul Hamid Said ruled that the Societies Act 1966 provides for the ros to impose conditions as it deems fit before registering a society. One condition that was allegedly not fulfilled was the establishment of at least seven state branches for a national organisation. The court also accepted the ros s security concerns based on information from the police that could not be reviewed by the courts. In February 2003, psm filed an appeal to the Court of Appeal, but the case was only heard in April On 16 August 2006, 103

104 Malaysia Human Rights Report 2008 psm s appeal to be registered as a national level political party was dismissed by the Court of Appeal. The court ruled that the government cannot cite grounds of national security to defend its decision not to register psm. However, the court also ruled that the party must have representatives from at least seven states, as required by the ros, to be registered as a national political party. Instead of granting them registration at the national level, Justice Gopal Sri Ram said that the party could be registered at the Selangor state level. However, in September 2006, the party found out that the Selangor state ros had never received any directives to register psm, and thus the party remained unregistered even at the state level. Following this, psm filed an application to the apex court. On 23 April 2007, the party took their case to the Federal Court and was granted leave to appeal against their failure to be registered as a political party. On 28 May 2008, psm sent a memorandum to Home Minister Syed Hamid Albar regarding its registration status. In response to this, psm received an from the minister on 4 June 2008 which in summary indicated the ministry s approval of psm s registration. This was followed up two days later by another to psm in which the minister stated that the Home Ministry would write to inform the party on the steps to be taken to finalise the registration. 16 On 17 June 2008, psm secretary-general S. Arutchelvan received another letter from the ministry. The letter, dated 16 June 2008, made reference to the memorandum by psm which was submitted to the Home Minister on 28 May 2008 and asked the party s representatives to re-submit a new application following conditions set by the ros. The party was finally given official approval of its application for registration as a political party in an ros certificate dated 19 August psm announced its official registration in a press conference held in Kuala Lumpur on 10 September Another political party which has faced similar problems in its application to be registered under the ros is the Malaysian Dayak Congress (mdc) in the East Malaysian state of Sarawak. The mdc first submitted its application for registration in May 2005 but was rejected by the ros in July In August 2008, the pro tem committee filed a formal appeal to review the decision which was still pending as of December The years of delays and obstacles faced by psm in its efforts to register as a political party are an example of the government s selective application of the freedom of association. While opposition parties typically confront red tape, delays, and dismissal by the ros, component parties of, or parties which make known their intent to cooperate with the ruling coalition, do not find them in such a predicament, and their applications are normally promptly approved. This was seen in the case of the Malaysian Indian United Party (miup), a newly-formed political party which had pledged to work closely with, and give support to, the ruling bn coalition in The party s application for registration was approved within weeks, as compared to the case of the mdc and psm s 10-year wait for registration. On 15 October 2008, the government banned hindraf, a movement which had organised a massive rally in Kuala Lumpur on 25 November 2007, and numerous other smaller rallies nationwide, demanding equality and fair treatment for ethnic Indians in Malaysia. After the 25 November mass rally, which drew some 30,000 people, the government detained five leaders of hindraf under the isa. The government had also embarked on an intensive propaganda campaign to demonise the organisation, linking it to terrorists. 18 (See also suhakam s position on the ban of hindraf in Chapter 9: Human Rights Commission of Malaysia.) 104

105 Freedom of Assembly and Association Workers Right to Association Although most Malaysian workers are able to participate in trade union activities, there are many restrictions on the right to organise under the Trade Union Act The Act requires all trade unions to be registered in order for their activities to be considered lawful. The Act further limits unions to representing workers in a particular establishment, trade, occupation, or industry or within similar trades, occupations and industries. 19 This restriction has encouraged the setting up of inhouse and enterprise-level unions keeping the labour movement fragmented. The Director General of Trade Unions has absolute discretion to determine what similar trades 20 refer to. He may also refuse to register a trade union, and in some circumstances, may also withdraw the registration of a trade union. Such decisions are discretionary and not subject to challenge in court. Compounding these restrictions, workers employed under categories labelled confidential, managerial, executive, and security, are prohibited from joining trade unions. Similarly, non-clerical police and military personnel are also prevented from unionising. 21 In 2007, amendments to two labour laws, the Industrial Relations Act 1967 and the Trade Unions Act 1959, were passed swiftly by the Parliament, putting more restrictions on the workers rights. Under the amended Section 9 of the Industrial Relations Act, if a union submits a request for its recognition to its employer and there is no reply from the employer after 21 days, the union must within 14 days submit an appeal to the director-general of the Industrial Relations Department, failing which the union will not be recognised. In comparison, before the amendments, if a union submits a request for its recognition to its employers and there is no reply from the employer after 21 days, the union can inform the directorgeneral of Industrial Relations Department to take action. Amendments to Section 40 of the same legislation, meanwhile, prohibits unions from holding pickets during or pending the proceedings of a Board of Inquiry (appointed by the Minister) and within seven days after the conclusion of such proceedings. For instance, when there are delays in cases like the recognition of unions, workers are now prohibited from picketing. Before the amendments, if a case like the recognition of a union process is delayed, workers can hold a picket as a protest and demand the case to be expedited. The amendments of the two labour laws were swiftly passed by the Lower House of the Parliament (Dewan Rakyat) in end August It was then passed by the Upper House (Dewan Negara) in December The amendments to the legislation were made without consultation with the Malaysian Trade Congress (mtuc) and other civil society organisations. 22 Students / Youth Organisations and Restrictions on Freedom of Association The Universities and University Colleges Act 1971 (uuca) severely restricts students and university staff in their exercise of free speech and expression, assembly and association. The uuca targets mainly public university students, imposing a variety of prohibitions against students. These include, among others, prohibiting student bodies and organisations in affiliating with, or dealing in any way with, any society, political party, trade union, or organisation whether on campus or elsewhere, in or out of the country without the prior approval in writing from the vice chancellor. 105

106 Malaysia Human Rights Report 2008 In addition to the restrictions under the uuca, undergraduate students and civil servants, including teachers, university lecturers, are also compelled to sign a loyalty pledge, Akujanji, promising loyalty and good conduct. Then-Prime Minister Mahathir Mohamad, who introduced this pledge in 2001, said that signing the pledge would help check the poisoning of the minds of students, and to ensure that they stick to the original purpose of entering universities to gain knowledge, and not indulge in anti-government activities. 23 Since then, students and educators have received numerous threats and warnings regarding the repercussions for not signing the pledge. The penalties range from warnings, fines, and the stripping of monetary benefits such as allowances, to demotions and termination of employment. The restrictive provisions in the uuca and the pledge which they are required to sign make it extremely difficult for students in public universities to exercise their freedom of association. Compounding these legal and procedural restrictions for students to form associations and carry out activities, numerous cases in the past show that authorities in public universities often victimise students who are involved in societies and groups which are not overtly pro-establishment. In October 2008, a group of students from the National University of Malaysia (Universiti Kebangsaan Malaysia, ukm) alleged that they were subjected to mistreatment and abuse of powers by the university s security guards when they tried to meet Minister of Higher Education Khaled Nordin to hand over a memorandum on campus elections. One of the students, Mohd Farid Hamlud, claimed that he was punched, clawed, elbowed and slapped by the guards. On 23 October 2008, the students submitted a complaint to suhakam on this case. 24 Meanwhile, members of the Chinese Language Society in Universiti Putra Malaysia (upm) have failed in their attempts to register the banned society. After numerous applications to register the society had been rejected by the university, in November 2006, the students brought their case to the Higher Education Ministry, urging a review of the ban. In March 2007, the Higher Education Ministry announced that a government-appointed committee would review the guidelines of registration for societies in public universities. However, there has been no further progress on this matter up until the end of UUCA Still Restrictive After Amendments In October 2007, then-minister of Higher Education Mustapa Mohamed announced that the uuca would be amended to provide for greater freedom of speech for university students and to loosen up the environment in universities. 25 Then in May 2008, Mustapa s successor, Mohamed Khaled Nordin, in announcing that the amendments to the Act would be tabled said, The amendments are to improve on the existing provisions while the objective is to produce more creative and innovative graduates and create a conducive learning environment. 26 The minister added that the government [will] take into account the views of all stakeholders including students and parents in amending the uuca. 27 In August 2008, Khaled revealed that the Ministry of Higher Education had submitted its proposal to the Attorney-General for amendments to the uuca. He also revealed several changes that were proposed, including: University students will only face disciplinary action by their university authorities. Before the amendments, students faced prosecution if they were involved in political parties or unlawful organisations. 106

107 Freedom of Assembly and Association Politicians will be allowed to enrol for courses in universities without needing to give up their political career, with the discretion of the vice-chancellor of the university. University students facing criminal charges, detention, restriction or imprisonment for offences committed outside campus may also be permitted to sit for examinations. Prior to this, the law provided for the immediate suspension of students upon being charged with a criminal offence. This provision had been used by university authorities to suspend students who were charged with political offences especially for participating in illegal assemblies. However, Khaled said that students would still not be allowed to join political parties even after the amendments. These proposals for amendments were met with criticisms from human rights and student groups, who viewed them as inadequate and that students political expression would still be curtailed even with the amendments. On 18 August 2008, a group of students representing 13 student groups staged a demonstration outside the entrance of the Parliament and submitted a memorandum to the Ministry of Higher Education, stressing that students should be given the freedom to voice their opinions on political issues. When the amendments were debated in Parliament on 11 December 2008, similar concerns were raised by several Members of Parliament, from both the ruling and opposition coalitions. Democratic Action Party (dap) Member of Parliament Tony Pua proposed a series of changes to the wordings in the amendments based on consultation with student groups and academicians but they were outvoted in the bn-dominated Parliament. A bn Member of Parliament, Khairy Jamaluddin, also voiced his disagreement with the banning of students from political activities, saying that he would vote in favour of the amendments but nevertheless expressed concerns on the ban on political activities of university students, pointing out the existence of clubs for Malaysian university students set up by the ruling-united Malays National Organisation (umno) in several countries. He also pointed out that politics was already a part of students activities in universities, with the existence of the so-called pro-establishment and anti-establishment groups, according to the media. 28 The bn Member of Parliament said, We should let the students have a free flow of political ideas so they can excel in the arena [ ]. 29 During the parliamentary debate on the amendments, a group of student activists showed up at the lobby of the Parliament to urge parliamentarians to reject the amendments which they deemed as cosmetic in nature. They also called for a parliamentary select committee to be set up to review the amendments. 30 Despite the criticisms and protests, these amendments were passed in the Parliament: Part-time and graduate students, who were previously exempted, will come under the ambit of the Act.31 Students can join outside bodies but are still banned from joining political parties. Similarly, student organisations can be affiliated to other organisations, but not political parties. They are also prohibited from expressing support for, or opposition to, any political party. Under the amendments, the minister will issue a list of organisations which students are banned from joining. 32 Students and student organisations are banned from expressing support for, or opposition to, any political party. The minister is also given powers to amend, vary or revoke a campus order, or campus internal regulations after the amendments

108 Malaysia Human Rights Report 2008 Summary The year 2008 saw a continuation of the 2007 repressive trend. Again, many arrests, detentions and violent reactions by the police during assemblies, demonstrations, protests and rallies were recorded. The methods used by the government to suppress assemblies in 2007 continued to be employed in These included court orders to bar individuals from being present at certain locations where assemblies were held; violent reactions by the police using teargas and water cannons, and arrests and charges against those who had attended public assemblies. While most assemblies were clamped down, others which targeted non-governmental bodies were tolerated. This practice of selective and inconsistent recognition of fundamental freedoms was also evident in the government s approval of societies registration. Two disturbing trends were discerned in 2008: firstly, the government s double standards in its recognition of the right to assembly and association; secondly, the use of the judiciary besides the police to regulate, prevent or discourage the exercise of the freedom of assembly, and the threat of involving the military in keeping order. Other patterns of violations of these two fundamental liberties by the government, such as restrictive laws which contravene the freedoms of assembly and association continue to persist. 108

109 Freedom of Assembly and Association End notes Section 27A(1) Police Act Ibid. Section 30 Police Act Section 28 Police Act Section 27A(7) Police Act suhakam (2001a) Inquiry on its Own Motion into the November 5th Incident at the Kesas Highway, Kuala Lumpur: suhakam (pp ). suhakam (2001b) Freedom of Assembly: A Report, Kuala Lumpur: suhakam. suhakam (2007) Report of suhakam Public Inquiry into the Incident at klcc on 28 May 2006, Kuala Lumpur: suhakam (p. 97) Army to help maintain order if need arises, The Star, 3 July 2008, /7/3nation/ &sec=nation (last accessed 3 December 2008). See, Reject calls for the use of armed forces in the preservation of public order, 4 July 2008, Joint statement of 27 Malaysian civil society organisations. S. Arutchelvan, 17 June 2008, Menteri dalam setuju daftarkan psm [Minister agrees to register psm in ], Official psm website, (last accessed: 15 June 2009). See New Indian-based party to back bn, Malaysiakini, 25 November 2007, (last accessed: 15 June 2009). 9 Ibid. 18 See suaram (2008) op. cit. (pp ) suhakam (2009) Report of suhakam Public Inquiry Into the Allegation of Excessive Use of Force by Law Enforcement Personnel During the Incident of 27th May 2008 at Persiaran Bandar Mahkota Cheras 1, Bandar Mahkota Cheras, Kuala Lumpur: suhakam. Ibid. (p. 36). Jerit Indoctrinates Younger Generation To Become Protestors, Bernama, 21 December 2008, php?id= We acted to save under-aged cyclists, Malaysiakini, 16 December 2008, See suaram (2008) op. cit. (pp ). Ibid. Section 27, Trade Unions Act See Kulasegaran, M., 27 August 2007, Third Meeting of the Fourth Session of Eleventh Parliament, Hansard, D.R , p my/hindex/pdf/dr pdf (last accessed: 15 June 2009). Undergrads to sign good-conduct pledge, New Straits Times, 25 January ukm Students Submit Complaint To Suhakam Over Mistreatment By Secu- 109

110 Malaysia Human Rights Report rity Guards, Bernama, 23 October 2008, v5/newsindex.php?id= (last accessed: 15 June 2009) More freedom of speech after uuca amendment, The Star, 24 October 2007, news/story.asp?file=/2007/10/24/ nation/ &sec=nation (last accessed: 15 June 2009). uuca Amendments Expected This Year, Bernama. 8 May 2008, bernama.com/bernama/v5/newsindex. php?id= (last accessed: 15 June 2009). 27 Ibid. 28 Khairy Jamaluddin, 11 December 2008, Third Meeting of the First Session of the Twelfth Parliament, Hansard, DR (pp ) DR pdf (last accessed: 15 June 2009). 29 Ibid. (p. 68). 30 Amendments to uuca passed, Malaysiakini, 11 December 2008, (last accessed: 15 June 2009) Section 2, uuca (Amendments) Section 15, uuca (Amendments) 33 Section 12, uuca (Amendments) 110

111 chapter 6: FREEDOM OF RELIGION AND MATTERS PERTAINING TO RELIGION

112 Malaysia Human Rights Report 2008 Freedom of religion is guaranteed under Article 11 of the Federal Constitution. In recent years, however, the country has witnessed controversy because of sectors who contend that Islamic Syariah laws should have supremacy in matters of faith. This trend continued in According to the latest available government figures compiled by the Department of Statistics, the religious makeup of Malaysians in 2000 was as follows: 60.4% Muslims; 19.2% Buddhists; 9.2% Christians; 6.3% Hindus; and 2.6% Confucianists, Taoists and practitioners of other traditional Chinese religions. The remaining 2.4% were followers of other faiths, including animism, Sikhism, and the Baha i faith. 1 Although relations between the peoples and among the leaders of the many faiths practiced in Malaysia are generally amicable, full acceptance of religious diversity and equality still remains unattainable. Interfaith dialogue between Muslim groups and non-muslim groups has been elusive, while the discourse among Muslim groups is dominated by the conservative sector. Thus, advocates of human rights perspectives in religion constantly face difficulties, are treated with distrust, and are often accused of being un-islamic and even anti-islam. As the Federal Constitution defines a Malay as, among other things, a person who professes the religion of Islam, 2 vying for the Malay majority vote for political power necessarily entails championing Islam. As such, there is a longstanding competition on this front between the opposition Pan-Malaysian Islamic Party (Parti Islam Se-Malaysia, pas), and the United Malays National Organisation (umno), the dominant party in the Barisan Nasional (bn) ruling coalition. This contestation has led to the politicisation of Islam in the country, accompanied by policies and practices that violate international human rights standards. The year 2008 saw a heightened politicisation of religion, especially after the 12th General Elections. After suffering significant losses in both the Parliament and state assemblies, umno-dominated bn government sought to regain the Malay majority vote by asserting itself as the defender of Islam and the Malays. This was seen for instance, in the repeated threats by its leaders against those who raised and discussed about Syariah laws and the position of Islam in Malaysia. Controversies over Apostasy Although freedom of religion is guaranteed by Article 11 of the Federal Constitution, it is nearly impossible for individuals who have renounced Islam and embraced another faith to obtain official recognition of their decision. Legal and constitution experts hold divergent views on whether the Federal Constitution allows action to be taken against apostates. Some argue that the freedom of religion guaranteed by Article 11 of the Federal Constitution is conditional on Article 3(1), which states that Islam is granted special status as the country s official religion. Hence, they argue, to take legal action against Muslims who choose to depart from Islam or convert to other religions does not contravene the provisions of the constitution. Those who advocate this view also draw on Article 11(4) to support their argument. The clause stipulates that state and federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. On the other hand, detractors hold that the court should adhere to the spirit of the Constitution. While Article 3(1) makes clear the state s commitment to promote Islam, the clause should not override other provisions that guarantee citizens fundamental rights, including personal liberty and the freedom 112

113 Freedom of Religion and Matters Pertaining to Religion to associate and disassociate. Furthermore, Article 12(3), which holds that no person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own in fact provides for freedom of religion. While Article 11(4) permits restriction to propagation of other religions among Muslims, it does not restrict a Muslim from studying other religions and converting to another religion of his/her own free will. Some legal experts maintain that it is a commonly held misconception that Muslims are legally prohibited from renouncing their faith. They point out that it is not within the competence of the state legislature to make laws to this effect. The Syariah courts have jurisdictions only over persons who profess Islam. Likewise, the state can only enforce Islamic laws upon persons who profess Islam. One who no longer professes Islam following his/her renunciation is supposed to be free from the jurisdiction of Syariah courts and Islamic laws. However, in practice, it is virtually impossible for Muslims to officially renounce the Sunni faith. The civil courts have largely taken the view that the Syariah courts have jurisdiction over the issue of apostasy. On 17 February 2008, a follower of the teachings of Ayah Pin, 57-year old Kamariah Ali who had declared herself an apostate in 2005 was convicted on charges of apostasy under Section 7 of the Syariah Criminal Offence Enactment (Takzir) Terengganu an offence punishable by a fine of RM5,000 or a jail term of up to three years, or both. After deferring sentencing to the month of March, the Terengganu Syariah High Court sentenced Kamariah to a jail term of two years on 3 March The Terengganu Syariah High Court Judge Mohamad Abdullah reportedly delivered the sentence based on grounds of public order, as he found Kamariah s activities and actions impacting on the sensitivities of the multi-religious society in Malaysia. 3 In May 2008, the Penang Syariah Court allowed an application by Siti Fatimah Tan Abdullah to renounce Islam and return to Buddhism. Siti Fatimah, whose Chinese name is Tan Ean Huang, filed an application in May 2006 to renounce Islam. She converted to Islam in July 1998 to marry an Iranian, Ferdoun Ashanian. After a few months of marriage, however, they separated and Siti Fatimah claimed that she had maintained her Buddhist faith. Although the judgement was welcomed by many, as Siti Fatimah was allowed to profess her Buddhist faith, civil society groups have expressed their concern at the fact that she had to obtain permission from the Syariah Court in order to do so. Deviationist Islam State laws provide for a close surveillance and tight policing of Islamic beliefs and practices in various states of Malaysia. For instance, in the Administration of Islamic Law Enactment 1989 for Selangor, exclusive powers are given to the mufti to issue, amend, or revoke fatwa (religious decrees that are binding and enforceable once gazetted). In addition, the Syariah criminal offences legislation makes it an offence for anyone to have an opinion or even own books contrary to the fatwa. These restrictions can be found, for example, in Section 9 of the Syariah Criminal Offences Act 1997 for the Federal Territories, which makes it a criminal offence if any person [ ] acts in contempt of religious authority or defies, disobeys or disputes the orders or directions of the Yang di-pertuan Agong (king) as Head of the religion of Islam, the Majlis or the Mufti, expressed or given by way of fatwa. In addition, Section 12 of the same act makes it an offence for any person 113

114 Malaysia Human Rights Report 2008 to give, propagate, or disseminate any opinion concerning Islamic teachings, Islamic law, or any issue contrary to any fatwa when it is in force. Islamic authorities have powerful influence over the administration of religious matters at the state and federal levels, including what is considered to be true Islam. Small Islamic sects are often labelled deviationist although what qualifies as being deviationist remains arbitrary. Members of deviationist groups can be arrested and detained in order for them to be rehabilitated and returned to the true path of Islam. Over the years, there have been various arrests, detentions, and announcements of successful rehabilitation of deviationists and the curbing of deviationist activities. As of 31 December 2008, 56 deviant groups and teachings in Malaysia have been identified and blacklisted by Department of Islamic Development in Malaysia (Jabatan Kemajuan Islam Malaysia, jakim) (See Table 6.1). * Names of individuals or deviant teachings repeated twice in jakim s list 114

115 Freedom of Religion and Matters Pertaining to Religion Al-Arqam and Rufaqa In 2004, the Malaysian government released Ashaari Muhammad, former leader of the Al-Arqam movement, who had been detained under the isa since September Al- Arqam, also known as Darul Arqam, was banned by the Malaysian government through a ruling issued by the National Fatwa Council on 5 August Ten aspects of Al-Arqam s teachings were considered to be deviant by the National Fatwa Council. Established in 1968, the movement grew in strength and influence, setting up its own business enterprise by the 1980s. Several researchers have pointed out that Al-Arqam was politically significant since it had questioned the political system, Malay national leadership, and Malaysian socioeconomic practices. 4 After being banned in 1994, the movement suffered an abrupt demise with many of its leaders and members being sent for religious rehabilitation. However, since the release of Ashaari Muhammad, the government alleged that there were various attempts to revive Al- Arqam. At the end of 2006, several raids were conducted on the premises of Rufaqa Corporation, the business arm of a movement called Rufaqa, which has been alleged to be a revival of Al-Arqam under a different guise. In 2007, the Selangor Islamic Affairs Department (jais) raided the premises of Rufaqa Corporation, seizing several items, including books and posters of former Al- Arqam leader Ashaari Muhammad. Selangor state executive councillor in charge of religious affairs said that the raid and seizure of items were carried out in accordance with a state gazette which bans all publicity materials of Al-Arqam and Rufaqa. In November 2007, a Hari Raya gathering attended by staff, employers and guests of Rufaqa Corporation was interrupted by a group of officials from the Penang Islamic Religious Affairs Department (Jabatan Agama Islam Pulau Pinang, jaipp). 51 persons were arrested in the raid, out of which 43 face charges of acting in contravention of the state Islamic enactments. As of 31 December 2008, the hearings for their charges have yet to commence. In 2008, the government continued its surveillance on the activities of groups and persons purportedly linked with Al-Arqam and Rufaqa. In December 2008, the Johor state assembly was told that the Johor Islamic Affair Council (maij) had found that remnants of the Al-Arqam and another religious sect, Qadiyani, were still active in the southern Peninsula Malaysia state. The Chairman of the Johor Religious Committee, Zainal Abidin Osman, told the Johor state assembly that Al- Arqam under the guise of a company named Global Ikhwan was still active in the towns of Johor Baru, Muar, Batu Pahat, Segamat, Kluang and Kota Tinggi. He also said that the Johor religious authorities had started informational programmes to strengthen faith (in Islam), shut down premises and confiscated printed materials which are against Islamic religious laws. 5 Ayah Pin In 2005, following constant threats, warnings, and harassment, the government unleashed a series of actions against the spiritual leader Ayah Pin and his followers. Accompanied by the police, the Terengganu Religious Affairs Department (jheat) arrested a total 80 of Ayah Pin s followers on two separate occasions in Ayah Pin, a spiritual leader based in Besut, Terengganu, claimed to be the reincarnation of holy figures of major religions in the world, and allegedly commanded some 40,000 multiracial followers, including some Orang Asli. Ayah Pin s group was characterised by Minister in the 115

116 Malaysia Human Rights Report 2008 Prime Minister s Department Abdullah Md Zin in 2004 as a threat to Muslim society because some of his followers had renounced Islam. The group was said to pose a threat to national security comparable to that of Al- Ma unah and Al-Arqam even though the former are not seen as a militant group. 6 In November 2008, Terengganu police chief Mohd Shukri Dahlan said that the police still considered Ayah Pin a threat and that he may be arrested in view of reports that the spiritual leader was back in Terengganu after disappearing from the state since the crackdown on his commune in Home Minister Syed Hamid Albar however clarified that Ayah Pin would only be arrested if the Terengganu Islamic Religious Department asked the police to do so. 8 No arrest was made in 2008 as Ayah Pin is believed to be living in exile in southern Thailand. 9 Shi ite Islam The ruling government also prohibits the teachings of Shi ite Islam, a major mazhab (denomination) of Islam, leaving Sunni Islam as the only faith to be practiced by Muslims in the country. In October 2004, Minister in the Prime Minister s Department Abdullah Md Zin contended that the ban was necessary to maintain the unity of Muslims in the country considering the differences between the two mazhab. 10 In the past, Shi ite followers have been detained under the Internal Security Act 1960 (isa). According to Abdullah Md Zin, from 2 November to 7 November 1997, 10 Shi ite followers were arrested under the isa. 11 At present, suaram monitoring has found no isa detainee held for involvement in Shi ite or other deviationist movements. Legislating Islamic Norms, Values, and Morals The codification of Islamic norms, values, and morals into state legislation imposes restrictions directly on Muslims and indirectly on non-muslims. The Syariah criminal laws are enforced throughout the country and govern a wide sphere of the lives of Muslims. Muslims are subject to restrictions on immorality through prohibition of alcohol consumption, gambling, and khalwat (close proximity between men and women who are not related to each other by blood); the enforcement of fasting during the month of Ramadan; observance of prayers; decency requirements (they must dress in a decent way, socialise at decent places, and pass their leisure time with decent activities); and other stipulations. Some state Syariah criminal offences laws are clearly discriminatory. The Terengganu Syariah Criminal Offences (Takzir) 2001 has provisions that specifically discriminate against and persecute women. Section 48 makes it an offence for a virgin woman who, without any reasonable excuse under Hukum Syarak (Syariah laws), to abscond from the custody of her parents or legal guardian. In addition, Section 35 states that any woman, who in any public place exposes any part of her body that arouses passion is liable for a fine of RM1,000 or a jail term of up to six months. This contravenes Article 8 of the Federal Constitution which guarantees equality before the law. The Syariah criminal laws for these offences are applicable throughout the country, although enforcement is not as consistent or widespread as it is for secular criminal laws. On many occasions, the arrests and raids are covered by members of the press who sensationalise the stories and Muslim women often become easy targets of humiliation, intimidation, and selective punishment. 116

117 Freedom of Religion and Matters Pertaining to Religion Under Section 19(1) of the Syariah Criminal Offences Act (Federal Territory) 1997, Muslims found guilty of consuming alcohol are subject to a maximum jail term of two years and/or a RM3,000 fine. Under Section 19(2), those found guilty of abetting in the sale of alcohol can face a jail term of up to three years and/or a RM5,000 fine. Under Section 35, those found guilty of committing maksiat (vices) are subject to a jail term of up to three years and/or a RM5,000 fine. Over the years, concerned organisations have repeatedly called on the government to review and suspend the Syariah Criminal Offences Enactment in view of the violation of citizens rights during moral raids and arrests. They have argued that the legislation is too vaguely and broadly formulated and prone to manipulation and abuse by enforcement officers. Religious departments and municipality officers often conduct moral policing operations to round up and punish Muslims for indecent behaviour. In 2007, suaram documented the case of Ayu, a transsexual who was detained by officials from the Melaka Islamic Religious Affairs Department (Jabatan Agama Islam Melaka, jaim) for committing the offence of men dressing up as women in a public space under Section 72 of the Melaka Syariah Offences Enactment. When arrested and while in detention, Ayu was seriously beaten by the officials of the religious department. As a result of the assault, she had to undergo a surgery for a pre-existing abdominal hernia condition which was aggravated by the assault. 12 In October 2008, the National Fatwa Council issued a fatwa which ruled that young women who behave like men and engage in lesbian sex are forbidden in Islam. According to the National Fatwa Council chairman Abdul Shukor Husin, the fatwa was issued because [t]here are teenage girls who prefer the male lifestyle including dressing up in men s clothes [ and] [m]ore worryingly, they have started to engage in sexual activities. 13 The fatwa was criticised by various civil society organisations, including Sisters in Islam (sis), who described the fatwa as sexist and discriminatory, warning that it could lead to arbitrary arrests and undue harassment of Muslim women and girls. sis pointed out the problematic definition of the fatwa s ban on women who behave like men as many Malaysian women sport short hair, wear pants, shirts and do not wear make up and that it is culturally normal for Malaysian women to [ ] hold hands, hug their friends or kiss their friends on the cheek. 14 The ngo further argued: [I]t is not Islam's obsession to police people's morality, find people's fault or to spy on its followers. Islam is also totally against defaming one's character. In fact, Islam regards privacy and preserving one's dignity as an intrinsic basic right. Thus any human-made law cannot violate these basic rights enshrined in Islam. 15 On 7 November 2008, several civil society groups and individuals staged a protest in Kuala Lumpur against the issuance of the fatwa. In response to this, Inspector- General of Police Musa Hassan warned non-muslim ngos not to interfere in matters involving Islamic laws or risk severe actions by the police. 16 Barely a month after the fatwa on women behaving like men was issued, the National Fatwa Council, on 22 November 2008, declared that yoga practices which involve physical movements, worshipping and chanting was forbidden in Islam. National Fatwa Council Chairman Dr Abdul Shukor said that the ban on yoga was because the Hindu elements of worshipping and chanting 117

118 Malaysia Human Rights Report 2008 is against Islam and can erode one s faith or aqidah. 17 Malaysia s federalist system places Islamic law under state jurisdiction, as stated in List II, Ninth Schedule of the Federal Constitution. As such, a fatwa is only enforceable once it is gazetted by the respective state governments. Nevertheless, not all fatwa that are gazetted become public knowledge, resulting in gaps between enforcement and public awareness of such laws. Furthermore, fatwa which rule on issues of morality and regulate a person s private life to the smallest detail, such as those on women dressing up as men and the practice of yoga, are difficult to enforce and often only lead to selective prosecution and victimisation. On 9 December 2008, it was reported that the East Malaysian state of Sarawak had agreed to gazette the fatwa on yoga. The Assistant Minister in charge of Islamic affairs in the Sarawak Chief Minister Office, Daud Abdul Rahman, said that the Sarawak State Attorney-General s Office was in the process of gazetting the fatwa. Nevertheless, he said that he could not ascertain when the fatwa would be implemented. It was also reported that the state of Melaka has agreed to implement the fatwa, while other states namely Penang, Kedah, Terengganu, Perak and Selangor were still in discussion on whether to gazette the fatwa. 18 On 4 December 2008, the chairman of the Johor Religious Committee, Zahid Abidin Othman, told the Johor state assembly that the Johor state government will legislate the ban on yoga in the near future. 19 Freedom of Worship and the Position of Non-Muslims Proselytising of Muslims by members of other religions is strictly prohibited although proselytising of non-muslims face no such restrictions. According to Islamic Syariah laws, it is a crime to attempt to convert Muslims to other religions. The federal and state governments discourage and forbid the circulation in Peninsular Malaysia of Malay-language translations of the Bible and the distribution of Christian tapes and printed materials in the Malay language. Malay-language Bibles are required to carry the words Not for Muslims printed on the cover. Christian books translated into Malay and the East Malaysian indigenous Iban languages have been banned in the past. In January 2008, several Christian children s books were confiscated by officials of the Internal Security Ministry (now known as the Home Ministry) from several bookstores for allegedly containing pictures of Moses and Noah deemed offensive to Muslim sensitivities, as they were considered to be caricatures of the prophets. In response to the seizures, the Malaysian Council of Churches (ccm) questioned the rationale of the ministry s actions, saying that there was nothing sensitive about the book as they were meant for Christians. On the following week, the ministry returned the books with no further action. 20 On 28 January 2008, thirty-two bibles carried by missionary Juliana Nicholas were confiscated by officials from the Customs Department upon her arrival at the Kuala Lumpur airport from the Philippines. When she arrived at the airport, she was told to declare and open the contents of the two boxes which contained the thirty-two bibles, meant to be distributed to her church group. Despite showing the Customs Department officials a letter from her parish priest stating that the texts were for use by the church, Nicholas was told that the bibles would need to be checked by the Internal Security Ministry s Publications and Al-Quran Texts Control Division. Nicholas was only allowed 118

119 Freedom of Religion and Matters Pertaining to Religion to collect the bibles after a follow-up call to the ministry on 4 February Nicholas had insisted that the ministry issue an official apology to her for the inconvenience caused and a letter of assurance that the incidence would not recur. However, no official public apology was issued throughout In response to the incident, the Council of Churches Malaysia (ccm) condemned the actions of the authorities, stating that no authority [ ] should deny Christians the right to possess, read and travel with their bibles. The Council s general secretary Hermen Shastri also called upon the Prime Minister, who was then also the Internal Security Minister, to assure Christians in the country that they will not be subject to the scrutiny of the Control Division of Publications and Al-Quran Texts of the Internal Security Ministry. The Council also deplored the latest incident of the seizure of bibles as another example of how the unilateral actions of certain government agencies are undermining the government s stated claims of protecting religious freedom in the country. 21 Nevertheless, no such statement was made by the government throughout the year. In December 2007, The Herald, news organ of the Roman Catholic Church in Malaysia faced problems in renewing its yearly publishing permit over the use of the word Allah in the weekly s Bahasa Malaysia (Malay-language) section. Deputy Internal Security Minister Johari Baharum said that the word Allah could only be used in the context of Islam and not any other religion. The ministry reportedly asked the weekly to remove the entire Bahasa Malaysia section or the permit would not be renewed when it expired. Johari Baharum said, The Herald can use other words but not Allah. That will confuse people. 22 On 30 December 2007, the Internal Security Ministry reversed its earlier decision to allow the weekly to continue to print without any condition. 23 Despite renewing its permit, on 4 January 2008, the cabinet once again decided that The Herald could not use the word The Herald, the weekly publication of the Roman Catholic Church in Malaysia, faced restrictions from using the word Allah, a word which is deemed as the exclusive right of Islam Allah in its publications. Minister in the Prime Minister s Department Abdullah Mohd Zin said that one of the reasons for the government to impose the restriction was because the word Allah refers to God according to the Muslim faith. [ ] The use of the word Allah by non-muslims may arouse sensitivity and create confusion among Muslims in the country. 24 On 9 March 2008, the Roman Catholic Archbishop of Kuala Lumpur Murphy Pakiam filed a judicial review on behalf of The Herald against the Internal Security Minister (now known as the Home Minister) and the government, seeking declarations from the court: for the ministry to declare that its decision to prohibit the Herald from using the word Allah in its publication is null and void; the Herald is entitled to use the word Allah in the publi - cation and that the word Allah is not exclusive to the religion of Islam. to quash the ministry's decision to prohibit the Herald from using the word Allah in its publication. for an order to allow the Herald to 119

120 Malaysia Human Rights Report 2008 continue using Allah in its publication until the court decides on the matter. On 5 May 2008, despite objections by the federal counsel, the High Court ruled in favour of The Herald, thus granting the weekly leave to challenge the government s decision. 25 On 21 November 2008, the High Court set 27 February 2009 as the mention date of the case. 26 This was not the first time that the use of the word Allah had stirred controversy in Malaysia. In 2003, the Bible in the Iban language was banned because it translated the word God as Allah Taala, as is used in Islam. The ban, however, was lifted after protests from the Christian community. On 11 August 2008, The Herald received a show cause letter from the Home Ministry for allegedly publishing articles that were political and degrading to Islam. The letter also stated that The Herald s publication was not in accordance with the terms in the permit to publish religious news although the weekly s editor had pointed out that the permit application form did not stipulate what constitutes religious articles. 27 Civil and Syariah Courts and Disputes over Conversions A number of cases of disputes over the religion of persons who had purportedly converted into Islam without the knowledge of their families have surfaced in recent years. In most cases, decisions were made by Syariah courts without the knowledge of the non-muslim families, while civil courts have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts, as stipulated in Article 121(1A) of the Federal Constitution. Article 121(1A) was inserted in 1988 to prevent overlapping jurisdiction and conflicting decisions by the civil and Islamic courts. On 24 January 2008, the remains of Gan Eng Gor was released to the Negeri Sembilan Islamic Religious Council for burial under Islamic rites after the Syariah Court ruled that he had embraced Islam in On 21 January 2008, the police took away the deceased s body from a Chinese funeral parlour after his son, a Muslim convert, lodged a police report, claiming that his father had converted to Islam in July However, the deceased s wife and seven other children, all of whom are Buddhists, claimed that they had no knowledge of the purported conversion. They filed a petition in the High Court on 29 January 2008, insisting that it was impossible for the deceased to have embraced Islam as he had been bedridden and unable to speak from the time of the alleged conversion. The High Court, however, rejected the petition on 29 January 2008, ruling that it had no jurisdiction on the matter since a Syariah court already declared Gan a Muslim. Another dispute over the religion of a deceased surfaced in the same month. In January 2008, Ngiam Tee Kong disputed the claims of the Federal Territory Islamic Council that his wife, Wong Lau San, had converted to Islam. The religious authorities prevented Ngiam from claiming his wife s body after her death. However, Ngiam disputed the declaration and claimed that the council s letter did not state his wife s Muslim name and that the conversion was therefore not done in accordance with the law. On 4 January 2008, Ngiam was granted an interim injunction preventing the hospital from releasing Wong s body to the Islamic council. After a three-week long dispute over the religion of the deceased, the Kuala Lumpur High Court ruled on 18 January 2008 that Ngiam had the right to claim his wife s body following the Federal Territory Islamic Council s admission that Wong s conversion to Islam from Christianity was not done in 120

121 Freedom of Religion and Matters Pertaining to Religion accordance with the Islamic law and provisions in the Administration of Islamic Law (Federal Territories) Act. In July, religious authorities in the state of Penang claimed that B. Elangesvaran, a 34-year old man who had committed suicide by hanging himself on 22 June 2008, was a Muslim and should be buried according to Islamic rites. However, the family of the deceased said the family had no knowledge of the conversion and that Elangesvaran died as a practising Hindu. His family also claimed that there was no proof of the purported conversion. According to the deceased s stepbrother, S. Selvam, the Perak Islamic Religious Department produced only a police report alleging that [his] brother had embraced Islam at the Penang Islamic religious department [ ] and a letter with some scribbling allegedly done by Elangesvaran that he had converted. Selvam further claimed that the letter was unsigned and did not indicate any witnesses to the conversion. 28 On 25 June 2008, Elangesvaran s family applied for an interim injunction at the Penang High Court to stop the Islamic authorities from taking the body to be buried under Islamic rites. At the same time, on 4 July 2008, while the application for interim injunction was pending at the Penang High Court, the Parit Buntar Syariah Court in Perak ruled that Elangesvaran was a Muslim. This led the Penang High Court judge to rule that it had no jurisdiction over an earlier Syariah Court ruling and therefore dismissed the application. Nevertheless, the High Court granted a stay to file another injunction pending a hearing to allow another application to be filed to the Court of Appeal. However, on 7 July 2008, the Penang High Court upheld its own earlier decision that it could not overrule the Syariah Court decision, thus allowing the Islamic religious authorities to bury the deceased as a Muslim. Karpal Singh, the counsel for the deceased brother, criticised the actions of the religious authorities of bringing the case to the Syariah Court when it was pending at the High Court as putting unwarranted and undesired pressure on the High Court judge. He also said that the judgement by the Syariah Court was a direct interference by the Syariah Court into the judicial powers of the civil court. 29 In the light of the many recent cases of disputes over the religion of the deceased, on 10 April 2008, Prime Minister Abdullah Badawi announced a proposal to introduce a regulation requiring non-muslims wanting to embrace Islam to inform their family before doing so. This must be done through a form or letter declaring that their family had been informed of their conversion. 30 However, this proposal was rejected by the Allied Coordinating Committee of Islamic ngos (accin), a coalition of 16 Islamic ngos, who contended that such a move would deny individuals the right to convert into Islam, citing that converts may face rejection by the family members. 31 On 14 April 2008, the government said that the Department of Islamic Development Malaysia (jakim) and the National Unity Department would study the Prime Minister s proposal. 32 As of 31 December 2008, the Prime Minister s proposal had still not been implemented. There was also no proposal or discussion on the protection of the rights of those who wish to convert out of Islam. On 15 May 2008, the government announced that an Islamic conversion card, a document to verify a person s conversion to Islam, would be issued immediately to a convert upon conversion. Minister in the Prime Minister s Department Ahmad Zaid Hamidi said that the move was in response to problems which arise due to the delays in the issuance of such cards. The same minister also commented that the Prime Minister s 121

122 Malaysia Human Rights Report 2008 proposal to compel converts to inform their family about their conversion was apt but stressed that they be allowed to take time to do so in order to maintain their good relations with the family. Following numerous such cases, concerned groups have called for Article 121(1A) to be amended. 33 However, such calls and even discussions on the matter have been seen by some to be provoking Malay and Muslim sentiments and causing uneasiness and public disorder. On 9 August 2008, a forum organised by the Malaysian Bar Council to discuss the issues of conversion to Islam and the separate jurisdictions of civil and Syariah laws was forcibly disrupted by a mob, led by members of the ruling United Malays National Organisation (umno), the opposition People s Justice Party (Parti Keadilan Rakyat, pkr) and Pan-Malaysian Islamic Party (Parti Islam Se-Malaysia, pas), and also several other Malay- and Islamic-based ngos. Several leaders of the mob, including pkr Member of Parliament Zulkifli Nordin, instigated the crowd to force its way into the Bar Council building to stop the event, forcing the Bar Council to halt the event abruptly. Two days before the forum, Deputy Prime Minister Najib Razak criticised the forum as unsuitable to be held in an open manner, saying that it could incite emotions among those with differing views. 34 The forum was also opposed by pas leaders, who called for the forum to be cancelled. 35 pkr, however, distanced itself from the actions of its Member of Parliament Zulkifli Nordin in leading the crowd to forcibly stop the forum. 36 On 10 August 2008, one day after the short- Angry protestors led by leaders of Malay- and Islamic-based political parties and NGOs denouncing Bar Council for organising a forum discussing the issue of religious conversions. Leaders have warned non-muslims not to challenge Islam. 122

123 Freedom of Religion and Matters Pertaining to Religion Angry protestors led by leaders of Malay- and Islamic-based political parties and NGOs denouncing Bar Council for organising a forum discussing the issue of religious conversions. Leaders have warned non-muslims not to challenge Islam. lived forum, Najib Razak once again criticised the Bar Council for being stubborn in going ahead with its forum. 37 Places of Worship and Religious Symbols Recent years have also seen a number of Hindu temples being demolished by the local councils, an issue which has raised public alarm especially among non-muslims. According to Hindu Rights Action Force (hindraf)- initiated memorandum to the Attorney- General on 30 June 2007, 79 temples had either been demolished, served notices to be demolished, burnt down, relocated next to sewerage tanks, or had deities removed from its premises in Malaysia between February 2006 and June The demolition of temples in Malaysia throughout the year had also received the attention of the United States Commission on International Religious Freedom in The commission expressed its concern over the recent temple demolitions and other forms of discrimination faced by religious minorities in Malaysia. It called on the United States government to raise the matter with the Malaysian government and insist that immediate measures be taken to protect sacred sites and prevent further destruction. 39 On 15 January 2008, a suit filed by Temiar Orang Asli villagers suit against the 123

124 Malaysia Human Rights Report 2008 Kelantan state government and the Gua Musang district council for demolishing their village church commenced at the Kota Bharu High Court. On 1 July 2007, four Temiar Orang Asli villagers filed the suit after their church, which they claimed was built on ancestral land, was demolished by state authorities on 4 June Kelantan state authorities, on the other hand, claimed that the building of the church contravened Section 425 of the National Land Code and Section 72 of the Street, Drainage and Building Act 1974, with regard to structures built without the permission of the authorities. 40 In their suit, the Temiar villagers sought declarations that they have a right over the land as well as the constitutional right to practise their religion, which includes the right to set up a church on the land; that the demolition was unlawful and an abuse of power amounting to interfering in the religious rights of the Orang Asli. They also filed for damages and other costs. 41 The case remained pending at the end of Islam in Malaysia, pointing to an increasingly regressive trend of religious intolerance Summary Longstanding issues in contravention of the Constitutional guarantees of freedom of religion continued to be unresolved in These included the right of Muslims to leave Islam and the rights of non-muslims with regard to matters of religion in civil and Syariah courts. At the same time, new laws and policies which violate freedom of religion were formulated. For instance, certain words which are deemed to be exclusive to Islam were banned from use by non-muslims. At the same time, repeated threats were issued by Muslim leaders on both sides of the political divide against those who raised questions or discussed about matters pertaining to freedom of religion and the position of 124

125 Freedom of Religion and Matters Pertaining to Religion End Notes Malaysia, Department of Statistics, Population and Housing Census Article 160, Federal Constitution of Malaysia. Bekas ustazah murtad dipenjara dua tahun [Former religious teacher turnedapostate jailed for two years], Utusan Malaysia, 3 March 2008, utusan.com.my/utusan/special.asp?pr =PR11&y=2008&dt=0303&pub=Utu san_malaysia&sec=terkini&pg=bt_06. htm (last accessed: 15 June 2009). See, for instance, Sharifah Zaleha (1995) Islamic Revival in Malaysia: A Case Study on Al-Arqam, Seminar paper presented at the 1st euroseas Conference, Leiden, June 1995; Ahmad Fauzi Abdul Hamid (2005) The Banning of Darul Arqam, Review of Indonesian and Malaysian Affairs, vol. 39, no. 1 (pp ); Ahmad Fauzi Abdul Hamid (2006) Southeast Asian Response to the Clampdown on the Darul Arqam Movement in Malaysia, , Islamic Studies, Vol. 25, No. 1 (pp ). maij Detects Al-Arqam And Qadiyani Active In Johor, Bernama, 4 December 2008, (last accessed: 15 June 2009). Action imminent against Ayah Pin, says minister, Malaysiakini, 11 October 2007, news/30700 (last accessed: 15 June 2009). Police: Ayah Pin still a threat, Bernama, 14 November 2008, php?id= (last accessed: 15 June 2009). 8 9 Ayah Pin will be arrested on religious authority s request Syed Hamid, Bernama, 17 November 2008, bernama.com/bernama/v5/newsindex. php?id= (last accessed: 15 June 2009). Sky Kingdom s Ayah Pin living in Thailand, The Star, 14 November 2008, news/story.asp?file=/2008/11/14/ nation/ &sec=nation (last accessed: 15 June 2009). 10 Abdullah Md. Zin, 11 October 2004, Third Meeting of the First Session of the Eleventh Parliament, Hansard, DR (pp ), DR pdf (last accessed: 15 June 2009) Ibid. See suaram (2008) Malaysia Human Rights Report 2007: Civil and Political Rights, Petaling Jaya: suaram (p.127). Malaysia Muslim body issues fatwa against tomboys, Reuters, 24 October 2008, (last accessed: 12 November 2008). Sisters in Islam, 21 November 2008, Press statement, Fatwa on tomboys is regressive. Ibid. IGP to Non-Muslims: Stay out of Muslim matters, The Star, 13 November 2008, asp?file=/2008/11/13/nation/ &sec=nation (last accessed: 15 June 2009). 125

126 Malaysia Human Rights Report Fatwa Council says yoga with worshipping, chanting is prohibited, The Star, 22 November 2008, asp?sec=nation&file=/2008/11/22/nation/ (last accessed: 15 June 2009). Yoga ruled haram for Muslims in Sarawak, Bernama, 9 December 2008, com.my/bernama/state_news/news. php?id=377297&cat=sre (last accessed: 15 June 2009). maij detects Al-Arqam and Qadiyani active in Johor, Bernama, 4 December 2008, v5/newsgeneral.php?id= (last accessed: 15 June 2009). Christians laud ministry for stepping in, The Star, 23 January 2008, h t t p : / / t h e s t a r. c o m. m y / n e w s / s t o r y. a s p? f i l e = / / 1 / 2 3 / nation/ &sec=nation (last accessed: 15 June 2009). Bibles confiscated by Customs Dept, Malaysiakini, 4 February 2008, (last accessed: 15 June 2009). Johari: Only Muslims can use Allah, Malaysiakini, 21 December 2007, Gov t backs down, Herald gets new permit, Malaysiakini, 30 December 2007, news/76512 Cabinet: Allah for Muslims only, The Sun, 4 January Herald wins right to challenge Allah ban, Malaysiakini, 5 May 2008, (last accessed: 15 June 2009). Herald vs gov t: Allah suit to be mentioned on Feb 27, Malaysiakini, 21 November 2008, com/news/93503 (last accessed: 15 June 2009). Herald gets show cause letter, Malaysiakini, 11 August 2008, (last accessed: 15 June 2009). Man challenges dead half-brother s conversion to Islam, The Star, 25 June 2008, asp?file=/2008/6/25/nation/ &sec=nation (last accessed: 15 June 2009). Family loses battle in bodysnatching dispute, Malaysiakini, 7 July 2008, (last accessed: 15 August 2009). Govt to have regulation for converts to inform family, The Star, 10 April 2008, asp?file=/2008/4/10/nation/ &sec=nation (last accessed: 15 June 2009). Islamic ngos disagree to having non- Muslims inform family before embracing Islam, Bernama, 13 April 2008, lite.php?id= (last accessed: 15 June 2009). More time needed to study law on converts, New Straits Times, 14 April

127 Freedom of Religion and Matters Pertaining to Religion 33 See suaram (2007) Malaysia Human Rights Report 2006: Civil and Political Rights, Petaling Jaya: suaram (p ). 41 Ibid Bar Council forum could incite emotions: Najib, The Star, 7 August 2008, asp?file=/2008/8/7/nation/ &sec=nation (last accessed: 15 June 2009). pas strongly opposes Bar Council s conversion to Islam forum, Bernama, 7 August 2008, bernama/v5/newsindex.php?id= (last accessed: 15 June 2009). pkr rebuffs Zulkifli s actions at Bar Council forum, New Straits Times, 13 August 2008, my/current_news/ppauh/news/ ppauh/ /article/index_ html (last accessed: 15 June 2009). Najib: Bar Council was stubborn, The Star, 10 August 2008, my/news/story.asp?file=/2008/8/10/na tion/ &sec=nation (last accessed: 15 June 2009). hindraf, 30 June 2007, Memorandum to the Attorney General on Demolition of Hindu Temples in Malaysia. United States Commission on International Religious Freedom, 5 December 2007, Press release: Malaysia: uscirf Concerned Over Destruction of Hindu Temples and Need for Protection of Freedoms. Submissions ordered in church demolition suit, Malaysiakini, 15 January 2008, news/77045 (last accessed: 15 June 2009). 127

128 Malaysia Human Rights Report

129 chapter 7: REFUGEES, ASYLUm SEEKERS, UNDOCUMENTED MIGRANTS AND TRAFFICKED PERSONS

130 Malaysia Human Rights Report 2008 In 2008, the U.S. Committee for Refugees and Immigrants (uscri), an international refugee rights watchdog, in its World Refugee Survey 2008, ranked Malaysia as one of the ten worst places for refugees. 1 The uscri survey was based on four categories: 1. the country s track record on refoulement (deportation of refugees to their countries of origin where conflict or persecution may still occur) and physical protection for refugees and asylum-seekers; 2. the extent of refugees detention and access to the courts; 3. refugees freedom of movement and residence; and 4. refugees right to earn a livelihood. The report gave Malaysia an F grade (the worst of 5 assessment grades) in the categories of refoulement/physical protection; detention and access to courts; and the right to earn a livelihood; while a D grade (the second worst assessment grade) was given to Malaysia in the category of freedom of movement and residence of refugees. 2 The grading by the uscri was hardly surprising, as the Malaysian government has yet to ratify the 1951 un Convention relating to the Status of Refugees 3 and its 1967 Protocol, and refugees and asylum seekers are still not recognised as a special category of people who need international protection under domestic laws. The Malaysian government maintains a policy that blankets all undocumented migrants, including refugees and asylum seekers, as illegal migrants. All persons found to be undocumented, regardless of their circumstance and how they become undocumented, are subject to harsh immigration laws, namely the Immigration Act 1959/1963. The Immigration Act 1959/ provides the Malaysian police and immigration authorities widespread powers to arrest, detain, and eventually deport undocumented persons. Furthermore, under the Emergency (Essential Powers) Act 1979, as amended by the Essential (Ikatan Relawan Rakyat) (Amendment) Regulations 2005, the government has empowered a highly controversial civilian force known as the People s Volunteer Corps (Ikatan Relawan Rakyat, rela), to arrest and detain any undesirable persons or those suspected of being illegal immigrants. The deployment of these members of civilian volunteers have caused much controversy and public outcry over instances of serious human rights abuses against undocumented migrants (including refugees and asylum seekers) during raids and arrests. Throughout 2008, cases of exploitation of documented and undocumented migrant workers, and the arrest and detention of refugees and asylum seekers continued to be reported on a regular basis. Whipping as a punishment was also carried out on undocumented migrants throughout the year, including those with valid United Nations High Commission for Refugees (unhcr) cards. Under Section 6 of the Immigration Act 1959/1963, persons without documents or valid visa can be sentenced up to five years in prison, fined up to RM10,000 and given up to six strokes of the cane. The Malaysian government is generally distrustful of, and prejudiced against migrants and this is manifested in its policies and statements. It is common for migrants to be blamed for crime and security problems in the country. 5 Despite recent statistics provided by the Inspector-General of Police (igp) Musa Hassan (in 2007) 6 and Home Minister Syed Hamid Albar (in 2008) 7 that showed that only 2% to 3% of the crimes committed in the country were by migrants, the general tendency to blame foreigners persists. The government s prejudice, particularly against refugees, was reflected in Foreign Minister Rais Yatim s statement in December 130

131 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons (Source: unhcr) 2008, requesting the United Nations High Commissioner for Refugees (unhcr) to speed up the process of resettlement of refugees to other countries as they are a sap on our national benefits like public hospitals, schools, food and utilities. 8 This statement is highly inaccurate as refugees in Malaysia pay for their medical treatment while children of refugees are not allowed access to public education. Despite all these cases of non-compliance with international standards, Deputy Prime Minister Najib Razak defended Malaysia s poor track record on the protection of refugees by saying that Malaysia to date has been quite cooperative with some refugees who make their way to Malaysia seeking shelter 9 in response to the uscri s failing grades given to Malaysia. Deputy Foreign Minister Abdul Rahim also denied that Malaysia mistreats refugees and said that refugees are treated well before being resettled to a third country. 10 unhcr, Government Policies and the Status of Refugees in Malaysia The unhcr office in Kuala Lumpur remains the principal actor in the protection and assistance of refugees and asylum seekers. According to the unhcr, there were 22,547 recognised refugees registered under the international agency in Malaysia as of 31 December 2008 while asylum seekers11 numbered 45,411, giving a total of 67,958 registered refugees and asylum seekers in the country. The recognised groups of refugees in Malaysia are predominantly from Burma with the rest coming from Sri Lanka, Somalia, Afghanistan, Iraq, and other countries. 131

132 Malaysia Human Rights Report 2008 In 2008, 17,019 new refugees and asylum seekers were registered by the unhcr (See Table 8.2), while a total of 5,865 refugees were resettled to third countries (See Table 8.3). (Source: unhcr) (Source: unhcr) 132

133 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons Government s Non-Recognition of unhcr s Refugee Status Refugee status is not officially recognised in Malaysian law and recognition by unhcr in itself generally does not provide any special rights under the immigration laws. Although refugees do not receive formal recognition or protection from the government, recognition from the unhcr does provide them with protection under international law and some very limited exemptions from the enforcement of immigration law in Malaysia. This refugee status, however, remains vague in reality as the law enforcement authorities continue to arrest and detain refugees and asylum seekers due to their undocumented status under the immigration laws. unhcr s work is hampered as the government uses its non-ratification of the Refugee Convention as the basis for not protecting refugees. This results in unhcr acting in a semi-official capacity in the protection of refugees in the country. In practice, unhcr generally works on the basis of some ad-hoc understanding with officials at the Immigration Department and police. As a result, its ability to provide protection to refugees and asylum seekers is restricted. Intervention in cases of arrest and detention is difficult, as unhcr must go through the lengthy process of obtaining letters from the immigration headquarters before refugees can be released. Normally, refugees are not released until unhcr can find a third country willing to take the refugees for resettlement. In many cases, due to the delays and overcrowding conditions in detention centres, refugees are often deported before their release can be obtained. Temporary Residence Permit IMM 13 Besides the unhcr, the Home Minister, under powers provided by Section 55 of the Immigration Act can provide some semblance of protection to refugees or asylum seekers by exempting groups from punishment under the Immigration Act and issuing the temporary residence permit called the imm 13 permit. The imm 13 lasts for a year and must be renewed annually. Although the imm 13 permit does provide some benefits for instance, it may allow imm 13 holders to seek lawful employment and send their children to public schools there have been cases where access to education was denied as the Education Ministry required a student visa for the enrolment of imm 13 holders children in public schools. The same was required by private schools. This was because there is no coordination between the Immigration Department and the Education Ministry. 12 One of the key problematic features of the imm 13 permit is that, in practice, the decision to issue the permit is based on an unknown set of criteria and the Home Minister has full discretion in the issuance or cancellation of the permit. 13 In August 2008, the Malaysian government told more than 25,000 Indonesian tsunami refugees from Acheh to leave the country by early January 2009 or face deportation. 14 The Malaysian government had, in 2005, issued more than 30,000 imm 13 permits 15 to Achehnese refugees which legalised their stay in the country in the aftermath of the tsunami which swept Acheh in According to the government, these permits were issued on humanitarian grounds. In August 2007, the Malaysian government announced that the imm 13 permits of some 27,000 Achehnese still in Malaysia after the tsunami could be renewed for another year. Then-Immigration Department director-general Wahid Md Don 133

134 Malaysia Human Rights Report 2008 said the extension was made based on humanitarian grounds as many tsunami victims were reluctant to return to Acheh due to lack of job opportunities. Abuses of Power by RELA Personnel and Immigration Department Officers The People s Volunteer Corps (rela), an agency under the Home Ministry which has been helping in the enforcement of immigration laws in Malaysia, has been criticised by local and international human rights groups for its human rights abuses during the government s crackdown on refugees and undocumented migrants in recent years. Formed in 1972 under the Emergency (Essential Powers) Act 1964, it was originally established to assist, maintain and safeguard peace and security in the country. Since the amendment of the Essential (Ikatan Relawan Rakyat) Regulations in 2005, the powers of rela have expanded tremendously. The amendments give the agency the right to bear and use firearms, stop, search and demand documents, arrest without warrant, and all these powers can be exercised when the rela personnel has reasonable belief that any person is a terrorist, undesirable person, illegal immigrant or an occupier. They have also been given wide powers to raid premises and arrest refugees and undocumented migrants without warrant. Since the amendments to the legislation in 2005, the core activity of the approximately 500,000-strong rela has been to conduct raids and arrest illegal migrants. Throughout the course of the year, raids on neighbourhoods suspected of housing illegal immigrants saw premises being forcibly-entered and refugees being arrested and detained. In addition, reports of rela personnel involved in criminal activities such as robbery and extortion when they are on duty are not uncommon. One of the cases documented by suaram in 2008 was on the trafficking of migrants. The rela member concerned was arrested on 19 May 2008 for transporting six Burmese to Padang Besar, a town bordering Thailand, in the northern state of Perlis. He confessed to transporting undocumented migrants three times previously, being paid RM1, 000 for helping to get each migrant into Malaysia. 17 It must be noted that the extent and number of cases of abuse of power by rela personnel may well be worse as many cases are unreported. Furthermore, as rela personnel do not receive proper and adequate training, wrongful arrests and detentions by rela beyond their mandate are also not uncommon. In May 2008, a staff member of the Pakistan embassy in Kuala Lumpur was detained by rela personnel when travelling to work. The rela personnel did not recognise his identity card that was issued by Ministry of Foreign Affairs. He was released after intervention by the embassy and his identity card was verified. 18 Based on the high number of reports that many rela s untrained personnel have abused their powers, local and international human rights groups have over the years urged the disbanding of the agency. On 5 December 2008, the Malaysian Bar Council once again called for the abolition of the volunteer corps in view of the fact that the situation has not improved from previous years. However, Home Minister Syed Hamid Albar responded by saying that the government had no plans to disband rela but instead will improve the organisation. Syed Hamid also remarked, The Bar Council surely have [sic] better things to do than to call rela to be disbanded. 19 Syed Hamid Albar s response to the Bar Council s call was comparable to that of rela director-general Zaidon Asmuni, who in 2007 called for suaram to be closed down 134

135 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons when the latter urged the government to abolish rela. 20 Notwithstanding the concerns raised by various human rights groups, the government has repeatedly proposed that rela be upgraded into a full-fledged department with greater powers. In June 2007, the Home Ministry announced its plans to restructure rela into a separate department with greater authority and powers to source its own funding. The Ministry announced that it plans to table a bill on rela in Parliament which will make rela a full-fledged law enforcement department. 21 To date, however, the bill has not been made public. On 21 April 2008, Home Minister Syed Hamid Albar said that a draft proposal to upgrade rela to an enforcement agency was being finalised for consideration by the government. 22 Rights groups have expressed fears that these proposals to empower rela with further enforcement powers will legitimise and strengthen the powers of arrest, search, and detention functions of a body which has been known to act arbitrarily and in an overzealous manner. 23 Since 15 January 2008, 1,840 rela personnel were placed in 13 Immigration Detention Centres nationwide to oversee the security aspect of these detention centres. This was following the handing over of Immigration Detention Centres from the Prisons Department to the Immigration Department. 24 The use of rela personnel to manage the Immigration Detention Centres is due to the shortage of personnel faced by the Immigration Department. Although supposedly a temporary measure, 25 it has been a major concern among rights groups who pointed out this move may worsen the situation in the centres considering the volunteer corps tarnished reputation as well as its inexperience in the handling of detention centres. Since rela personnel were put in charge of the security aspect of the Immigration Detention Centres, two major riots have been recorded to date, in Lenggeng (April 2008) and Semenyih (June 2008). On 3 July 2008, Deputy Home Minister Chor Chee Heung revealed that RM15 million was approved as budget for conducting operations on undocumented migrants for the year During operations, rela members are given an allowance of RM4 an hour and rela members with positions of platoon leaders and above are given RM5.80 an hour. He also stated that a rela Disciplinary Committee has been formed and disciplinary action will be taken against any members or officers who abuse their powers during duty. In the period between 2007 and April 2008, disciplinary actions have been taken against nine rela members. 26 In July 2008, Immigration Department director-general Wahid Md. Don and deputy director-general Abdul Rahman Rothman were arrested and investigated by the Anti- Corruption Agency (aca) for alleged graft involving the issuance of permits and extensions of stay for foreign workers. Mass Arrests, Detentions, Prosecutions and Deportations of Undocumented Migrants in 2008 Throughout 2008, Malaysia continued its intensive crackdown on illegal immigrants, resulting in the arrest, detention and deportation of thousands of undocumented migrants, including refugees and asylum seekers. Massscale operations to nab undocumented migrants have resulted in serious human rights abuses, including cases where detainees were beaten up by the authorities and detained under inhumane conditions in detention centres. In one case in November 2008, an undocumented migrant died while trying to flee from a rela raid in Shah Alam, Selangor. During a parliamentary debate on 3 De- 135

136 Malaysia Human Rights Report 2008 A house where refugees stay in the northern state of Penang. Raids and mass arrests by Malaysian government authorities are commonplace in makeshift homes of refugees like this one. cember 2008, Deputy Home Minister Chor Chee Heung revealed that 55,618 undocumented migrants (24,093 Indonesians, 9,512 Filipinos, 7,115 Bangladeshis, 4,510 Burmese, 2,024 Indians and 1,772 Thais) were arrested in 5,804 operations in the period between January 2008 and September In the same period of time, 42,389 were deported and RM1,059,534 was spent on deportation costs. 27 Earlier in May 2008, Immigration Department enforcement director Ishak Mohammad stated that a total of 20,098 undocumented migrants were arrested in 2,050 operations between January and April This number was a 15% increase compared to the same period in the previous year. About 15,000 were deported while over 7,500 were charged in court, mainly for immigration offences. 28 On 14 June 2008, 48 refugees (45 Burmese, including six women, two Indonesians, and one Nepali) were arrested during a raid by the Immigration Department and rela at a jungle camp in Kepong, in the outskirts of Kuala Lumpur. 29 According to reliable information received by suaram, two of the 45 Burmese refugees arrested were registered with unhcr. On 17 June 2008, 80 undocumented migrants, including 16 women were arrested in a joint-raid conducted by the Immigration Department, the Ampang Jaya Town Council, rela, the Selangor Islamic Religious Affairs Department (Jabatan Agama Islam Selangor, jais) and the police in Ampang, Kuala Lumpur. 30 On 21 June 2008, The New Straits Times 136

137 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons A refugee who sustained injuries to his neck while trying to escape from being arrested by the authorities. reported that three Rohingya unaccompanied minors had been detained at Kuala Lumpur International Airport s Immigration Detention Centre for more than two weeks. After they were arrested at Ampang, their mothers took their unhcr cards to the police station where they were detained but the cards were not recognised by the police. 31 On 24 June 2008, Deputy Prime Minister Najib Razak announced that the Federal Government would flush out the illegal immigrants from the East Malaysian state of Sabah and deport them to their home country. In August 2008, Sabah Deputy Police Commissioner Abdul Razak Abdul Ghani revealed that at least 200 personnel from the police, the army, the Immigration Department, the National Registration Department and rela would be deployed during the operation. It was also revealed that that around RM50 million had been allocated for the crackdown. 32 According to Philippine Foreign Undersecretary Esteban Conejos, there are at least 200,000 undocumented Filipino workers in Malaysia. 33 Within 72 hours of the mass operation, it was reported that more than 1,000 Filipinos and Indonesians had been detained by Malaysian authorities in Sabah. Over 3,000 people were brought to the screening centres, out of which 1,032 were found to be undocumented. They were sent to temporary immigration detention centres in Menggatal and newly-opened Kota Belud while awaiting deportation. 34 On 14 August 2008, Najib Razak was reported as saying that 500 people without valid immigration papers had been detained in Sabah within a week of the mass operations. 35 In response to the crackdown of migrants in Sabah, 21 civil society organisations, in a memorandum to the Malaysian government, called for an immediate halt to the crackdown. The civil society organisations expressed their concerns that the drastic measures and the massive scale of operation taken by the government in dealing with such a complex issue without proper study, planning and training will only be a recipe for massive human rights violations. 36 The simplistic but drastic measure of flushing out all illegal immigrants from Sabah was indeed problematic as those who were considered illegal as non-document holders may be legitimate residents or citizens under the Federal Constitution and the law, including persons who fulfill the criteria for neutralisation, persons married to Malaysians, children of mixed marriages, and children of persons who may otherwise be stateless (i.e. not citizens of other countries). There are also groups such as indigenous peoples who are not registered with the authorities and rendered stateless; refugee and asylum seekers who have fled from political persecution in 137

138 Malaysia Human Rights Report 2008 their countries; migrant workers who are exploited and become undocumented migrants; and victims of trafficking. 37 In October, a fact-finding committee in the Philippines revealed that Filipino immigrants deported from Sabah have been severely beaten by the Malaysian police while in detention. The committee also revealed that thousands of Filipino remained in detention centres under inhumane conditions. 38 In September, 600 undocumented workers were rounded up at a market in Selayang, Kuala Lumpur. 39 In November 2008, 34 undocumented migrants were arrested by the police after 1,038 were screened during a crackdown operation on undocumented migrants in Malacca. The group comprised 15 Indonesians, 9 Bangladeshis, 7 Nepali and 3 Burmese. 40 On 26 November 2008, an undocumented Indonesian migrant died while another was injured when they fell from a flat in Shah Alam, Selangor during a rela raid which resulted in 103 undocumented migrants being detained. 41 In a parliamentary session on 12 November 2008, Deputy Foreign Affairs Minister Abdul Rahim Bakri revealed that there were 106 asylum seekers from Southern Thailand detained in the Ajil Immigration Detention Centre in the eastern Peninsula Malaysia state of Terengganu. In 2007, 11 Thais volunteered for repatriation and in 2008, 14 followed suit. He said that he hoped that the remaining 106 would do the same. 42 Access to Justice From December 2006 to March 2007, 14 Sessions Courts were set up at Immigration Detention Centres to speed up the processing of immigration cases. In many cases, migrants facing charges who were brought to court were either unable to understand the charges read to them, secure legal assistance, or obtain necessary assistance to prove their legal status in the country. Many had pleaded guilty either unknowingly or in order to avoid prolonged and indefinite detention, despite being innocent of charges brought against them. Between March and May 2007, volunteer lawyers and pupils from the Bar Council Legal Aid Centres held watching briefs in six of such courts, namely in the Immigration Detention Centres in Semenyih, Langkap, Juru, Pekan Nenas, Belantik (Kedah) and Machap Umboo (Malacca). In the watching briefs, lawyers observed that 94.8% of the migrants facing charges at these courts were unrepresented while 89.9% pleaded guilty; 74.4% of the accused were not told of the consequences of their plea while in 82.5% of the cases, the judge did not ask questions for clarification as to their age, sickness or family background. Between January and April 2008 alone, more than 7,500 migrants were charged in court, mainly in relation to immigration offences, including not having valid travel documents, overstaying and abusing their visit passes. 43 Conditions of Detention In 2008, raids continued to be conducted by rela and sometimes jointly with the Immigration Department, the police and other law enforcement agencies. The problem of overcrowding at immigration detention centres has now reached a critical stage. Former detainees in the Semenyih camp, for example, reported to suaram that up to 400 inmates are housed in a cell measuring 50 by 25 square feet with only four toilets available for all inmates. It has further been reported that several centres, including those in Semenyih and Sepang in Selangor, and others in Johor and Melaka, are operating at up to 30 percent over capac- 138

139 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons ity. 44 This has resulted in deplorable living conditions, giving rise to concerns regarding the lack of adequate access to healthcare and to risks of diseases and possible deaths as a result of exposure to unsanitary environments. Detainees report about frequent ethnic violence among inmates, abuse by guards, deplorably deficient diet, unhygienic environment and insufficient water supply in detention centres. While the situation varies from one detention centre to another, conditions in the remotely located depots are reported to be worse. Based on a series of interviews with former detainees in 2007, it was revealed that detainees in the Pekan Nenas detention camp, located in Johor near the Singaporean border, faced inadequate water supply and grossly insufficient diet. Similarly, those detained at the Thai border or other immigration camps far away from Kuala Lumpur have regularly complained of such problems. 45 Severe shortage of clean water supply was also reported in the Lenggeng camp in Negeri Sembilan where only two big pails of water are given to each block of detainees each day. This is shared among the block detainees who number more than 200 people. As a result of this, some detainees resort to drinking water from the toilet cisterns. 46 On-site medical facilities are unavailable in most of the immigration depots. Detainees who complain of illness are given two aspirins or penicillin-based pills. Detainees are only brought to a hospital after they are critically ill. The spread of communicable disease is another area of serious concern among detainees held at various immigration camps. While blood tests are required for every inmate entering a prison, there is no such practice in place for those detained at immigration depots. Thus, many detainees contract diseases such as tuberculosis and other skin diseases as a result of living in a congested environment and sleeping on concrete floors without Refugees and undocumented migrants in the compounds of an Immigration Detention Centre. Inhuman conditions have led to at least two major riots in these detention centres throughout

140 Malaysia Human Rights Report 2008 blankets or beddings. 47 Because immigration detention centres are filled to capacity, migrants and refugee children have been placed together with adult inmates. 48 This practice contravenes the Convention on the Rights of the Child (crc), 49 to which Malaysia is a signatory. Article 37(c) of the convention specifically states, [ ] every child deprived of liberty shall be separated from adults unless it is considered in the child s best interest not to do so [ ]. According to unhcr, as at 31 December 2008, approximately 60 minors were still detained in immigration detention centres in the country. On 8 July 2008, Deputy Home Minister II Wan Ahmad Farid revealed that there were 1,535 cases of deaths in prisons, rehabilitation centres and immigration detention centres in the period between 2003 and However, he did not specify the number of deaths in immigration detention centres alone. The main causes of the deaths in these places of detention are diseases such as hiv/aids, septicemia, pulmonary tuberculosis, acute myocardial infection, cancer, asthma and infection of the intestines, liver, lungs, throat and so on. There are also cases of death caused by suicide, fights with other detainees, internal bleeding in the brain and slips in toilets. 50 In its 2008 annual report, suhakam, based on 37 visits to Immigration Detention Centres throughout the year, validated the grave problems in relation to conditions of detention. With regard to Immigration Detention Centres, the Commission highlighted, among others: 51 the problem of overcrowding; unaccompanied children being placed with adults at various Immigration Detention Centres, except at the Menggatal Centre in Sabah; no medical officers in most Immigration Detention Centres and in cases of emergency, the detainees are sent to the nearest clinic or hospital; and a shortage of officers and staff at almost all prisons and Immigration Detention Centres. Riots in Immigration Detention Centres Over the years, many riots have occurred in various Immigration Detention Centres. Most of the riots occur following incidences of abuses and violence against detainees or unbearable conditions of detention. On 21 April 2008, a riot involving 60 Burmese broke out at the Lenggeng Detention Centre. According to mainstream press, the riots were started by 60 Myanmar detainees after they were told that their applications for resettlement to a third country had been rejected by unhcr. Fourteen detainees were arrested under Sections 148 (possession of dangerous weapons) and 438 (committing mischief by fire or use of explosive substance) of the Penal Code. 52 However, the unhcr denied having rejected any applications made by the refugees at the Lenggeng Detention Centre, the supposed cause of the riot as claimed by the Immigration Department. 53 Testimonies by detainees in the Lenggeng Detention Centre reveal that nine detainees were badly beaten on 20 April 2008, one day before the riot which purportedly sparked anger amongst the other detainees. On 24 April 2008, suhakam commissioner Siva Subramaniam, after visiting the Lenggeng Detention Centre, said that overcrowding was the cause of tension which resulted in a riot at the detention centre. Siva Subramaniam revealed that the detention centre was overcrowded with 1,090 detainees from 14 countries and that there was a lack of personnel to manage and guard the detention centre, with only 40 positions out of the 140

141 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons required 208 immigration personnel being filled. Furthermore, most of the immigration personnel at the Lenggeng Detention Centre were newly-recruited and had not been properly trained. The suhakam commissioner described the situation in the detention centre as a timebomb, 54 thus revealing that the Immigration Department had diverted the responsibility for the riot to the unhcr. Upon receiving a memorandum on the Lenggeng riots from three civil society groups suaram, Tenaganita, and the Bar Council s human rights committee on 15 May 2008, Siva Subramaniam was quoted as saying, The events that took place were simply torture. 55 He also revealed that when suhakam visited the detention centre in April 2008, detainees showed the Commissioners burnt marks inflicted by cigarettes. They claimed to have been beaten as well. Moreover, in its 2008 annual report, suhakam revealed that Immigration Department officers had inflicted injuries on eight detainees after finding a cigarette butt in a cell. 56 On 24 June 2008, detainees at another Immigration Detention Centre in Semenyih rioted as they were dissatisfied with the overcrowded condition of the detention centre. 57 Each block was meant to accommodate people but up to 400 were placed in each block. According to an interview with an exdetainee from Semenyih, before the riot on 20 June 2008, 42 Burmese were beaten up by immigration officers. They were whipped with rubber hose all over the body, from the soles of their feet to their head. Many detainees were bleeding after the beatings. On 7 September 2008, English-language daily The Star reported that a Malaysian citizen, M. Rajeshvari, was detained in Lenggeng Immigration Detention Centre for 11 months. She was arrested for being unable to prove that she was a Malaysian citizen as she had lost her identification card and forgotten her number. She was six months pregnant when she was arrested and detained and had to give birth in detention. 59 In response to the news report, suhakam lambasted the Immigration Department for allowing a citizen to be held in the detention centre for 11 months. 60 Trafficking in Persons In June 2007, the United States Department of State in its Trafficking in Persons Report 61 placed Malaysia on Tier 3 the lowest of three categories of countries relating to human trafficking. Countries which are placed in Tier 3 are those whose governments do not fully comply with the minimum standards and are not making significant efforts to do so. 62 In the report, it was also noted that many migrants who enter Malaysia voluntarily are later subjected to conditions of forced labour. Sex trafficking victims in Malaysia, mainly from Indonesia, Thailand, the Philippines, Cambodia, Vietnam, Burma, and the People s Republic of China, are frequently recruited with the promise of a job as a domestic worker, food service or factory worker. 63 According to the United States Department of State report: The Government of Malaysia does not fully comply with the minimum standards for the elimination of trafficking and is not making significant efforts to do so. Malaysia is placed on Tier 3 for its failure to show satisfactory progress in combating trafficking in persons [ ]. The Malaysian government needs to demonstrate stronger political will to tackle Malaysia s significant forced labour and sex trafficking problems. 64 This prompted the Malaysian government to legislate an anti-trafficking law. The Anti-Trafficking in Persons Bill was tabled and passed in Parliament in April The new law makes human trafficking an offence punishable with a jail term of up to 20 years 141

142 Malaysia Human Rights Report 2008 and a fine of up to RM500,000. Before the creation of the Act, Malaysian laws made no distinction between trafficked persons and illegal immigrants in the country. Further, Malaysia has also not signed or ratified the 2000 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children. 65 However, despite the legislation of the Anti-Trafficking in Persons Act in 2007, the government does not appear to be serious in tackling the issue of trafficking. This was clearly illustrated in the government s lackadaisical response to a national television exposé in May 2008 of Malaysian immigration officers involvement in human trafficking in the Malaysia-Thai border. The exposé, aired on national television station ntv7, was brought up by opposition Member of Parliament Charles Santiago in July In response, the government said that it would set up a special committee to investigate the matter. 66 However, in October 2008, Home Minister Syed Hamid Albar, in a parliamentary reply to Charles Santiago, said that the special committee did not find any officers involved in such trade, despite the existence of concrete evidences of human trafficking activities involving Malaysian immigration officers. 67 After the broadcast of the documentary on national television station ntv7, suaram received a report from one of the refugees interviewed in the documentary who claimed to be threatened and nearly kidnapped by trafficking agents as a result of his exposé. Summary The continued use of the controversial and inadequately trained-rela in mass-scale operations to arrest and detain undocumented migrants and the government s non-recognition of the status of refugees registered with the unhcr are but two of the many aspects of the government s blatant disregard for international norms and standards relating to the rights of refugees, asylum seekers and undocumented migrants. No improvement was made with regard to conditions of detention with problems of overcrowding reaching critical levels. Undocumented migrants continue to be hoarded into increasingly overcrowded and insanitary immigration detention centres. To make matters worse, rela, despite its tarnished record of serious human rights abuses, has been mandated to manage the security aspect of Immigration Detention Centres nationwide. The year 2008 saw two major riots in Immigration Detention Centres a manifestation of the unbearable conditions in the badlymanaged places of detention. These serious human rights violations, made worse by the Malaysian government s unwavering position not to disband rela and its refusal to ratify the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, leave little doubt on the assessment made by an international watchdog that Malaysia was one of the ten worst places for refugees in

143 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons End Notes U.S. Committee for Refugees and Immigrants (2008) World Refugee Survey 2008: Worst Places for Refugees, Washington DC: uscri (pp. 3-7). Ibid. (pp ). Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under the General Assembly resolution 429 (V) of 14 December Act 155, as amended by Immigration Regulations 1963 (Act A719). For instance, Rise in crime? Blame the foreigners, Malaysiakini, 8 March 2007, news/64251 (last accessed: 15 June 2009). Ibid. Kadar jenayah naik bukan sebab pati [Rise in crime rate not caused by illegal immigrants ], Utusan Malaysia, 21 May Asean fund by February, The Star, 17 December Malaysia Disagrees with World Refugee Survey, Bernama, 20 June 2008, lite.php?id= (last accessed 27 November 2008) has applied for recognition as a refugee in another country, and is awaiting a decision on their application. unhcr official website (last accessed: 15 June 2009). fidh & suaram (2008) Undocumented migrants and refugees in Malaysia: Raids, Detention and Discrimination, Paris and Kuala Lumpur: fidh & suaram. In August 2006, the government started a registration process for approximately 12,000 Rohingya refugees, some of whom had been in Malaysia since 1982, with the purpose of issuing imm 13 permits to them. However, after only two weeks the registration process was suddenly suspended indefinitely, following allegations of bribery, fraud and corruption in the registration process. Among others, there were accusations that non-rohingyas were registered with the help of agents who were alleged to have taken bribes. The government s decision to leave out the unhcr from the registration or identification process could have contributed to allegations of fraud and its eventual suspension. To date, the imm 13 registration process for the Rohingyas is still indefinitely suspended and the government has not given any indication for its resumption. It is unclear as to how many Rohingyas were issued the permits during the 17 days registration before it was aborted. Jan 2 deadline for Aceh tsunami refugees to leave, New Straits Times, 26 August No mistreatment of refugees, New Straits Times, 23 July unhcr s definition of an asylum seeker is a person who has left their country of origin, 15 imm 13 is a temporary permit which provides legal recognition to holders. The permit is issued by the Home Minister under Section 55 of the Immigration Act. See discussion on this in the following sec- 143

144 Malaysia Human Rights Report tion on unhcr and Refugees and Asylum Seekers in Malaysia. However, as the government allowed the Achehnese community to handle the process instead of unhcr, not all of the refugees recognised by the unhcr received the permits. Rela man caught helping illegals, New Straits Times, 20 May Pakistan embassy man held by Rela personnel, The Star, 10 May No plans to disband Rela, says Syed Hamid, The Star, 8 December Zaidon Asmuni, interview, Soal Jawab: Kritikan tak jejas semangat Rela jaga keamanan [Q&A: Criticisms will not affect Rela s determination to ensure peace], Berita Minggu, 3 June Abdul Rahman Ibrahim, 25 June 2007, Second Meeting of the Fourth Session of Eleventh Parliament, Hansard, DR (p. 3) gov.my/hindex/pdf/dr pdf (last accessed: 15 June 2009). See also Rela dept bill to be tabled, The Star, 26 June Rela may be upgraded to an enforcement agency The Star, 21 April For instance, Amnesty International Malaysia, 5 July 2007, Press statement: rela Bill will worsen the climate of arbitrary law enforcement. Handover of depots for illegal, The Star, 16 January Ibid Chor Chee Heung, 3 July 2008, Second Meeting of the First Session of the Twelfth Parliament, Hansard, DR (p. 14) pdf/dr pdf (last accessed: 3 December 2008). Chor Chee Heung, 12 December 2008, Third Meeting of the First Session of the Twelfth Parliament, Hansard, DR (p. 22) parlimen.gov.my/hindex/pdf/dr.% pdf (last accessed 15 June 2009). Increase in arrests, says Immigration, New Straits Times, 20 May Penempatan haram pati dalam hutan digempur [Illegal jungle settlement of migrants raided] Utusan Malaysia, 15 June 2008; Village of illegals exposed, The Star, 15 June pati dicekup [80 illegal immigrants nabbed], Utusan Malaysia, 18 June 2008; 80 held in raid on illegal immigrants, New Straits Times, 18 June Boys held despite having documents, New Straits Times, 21 June Days are numbered for Sabah illegals, The Sun, 1 August Says Chief Minister: Flushing out of illegals in Sabah will be done humanely, Asia News Network, 4 August 2008, globalnation.inquirer.net/news/breakingnews/view/ /flushing-out-of-illegals-in-sabah-will-be-donehumanely (last accessed: 15 June 2009), 1,000 Filipino, Indonesian illegals jailed 3 days in Sabah, Asia News Network, 11 August 144

145 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons , news/breakingnews/view/ /1000-filipino-indonesian-illegals-jailed-3-days-in-sabah (last accessed: 15 June 2009). In the massive 2002 crackdown, some half a million irregular migrants left Malaysia en masse to avoid being arrested under the immigration laws which Memorandum on the Government Crackdown on Irregular Migrants in Sabah, memorandum signed by 21 civil society organisations, dated 6 August Ibid. Filipino deportees beaten up by police, Malaysiakini, 4 October 2008, (last accessed: 15 June 2009). War on illegal foreign workers, The Star, 21 September illegal immigrants nabbed in Malacca, The Star, 10 November Illegal dies during raid, New Straits Times, 27 November Abdul Rahim Bakri, 12 November 2008, Third Meeting of the First Session of the Twelfth Parliament, Hansard, DR (p. 14) pdf (last accessed: 15 June 2009). Increase in arrests, says Immigration, New Straits Times, 20 May Detention centres bursting at seams, New Straits Times, 22 July Series of interviews with former detainees, January-April Interview with Burmese refugee, 2 May Series of interviews with former detainees, January-April Series of interviews with refugees and former detainees, January-April 2007 and May Adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 44/25 of 20 November Wan Ahmad Farid Wan Salleh, 8 July 2008, Second Meeting of the First Session of the Twelfth Parliament, Hansard, DR (p. 14) pdf (last accessed: 3 December 2008). suhakam (2009) Annual Report 2008, Kuala Lumpur: suhakam (pp ). Illegals riot at Lenggeng detention facility, The Star, 22 April unhcr: No rejection of applications by illegals at Lenggeng, The Star, 23 April Infrastructure at Detention Camps Must Be Improved Suhakam, Bernama, 24 April 2008; Lenggeng detainees in a state of tension, Malaysiakini, 24 April 2008, news/81861 (last accessed: 15 June 2009). Suhakam: It was simply torture in Lenggeng detention camp, Malaysiakini, 15 May 2008, 145

146 Malaysia Human Rights Report 2008 com/news/82902 (last accessed: 15 June 2009). 56 suhakam (2009) op. cit. (p. 45) held in detention camp riot, New Straits Times, 26 June The ex-detainee who spoke to suhakam is a Burmese asylum seeker who was one of those who were beaten. Malaysian spends 11 months at depot for illegals, The Star, 7 September Suhakam raps Immigration, The Star, 8 September United States, Department of State (2007) Trafficking in Persons Report, Washington D.C: us Department of State Ibid. (p. 27). Ibid. (pp ). Ibid. (p. 143) Adopted and opened for signature, ratification and accession by the un General Assembly resolution 55/25 of 15 November Special Committee Investigates Alleged Trafficking Of Myanmars, Bernama, 9 July 2008, bernama/v5/newsindex.php?id= (last accessed: 15 June 2009). Pemberitahuan pertanyaan bagi jawab lisan Dewan Rakyat [Dewan Rakyat parliamentary reply to Charles Santiago, Klang], question number 33, reference number 1294, dated 22 October

147 chapter 8: LAW AND THE JUDICIARY *

148 Malaysia Human Rights Report 2008 Two decades on, the 1988 Judicial Crisis was revisited not by the usual civil society watchdogs but, in a significant breakthrough, by the Barisan Nasional (bn) government itself when the exposé of the notorious V.K. Lingam videotape forced the authorities to establish a Royal Commission of Inquiry on the matter. This was followed by the Prime Minister announcing ex-gratia payments to the six affected judges in the 1988 Judicial Crisis and the creation of a Judicial Appointments Commission. Ex-gratia Payments to Affected Judges At a dinner hosted by the Malaysian Bar on 17 April 2008, the Prime Minister Abdullah Ahmad Badawi announced two measures to restore confidence in the Malaysian judiciary. One was to award goodwill ex-gratia payments to the six judges who were suspended (three were eventually dismissed) in the 1988 Judicial Crisis. The payments were not compensation and there was no outright apology from the government to the judges. However, the Prime Minister s acknowledgement of the dismissed judges contributions, pain and loss was the closest to regret expressed by any member of the government in the 20 years since their dismissal. The second measure was the creation of a Judicial Appointments Commission to evaluate and vet candidates in a systematic and credible manner based on clearly defined criteria. At first, the government steadfastly refused to disclose the amount of the ex-gratia payment. However, in November, the de facto Minister for Law Nazri Aziz (who resumed his old job after Zaid Ibrahim who was appointed after the 8 March General Election in Malaysia resigned) told Parliament that the total amount paid out was RM10.5 million, which was allocated as follows: former Lord President (Chief Justice) Salleh Abbas (RM5 million), Azmi Kamaruddin and George Seah (RM2 million each), and Wan Hamzah Mohd Salleh, the late Eusoffe Abdolcadeer and the late Wan Suleiman Pawanteh (RM500,000 each). Independent Panel of Eminent Persons Not waiting for the Government to get its act together, the Malaysian Bar Council, together with lawasia and the International Bar Association s Human Rights Institute, established a Panel of Eminent Persons to review the events of the 1988 Judicial Crisis. The Panel comprised the Honourable Mr. Justice (Retd.) J.S. Verma, former Chief Justice of India; the Honourable Justice (Retd.) Fakhruddin G. Ebrahim, former Judge of the Supreme Court of Pakistan; Dr. Asma Jahangir, an advocate of the Supreme Court of Pakistan and the un Special Rapporteur on Freedom of Religion or Belief; Abdul Aziz Abdul Rahman, a senior legal practitioner from Malaysia; Dr. Gordon Hughes, a senior legal practitioner from Australia and former lawasia President; and Bill Davidson, a senior legal practitioner from Malaysia. The Panel of Eminent Persons, chaired by Justice Verma, met in the course of 2008 and released its own report dated 26 July. The Panel concluded that not only was the Lord President Salleh Abbas totally innocent and none of the charges against him had any merit, but in fact, he was performing his constitutional duty to uphold and protect the doctrine of separation of powers and the rule of law in the larger interest of the country. The conclusion was inevitable that the removal of Lord President Salleh Abbas was non est., not a legitimate act. On a review of the findings and the reports of the First and the Second Tribunals, 148 *This chapter was written by Andrew Khoo, co-chair of the Malaysian Bar Council s Human Rights Committee.

149 Law and The Judiciary and on consideration of the definition and meaning of judicial misbehaviour as above, the Panel concluded that the composition of the Tribunals, the process adopted by them, and the findings and conclusions arrived at against the Lord President Salleh Abbas, and the two Supreme Court judges, Wan Suleiman and Datuk Seah, as well as their recommendation for removal of the Lord President and the two judges, were not justified or otherwise appropriate in the circumstances of the two cases. Accordingly, the removal of the three from their offices was unconstitutional and again not a legitimate act. Hurriedly passed Judicial Appointments Commission The Government tabled the Judicial Appointments Commission Bill in Parliament on 11 December. The main features of the Bill are: it applies to the appointment of judges of the superior courts - Federal Court, Court of Appeal, High Court, judicial commissioners and appointments of Chief Judges of Federal Court, High Court in Malaya, High Court in Sabah and Sarawak and President of the Court of Appeal; the Prime Minister must uphold the continued independence of the judiciary and support the judiciary and the need for public interest to be properly represented; apart from the Chief Justice, the President of the Court of Appeal and the Chief Judges of the High Courts of Malaya and Sabah and Sarawak, the Commission shall consist of a Federal Court judge and four eminent persons, who are not members of the executive or other public service (appointed by the Prime Minister) who shall not hold office for more than two years but who are eligible for reappointment. However no member is allowed to hold office for more than two terms; Commission members shall be paid such allowances as the Prime Minister may determine; the President of the Court of Appeal shall act as the Commission Chairman temporarily for the period when the office of the Chairman is vacant, Chairman is absent or for any reason unable to perform his functions; Commission shall determine its own procedure and may set up any committee it deems fit to assist in the implementation of its functions; No Commission members shall incur personal liability for any loss or damage caused by any act or omission in administering the affairs of the Commission, unless the loss or damage is occasioned by an intentionally wrongful act or omission on their part; To select suitably qualified persons who merit appointment as judges of the superior court for the Prime Minister's consideration; To formulate and implement mechanisms for the selection and appointment of judges of the superior court; A candidate is qualified for selection if they fulfil the criteria under Article 123 of the Federal Constitution; All judicial commissioners appointed before the coming into effect of this Act may apply to be High Court judges; Commission members, officers and servants are obliged to ensure the secrecy of all information and documents whether during or after the tenure of office. Offenders are liable to a fine not exceeding RM100,000 or imprisonment for a term not exceeding two years or both; and No prosecution in respect of any offence 149

150 Malaysia Human Rights Report 2008 under the Act shall be instituted except by or with the consent of the Public Prosecutor. The Bill was criticised for still vesting too much power in the hands of the Prime Minister. It is he who appoints the four eminent persons and can remove them at will. And by also having the power to choose which Federal Court judge sits as a member of the Commission, the Prime Minister effectively controls the appointment of the majority of the Commission. Further, the Prime Minister is not bound to choose a candidate for high judicial office from among those shortlisted by the Commission. (Any fetter on the Prime Minister s discretion would have required an amendment to the Federal Constitution, which the Barisan Nasional government wanted to avoid now that it did not have a two-thirds majority in Parliament). The Judicial Appointments Commission Act was passed on 13 December. Royal Commission of Inquiry The second event related to the 1988 Judicial Crisis was the commencement of the hearings of the Royal Commission of Inquiry established to investigate the video clip showing a senior lawyer by the name of V.K. Lingam speaking over the telephone allegedly with the then-chief Judge of Malaya Ahmad Fairuz Sheikh Abdul Halim (who eventually became the Chief Justice of Malaysia and who retired on 31 October 2007) on the issue of the appointment and promotion of judges. The video clip was supposed to have been recorded sometime in 2001 or 2002, but contained references to incidents dating back to The Royal Commission of Inquiry was chaired by Haidar Mohd Noor, a former Chief Judge of Malaya and who, interestingly enough, was Chief Registrar of the Supreme Court during the 1988 Judicial Crisis. It was he who had asked the court registry to lock up the Supreme Court seal, which prevented the judges from convening an urgent sitting to hear an interim stay application by former Lord President Salleh Abbas against a tribunal which had been set up to decide on his alleged misconduct. The other members of the Royal Commission of Inquiry were former Chief Judge of Sabah and Sarawak Steve Shim Lip Kiong, retired Court of Appeal Judge Mahadev Shankar, former Solicitor-General Zaitun Zawiyah Puteh and Human Rights Commission of Malaysia commissioner Professor Emeritus Dr Khoo Kay Kim. The terms of reference of the Royal Commission of Inquiry were to: Enquire and ascertain authenticity of the video clip; Enquire and identify the person in the video clip, to whom he was speaking and the persons mentioned in the conversation; Enquire and ascertain the truth of the content of the conversation; Determine whether there is misconduct by the person or persons identified or mentioned in the clip; and Recommend appropriate action against the person or persons identified or mentioned in the clip if found to have committed any misconduct. All the members of the Royal Commission of Inquiry at some stage in the proceedings faced calls to recuse themselves on the basis of past or present connection with one or more of the personalities involved or mentioned in the video tape, or with potential witnesses, or with cases involving such personalities or witnesses. The list of witnesses ultimately included former Prime Minister Dr. Mahathir Mohamad, three former Chief 150

151 Law and The Judiciary Justices, a former Chief Secretary to the Government, a current Cabinet minister, a prominent entrepreneur, V.K. Lingam himself, his estranged brother, his former secretary, and various officers of the Anti-Corruption Agency. In all, 21 witnesses were called. The hearings of the Royal Commission of Inquiry began on 14 January 2008 and continued until 15 February, sitting for 17 days. Written submissions from various counsels were received until 5 March. Although the Royal Commission of Inquiry was supposed to have produced its report by 11 March, it was granted several extensions until 9 May to do so. The Royal Commission of Inquiry found that: It was indeed former Chief Justice Tun Ahmad Fairuz who was talking to prominent lawyer Datuk V.K. Lingam on the telephone. The video clip was authentic and that the conversation was true in substance. It was lawyer Loh Mui Fah whom Lingam was speaking to after his telephone conversation with Ahmad Fairuz. There was sufficient evidence of misbehaviour by certain persons mentioned or identified in the clip. There was sufficient reason for the relevant authorities to take appropriate action against those implicated for breaches of the Sedition Act, the Penal Code, the Official Secrets Act, the Legal Profession Act and other laws. The Royal Commission of Inquiry recommended that the Government set up a Judicial Appointments Commission and to undertake other necessary reforms. The evidence presented during the Royal Commission of Inquiry showed that the promotion and appointment of judges in the upper echelon of the Judiciary was open to interference and manipulation by the Executive and private citizens. The Royal Commission of Inquiry also recommended to the Government that judicial powers be returned to the civil courts. On 16 May, the Cabinet ordered the Attorney-General to immediately direct agencies to investigate allegations levelled at Dr Mahathir, Ahmad Fairuz and Lingam, as well as former chief justice Mohd Eusoff Chin, former minister in the Prime Minister's Department Tengku Adnan Tengku Mansor, prominent entrepreneur Vincent Tan. The report was eventually made public on 20 May. On 21 May, the Attorney-General announced that he had ordered a thorough follow-up on all the findings of the Royal Commission of Inquiry. The findings of the Royal Commission of Inquiry were then made the subject of a leave application for judicial review by five out of the six persons highlighted in the report (the exception being the former Prime Minister Dr. Mahathir). The leave application for judicial review was rejected by High Court judge Kadir Musa on 12 December. Compromising the Independent Police Complaints and Misconduct Commission The Government unveiled the Special Complaints Commission Bill to Parliament on 13 December The (then) de facto Minister for Law Nazri defended the Bill from accusations that the Special Complaints Commission (scc) was a watered-down version of the Independent Police Complaints and Misconduct Commission (ipcmc) by saying that it was only right that the scc address the complaints of misconduct not just against the police but on all enforcement agencies. The Government did not want the police to be the only agency on the receiving end of public com- 151

152 Malaysia Human Rights Report 2008 plaints. He said the Government could not have a special commission for each agency. He added that the scc would not address allegations of corruption as stipulated under the ipcmc as any wrongdoing which had an element of corruption would be dealt with by the Anti-Corruption Agency. There was no need for a parallel body to address corruption. The ipcmc would only play an investigative role. It was akin to a complaints bureau with investigative powers, and not another court. However, despite these brave words, the scc Bill was subsequently withdrawn from consideration by Parliament and was only reintroduced after the General Elections of 8 March In May, the Government announced that it was withdrawing the scc Bill. The government has clearly shown that it lacks the concerted political will to rein in the police force, which continues thus to abuse its powers. The lack of public confidence in the police force is fast reaching crisis proportions. Summary In 2008, we see a less than wholehearted attempt to revise and reinvigorate the judicial system in Malaysia. The Judicial Appointments Commission on the surface appears to be a positive move forward. Yet the fact that the Prime Minister remains fully in control of the appointees to the Judicial Appointments Commission and is not bound by the recommendation of the Judicial Appointments Commission takes us no further from the statement by former Prime Minister Dr. Mahathir, who testified to the Royal Commission of Inquiry that it was he who ultimately nominated judges for appointment by the Yang DiPertuan Agong and he did not have to explain or justify his choices to anyone. Similarly, the government s failure to bring the original ipcmc bill before Parliament, and its inability to produce an alternative that would be acceptable to civil society, reveals an inability or unwillingness to come to grips with the underlying problem in the area of law and order in Malaysia namely the unchecked impunity of the police force. 152

153 chapter 9: HUMAN RIGHTS COMMISSION OF MALAYSIA (SUHAKAM)

154 Malaysia Human Rights Report 2008 Since its establishment in 2000, the Human Rights Commission of Malaysia (suhakam) has been viewed by critics as lacking independence and effectiveness in fulfilling its functions and obligations as a national human rights institution (nhri), i.e. promoting and protecting human rights in the country. This view has been supported by a general lack of commitment by the government to make suhakam an independent and effective body, as illustrated by a statement made in Parliament by Minister in the Prime Minister s Department Nazri Abdul Aziz in He said, We have never planned to give any teeth to suhakam. It does not have prosecuting powers because this can be done by other enforcement agencies. Thus, to give them more teeth has never been our proposal. 1 In April 2008, the International Coordinating Committee of National Human Rights Institutions (icc), the international coordinating body of nhris around the world, in its review of suhakam s accreditation, 2 found that the Commission had failed to fully comply with the international standards relating to the establishment and performance of nhris. In its review, the icc informed suhakam of its intention to recommend to the icc status B, and gives the Commission the opportunity to provide in writing, within one year of such notice, the documentary evidence deemed necessary to establish its continued conformity with the Paris Principles. 3 The one-year notice given to suhakam by the icc reaffirms the concerns regarding suhakam s independence and effectiveness which have been articulated by various human rights ngos in the country since the Commission s establishment. The implications of a possible downgrading from A status to B, as a result of its lack of compliance with the Paris Principles, is that suhakam will lose its right to participate in the regular sessions of the United Nations Human Rights Council a serious blow to Malaysia s human rights record at the international level, especially in view of Malaysia s membership in the un Human Rights Council. In Malaysia s Aide-Memoire on its candidature to the un Human Rights Council in 2006, the government unequivocally stated that its commitment to human rights is demonstrated by the establishment of suhakam. 4 On 25 July 2008, 44 Malaysian civil society organisations released a joint press statement, urging the government of Malaysia to take measures to ensure the independence and effectiveness of the Commission, in accordance with the Paris Principles. 5 In response to this, Deputy Prime Minister Najib Razak, in a statement read out by Tourism Minister Azalina Othman during the Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions (apf) in Kuala Lumpur on 29 July 2008, said, [A]ny move to amend the Act will, of course, have repercussions and, therefore, needs to be studied carefully. 6 However, as of 31 December 2008, there was no progress both by the Commission and the government of Malaysia in fully implementing the recommendations made by the icc. The failure of the government of Malaysia in making appropriate amendments to its enabling law, the Human Rights Commission of Malaysia Act 1999, to make it more independent is all the more disappointing, considering that civil society groups have made numerous proposals on different occasions since for amendments to the aforementioned legislation, including the Commission itself in suhakam, in response to the icc s review in April 2008, was reported to have written to the government of Malaysia with regard to the findings of the Sub-Committee. 9 However, since then no further developments have been brought to our attention. This is 154

155 Human Rights Commission of Malaysia because none of suhakam s efforts to lobby the govern ment of Malaysia to amend the Human Rights Commission of Malaysia Act 1999 have involved civil society groups. Where the implementation of the icc s recommendations is concerned, civil society groups have been kept in the dark and left out from providing inputs to suhakam. Recommendations by the ICC The Paris Principles 10 state that the composition of an nhri and the appointment of its members must afford all guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights [ ]. 11 It must therefore have representation of various sectors, including ngos, trade unions, and concerned social and professional organisations; universities and qualified experts; Parliament; and government departments. Although the composition of suhakam seems to have fulfilled the criterion of plurality to a certain extent, the competence and independence of some commissioners remain open to question. There is no prescribed manner in which the public or public-interest organisations can participate in the selection process. As such, there is no consultation with, or participation of, civil society groups. Another major problem is that the Act gives the prime minister unfettered discretion in appointing commissioners. Section 5 of the Act states that the King is to appoint the members, based on the prime minister s recommendation. This means that there are no checks and balances to ensure that the appointment process is politically neutral. The Act also does not specify limits on re-appointments. Section 5(3) of the Act states that commissioners shall be appointed from amongst prominent personalities including those from various religious backgrounds. The definition of prominent personalities is not specified. Indeed, this criterion is of concern as the meaning of prominent personalities is not synonymous with integrity and competence. More importantly, human rights knowledge and experience in human rights work are not stated as criteria in such appointments. These weaknesses of suhakam, which have been long highlighted by civil society groups, were brought up by the icc in its accreditation review on suhakam in April The icc, in its review, gave a one-year notice to suhakam to make improvements based on four recommendations, failing which the Commission will be downgraded from A status to B. The recommendations and observations made by the icc Sub-Committee on Accreditation in relation to suhakam were: The independence of the Commission needs to be strengthened by the provision of clear and transparent appointment and dismissal process in the founding legal documents, more in line with the Paris Principles. With regard to the appointment, the Sub-Committee notes the short term of office of the members of the commission (two years). The importance of ensuring the representation of different segments of society and their involvement in suggesting or recommending candidates to the governing body of the Commission. The need for Suhakam to interact more with the International Human Rights System and participate in human rights mechanisms and making recommendations at national level. 155

156 Malaysia Human Rights Report 2008 Implementation of the first three of the four recommendations made by the icc requires the amendments to the enabling law of suhakam, the Human Rights Commission of Malaysia Act Despite these recommendations, on 30 April 2008, 16 of the 18 commissioners from the previous term were re-appointed for another term of two years by the Yang di-pertuan Agong (King) on the recommendation of the Prime Minister. The 16 are currently serving their first of their two-year terms, which will respectively end in April Out of those 16, 10 are either retired civil servants or from state-run universities or academic institutions. 12 In its fourth recommendation relating to suhakam s engagement to the international system, the icc in its General Observations, noted that it would like to highlight the Human Rights Council and its mechanisms (Special Procedures Mandate Holders) and the United Nations Human Rights Treaty Bodies. This means generally nhris making an input to, participating in these human rights mechanisms and following up at the national level to the recommendations resulting from the international human rights system. In addition, nhris should also actively engage with the icc and its Sub-Committee on Accreditation, Bureau as well as regional coordinating bodies of nhris. 13 In this respect, suhakam is engaged in the un Human Rights Council s Universal Periodic Review (upr) process, in which Malaysia was scheduled to be reviewed in February The Commission submitted a report which was compiled in the Stakeholders Summary Report for the upr on Malaysia. The Commission held a consultation with civil society on 14 August However, it is still too early to fully assess the Commission s engagement in the upr process. In the same respect, with regard to suhakam s mandate to encourage the ratification of international human rights treaties and instruments, 15 results have been severely lacking. Out of the nine core international human rights treaties, Malaysia has only ratified two, both of which with reservations. The critically low number of ratification of international human rights treaties and instruments by the government of Malaysia underscores the weakness of the Commission in this aspect of its mandate. OTHER SETBACKS AND DEFICIENCIES Besides the recommendations made by the icc to improve suhakam s independence and effectiveness, there are also a number of other setbacks and deficiencies in suhakam. These are the Commission s lack of structural autonomy, the narrow definition of human rights in its enabling law, the limitation in its powers of inquiry and visits to places of detention, and the government s non- implementation of the Commission s recommendations. Lack of Structural Autonomy When suhakam was established in 2000, it was placed under the jurisdiction of the Ministry of Foreign Affairs. Jurisdiction was then transferred to the Prime Minister s Department in Being under the direct supervision of the Prime Minister s Department has further undermined the Commission s credibility and dispels claims that it has any semblance of structural autonomy from the Executive branch of the government. Under Section 5(4) of the Act, commissioners hold office for two years and are eligible for re-appointment. As re-appointments are the prerogative of the prime minister, there is a real danger that commissioners will practise self-censorship and conduct themselves in such a way to secure renewal of tenure. 156

157 Human Rights Commission of Malaysia Narrow definition of Human Rights Another glaring weakness in the Commission is that it does not have enforcement powers and it has a very limited mandate. According to the Paris Principles, an nhri shall be given as broad a mandate as possible. 16 However, Section 2 of the Human Rights Commission of Malaysia Act 1999 confines the definition of human rights to such fundamental liberties as enshrined in Part II of the Federal Constitution. This sets limits on suhakam s mandate. Although Section 4(4) of the Act states that regard shall be had to the Universal Declaration of Human Rights [udhr] 1948 to the extent that it is not inconsistent with the Federal Constitution, there is no provision for incorporation of rights embodied in international conventions to which Malaysia is a party. The definition should be in accordance with the udhr and other international human rights laws. It must be pointed out that Part II is not the only section of the Federal Constitution that enshrines human rights. Many critical matters like rights of citizenship, right to universal adult franchise, eligibility to contest a seat in the Lower House of the Parliament, and protection for detainees under preventive detention laws are stated in other parts of the document. Yet, these have been deliberately excluded from the Act. Even the few fundamental liberties in Part II can be easily circumscribed as the Constitution subordinates individual rights to the need for social stability, security and public order. It permits the Executive and Legislature to impose many restrictions on fundamental liberties. Powers of Inquiry and attendance of witnesses. However, Section 12(2) of the Act bars it from inquiring into any complaint relating to any allegation of infringement of human rights which (a) is the subject matter of any proceedings pending in any court, including any appeal; or (b) has been finally determined by any court. This can be problematic as it may restrain the Commission from investigating if a case involves any other forms of violation apart from the subject matter in the courts. This could possibly give the Commission justification to refrain from investigating cases taken to court, without considering if these involve any other forms of violation. This means that there is a possibility that the Commission would have to refrain from inquiry even when the alleged violator initiates legal action to frustrate an inquiry by the Commission. 17 Visits to Places of Detention Another restriction the Commission faces relates to visiting places of detention. While Section 4(2)(d) provides it with the power to do so, the visits have to be in accordance with procedures as prescribed by the laws relating to the places of detention [ ]. In order to inspect conditions of prisons, for example, suhakam must first write to the Prison Department for permission. It is pertinent to stress that such notification only gives time to the authorities to clean up their act, which defeats the basic reason for checks on conditions in prisons and detention camps. suhakam should be given the powers to conduct spot checks in order to get a more realistic view of conditions and to ensure that the level of maintenance and treatment of detainees are on par with stipulated standards at all times. suhakam has powers similar to those of a court of law in the matter of discovery of documents 157

158 Malaysia Human Rights Report 2008 Recommendations and advice ignored Although suhakam is frequently criticised by ngos for its incompetence, it has to its credit occasionally come up with considerably good reports and recommendations. However, these initiatives to promote human rights are routinely ignored by the government and its agencies. For example, suhakam has since its inception been consistent on its position on freedom of assembly. In several comprehensive reports, 18 it has made recommendations supporting the right to peaceful assembly in line with international human rights standards. These include professional procedures in situations where crowd dispersal is justifiable; for instance, that an audible order to disperse should be given three times at 10-minute intervals before the police move into action. Frustrations over the general lack of seriousness in the government s attitude towards the work of suhakam was voiced by the Commission s Chairman Abu Talib Othman, in an interview given in August 2008, when he said, [Y]ear after year, our reports to parliament detailing our activities and recommendations are never debated in Parliament, much less acted upon by the relevant ministries. On the contrary, there is a tendency to undermine our independence by certain ministries. 19 At another level, the ratification of international covenants and treaties is one of the benchmarks of human rights promotion and protection. suhakam s recommendations since 2000 to the government to sign several key international documents have been ignored. Ratification of the International Covenant on Civil and Political Rights (iccpr), International Covenant on Economic, Social and Cultural Rights (icescr), and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cat) remains as distant as ever. SUHAKAM S POSITION ON HUMAN RIGHTS ISSUES, RECOMMENDA- TIONS AND ACTIVITIES From January to December 2008, the Commission received a total of 1,136 complaints. Of these, 532 are in relation to human rights violation, which includes complaints on law enforcement officers/police abuse of power, detention under the Internal Security Act (isa), the Dangerous Drugs Act (dda), trafficking in persons, asylum seekers and refugees, migrant workers, etc. The other 604 complaints involved administrative inefficiency of government agencies, crimes that require investigation and cases that were either pending trial or had been disposed by Courts which are not within the ambit of their jurisdiction. The bulk of the complaints are from the Eastern Malaysian state of Sabah, with 314 cases recorded as compared to Peninsular which recorded 168 cases, and Sarawak with only 50 cases. Similarly, the majority of these cases are in relation to customary and native land rights followed by complaints against the National Registration Department. From the 532 complaints related to human rights violations that it received, 217 cases were investigated and completed while the rest are still under investigation. There are 44 complaints against police abuse of power, inaction towards report lodged and brutality during interrogation. 20 In 2008, key issues highlighted by suhakam related to freedom of assembly, freedom of expression and information, free and fair elections, freedom of religion, misuse of the isa, police inaction, administration of justice, law enforcement and the rights of vulnerable groups. 158

159 Human Rights Commission of Malaysia Public Inquiry In 2008, suhakam conducted one public inquiry on the allegations of excessive use of force during a protest by residents of Bandar Mahkota Cheras, Kuala Lumpur against the actions of a toll company to barricade a toll-free route, during which excessive and unwarranted force was used by the police, resulting in serious injuries to a 21-year old man. (See also Chapter 2: Abuse of Powers by the Malaysian Police.) On 14 June 2008, suhakam decided to hold a public inquiry on the incident. The panel of inquiry commenced on 23 July 2008 and was adjourned on 25 July 2008, and subsequently resumed its hearing on 27 August 2008 and concluded on 29 August witnesses were called by the panel of inquiry. In its report, suhakam concluded that the police had used excessive force and breached international standards outlined in the Basic Principles on the Use of Force and Firearms by Law Enforcement Officers. 21 The Commission made three main conclusions: 22 That there was excessive use of force by the law enforcement personnel against two individuals during the incident; That the excessive use of force by the law enforcement personnel had violated the safety and security of two individuals; and That the police and fru personnel were responsible for the violation of human rights in the incident. suhakam also recommended that: 23 The police and fru urgently implement the international standards as guidelines for their personnel on the use of force; The police and fru require all their personnel to display their names and badge numbers visibly and clearly during field operations; and The police conduct their own investigations to ascertain which personnel used excessive violence with a view of taking disciplinary action against the said personnel and, where necessary, to recommend to the Public Prosecutor for further action. In cases of public inquiries, suhakam is clearly reactive, not pro-active. Section 12(1) of the Act states that [t]he Commission may, on its own motion or on a complaint made to it [ ] inquire into allegations of human rights infringement. However, in practice, the Commission does not open an inquiry until a complaint is lodged. Since suhakam started operating in 2000, a total of 6 public inquiries have been conducted all of which were held after complaints were lodged with the Commission. In some instances, even when a complaint had been made and Suhakam furnished with irrefutable evidences of serious human rights violations, the Commission chose not to hold public inquiries. This was seen in May, when suaram, the Bar Council s Human Rights Committee and Tenaganita submitted a joint memorandum on violations of human rights and mistreatment of detainees related to a fire incident at Lenggeng Detention Centre. The memorandum revealed an incident of severe mistreatment and violence used against nine detainees by Immigration officers on 20 April Upon receiving the memorandum, suhakam commissioner Siva Subramaniam stated that the Commission had visited the victims and their findings concurred with the findings in the memorandum. He also commented that the root cause of the incident was violation of human rights and that the authorities tried to hide everything that has happened. He also made a strong statement 159

160 Malaysia Human Rights Report 2008 saying that the incident is one of the worst incidents that have taken place in Malaysia and that action must be taken against the officers who took part in the violation of human rights. Despite such strong statements by the commissioner, suhakam, in its June monthly meeting decided to reject calls by civil society groups for a public inquiry into the matter. Detention without Trial In 2003, suhakam released the Review of the Internal Security Act In its review of the isa, the Commission called for the repeal of the draconian act and for a new comprehensive 25 law to be enacted that would redress the situation that is disproportionately weighted in favour of national security. suhakam said, History has shown that the law and practice in relation to the isa have adversely affected the status of human rights in Malaysia. 26 In the review, the Commission proposed that the government consolidated all laws pertaining to national security, including the isa, into one statute that takes a tough stand [on] threats to national security and yet conforms [to] international human rights principles. This new anti-subversion law must spell out the specific offences related to threats to national security. It said that the list of offences would best be prepared by experienced judges and all offences on the list should be tried in the High Court. To avoid abuse of power, the new law should be only valid for one year, with its renewal thereafter to be determined by Parliament. Detention for investigation purposes must not be more than 29 days, after which detainees must be charged or released. Each remand order must be obtained from a High Court judge. The Commission also recommended in its 2003 review that the government take various interim measures, including amending the isa, before a new security law were put in place. The proposed amendments include: 27 Defining clearly the detention criteria under the isa. Reducing the detention period from two years to three months. Either charging or releasing a detainee after the three-month period. Allowing judicial review of detention orders. Requiring detaining authorities to submit an annual isa report to Parliament and making the isa valid for one year unless reviewed by Parliament annually. In its 2008 annual report, suhakam, in reiterating its recommendations in its 2003 Review of the Internal Security Act 1960, noted: Despite calls for review and repeal of [the isa], the government maintains that the legislation is necessary to ensure peace and security. In this regard, it is to be appreciated that it is a central tenet of international human rights law that all persons are entitled to the protection of certain fundamental rights, irrespective of their nationality, s tatus or the crime they are alleged to have committed, and no matter how grave the threat posed to the wider community. States are not permitted to fulfil their obligations to protect the rights of the wider population merely by disregarding the rights of suspects. 28 The Commission went on to state: suhakam reiterates its stand that all forms of preventive legislations should be repealed as these 160

161 Human Rights Commission of Malaysia are contrary to Article 9 of the udhr [Universal Declaration of Human Rights]. suhakam again recommends that the government releases all detainees or brings them to justice if there is sufficient evidence of their involvement in the alleged activities for which they are being detained. In the interim, the government should consider releasing detainees who are of old age or in fragile health. 29 In 2008, suhakam received 70 complaints regarding detention without trial. In response to this, suhakam noted in its report: Concerned by the rise in complaints relating to preventive laws, suhakam proposed a Closed-door Discussion on Issues of Prevention Law with relevant government agencies on 26 November Invitations were sent to various ministries and agencies to participate in the discussion. However, suhakam had to call off the discussion as those concerned declined the invitations. 30 On 13 October 2008, suhakam released a statement calling for the repeal of the isa and the release of the detainees. It the statement released by commissioners Simon Sipaun, Michael Yeoh and Denison Jayasooria, suhakam reiterated its stance that the isa should be repealed and be replaced by a specific Anti-Terrorism Act. The press statement read: suhakam holds the view that the isa must not be abused and the use of the isa should conform to its original intent and objective. In the same statement, suhakam also noted with concern the extension of detainees detained under the isa and the Emergency Ordinance, some of whom have been detained for more than six years. suhakam holds the view that it is vital to ascertain if the original rationale of detention is still valid after so many years. 31 However, in December 2008, Home Minister Syed Hamid Albar rejected these recommendations made by suhakam, saying that the Commission only looked at the issue from their perspective when it called for the isa to be reviewed and affirmed that the government was looking at the issue at a much wider perspective and had to take into consideration the over-arching interest of the public. 32 In response to this, suhakam issued a press statement on 15 December 2008, expressing its surprise [over] the comments made by the Minister of Home Affairs, Datuk Seri Syed Hamid Albar on suhakam s views on the Internal Security Act (isa) [ ]. It added, suhakam reiterates that its stance on the ISA is consistent with the Universal Declaration of Human Rights in particular and other international human rights norms in general, that preventive detention without trial is an infringement of human rights. 33 In previous years, suaram has criticised suhakam for its lack of vigorous efforts to apply pressure on the government to repeal preventive detention laws despite its consistent recommendations through its reports. However, in 2008, as a result of an increased popular call for the repeal of these laws, suhakam finally responded by issuing five press statements reiterating its call for the government to abolish detention without trial. Despite its consistent position on the isa and its increased reiteration of the call to repeal preventive detention laws, the work 161

162 Malaysia Human Rights Report 2008 of suhakam on this area still lacks proactive effort, for instance in exercising its power to visit places of detention, as provided in Section 4(2)(d) of the Human Rights Commission of Malaysia Act In 2008, suhakam did not make any visit to isa detainees during the first 60 days of detention, when detainees are often held incommunicado and at greatest risk of being tortured, in order to ensure their safety and wellbeing. As some of the isa arrests made in 2008 were high-profile and widely reported by the media, there was no reason for the Commission s lack of proactive and immediate response apart from making public statements. Deaths in Police Custody In 2005, the Commission pledged to conduct public inquiry into all cases of death in custody should the police fail to conduct an inquest. 34 In its 2008 annual report, with regard to deaths in custody, suhakam noted, Article 10(1) of the udhr which provides that all persons deprived their liberty shall be treated with humanity and with respect for their inherent dignity of the human person. suhakam further recommended the amendment to the Criminal Procedure Code (cpc) to make it mandatory for Magistrates to hold an inquiry into deaths in custody unless a person has been charged for an offence in respect of the death. 35 suaram members filing a complaint with suhakam on the death of Goh Yan Peaw in police custody in January. While these pledges were commendable, suhakam s implementation of these recommendations has been far from satisfactory. Given the abysmal record of the government s implementation of suhakam s previous recommendations, it is difficult to foresee much speedy implementation by the government to amend the cpc to make it mandatory for inquests to be held into all deaths in custody. However, contrary to its pledge in 2005, throughout 2007 and 2008, suhakam itself failed to conduct any public inquiry into any of the cases of death in police custody despite the fact that a number of these cases remain unresolved. Conditions of Prisons and Detention Centres suaram members filing a complaint with suhakam on the death of Goh Yan Peaw in police custody in January. Pursuant to Section 4(2) (d) of the Human Rights Commission of Malaysia Act 1999, which provides suhakam with powers to make visits to places to detention, suhakam visited 37 prisons and detention centres in 2008, 162

163 Human Rights Commission of Malaysia of which eight were visits to prisons, 23 to immigration detention centres and six to police lockups. 36 This was a decrease from 48 visits made by suhakam in From these visits, suhakam made several observations, including: Overcrowding Citing the Sungai Buloh Prison as an example, which housed 5,600, exceeding its gazetted capacity of 2,200, suhakam reiterated the problem of overcrowding in detention facilities. It recommended that the government considers alternatives in addition to existing mechanisms such as the parole system, including the Electronic Tagging System for those charged with minor offences, where offenders are monitored using a computer system instead of being held in prisons. suhakam also noted its concerns regarding overcrowding in immigration detention centres which were attributed to the delays in confirming the nationality of detainees and in the issuance of relevant travel documents by their respective foreign missions. To reduce the number of detainees at Immigration detention centres, suhakam recommended that the government reviews related legislation to allow for immediate repatriation of undocumented immigrants. 2. Facilities suhakam also recommended that the facilities at old prisons be upgraded. It specifically highlighted the need to install a sanitary toilet facility in each cell in the Penang and Johor Bahru prisons. 3. Quality of Food The Commission also noted its concern for the quality of food in places of detention and recommended that the quality be brought in line with the Ministry s dietary guidelines. 4. Young Inmates and Unaccompanied Children In contravention with basic human rights principles, suhakam found that unaccompanied children were being placed with adults in various Immigration detention centres. It stated that children should only be detained at detention centres as a measure of last resort and for the shortest appropriate period of time. On this, the Commission further reiterated the recommendations made by the Committee on the Rights of the Child to the Malaysian government that legislation is enacted to deal with the issue of unaccompanied children [in detention] Healthcare suhakam observed that there were no medical centres in most of the Immigration detention centres. The Commission noted that in cases of emergency, detainees at these Immigration detention centres are sent to the nearest clinic or hospital. In view of this problem, the Commission recommended that all Immigration detention centres should have a doctor or medical officer. 6. Management of Places of Detention suhakam observed a shortage of officers and staff at almost all prisons and immigration detention centres. The Commission also recommended that the Immigration Department provides training on the rights of detainees for its personnel. As these problems have been highlighted by suhakam in previous years, 39 the fact that they persist once again underscores the lack of effectiveness in suhakam s recommendations to the government. 163

164 Malaysia Human Rights Report 2008 Freedom of Assembly In March 2007, suhakam released a commendable report on the public inquiry into alleged violations of human rights during dispersal of a public demonstration against increased fuel prices held on 28 May 2006 in Kuala Lumpur 40 and referred to as Bloody Sunday in reference to injuries that some participants sustained. In the report, the Commission recommended that peaceful assemblies should be allowed to proceed without a licence. 41 The Commission concluded that the police had used excessive force; that they had infringed the rights of some of the participants; and that certain officers could be charged under the Penal Code. 42 To date, however, no legal action has been taken against any of the personnel said to be involved. In its 2008 annual report, suhakam once again reiterated its position on freedom of assembly: The right to peaceful assembly is guaranteed under the Federal Constitution and stated in Article 20(1) of the udhr and Article 21 of the iccpr. suhakam therefore calls on the government to consider the recommendations in the Commission s report on Freedom of Assembly published in The Commission also recommended: 44 A review of crowd-dispersal methods and procedures and a restraint on the use of violence, teargas, batons and chemicallaced water; Consultation with suhakam and ngos over issues pertaining to freedom of assembly in order to foster understanding; and Repealing provisions of the Police Act 1967 that require an application for a police permit to hold an assembly or activity in public places. Despite the commendable recommendations, as in most of other recommendations made by suhakam, there is a lack of implementation by the government. This was reflected once again in May 2008, when the police used excessive force during a protest in Bandar Mahkota Cheras, Kuala Lumpur, and caused serious injuries to a 21-year old man. suhakam held a public inquiry into that particular case and noted the failure of the government to implement the previous recommendations made by suhakam with regards to freedom of assembly. In the report of suhakam s public inquiry on the Bandar Mahkota Cheras incident, it said: Similar recommendations made in suhakam s Report of Public Inquiry into the Incident at klcc on 28 May 2006 and suhakam s Report on Freedom of Assembly have remained unheeded by the police. This is evident by the recurrence of excessive use of force and unprofessional police conduct in the dispersal of peaceful assemblies in the past assemblies and the incidents of heavy-handed action of fru personnel as found in this Public Inquiry. 45 Aside from the failure of the government to implement the recommendations made by suhakam, another setback with regard to freedom of assembly is that the Commission has not made monitoring of assemblies as part of its work. Despite the fact that suhakam has noted the excessive and unwarranted use of force by the police in assemblies on various occasions, to date, it has not been visible 164

165 Human Rights Commission of Malaysia during public assemblies to ensure that its recommendations are observed by the police and other law enforcement agencies. None of the suhakam commissioners were known to be present in any of the public assemblies which involved arrests and use of force by the police in Freedom of Association In its 2008 report, suhakam stated that it is guided by the principle that everyone has the right to freedom of association with others. Based on this principle, on 16 October 2008, when the Hindu Rights Action Force (hindraf) was banned by the government, the Commission, through three of its commissioners, released a press statement which stated its position that the ban of the organisation constituted a violation of human rights. In calling for the lifting of the ban, the press statement read, Democracy provides the avenue for respect of divergent views and opinions. There must be tolerance of this within a multi cultural society like Malaysia, as long as violence is not the means for social change. 46 However, on the very next day, 17 October 2008, suhakam Chairman Abu Talib Othman released another press statement clarifying that the press statement released on the previous day on the ban of hindraf was not an official statement of suhakam. Citing the Human Rights Commission of Malaysia Act 1999 that the members of the Commission shall use the best endeavours to arrive at all decisions of the meeting by consensus failing which the decision by a two-thirds majority of the member shall be required, the suhakam Chairman said that the issue was never placed for a discussion before the Commission and hence no decision arrived on its stand on the ban of hindraf and therefore the statement released was purely the personal view of the three commissioners and not the official stand of suhakam. 47 Freedom of Religion Since its establishment, one of the major criticisms on suhakam s performance has been that it has maintained safe positions on several issues which are seen as sensitive in the context of Malaysian politics and society. One example is on the issue of freedom of religion. Although suhakam acknowledges freedom of religion as embodied in the Federal Constitution and the udhr, in response to several controversial cases relating to religious freedom in recent years such as that involving Lina Joy the Commission only went as far as to recommend [that] the court delivers its judgment as soon as possible to enable the government to examine the procedure and mechanism related to the issues. 48 The Commission has also not taken a clear stand on several other cases that have caused contention that of M. Revathi, who was sent to rehabilitative detention by Islamic authorities; S. Kaliammal, whose deceased husband s body was taken away by Islamic authorities who claimed that he had converted to Islam; and R. Subashini, who was denied her right to custody of her elder son when her husband had converted to Islam. This safe position on the issue of religion was also once again reflected in 2008, when suhakam, in its annual report, noted: Over the year, several thorny issues were raised that involved religion. Allegations involving the azan and articles purportedly defaming Islam led to the arrests and detention under the isa. The Bar Council, on 9 August, organised an open forum to discuss the legal problems related 165

166 Malaysia Human Rights Report 2008 to conversion, but this was stopped owing to strong protest. 49 The Commission went on to state: suhakam supports the right to freedom of speech and expression. However, it is mindful that, when dealing with a sensitive subject like religion in a plural society, there is a need to respect the rights of everyone involved. 50 Freedom of Expression and Information Freedom of expression and information, which is enshrined in Article 19 of the udhr, was also listed as one of the key issues by suhakam in suhakam, in its annual report, also voiced its concerns about the number of books that have been banned by the government over the years. Citing the cases of book banning as an example of how the Printing Presses and Publications Actt 1984 (pppa) can undermine freedom of expression and information, suhakam recommended that the government reviews the pppa and the Official Secrets Act Indigenous Rights In 2003, suhakam released its report on the rights of the indigenous peoples in Malaysia. 52 While the term Orang Asal refers to all indigenous peoples in Malaysia (including those of Sabah and Sarawak), Orang Asli specifically means the indigenous peoples of Peninsular Malaysia. In the report, the Commission called for the Federal Constitution to be amended to recognise Orang Asli as bumiputera. Currently, Section 153(1) of the constitution only accords bumiputera status to Malays and indigenous peoples of Sabah and Sarawak. The report also called for an urgent review of the National Land Code, the Sarawak Land Code, and the Sabah Land Ordinance to ensure that native customary land rights are properly recognised. The Commission further recommended that the Orang Asli Act 1954 be amended to give indigenous peoples permanent land titles instead of 99-year leases. 53 Other suggestions included the appointment of a minister responsible for Orang Asli affairs in the peninsular and the establishment of a department operated by the indigenous people themselves in Sabah and Sarawak; political representation for native communities; greater consultation with the communities on land development projects; consultation with the Orang Asal with regards to the issue of resettlement; ensuring Orang Asal the right to choose and practice the religion of their own choice; acknowledgement of the Orang Asli culture as an aspect of national culture; improved access to free health and education for indigenous peoples; and more systematic registration of Orang Asal birth and citizenship documents. 54 The year 2007 saw the release of a report by suhakam titled Penan in Ulu Belaga: Right to Land and Socio-Economic Development. 55 The report was based on visits made following complaints received from two Penan headmen from Ulu Belaga, Sarawak, pertaining to logging, oil palm plantation and reforestation activities by a company and their impact on the right to land and the life of the Penan community. In its report, suhakam concluded that the Penan s historic custom of ownership and stewardship of land is not considered in the Sarawak Land Code 1958 despite being an indigenous group in Sarawak. As a result, the Penan s claim to land has often been neglected and not taken into consideration in the 166

167 Human Rights Commission of Malaysia issuing of logging licences and the carrying out of plantation activities. suhakam, therefore, made several recommendations in its report, including: 56 That the Sarawak Land Code 1958, in particular, section 5(2) regarding Native Customary Rights, be amended to take into consideration the unique custom of the Penans in ownership and stewardship of land. That the Government alienates areas where there is evidence of Penan paths and burial sites which clearly reflects Section 5(2)d and 5(2)e of the Sarawak Land Code That sufficiently sized land is provided for the Penans who have lost their ancestral land following narrowly interpreted l egislation and logging and plantation activities. Provision of land should take into consideration increasing family size and their dependence on jungle produce for food and daily necessities. On 12 August 2008, suhakam launched its report, Legal Perspectives on Native Customary Land Rights (nclr) in Sarawak. The report is the result of a research undertaken by suhakam, which examined the gap between provisions in the Sarawak Land Code 1958 and claims to native land. In its research, suhakam found that the Sarawak Land Code has weakened recognition of customary laws and practices such as land ownership. It noted that certain customs and practices are not reflected in the Sarawak Land Code, thus imposing an unreasonable burden on native groups in establishing the claim to native customary land rights. suhakam concluded that customary rights and laws which have existed should be the foundation of statutory laws. In relation to this, suhakam recommended that: The Sarawak Government should review the Code to ensure that it promotes and continually protects the rights of the indigenous groups to their customary land. Such a review should include: - Customs and practices governing the establishment of ownership to land and subsequent inheritance; these should be codified to ensure that such rights are not eroded in future;t - Recognition of methods of land occupation that arise out of native customs and tradition is proof of owner ship and therefore not subjected to the Code, which creates a burden in establishing ownership via documentary evidence; - Protection of native title rights which cannot be taken away except in accordance with law and upon payment of adequate compensation; - The fiduciary obligation of Government officials to consult and obtain consent of native communities prior to taking action that may infringe on native title rights. Amendments to the Enabling Law to Strengthen SUHAKAM In 2002, suhakam conducted a review on its enabling law and recommended several amendments to the Human Rights Commission of Malaysia Act 1999 to make the Commission more independent and effective. Among the key recommendations made by suhakam in 2002 were: 57 To strengthen the appointment process of commissioners by ensuring the independence and pluralism in the composition of suhakam and greater 167

168 Malaysia Human Rights Report 2008 transparency and consultation. In this respect, suhakam recommended that the members of Commission be appointed by the Yang di-petuan Agong (King), on the recommendation of a Committee consisting of the Prime Minister as the Chairperson, the relevant Minister, the leader of the Opposition in the House of Representatives, the Chairman of suhakam and a representative of the ngo community. suhakam also proposed that a provision be made to reflect that this Committee has the equivalent role in the dismissal of a member of suhakam. For the commissioners to play a more effective role in the Commission, a longer term of tenure was recommended, instead of the two-year term with unlimited re-appointments as provided in the existing law. The Commission proposed that the term of office should ideally be for five years or in the alternative, for a minimum period of three years. To ensure greater effectiveness in fulfilling its mandate to visit places of detention, the Commission recommended that it should be given unrestricted powers to visit prisons without having to comply with procedures of places of detention in its visits. suhakam therefore recommended that the phrases in accordance with procedures as prescribed by the laws relating to the places of detention and if the procedures provided in the laws regulating such places are complied with in Section 4(2)(d) and 4(3) of the Human Rights Commission of Malaysia Act 1999, respectively, be deleted. However, as at the end of 2008, none of these recommendations have been taken up by the government. In 2008, as a response to the recommendations and one-year notice of possible downgrading given by the icc, suhakam reiterated its 2002 call for the government to amend its enabling law. In its annual report, the Commission said that it had, on 2 September 2008, recommended that the government amends the Human Rights Commission of Malaysia Act 1999 to comply with the Paris Principles as interpreted by the Sub-Committee on Accreditation of the icc. 58 On 15 December 2008, suhakam released a press statement, once again urging the government to amend the enabling law of the Commission, noting that despite having made recommendations to amend the law to make it Paris Principles compliant, suhakam has not received any response from the government on the matter. 59 ENGAGEMENT WITH CIVIL SOCIETY While in the past, suhakam has generally had an ambivalent relationship with human rights ngos, many still see the importance of the Commission and continue to cooperate with it. One reason is because suhakam has access to locations, such as places of detention, where human rights violations frequently occur and which are not easily accessible to civil society groups. However, the level of cooperation between suhakam and ngos varies from one group to another. In May 2008, suhakam set up a new working group on Civil and Political Rights, whose work include, to organise dialogues and roundtable discussions with civil society organisations and political parties and to obtain views and feedbacks from the public on civil and political rights, as explicitly spelt out in its terms of reference. 60 This working group held four consultations or roundtable discussions with civil society throughout 2008, some jointly with other working groups of the Commission. They were: 168

169 Human Rights Commission of Malaysia Dialogue session with ngos in Sabah on 12 June 2008; Dialogue session with ngos in Kuala Lumpur on 17 July 2008; Roundtable discussion with trade unions on 11 August 2008; and Dialogue session with ngos and the media in Sarawak on 12 August Besides these events, suhakam, through its working groups, for example the Economic, Social and Cultural Rights Working Group, had also organised other consultations with civil society groups in While the Commission was beginning to be seen as making some efforts to improve its cooperation with civil society organisations with the setting up of the Civil and Political Rights Working Group, this working group was merged with the Economic, Social and Cultural Rights Working Group on 10 November The merged working group was renamed Economic, Social and Cultural Rights & Civil and Political Rights Working Group, making it unclear as to the future direction of suhakam s cooperation with civil society organisations. On some specific issues, there was some form of institutionalised cooperation between suhakam and certain civil society groups in For instance, in its work on the rights of women, particularly in monitoring the implementation of the Convention on the Elimination of All Forms of Discrimination against Women (cedaw), the Human Rights Education and Promotion Working Group of suhakam established a Sub-Committee on Women s Rights in February This Sub-Committee comprises representatives of the Ministry Women, Family and Community Development, ngos working on women s issues and a number of gender and women s rights experts. Among the major activities of this Sub-Committee in 2008 was a cedaw Orientation Course for suhakam staff and resident facilitators, held from 9-10 August On a less institutionalised level, suhakam collaborated with some ngos, in conducting trainings and workshops on various human rights issues. For instance, in June 2008, suhakam invited suaram to assist them in their human rights training session for police officers, an activity in which the former has in recent years engaged with the latter periodically on several occasions. However, in most other areas of suhakam s work, its cooperation and consultation with civil society groups can be described as irregular and lacking followup. In the past few years, suhakam has held roundtable discussions with civil society groups on numerous discussions. In 2008, these included a consultation with ngos on the upr held on 14 August 2008 although many of these have not resulted in further action or feedback on proposals made during the discussions. In the case of suhakam s work on the upr, for example, its consultation with ngos held in August remained the only one, with no further follow-up meetings. The problem of a lack of follow-up action in suhakam s consultations with ngos was raised by several ngo representatives present at a roundtable discussion organised by the newly-merged Economic, Social and Cultural Rights and Civil and Political Rights working groups on 11 March The year 2008 also saw instances when suhakam chose not to engage at all with civil society groups on some important issues. This was seen, for example, in the response to the icc s recommendations, when these groups were kept in the dark and left out of providing inputs to the Commission. Moreover, the Commission did not engage with civil society groups on the implementation of the icc s recommendations despite the fact that various civil society organisations some of which have long been working on issues relating 169

170 Malaysia Human Rights Report 2008 to national human rights institutions had earlier made proposals to the government to help strengthen and improve suhakam. 64 Summary The one-year notice given by the icc in April 2008 and the possibility of downgrading suhakam s international status served as a reaffirmation of the concerns raised by suaram regarding suhakam s independence and effectiveness. This has resulted in renewed calls for the government to ensure suhakam s independence and greater compliance with the Paris Principles. In 2008, possibly as a show of commitment, suhakam set up a new working group to improve engagements with civil society. However, while seeking to improve engagements with civil society in its work, civil society was kept in the dark and left out of the process to provide inputs to suhakam regarding the icc s implementation. At the same time, other areas of its work did not see major improvements. At the end of 2008, the Malaysian government had not made any genuine efforts to improve suhakam, thus demonstrating its lack of commitment to the promotion and protection of human rights. Consequently, suhakam s international standing remains precarious. Likewise, Malaysia s reputation, especially having been a un Human Rights Council member and having pledged its commitments to promote and protect human rights, would also suffer as a result of its disregard for international standards. 170

171 Human Rights Commission of Malaysia End Notes Govt: We don t intend to give Suhakam teeth, Malaysiakini, 27 March 2006, news/48965 (last accessed: 26 April 2009). National human rights institutions (nhris) are accorded certain status by the icc and this status is reviewed periodically. An nhri may be given either A, B, or C status based on its compliance with the Paris Principles the international standards set by the UN for the establishment and performance of nhris in promoting and protecting human rights. The status of an nhri determines its standing in the un Human Rights Council, with only those with A status given the right to participate in the regular sessions of the Council. International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, Report and Recommendations of the Sub- Committee on Accreditation, Geneva, April 2008, (p. 5). Malaysia (2006) Aide-Memoire; Malaysia s Candidature to the United Nations Human Rights Council, dated 28 April 2006 (p. 1). Joint press statement by 44 Malaysian civil society organisations, Imminent downgrading of suh: Government must take action, 25 July This document is reproduced here in the Annex. Najib: Suhakam Act review will have repercussions, Malaysiakini, 29 July 2008, news/86924 (last accessed: 23 February 2009) See, for instance, Joint press statement by 44 Malaysian civil society organisations, op. cit. See also, Memorandum on the proposed Malaysian National Commission on Human Rights (Submitted by non-governmental organisations to the Minister of Foreign Affairs, Malaysia) (1999) in Tikamdas, R. and S.S. Rachagan (eds.), Human Rights and the National Commission, Kuala Lumpur: hakam (pp ). suhakam (2003a) Annual Report 2002, Kuala Lumpur: suhakam (pp ). suhakam treads an arduous path, New Sunday Times, 3 August Principles Relating to the Status of National Institutions (Paris Principles). Adopted by un General Assembly Resolution 48/134 of 20 December Ibid. (Composition and guarantees of independence and pluralism). 12 The commissioners profiles are available on the Commission s official website: about_com_member.asp (last accessed 23 February 2009) International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, op. cit. (p. 10). See suhakam (2008a) Report for the Universal Periodic Review (upr) on Malaysia, 4th Session, February 2008 from the Human Rights Commission of Malaysia (suhakam). In its upr report, suhakam made several key recommendations, namely, for the government to: 171

172 Malaysia Human Rights Report 2008 i. ii. iii. iv. v. vi. vii. viii. ix. x. xi. xii Amend the Human Rights Commission of Malaysia Act 1999, to be more in line with the Paris Principles; Repeal all preventive detention legislations; Review all legislations that are in conflict with human rights principles; Uphold Constitutional right to freedom of speech, assembly and association; Ensure better access to basic amenities and infrastructure for rural communities in line with the Millennium Development Goals (MDGs); Consider suhakam s proposal on National Human Rights Action Plan; Develop capacity building and technical assistance in cooperation with suhakam as well as civil society; Provide continual human rights training to enforcement personnel; Fulfil the commitments and obligations made in its pledge to the Human Rights Council in 2006; Withdraw reservations on cedaw and crc; Ratify the core human rights instruments and their additional protocols; and Submit periodic reports on time to the treaty monitoring bodies and to follow-up on their recommendations. Section 4(1)(c) Human Rights Commission of Malaysia Act 1999 (Act 597). Paris Principles, op. cit. (Competence and responsibilities). Tikamdas & Rachagan provided a formulation in that an inquiry would be discontinued only if the complainant initiates an action in the courts, the subject matter of which is identical to the Commission s inquiry. See Tikamdas, R. & Rachagan, S.S. (1999) Human Rights Commission of Malaysia Act: a critique, In Tikamdas, R. & Rachagan, S.S. (eds.) Human Rights and the National Commission. Kuala Lumpur: hakam (pp ). See for instance, suhakam (2001) Freedom of Assembly, Kuala Lumpur: suhakam; suhakam (2002) Inquiry on its Own Motion into the November 5th Incident at the Kesas Highway, Kuala Lumpur: suhakam; and suhakam (2007a) Report of suhakam Public Inquiry into the Incident at klcc on 28 May Kuala Lumpur: suhakam. Suhakam treads an arduous path, New Straits Times, 3 August suhakam (2009a) Annual Report 2008, Kuala Lumpur: suhakam (p. 35). suhakam (2009b) Report of suhakam Public Inquiry Into the Allegation of Excessive Use of Force by Law Enforcement Personnel During the Incident of 27th May 2008 at Persiaran Bandar Mahkota Cheras 1, Bandar Mahkota Cheras, Kuala Lumpur: suhakam. Ibid. Ibid. See Memorandum Submitted to suhakam on the Fire Incident at the Lenggeng Immigration Detention Centre, submitted by the Bar Council Human Rights Committee, suaram, and Tenaganita on 15 May suhakam (2003b) Review of the Internal Security Act Kuala Lumpur: suhakam. (p. 83). Ibid. (p. 86). Ibid. (pp ). suhakam (2009a) op. cit. (p. 3). 172

173 Human Rights Commission of Malaysia Ibid. Ibid. (p. 38). suhakam Press Statement, suhakam Calls for the Release of the isa and the Release of the Detainees, dated 13 October Syed Hamid: Suhakam s isa review call s perspective not wide enough, The Star, 13 December suhakam Press Statement, suhakam: Restrictions and Bans on the Rights to Association is a Violation of Human Rights, dated 16 October suhakam Press Statement, Press Statement, dated 17 October suhakam (2007b) Annual Report 2006, Kuala Lumpur: suhakam (p. 15). suhakam (2009a) op. cit. (p. 1). 33 suhakam Press statement, suhakam: Government Should Repeal the isa and Amend Act 597, 15 December Ibid. Ibid. (p. 4) Custodial Deaths: We ll hold public inquiries, New Straits Times, 14 December suhakam (2009a) op. cit. (p. 81). suhakam (2009a) op. cit. (p. 41). Ibid. (pp ). Ibid. (p. 44). See for instance, suhakam (2008b) Annual Report 2007, Kuala Lumpur: suhakam (pp ). See suhakam (2007a) op. cit. Ibid. (p. 97). Ibid suhakam (2003c) Laporan Hak Asasi Orang Asal. Kuala Lumpur: suhakam. Ibid. Ibid. suhakam (2007c) Penan in Ulu Belaga: Right to Land and Socio-Economic Development. Kuala Lumpur: suhakam. Ibid. (p ). For the full set of recommendations, see suhakam (2003a) op. cit. (pp ). suhakam (2009a) op. cit. (pp. 6-7). suhakam Press Statement, suhakam: Government Should Repeal the isa and Amend Act 597, dated 15 December suhakam (2009a) op. cit. (p. 81). 59 suhakam (2009a) op. cit. (p. 73). 44 Ibid. 60 Ibid. (p ). 45 suhakam (2009b) op. cit. (p. 36). 61 Ibid. (p. 55). 173

174 Malaysia Human Rights Report Ibid. (p. 31). 64 See, for instance, Joint press statement by 44 Malaysian civil society organisations, Imminent downgrading of suhakam: Government must take action, 25 July

175 chapter 10: FREE AND FAIR ELECTIONS*

176 Malaysia Human Rights Report 2008 *This chapter was written by Wong Chin Huat, a political scientist by training and a journalist lecturer by trade, based in Monash University Sunway Campus. He is also the resource person for the Coalition for Clean and Fair Elections (bersih) and has assisted in some of Malaysian For Free and Fair Elections (mafrel). In writing this chapter, he thanks the support of bersih, mafrel and Malaysia Voter Union (malvu) for their assistance in data collection. The 8 March 2008 General Elections was not only the most important political event of the year, but perhaps also a milestone development since 1969 when Malaysia in her infancy endured a cataclysmic racial riot. In 2008, the ruling National Front (Barisan Nasional, bn) coalition was deprived of both its customary parliamentary two-thirds and the control of four more state governments on top of Kelantan which has been under the rule of the opposition Pan- Malaysia Islamic Party (pas). (See Table 10.1) Having failed to recoup its machinery and redefine its role in a new Malaysia, the bn initially seemed to have lost its plot for the job until 16 September Hanging on with an initial majority of 30 seats in a 222-member parliament, the bn was so afraid that it might be toppled by defection of lawmakers especially from the economically marginalized but politically over-represented states of Sabah and Sarawak to the newly formed opposition coalition People s Alliance (Pakatan Rakyat) which consists of pas, the Malaymajority multiethnic People s Justice Party (Parti Keadilan Rakyat, pkr) and the Chinesedominant multiethnic Democratic Action Party (dap). Pakatan Rakyat leader Anwar Ibrahim promised the defections would happen on 16 September 2008 but eventually failed to deliver. For some, the 8 March election debacle of bn provided the evidence that the electoral system and process in Malaysia were fair. Logically, such argument is as flawed as saying that smoking tobacco does not kill since some people survive lung cancer. Empirically, Malaysia s electoral system and process remained neither free nor fair in the 8 March elections, a fact this chapter will demonstrate with facts and figures. Even the post-8 March Permatang Pauh by-election in August saw the usual electoral fraud, abuse of government apparatus and control of the media. The changes in 2008 happened despite the fraud and manipulation. As argued in last year s Human Rights Report, any account of the state of human rights in Malaysia cannot be complete without an understanding and assessment of the electoral process. Elections are used to complement the iron-fist human rights violations such as detention without trial and suppression of civil and political rights in maintaining the authoritarian system, which may be called electoral one-party state. 3 Elected Institutions Being a parliamentary polity, Malaysia has neither federal nor state executive elections. The federal parliament is bicameral but only the 222-seat lower house House of Representatives (Dewan Rakyat) is popularly elected. All the 70 senatorial seats in Dewan Negara are appointed, with 44 seats by the federal government and two seats by each state government. All the states have popularly-elected state unicameral legislative assemblies, producing a total of 582 state assemblypersons. In Sabah, the state government may appoint additional members to strengthen its majority. At the third level, the city, municipality and district authorities are all appointed, either by the state government or, in the case of federal territories, by the federal government. 176

177 Free and Fair Elections The office bearers of village/community level governing bodies, which have no taxing authority and little administrative power, are also appointed. 4 Introduced in 1951 by the British colonial government, local elections were suspended by the national government 14 years later under the pretext of national security. Then, the newly-expanded Federation of Malaysia 5 was enduring the confrontation by Indonesia which also had territorial claims to North Borneo. While the Indonesian confrontation ended only months later, grassroots democracy has never been revived since. Most Malaysians hence have only two ballots to cast, one for the parliamentary representative and the other for the state legislator. Some 700,000 voters, constituting 6-7% of the national electorate, were however disenfranchised at the state level as they were registered in the three federal territories of Kuala Lumpur, Labuan and Putrajaya. While the federal and state governments may opt to dissolve their legislatures anytime before the expiry of five years term, except for the first post-independence election in 1959, almost all the state governments have chosen to follow the federal government s decision on the date of dissolution. In 2008, all states except Sarawak held their state elections together with the federal one. bn which ruled both the federal government and all states except Kelantan preferred a single battle. Despite the nominally federalist structure in the Constitution, the bn state Note: Sarawak did not hold its legislative elections in

178 Malaysia Human Rights Report 2008 governments function as branches, rather than partners, of the federal government. The state chief executive (titled Chief Minister or Menteri Besar) is anointed by the Prime Minister, rather than elected by the state legislative party. 6 Entrusted with the electioneering command in the state, the chief executive of the state also presides over the choice of parliamentary candidates. The demarcation of constituencies reflects the intended integration rather than division of the federal and state powers. Federal constituencies are divided into state constituencies. Hence, the federal candidate leads the state candidates to form an operational unit during election campaigns. Ironically, the opposition state governments in Kelantan (1964, 1969, 1995, 1999 and 2004) and Terengganu (2004), both headed by the Pan-Islamic Party of Malaysia (Parti Islam Se-Malaysia, pas) likewise preferred to have concurrent federal and state elections. Their consideration is however different, driven by the fear that having a separate state election would expose them to a nationallymobilized campaign by bn and lead to possible defeat. Electoral System As part of the British legacy, elections in Malaya/Malaysia have always been run under the simple member plurality (smp) system, what is more commonly known as first-pastthe-post (fptp) system. Interestingly, ethnic minorities once proposed proportional representation systems in the pre-independence years but the idea was rejected by the dominant Malay parties. 7 The fptp system has a defining characteristic which is democratically problematic, severe vote-seat disproportionality. This may simply be the natural outcome of noncorresponding geographical distribution of party support, 8 but may also be due to two independent forms of manipulations: malapportionment and gerrymandering. Malapportionment of constituencies refers to unequal division size of electorate, resulting in very large and very small constituencies. This can be the outcome of following certain administrative, socio-cultural or economic boundaries, or simply due to deliberate manipulation. In gerrymandering, constituencies are deliberately drawn in some partisan manner so that particular contestants may be rewarded disproportionately in allocation of seats, whether or not the constituencies are mal-apportioned. For example, a party will be under-represented if its supporters are concentrated in a few constituencies where they form 80% majority while the supporters of its rival party are well distributed to many constituencies to form just a comfortable majority of around 60%. The current Malaysian laws have no restriction on the inequality of electorate size. In the last elections in 2008, the largest constituency Kapar was nearly 17 times the smallest one, Putrajaya. Technically, the over-representation of Federal Territory of Putrajaya is innocent since as a state-level unit itself, it cannot form part of a larger constituency in the neighbouring state of Selangor. This argument however fails to justify the overall disparity. In 2008, the most privileged 20% of Malaysian electorate controlled 75 parliamentary seats or slightly more than a third of the parliament. If we were to measure this political inequality as how economists measure income disparity using Gini coefficient, the electoral inequality in 2008 was as high as Had the one-person-one-vote principle been faithfully implemented, the perfect equality should yield a value of 0 in Gini Coefficient (whereas perfect inequality yields the value of 1). The constituencies are mal-apportioned 178

179 Free and Fair Elections at two levels, between and within the states. In the delineation process for the inaugural 1955 elections, a rural weightage was built in to allow over-representation of the rural population to the extent where the smallest constituency may be as small as half of the largest constituency within a state. Such over-representation, was in theory justified on the ground of difficulties in communication and other aspects faced by the rural voters, but in reality driven by the calculation to ensure the electoral dominance of the Malays who constituted the bulk of rural residents. The Reid Constitutional Commission tasked with preparing for Malaya s independence in 1957 capped the within-state disparity to 15% and restricted between-state parity with considerations to both the sizes of electorate and population. Both restrictions on mal-apportionment were however undone in 1962 via a constitutional amendment. In 1973, any specified limit of the rural weightage was removed in another constitutional amendment. 9 Free from any between-state and within-state constraints, the principle of one person one vote has long been thrown out of the window. (See Table 10.2). Even though gerrymandering cannot be quantified in the same way as mal-apportionment, the total effect of gerrymandering, mal-apportionment and partisan support distribution can be captured by different values of votes enjoyed by different parties. In the worst instance in 2004, when bn enjoyed a 42% premium in seats by winning 91% of parliamentary seats with only 64% of votes, the opposition parties were grossly under-represented: the non-muslim-based Democratic Action Party (dap) gained only 0.55 portion of what its popular votes warranted, pas was under-represented by 83% while the Malay-based multiethnic People s (Source: Wong and Norani, 2007, for data until 2004) 179

180 Malaysia Human Rights Report 2008 Justice Party (Parti Keadilan Rakyat, pkr) was hard hit with a 95% discount of its rightful representation (See Table 10.3). This effectively means that one vote for BN in 2004 carried the same weight as 2.58 votes for dap, 8.15 votes for pas and votes for pkr. (See Table 10.4) Historically, Malaysia s fptp elections were most discriminatory against two types of parties : first, the leftwing parties such as the Socialist Front (sf), Parti Sosialis Rakyat Malaysia (psrm), Parti Keadilan Masyarakat Malaysia (Pekemas); secondly, the third Malay parties which compete with both the nationalist umno and Islamist pas: Parti Negara (pn), Parti Semangat 46 (S46) and pkr. This perhaps explains both why the left-right cleavage could not emerge at the expense of ethnic politics and why the opposition parties failed to formed a lasting coalition led by a middle-ground Malay party prior to Unlike in Anglo-American democracies, the fptp system did not only fail to bring about party alternation in Malaysia, the resultant gross vote-seat disproportionality might have suppressed political pluralism, which in turn helped sustain the electoral one-party state which perpetuated the violations of human rights documented in previous chapters. In 2008, the under-representation of the opposition was not eliminated though significantly reduced by the phenomenal swing against the ruling coalition. dap was underrepresented by only 10% while pkr and pas by about 30%. All in all, a vote for bn was still over-valued to equate 1.37 votes for dap, 1.67 votes for pkr and 1.70 votes for pas. As a double-edged sword, the fptp became bn s enemy at the state level in a few states in which pr did well. In Penang, bn only obtained 27.50% (Source: Wong and Norani, 2007, for data until 2004) 180

181 Free and Fair Elections (Source: Wong and Norani, 2007, for data until 2004) of state seats despite 40.96% of valid votes, losing about a third of its rightful representation. Notably, bn won 95.00% of Penang state legislative seats with only 63.15% of votes in fptp is therefore only a fair-weather friend for any ruling party. If anything, the glaring mal-apportionment of constituencies has hurt the legitimacy of bn s victory. The Coalition for Clean and Fair Elections (bersih), an umbrella group of 70 over civil society groups and opposition parties, argued that the opposition parties were only 56,822 votes away from wresting bn s 30 weakest seats and forming the federal government. The group alleged that bn s wafer-thin margins in these constituencies were likely aided by fraudulent means. 10 Abbreviations for party names: Alliance The Alliance Party BN Barisan Nasional DAP Democratic Action Party Gerakan Gerakan Rakyat Malaysia NAP National Association of Perak PAP People s Action Party PAS Parti Islam Se-Malaysia PBS Parti Bersatu Sabah Pekemas Parti Keadilan Masyarakat Malaysia PKN Parti Keadilan Nasional PKR Parti Keadilan Rakyat PN Parti Negara PPP Perak Progressive Party/People s Progressive Party PRM Parti Rakyat Malaysia PSRM Parti Sosialis Rakyat Malaysia S46 Parti Semangat 46 SF Socialist Front SNAP Sarawak National Party UDP United Democratic Party 181

182 Malaysia Human Rights Report 2008 An Elections Commission counter checking the registration of voters in Kuala Lumpur. Opposition parties and voters have frequently complained about electoral roll contamination. (Photograph courtesy of Malaysiakini) Electoral Roll Contamination The greatest threat to the probity of Malaysian elections is the contamination of the electoral rolls. Manipulations of other forms like ballot stuffing, large scale ballot spoliation or systematic miscounting of votes are uncommon in Malaysia. In contrast, both opposition parties and voters have frequently complained about disappearance of names from electoral rolls, unauthorised transfer to another constituency, or authorised registration of illegitimate voters. One embarrassing fact for the Election Commission was the suspicious existence of 8,666 centenarians on the electoral rolls nationwide, which the ec secretary Kamaruddin Mohd Nor could only argue that they are still alive as of 31 December 2007 when the rolls were revised. 11 Domestic election observer group Malaysians for Free and Fair Elections (mafrel) found 46 persons by the same name of Ismail Ibrahims all born in the year 1962 but registered as having different identity cards (ic) and living in 46 different localities who have been registered to vote in various places throughout the country. While not claiming that all the 46 names were duplications, mafrel president Abdul Malek Hussin took it to highlight the seriousness of multiple regressions, which involved 195 postal voters. 12 In yet another instance, a 35-year-old 182

183 Free and Fair Elections housewife, Sharmila Thuraisingam who has lived all her life in Selangor, found she had been registered as a voter in Kelantan since Her cousin, Dr V Sunderalingam, who registered as a voter in 2003 based on his address on the MyKad (national identity card) in the Federal Territory of Labuan similarly found himself assigned to vote in Rantau Panjang, Kelantan across the South China Sea. 14 In other cases, family members registered at the same addresses were arbitrarily assigned to different constituencies, which led to bersih s allegation that this practice could have been used as an alternative to constituency re-delineation in changing the electoral geography. 15 Interestingly, bn as the state-level opposition party also complained about phantom voters. In Kelantan, the coalition state chairman Datuk Annuar Musa claimed that its machinery encountered difficulty in identifying more than 118,000, or 15%, of the 751,000 registered voters in the state. 16 From 2004 to March 2008, the Election Commission had received a total of 235 complaints about missing names from the electoral rolls. 17 Some voters, including bersih activist Liau Kok Fah, were unable to register as voters despite numerous attempts to do so. Many others were frustrated by computer failure or shortage of registration forms when they tried to register at post offices. These irregularities documented above have two consequences: the disenfranchisement of legitimate voters and the dilution of their votes by so-called phantom voters. Phantom voters originally referred to the imposters who voted on behalf of dead voters on the electoral rolls, but over the years, this term has been extended to include all illegitimate voters. As the winning margin in a fptp constituency may be only a few thousand or even hundred votes, deployment of phantom voters is both feasible and appealing to political parties, intent on winning the election. As a matter of fact, deployment of phantom voters has also served as a substitute to constituency redelineation, which can only be held once in eight to ten years, in changing the electoral geography. It is important to also note that there were over 4 million eligible citizens who were not registered as voters. Should they register, they would further transform the electoral geography. 18 A complete elimination of phantom voters would require a thorough clean-up of the electoral rolls. This in fact had been proposed by bersih as one of the four conditions that Malaysia s constitutional monarch, the Yang DiPertuan Agong Tuanku Mizan Zainal Abidin should impose on his consent to bn s request to dissolve parliaments. bersih s three other conditions, articulated in a memorandum submitted to the King by a rally of 50,000 citizens on 10 November 2007, were the use of indelible ink, the abolition of postal votes and fair access to state-owned media especially television and radio. 19 Phantom Voters and Indelible Ink The use of indelible ink, while unable to eliminate phantom voters, would help to win the battle largely by stopping the recycling of phantoms. In other words, if a total of 15,000 phantoms were needed in three constituencies, 15,000 non-voters would need to be employed. This poses challenges to both the supply and deployment of fresh phantom voters, reducing its edge and appeal over democratic campaigning. The Election Commission agreed to the use of indelible ink in 2007 and had spent about RM2 million to buy 47,000 bottles of India-made indelible ink. It however did not make any attempt to amend the election bylaws to spell out how this safeguard measure would be administered. Just four days before polling day, the Election Commission can- 183

184 Malaysia Human Rights Report 2008 celled the use of indelible ink, claiming that it had no right to deny a citizen s constitutionally-enshrined voting right should the voter refuse to be marked with ink or have his/her nail marked. 20 Election Commission chairman Abdul Rashid also cited the police s intelligence report that some quarters had purchased some indelible ink from overseas to create confusion and suspicion. Opposition leaders slammed this as an ec s plot to allow bn cheating. 21 His house was splashed with red paints by unknown persons following the controversial decision. 22 Two months later, Abdul Rashid revealed that it was actually the Cabinet that did not approve the use of indelible ink, citing the legal and security concerns. 23 The Prime Minister claimed that the cabinet had only made a suggestion, not an instruction, to the Election Commission. 24 This did not change the fact that the cabinet had interfered in the work of the Election Commission, which should have been constitutionally independent. Consequently, mafrel, the election observer group which was accredited by and working with the Election Commission, immediately withdrew all its 333 observers in protest against the cancellation on the following day, delivering another flow to the Commission s fragile credibility. 25 Without the indelible ink, the opposition resorted to their traditional method of countering phantom voters stopping buses that were suspected to be ferrying the phantoms into the targeted constituencies. pas had threatened to resort to public arrest of the phantoms which were allegedly trafficked into Kelantan and Terengganu, the party s strongholds. Eventually, in Kuala Ibai, Terengganu, as many as nine buses were stopped by pas supporters and later escorted away by the police. 26 It was not known if the voters were indeed phantoms and if the pas supporters involved were eventually charged. Such incident nevertheless suggests that the absence of safeguard measures such as the use of indelible ink may hurt the legitimate voters by both making impersonation possible and causing distress to legitimate voters who are suspected to be imposters. Postal Voting Under Malaysian laws, absentee voting is administrated in two different ways. Election workers technically and temporarily opt out of normal voting but remain on the electoral roll just like other citizens. Absentee voters, namely, military and police personnel and their spouses as well as civil servants and students overseas are separately registered as postal voters. The practice of having permanent postal voting for security force voters was once justified during the communist insurgence in the 1950s and 1960s. However, the communist threat no longer exists and the war has officially ended with a permanent peace accord between the warring parties in Traditionally, the military and police votes had been the ruling coalition s staunch supporters. Retaining the archaic the separate electoral rolls for postal voters is therefore seen by bn critics as a means of manipulation, not least because of the manner postal voting is carried out. The first issue is the uneven distribution of postal voters. In 2008, postal voters the majority of whom were from the military and police quarters totaled about 220,000 or 2% of the entire electorate nationwide. They were however not evenly distributed in all constituencies and can therefore easily tip the balance in marginal constituencies or produce strongholds for the bn. In one of the most severe cases, the parliamentary seat of Setiawangsa in the Kuala Lumpur Federal Territory, postal voters amounted to 14,000, slightly more than a quarter of the total voters. Meanwhile, pas leader Husam Musa claimed that a number 184

185 Free and Fair Elections of army voters were possibly registered in both the ordinary and postal rolls. 27 The second issue is the lack of secrecy and transparency in the postal voting in the military barracks and police stations, which leads to allegations of intimidation, proxy voting or even ballot stuffing. pkr s candidate for the Setiawangsa seat, Ibrahim Yaacob charged that the votes may not be secretive as the voters were required to fill up an enveloped Identity Declaration Form that accompanied the ballot paper. The compromise of secrecy was affirmed by the accredited observers from mafrel. 28 The suspicion of foul play was not allayed despite the Election Commission s permission for one agent per candidate to monitor voting in the military barracks and police contingents. 29 The third issue is the high number of unreturned ballots, which the Election Commission admitted stemmed from postal voting. 30 Despite the ballots being normally given to the voters five days after the nomination to allow ample time for the security force personnel to cast their votes, every year, a high percentage of postal votes were simply not returned. In 2008, as many as 2,948 ballots were not returned in the Parliamentary seat of Lumut, Perak where a naval base is located. While the failure to return could be purely technical and does not involve any criminal intent, the legitimacy of the election was in question since the winner from bn, Datuk Kong Cho Ha, won only with a 298-vote margin or 10% of the unreturned ballots. 31 In 1999, the number of missing ballots in Lumut reached the astonishing figure of 8,176 votes while the winning margin was only 605, a mere 7% of the former. 32 In August 2008, Minister in the Prime Minister Department Nazri Abdul Aziz announced that postal voting would continue, citing enfranchisement for all including the members of the security forces as a pretext. bersih s persistent demand that the security force voters be transferred from postal voter rolls to ordinary voter rolls went unheeded. Nomination Under the Malaysian constitution and laws, any citizen aged 21 years and above, who is not an undischarged bankrupt, not declared to be of unsound mind, not convicted and sentenced to imprisonment of one year or more or to a fine of RM 2,000 or more and unpardoned in the last five years, and has not resigned from the Parliament in the last five years, can run for a parliamentary seat. Similar conditions apply to the candidature for state legislatures. One is allowed to concurrently hold a parliamentary and state legislative seat as only double membership for both houses of the Parliament is prohibited. 33 Contestation is however hindered by a huge deposit totalling RM15,000 for contesting a parliamentary and RM8,000 for a state seat, arguably dissuading resource-poor citizens from standing in elections. Aimed at discouraging frivolous candidates, the first part of the deposit, RM10,000 and RM5,000 for federal and state contests respectively, is paid to the Election Commission and refundable if the candidate garners at least one eighth of the valid votes. 34 The second part of the deposit, RM5,000 and RM3,000 for a parliamentary and a state contest respectively, is paid to the local authority and refundable if the candidate cleans up his/her electoral materials on the street promptly after the election. Another obstacle during nominations is the inconsistent application of regulations which lead to disqualification of certain mostly opposition candidates and sometimes walkovers. Starting from the 2004 election, candidates are permitted to pull out within three days after nomination, opening the door to withdrawals and walkovers which 185

186 Malaysia Human Rights Report 2008 are allegedly fuelled by corruption. These two problems, which were part of the reasons for the 17 walkovers in parliamentary contests in 2004, ceased to be a major issue in There were only eight walkovers nationwide, all but one in East Malaysia this time. However, in one of the vacant seats, Pensiangan, one of the disqualified candidates filed an election petition claiming that he was obstructed from reaching the nomination centre. 35 In 2008, a controversial new measure was introduced just four days before the nomination day. Taking instruction from the Attorney-General, the Election Commission initially announced that all candidates must pay stamp duty for the statutory declaration forms that accompanied their nomination forms. The Commission however withdrew the requirement on the morning of nomination day. The opposition alleged that the requirement was meant to create a hurdle for the opposition candidates but in the process, it would likely disqualify more bn candidates than the opposition ones. 36 The most serious hurdle to participation affects not individuals but political parties. Party registration lies within the jurisdiction of the Registrar of Societies (ros) under the control of Home Ministry and not the Election Commission (ec). The approval of ros on party formation is arbitrary and partisan that certain parties are simply denied registrations. Virtually Malaysia s only leftist party, Socialist Party of Malysia (Parti Sosialis Malaysia, psm), has been denied registrations ever since The fate was similar for the Sarawak-based Malaysia Dayak Union (mdu). (See Chapter 5: Freedom of Assembly and Association.) Deprived of the right to contest under its own banner, psm had to fight the 2008 elections using other names under the ticket of pkr for one parliamentary and one state seat, and standing as an independent in another state seat. 37 Campaign Freedom By the joint effect of Article 55(4) of the Constitution and Section 2 of the Election Offences Act 1954, the campaign period (defined as the period from the closing of nomination to the eve of polling day) is capped between 7.5 days and 55.5 days. Historically, the period has been gradually shortened, from six weeks in 1955, to five weeks in , to about two weeks in 1970s, to days during the pm Mahathir s rule and finally to a minimum of 7.5 days in Such a short campaign period has effectively handicapped the opposition which controls neither mass media nor government apparatus (except in Kelantan) in reaching out to the voters. While bersih had demanded a minimum of 21 days, half the length in 1955, the Election Commission eventually only provided a short period of 12.5 days in Beyond the length of the campaign period, electioneering is generally restricted. In the first nine days of the campaign period, 16 campaigners had been arrested for various offences including alleged involvement in physical conflicts. The police also threatened to use the Sedition Act against those who played up racial sentiments. 38 Besides general restriction, certain groups were restrained by the authorities from participation. For instance, university and college students who are governed by the restrictive University and University College Act were categorically warned by the Higher Education Ministry to stay away from politics or face disciplinary action including expulsion and suspension. 39 Administrative Neutrality One major challenge in the electioneering process is the absence of administrative neutrality. It is a common phenomenon that laws are selectively observed, handicapping the 186

187 Free and Fair Elections opposition parties since the bn can campaign under the pretext of carrying out official functions. For example, Malaysian Human Rights Commission (suhakam) points out that opposition parties have usually been denied permits to hold ceramah (public gatherings involving political speeches); [ ] issuance of permits should not be discriminatory and rejection should be based on evidence, not on speculation, suspicion or fear. Procedures for application and approval of permits should be clear and transparent. 40 Because administrative neutrality is nonexistent, the worry of post-election witchhunts - in the form of job transfer, tax investigation, and denial of state aid - has caused many state employees and ordinary citizens to shy away from supporting the opposition. The second and larger issue is vote-fishing using state resources and national policies. Voters are targeted with pledges and delivery of development projects by the caretaker governments at both the federal and state levels during general elections. To win back the Kelantan state which has been ruled by pas since 1990, Kelantan Barisan Nasional election director Awang Adek Hussin went as far as offering to forfeit RM26 million of land tax, RM34 million of assessment and RM16 million of water bill arrears. 41 In Sarawak, a state ruling party leader openly declared that the constituencies that elected in the opposition dap lawmakers in the 2006 state elections would be cut off from government projects and development grants. 42 Until and unless administrative neutrality is imposed and enforced, there can be no level-playing field for democratic competition to take place. Media Access The opposition enjoys little access to the mainstream media, both print and broadcast, thanks to the concentration of media ownership in the hands of bn interests. This happens partly because of entry barriers. Under the Printing Presses and Publication Act (pppa), any newspaper requires a publication permit, renewable annually and revocable anytime by the Minister in his absolute discretion. Such power has been justified under the pretext of protecting communal harmony and public morality, resulting in the suspension of three newspapers in 2006 (for publishing the infamous Danish cartoons) and one newspaper in 2007 (for a special issue on sex). The free-to-air television industry is practically a duopoly of the state-owned Radio and Television Malaysia (rtm) and the umno-controlled Media Prima, which owns all four private free-to-air channels, tv3, ntv7, 8tv and tv9. Not surprisingly, there has been no airtime for election broadcast or televised debates in either the state or private television channels. As a matter of fact, the last time the opposition were given some meagre airtime on radio was in The popular satellite television provider, Astro, is also controlled by a well-linked businessman although it has many channels with news reporting and talk shows that are quite critical by Malaysian standards. The pro-bn bias in the mainstream media was evident. According to a media report exercise conducted by media watchdog Centre for Independent Journalism (cij, supported by Charter2000-Aliran and Writer Alliance for Media Independence (wami), the most proestablishment English quality daily The Star dedicated 63.12% of its space to the ruling coalition, while neutral stories only took up 31.31%, while pro-opposition reports trailed with only 5.5%. Even the more critical The Sun was largely dominated by pro-bn stories (42.8%) and neutral reports (40.87%), in contrast to pro-opposition articles (16%). The situation in the Malay and Tamil newspapers was worse, with the Malay-language Utusan 187

188 Malaysia Human Rights Report 2008 Malaysia giving 82.29% of its space, and the Tamil-language Malaysian Nanban using 70% of its space for pro-bn stories. 43 In view of the bias in the private conventional media, bersih and the Opposition parties called for televised election debates but the idea was squarely rejected. 44 In overcoming the blockade in mainstream media, the opposition have depended heavily on the internet and new media both online newspapers like Malaysiakini and Malaysian Insider and popular blogs like Malaysia Today. The political use of technology had long begun in 1998 when the wave of Reformasi swept the nation following Anwar Ibrahim s purge from umno and imprisonment on charges of corruption and sodomy. While free from licensing requirement, the online journalists and bloggers are however not free from investigation and prosecution under laws on national security, official secrets, sedition or defamation. Campaign Finance Under the Election Offences Act 1954, a parliamentary candidate is allowed to spend a maximum of only RM200,000 while a state assembly candidate can only spend up to RM100,000. This cap is pointless considering the accounting unit here is the individual candidate and not the parties. Hence, the parties spend collectively on costly and shareable items such as advertisements. The law also fails to regulate contributions in kind, making it possible for business men to buy influence through political donation. Should the law be effective, then a party that contests all 222 parliamentary seats and 505 state seats in the 12th election must not spend more than RM94.9 million in the election. However, according to an industry insider, bn has spent altogether nearly RM29 million in advertisements in newspapers and free-to-air television and radio alone, amounting to about 30% of the RM94,800,000 its candidates collectively are allowed to spend in total. If the cost for cable television commercial, outdoor billboards, flaglines and posters are all taken into account, it is likely the advertising budget itself would have exceeded the spending limit. The Election Commission A key and long standing concern has been the lack of neutrality and impartiality on the part of the Election Commission, which consists of former civil servants. Largely seen as a bn tool, it was even dubbed the 15th member of the ruling coalition by some opposition politicians. According to suhakam, Since EC members are currently appointed by the Prime Minister, the agency is unlikely to be able to act independently. To be fully independent, the EC should be made directly accountable to Parliament. 45 The two controversies created by the Election Commission in the 2008 elections, viz. the issues of stamp duty and, later more importantly, the use of indelible ink, have further cast doubt on the independence of the ec. The Right to Observe Elections There is no legal provision for the right to observe elections, whether the observers are from the international community or from within civil society. However, the local watchdog Malaysians for Free and Fair Elections (mafrel) had managed to convince the Election Commission to allow for official electoral observation in the 2007 Ijok by-election and eventually the 2008 general elections. Despite the restrictions imposed by the Election Commision, mafrel s participation has managed to provide some insights from within the poll- 188

189 Free and Fair Elections Civil society representatives tearing up the photographs of Elections Commission Chairman. Civil society groups have claimed that the Elections Commission has failed to act impartially and independently. (Photograph courtesy of Malaysiakini) ing centres including the conduct of postal voting. 46 Election Petitions and Redress Theoretically, candidates and voters have adequate channels for electoral redress. A High Court Judge will preside to hear election petitions that may lead to (a) the election being declared void; (b) the election result being overturned; or (c) a scrutiny. Appeals may be filed at the Federal Court. The laws also stipulate a period within which the petitions and appeals must be heard and ruled. Major limitations, however, erode the effectiveness of the legal recourses available. Firstly, the law does not allow any challenge of the validity of electoral rolls, which is at the core of problems in most constituencies. Deletion of names from the principal electoral rolls is subject to neither inspection nor objection. The ec-appointed Adjudicating Officer has the final discretion regarding any claim or objection in the revision of supplementary electoral roll. Electoral rolls are not to be questioned, appealed against, reviewed, quashed or set aside by any court under Section 9A of Election Act 1958, once they are certified and published. Secondly, an election may only be declared void in relation to corrupt practices and non-compliance of law, if such practices and non-compliance have affected the election outcome. 47 But even if the petition has proven its case, the petitioner may not win relief if there is no evidence of the pivotal effect of his/her vote. Thirdly, the Election Commissioners have the final decision in some other matters. Under Section 41 of Election Offences Act 1954, the Returning Officer or Presiding Of- 189

190 Malaysia Human Rights Report 2008 ficer has the final and unquestionable say in the determination of reject votes. Similarly, the decision of the ec s enforcement team leader is final and binding on all team members under Sub-section 27G(4) when consensus cannot be achieved. Fourthly, the Election laws specifically do not govern the conduct of media, police and other institutions, even though they may have immense implications on the freeness and fairness of campaign. Lastly and fundamentally, the prospect of judicial review relating to elections has not been encouraging so far. 48 In 2008, all but two election appeals were struck off forthwith. One of the exceptions was the Perlis state seat of Sanglang. pas candidate Hashim Jasin claimed that his victory was deprived by a miscount. On 18 June, the Election Court in Kangar ruled that the bn candidate s victory was null and void but refused to declare Hashim the winner, claiming he had no such power. 49 The Federal Court however ruled that he was the rightful representative for the seat on September 16, thus avoiding a by-election. 50 The other case was the Pensiangan parliamentary seat in Sabah where Parti Bersatu Rakyat Sabah s Joseph Kurup had won uncontested after challenging and disqualifying his two opponents on the ground of lateness. The petitioner, pkr candidate Danny Anthony Andipai, claimed that he and the other candidate were blocked on the way to nomination centre. Even the Sabah Deputy Director of Election Commission had instructed the Returning Officer to accept their nomination, but the instruction was later disobeyed after Kurup s protest. Initially, the High Court ruled against Joseph Kurup to declare the seat vacant on September 8, affirming the petitioner s constitutional right to contest, making possible the first by-election since March 8 because of an election suit. 51 However, the Supreme Court eventually overturned the decision half a year later, leaving no by-election to be called because of an election appeal. 52 Otherwise, Pensiangan would have contributed to the seventh by-election since 8 March The Permatang Pauh By-election The first by-election after March 8 happened in Permatang Pauh on August 27 after the incumbent Datin Seri Wan Azizah Wan Ismail resigned to pave the way for the return of her husband, Anwar Ibrahim, to Parliament. Anwar Ibrahim was the semi-rural Malay-dominant constituency s parliamentarian since 1982 until he was convicted of corruption in a sodomy-related trial in Wan Azizah had stood in and won the seat in three elections. Anwar had been eyeing an opportunity for a by-election through an election appeal. One possibility was in Kulim-Bandar Baru, a seat held by pkr s Zulkifli Nordin who eventually kept his seat. As Anwar was accused of sodomy for the second time this time by a young aide, Shaiful Bahri necessitating him even to seek refuge temporarily at the Turkish mission, returning to Parliament through an election was seen as a political lifeboat. 53 In this context, the Permatang Pauh byelection was almost a mini replay of the March 8 general elections, leading it to be called by some as mother of all by-elections. As the stakes were high for both sides, so was the intensity of electoral competition and manipulation. 54 For a start, the Election Commission picked a Tuesday as the polling day which was seen as a deliberate move to effect a lower turnout rate Anwar was tipped to benefit from a higher turnout. While Anwar s allies in the Penang State Government announced a public holiday on polling day as a counter measure, a few thousand workers in the neighbouring state of Kedah were still likely affected. The bn-umno candidate Arif Shah 190

191 Free and Fair Elections was reported to have paid some voters, which he first called paying the spies and denied that it was vote buying. 55 There were the usual electoral handouts for example, RM 1 million was announced to help five Chinesemedium schools by the Education Ministry in an effort to win over the crucial Chinese minority votes. 56 There were also the standard complaints of missing voters and standard action of stopping phantom voters. 57 The Need and Prospect for Electoral Reform It is clear that the entire electoral system and process in Malaysia needs an overhaul. At the systemic level, at least constituency delinea- tion needs to be free from the perils of gerrymandering and mal-apportionment, if a more proportional system is not to be introduced. The electoral rolls are so contaminated that it warrants a complete re-registration exercise, which the Election Commission once pondered but did not pursue. 58 Automatic registration for all eligible voters should also be considered. Until the electoral rolls are cleaned up, the use of indelible ink seems to be the only way to stop the rampant phantom voters. The archaic postal voting for security force voters should be abolished to enable them to vote like civilians in a freer and more confidential setting, which would be fairer for both the parties and these voters. To ensure a level playing field, an administrative neutrality law should top the list A bus which PKR members alleged to be ferrying phantom voters to the Permatang Pauh by-election in August. (Photograph courtesy of Malaysiakini) 191

192 Malaysia Human Rights Report 2008 alongside the call for fair access to state-owned broadcast media. No less important but perhaps requiring a longer time is the reform in electoral financing, including the introduction of state funding. Finally, the Election Commission itself must be subject to reform, with more representative membership beyond the pool of former civil servants and all parliamentary parties should be given the power to nominate the suitable candidates. For a fuller democracy, elections should be introduced for both the local authorities and the House of Senate at the federal level. Thanks to the pressure from civil society, two of the Pakatan Rakyat governments, those of Selangor and Penang, are now studying the possibility of introducing local elections, despite resistance from the bn federal government on one hand, and the Pakatan Rakyat state governments themselves on the other. Summary Despite the sea-change 2008 elections, the electoral system and process in Malaysia remain neither free nor fair, as shown in the Permatang Pauh by-election held about half a year later. Thus, the opposition had won despite the manipulations and frauds. Electoral reform should therefore be a key focus of civil society s efforts to democratize Malaysian. bersih has made several demands for the setting up of a Royal Commission on Electoral Reform (rcer) to draw up a comprehensive and well-thought plan of electoral reform, acceptable to all political parties and civil society. A cross-party consensus on electoral reform is vital for democratic transition and consolidation. It may prevent Malaysia sinking into post-election political unrest as in Thailand, Iran and Georgia. 192

193 Free and Fair Elections End Notes 16 September is the anniversary of Malaysia s formation but is not celebrated as a national holiday. The official discourse is much centred on the West Malaysian political history, a point of contention for many East Malaysians. Wong Chin Huat and Norani Othman (forthcoming) Malaysia at 50 an electoral one-party state? in Abdul Razak Baginda (ed.) Governing Malaysia, Kuala Lumpur: Pelanduk. One exception was Perak under the Pakatan Rakyat where heads of Malay villages were elected. These appointments were however terminated by the successive Barisan Nasional state government which controversially overthrown the former in February 2009 through defections and a palace coup. Before 1963, what constituted Federation of Malaysia later was the independent Federation of Malaya and three British colonies: Singapore which has had home rule, and Sabah and Sarawak with only nascent representative politics. Singapore left the Federation with constitutional monarchies and became an independent republic on 9 August Technically, the appointment is made by the state s monarch. In 2008, the rulers of two states, Perlis and Terengganu have chosen their own candidates, in place of the Prime Minister s favourites, as the Menteri Besar. Lim Hong Hai (2002) Electoral Politics in Malaysia: Managing Election in a Plural Society, (p. 4), pore.org/pdf/electoral%20politics/ma- LAYSIAFINAL.PDF Examine this hypothetical example. For an electorate that gives 60% support to party A and 40% support to party B, perfect seat-vote proportionality can only be achieved if party A supporters happen to constitute the majority in 60% of the constituency while party B supporters dominate the remainder 40%. Should 5% of the electorate swing from party B to party A, the perfect seat-vote proportionality can be restored only if the swing changes the winners in exactly 5% of the constituencies. See Lim (2002) op. cit. (pp. 5-11). Malaysian watchdog claims fraud bars opposition from taking power, demands reforms, Associated Press, 18 March 2008, (last accessed: 9 June 2009). See 8,666 voters aged over 100 still listed on electoral roll, New Straits Times, 28 February 2008, (last accessed: 9 June 2009). See 46 Ismail Ibrahims born in 62 to vote, Malaysiakini, 6 March 2008, bersih.org/?p=1094 (last accessed: 9 June 2009). See She s a voter in Kelantan, although she s never registered, New Straits Times, 13 February 2008, org/?p=971 (last accessed: 9 June 2009). See Bersih offers EC proof of fraud, Malaysiakini, 12 February 2008, bersih.org/?p=960 (last accessed: 9 June 2009). See bersih Press statement: 17 March 2008, Opposition parties may have won the General Election outright if it 193

194 Malaysia Human Rights Report was truly clean and fair, org/?p=1157 (last accessed: 9 June 2009). See Kelantan bn: Where are the 118,000?, The Star, 4 March 2008, (last accessed: 15 June 2009). EC Receives 235 Complaints of Names Missing From Electoral Roll Since 2004, Bernama, 8 May 2008, org/?p=1218 (last accessed: 15 June 2009) , (last accessed 16 June 2009). See Cabinet only suggested scrapping use of indelible ink in poll, New Straits Times, 18 May 2008, (last accessed: 16 June 2009). See ec s fragile reputation suffers another blow, Malaysiakini, 5 May 2008, bersih.org/?p=1134 (last accessed: 16 June 2009). 18 See The four million who are eligible to vote, but won t, New Straits Times, 1 March 2008, (last accessed: 17 June 2009). 26 See pas mob stops nine buses ferrying voters, New Straits Times, 7 March 2008, (last accessed: 16 June 2009) See bersih Memorandum, 10 November 2007, Memorandum to His Majesty Yang dipertuan Agong, org/?p=517 (last accessed: 9 June 2009). See ec cancels use of indelible ink, The Star, 4 March 2008, my/election/story.asp?file=/2008/3/4/ election2008/ &sec=el ection2008 (last accessed: 14 June 2009). See U-Turn on ink: A Black Mark for ec, Malaysiakini, 4 March 2008, (last accessed: 14 June 2008); and IGP: Four reports on smuggled ink, New Straits Times, 5 March 2008, org/?p=1243 (last accessed: 16 June 2009). See ec Chairman s house splashed with paint, The Sun, 6 March 2008, bersih.org/?p=1105 (16 June 2009). See ec Chairman: Cabinet didn t approve of indelible ink, The Star, 17 May See Husam claims discrepancy in army electoral roll, New Straits Times, 1 March 2008, (last accessed: 16 June 2009). See bersih decries postal votes fraud, Malaysiakini, 2 March 2008, (last accessed: 16 June 2009); and Postal voting secrecy compromised: poll watchdog, Malaysiakini, 6 March 2008, (last accessed: 16 June 2009). See Agents now allowed to verify postal votes, The Star, org/?p=1048 (last accessed: 16 June See ballots not returned, New Straits Times, 16 March 2008, (last accessed: 16 June 2009). See Thousands of ballot papers unreturned, The Sun, org/?p=1129 (last accessed: 17 June 2009). 194

195 Free and Fair Elections See Missing Ballots, Ijok not an isolated case, Malaysiakini, 3 May 2008, (last accessed: 17 June 2009). See Articles 48 and 49 of the Federal Constitution. See Regulation 5, Elections (Conduct of Elections) Regulations See details in the section on election appeals in this chapter. See Uproar over ec rule change, New Straits Times, 26 February 2008, bersih.org/?p=1050 (last accessed: 17 June 2009). psm was eventually approved as a political party only in early The party fought the 1999 elections under dap s banner and the 2004 ones under pkr s. See 16 arrested for various offences during campaign, Bernama, 4 March 2008, (last accessed: 16 June 2009). See Stay out of politics, students warned, The Star, 18 February 2008, (last accessed: 16 June 2009). See suhakam (2008) Annual Report 2007, Kuala Lumpur: suhakam (p. 14). See bn pledges to write-off taxes, The Star, 7 March 2008, org/?p=1157 (last accessed: 17 June 2009). See Grants only in bn-held seats, Borneo Post, 28 February 2008, theborneopost.com/?p=31830 (last accessed: 17 June 2009) Centre for Independent Journalism (2008) Report on the Quantitative Analysis of the Media Monitoring Initiative for the 12th General Elections, Kuala Lumpur: cij. See: See Malaysia s government reject call for televised debate, Associated Press, 2 March 2008, (last accessed: 17 June 2009). Ibid. (p. 15). See Postal voting secrecy compromised: poll watchdog, Malaysiakini, 6 March 2008, (last accessed: 17 June 2009). Section 32 of Election Offences Act See Puthucheary, M. & Norani Othman (2003) The Electoral System of Malaysia: A Report, Bangi: ikmas, ukm (pp ). See umno s Sanglang state seat win invalid, Malaysiakini, 18 June 2008, news/84651 (last accessed: 17 June 2009). See pas Hashin Jasin declared Sanglang winner, The Star, 16 September 2008, asp?file=/2008/9/16/nation/ &sec=nation (last accessed: 17 June 2009). See Kurop s Pensiangan seat declared vacant, Malaysiakini, 8 September 2008, news/89257 (last accessed: 17 June 2009). See Kurop gets to keep Pensiangan, The Star, 14 March 2008, my/news/story.asp?file=/2009/3/14/ nation/ &sec=nation (last accessed: 17 June 2009). 195

196 Malaysia Human Rights Report See Anwar eyes possible Kulim by-election, Malaysiakini, 18 July 2008, bersih.org/?p=1297 (last accssed: 17 June 2009). See Asian polls watchdog sniffs out wrongdoing, Malaysiakini, 25 August 2008, (last accessed: 17 June 2009). See Arif Shah clarifies paid spy issue, Malaysiakini, 23 August 2008, www1.malaysiakini.com/news/88388 (last accessed: 17 June 2009). See Goodies roll in, RM1 mil for Chinese schools, Malaysiakini, 15 August 2008, (last accessed: 17 June 2009). See Four names missing from electoral list, Malaysiakini, 26 August 2008, and 5 phantom buses stopped, mp arrested, Malaysiakini, 26 August 2008, both accessed on 17 June 2009). See Malaysia mulls mass voter registration to stop frauds, report, afp, 26 May 2008, (last accessed: 17 June 2009). 196

197 VOICES OF THE PEOPLE: SELECTED STORIES

198 Malaysia Human Rights Report 2008 Adat and Human Rights in Sarawak SACCESS 1 Prior to the Brooke rule and subsequent colonial administration, the indigenous communities, particularly the Dayak groups of Sarawak, were governed by their own respective adat. Over time, this adat has been forcibly changed into a homogenous state-based institution, thereby eliminating its uniqueness to the particular indigenous community. Among other functions, the adat is used by Sarawak s indigenous communities to claim rights over land, forest resources and their livelihood. The failure to understand the importance of adat to precolonial Dayak indigenous communities of Sarawak would render the discourse on human rights futile. Clifford Sather said that adat: [ ] covers all of the various customary norms, jural rules, ritual interdictions and injunctions that guide an individual s conduct, and the sanctions and forms of redress by which these norms and rules are upheld these rules apply to virtually all spheres of human life, social, economic, religious and political. 2 In this sense, adat is an all-encompassing institution that presides over activities such as marriages, religious festivals, death and mourning, childbirth, dance and music, construction of new longhouses, and even traditional past-times such as music and weaving. It is also important to note that unlike the Malay notion of adat, the concept of adat among many Dayak communities of Sarawak is not distinct from religious rituals and practices. It is one and the same thing. According to Ter Haar (1948), the adat is not restricted to what we commonly regard as customary law. 3 The concept of adat mentioned in this report is not restricted to the notion of adat as law or rules. Because the adat resembles the generic concept of customs, it includes all the activities people customarily practise in their society. It also covers the individual s behavior and personal habits, whether he/she is practising good or bad adat. Generally, the function of the adat is to ensure harmonious relationship among members within the community and also maintain the general state of wellbeing with the spirit world. Breaching this adat would risk a breakdown in social relationship which is punishable in both the secular and spiritual senses. The adat and state formation Before Sarawak came under colonial rule, the indigenous communities did not define their social identities based on ethnicity as we understand it today (e.g. Iban, Bidayuh, Kayan). Their social identities were defined by their geographical space, such as people belonging a particular river tributary, hill/mountain or watershed areas. Their social loyalty was based on these geographical spaces and its own kinship system. As such, each community living within a specific geographical space would be governed by its own unique adat. However, with the formation of the state that began with the Brooke administration, the adat as a concept and its traditional functions was changed to fit the requirements of the state constitution. The evolution of the adat from its unique traditional form to its constitutional profile today is primarily caused by the adoption of the values of the colonial and post-colonial governments. When the Brooke administration began to strengthen its grip on Sarawak in the mid- 198

199 Voices of The People: Selected Stories 19th century, the structure of the adat was altered and it was constituted as customary law. For instance, during the Brooke administration the Iban tunggu (fines) according to the adat were systematised and assigned monetary values. Also, they introduced courts to replace the Iban bechara (hearing) that was usually carried out in a longhouse ruai (verandah) and witnessed by the longhouse inhabitants. These new colonial practices, in replacing the traditional adat, eventually spread to all the indigenous communities in Sarawak. The adat then became an institution sanctioned by the state. The adat at the local level is administered by the Penghulu or chiefs who receive a salary from the state. Clifford Sather said that due to this ruling and the replacement of traditional adat by the state, the Brookes began to eliminate some aspects of the adat that seemed negative or morally bad by their standards. These included the death penalty for incest, forcible seizure of property, slavery and headhunting. What is left of the adat now is akin to the precious antique collections stored in a government-run institution at the Majlis Adat Istiadat, under the umbrella of the Sarawak Chief Minister s Office. Alteration of the adat inevitably affected land use system as well. The Land Order in Sarawak was first introduced in 1863, changed in 1920, and amended to what we know today as the Sarawak Land Code This has far-reaching implications for the indigenous communities in Sarawak. For example, in the cases affecting the Orang Ulu and Penan in particular, jungle clearing is not an option to acquire land rights. The various Orders, Ordinance and the Land Code sought to, and effectively restrict the acquisition of land rights through the practice of local adat by the various indigenous communities and, ironically, a prior permit in writing from a Superintendent of the Land and Survey Department is required for any attempt to create customary rights upon land after When it comes to land rights issues, it is often assumed that the adat merely plays an aesthetic role and the Land Code 1958 is used as the authority over the people s claim to rights over land. The fact that the local indigenous communities have lost their customary rights to land through the alteration of the adat at the advent of the Brooke administration shows how the concept of rights as we know it today cannot be effective in dealing with the issues affecting Sarawak s indigenous people. From the cases presented in this report, we argue that dispossession of indigenous communities land resources, rape, murder and other existing social problems correlates with the alteration of the traditional adat, which is the essence of indigenous communities rights. Adat and human rights The issues dealing with human rights abuse in Malaysia had begun to pick up pace 20 years ago. Unlike their counterparts in the Peninsula, most of Sarawak s human rights issues relate directly with dispossession of customary rights land of the indigenous peoples. This paved the way for logging companies and large-scale oil palm plantations to enter the indigenous people s land under the guise of development. Despite the availability of human rights instruments, the problems associated with the elimination of indigenous peoples customary rights to land and thus, neglecting their adat, have not been addressed effectively. In fact, the available human rights instruments have curtailed the essence of rights at the local level, starting with the alteration and the subsequent elimination of the indigenous people s adat. We also argue that the abuse of human rights cannot be restricted to statutory rights. This is because although common law rights such as the customary rights to land may be recognised, clear statutory provision can take them away. 199

200 Malaysia Human Rights Report 2008 The case of Sarawak with regard to human rights issues is no different from the abuse of indigenous peoples rights in the US in the 19th century. In the 19th century, us [Chief Justice] Marshall viewed tribal societies as not qualifying as nations or states and therefore without rights to ancestral lands. 4 Without being recognised as a nation-state, the indigenous peoples cannot enjoy their rights. Anaya (2004) further argues that indigenous peoples must be recognised as a nation-state in order to benefit from these rights. 5 The only problem with this example in the context of Sarawak is that once her indigenous peoples become a nation-state, they are regarded as citizens and no longer indigenous people with traditional rights and adat that existed before formation of a nation-state. Even with the establishment of various international organisations to protect human rights, the state still systematically abuses human rights through its institutions and these cases of abuse continued to be ignored at the local, national and international levels. For instance, the United Nations (un) General Assembly adopted three treaties that are concerned with human rights issues, namely the International Convention on the Elimination of All Forms of Racial Discrimination (icefrd 1965), International Covenant on Civil and Political Rights (iccpr 1966) and International Covenant on Economic, Social and Cultural Rights (icescr 1966). These treaties do not only cover the rights of minority groups but also address problems faced by indigenous peoples. 6 Yet, these international human rights establishments do not have any power to protect the rights of indigenous peoples in Sarawak; nor are they effective in doing so. For instance, iccpr concentrates on the rights of all individuals to humane and equal treatment by the state under the law as stated in its Article 1 the right to self-determination (defined as the right to freely determine their political status and freely pursue their economic, social and cultural development ). However, according to Yogeswaran Subramaniam (2007) this right to self-determination has been interpreted cautiously by the un and international community. 7 The argument says that indigenous peoples cannot be regarded as peoples for the purpose of self-determination under Article 1 because this right is equated with the decolonisation process and the right to form an independent state. In other words, the traditional rights or adat of indigenous peoples have been annulled with the formation of the state following independence from its colonial masters. Hence, those who were once indigenous peoples under colonisation have been reduced to citizenship following decolonisation and political independence. In 2007, the un General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (undrip), to which Malaysia became one of its signatories, i.e. agreed to abide by the provisions constituted in the declaration. Malaysia has no qualms accepting undrip because the notion of protecting indigenous people s rights can be blurred. For instance, Article 26(1) in the undrip secures the right of indigenous peoples to the lands and resources they have traditionally owned, occupied, used, or acquired. 8 But in the context of Sarawak, the whole idea of indigenous peoples may be subsumed under the concept of Bumiputra, whose land and resources have already been provided and protected by the state (e.g. the notion of Bumiputra privileges but in actual fact, these rights have been transferred to the elite Bumiputra). 200

201 Voices of The People: Selected Stories The Lawful Violation of Native Customary Rights Furthermore, in Sarawak, the 1958 Statutory Sarawak Land Code defines Native Customary Land as, land in which native customary rights, whether communal or otherwise, have lawfully been created prior to the 1st day of January 1958, and still subsist as such. 9 The keyword lawfully is further defined under Section 5, specifying methods in which Native Customary Rights may be created as: 10 The felling of virgin jungle and the occupation of the land thereby cleared; The planting of land with fruit trees; The occupation or cultivation of land; The use of land for burial ground or shrine; or The use of land of any class for rights of way. In 2000, wide-ranging amendments were introduced and passed by the Sarawak State Legislative Assembly, among which, an existing mode for the creation and acquisition of native customary land rights by any other lawful method was deleted. This particular amendment has yet to be gazetted, but it remains only one administrative act away to remove the enabling sub-provision most directly associated with the use of adat to create and acquire native customary rights over land. The Malaysian Courts have ruled and expressly affirmed that the native customary land rights of the indigenous peoples in Sarawak have survived all the Land Orders, Ordinances and Land Code, but the Sarawak State Government has chosen and continues to ignore this judicial enunciation. Therefore, no matter how the Malaysian government claims to protect the rights of the indigenous peoples, it would still be regarded as ineffective as long as the traditional adat of the indigenous peoples are ignored. Consequently, the absence of such adat leaves the indigenous peoples vulnerable to all kinds of criminal, social and economic problems, such as unemployment, poor formal education, sexual abuse, landlessness and alienation. Unless this problem is addressed, the whole struggle to safeguard human rights among the indigenous communities of Sarawak (Sabah and Peninsular Malaysia, for that matter) remains elusive because of the government s disregard for the key rights as practiced in the Adat. The following are cases of such abuses: Land is Life & Rights vs Adat Colonial and statutory ncr divided into land, marriage, death, usage, acquiring of rights, with time-frame (such as before 1958 ) etc; Alien concepts and value system, such as calls for land titles and the monetary value put on lands in compensation negotiations; The state and corporations override, and refuse to recognize, adat. Beyond Rights (Constitutional/Legal/ Common) In logging cases, licences are issued to allow the loggers to move in and establish camps, which, among others, completely ignore any indigenous people s rights; Destruction of life and its resources forests, water, animals, medicine, food source; Rights of the people to adat disappear, but rights are exerted by loggers and governments. Thus, these rights, which include workers rights, benefit the loggers and the state; 201

202 Malaysia Human Rights Report 2008 Right to rape and sexually abuse minors and women, following which perpetraters merely use the payment of monthly maintenance as per legal/statutory institutional rights requirements; Therefore, the whole idea of universal human rights with all their instruments, charters, declarations etc do not affect the state s and corporate rights. Symptoms of Deprivation of Adat (among others) Logging; Plantations; Loss of land; Alienation of communities; Rape; Arrests and imprisonment; Value system breakdown; Communities being evicted and uprooted; and Compensation based on supposed market value, grounded in the law that legalises State acquisition of lands as long as there is compensation. Indiscriminate logging has led to the destruction of life and resources of the indigenous peoples in the Sarawak. Two recent cases The following are two recent cases to illustrate the arguments put forward above; they are certainly not the only two. In fact, cases 11 reported previously in suaram s Annual Human Rights Reports on abuses suffered by the Sarawak indigenous communities continue. Some incidents have even involved the forceful evictions of indigenous communities from their ncr lands along the Bakun road. 1.Bengoh Dam Quarry and Upper Bengoh Communities The Quarry Bengoh Dam is a water reservoir dam being constructed supposedly to provide enough water to the state capital Kuching until Studies to justify the dam are known only to the government. The project was contracted without tender to Naim Cendera, a company in which the Sarawak Chief Minister s first cousin is one of the main shareholders. This federally funded project had been awarded at RM million. However, Naim Cendera later subcontracted it out to the mainland China dam builder, Sinohydro, for RM145 million. Kampong Bengoh is about one hour s drive away from Kuching. A Bidayuh settlement, it has a history that dates back way before the proclamation of the Land Code. The Bengoh mountain range displays some of the most beautiful limestone mountains and has provided the people their source of livelihood. Naim Cendera, armed with a quarry permit from the Sarawak Government, cleared a path through the Bengoh villagers lands right up to the foot of the Derod Mawah (or Mawah Mountain). Trees once covered the mountains but the mainland Chinese and local workers have logged them while 202

203 Voices of The People: Selected Stories constructing the path for the quarry operation. In the process of clearing, the company disregarded the fruit trees and other crops cultivation on the people s farms. The company s workers bulldozed their way through claiming that they were clearing state land. By the time the local villagers had organised to challenge the outsiders activities, their farm trees had already been cut down, their lands cleared, and new buildings and other physical structures had been erected on the people s ncr lands. Police reports were lodged and protests brought to the local Member of Parliament and State Legislative Assembly representative of the area. Despite these actions, the company workers continued to bulldoze the area and carried on with the work. Faced with no other alternatives, the people took out a court injunction to stop the work. They managed to stop the destruction for about six months before the Kuching High Court judge lifted the injunction. An appeal is pending. Meanwhile, the company workers have continued to work, disregarding the people s land rights. The Dam At the dam site itself, work continues on the river that is still feeding water to Kuching. Four Bidayuh villages within the Bengoh mountain range have been forced to be resettled to other ncr land downstream. Resettlement details are minimal, except the official rhetoric of providing a better life for the people. Once resettled, the people from these four settlements will experience the same fate as that of their fellow Orang Asal in the infamous Bakun dam project, i.e. the Sungai Asap Resettlement Scheme. While Kg. Rejoi, Kg. Bojong and Kg. Sait will be submerged by the reservoir, Kg. Semban, located at a higher altitude and actually not affected by the flood, will also be relocated. Kg. Semban houses have been compensated while those villagers whose lands will be submerged have also been paid. Nineteen families from Rejoi and ten from Bojong had turned down any form of compensation, protesting that more land had been left out of the perimeter survey. Many were only compensated for their crops but not for their land. The value of land that is determined by the government is also questionable. The people had agreed to their land being submerged provided a fair compensation was paid through an open and transparent process to determine the value of land areas, crops, farm houses, houses, etc, and on the condition that the people could move further up the water level to their own ncr lands. After all, the people s elected representatives from the federal and state governments had promised the villagers that they would be able to do just that. Two primary schools serving the four villages had informed parents that the schools would be closed by mid-2009, even though no concrete resettlement plans are in place. It is yet another example of communities being forced, one way and another, out of their adat lands in the name of development. 2.Rape of Penan minors and women The Penan and other indigenous peoples of Sarawak have been struggling publicly for land rights for more than two decades now. Without these rights being respected and protected, communities have either lost or continue to lose their lands to timber companies, mono-crop plantations and other supposed development projects. Along with such development come workers from outside, who suddenly impinge 203

204 Malaysia Human Rights Report 2008 on the lives of the indigenous communities. With mainly male workers around, it wasn t long before rape and sexual abuses occurred. The first known case was documented by an ngo Fact-Finding mission in 1995, with a follow-up mission in The final report, published in 2000, documented the rape of a minor, a Penan girl in Long Mobui in Upper Baram River in the Miri Division. Two police reports were subsequently lodged. The case was noted as nfa (No Further Action) for lack of direct evidence. The latest cases that have come to light were when the Switzerland-based ngo, the Bruno Manser Fund (bmf), broke the news in early October When the mainstream Malaysian media published the story with details after a visit to several Middle Baram Penan communities, the nation was finally aware of the rape and sexual abuse of vulnerable Penan girls. And from Ulu Baram, rape and sexual abuses of Penan girls have now extended to Middle Baram. Two young Penan mothers lodged police reports at the Police Headquarters in Kuala Lumpur. The Penan have valid reasons not to trust the local Sarawak police when senior retired police personnel are employed by the logging companies concerned, not to mention the logging companies close connection with the local Sarawak police establishment. Not surprisingly, several police reports lodged by the Penan against logging companies on land rights encroachment had never yielded any action. Furthermore, it was a fact that local support groups such as ngos would not be able to protect the victims after they had arranged to make police reports. Not all victims could lodge reports in Kuala Lumpur as most victims or their children do not have identification papers, which prevents them from travelling to Kuala Lumpur. This lack of official identity cards further erodes the people s rights. The collusion between the government and logging companies result in the blatant disregard of the people s adat and it is the root cause of the human rights abuses we are addressing. The Penan thrive and survive on the jungle. And yet logging companies, armed with licences can enter and clear the forests in the name of development. The police have the unenviable duty of taking care of a huge countryside area with so many native village settlements. The logging companies also employ retired senior police officers as security officers. It is also commonly known by the Penan that thugs are used by these companies to handle local opposition. With the inland rivers and streams cut off to make way for logging roads, the Penan are dependant on mostly logging vehicles plying these logging roads for their access to any place outside their settlements. The native people living in the realm of the logging companies are forced to accept the small concessions by the companies in the supply of materials to build their houses and occasional festive gifts in return for giving up tracts of their jungles for logging. It is therefore not surprising that the logging company workers have taken advantage of the circumstances to perpetrate sexual abuses on Penan women. The gravity of the problem of sexual abuses is reflected in that first reported instance of rape in Long Mobui in 1993, as mentioned above. No one was charged, whereupon the matter was completely forgotten by the Human Rights Commission of Malaysia (suhakam) (which received an official complaint on 4 November 2000 and publicly claimed that it had not received such complaint before). Amidst the public outcry after the publication of the rape cases, community feedback revealed heavy police presence in Penan set- 204

205 Voices of The People: Selected Stories tlements in the Middle Baram. Members of the community were asked if any outsider had been to their settlement. This was known to mean ngos and media personnel. Logging camp workers were also reported to be frequenting villages, in their efforts to silence the villagers. Civil society groups highlighting the rape cases of Penan women and the inaction of the police in Sarawak in a press conference held in Kuala Lumpur in the month of December. Sarawak-based media published numerous front-page reports that attempted to white-wash the rapes and sexual abuses. Instead, a perpetrator was reported as a concerned father even though it was known locally that he had other wives, a criminal offence in Malaysia. To date, he is still free and is reported by villagers to be enforcing more control over villagers and, together with the logging companies he is employed under, controlling movement in and out of the area. The federal government, through the Ministry of Women, Family and Community Development, carried out a mission to look into the rape cases but its report, submitted to the cabinet since January 2009, is still not released to date. No specific action has come from the federal government. The Sarawak Government has responded with rhetoric at best and outright dismissal at worst. It has played up its propaganda rhetoric about development and about how much funds had been allocated to the Penan. In the process, it has only exposed the government s failure to protect one of the most vulnerable communities in the country. suhakam responded by announcing a mission to the area but it remains an announcement with no known further action. A proposed ngo-police mission is yet to take place. The mistrust of the police is a problem that has not been addressed by the police who insist on the victims going to police stations rather than the police visiting the victims settlements. Such mistrust will con- 205

206 Malaysia Human Rights Report 2008 tinue as long as the police remain insensitive to rape victims in this case, marginalized rural indigenous communities. In the meantime, several more sexually abused victims who cannot go to Kuala Lumpur to make police reports due to lack of identity cards are waiting for the government to bring justice to their abused conditions, while other women and minors have little choice but to hope that they will not be victims. To date, rapists are still roaming the ncr lands of the Penan, while victims and their families remain fearful of authorities and the loggers. The Penan and other indigenous minors in the same vulnerable situation face this threat every single day. 206

207 Voices of The People: Selected Stories End Notes SACCESS is a Kuching-based NGO working on information, communication and documentation of indigenous people's struggle for Native Customary Rights (NCR) lands specifically and on justice and equality in general. Sather C. (1980) Introduction, in Benedict Sandin, Iban Adat & Augury, Penang: Universiti Sains Malaysia (pp. xixii). Cited in Ibid. (p. xii). Yogeswaran Subramaniam (2007) International Indigenous Rights: Evolution, Progress and Regress, Subang Jaya: Center for Orang Asli Concerns, (p. 8). Cited in Ibid. (pp. 7-8). See Ibid (pp ). Ibid. (p. 17). Ramy Bulan & Locklear, A. (2008). Legal Perspectives on Native Customary Land Rights in Sarawak, Kuala Lumpur: SUHAKAM. Sarawak State Attorney-General s Chambers (1999) Laws of Sarawak: Land Code, Chapter 81 (1958 Edition), Kuching: PNMB (p. 21). Ibid. (p. 27). 11 See for instance SUARAM (2008) Malaysia Human Rights Report 2007: Civil and Political Rights, Petaling Jaya: SUARAM. 207

208 Malaysia Human Rights Report 2008 The US-Malaysia Free Trade Agreement: Who Benefits? Y. Kohila 1 In March 2006, then-minister of International Trade and Industries Rafidah Aziz, announced that the Malaysian and the u.s. governments were going to sign a Free Trade Agreement. She said that the Malaysian people would benefit from this agreement and that the country s economy would expand because of it. In the subsequent intense negotiations between the two countries, it would appear that the usa has attained the upper hand despite denials by the Malaysian government. Nonetheless, civil society groups have raised concerns about this Free Trade Agreement. They include the following: Jobs: Many Malaysian workers will lose their jobs as local products will not be able to compete with cheaper American products due to the latter s economies of scale. Based on the research conducted by the European Union and Ecuador s experience, an increase in unemployment rates will also cause a fall in wages due to the exploitation of the fear of losing jobs. 2 Worker s Rights: Currently, Malaysia does not have a minimum wage act to protect low paid workers. Nor does it have laws to control the influx of migrant workers. Trade unions are not strong. Labour laws have been amended to become more and more flexible in order to enable employers to hire and fire as they like. This situation will become worse if the us-malaysia fta is signed. Sovereignty: After the fta is signed, subsequent laws enacted in Malaysia which are not in compliance will allow American companies to sue the Malaysian government if these laws are seen as reducing their profit margins. The Malaysian government has only 2 choices; either to rescind these laws or pay compensation. Agriculture: Under the fta, tariff for agricultural products from America will be substantially reduced. The Malaysian market will be flooded with cheaper American goods compared to local products, causing Malaysian farmers to lose out to American farmers. Access to cheap medicine: Under the fta, more medicines will be patented. Patents give exclusive rights to the company that created these medicines, allowing a high degree of price control. Furthermore, the time period for patents will be increased to 20 years. This means that patients will have to wait a long time for cheaper medicines to emerge as the fta does not allow generic medicines to be imported. In this situation medicinal costs will increase and access to cheap medicine will be limited. The People s Coalition against USA- Malaysia FTA The People s Coalition against us-malaysia fta was formed in 2006 to create awareness and to register the people s protest against these inter-governmental initiatives. More than 40 organizations are members of this coalition led by the Oppressed People s Network (jerit). The first protest against fta was held on 30 October 2006 in front of Sheraton Hotel, Kuala Lumpur. More than 500 people from 208

209 Voices of The People: Selected Stories various backgrounds came to voice their protests. Since then, memoranda sent to both the Malaysian government and the us Embassy have elicited no response from both sides. Instead, the Malaysian government and the US government have continued to propagate the notion that the fta is good for the country and its people. The campaign against fta was intensified when there were news that the fta would be signed by March 2007 but then the Malaysian government announced that there were 58 contentious issues to reconsider despite the haste with which then-minister of International Trade and Industries Rafidah Aziz was promoting the fta. A fax campaign was launched by the coalition to register its protest directly to the Prime Minister s office. More than 400 letters were sent by various organisations to the Prime Minister s office. During the fourth round of talks in Washington, the coalition organized a series of protests in Kuala Lumpur, Ipoh and Penang to continue the pressure on the Malaysian government to stop the talks. This subsequently forced the Prime Minister to appear on tv to try to convince the Malaysian public. Nevertheless, the protests continued. The first victory for the coalition came when the fast track period expired and the Malaysian government had not signed the us-malaysia fta on March Despite this campaign success, the pressure on the government continued. One week before the 50th Merdeka anniversary in August 2007, a rally was organized near Da- Malaysians demanding that Free Trade Agreement talks between the Malaysian and US governments be stopped. They carry posters and banners urging the Malaysian government to defend our country s independence. (Photograph courtesy of JERIT) 209

210 Malaysia Human Rights Report 2008 Malaysians demanding that Free Trade Agreement talks between the Malaysian and US governments be stopped. They carry posters and banners urging the Malaysian government to defend our country s independence. (Photograph courtesy of JERIT) taran Merdeka to demand that the Malaysian government did not pawn the country s independence to foreigners through economic neo-colonialism. After the sixth round of talks held in Kuala Lumpur, there has not been much progress on the US-Malaysia fta negotiations. We can only claim final victory for the coalition when the Malaysian government halts its talks with the US on the fta. 210