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

Transcription

1

2

3

4 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. SUARAM 2011

5 Foreword 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, Expression and Information CHAPTER 4: Freedom of Assembly and Association CHAPTER 5: Freedom of Religion and Matters Pertaining to Religion CHAPTER 6: Racism, Racial Discrimination and Related Intolerance CHAPTER 7: Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons CHAPTER 8: Free and Fair Elections - Dr Wong Chin Huat CHAPTER 9: Law and The Judiciary - Andrew Khoo CHAPTER 10: Human Rights Commission of Malaysia (SUHAKAM) VOICES OF THE PEOPLE: SELECTED STORIES Yong Vui Kong s Story - Ngeow Chow Ying Letters from Death Row - Yong Vui Kong

6

7

8 Malaysia Human Rights Report 2009 An unemployed 26-year-old computer science graduate sold fruits and vegetables from a cart in his rural town of Sidi Bouzid, located 160 miles from the capital of Tunisia. On December 17 last year, the local authorities confiscated his cart and struck his face for not having a license to sell. The incensed Mohamed Bouazizi immolated himself. This unfortunate act proved historic for it set off the spark for the recent Arab Spring. When basic rights are violated, governments do fall. When it reaches a point when people are unwilling to tolerate anymore, tyrannies will collapse. The world has begun to set new thresholds in the realization of human rights. There are more and more countries in the Middle East and North Africa where the people have taken to civilian protests and revolt against autocracy. The Malaysian authorities would do well to learn the lessons of this Arab Spring by adhering to international human rights standards if it wants to avoid a similar civilian revolt. On November 8 last year, Gunasegaran, a 52 year old Hindu devotee self-immolated in protest against the authorities attempt to demolish a portion of a temple in Puchong, Selangor. Gunesegaran died several days later but the public outcry emanated from only the marginalized Indians. There is still much work to do in Malaysia to bring us to a healthy civil society as the nation is still plagued by opportunist politicians who still use race and religion in their electioneering. SUARAM is committed to the creation of a society that is equal, just and democratic. We have been defending human rights in Malaysia for more than twenty two years. Every year without fail, we publish an annual human rights report on Malaysia which sets the benchmark for human rights documentation and monitoring of Malaysia. In this report, SUARAM dissects the events of 2010 and lays out the violations and abuses by the Malaysian state and its institutions. In addition, we argue for genuine and meaningful institutional reforms that can bring our society in line with international human rights standards. The on going trial of the opposition leader Anwar Ibrahim; clampdown on all public gatherings; discriminatory resource allocations to the states run by the opposition; abuse of the public media controlled by the government while selectively prosecuting alternative media; tacit support for right wing groups such as Perkasa; the Education Ministry s move to introduce a racially biased novel, Interlok, as compulsory text for upper secondary public schools; these are symptoms of a government that does not respect human rights. This publication is an important contribution to Malaysia and all who are concerned about human rights in the rest of the world. Towards an equal, just and democratic Malaysia that respects human rights. - K. Arumugam, Chairperson 8

9

10 Malaysia Human Rights Report 2008 The publication of the SUARAM Human Rights Report 2010 involves efforts and contributions of numerous individuals and organisations. The publication of this report was made possible with financial assistance from the National Endowment for Democracy. The report was mainly compiled and coordinated by Hasbeemasputra Abu Bakar. Other contributors are: Andrew Khoo (Law and the Judiciary); Dr Wong Chin Huat (Free and Fair Elections); Ngeow Chow Ying (Yong Vui Kong s Story) and Yong Vui Kong (Letters From Death Row). The principal editor of this report was Dr. Kua Kia Soong. Various sections were reviewed by Nalini Elumalai, Yap Heng Lung, Andika Wahab, Sarah Devaraj and Temme Lee. The photos in this report are courtesy of Malaysiakini. Azlan Zamhari provided assistance in selection of the photos. Last, but not least, thanks to C. Long for all her invaluable assistance, without which the publication of this report would not be possible. 10

11

12 Malaysia Human Rights Report 2008 The Malaysian government is directly responsible for a worsened human rights situation in Three women were caned under Syariah law, for the first time in Malaysian history; arrests under the Internal Security Act doubled and the scope of arbitrary detention broadened. The spike in deaths by police shooting reached alarming levels, as some point to an unwritten shoot to kill policy, where police shoot first and claim self-defence later. Other cases expose violence and torture by police, with some raising questions of point-blank executions. While excessive police force against protesters is nothing new, 2010 saw water canons and tear gas turned on peaceful protesters, including children. As the human rights situation in Malaysia continues to deteriorate, the government talks up its record at international fora. It is shocking that Malaysia was elected to the United Nations Human Rights Council (UNHRC) on 13 May 2010, with its poor human rights record is testimony to the fact that Malaysia does not deserve a place at the UNHRC table. The government clung dearly to its powers of arbitrary detention in 2010, appealing a rare court decision that ruled detention as unlawful, and categorically stating that the ISA will not be repealed. While the government continues to talk of a review of detention without trial laws, this is merely window dressing - if it ever happens. Urgent repeal is the only acceptable action. Without absolute repeal of detention without trial laws the Malaysian rule of law will continue to be diseased and the human rights situation in Malaysian will remain dire. The culture of impunity surrounding the police and other law enforcement agencies continues to worsen. Complaints against police continue to increase and police seem to be getting more trigger-happy as time goes on. The police force is in crisis and needs strategic and ongoing leadership to ensure that law enforcement works for the public and not against it. The lack of political will to establish an Independent Police Complaints and Misconduct Commission (IPCMC) continues to retard effective and safe law enforcement in Malaysia, where international human rights standards are respected. As the Barisan-Nasional government prepares for the next general election it is taking increasingly regressive steps to suppress political and social dissent. Human rights defenders, student activists and political opponents come under specific attack. Political harassment of the media in 2010 resulted in self-censorship and the sacking of media personnel. In an attempt to control the unruly cyberspace, the government has announced plans to introduce guidelines for cyber-sedition. Police clamp-downs on peaceful protesters continue. The government continues to politicise race and religion, seen most clearly with its controversial ban on non-muslims using the work Allah. Despite a court ruling the ban unlawful, the government continues to stoke racial and religious tensions by immediately announcing it would appeal. The divisive issue therefore remains in the public s psyche. As a direct result, places of worship have been subject to violent attack and 12

13 Executive Summary religious and racial tensions are increasingly exacerbated. Government policies continue to institutionalise racism, and government officials have made public racist statements with effective immunity. Human rights abuses are increasing as a direct result of this continuing politicisation of race and religion. The government continues to allow conservative Islamic authorities to determine policies regarding unilateral conversion of children and the religious status of the deceased. The jurisdiction for such remains confused and civil courts continue to abdicate their responsibilities exclusively to Syariah courts. While a civil court made a ruling in Indira Ghandi s case and allowed her to challenge the unilateral religious conversion of her children. This remains the exception rather than the norm and it is urgent that the government clarify the law and jurisdiction in this area. The government is unwilling to challenge Islamic authorities and conservative Muslims as they fear such a move may jeopardise the Malay-Muslim vote. In the meantime, human rights violations increase. Non-Sunni Islam remains outlawed, with worshippers labelled as deviationists and arrested. Human rights abuses of refugees and migrant workers continue. Refugees are still accorded no legal status or right to work, and live in daily fear of arrest, detention, caning and deportation. Migrant workers frequently have their travel documents confiscated by employers and experience conditions so bad that they are effectively subject to forced labour and other coercive practices. As a result of their vulnerable status, both refugees and migrant workers are highly vulnerable to human trafficking. It is hoped that the government delivers on its talk of work rights for refugees. Beyond human rights activists advocating the right to work as a basic right, all parties are in agreement that refugees need to be engaged in legal employment in order to meet their basic needs. There would also be further benefits in terms of addressing some of Malaysia s labour shortage and improving Malaysia s refugee and human rights reputation with the international community. Perhaps one of the most alarming features of Malaysia s human rights landscape is the fact that the judiciary is overwhelmingly ineffective at protecting human rights and delivering justice to the people. Instead the judiciary overwhelmingly makes politically aligned rulings that prop up the government and police authorities and further violate the rights of detainees, protesters and the public more broadly. Similarly, the coroner s inquiry into the death of Teoh Beng Hock exposed that the system was handicapped in dealing with the case, and that serious reforms are required if the truth about Teoh s death is to be uncovered and justice delivered. The courts continue to demonstrate a pro-establishment bias, handing down decisions in favour of the Barisan Nasional (BN) coalition when there are contestations with the Pakatan Rakyat coalition. Courts also made decisions in 2010 that concentrated power with the Prime Minister, giving her/ him absolute power to appoint and dismiss members of the federal cabinet. Calls for electoral reform remain unheeded, leaving deep-rooted problems in four distinct areas: institutional, franchise, campaigning and polling. Malapportionment, gerrymandering, electoral roles and phantom voters, inconsistent postal voting regulations, no local elections, the politicisation of the Electoral Commission, the lack of independent electoral watchdogs and judicial review are all glaring stains on Malaysia s claim to be an electoral democracy. All of this is underscored by severe restrictions on political freedoms, rights to freedom, expression and association. 13

14 Prime Minister Najib Razak s claim to be a reformer remains an empty one. Underscoring the its non-commitment to human rights, the government has refused to give SUHAKAM the independence and powers it needs, and continues to turn deaf ears to the human rights commission s recommendations. Prime Minister Najib is responsible for the commission sitting empty for six weeks in 2010 and for the ongoing review of SUHAKAM s A tier international status. There are some victories where the human rights situation in Malaysia have improved, or show signs of hope if the next steps are taken. The introduction of Freedom of Information (FOI) bills in Opposition run states of Selangor and Penang are tangible examples of how human rights can be advanced in a codified manner. It is hoped that the outstanding concerns pertaining to these Bills can be addressed during consultation before they are enacted. SUHAKAM s more proactive approach is welcomed. It is hoped that the Commission s attendance and monitoring at protests, investigating alleged human rights violations without reports being made and launching a national inquiry into indigenous rights are the first steps of a more robust and proactive national human rights institution in the future. While these examples are positive, they cannot counteract Malaysia s deteriorating human rights environment. If improving human rights in Malaysia sits on the government s agenda at all, it is only to talk up its record to international audiences and secure seats in prestigious places. On-theground events in 2010 reveal a worsened human rights situation in most areas.

15

16 Malaysia Human Rights Report 2010 Detention without trial and without charges, for flexible and extendable term limits, at the will of the authorities, affects not only the rights to personal freedom, free trial and presumption of innocence, but also the right to security of person, which guarantees the right to liberty for all persons if they have not committed any crime. UN Working Group on Arbitrary Detention, June 2010, following their Mission to Malaysia As of 2010, Malaysian society has been subject to the Internal Security Act 1960 (ISA) for fifty years. The clamour for abolition continues to grow. Building upon the momentum generated by the thirty-thousand strong anti-isa rally in 2009, candlelight vigils were held across the country on 1 August 2010 to protest the 50th anniversary of the act. Other demonstrations were organised both in Malaysia and overseas by the Abolish ISA Movement (a coalition of eighty-three organisations opposing the ISA and directly monitoring ISA detentions). While the public demonstrated their repugnance of the ISA, the government continued to infringe on Malaysians freedom of expression and arrested forty people peaceful demonstrators at the candlelight vigils. Multiple organisations, both in Malaysia and overseas, engaged in anti-isa advocacy and urged the government to repeal the ISA and other detention without trial laws, including the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EO) and the Dangerous Drugs (Special Preventive Measures) Act 1933 (DDA). These groups included the Bar Council Malaysia, the International Bar Association s Human Rights Institute, the Islamic Human Rights Commission and, not least, The UN Working Group on Arbitrary Detention. Regardless, the government continues to justify the need for detention without trial laws and has stated categorically that they will not abolish detention without trial under the ISA. In an attempt to appease the public in Malaysia and its international critics, the government has promised some reforms, but even this appears to be lip service. In 2009, reforms to the ISA were promised but in 2010 the government said any amendments to the ISA must be made with consideration of all other detention-without-trial laws. Amendments continue to be promised, but none have been tabled in parliament and key stakeholders have not been consulted. Despite its public claim of undergoing review, the government has continued to arrest people under detention without trial laws. The last decade has seen an increase in arrests, subjecting thousands of Malaysians to detention without the right to put up a legal 16

17 Detention without trial and restriction of movement defence and be assumed innocent until proven guilty. Arrests under the EO have increased by approximately 400% over the last 10 years, with arrests of minors increasing at an even more alarming rate. Arrests in 2010 suggest that the growth in arrest rates continues. The most regressive action taken by the government in regard to detention without trial laws was to widen the scope of the ISA to cover alleged human trafficking cases. As with many other alleged crimes, there is no justification for this, particularly given there are sufficient laws in the penal code to handle them. Detainees continue to complain of torture and other forms of inhuman, cruel and degrading treatment. The continued reluctance of the Malaysian government to ratify the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) 1 indicates the government s disregard for international human rights standards and allows for a culture of torture and impunity. What is the Internal Security Act 1960? The Internal Security Act 1960 (ISA) is a relic of British colonialism. In 1948 the British enacted detention without trial in a State of Emergency in their colony of Malaya, in response to the perceived threat of communism and the Communist Party of Malaya in particular. Detention-without-trial was permanently written into Malaysian law after independence with the ISA in 1960, the same year the State of Emergency was lifted. Malaysian authorities claimed the powers given to government under the Act were necessary in order to counter the communist threat in the country and later the region in the 1970s. More recently, authorities have claimed that the ISA is necessary in order maintain inter-ethnic harmony and economic stability. After 11 September 2001 terrorism has become a main justification for the ISA, along with national security. 2 The Home Ministry determines who and which actions become subject to the ISA according to Section 8 of the Act, which says that detention is necessary to prevent actions deemed to be prejudicial to the security of Malaysia or threatening to the maintenance of essential services or economic life. At its inception, the ISA was not intended to be used to stifle legitimate political opposition, 3 however it has been used extensively against political opponents of the government, students, and labour activists and other persons who have peacefully and lawfully expressed their political and religious beliefs. The ISA allows for indefinite detention without trial or criminal charges on the grounds of national security. Detainees are subject to an initial 60-day detention period for the purpose of investigation. At the end of the 60-day period, the Home Ministry may 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 detention periods indefinitely, either on the same grounds as the original detention order or on different grounds. Detainees may be released with or without restrictive orders at any time, according to the Home Ministry s discretion. Conditions may include restrictions on place of residence; activities and movement, including employment, the hours that can be spent outside the home, and prohibitions against holding public office or taking part in political activities. Courts can only review habeas corpus applications on the basis of procedural technicalities of the detention and not the substantive grounds of the detention itself. 17

18 Malaysia Human Rights Report 2010 What is the Emergency Ordinance (Public Order and Prevention of Crime) 1969? Introduced after the May 1969 riots, the Emergency Ordinance (Public Order and Prevention of Crime) 1969 (EO) was introduced to secure public order and prevent violence and other crimes. 4 The EO grants police the power to detain persons for up to 60 days without charge 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. As the majority of individuals detained without trial under the EO tend not to be political dissidents or well-known personalities, the public is less familiar with the EO than the ISA. As a result, thousands of individuals have been detained without trial under the EO. 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. The Bar Council Malaysia has identified that the EO is often used by police to detain people when they do not have enough evidence to hold them under the normal legal processes. 5 To detain someone under the EO a police officer of, or above the rank of, deputy superintendent reports the circumstances of the arrest to the Inspector-General of Police or her/his designated officer. There is no need to obtain a remand order from a magistrate. There is an initial 60-day detention period, after which the Home Ministry can make an order of detention without trial for a period of two years. If the Home Ministry orders the release of a detainee this may come with restricted orders, such as requiring them to report to and be supervised by the police, to reside within the limits of a particular area, to remain home during specific hours. What is the Dangerous Drugs (Special Preventive Measures) Act 1985? The Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA) gives powers to the police to arrest and detain any suspect who has been or is associated with any activity relating to or involving the trafficking in dangerous drugs. Similar to the ISA and EO, the initial period of detention is up to 60 days after which the Home Minister has the powers to order of detention without trial for a period of two years, if it is considered to be in the interest of public order The number of extensions to detention at the end of the two year period is unlimited. As with EO detainees, those detained under the DDA are often not well-known personalities and so the legislation is not as well known to the public as the ISA, resulting in abuses of the legislation. Section 6(3) of the DDA states that the Home Minister may also order the restriction of movement of individuals suspected to be associated with dangerous drugs-related activities. What is the Restrictive Residence Act 1933? Most detainees released from the ISA, the EO or the DDA are only given conditional releases which includes strict restrictions on their movements under the Restrictive Residence Act 1933 (RRA). The RRA allows the police to detain a person without trial and restrict them to a particular area. The Home Minister issues restriction orders without any judicial oversight. Detainees have no ability to challenge the order and if they contravene it they can be subject to penalty of imprisonment, not exceeding 3 years, or have their restrictive orders extended. 18

19 Detention without trial and restriction of movement Shamsuddin Sulaiman, was released on 2 September 2010 after being detained for 8 years 6 with strict restrictions on his movements. Required to report to police every Monday and bound to his residence from 9pm to 6am, Shamsuddin is also barred from speaking at public events and taking part in political party and trade union activities. Four other released detainees were given similar restrictions in The RRA contravenes the spirit of the Federal Constitution as well as specific clauses. Article 5 of the Constitution guarantees liberty to all people and Article 9 provides against the banishment or exclusion of citizens. Human Rights Violations under Detention-Without-Trial Laws Arbitrary detention is strictly prohibited under UN Human Rights treaties and relevant mechanisms with article 55 of the Rome Statute defining arbitrary detention as a major crime. Detention-without-trial laws violate a number of fundamental human rights as enshrined in the Universal Declaration of Human Rights 1948 (UDHR) and other international conventions, and are against the spirit of the Federal Constitution. To quote the UN Working Group on Arbitrary Detention following their Mission to Malaysia in June 2010, detention without trial and without charges, for flexible and extendable term limits, at the will of the authorities, affects not only the rights to personal freedom, free trial and presumption of innocence, but also the right to security of person, which guarantees the right to liberty for all persons if they have not committed any crime. 7 During the initial 60 days detainees can be refused contact with families and legal representatives. Denying detainees access to lawyers is contrary to Article 5(3) of the Federal Constitution. By failing to ensure rights to legal representation and family visits, the judiciary is failing in their duty to act as a check and balance in cases of arrests under detention-without-trial Acts. Article 5 of the UDHR states that, No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. However, detainees are transported to and from holding centres blindfolded and reports suggest that torture and other cruel, inhumane and degrading treatment is common during the initial detention period. 8 This was confirmed by the UN Working Group on Arbitrary Detention who found that virtually all detainees interviewed, especially those detained under the preventive laws, indicated that they had been subjected to torture or ill-treatment in order to obtain confessions or evidence in police detention. 9 The Working Group found that prisoners are most unsafe and vulnerable to torture and mistreatment in police detention, 10 exacerbated by the fact that detainees are frequently held in incommunicado detention without contact with other persons including family and legal representatives. 11 It is important to note that the Malaysian government continues to refuse to ratify the UN s Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. While under detention without trial detainees may seek review by the Advisory Board, this does not meet minimal fair trial guarantees. Defence lawyers are not able to properly represent their clients as they do not have access to all documentation and evidence and cannot call witnesses. Most significantly, most recommendations made by the Advisory Board are not binding. 19

20 Malaysia Human Rights Report 2010 The case of K. Selvachandran K. Selvachandran was violently arrested under unspecified charges under the DDA, on 25 October 2010, just a few hours after a court delivered an open verdict at an inquest at which he had testified against police in a death in custody case. (see Chapter 2 more for information about the arrest and abuse of police powers.) On 14 December 2010 Home Minister Hishammuddin Hussein issued a two year detention order under the DDA and Selvachandran was transferred to Batu Gajah Detention camp, Perak. Selvachandran was not allowed to see his family before his transfer. The High Court ruled it did not have the jurisdiction to hear Selvachandran s habeas corpus hearing for the first 60 days in detention as he had been transferred to Batu Gajah Detention Camp by the time it reached the High Court on 20 December The moving of detainees to different camps and the delay of habeas corpus hearings are tactics used by police to sabotage the hearings, and demonstrates systematic breaches of the rights of detainees by the police and Home Ministry. Selvachandran s case, where a police perpetrator of violence in a death in custody case remains free while the witness is subject to violent arrest and arbitrary detention under the DDA, highlights the abuse of detention without trial laws. UN Working Group on Arbitrary Detention The United Nations Working Group on Arbitrary Detention visited Malaysia in June 2010 and reported that it was seriously concerned about four preventative laws. To quote the Working Group, These Preventive Laws allow State institutions, particularly the Police and the Attorney General s Office, to elude the normal penal procedure for common crimes and offences. They also give the Minister of Home Affairs excessive powers to keep people in detention indefinitely, without the need to sustain evidence in court or to prove criminal responsibility. 13 Upon completion of their mission, the Working Group recommended that the ISA, EO, DDA and the RRA be repealed or, if amended, ensure they are in conformity with article 10 of the Universal Declaration of Human Rights. 14 However, it went further in its full report to the UN Human Rights Council on 8 February 2011, recommend[ing] that the Government abrogate all these laws as soon as possible. 15 The Working Group highlighted the thousands of people detained under the EO and the DDA, and the fact that preventative laws were being misused and people were being detained under them even when the alleged crimes fall under the purview of Malaysia s regular penal code. The Working Group also expressed concern about detention under the regular penal procedure. While already concerned that in some cases police can arrest people without a warrant, the Working Group was further concerned that the limit on holding people for twenty-four hours is practically always increased by magistrates when asked. The full report of the working group was released on 8 February 2011 and can be found at docs/16session/a.hrc add.2_en.pdf Recommendations by SUHAKAM and the Royal Commission on the Police 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 20

21 Detention without trial and restriction of movement (SUHAKAM) and the Royal Commission to Enhance the Management and Operations of the Police Force (Royal Commission on the Police) in recent years. In 2003, SUHAKAM released the Review of the Internal Security Act 1960, calling for review of the ISA, which was identified to have adversely affected the status of human rights in Malaysia. 16 SUHAKAM proposed that the government consolidate all laws pertaining to national security, including the ISA, into one statute that takes a tough stand [on] threats to national security and yet conforms [with] international human rights principles. 17 SUHAKAM recommended that the new law clearly identify specific offences related to threats to national security. Recognising that this may take some time, SUHAKAM recommended the government take various interim measures, including: 1. Clearly defining the detention criteria under the ISA; 2. Reducing the detention period from two years to three months; 3. Either charging or releasing a detainee after the three-month period; 4. Allowing judicial review of detention orders; and 5. Requiring detaining authorities to submian annual ISA report to Parliament and making the detention order valid for one year only unless reviewed by Parliament annually. 18 Echoing the recommendations by SUHAKAM, the Royal Commission on the Police (set up in 2004) in its report submitted to the King in 2005, also highlighted its concerns about preventive legislations that provide for detention without trial. The Royal Commission on the Police, stressing the need to respect the principle of right to trial, recommended: 1. Amendments to Section 73 of the ISA 1960 to require a detained person to be produced before a magistrate within 24 hours, be allowed access to family and lawyers, and have the detention period limited to a maximum of 30 days; 2. Amendments to Section 3 of the DDA 1985 requiring a detained person to be produced before a magistrate within 24 hours, be allowed access to family and lawyers, and have the detention period limited to a maximum of 30 days; 3. Repeal of the RRA 1933 that allows for the preventive detention of suspected criminals in a specific residential area that may extend up to the lifetime of a person; 4. Repeal of the EO 1969; and 5. Partial repeal of the Prevention of Crime Act In its 2010 annual report, as in previous reports, SUHAKAM continues to highlight detention without trial as a matter of great concern, and advocates for preventative laws to be repealed, or fundamentally amended so that the right to a fair trial is ensured and people are considered innocent until proven guilty in a court of law. 19 Government s Proposed Amendments to the ISA The government continues to feel the pressure from both within and outside the country for the review and repeal of the ISA and other preventative laws, but is playing a game, repeatedly delaying tabling proposed reviews and opening them to public debate and scrutiny. 21

22 Malaysia Human Rights Report 2010 Prime Minister Najib Razak promised to review the ISA when he took office in 2009 and Home Minister Hishammuddin Hussein announced in October of that year that while the government would not repeal the ISA, they had agreed to consider reforms in five contentious areas: 1. the length of detention periods, 2. rights and treatment given to detainees and their families, 3. the power of the Home Minister in issuing detention orders, 4. the use of ISA for political reasons, and 5. detention without trial under the ISA. 20 Assurances were given that the ISA review was in its final stages and that amendments would be tabled for a first reading in Parliament in the session ending 15 December, 21 but the parliamentary session came and went. Before the year ended the public was told the amendments would be tabled in the next sitting of Parliament, 22 and in February 2010 Hishammuddin said the draft amendments were being vetted by legal experts. 23 But then, on 20 March 2010, it was clear that any amendments would be a long time in coming. Hishammuddin declared that although proposed ISA amendments were ready to be tabled they would not be tabled during the March parliamentary sitting as the Cabinet had decided that the ISA could not be amended without also reviewing six other laws affecting security and permitting preventive detention. 24 These laws are the EO, DDA, RRA, Prevention of Crime Act 1959, Section 27 of the Police Act 1967 (relating to staging of assemblies without a permit) and Banishment Act 1959 (Revised 1972). No timetable for the amendments was given. On 8 June, while the UN Working Group on Arbitrary Detention was in Malaysia, the government stated it planned to table amendments to six preventive laws during that session of parliament. Deputy Home Minister Wira Abu Seman Yusop said amendments to the ISA, EO and Dangerous Drugs Act 1985 were in the final stages of approval in the Attorney-General s Chambers. The RRA, Banishment Act 1959 and the Police Act 1967 were said to still be in the draft stages. 25 At the end of November, de facto Law Minister Nazri Aziz said that the government wanted to reduce the initial detention period from sixty days to thirty days. 26 This is the only amendment that the government has discussed publicly and does not bode well for the review as it demonstrates beyond doubt that there is no fundamental rethink of preventative laws and the right to a fair trial. It does not matter whether the detention period is sixty days or thirty days, it still violates human rights. By the end of 2010 no amendments had been scheduled in Parliament or released to the public. Throughout the government s period of review, there has been a severe lack of transparency and no consultation with key stakeholders such as former detainees and their families, and groups monitoring detentions under the preventative laws. Malaysian Government s Position on Detention without Trial The government remains committed to detention without trial under the ISA and continues to affirm its support for the ISA. In 2010 this affirmation was loudest when de facto Law Minister Nazri Aziz s responded to the International Bar Association s Human Rights Institute s criticism of the ISA and call for its abolition. I can say this to the International Bar Council: No way. We are not going to abolish the ISA... 22

23 Detention without trial and restriction of movement The ISA has been a useful instrument and it shall remain. To me, what is important is peace and stability of the country. We must prevent any loss of lives due to terrorism. These are more important issues than the freedom of a person we consider a threat to the country. It is okay for the International Bar Association to have their own opinion. They can make armchair criticisms all they want but they don t run this country. These people are not important and they don t live here. I don t care about them. I only care about Malaysians. 27 The government continues to cite the maintenance of not just national, but global, peace and security of the as justification for its use of laws such as the ISA. 28 It continues to fail to understand that detention should only be ordered after a person is found guilty in a court of law, and that detaining people otherwise violates, among other things, their right to defend themselves. The government s commitment to reviewing detention without trial laws can only be viewed with scepticism, particularly given the 2010 expansion of the ISA to cover cases in human trafficking and the government s lodging of appeals against detainees who the court found to be detained unlawfully. Government Appeals against Findings of Unlawful Detention under ISA Even when courts deliver rulings that persons have been detained unlawfully, the government challenges these findings. Perversely, the government uses the court The High Court awarded Abdul Malek Hussin MYR2.5 million in damages for unlawful detention and assault in custody. The judgement was eventually overturned by the Appellate Court. (Photograph courtesy of Malaysiakini) 23

24 Malaysia Human Rights Report 2010 to legitimise detention which violate the accused s right to equal treatment before the law and has been deemed unlawful by the High Court. In 2010 the government appealed two decisions by the High Court that ISA detainees had been held unlawfully. The former detainees were Abdul Malek and Raja Petra Raj Kamarudin. The appeal lodged against Raja Petra could not be heard in the Federal Court as notice of the appeal had not been served to him. In Abdul Malek s case, decisions by both the Court of Appeal and Federal Court signal the judiciary s absolute failure in imparting justice in defence of human rights, and reaffirm the acceptance of torture by both the government and judiciary. The large costs and damages Abdul Malek was ordered to pay can only be intended as a signal to others released from ISA detention that they should not seek rulings of unlawful detention. In 1998 Abdul Malek Hussin was detained for 57 days under the ISA after addressing a demonstration. In March 1999 Abdul Malek filed a civil suit against the government over his arrest and torture, naming special branch officer Borhan Daud, the then Inspector-General of Police Abdul Rahim Noor, and the Malaysian government as respondents. In October 2007 the High Court awarded Abdul Malek 2.5 million Malaysian Ringgit (MYR) in damages for unlawful detention and assault in custody. High Court Judge Mohd Hishamudin Mohd Yunus told the court, The arrest and detention were made in bad faith under Article 5 of the Federal Constitution... M Manoharan (left) and P Uthayakumar. (Photograph courtesy of Malaysiakini) 24

25 Detention without trial and restriction of movement The nature of interrogation was clearly for a political purpose and had nothing to do with genuine concern for national security. The court also stated that it was unconstitutional for Abdul Malek to have been denied access to his lawyer. 29 The government appealed this landmark decision and on 25 March 2010 the Court of Appeal overturned the High Court s landmark ruling and award of damages. The Court ruled that Abdul Malek s detention was lawful and rejected his allegations of torture whilst in custody. Abdul Malek was ordered to pay MYR 50, 000 in costs. This decision was upheld by the Federal Court on 12 August 2010 and Abdul Malek to further ordered to pay MYR 20, 000 to the respondents. Instead of finding justice in the Malaysian court system, Abdul Malek has been ordered to pay MYR 70, 000. Despite the government pursuing these cases in 2010, M. Manoharan and P. Uthayakumar, both lawyers filed suits at the High Court in December against their arrest and detention under the ISA, as well as subsequent restriction orders. They are seeking MYR 100 million each in general damages, special damages, costs and other relief deemed fit by the court. Home Minister Hishammuddin Hussein, former inspector-general of police Tan Sri Musa Hassan, Kamunting Detention Centre commandant and the government are name as defendants. 30 international terrorism links on 21 January Over the year there were twenty-five known arrests made under the ISA, up from seven in 2009 and ten in The majority of ISA arrests, fourteen, were for alleged international terrorism links. Two arrests were made for alleged militancy/ involvement in a separatist movement, and nine for alleged human trafficking. All of the alleged human trafficking arrests occurred on 13 October. If the ISA continues to be used for such cases, numbers of arrests in this category may match or overtake arrests for terrorism allegations. (see Table 1.2) Four renewed detention orders were given, up from one the year before, all for allegations of forged documents. (see Table 1.1) Only fifteen ISA detainees were known to be released in 2010, down from forty in The majority of released ISA detainees in 2010 were foreign nationals who were immediately deported upon release. Of the four Malaysian citizens released, two were put under restrictive orders. One of these was Shamsuddin bin Sulaiman, an alleged Jemaah Islamiah member. Detained since 2002 and released on 2 September 2010, Shamsuddin was one of the longest serving detainees in recent years. (see Table 1.3) At the end of 2010, twenty-four individuals were held under the ISA in the Kamunting detention camp. (see Table 1.4) Cases and Statistics of Detentions without Trial under the ISA The government rarely releases information about arrests made under detention without trial laws. There is no transparency in the system, leaving the laws wide open to abuse. Through media monitoring and direct information, SUARAM has identified that ISA arrests picked up as soon as the New Year started, with ten people arrested for alleged 25

26 Malaysia Human Rights Report 2010 Table 1.1 Known ISA Statistics 2008, 2009, 2010 Category Arrests made Renewed detention orders given Releases made Number of detainees at KDC on 31 December (Source: SUARAM monitoring) Table 1.2 ISA Arrests in 2010 No Name Allegation Arrest Status 1 Azzahari bin Murad (Malaysian) 2 Aiman Al Dakkak (Syrian) USM PHD Student 3 Mohamed Hozifa (Syrian) Son of Aiman Al Dakkak International Terrorist Link International Terrorist Link International Terrorist Link 4 Kutiba Al-Issa (Syrian) Student International Terrorist Link 5 Khalid Salem (Yamani) Student International Terrorist Link 6 Luqman Abdul Salam (Nigerian) Student International Terrorist Link 7 Hassan Barudi (Syrian) International Terrorist Link 8 Hussam Khalid (Jordanian) International Terrorist Link 9 Abdul Alhi Bolajoko Uthman (Nigerian) International Terrorist Link 10 Unknown International Terrorist Link 11 Mohamad Fadzullah (Malaysian) International Terrorist Link 12 Mustawan Ahbab (Indonesian) International Terrorist Link 13 Samsul Hamidi (Malaysian) International Terrorist Link 21 January 2010 Under Restricted Order, 11 March January 2010 Deported, March January 2010 Deported, March January 2010 Deported, March January 2010 Deported, March January 2010 Deported, March January 2010 Deported, March January 2010 Deported, March January 2010 Deported, March January 2010 Unknown 15 July 2010 Kamunting, 2 years detention, 2 September August 2010 Kamunting, 60 days detention, 11 August August 2010 Kamunting, 60 days detention, 11 August 2010 (Released) 26

27 Detention without trial and restriction of movement 14 Seikh Abdullah Sheikh Junaidi (Malaysian) International Terrorist Link 15 Sulaiman Tarmizi Separatist Movement 16 Imigration Officer (Unknown) Human Trafficking 17 Imigration Officer (Unknown) Human Trafficking 18 Imigration Officer (Unknown) Human Trafficking 19 Imigration Officer (Unknown) Human Trafficking 20 Imigration Officer (Unknown) Human Trafficking 21 Imigration Officer (Unknown) Human Trafficking 22 Imigration Officer (Unknown) Human Trafficking 23 Foreigener (Unknown) Human Trafficking 24 Foreigener (Unknown) Human Trafficking 25 Fadli Sadama (Indonesian) Militant 13 October 2010 Table 1.3 ISA releases in August 2010 Released during 60 days period. Date of release unavailable. 29 September Not available October Not available October Not available October Not available October Not available October Not available October Not available October Not available October Not available October Not available 2010 Deported, 4 December 2010 No Name Allegation Date Arrested 1 Azzahari bin Murad (Malaysian) International Terrorist Link 2 Aiman Al Dakkak (Syrian) International Terrorist Link 21 January January 2010 Date Released Restricted Order since 11 March Deported in March 2010 Detention Period 1 ½ Month 1 ½ Month 3 Mohamed Hozifa (Syrian) International Terrorist Link 21 January 2010 Deported in March ½ Month 4 Kutiba Al-Issa (Syrian) International Terrorist Link 21 January 2010 Deported in March ½ Month 27

28 Malaysia Human Rights Report Khalid Salem (Yamani) International Terrorist Link 21 January 2010 Deported 6 March ½ Month 6 Luqman Abdul Salam (Nigerian) International Terrorist Link 21 January 2010 Deported 13 March ½ Month 7 Hassan Barudi (Syrian) International Terrorist Link 21 January 2010 Deported in March ½ Month 8 Hussam Khalid (Jordanian) International Terrorist Link 21 January 2010 Deported 15 March ½ Month 9 Abdul Alhi Bolajoko Uthman (Nigerian) International Terrorist Link 21 January 2010 Deported 14 March ½ Month 10 Unknown International Terrorist Link 21 January 2010 Deported 1 ½ Month 11 Shamsuddin bin Sulaiman JI 17 April Mas Selamat Kastari (Singapore) 13 Seikh Abdullah Sheikh Junaidi (Malaysian) JI International Terrorist Link 14 Samsul Hamidi International Terrorist Link 15 Fadli Sadama (Indonesia) Separatist Movement 1 April August August October September 2010 Deported 24 September 2010 Released during 60 days period. (August ) Released during 60 days period. (September ) Deported 4 December Years 1 ½ Years - - Table 1.4 ISA detainees in Kamunting (KDC), as of end 2010 No. Name Allegation Date of Arrest 1 Shadul Islam (Bangladesh) 2 Mahamad Nakhrakhel (Thailand) 3 Muhammad Zahid Haji Zahir Shah (Pakistan) Forgers of Documents Forgers of Documents Forgers of Documents 22 May May May 2008 In KDC since 18 July July July st Extension 2nd Extension Total Detention 17 July July year 17 July July year 17 July July Months 28

29 Detention without trial and restriction of movement 4 Abdul Matin (Malaysia) JI 5 Samsuddin JI Bin Hussein (Malaysia) 6 Abd Latif Bin JI Omar (Malaysia) 7 Sulaiman Bin JI Bohari (Singapore) 8 Anthony Human Trafficking 9 Umar Fareths (Sri Lanka) 10 Hemachandran (Sri Lanka) 11 Tanabal (Sri Lanka) 12 Ravindran (Malaysia) 13 Muniandy (Malaysia) 14 Mohd Fadzullah 15 Mustawan Ahbab (Indonesian) 16 Imigration Officer (Unknown) 17 Imigration Officer (Unknown) 18 Imigration Officer (Unknown) 19 Imigration Officer (Unknown) 20 Imigration Officer (Unknown) Human Trafficking Human Trafficking Human Trafficking Human Trafficking Human Trafficking International Terrorist Link International Terrorist Link Human Trafficking Human Trafficking Human Trafficking Human Trafficking Human Trafficking 1 April June June June May August August August July July Months 22 July Months 22 July Months 19 August Months NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA 15 July August October October October October October September October 2010 Not available Not available Not available Not available Not available 1 September October

30 Malaysia Human Rights Report 2010 Categories of ISA detainees The only tangible action the government took in 2010 regarding detention-without-- trial laws was regressive action and that was to expand the scope of the ISA even further and allow for suspected human traffickers to be detained without trial, instead of being charged under the Anti-Trafficking in Persons Act (See Table 1.1) This follows the trend that the government has set in recent years, extending the use of the ISA beyond its original purpose of combating communist insurgency to cover offences that are already covered under other existing legislations. These include: Counterfeiting money, covered under Section 489B Penal Code; Falsifying passports, covered under Section 56 Immigration Act; Inciting religious hatred, covered under Section 298A Penal Code; Inciting racial hatred, covered under Section 499 Penal Code; Spreading false news, covered under Section 499 Penal Code; Terrorist offences, covered under Chapter VIA of Penal Code; and now Human traffickers, covered under the Anti-Trafficking in Persons Act This continued extension of the ISA casts serious doubt on the government s commitment to genuine reforms to detention without trial laws and was opposed by civil society and SUHAKAM. As at 31 December 2010, three main groups of ISA detainees were detained in the Kamunting Detention Camp (KDC), namely individuals allegedly linked to terrorist activities, including Jemaah Islamiah (JI), suspects of document fraud and suspects of human trafficking. At least half of those known to be detained under the ISA in KDC at the end of the year were foreign nationals. i. Human Trafficking In October 2010 the Inspector-General of Police Tan Sri Ismail Omar stated that seven Immigration department officials and two non-malaysian national had been detained under the ISA for alleged involvement in human trafficking. 31 Holding alleged human traffickers under the ISA was the most regressive action the government took in 2010 regarding detention without trial laws. SUHAKAM commissioner Mohammed Shanni Abdullah made an unequivocal statement that human trafficking should not be dealt with under the ISA. 32 At the end of 2010, 15 persons accused of involvement in human trafficking were known to be detained at KDC under the ISA, making this the largest category. ii. Terrorism 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 groups in the Philippines, Pakistan, Afghanistan and Indonesia. The arrested persons are mostly labelled as members of JI, an alleged Islamic terrorist group based in Indonesia. Prior to 2006, a significant number of persons arrested under the ISA were accused of being members of the Kumpulan Militan/ Mujahiddin Malaysia (KMM, Malaysian Militant Group). Many detainees were initially arrested as KMM suspects, but their letters of arrest later alleged they were JI members instead, raising doubts about the reliability of evidence possessed by the authorities. While all detainees accused of being members of the KMM were released by 2006, alleged JI members were still the majority of ISA detainees between 2006 and In 2010 and the extended scope of the ISA to 30

31 Detention without trial and restriction of movement include human trafficking suspects, this is no longer the case. The number of detainees who were alleged JI members at the end of 2010 was four, with another two detainees accused of having international terrorist links. iii. Forgers of Documents A large number of ISA detainees in recent years are alleged to have forged documents. Malaysia has ample laws, including Section 56 of the Immigration Act, to deal with such crimes. The fact that alleged criminals are detained without trial exposes abuse of the legal system as convictions could be achieved if there was sufficient evidence. As of 31 December 2010, three of the twenty-four ISA detainees in the Kamunting Detention Camp have been accused of forging documents. iv. Foreign Nationals At least ten of the twenty-four detainees in KDC at the end of 2010 were foreign nationals, up from three at the same time the previous year. Five new foreign-national detainees were accused of involvement in human trafficking, and two of having terrorist links. Foreign nationals are particularly vulnerable when detained under the ISA as they often do not have communities and families who can observe their fate and try to provide assistance. ISA detainees who are foreign nationals often face deportation to their home countries upon release, even if their families reside in Malaysia. In 2010, all 10 foreign nationals who were released were deported. The same was true in Deportations mean that former detainees cannot challenge their arbitrary detention. Further, once back in their country of citizenship, former detainees may find themselves under renewed suspicion, despite never having been found guilty of any charges. One of the detainees deported in 2010, Khaleed Salem, was immediately taken into police custody in Yemen upon his arrival, furthering his violation of human rights that started with his detention without trial in Malaysia. 33 Cases and Statistics of Detentions without Trial under the EO In a parliamentary written reply in January 2010, the Home Ministry disclosed that 3,701 people had been arrested under the EO in the period between 2000 and In September 2009 there were 759 persons detained under the EO in Simpang Renggam Detention Centre. 35 In February 2010 this had increased to 819 detainees, according to a report published in the New Straits Times. 36 This increase in sixty detainees between September 2009 and February 2010 suggests that the upward trend in EO arrests has continued in

32 Malaysia Human Rights Report 2010 Chart 1: EO Arrests, September 2009 (Source: Home Ministry, Malaysia 37 ) Most EO detainees are held in Simpang Renggam Rehabilitation Centre in Johor, Machap Rehabilitation Centre in Kelantan and Batu Gajah detention camp in Perak. At the end of 2010 two high profile prisoners remained in detention without trial. Bunya Ak Sengoh and Marai Ak Sengoh, Iban land activists, were being held in the Simpang Renggam Detention Centre in Johor for two-year detentions under EO. While they are supposedly being held for involvement in robberies, the real reason is believed to be their resistance of encroachment into native customary rights land by a plantation company. 38 Over the years, a significant number of EO detainees have won their freedom through habeas corpus applications, only to be re-arrested immediately after the court had released them. 39 It is impossible to ascertain the exact number of EO detainees re-arrested upon release as no updated official statistics have been made publicly available by the government. Arrests of Minors under the EO The detention of minors under the EO remains a matter of grave concern, especially given the fact that the conditions in Simpang Renggam Rehabilitation Centre (the main detention centre for EO detainees) are known to be amongst the worst in the country. Of the 3, 701 persons arrested under the EO between 2000 and September 2009, 133 were minors. 40 The number of minors arrested under the EO in 2010 remains unknown, however there was a sharp increase in the number of minors arrested and held without trial in 2008 and 2009 and there are concerns that this trend continued in Indefinite detention of minors without trial contravenes the Convention of the Rights of the Child (CRC), to which Malaysia is a signatory. According to Article 37(b) of the CRC, no child shall be deprived of his rights unlawfully or arbitrarily. The document also states that the arrest, detention or imprisonment of a child shall be in 32

33 Detention without trial and restriction of movement Chart 2: EO Arrests of Minors, 2000-September 2009 (Source: Home Ministry, Malaysia 41 ) conformity with the law and shall only be used as a measure of last resort and for the shortest appropriate period of time. Statistics of Detentions without Trial under the DDA The government arrests more people under the DDA than the ISA and EO combined. Between 2002 and March 2008, the DDA had been used against a total of 11,142 people. 42 Numbers of annual arrests since then have not been disclosed, but it is known that as of February 2010, there were 412 detainees detained under the DDA, up from 363 in September Given that approximately half of DDA arrests between 2002 and March 2008 resulted in detention orders, 44 the increase in forty-nine detainees between September 2009 and February 2010 may well reflect only half the picture in terms of ongoing arrests. Most DDA detainees are held at Simpang Renggam Rehabilitation Centre in Johor, with others held at Muar Rehabilitation Centre in Johor and Batu Gajah Rehabilitation Centre in Perak. Other Forms of Restriction to Freedom of Movement (i) Sarawak immigration controls In recent years, the Sarawak state s autonomy over immigration controls, by which it can control who enters the state, 45 has been abused by the state government in order to stifle dissent. Despite guarantees in Article 9(1) of the Federal Constitution that no citizen may be banished or excluded from the country, there are many instances of individuals, mainly human rights defenders from Peninsular Malaysia, being barred from entering Sarawak. 46 In 2010 abuse of Sarawak s immigration control was dramatically highlighted when SUHAKAM Commissioner Lasimbang was given a conditional entry permit. Jannie 33

34 Malaysia Human Rights Report 2010 of the Armed Forces Act, which states that any person in custody should as soon as practicable and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate, Tharmendran was still being detained without trial at the end of Arrested for alleged desertion, Tharmendran had previously accused military intelligence officers of subjecting him to torture while he was held for three weeks during an internal probe into the theft of two jet-fighter engines (a major embarrassment to the government). Tharmendran sparked debate in July when he voluntarily chose to be held in remand at Sungai Buloh prison instead of being released on bail, due to concerns for his safety from military intelligence. 48 SUHAKAM Commissioner Jannie Lasimbang was given a conditional entry permit into Sarawak, after previously being banned from entering the state in 1996.(Photograph courtesy of Malaysiakini) was previously been banned from entering Sarawak in 1996 without reason, but Jannie believes it was connected to her work with the Penan fact-finding mission in The conditional entry permit explicitly states that Jannie must not be involved directly or indirectly in activities that are detrimental to the interests of the state or associate with organisations that actively instigate or encourage Sarawak natives to carry out activities that are detrimental to the interests of the state. 47 It is unclear what activities and organisations are being referred to, but it is clear that could significantly impact on the Commissioner s ability to fulfill her mandate. (ii) Royal Malaysian Air Force On 25 November, N. Tharmendran was arrested by the provost marshals in the Royal Malaysian Airforce. Despite Section 174 (4) N Tharmendran during a press conference in Parliament 15 July Tharmendran had accused military intelligence officers of subjecting him to torture while he was held for three weeks during an internal probe into the theft of two jet-fighter engines. (Photograph courtesy of Malaysiakini) Conclusion and Recommendations The government engaged in more regressive behaviour regarding detention without trial laws in 2010, than has been seen in many years. The scope of the ISA was extended to include an allegation that is already covered in the regular penal code human trafficking, and arrests under the ISA more than doubled compared to previous years. ISA releases 34

35 Detention without trial and restriction of movement dropped, with the majority of detainees who were released being foreign nationals who were deported. When courts have ruled in favour of former detainees, declaring their detention to be unlawful, the government has appealed these findings. It is alarming that the Federal Court and Court of Appeal have ruled in favour of the government, expressing acceptance of torture and human rights violations instead of defending human rights and the rule of law. Prime Minister Najib Razak s claim to be a reformer remains an empty one. His government s intentions to amend the preventative laws cannot satisfy international human rights standards as detention without trial categorically violates these rights. The continued existence of the ISA, the EO and the DDA cannot be justified. It is necessary to abolish these laws. 35

36 Malaysia Human Rights Report 2010 End notes The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment was adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 39/46 of 10 December The Penal Code has been amended to cover terrorist activities, but suspected terrorists are still held under the ISA. In a memorandum from the Malaysian Bar Council to the Ministry of Home Affairs, submitted in July 2010, comparisons are made with antiterrorism legislation in other countries which provide for comprehensive protection of security without abandoning safeguards to individual liberties and protection of basic human rights. (Bar Council Malaysia (19 July 2010) Memorandum on the Internal Security Act 1960, other Legislation on Detention Without Trial, and Related Legislation) Prime Minister Tunku Abdul Rahman, Malaysia s first Prime Minister, recognised that the ISA gave the government immense powers and promised that he and his Cabinet would only use the powers against communists, and never to stifle legitimate opposition and silence lawful dissent. The preamble 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. Bar Council Malaysia (19 July 2010) Memorandum on the Internal Security Act 1960, other Legislation on Detention Without Trial, and Related Legislation AFP (2 September 2010) Malaysia frees JI militant, published in The Straits Times, SEAsia/Story/STIStory_ html; accessed 31 March Office of the United Nations High Commissioner for Human Rights (7-18 June 2010) Statement by the Working Group on Arbitrary Detention upon conclusion of its Mission to Malaysia, org/en/newsevents/pages/displaynews. aspx?newsid=10176&langid=e; accessed 30 March 2011 See, for example: the case of K. Selvachandran who was beaten during arrest in 2010 (SUARAM (27 October 2010) Death in custody perpetrator freed while witness to crime is victimised, press statement, suaram.net/2010/10/death-in-custodyperpetrator-freed-while-witness-to-crimeis-victimised/; accessed 31 March 2011); the case of Mat Sah Mohd Satray (The Nut Graph (30 June 2010) What happens under ISA detention, Gan Pei Ling, thenutgraph.com/what-happens-under-isadetention/; accessed 1 April 2011); the case of Sanjeev Kumar who was tortured until he was paralysed while under ISA detention (SUARAM (2009) Malaysia Human Rights Report 2008: Civil and Political Rights, Petaling Jaya: SUARAM Kommunikasi, pp ); the case of Abdul Malek Hussin (SUARAM (2008) Malaysia Human Rights Report 2007: Civil and Political Rights, Petaling Jaya: SUARAM Kommunikasi, pp ); Dr. Munawar Anees s statutory declaration dated 7 November 1998 (reproduced in Aliran Monthly 2010: Vol. 30, No. 2). Office of the United Nations High Commissioner for Human Rights (7-18 June 2010) op. cit. Reuters (18 June 2010) UN slams Malaysian detention-without-trial laws, Royce Cheah, idinindia ; accessed 1 April 2011 Office of the United Nations High Commissioner for Human Rights (7-18 June 2010) op.cit. 36

37 Detention without trial and restriction of movement International Secretariat of the World Against Torture (20 December 2010) Malaysia: Follow-up of case MYS _Writ of habeas corpus to free M. K. Selvachandran was rendered academic_omct remains seriously concerned about his safety and detention urgent-interventions/malaysia/2010/12/ d20998/; accessed 31 March 2011 Office of the United Nations High Commissioner for Human Rights (7-18 June 2010) op. cit. Ibid. United Nations General Assembly Human Rights Council (8 February 2011) Report of the Working Group on Arbitrary Detention Mission to Malaysia, Sixteenth session Agenda item 33, A/HRC/16/47/Add.2, www2.ohchr.org/english/bodies/hrcouncil/ docs/16session/a.hrc add.2_en.pdf; accessed 30 March 2011 SUHAKAM (2003) Review of the Internal Security Act 1960, Kuala Lumpur: SUHAKAM (p. 86) Bernama (24 December 2009) ISA amendments to be tabled at next parliamentary sitting, published in The Star, com.my/news/story.asp?file=/2009/12/24/ nation/ &sec=nation; accessed 30 March 2011 The Star (9 February 2010) ISA amendments to spell out what national threats are, Mazwin Nik Anis, asp?file=/2010/2/9/nation/ &sec=nation; accessed 30 March 2011 Bernama (20 March 2010) ISA amendments must be done together with related laws, says Hishammuddin, published in the Malay Mail isa-amendments-must-be-done-togetherrelated-laws-says-hishammuddin; accessed 30 March 2011 The Malaysian Insider (8 June 2010) ISA, Police Act amendments to be tabled, Clara Chooi, malaysia/article/government-to-tableamendments-to-isa-police-act/; accessed 31 March Ibid. (p. 88) Ibid. (pp ) SUHAKAM (2011) Annual Report 2010 Human Rights Commission of Malaysia, Kuala Lumpur: SUHAKAM (p.13) The Star (29 October 2009) Even sceptics will be pleased with ISA changes: Hisham, Mazwin Nik Anis, news/story.asp?file=/2009/10/29/nation/ &sec=nation; accessed 31 March 2011 Ibid The Malay Mail (30 November 2010) ISA detention down to 30 days, Joseph Kaos Jr, isa-detention-down-30-days; accessed 1 April 2011 The Malay Mail (30 November 2010) ISA detention down to 30 days, Joseph Kaos Jr, isa-detention-down-30-days; accessed 1 April 2011 The Malaysia Insider (30 January 2010) ISA arrests in national interest, global security, malaysia/article/isa-arrests-in-nationalinterest-global-security/; accessed 31 March

38 Malaysia Human Rights Report Malaysiakini (18 October 2007) Ex-ISA detainee gets RM2.5 million, Soon Li Tsin, accessed 31 March 2011 New Straits Times (10 December 2010) Two lawyers sue over detention under ISA, accessed 1 April 2011 The Star (13 October 2010) Nine detained under ISA for human trafficking, h t t p : / / t h e s t a r. c o m. my / n e w s / s t o r y. asp?file=/2010/10/13/nation/ &sec=nation; cited 31 March 2011 Bernama (31 October 2010) Don t use ISA on traffickers published in The Star asp?file=/2010/10/31/nation/ &sec=nation; accessed 31 March 2011 Islamic Human Rights Commission (17 March 2010) Malaysia Deportation of five ISA detainees whose habeas corpus applications have been refused, Action Alert, cited 2 April Reply to Parliamentary Written Question, Dewan Rakyat; Third Meeting, Second Session of the Twelfth Parliament (October- December 2009) Question number: 386; Reference: 2250 Communication with Jok Jau Evong, field officer of Sahabat Alam Malaysia, Sarawak, 19 April 2010; Malaysiakini (23 January 2009) Iban activists held for gang robbery, accessed 20 April 2010 See for instance SUARAM (2007) Malaysia Human Rights Report 2006, Petaling Jaya: SUARAM (pp ) Reply to Parliamentary Written Question, Dewan Rakyat; Third Meeting, Second Session of the Twelfth Parliament (October- December 2009) Question number: 386; Reference: 2250 Ibid. Syed Hamid Albar (6 May 2008) First Meeting of the First Session of the Twelfth Parliament, Hansard, DR (p. 13) parlimen.gov.my/hindex/pdf/dr pdf; accessed 27 November Reply to Parliamentary Written Question, Dewan Rakyat; Third Meeting, Second Session of the Twelfth Parliament (October- December 2009) Question number: 386; Reference: Reply to Parliamentary Written Question, Dewan Rakyat; Third Meeting, Second Session of the Twelfth Parliament (October- December 2009) Question number: 387; Reference: Reply to Parliamentary Written Question, Dewan Rakyat; Third Meeting, Second Session of the Twelfth Parliament (October- December 2009) Question number: 387; Reference: 2251 New Straits Times (23 February 2010) Turn over a new leaf here, or never 44 5,203 persons out of the 11,142 arrested between 2002 and March 2008 were given detention orders. (Syed Hamid Albar (6 May 2008) First Meeting of the First Session of the Twelfth Parliament, Hansard, DR (p. 13) hindex/pdf/dr pdf; accessed 27 November 2008) 38

39 Detention without trial and restriction of movement An agreement signed during the formation of Malaysia in 1963 gave the East Malaysian states of Sabah and Sarawak different immigration laws from those in Peninsula Malaysia. The two state governments exercise exclusive control over who can enter the state. On 14 February 2009, federal opposition People s Justice Party (Parti Keadilan Rakyat, PKR) MP Sivarasa Rasiah was prevented from entering Sarawak and informed that he had been blacklisted by the state government. His blacklist followed a similar ban on another PKR Member of Parliament, N. Gobalakrishnan, who was denied entry in December Other cases are documented in SUARAM s 2007 Human Rights Report, and many others have been recorded since See SUARAM (2008) Malaysia Human Rights Report 2007: Civil and Political Rights, Petaling Jaya: SUARAM (pp ) The Star (17 November 2010) Jannie: Conditional entry makes it difficult to carry out duties, story.asp?file=/2010/11/17/nation/ &sec=nation, accessed 12 May Malaysiakini (21 July 2010) Najib, can you guarantee Tharmendran s safety?, accessed 2 April

40

41

42 Malaysia Human Rights Report 2009 Someone has been charged in the Aminulrasyid case (But) there is still something wrong with the system in which the police operate. If this could happen to our family, it could happen to another family too. Norliza, sister of Hairul Nizam, shot dead by police in November 2010 At least eighteen people were killed by police shootings, with the real figure expected to be at least four times higher, given the trend identified in 2008 and 2009 statistics. 1 With only internal police investigations into some killings, the police are free to describe the victims as criminals, plant incriminating evidence and claim self-defence, even when their stories do not stand up to the test. The trigger-happy 2 spate of deaths in recent years, particularly of young people, has garnered so much public outcry that by the end of the year not only Pakatan Rakyat but also the Barisan Nasional were demanding an end to the seemingly indiscriminate police shooting. 3 Torture and deaths in police custody also continued in The United Nations Working Group on Arbitrary Detention found that prisoners are most unsafe and vulnerable to torture and mistreatment in police detention, and this is exacerbated by detention without trial laws, where detainees are frequently held in incommunicado detention, without access to family members or lawyers. 4 The repeal of detention without trial laws is imperative in reducing police abuse of powers, but further measures are needed. Police abuse of powers is widespread and reports of arbitrary and violent arrests, police intimidation, and denial of access to lawyers, continued in The largest number of complaints to the national rights commission, SUHAKAM, is about the police, with 125 of such complaints received in Forty-eight of these complaints were classified as either excessive use of force or abuse of power. 5 Internal police inquiries and inquests into deaths in custody, when they happen, remain subject to significant delay and police are rarely held accountable. The culture of impunity surrounding the police force is strengthened each time this happens. Accordingly, public pressure for an Independent Police 42

43 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies Complains and Misconduct Commission (IPCMC) to investigate all abuses of police power continues to grow. It is worrying that other enforcement agencies are also abusing their powers. The death of Teoh Beng Hock at the Malaysian Anti-Corruption Commission (MACC) continues to create high levels of public anxiety, particularly given the government s refusal to convene a Royal Commission of Inquiry into the death, as of Abusive actions by the Royal Malaysian Armed Forces and the Securities Commission in 2010 are further negative indicators of the human rights situation in Malaysia. Abuses of power by the police and other law enforcement agencies continue to occur mainly due to the Malaysian government s failure to implement any significant reforms. The government also continues to disregard international human rights laws and standards. Malaysia still refuses to ratify most of the core international human rights treaties, such as the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. Recommendations for Reform and the Government s Response Numerous recommendations for systematic and genuine reforms to the operations of law enforcement bodies have been made to the Malaysian government, as a direct result of their notorious human rights record. Recommendations have come from both domestic and international bodies, including Malaysian human rights NGOs. SUHAKAM has long expressed concerns regarding the lack of compliance by the police and other law enforcement agencies with international human rights standards. In each of its annual reports, SUHAKAM makes recommendations regarding the abuse of power by police, based on complaints made to the commission and events in the public arena. The government appointed Royal Commission on the Police (2005) also made recommendations to eliminate corruption and police brutality, and restore public confidence in the police. The Commission s report specifically raised concerns about long detention periods and chain-smoking remand 6 of suspects; threats and extortion of money from the public, particularly from migrant workers; and acts of inhumanity, torture and degradation carried out by police personnel during interrogation. The Commission also made a detailed recommendation that an independent complaints commission for the police be established the Independent Police Complaints Misconduct Commission (IPCMC). 7 All of the most important recommendations made by the Royal Commission on the Police with regards to the police s human rights compliance have not been implemented and are not under serious consideration by the authorities. The government does not appear to appreciate the crisis surrounding the Malaysian police. Instead of identifying bold and strategic mechanisms to combat the many areas of lawlessness in Malaysian policing, the government continues to play a game of smoke and mirrors. (i) Firearms International law stipulates clear limitations of the use of firearms by law enforcement officials, and in its 2010 Annual Report, SUHAKAM called on police guidelines to observe the United Nations Code of Conduct for Law Enforcement Officials 1979 and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials

44 Malaysia Human Rights Report 2009 Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty. United Nations Code of Conduct for Law Enforcement Officials 9 Law enforcement officials shall not use firearms against persons except in self-defence 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. Principle 9, United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials 10 Following the tragic death-by-shooting of Aminulrasyid Amzah in May 2010 (discussed in detail later in this chapter), SUHAKAM asked for information about any recommendations or actions that were being taken regarding police use of firearms. Deputy Minister of Home Affairs reported that some improvements had been recommended to the Inspector-General of Police Standing Order, but no details were given. 11 Kuala Lumpur CID (Criminal Investigation Department) chief Ku Chin Wah said the guidelines are an internal, restricted administrative document not meant to be circulated in public. 12 In refusing to be transparent, the Home Ministry indicated to the nation that the government and the police had learnt nothing from the death of this young man and the police remain a force that does not need to answer to the public, or the national human rights commission. (ii) Inquests into Deaths in Police Custody The Royal Commission on the Police (2005) made recommendations relating to deaths in police custody. One of the key recommendations was that for each case of death in police custody, the police must submit a report of sudden death (SDR) within one week, and an inquest be held within one month. The Parliamentary Select Committee on the Penal Code and the Criminal Procedure Code (2006) (CPC) recommended the legislation of a Coroner s Act with a view towards establishing a Coroner s Court and improving the procedures for inquests into deaths in police custody. 13 Despite the requirement that all custodial deaths are to be investigated pursuant to Chapter 32 of the CPC, and assurances from the Home Ministry that this is the case, many long overdue cases are still pending - some dating back to In 2005, the Royal Commission on the Police report noted that there had been only six inquests into deaths in police custody cases between 2000 and 2004, whereas there were eighty deaths. 14 In April 2006, then- Chief Judge of Malaya Siti Norma Yaakob questioned the decision by deputy public prosecutors and magistrates not to hold inquests for twenty-two of these deaths. Siti Norma Yaakob further highlighted that in thirty-nine out of eighty cases, inquests had not been initiated although a SDR had been submitted. 15 The lack of transparency and speed in establishing inquests, as well as the government s apparent lack of interest in establishing a Coroner s Court, deaths in custody remain alarmingly high, and SUARAM monitoring demonstrates that in most cases police are not held accountable. (iii) Code of Practice for Arrest and Detention to prevent torture and abuse A set of Principles and Code of Practice Relating to the Arrest and Detention of Persons was proposed by The Royal Commission on the Police (2005) to prevent torture and abuse of detainees. The Commission proposed an independent Custody Officer should be responsible for the welfare and custody of every detainee, 44

45 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies in addition to overseeing procedures for police interviews, including tape recordings, video surveillance and access to lawyers. Furthermore, the Commission recommended that failure to comply with the code should be subject to disciplinary action. These recommendations came out of grave concern over reports of torture and abuse, as well as deaths, whilst in police custody. However, the authorities refused to act and it was not until February 2009, following the public outrage surrounding the death in custody of A. Kugan in January, 16 that the federal police stated their intention of introducing a new set of guidelines on arrest and interrogation procedures. The most significant changes in these guidelines were that a video recording must be made before and after each suspect is questioned, and every time a new team of officers takes over the questioning of a suspect, they must record the suspect s physical condition in three different places. At the end of 2010 however, it remains unclear where these new guidelines are being implemented. (iv) Right to Legal Counsel Malaysians have the right to contact family members and receive legal counsel, as outlined in Article 5(3) of the Federal Constitution and Section 28A of the Criminal Procedure Code. Denial of such is not just a violation of the constitution and CPC, but also of international human rights standards. The UN Working Party on Arbitrary Detention found through its investigation in 2010 that police agents often fail to inform detainees about their rights to contact family members and consult a lawyer of their choice. Police officers often question suspects without giving them access to legal counsel. 17 Police denial of the right to legal counsel was most publicly highlighted in recent times in 2009 when five Kuala Lumpur Legal Aid Centre lawyers were arrested at Brickfields Police Station upon arrival to meet with clients detained for peaceful protest at a candlelight vigil. 18 Two SUARAM staff and one secretariat member were among those arrested. A SUHAKAM Public Inquiry was ordered and upon completion in April 2010 it declared the detention of the lawyers to be unconstitutional and with the sole intent of denying access to counsel, constituting a violation of human rights. 19 SUHAKAM called for police to ensure the rights of detainees in consulting lawyers. However, the human rights commission fell short of recommending the law be amended to abolish the provision allowing the right to counsel to be temporarily denied. 20 Despite this, the right to counsel continues to be violated by police. Anti-ISA protesters arrested in Petaling Jaya in August 2010 were denied access to legal counsel when their lawyers were force to provide separate witness statements, thus preventing them from providing legal advice and representation to the detainees. 21 Thus, if well organised protesters are denied their right to counsel, it shows that this is systematically continuing. (v) Stopping and disrupting assemblies Freedom of assembly is a fundamental right guaranteed by the Federal Constitution, but police in Malaysia have a record of stopping and disrupting assemblies and gatherings, including those held in private premises. On many occasions, unnecessary and unprovoked force and violence has been used. Human rights organisations, SUHAKAM and the Royal Commission on the Police have all recommended amending Section 27 of the Police Act 1967, which requires a police permit to organise gatherings. The Royal Commission on the Police recommended, inter alia, the repeal of Sections 27A, 27B and 27C, 22 which would mean the police cannot stop or disrupt assemblies or 45

46 Malaysia Human Rights Report 2009 gatherings in private premises. SUHAKAM has also said that peaceful assemblies should be allowed without a licence. 23 In August 2009, Home Minister Hishammuddin Hussein announced that Section 27 of the Police Act would be reviewed to recognise the right of the public to gather peacefully. Notwithstanding this, the minister also said that such public gatherings would only be allowed if they are confined to suitable areas to ensure national security and stability. 24 As of 31 December 2010, no amendments to Section 27 of the Police Act had been tabled in Parliament. See Chapter 4: Freedom of Assembly and Association. (vi) The Independent Police Complaints & Misconduct Commission Calls for the establishment of an independent and impartial police commission have come from the Royal Commission on the Police (2005) and SUHAKAM 25, and also from the international community, with this exact recommendation being tabled by the Netherlands government during the United Nations Human Rights Council s Universal Periodic Review into Malaysia s human rights record in February Malaysian law enforcement is in crisis. The public demand a police force that works for them, not against them. The judiciary in Malaysia have failed to protect victims of police of abuse who have sought justice through the courts. This prevents victims from accessing the justice system. The culture of impunity that has long plagued the police force must be brought to an end. The only way to change this culture is to immediately establish an independent, police-focused commission that can properly investigate alleged abuses of police power and effect real change to a corrupt and unaccountable law enforcement body. The Malaysian government must establish the Independent Police Complaints Misconduct Commission (IPCMC), as set out in The Royal Commission on the Police report. The government has refused to establish the IPCMC. In an attempt to divert the focus of the debate, the government announced in June 2009 that it was in the process of establishing the Enforcement Agencies Integrity Commission (EAIC). In 2007 the government said that it would table a bill for the IPCMC; however, the tabled bill was not for the IPCMC but for a Special Complaints Commission (SCC). 26 The SCC Bill was the government s first attempt to remove the IPCMC from the public imagination. The SCC was opposed by civil society groups 27 and the chairman of the Royal Commission on the Police as it was a major departure from the recommendations made by the Commission. 28 The government had no choice but to shelve the bill and the EAIC is the most recent attempt to mute calls for the IPCMC. The EAIC bill was gazetted on 3 September 2009; however, at the end of 2010 the body had not been established. The EAIC falls short of an independent oversight mechanism to monitor the police force. Unlike the proposed IPCMC, the EAIC also has very limited powers and cannot prosecute but can only refer investigations to the Attorney-General, who has a full decisionmaking mandate. Furthermore, it has responsibilities for 21 other law enforcement agencies. This scope is too broad and cannot effectively address systematic problems within the police force. Each year SUHAKAM receives an increasing number of complaints about the police. Complaints about the police form the bulk of complaints, with 125 out of 341 complaints in 2010 being about the police. 29 For the national human rights body to have over one third of investigations focused on the country s police force, and for five out of its seven public inquiries since establishment 46

47 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies to have been into police abuse of power cases, speaks volumes of the police crisis in Malaysia. The fact that 48 of the 125 police complaints received in 2010 were classified as either excessive use of force or abuse of power signals even more alarm bells. 30 SUARAM therefore continues to advocate for the IPCMC as a specific and specialised independent oversight mechanism. Rather than tackling the festering problems in the police force head on, the announcement of the 4P plan by the new Inspector-General of Police Ismail Omar, is another attempt to divert public attention away from them. Announced on 30 September 2010, the 4Ps stand for Proactive, Protective, Performance-oriented and People-oriented, and are supposed to deliver a more efficient service to the public. 31 Thus far, the 4P plan has yielded no visible impact or unveiled any strategic plans to improve the police service. It is hard to see how the 4Ps can deliver meaningful change when there are no transparent guidelines for police firearms and arrest and interrogation, and no independent police complaints commission to look into allegations of abuse of power and inefficiency. While the relationship between outgoing Inspector-General of Police Tan Sri Musa Hassan and Home Minister Hishammuddin Hussein may have been strained, to the point that Musa threatened lodging a complaint about third party interference 32, it is clear that the police force is not a politically impartial law enforcement body. They unashamedly do the government s bidding and target human rights defenders and others who challenge government policy and actions. No wonder then that the IPCMC has not been implemented as both parties, the government and the police, are comfortable with the status quo. The government gets the police to arrest troublesome protesters and other persons who pose a threat to their power, while the police benefit from not being held accountable for their actions. The IPCMC threatens to sever this unhealthy relationship as the police force, its actions, policies and investigations, would be transparent and accountable to the public. Police Shootings A Shoot to Kill Policy? Death by police shooting was one of the most controversial human rights matters in The use of force and arms by law enforcement officials is limited under international law, including the United Nations Code of Conduct for Law Enforcement Officials and Principle 9, United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. These standards aim to minimise injury and protect the right to life. Minimal regard is given to these standards in Malaysia, and the circumstances of police shootings indicate that the police did not give sufficient warning before firing at criminal suspects and did not try to apprehend suspects alive but shoot with the intention to kill. It is alarming that young people feature so highly in police shootings. In 2009, at least two young people survived police shootings to tell their stories. Norizan Salleh lived to tell the tale of being shot at five times by police whilst travelling in the back of a car, and then being kicked and stepped on, despite the fact that she was bleeding and clearly needed urgent medical attention. 33 Norizan s case begs serious questions about why a backseat passenger with no weapon was shot at all, let alone five times. Despite widespread concerns about a shoot to kill policy, the police involved were not held accountable, sending a clear message to the rest of the police force about the culture of impunity they work within. Kuala Lumpur 47

48 Malaysia Human Rights Report 2009 CID chief Ku Chin Wah said police were right to shoot in Norizan s case and that they acted in self-defence, 34 and Home Minister Hishammuddin Hussein said the Attorney- General s Chambers saw no reason to pursue the matter, confirming no charges would be brought against the police involved. 35 After finally meeting with Norizan on 1 April 2010, following pressure by opposition MPs and human rights groups, Hishammuddin s parliamentary secretary read a statement to reporters saying he would look into the matter. 36 Nothing has transpired so far. At the end of the day Norizan was left with trauma and a permanently damaged hand but no justice or recognition from the federal authorities. The state government of Selangor, on the other hand, did support Norizah s appeal for justice and donated MYR10, 000 towards Norizan s MYR18, 000 medical bill. Also, in 2009 Mohd Afham Arin (18) was shot dead by police, while being chased on a motorcycle with Mohd Firdaus Marsani (19) riding pillion. Police allege that Mohd Firdaus had waved a machete at police, and this forced them to shoot in self-defence. 37 Mohd Fidaus, who survived the shooting, says that the pair were chased and shot at by three plain clothes men on motorbikes. No charges have been laid against the police responsible. A story with startling similarities was the shooting of Ho Chei Heung on 16 November Ho accused the police of being triggerhappy after being shot by two plain clothes policemen who opened fire after he did not stop his car when they had called out to him to do so. Four bullets hit Ho in the back. When Ho got out of his car, he fell into a monsoon drain. Badly wounded, he climbed out, only to be beaten by the two men and some others, while hearing that the police were looking for a man in a different coloured car. After eventually being taken to hospital, Ho said he was handcuffed to his bed. Police justified the shooting by saying that they believed he may be involved in drugs and therefore may have weapons and that he tried to ram the police with his car, a common self-defence story denied by Ho. 38 Ho lodged a memorandum of complaint to SUHAKAM and asked that the internal police investigation be undertaken by Bukit Aman federal police headquarters, instead of Sentul, where the police who shot him are stationed. Even if police move towards using taser guns 39, this will not be the solution to this problem. Inquiries in other countries have shown that taser guns can be lethal too. What is needed is a wholesale shift in police mentality and approach to law enforcement, whereby police do not think they can shoot first and claim self-defence later. In virtually all cases of shooting deaths, the majority of which involve a car chase, police continue to claim that they are under threat and forced to fire in self-defence. The self defence argument is apparently reasonable whenever police think drugs may be involved, machetes are allegedly shown (even when alleged perpetrators are far away) and cars do not stop. Norizan Salleh who survived being shot five times by the police. (Photograph courtesy of Malaysiakini) 48

49 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies We cannot take things for granted when we believe there is a drug-related offence, as the suspects may have a weapon. Sentul OCPD Zakaria Pagan, justifying the shooting of Ho Chei Heung in November If you refuse to stop and try to drive your way through when an officer is trying to stop you, then that vehicle is considered a weapon because it poses a danger to the life of the enforcement officer... Running away from the police creates suspicion and as law enforcers, we must ascertain why this person is running away from us. Inspector-General of Police Tan Sri Musa Hassan, justifying the death of Aminulrasyid Amzah in April Victims families and human rights groups have concerns that weapons (such as machetes, parangs and guns) are planted in the cars by police, to corroborate their stories of self-defence. As former Bar Council president Raja Aziz Addruse has highlighted, In many of these cases, there s always a gun found in the car. It s just too coincidental. Very often, all the people allegedly involved are killed. 42 Even if machetes and parangs were in the vehicle all along, there is no immediate danger to life for the police involved. Suhakam commissioner Siva Subramaniam agrees that there are instances where it is difficult to justify [police shooting] actions. 43 Despite these well founded concerns about the use of the supposed self-defence argument, the Home Ministry continues to support this constant invocation, even if it is not fully sanctioned under the law. 44 Deaths Caused by Police Shootings, 2010 The government has not released official statistics for police shootings in 2010, but through media monitoring, SUARAM has documented at least eighteen individuals killed in police shootings. There are likely to be many others that remain unknown. Official statistics show 279 deaths by police shooting between 2000 and Over half of these occurred in 2008 and 2009 (88 and 82 respectively) indicative of an alarming spike in police death by shooting cases in the last few years. 46 There are concerns that the real figures may actually be higher as there are indicators that record keeping of these deaths is not thorough. For example, among eighty of the victims between 2000 and 2009, nearly 30%, were not properly identified. 47 Deaths caused by police shootings in 2010 include: Musdi, Abdul Sanu, Muhlis - 16 March 2010 Three Indonesian workers were killed by police who alleged that they were robbers. Police said the dead men were members of the Gondol robbery gang, and that one of the men was the gang s leader. The police version of events was that they were in a car chase with police, crashing their car into a tree and then allegedly charging at police with firearms and blades, forcing police to shoot in selfdefence. Among other things reported to be found in the car were a home-made shotgun and two parangs. 48 Eye witness accounts given to SUARAM tell a different story. Witnesses report that the 49

50 Malaysia Human Rights Report 2009 three dead men could not drive, and that instead they, along with three others, had been picked up by police from home. (The whereabouts of the other three men remains unknown.) All three men had the same shotgun wounds to the head and the breast. Indonesian authorities undertook autopsies to check that the men had infact died from gunshots, and a forensics expert from Cipto Mangunkusumo General Hospital in Jakarta said that wounds on the bodies indicated excessive force men (unknown identity) 5 April 2010 Three men, believed to be from Indonesia, were shot dead by police after allegedly being involved in a robbery. Police said that police acted in self-defence after the men had attached the police. R. Logeswaran (38) & Satchithananthan (25) 8 April 2010 Eye witnesses reported that a man wearing a balaclava, who they believed to be a police officer, shot the two brothers in their car fifteen times. The shooter then left the scene. There was a heavy police presence in the area at the time and at least one police car was reported to be present at the site of the shooting. 50 Aminulrasyid Amzah (14) - 26 April 2010 On 26 April 2010, 14 year old Aminulrasyid Amzah was shot and killed by police officers after a high speed chase in Shah Alam, Selangor. The police gave chase after the car driven by Aminulrasyid allegedly hit another vehicle and fled the scene. Police pursued Aminulrasyid s car, wildly shooting and killing Aminulrasyid with a shot to the head. Defence and prosecution lawyers together with court officials examining the car driven by Aminulrasyid when he was shot and killed. (Photograph courtesy of Malaysiakini) 50

51 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies Aminulrasyid s young age and the police statements that followed gave his case considerable notoriety. The authorities went into defensive mode, protecting themselves with no regard for the severity and sensitivity of the situation. Selangor police chief Deputy Commissioner Abu Bakar endorsed the police action while Police chief Musa Hassan dared the public to question police action by threatening to pull police off the streets, 51 leading to calls for his resignation. Abu Bakar claimed that the shooting was justified as Aminulrasyid had tried to reverse the car into the police, meaning one police officer had to fire four shots in self-defence. 52 However, a statement by Azamuddin Omar, a passenger in the car, refuted this and said that Aminulrasyid was shot and had collapsed before the car crashed. 53 Even the Prime Minister s office was concerned there would be a police cover-up. I hope the police will cooperate and not cover up to protect anyone if he is wrong, said Prime Minister Najib Razak. 54 Evidence given in the Sessions Court revealed inconsistencies in the police statements. The car had not reversed 55 and two policemen 56 had fired at least twenty-four shots resulting in thirty-two bullet holes in the car. 57 The rusty parang found in the car 58 is also thought to have been planted by police to support their self-defence justification. Aminulrasyid s tragic death and comments by police afterwards reflected on the force so badly that MCA President Dr Chua Soi Lek, a key leader in the ruling Barisan Nasional, publicly rejected the selfdefence justification in this case. 59 Despite the public outrage and the fact that senior police were more interested in protecting officers than investigating the truth of what happened, the authorities did not give the case the seriousness it deserved. Instead of establishing a royal commission of inquiry or other independent inquiry (as demanded by Aminulrasyid s family 60 ), an internal investigation overseen by Deputy Home Minister Wira Abu Seman Yusof was ordered and the details and findings were deemed to be classified, and therefore not made public. 61 Only one police corporal, Corporal Jenain Subi was ultimately charged under Section 304(a) of the Penal Code on 9 May 2010 with culpable homicide not amounting to murder. No other police personnel faced charges although the Sessions Court saw at least one police witness unwilling to answer questions 62 and questions raised about the bullets shot that night. 63 The Court was still in session at the end of 2010 and there has still been no apology for the teenager s murder from the police or government officials. There has been no independent inquiry into police actions regarding the case, including the endorsement of the need to shoot by Abu Bakar. Such an investigation, while sorely needed, will not occur until there is an established independent police complaints commission. Ong Ming Keong (39) 2 July 2010 Police shot Ong dead near Bukit Tunku. Ong was alleged to be involved in a robbery case. 4 burglary suspects (unknown identity) 5 July 2010 Police shot dead four burglary suspects at the house of a Pahang state executive councillor. The police said that the suspects had tried to attack the police with sharp objects men (unknown identity, ages 41 & 43) 25 August 2010 Police said they shot dead two robbery suspects in self-defence after the suspects fired shots at police after a car chase when their car crashed into a canal. Police said the suspects were also armed with machetes 65 51

52 Malaysia Human Rights Report 2009 Mohd Shamil (15), Mohd Hairul Nizam Tuah (20), Mohd Hanafi (22) 13 November 2010 Seven months after Aminulrasyid s tragic killing, three more youths were shot dead by police on 13 November Acting Selangor police chief A Thaiveegan was quick to defend police action, saying police fired shots because the youngsters were involved in a car chase, and then charged at police with machetes. However, as lawyer N. Surendran said, the self-defence argument does not stand up. If it was a case of self-defence then why were they shot in the head after being shot in the chest. A shot in the chest would have stopped anyone unless you re a grizzly bear. They also did not have firearms so there was no reason to shoot to kill. 66 The pattern and trajectory of the shots cast further doubt on the self-defence justification, suggesting the boys were kneeling and shot at close range. 67 Furthermore, Mohd Hairul Nizam also had a black eye, indicating he was assaulted near the time of death. As with Aminulrasyid s case, the facts of the case looked suspicious, but the comments and handling by police alarmed the families even more. Thaiveegan asserted that the three young men were suspected of robbing a petrol station, labelling Mohd Shamil a ringleader of the Geng Minyak gang and a seasoned criminal, despite the fact that he did not have a criminal record. The families believe the comments to be part of the police cover-up in their sons deaths 68 and have all filed police reports. R Sivarasa, PKR parliamentarian, tried to raise an emergency motion to debate the incident in parliament after being approached by Mohd Sahmil and Mohd Hairul Nizam s families, but this was rejected on the grounds that it was not specific, urgent and of public interest. 69 Family members of Mohd Shamil (15) one of three youths shot and killed by the police on 13 November (Photograph courtesy of Malaysiakini) 52

53 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies Injuries from police shooting Other victims of police gunshots in 2010 who have not died but have needed surgery or medical treatment include Mohd Azizi Aziz (17) who was shot while running from police 70 ; Shahril Azlan Ahmad Kamil (26) who was shot when reversing from a roadblock because of an expired road tax 71 ; Abu Zahid Abdul Hamid, who suffers from mental health problems, was shot when cycling away from police; and S. Surentiran who was hit by a stray bullet while police shot at Abu Zahid Abdul Hamid 72. Deaths in Prisons and Police Custody Through media monitoring SUARAM has recorded at least 2 deaths in police custody in No official statistics for the year have been given. During the First Meeting, Third Session of the Twelfth Parliament in 2010, the government announced seven deaths in police custody in 2009, 73 and 66 deaths in custody from 2005 to April The government claimed that out of these 66 deaths, only one was allegedly due to excessive force by the police. 74 Tables 2.1 and 2.2 below show the official number of deaths in custody in different periods, and according to year, respectively. These numbers are taken directly from the government s official statements made in Parliament on four different occasions in April 2007, March 2009, June 2009 and April These statistics should be treated with caution as the reported numbers per year have been known to change. 75 Of the 2,587 prisoner deaths between 2000 and 23 November 2009, the government claims only 32 of those deaths occurred in prisons, with the rest occurring in hospitals. The government also claimed that 31 of the 32 deaths were suicides with the remaining fatality caused by electrocution. According to government figures, 60% of the prisoners who died in hospitals during this period were HIV positive, with the rest succumbing to health conditions such as septicaemia, tuberculosis, cancer, heart disease and asthma. 77 Table 2.1: Official number of deaths in police custody & other detention Period Deaths in police custody Deaths in other detention April 2010 (5 years) 66 n/a November 2009 (10 years) n/a 2,587 (P) (5 years) 85 1,535 (PRD) March 2007 (7 years) n/a 95 (D) (6 years) 108 n/a (10 years) 153 n/a (Source: SUARAM monitoring) 53

54 Malaysia Human Rights Report 2009 Table 2.2: Official annual number of deaths in police custody & prisons Year Deaths in Deaths in prison police custody n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a (Source: Home Ministry, Malaysia) n/a P PRD D Official statistics not available deaths in prison deaths in prisons, rehabilitation centres, and immigration detention centres Simpang Renggam detention centre in Johor R. Gunasegaran s case R. Gunasegaran died in police custody on 16 July 2009 at Sentul police station, only a few hours after he was arrested. During the inquiry into his death, police officers maintained they had not beaten him while under police custody, despite an eyewitness who saw Lance Corporal Mohd Faizal Mat Taib kick Gunasegaran in the chest. On 25 October 2010, coroner Siti Shakirah Mohtarudin delivered an open verdict, saying the first post mortem did not prove the cause of death was injuries due to beating. A second post mortem was unable to determine the cause of death as the body had decomposed whilst being held at the Kuala Lumpur Hospital morgue; however it did record a large wound on his chest. The pathologist said this could be from assault or resuscitation efforts, however witnesses testified there was no such resuscitation effort carried out. 78 Just hours after testifying, the key eyewitness in the case, Selvachandran, was arbitrarily detained without trial. A group of men, claiming to be police officers went to Selvachandran s home where they handcuffed and beat him in front of his wife and children. Police authority cards were only displayed momentarily after they were questioned by Selvachandran s wife. Selvachandran s violent arrest is considered an act of revenge by his lawyer and human rights activists, and is a clear example that abuse of police powers continues, and remains unchecked, under the new IGP. Protecting the abuse of police powers and perpetuating a system of impunity, Home Minister Hishammuddin Hussein issued a two year detention order under the Dangerous Drugs (Special Preventive Measures) Act 1985 on 14 December, and the High Court refused to hear Selvachandran s habeas corpus

55 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies Selvachandran s case, in which a police perpetrator of violence in a death in custody case remains free, while the witness is subject to violent arrest and detention without trial, sends a strong message that police can abuse their power with impunity and retaliate against witnesses who may testify against them. See Chapter 1 for more discussion of the abuse of detention without trial laws highlighted by this case. P. Babu s case P. Babu had been held for questioning when he was found dead in his cell at Bahau Police Station hanging from a beam in the toilet on 1 February Police called the death suicide, however family member were not satisfied and alleged that Babu had been beaten. CCTV cameras linked to the cell have not been made available. Inquests into Cases of Deaths in Police Custody Inquests into deaths in police custody are mandatory under law but many long overdue cases are still pending in the courts. Ulaganathan Muniandy s death in police custody on 21 July 2003 is an illustration of the slow progress of inquests. Ulaganathan (19) was held at Kajang police station, initially under Section 302 of the Penal Code and later under the Emergency Ordinance, from 12 May 2003 until his death. The cause of Ulaganathan s death was classified as undetermined. 80 However, according to his mother, she saw several bruises on his body when she visited him, and noted that he lost a lot of weight and was unable to sit while eating in July. In March 2006, SUARAM was informed that an inquest was to be held into Ulaganathan s death. As of 31 December 2010, more than seven years after his death and after being postponed numerous times since its commencement, the inquest has yet to be completed. Ulaganathan s case underscores two major problems with the conduct of inquests into death in police custody cases. Firstly, inquests are unacceptably slow, with Ulaganathan s case being only one of many which have been postponed for several years. Secondly, family members are frequently not notified of the commencement and postponement of inquests. Thus, inquests may have been conducted without the knowledge of family members. This lack of transparency does not allow for any accountability of police, further adding to the culture of impunity for police abuse of powers. Torture and Other Forms of Cruel, Inhuman and Degrading Treatment Malaysia s non-compliance with international human rights standards is also seen in its refusal to ratify the UN Convention against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment and Punishment. Reports of torture and other forms of inhumane and degrading treatment continue to plague the Malaysian police in In its report, the UN Working Party on Arbitrary Detention noted that virtually all detainees interviewed stated [in interviews] that they had been subjected to ill-treatment and even torture in police stations and detention centres in order to obtain confessions or incriminatory evidence. 81 In many of these cases, the police officers involved are not held accountable. On 5 January 2010 Sudeshpal Singh, a worker from Bangladesh was beaten in the face by a police officer for challenging corruption. Migrant workers are particularly vulnerable to police abuses of power, including demands for money and physical assault. Most migrant 55

56 Malaysia Human Rights Report 2009 workers do not lodge complaints as they are scared that they may be targeted further and /or have their permission to work in Malaysia revoked. In this case, SUARAM assisted Sudeshpal to lodge a police report at Brickfields police station and in March requested action by the police discipline board. A response was received that an investigation had started but there has been no public comment since. On 12 February an 18 year old was forcibly taken from Sentul LRT station by four plain-clothes policemen who beat him, dragged him into a van and violently interrogated him at Sentul police station. The youth suffered injuries to his ribs, stomach and face and was only released when his father eventually found him after police answered when he called his son s mobile phone Torture Case, prosecution still pending On 15 January 2009, police personnel were charged with collectively committing an act of criminal intimidation and voluntarily causing hurt to extort a confession under Sections 506 and 304 of the Penal Code, respectively. The police are alleged to have scalded B. Prabakar (27) and C. Solomon (18) with hot water whilst detained at Brickfields police station in December Despite Prabakar identifying nine police officers involved in subjecting him to torture, only seven were subsequently charged and their prosecution was still pending at the end of Other violent abuse by police It is not just inside cells that police are alleged to abuse their power, but also on the streets. One such allegation was made by Azamuddin Omar, a passenger in the car driven by Aminulrasyid who was shot dead. Azamuddin has given testimony in court that he was beaten by police when he got out of the car. 83 Norizan Salleh has also said that she was kicked and trodden on by police in 2009 when she climbed out of the car bleeding and in urgent need of medical attention. On 24 December 2010, Chia Buang Hing claimed he was repeatedly assaulted and robbed of MYR 13,000 by police after they pulled him over for driving without valid road tax. Chia claimed to have been assaulted by numerous police personnel at the police station, on a vacant plot of land and outside the magistrate court. Police further threatened to plant drugs or a blood-stained machete in his car, both of which he was ultimately remanded for. 84 Chia lodged a police report and charges have been made against two officers, although many more were involved. The case is due to be heard in Targeting human rights defenders Police continue to target human rights defenders, abusing their powers to harass and intimidate them. In 2009, 589 people including minors were arrested at anti-isa rallies. In 2010, the number was lower, but the right to peaceful protest was denied by police intimidation and brutality. Abuse of police powers was noted at a Petaling Jaya Anti-ISA rally, where Police Chief Arjunaidi Mohamed exhibited a lack of professionalism and integrity whilst dispersing a peaceful assembly. His police officers were brutal and violent when arresting participants, despite monitoring at the site by Bar Council lawyers and SUHAKAM Commissioners. 86 Thirty-eight people were arrested, with the thirty arrested at Petaling Jaya being denied access to legal counsel when their lawyers were forced to provide separate witness statements, thus preventing them from providing legal advice and representation to the detainees

57 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies One individual subject to ongoing police harassment is Lau Shu Shi, former Penang SUARAM coordinator. Lau was arrested for participating in a Hindraf rally on 11 May Lau has been charged under Section 90 of the Police Act 1967, for challenging an officer in the police station in a rude manner after he shouted at her. Lau was taken to the Georgetown Magistrate s Court and held in police lock on 2 August 2010, with her case unresolved at the end of the year. If found guilty, Lau faces up to MYR500 fine and/or six months in prison. 88 See Chapter 4: Freedom of Assembly and Association for a more comprehensive list of arrests and crackdown on public assemblies Abuse of Power by Other Enforcement Agencies Malaysian Anti-Corruption Commission On 16 July 2009 Teoh Beng Hock, an aide of an opposition, Democratic Action Party (DAP) politician died while in the custody of the Malaysian Anti-Corruption Commission (MACC) by allegedly falling from the fourteenth floor of the building. Despite calls for a Royal Commission to be established to investigate Teoh s death, the government instead set up a Royal Commission to look at the MACC s investigative procedures, leaving only an inquest headed by a magistrate to investigate the death. In November 2009 the Kuala Lumpur High Court had already ruled that it was illegal for the MACC to question witnesses outside normal office hours. 89 There are real concerns about the effectiveness of the inquest into Teoh s death. Information vital to the inquest s investigation, namely a note supposedly written by Teoh, was only identified and submitted to the court Remembering Teoh Beng Hock. The writing on the cake says We miss you, and we remember your spirit. (Photograph courtesy of Malaysiakini) 57

58 Malaysia Human Rights Report 2009 late in the proceedings. It was said that the Attorney-General s office had previously decided that the note should not be submitted to the court. 90 The emergence of the evidence at such a late stage can reasonably be viewed with suspicion. If this was not part of a cover up, as suggested by lawyer Gobind Singh Deo, representing Teoh s family, it highlights at the very least the lack of process in identifying and producing relevant evidence. It also highlights the need for a high level body, a Royal Commission, to investigate actions and decisions made by MACC officers and the Attorney-General s department. At the end of 2010 the inquest was ongoing. The anti-corruption body in Malaysia has had a history of human rights abuses by its officers. In 2007, SUARAM documented the case of a man who died three weeks after being brutally assaulted during an interrogation by officers of the Anti-Corruption Agency, 91 as the anti-corruption body was then known. The Royal Malaysian Airforce Abuse of power, lack of accountability and transparency is not only true for the police force, but also for the Royal Malaysian Airforce (RMAF). On 25 November 2010, N. Tharmendran was arrested for alleged desertion by RMAF provost marshals in the Royal Malaysian Airforce. Despite Section 174 (4) of the Armed Forces Act, which states that any person in custody should as soon as practicable and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate, Tharmendran was still being detained without trial at the end of Prior to his rearrest, the RMAF had served Tharmendran s lawyer, N Surendran, demanding that Surendran advise his client to turn himself in to armed forces personnel or face potential criminal proceedings. The Bar Council slammed the RMAF s action, calling it an explicit and unambiguous threat which was appalling and unacceptable interference in a solicitor-client relationship. 92 Tharmendran had previously accused military intelligence officers of subjecting him to torture while he was held for three weeks during an internal probe into the theft of two jet-fighter engines (a major embarrassment to the government). Tharmendran sparked debate in July 2010 when he voluntarily chose to be held in remand at Sungai Buloh prison instead of being released on bail, due to concerns for his safety from military intelligence. 93 Securities Commission The Securities Commission (SC) was also found to use heavy handed methods in its investigations in July The SC questioned four business reporters over their investigations into a company called Kenmark and its shares. The Centre for Independent Journalism (CIJ) said the SC s actions highlighted the need to protect journalists. The CIJ criticised the Securities Commission Act 1993 as the Investigating Officer s powers are very wide and open to abuse and violate universal human rights principles. The CIJ condemned the way the SC handled the investigation, as it did not recognise the responsibility and duty of journalists. 94 See Chapter 3, Freedom of Speech and Expression, for more information about freedom of the press. People s Volunteer Corps (RELA) An agency under the Home Ministry, RELA is a highly controversial civilian volunteer force that is akin to a vigilante group. The extension of arrest and detention powers to the People s Volunteer Corps (RELA) in 2005 remains contested. The amendment 58

59 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies RELA personnel on duty. (Photograph courtesy of Malaysiakini) of the Essential (Ikatan Relawan Rakyat) Regulations gave RELA the right to bear and use firearms, stop, search and demand documents, and arrest without warrant. All these powers can be exercised whenever RELA personnel have reasonable belief that any person is a terrorist, undesirable person or illegal immigrant. Formed in 1972 under the Emergency (Essential Powers) Act 1964, RELA was originally established to assist, maintain and safeguard peace and security in the country. They have received increasing powers over recent years, and their presence is today most greatly felt in enforcement of immigration laws, with wide powers to raid premises and arrest refugees and undocumented migrants without a warrant. Based on the high number of reports that many RELA personnel have abused their powers, local and international human rights groups have long called for the disbanding of the agency. Despite these concerns, the government has proposed that RELA be upgraded into a fully-fledged law enforcement department with increased powers. To date this has not occurred, but on 18 August 2009, the government announced that RELA members, together with the Civil Defence Department, would be put in charge as volunteer policemen to reduce street crimes. This proposal was heavily criticised by civil society, including SUARAM and Amnesty International Malaysia, who argued that empowering and legitimising RELA could worsen the climate of arbitrary law enforcement and abuses of power. Such enforcement powers, it was argued, should only be given to competent and speciallytrained full-time officers, not a poorly trained group of volunteers who continue to act in an arbitrary and overzealous manner. The government was deaf to the concerns of human rights groups and in October 2009, announced the proposal would be implemented and an additional 3,000 RELA members trained for public policing. In addition, Home Minister Hishammuddin A high number of reports indicate that many RELA personnel have abused their powers. This photo show a kick mark on the right thigh of someone detained during a raid on illegal immigrants. (Photograph courtesy of Malaysiakini) Tun Hussein announced that the Home Ministry would increase the number of RELA members from 556,286 to an astonishing 2.5 million within five years

60 Malaysia Human Rights Report 2009 SUARAM continues to argue that RELA should not have powers to act as a law enforcement agency. 96 Conclusion Systemic non-compliance with, and disregard for, human rights standards has led to gross human rights abuses, not only in the police force but also in other law enforcement agencies. The alarming spike in official police death by shooting cases in 2008 and 2009, and the number of teenagers and other young people who are the victims, is indicative of the fact that the police operate within a culture of impunity and sit above the law. Police superiors justify these shootings on standard self-defence claims, and investigations into these deaths generally lack transparency, with charges rarely brought against those involved. The lack of political will to ensure robust investigations into the police is obvious not just in shooting cases, but also in other abuse of power cases. Every time police culprits are not brought to account, the entire force and other law enforcement agencies are sent a clear message that the law does not apply to them. A culture of impunity breeds law enforcement agencies that are more concerned with covering each others backs than upholding the rule of law and proving a safe environment for the public it serves. Unless there is immediate change, whereby police and other law enforcement agencies operate in a more transparent manner and are made accountable, the number of people dying by police bullets, and within police custody, can only be expected to climb further. Likewise, reports of other abuses of power will also continue to escalate. Every complaint of abuse of power is an opportunity to learn from past mistakes and improve the police force, and other law enforcement agencies. Yet the authorities continue to resist demands for systematic change. Instead of using the deaths of teenagers as catalysts for change and putting effective mechanisms in place to ensure against unnecessary deaths in the future, the authorities fail to address these systematic problems. The government s failure to ensure accountability of law enforcement bodies has contributed to the dismal human rights record of law enforcement agencies and means the police force has also lost the people s trust. It is everybody s interest to have a better police force, one that is accountable and transparent. It is better for the communities they serve, the nation as a whole, and better for the police force itself. The best way to effect the necessary improvements to the police force is to open the force up to independent investigation, and immediately establish the IPCMC and coroner s court. A specific police-focused investigation body is necessary, given the broad powers of the police and the high number of complaints made against them. Without an independent investigative body for the police, it is hard to see how the right to life can be better protected. Other law enforcement agencies must also be monitored and made accountable, but this should be done by a separate body. It is time for the government and the police to bravely face these issues. Accountability of the police force can only be a good thing. An independent investigation commission will raise the profile of the police in the public eye, will demand better training for police and reduce the lawlessness that is present in the Malaysian police force. Only when Malaysia is brave enough to start this chapter can we begin to seriously address the well documented human rights violations by the police. Now is the time for the IPCMC. 60

61 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies End notes Parliamentary Oral Reply (18 March 2010) Dewan Rakyat, Reference No: 2357 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 published in the New Straits Times on 11 April 1998 The Malaysia Insider (8 January 2011) Police promise to open up on Glenmarie killings probe, com/malaysia/article/police-promise-toopen-up-on-glenmarie-killings-probe/; accessed 13 April 2011 Office of the United Nations High Commissioner for Human Rights (7-18 June 2010) Statement by the Working Group on Arbitrary Detention upon conclusion of its Mission to Malaysia, h t t p : / / w w w. o h c h r. o r g / e n / N e w s E v e n t s / P a g e s / D i s p l a y N e w s. aspx?newsid=10176&langid=e; accessed 30 March 2011 SUHAKAM (2011) 2010 Annual Report, Kuala Lumpur: SUHAKAM (p.36) Chain-smoking remand is a term used to describe when a person is arrested for investigation purposes into one offence committed in the jurisdiction of one particular Magistrate Court, but after the remand order is obtained is then taken to another Magistrate Court outside that jurisdiction so as to obtain a further remand order on the basis of investigating a different purported offence. Royal Commission to Enhance the Management and Operations of the Royal Malaysian Police (2005) Report of the Commission to Enhance the Management and Operations of the Royal Malaysian Police, Kuala Lumpur (pp ) SUHAKAM (2011) op.cit. (p.38) 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) SUHAKAM (2011) op. cit. (p.38) The Nut Graph (4 March 2010) No charges in police shooting, Ding Jo-Ann, accessed 3 April 2011 Parliamentary Select Committee on the Penal Code and the CPC (2006) op. cit. (p. 71) The Star (2 April 2006) Inquests not held despite being required After a post mortem and statement by police that Kugan had died from fluid accumulation in his lungs, a second, independent, post mortem concluded that death was a result of kidney failure due to severe beatings, and found that Kugan had sustained more than ten severe burn wounds. An independent commission found the cause of death was pulmonary oedema due to acute myocarditis, compounded by blunt force trauma. A Kugan s death was taken to the sessions court in 2010, where only one constable was charged with physically abusing Kugan, although eleven police are believed to be involved in the case. United Nations General Assembly Human Rights Council (8 February 2011) Report of the Working Group on Arbitrary Detention Mission to Malaysia, Sixteenth session Agenda item 33, A/HRC/16/47/Add.2, (p. 6) www2.ohchr.org/english/bodies/hrcouncil/ docs/16session/a.hrc add.2_en.pdf; accessed 30 March

62 Malaysia Human Rights Report United Nations General Assembly Human Rights Council (8 February 2011) Report of the Working Group on Arbitrary Detention Mission to Malaysia, Sixteenth session Agenda item 33, A/HRC/16/47/Add.2, (p. 6) www2.ohchr.org/english/bodies/hrcouncil/ docs/16session/a.hrc add.2_en.pdf; accessed 30 March 2011 The arrests are widely believed to have been political in nature as the candlelight vigil protest was demanding the release of Wong Chin Huat. Wong Chin Huat was arrested under the Sedition Act for urging Malaysians to wear black in protest against the BN s takeover of the Perak state government from Pakatan Rakyat, a move seen by many as unconstitutional. SUHAKAM (23 April 2010) Public Inquiry 5 lawyers, Public Enquiry Report, suhakam.org.my/public_inquiry; accessed 10 April See Memorandum of Civil Society Organisations to the Parliament on the Proposed Special Complaints Commission Bill, 18 December New Straits Times (14 December 2007) Dzaiddin: It s not what we had in mind SUHAKAM (2011) op. cit. (p.36, 38) SUHAKAM (2011) op. cit. (p.36) New Straits Times (1 October 2010) IGP s plan for a polished force, Lee Shi-Ian, Article/; accessed 3 April 2011 The Malaysian Insider (8 September 2010) Home ministry denies Musa s interference claim, Yow Hong Chieh, themalaysianinsider.com/malaysia/article/ home-ministry-denies-musas-interferenceclaim/; accessed 13 April SUHAKAM (2011) op. cit. (p.40) The Malay Mail (2 August 2010) Suhakam regrets police arrests, 30 GMI activists released, suhakam-regrets-police-arrests-30-gmiactivists-released; accessed 13 April 2011 Royal Commission to Enhance the Management and Operations of the Royal Malaysian Police (2005) op. cit. (p ) SUHAKAM (2007) Report of SUHAKAM Public Inquiry into the Incident at KLCC on 28 May 2006, Kuala Lumpur: SUHAKAM (p. 97) New Straits Times (21 August 2009) ISA and Police Act to see changes SUHAKAM (2011) op. cit. (p.15) Special Complaints Commission Bill, D.R. 57/ Norizan required surgery to remove a bullet close to her heart, and have part of her lung removed. Some bones in her right wrist were shattered, leaving her with a permanently damaged arm, and two ribs were broken by the police stepping on her. The New Straits Times (5 February 2010) It was in self-defence, says city CID chief 35 Malaysiakini (25 March 2010) Hisham: No action against Norizan s shooters, Hazlan Zakaria, news/127511; accessed 3 April Malaysiakini (1 April 2010) Gunshot victim Norizan meets home minister, Pathma Subramaniam, com/news/128069; accessed 3 April Bernama (26 May 2010) Report on Fatal Shooting of 18-year-old by Johor Police to be Ready Tomorrow, com/bernama/v3/news_lite.php?id=501297; accessed 21 April

63 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies Malaysian Mirror (1 December 2010) Noodle seller urges probe over police shooting, accessed 13 April 2011 The Malay Mail (15 December 2009) Taser-Powered Police Marhalim Abas & Teoh El Sen, content/21858-taserpowered-police, accessed 24 May 2011 Malaysiakini (24 November 2010) Victim s family cries foul over trigger-happy police, php?name=news&file=article&sid=7098&m ode=thread&order=0&thold=0; accessed 12 April 2011 The Star (29 April 2010) IGP hits out at critics over shooting of teenager, Steven Daniel, asp?file=/2010/4/29/nation/ &sec=nation; accessed 4 April 2011 The Nut Graph (22 March 2010) Are the police shooting to kill? Ding Jo-Ann, accessed 3 April 2011 Ibid. In a letter to The Nut Graph dated 17 May 2010, the ministry said: Although police officers actions may result in death or injury to innocent persons or are not fully sanctioned under the law, they would still be entitled to act. This is on the condition that their intentions are sincere and they genuinely believe that their lives or the lives of those they are protecting are in danger. user_uploads/images/2010/05/25/250510_ POLICEKILL_LETTER1.jpg; accessed 21 April The Malaysian Insider (4 December 2010) Police shot dead 88 in 2009, lawyers reveal, Melissa Chi, com/malaysia/article/police-shot-dead-88- in-2009-lawyers-reveal/, accessed 24 May 2011 The Malaysian Insider (4 December 2010) Police shot dead 88 in 2009, lawyers reveal, Melissa Chi, com/malaysia/article/police-shot-dead-88- in-2009-lawyers-reveal/, accessed 24 May 2011 Ibid. 48 Bernama (16 March 2010) Three Gondol gang members killed in shootout, published at cfm?id= The Jakarta Post (8 April 2010) Police to investigate workers deaths, Indra Harsaputra, com/news/2010/04/08/police-investigateworkers%e2%80%99-deaths.html; accessed 12 April Human Rights Party (9 April 2010) Letter to YAB. Dato Seri Najib Razak regarding Two Indian brothers shot dead by police in Taiping last night. Call for Royal Commission of Inquiry on Police shoot to kill policy with shooting order, 95% local victims are Indians when only 8% population The Star (29 April 20101) IGP hits out at critics over shooting of teenager, Steven Daniel, h t t p : / / t h e s t a r. c o m. my / n e w s / s t o r y. asp?file=/2010/4/29/nation/ &sec=nation; accessed 4 April

64 Malaysia Human Rights Report The Star (29 April 2010) Only one cop opened fire, 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 = / / 4 / 2 9 / nation/ &sec=nation; accessed 4 April 2011 Malaysiakini (3 May 2010) Witness: Aminulrasyid didn t ram car into police, Aidila Razak, news/130821; accessed 3 April 2011 The Star (3 May 2010) Cooperate in investigations into teen s death, PM urges cops, my/news/story.asp?file=/2010/5/3/ nation/ &sec=nation; accessed 4 April Malaysiakini (3 May 2010) Witness: Aminulrasyid didn t ram car into police, Aidila Razak, news/130821; accessed 3 April 2011 The Star (4 September 2010) Investigations into Aminulrasyid s death followed rules, says ministry, posted with permission at investigations_into_aminulrasyids_death_ followed_rules_says_ministry.html; accessed 4 April 2011 The Star (14 December 2010) Aminulrasyid trial: Cop struggles to recall events, Ong Han Sean, asp?file=/2010/12/14/nation/ &sec=nation.com; accessed 4 April Malaysiakini (11 November 2010) No evidence that Aminulrasyid reversed car, Hafiz Yatim, news/147985; accessed 4 April Malaysiakini (29 November 2010) Aminulrasyid trial: 10 rounds from second gun, Aidila Razak, com/news/149438; accessed 4 April Malaysiakini (11 November 2010) No evidence that Aminulrasyid reversed car, Hafiz Yatim, news/147985; accessed 4 April 2011 The New Straits Times (12 November 2010) Aminulrasyid shooting case: Court checks bullet-riddled car The Start (20 October 2010) Aminulrasyid shooting: No bloodstains on rusty parang found in car (Updated), my/news/story.asp?file=/2010/10/20/natio n/ &sec=nation; accessed 4 April 2011 The Star (29 April 2010) Transparent probe a must, my/news/story.asp?file=/2010/4/29/ nation/ &sec=nation; accessed 3 April Bernama (5 July 2010) Four shot dead in attempted robbery at state exco s house, published at story.asp?file=/2010/7/5/nation/ &sec=nation Berita Harian (27 August 2010) Perompak bersenjata pistol, parang tumpas, Oleh Khairul Azran Hussin, articles/ / Article/index_html, accessed 24 May 2011 Malaysiakini (21 November 2010) Family says police executed 15-year-old and two others, accessed 11 April 2011 Ibid. Malaysiakini (21 November 2010) Family says police executed 15-year-old and two others, accessed 11 April

65 Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies Malaysiakini (25 November 2010) Speaker shoots down motion on police shooting, S Pathmawathy, news/149161; accessed 11 April 2011 The Star (9 May 2010) Cop shoots alleged Mat Rempit, Sarban Singh, thestar.my/news/story.asp?file=/2010/5/9/ nation/ &sec=nation, accessed 24 May 2011 Malaysiakini (19 May 2010) Yet another report lodged over police shooting, Jimadie Shah Othman, news/132191, accessed 24 May Wan Ahmad Farid Wan Salleh (8 July 2008) Second Meeting of the First Session of the Twelfth Parliament, Hansard, DR (p. 14) pdf/dr pdf; accessed on 3 December 2008 Parliamentary Reply (14 December 2009) Dewan Negara, Reference Number 2288 The Start (25 October 2010) Open verdict on Gunasegaran who died in police custody (updated) story.asp?file=/2010/10/25/nation/ &sec=nation; accessed 12 April The Star (10 May 2010) Policemen shoot amok; onlooker shot accidentally, Edward R. Henry & Steven Daniel, my/news/story.asp?file=/2010/5/10/nation / &sec=nation, accessed 24 May 2011 Parliamentary written reply, Dewan Negara, First Meeting, Third Session of the Twelfth Parliament, Reference Number 2659 The Star (14 April 2010) 66 died in police custody since 2005, says Hisham The government s inconsistent statistics underscore the unreliability of their figures. For example, in October 2002 Parliament was told there were 6 deaths in custody 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 again to 7 deaths in 2000, 14 in 2001 and 15 in There are similar discrepancies in deaths in custody figures for In May 2004, Parliament was told that 15 detainees died in police custody in 2003, with the number increasing to 23 in a July 2005 report International Secretariat of the World Against Torture (20 December 2010) Malaysia: Follow-up of case MYS _Writ of habeas corpus to free M. K. Selvachandran was rendered academic_omct remains seriously concerned about his safety and detention urgent-interventions/malaysia/2010/12/ d20998/; accessed 31 March 2011 Department of National Registration, Death Certificate, Ulaganathan A/L Muniandy (dated 22 July 2003, registration number C699909) United Nations General Assembly Human Rights Council (8 February 2011) Report of the Working Group on Arbitrary Detention Mission to Malaysia, Sixteenth session Agenda item 33, A/HRC/16/47/Add.2, (p. 11) hrcouncil/docs/16session/a.hrc Add.2_en.pdf; accessed 30 March 2011 Malaysiakini (19 February 2010) SPM school-leaver alleges police brutality, Vasugi Supramanian, news/124672, accessed 24 May Malaysiakini (6 December 2010) Police beat me up, says Aminulrasyid s friend, 65

66 Malaysia Human Rights Report The Star (26 December 2010) Two cops in assault case arrested, M. Kumar, h t t p : / / t h e s t a r. c o m. my / n e w s / s t o r y. asp?file=/2010/12/26/nation/ &sec=nation; accessed 12 April 2011 The Malay Mail (27 December 2010) Court rejects remand on cops who allegedly beat businessman, content/58968-court-rejects-remand-copswho-allegedly-beat-businessman; accessed 12 April 2011 SUARAM (2 August 2010) Nationwide anti- ISA rally in conjunction with 50 years of ISA: Success despite of police brutality! press statement, press-statement-2-august /; accessed 13 April 2011 The Malay Mail (2 August 2010) Suhakam regrets police arrests, 30 GMI activists released, suhakam-regrets-police-arrests-30-gmiactivists-released; accessed 13 April See SUARAM (2008) 2007 Annual report Kuala Lumpur: SUHAKAM (p. 54) The Malaysia Insider (3 November 2010) Bar Council demands RMAF to withdraw threat, Melissa Chi, malaysia/article/bar-council-demands-rmafto-withdraw-threat/; accessed 21 April 2011 Malaysiakini (21 July 2010) Najib, can you guarantee Tharmendran s safety?, accessed 2 April 2011 Centre for Independent Journalism (4 July 2010) Securities Commission s interrogation shows need for journalist protection, Media statement, legal/general_news/centre_for_independent_ journalism_media_statement_securities_ commissions_interrogation_shows_need_for_ journalist_protection.html; accessed 21 April Malaysiakini (2 August 2010) Activist charged for disorderly conduct, Susan Loone, accessed 24 May 2011 This was the result of a suit filed by Kajang councillor Tan Boon Hwa who was questioned with Teoh Beng Hock late into the night on 16 July Malaysiakini ( 19 November 2009) High Court: MACC s night interrogation illegal, news/117824; accessed 14 April 2010 Bernama (15 October 2010) TBH Inquest: Investigating officer denies covering-up evidence, republished at malaysiandigest.com/bahasa-melayu/ tbh-inquest-investigating-officer-deniescovering-up-evidence.html; accessed 13 April The Star (18 May 2009) Ministry out to curb human trafficking, Farik Zolkepli, 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 = / / 5 / 1 8 / nation/ &sec=nation, accessed 27 May 2011 SUARAM (26 August 2010) Changes to Immigration Detention Centres Must Respect Human Rights, Press Statement, &comments&ref=mf, accessed 10 May

67

68 Malaysia Human Rights Report 2009 The right to know is central for upholding other basic rights, for furthering transparency, justice and development. Hand-in-hand with the complementary hnotion of freedom of expression, it underpins democracy. Director-General of UNESCO, Irina Bokova, on World Press Freedom day, 3 May Freedom of expression and freedom of information are fundamental human rights that are integral to the mechanism of a healthy democracy. The theme for World Press Freedom day, on 3 May 2010, was Freedom of Information: The Right to Know. The UN Secretary General and other top UN officials called on governments to promote and embrace the universal right to publicly held information. Journalists should not have to risk intimidation and detention whilst doing their job, to report on information and ideas. 2 To quote UN Secretary General Ban Kimoon, People have a right to information that affects their lives. States have a duty to provide this information. 3 Freedom of information is resisted by the Malaysian government because it would make it more accountable to the public. The government fears that greater scrutiny will ultimately translate into weakened polling results and therefore sees freedom of information as a threat to the BN coalition s power. Until freedom of information is genuinely respected as a right in Malaysia, journalists, bloggers, civilians and even members of parliament remain vulnerable to harassment, and arrests and charges under the Official Secrets Act 1972 (OSA) will continue. Freedom of expression is explicitly protected in Article 10(1) of the Federal constitution and Article 19 of the Universal Declaration of Human Rights. Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. 4 The Malaysian government has publicly supported the concept freedom of expression at a number of regional and international fora, 5 yet continues to refuse to sign the International Covenant on Civil and Political Rights, which would formally bind it to uphold the right of freedom of expression. While the government allowed Speaker s Corners to be re-established on university campuses 6, it simultaneously violates freedom of expression and the right to information 68

69 Freedom of Expression and Information through repressive legislation governing the media, cyberspace, freedom of speech. In 2010 the environment for a free press in Malaysia became increasingly hostile. Home Minister Hishammuddin Tun Hussein announced the establishment of a committee to stop the dissemination of supposed false news. The committee membership would comprise himself, Information, Communications and Culture Minister Dr Rais Yatim and Minister in the Prime Minister s Department Mohamed Nazri Aziz. There are no guidelines for the committee and no avenues of appeal, simply three government ministers controlling the definition of the truth. The Home Ministry continued to subject publications to show-cause letters, police reports, permit problems and suspensions. Journalists were interrogated by authorities for simply doing their job and covering current events. This political pressure resulted in continued self-censorship of the press and distribution outlets, as well as forced resignations and sacking of media personnel. By May 2010, civil society groups were so alarmed by the political intervention in the media and publishing industries that they organised a collective memorandum under the name 528 Tak Nak Potong or, Refuse to Cut. The memorandum demanded a Royal Commission of Inquiry or Parliamentary Select Committee to recommend media law reform, that the authorities refrain from restricting freedom of expression, and that media practitioners stop engaging in self-censorship. 7 The government did not act on these recommendations, and instead of getting better, the climate for freedom of expression in Malaysia deteriorated further as the year progressed. As a result, Malaysia tumbled in Reporters Sans Frontières (RSF) 2010 Press Freedom Index, dropping ten places from 131 in 2009 to 141 in This is the worst ranking for Malaysia in the last 9 years. Chart 1: Malaysia s ranking in RSF s Press Freedom Index 8 The pattern of restrictions demonstrates that restrictions of the media, and other forms or speech and expression, are key tools, used by the BN-government to maintain political power and try to regain its electoral losses in the 2008 General Election. It is not coincidental that media controls have tightened in advance of the next general election, expected in It is not just in the media where freedom of expression is curtailed, but civil society more broadly. Media Ownership and Control Virtually all mainstream newspapers, television, and radio channels are either owned by the component parties of the ruling coalition Barisan Nasional (BN), or media owners loyal to them. For instance, Media Prima Berhad, a corporation with close links to the ruling United Malays National Organisation 69

70 Malaysia Human Rights Report 2009 (UMNO), the dominant political party in the BN coalition, owns English-language newspapers New Straits Times, Malay-language dailies Berita Harian and Harian Metro, and television stations TV3, ntv7, 8TV and TV9. The Redberry Media group now controls Bernama TV, The Malay Mail and The Malaysian Reserve. 9 Utusan Melayu Berhad, closely linked to UMNO, owns Utusan Malaysia, the largestselling Malay-language newspaper, Mingguan Malaysia and Kosmo! The Malaysian Chinese Association (MCA), another component party of the BN, owns the largest-selling English-language daily in Malaysia, The Star and radio station Star RFM, as well as a 42% ownership of Nanyang Press, which publishes the Chinese language Nanyang Siang Pau and China Press. The Sin Chew Daily and Guang Ming Ribao are also closely connected to the BN. The President of the Malaysian Indian Congress (MIC), Samy Vellu, owns Tamil Nesan, with the Tamil afternoon daily Uthaya Surian (launched on 1 May 2010) which run out of the same premises. Bernama is the official government news agency, and TV1 and TV2 are state owned television stations operated by state broadcaster Radio Televisyen Malaysia (RTM), controlled by the Information Ministry. The ruling-bn government thus effectively controls mainstream media editorial policies, resulting in the staunch progovernment bias of much of Malaysia s press. This bias is reflected in coverage, or noncoverage, of political parties and politicians, and sensitive issues such as the Internal Security Act, among others. government and produced by a team of private journalists. The Printing Presses and Publications Act states that publications produced for government (federal or state) do not need annual publishing permits. There is hope that the Selangor Times will open up space in the print media for open and unbiased journalism. Acts used to restrict Freedoms of Information and Expression Although freedom of speech and expression is guaranteed by Article 10 of the Federal Constitution, the Printing Presses and Publications Act 1984 (PPPA), the Official Secrets Act 1972 (OSA), the Sedition Act (1948), the Official Secrets Act (OSA) (1972) and the Communication and Multimedia Act (CMA) are all weapons used to limit freedom of expression. Press freedom is severely restricted, either through direct government repression or self-censorship, brought on by fear that publishing licenses will not be renewed. As RSF identified in 2009, authoritarian restrictions on the media in Malaysia means that journalists are often prevented from properly covering sensitive subjects such as corruption or human rights abuses. 10 The Selangor Times Launched in November 2010, the free Selangor Times focuses on community news and is supported by the PKR Selangor state 70

71 Freedom of Expression and Information The Official Secrets Act (1972) The Official Secrets Act (OSA) criminalises many acts and statements in the name of protecting state secrets. There are no classification guidelines and any official document can be classified as an official secret, even though it may not be a secret or security risk. Instead of working from the assumption that freedom of expression and information are fundamental rights with specified exceptions, 11 the OSA is applied so widely that it is used to deny basic information that is of public interest. Once classified a secret it will always remain so as there are no time limits or reviews for classified information. Classification cannot be questioned in court, meaning that there is no accountability of the Home Minister and the government has unlimited power in determining what is and is not public information. The lack of judicial review also means that charges of non-authorised possession or use of a document can effectively not be challenged. The penalty for violating the OSA is imprisonment for up to seven years. The Printing Presses and Publications Act (1984) The Printing Presses and Publications Act (PPPA) makes it compulsory for mass circulation newspapers to renew publishing permits annually. Decisions are made by the Home Minister and rejections cannot be challenged in a court of law. Furthermore, a permit can be revoked at anytime if a publication contains anything 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. 71

72 Malaysia Human Rights Report 2009 The Sedition Act (1948) The British introduced the Sedition Act (SA) during the colonial era to pre-empt contempt for the administration of justice and silence public discontent. The SA deems unlawful any act, speech, words, publication or any other thing that has any of the following seditious tendencies: 1. to bring into hatred or contempt or to excite disaffection against any ruler or government, including the royal families, or the administration of justice; 2. to excite revolt by unlawful means; 3. to promote feelings of ill-will and hostility between races or classes; 4. to question any matter, right, status, position, privilege, sovereignty, or prerogative established or protected by under Part III of the Constitution (relating to citizenship), Articles 152 (national language), 153 (special rights of the ethnic Malays and natives of Sabah and Sarawak), or 181 (powers relating to the ruling chiefs of Negeri Sembilan). In addition, it is an offence to utter seditious words or print, publish, sell, offer for sale, distribute, reproduce or import any seditious publications. These restrictions work in tandem with the Constitution (Amendment) Act 1971 that makes it unlawful for anyone, including a Member of Parliament in a parliamentary session, to question matters named in point 4 above. Offenders face a fine of up to MYR5, 000 and/or imprisonment of up to three years, with a second offence carrying a sentence of up to five years. The Malaysian Communication and Multimedia Act (1998) Both internet service providers and persons using a content applications service are covered under the Malaysian Communication and Multimedia Act (MCMA). Section 211 prohibits online content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person. Section 233 is concerned with the improper use of network facilities or network service, making it a crime to create or allow for transmission of content that is considered obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person. A person who commits an offence under these sections faces a potential fine up to MYR50,000 and/or up to one years imprisonment. The person is also liable to a further fine of MYR1,000 for every day, or part of a day, during which the offence is continued after the conviction. 72

73 Freedom of Expression and Information Calls for Reform and Government Responses Selangor and Penang Freedom of Information Pakatan Rakyat (PR) led state governments in Selangor and Penang have taken the first steps in improving the situation for freedoms of information and expression in Malaysia, by introducing the country s first freedom of information legislation on 14 July and 1 November respectively. Both governments had pledged to enact freedom of information legislation when they took government in 2008, as part of promoting transparency and accountability. Selangor State Executive Councillor Elizabeth Wong said that the state government tabled the Bill to enhance disclosure of information in the public interest, to provide every individual with a window to access information made at local councils and departments at the state level. 12 The move by the Selangor state government was lauded by most proponents of freedom of information as historical and an important step in legislating human rights. However, this does not mean that supporters of the Bill have not offered criticism of the current draft. The Coalition for Good Governance (CGG), a coalition of fifty-five civil society organisations including SUARAM, has expressed concerns that the version of the bill tabled for debate in July 2010 had serious weaknesses that could jeopardize the spirit of the legislation. The CGG Taskforce on the FOI Legislation has urged for the bill to be strengthened to reflect the true intent of any good FoI legislation. 13 Particular areas that the Taskforce have said need review include: The bill should start with the premise that information belongs to the public, and not the government, therefore giving the public a right to information, rather than an opportunity to seek it. Applicants should accordingly not need to specify the reason why they want the information. 2. Exemptions under the bill should be narrowed and it should be specified that public interest is a legitimate overriding principle. 3. Applicants should always receive a response within the designated timeframes, even if their application is rejected. 4. Any costs of seeking information must reasonable and explicitly stated. 5. The appeal mechanism should be improved, including clear selection criteria and transparent appointment processes for the Appeal Board membership. Also, less power should be centralised with the Chair. 6. There should be some attempt in the legislation to protect whistleblowers. At the end of 2010 the Selangor Bill was undergoing research and public consultation and is expected to be tabled with recommendations for a third reading by April The Penang Freedom of Information Bill is with a select committee for further study and expected to come back to parliament in Both Bills only cover information held by state departments and agencies and do not cover information covered under the OSA. To date, the other two PR-led states, Kelantan and Kedah, have yet to make any commitments to enacting Freedom of Information legislation. 73

74 Malaysia Human Rights Report 2009 Federal government When Najib Razak became Prime Minister in 2009 he spoke of the need for a free media. We need a media both old and new that is empowered to responsibly report what they see, without fear of consequence, and to hold governments and public officials accountable for the results they achieve or do not achieve. 15 In his national budget speech in 2009 Najib also restated the government s intention to enact a whistleblower protection law by 2010, aimed at encouraging informers to expose cases of corruption. 16 Events in 2010 however show no support for these statements. There are no signs of whistleblower protection, leaving people vulnerable to arbitrary persecution and prosecution by the government for revealing official secrets. 17 The BN has still not introduced freedom of information legislation, and BN state assembly persons actively opposed such legislation. Instead of taking positive steps and repealing oppressive laws, the authorities under Najib have taken actions that directly tighten restriction of freedom of expression. Announcements of a committee to stop false news and future guidelines to define cyber-sedition, as well as more talk of internet filtering, were all regressive moves by the government in 2010, exposing the government s fear of the media and internet as vehicles for public dissent. Human rights groups and journalists have long called for the repeal of the PPPA and the need for publishing licenses to be renewed annually. Annual renewal means that newspapers are cautious in discussing sensitive issues, lest they upset the authorities and put their license in jeopardy. In 2010 calls for repeal continued and were echoed by prominent figures including Marina Mahathir, after The Star refused to print one of her columns in an act of self-censorship, and UMNO veteran Tengku Razaleigh Hamzah (see below). Committee to stop lies In July 2010 Home Minister Hishammuddin Tun Hussein announced the establishment of a committee to stop the dissemination of false news. 18 The committee membership would comprise himself, Infor mation, Communications and Culture Minister Dr Rais Yatim and Minister in the Prime Minister s Department Mohamed Nazri Aziz. There are no guidelines for the committee and no avenues of appeal, simply three government ministers controlling the definition of the truth. Attacks on cyber-space Freedom of expression online also came under further attack in It was reported by the Malaysian-Insider on 16 August that the Malaysian government is again considering internet filtering to block undesirable websites, with the Malaysian Communications and Multimedia Commission contracting KPMG to undertake an evaluation. 19 Undesirable websites are usually identified to be pornographic sites, but there is well-founded concern that the government will use this to suppress freedom of expression more widely, blocking comment on politics, race and other sensitive issues. The government shelved the idea of a filter in 2009 after it met with widespread resistance. 20 The government formally acknowledged that there were sufficient existing laws to prevent Internet abuse. 21 On 20 November 2010 Home Minister Hishamuddin announced the government would introduce guidelines defining cybersedition. Although the guidelines were due to be made public at the end of November, they had still not been revealed by the end of the year. 74

75 Freedom of Expression and Information Human rights activists and much of civil society are concerned that the guidelines could lead to either a cyber sedition act or amendments to the current Sedition Act, limiting freedom of expression online. There are genuine fears about the freedom of online media, as well as expression by civil society, as what the government considers sensitive and off-limits is considered freedom of speech and good debate by many in society. Najib had already caused consternation in September 2010 when he called for the Malaysian Communications and Multimedia Commission (MCMC) to take action against websites and social sites posting articles that he considered insulting to Islam. 22 It is important to note that when the Malaysian Multimedia Super Corridor was launched in 1996, there was a ten-point Bill of Guarantees in which the government promised there would be no internet censorship. Internet restrictions contravene this Bill of Guarantees, 23 as well as the government s commitment at the UN in 2006 to ensure the promotion of a free media, including in cyberspace. 24 (emphasis added) Cases of Media Withdrawals and Self- Censorship Criticism of caning women by authorities In March 2010, Marina Mahathir, daughter of former PM Dr Mahathir Mohamad, exposed self-censorship by the English language daily, The Star, when they would not publish an article for her fortnightly column. Marina s article was critical of the caning of three Muslim women for pre-marital sex. An article by The Star s Managing Editor P. Gunasegaran s on the same topic had already caused controversy and resulted in a show cause letter from the Home Ministry. 25 Gunasegaran s Persuasion, not compulsion criticised the caning and said that some laws needed to be revised to better reflect the times but the Selangor Islamic Religious Council (MAIS) lodged a police report against Gunasegaran and Sisters of Islam (who also criticised the canings) for insulting Islam and Syariah law, advocating penalties for Gunasegaram and SIS under the Sedition Act and Penal Code. 26 The Home Ministry issued The Star with a show case letter and police investigated SIS under Section 298(A) of the Penal Code. As a result of the pressure, The Star felt forced to withdraw the article and publish an apology. 27 When Marina s article for her column was submitted, the paper refused to publish it. It is clear that the annual renewal of publication permits served as a threat to The Star, encouraging it to engage in selfcensorship on what had been deemed a sensitive subject. The Centre for Independent Journalism criticised The Star s self-censorship, saying the newspaper had failed to respect the role of the media to provide different perspectives in news, information and opinions that benefit the public s right to information. 28 Discussion of racial discrimination Jamaluddin Hassan, a popular deejay for Chinese-language radio station 98.8FM (Star RFM), was suspended by the station on 19 August after the Malaysian Communications and Multimedia Commission (MCMC) sent a warning letter to the radio station. Jamaluddin s Hi Malaysia talk-show was investigated for content that may upset the sensibilities and sentiments of races in the country, during an interview on 13 August with columnist Ouyang Wen Feng, who spoke about racial discrimination. During the MCMC investigation 98.8FM and Jamaluddin s Facebook pages were removed. 29 Jamaluddin alleged there were elements of a political conspiracy to his suspension, 75

76 Malaysia Human Rights Report 2009 naming Malaysian Chinese Association (MCA) President Chua Soi Lek. (Star Rfm is a subsidiary of The Star Publications, owned by the MCA). Jamaluddin was sacked shortly after, much to the disappointment of colleagues and listeners alike, with colleagues crying about his removal on air and dedicating the programme to him. The fallout continued, with the show s three other deejays also being removed and the Chief Executive Officer and senior programme manager suspended. 30 Resignation of Inspector General of Police In March, Chinese-language daily China Press was issued a show-cause letter by the Home Ministry for misreporting the resignation of then Inspector-General of Police Musa Hassan. Under Section 8A of the Printing Presses and Publications Act 1984, offenders can be jailed up to three years, fined up to RM20, 000 or both if convicted. The China Press apologised for its inaccurate report and suspended its editorin-chief, Teoh Yong Khoon, for two weeks. This, despite the fact that soon after, Home Minister Hishammuddin Hussein confirmed that Musa Hassan s contract would not be extended and his tenure would end in September. Cases of Media Blackouts UMNO veteran criticises government Self-censorship and lack of reporting led to a media blackout in the mainstream press of a speech delivered by Tengku Razaleigh Hamzah, an UMNO veteran. Addressing the UKEC s Fourth Malaysian Student Leaders Summit in Kuala Lumpur on 31 July 2010, Razaleigh condemned the government and called for reforms. Malaysia s economy, he said, had suffered as a result of mismanagement and corruption. Billions have been looted from the country and billions more are being siphoned out as our entire political structure crumbles We have a political class unwilling or unable to address the central issue of the day because they have grown fat and comfortable with a system built on lies and theft. Razaleigh urged students to challenge the sensitive label attached to issues of race that, he says, are manipulated by politicians and the key political reason why [Malaysia] is a sick country. Razaleigh also called for the repeal of the Internal Security Act, Official Secrets Act, Printing and Publications Act and Universities and Colleges Act. 31 Former editor of Berita Harian, Rejal Arbi, wrote a column about the speech, but editor Mior Kamarulbaid refused to publish it. 32 News of the speech was only carried by internet news sites, not subject to the PPPA. Sarawak Report allegations absent in mainstream media Similarly, there has been no reporting in the mainstream media of Sarawak Report s claims about Sarawak Chief Minister Abdul Taib Mahmud s vast international wealth being built on the exploitation of Sarawak s natural resources. The NGO s detailed and alarming allegations are of clear public interest, yet there is a gaping blackout in the mainstream media. Cases curtailing press freedom around elections Alleged racism In April 2010, allegations arose that the Prime Minister s wife, Rosmah Mansur, pressured television station NTV7 over its Chineselanguage talk show, Editor s Time. The show had political content and had aired debates 76

77 Freedom of Expression and Information between politicians from the BN and the Opposition and independent commentators. Rosmah did not complain about the politics, but allegedly complained to management that the show was racist. Producer, Joshua Wong Ngee Choong, resigned in protest when the station seemingly caved to political pressure and self-censored Editor s Time. NTV7 not only decided that the show would not cover the 25 April Hulu Selangor by-election, but prevented it from covering political issues in general and from inviting opposition politicians onto future shows. Wong s resignation and Rosmah s alleged interference was almost blacked out in the mainstream media. Restricting discussion on indigenous politics in Sarawak In April 2010 Galeri Mandarin Nasional, a Chinese news programme on TV2, was forced to pull a documentary called Bakun Dam by the Broadcasting Director-General of state broadcaster Radio Television Malaysia (RTM). Bakun Dam documents the indigenous peoples of Belaga in Sarawak, and their forcible displacement in 1998 by construction of the Bakun Dam. The documentary was pulled after only two out of ten episodes had been screened. Producer Chou Z Lam revealed that his superior claimed some sensitive elements covered in the documentary could harm the ruling party in the upcoming Sibu by-election, as well as the Sarawak state election, due to be called within the year. The RTM removed Chou from his position, replacing him with someone else. 33 Journalists barred from political events Despite being promised press passes, Malaysiakini journalists were again denied press passes to cover the annual UMNO general assembly. In a more regressive step than previous years, the journalists were also barred from using the media room facilities which they had used in the past to file reports. Journalists from other online news portals were also denied access to the media centre. 34 The PAS-led Kedah government also barred journalists from covering the tabling of its Annual Budget, inviting only select media outlets including Harakah, The Star, Sinar Harian, Sin Chew Daily and Makkal Osai. After lodging an appeal, Bernama was also allowed in. PAS said that other media outlets were not invited because of concern the budget session would be marred by false and untrue reports. 35 In 2009 the DAP-led Penang government banned the New Straits Times from reporting on government events, and the ban had not been lifted as of the end of Both PAS and DAP are members of the opposition coalition, PR, which has committed to promote press freedom. Attacking the protection of journalistic sources In June 2010 the Securities Commission (SC) intimidated and harassed business reporters over their investigations into a company called Kenmark Industrial Bhd. One of the journalists held for eight hours was B.K. Sidhu of The Star, whose lawyer was strangely also served with a notice. This can only have been an attempt to further intimidate the journalist and the newspaper. Other journalists were Azlan Abu Bakar from the Business Times, and Dalila Abu Bakar from the Malaysian Reserve. Both the National Union of Journalists and the Centre for Independent Journalism (CIJ) condemned the SC s interrogation of journalists. CIJ said neither the investigation nor the Securities Commission Act 1993 (SCA), recognise[d] the responsibility and duty of journalists, including the need to protect their sources. Under Section 134(5) of the SCA, a 77

78 Malaysia Human Rights Report 2009 person who refuses to answer any questions shall be guilty of an offence and potentially faces a fine of up to MYR 1 million and/ or up to five years in jail. The CIJ further criticised the Investigating Officer s powers under the SCA as very wide and open to abuse, and provisions of the SCA more broadly in violating universal human rights principles. 36 Repressing freedom of expression beyond the media It is not only newspapers that come under attack, but freedom of expression by opposition parties, civil society and non-government organisations are also intimidated, with the intention of repressing dissenting views. Restriction and Suspension of Pakatan Rakyat Newspapers The ruling-bn government has long used the Printing Presses and Publications Act (PPPA) to stifle dissent and alternative opinions, particularly those of opposition parties. Attempts to block opposition parties from communicating with the public were ramped up again in 2010, with all parties in the Pakatan Rakyat opposition coalition targeted by the Home Ministry. In July 2010 the publishing permit for Parti Keadilan Rakyat (PKR) s Suara Keadilan was suspended due to a front page article entitled FELDA Bangkrap (FELDA is bankrupt). 37 The Home Ministry also sent show-cause letters to Harakah and the Rocket, publications by the Parti Islam-SeMalaysia (PAS) and Democratic Action Party (DAP) respectively, for alleged offences under the Printing and Publications Act. 38 Home Ministry officials also raided printing house Angkatan Edaran, which prints Harakah, apparently in search of Suara Keadilan. 39 The licenses for Harakah and the Rocket were renewed on 15 July and 18 August respectively, on the condition that the publications are only sold at party offices and the front pages identify that the publications are only for party members. Due to the timeframe the DAP missed its July printing deadline. The PKR s response over its FELDA article was not considered satisfactory by the Home Minister and so the suspension continued. PKR relied on a legal loophole whereby it distributed non-serialised, or one off, publications with variations in the title, such as Keadilan, Metro Keadilan and Obor Keadilan. The Home Ministry lodged a police report against PKR in July, complaining of continued publication as well as alleging that Keadlian had breached the Official Secrets Act (OSA) by publishing the Ministry s show-cause letter, as it had secret on its front page. 40 Police launched an investigation under the PPPA and the OSA. Vendors were raided by the authorities, and they became increasingly nervous. As a result, the number of vendors willing to distribute PKR publications dropped from 80,000 or 90,000 to only 50,000 or 60,000, with no circulation in East Malaysia. 41 In September PKR halted publication temporarily for a month to redesign its distribution strategies. Suara Keadilan obtained a publishing permit in April 2008, three years after it first applied, only to be suspended for 3 months a year later, along with Harakah. The suspension occurred just before two by-elections were held. While the lifting of the suspension by Najib Razak when he became Prime Minister was interpreted as a positive sign by some, events in the last year highlight that nothing has changed in the BN government as it continues to arbitrarily restrict the voice of its political opponents. 78

79 Freedom of Expression and Information Harassment of Human Rights Groups on Islamic Issues Sisters in Islam once more became the focus of government harassment. A police report was lodged against Sisters of Islam (SIS) in February 2010 by the Selangor Islamic Religious Council (JAIS) when the organisation criticised the caning of three Muslim women for pre-marital sex, the first time women were legally caned in Malaysia. (A police report was also lodged against P. Gunasegaran, the Managing Editor of English language daily The Star.) SIS argued that whipping of women under Shariah Criminal Offences legislation constituted discrimination against Muslim women in Malaysia and violated constitutional guarantees of equality and non-discrimination, as women are not punishable by caning under Section 289 of the civil Criminal Procedure Code. SIS urged the government to review caning as a form of punishment. 42 JAIS alleged that SIS had insulted Islam and Syariah law and a police investigation under Section 298(A) of the Penal Code followed. 43 See Chapter 4 for restrictions placed on students freedom of association, assembly and expression. Titles Banned or held by the BN Government The year also saw 25 titles being banned by the government, for various alleged offences under the Printing and Publications Act and the Sedition Act. (See Table 3.1) The banning of publications is arbitrary in nature with no transparency in the process of determining whether or not a publication should be banned, or any independent review of decisions. Table 3.1: List of Banned Titles, 2010 No Title Author Publisher Printer Language Date of Ban / Gazette no. 1 The March To Putrajaya-Malaysia s New Era Is At Hand 2 isu dalam kartun Februari 2010 Vol:01 Kim Quek Zunar OrienGroup Sdn. Bhd. Anillusca Ideas Enterprise Polar Vista Sdn. Bhd. Naj Press Resources (M) Sdn. Bhd. 3 1 Funny Malaysia Zunar Kinibooks Vinlin Press Sdn. Bhd. 4 Perak Darul Kartun Zunar Sepakat Efektif Sdn. Bhd. 5 Gadis Jelita Yang Matang - Qiang Ba Publishing House Polar Vista Sdn. Bhd. Qi Jian Printing Ltd. Co. English P.U. (A) 326 Bahasa Malaysia P.U. (A) 208 English P.U. (A) 208 Bahasa Malaysia P.U. (A) 208 Mandarin P.U. (A) 67 79

80 Malaysia Human Rights Report Dewi Pesona - Qiang Ba Publishing House 7 Visionary No. 2-3 Ujin Leed Publishing Ltd. Co. 8 X President No. 6 - Da Han Publishing House 9 Hard Magazine - Chun Jia Co. Ltd. Qi Jian Printing Ltd. Co. Leed Publishing Ltd. Co. Ming Yu Printing Ltd. Co. Fei Fan Printing Factory Co. Ltd. 10 Sensasi # Bahasa Malaysia 11 Sensasi - majalah lelaki millennium 12 Antara Kasih & Dosa 13 DENDAM NAFSU Jalinan nafsu Edisi #2 14 JENDELA HATI Kompilasi 4 Cerita Terbaik 15 JENDELA HATI Kompilasi 4 Cerita TerbaikKAMA Bahasa Malaysia Fahmi Ismail Nor Rafeena Jamal Shamsudin Penerbitan MetroZone Sdn. Bhd. ( K) Percetakan Riches Mandarin P.U. (A) 67 Mandarin P.U. (A) 67 Mandarin P.U. (A) 67 Mandarin P.U. (A) 32 Bahasa Malaysia - - Bahasa Malaysia Penerbitan Azam Klaasik - Bahasa Malaysia Casandra - - Bahasa Malaysia 16 Gelora Nafsu # Bahasa Malaysia 17 Gelora Nafsu #6 Nawawi Munir 18 Gelora Nafsu #3 Kompilasi 5 Cerita Terbaik 19 Tips-Tips Bahagia Bersama Pasangan 20 Gelora Nafsu 2 Kompilasi 6 Cerita Terbaik Jamal Shamsudin Penerbitan Azam Klasik Penerbitan Azam Klasik - Penerbitan Azam Klasik Nawawi Munir Penerbitan Azam Klasik - Bahasa Malaysia - Bahasa Malaysia Percetakan Zoom Sd. Bhd. Percetakan Prima Mewah Bahasa Malaysia Bahasa Malaysia P.U. (A) P.U. (A) P.U. (A) P.U. (A) P.U. (A) P.U. (A) P.U. (A) P.U. (A) P.U. (A) P.U. (A) P.U. (A) 13 80

81 Freedom of Expression and Information 21 Sensasi Edisi ke Bahasa Malaysia 22 Kamasutra Jawa & Kuantum Cinta 23 Aan-Penn Eruttarai Valkhai 24 Aanmai Kuraivum- Penmai Kuraivum Dr Razmi Ali Raden Amir, Siti Nurul Ainor B.Sc Tamilvanan Tamilvanan Kalam Ilham Sdn. Bhd. Manimegalai Pirasuram Manimegalai Pirasuram 25 Sex Exercise Tamilvanan Manimegalai Pirasuram - Bahasa Malaysia Maruthi Press Sounthara Printers Sounthara Printers P.U. (A) P.U. (A) 13 Tamil P.U. (A) 16 Tamil P.U. (A) 16 Tamil P.U. (A) 16 (Source: Home Ministry, Malaysia March to Putrajaya March to Putrajaya offers political commentary and analysis on contemporary Malaysian politics including the Government and Opposition political parties, the Constitutional crisis in Perak in 2009, the Altantunya murder, the 2008 General Election, the judiciary, the Royal Malaysian Police and race and religion. The book was critical of the government. About one hundred copies of March to Putrajaya were confiscated in bookshop raids in August 2010, and author Yong Thye Chong (aka Kim Quek) was called in for questioning by police over allegations that parts of the book were seditious. The book was banned by the Home Ministry under the PPA, alleging the book may incite hatred against the Constitution and contained baseless accusation and speculations against national leaders and incite hatred and anger among the people. 44 Kim Quek responded to the ban by publishing his book online at www. themarchtoputrajaya.com, an internet site which has since been blocked in Malaysia by TMnet (a quasi state-owned entity). In November 2010 Kim applied to the high court for leave to apply for judicial review. Political cartoons Collections of political cartoons were banned under the PPPA in Funny Malaysia, Perak Darul Kartun and Isu Dalam Kartun were banned on 24 June (although copies of 1 Funny Malaysia and Perak Darul Kartun were seized in February), and Cartoon-O-Phobia was banned on 24 September, just hours before it was due to be launched. 1 Funny Malaysia and Cartoon-O-Phobia are cartoons by Zunar (Zulkiflee Anawar Ulhaque), while Perak Darul Kartun and Isu Dalam Kartun contain cartoons by Zunar and other cartoonists. Perak Darul Kartun is the second incarnation of Gedung Kartun, Malaysia s first political comic magazine which was launched, confiscated and banned in 2009, for allegedly violating the PPPA by not having a valid printing licence. 45 Gedung Kartun was planned as a bi-monthly magazine and broached the death of Teoh Beng Hock, the 81

82 Malaysia Human Rights Report 2009 ISA and the Port Klang Free Zone scandal. On the front cover was a caricature of Prime Minister Najib Razak waving a Mongolian flag (alluding to links between him and the murder of Mongolian national Altantuya) and shouting Merdeka (Independence). Perak Darul Kartun, with ten pages dedicated to the BN s controversial takeover of power in Perak state, was launched as a book rather than a magazine as books do not require publishing permits. 1 Funny Malaysia is a one-off collection of Zunar s work at Malaysiakini between 2005 and 2009, and also highlights controversial issues in Malaysian politics. Before it was banned, copies were confiscated from vendors in January Isu Dalam Kartun is a monthly magazine, with a publishing permit from the Ministry of Home Affairs. Three issues were published before it was banned. Home Ministry secretary-general Mahmood Adam said that Perak Darul Kartun, 1 Funny Malaysia and Isu Dalam Kartun can influence the people to revolt against the leaders and government policies. The contents are not suitable and detrimental to public order. 47 When Cartoon-O-Phobia was seized on 24 September, Zunar was arrested under the Sedition Act, and reportedly taken to seven police stations and held overnight, before being released on bail. 48 The Home Ministry has not identified which of the cartoons are objectionable. If found guilty he could face up to three years in prison. On 21 August, Malaysiakini reported that a vendor, Hawee Othman, had also been charged under the Sedition Act. 49 On 8 October 2010 the High Court granted leave to challenge the ban on Perak Darul Kartun and 1 Funny Malaysia. As of the end of 2010 the case was still pending. Arrested distribution Although not officially banned, copies of Where is Justice, a book questioning deaths in custody, were confiscated from a vendor in January Such confiscation pressures vendor s to self-censor what they sell. This arrested distribution effectively bans the book in Malaysia without officially needing to do so. In December 2009 Barry Wain, former editor of the Asian Wall Street Journal, launched his biography of former Prime Minister Mahathir Mohamad. The book discloses a loss of some RM100 billion through various financial scandals during Mahathir s premiership. Eight hundred copies of Malaysian Maverick: Mahathir Mohamad in turblent times 51 were seized by the Customs Department in December 2009, 52 and only approved for sale in Malaysia in April There has also been arrested distribution of films in 2010, with two KOMAS films targeted by the authorities. Selepas Tsunami, a documentary intended as a voter and democracy education tool, was seized by Sibu police on 12 May, four days before the Sibu by-election, for allegedly being seditious and a crime under the Election Offences Act. The documentary, which is about political changes that have occurred after the 2008 general elections, was seemingly viewed by police as campaign material. 53 The police backtracked the next day and confirmed that the documentary was not seditious, but they did not return the confiscated copies of the film. While another of KOMAS s films, Gadoh, was not officially banned by the Control and Film Censorship division of the Home Ministry, it was not approved. On the order of the Home Ministry, Special Branch officers blocked the private screening of the film at the Malacca Chinese Assembly Hall on 31 August, to commemorate Merdeka day. Police 82

83 Freedom of Expression and Information reportedly claimed that the film, about racial identity and perceptions, was a potential threat to public order. 54 Gadoh, directed by Brenda Danker and Shahili Abdan, premiered on 22 May 2009, with public screenings since that time and The Star reviewing the movie in June without any problems. NGO publications Editors of Suara Perkasa, published by far right Malay nongovernmental organisation Perkasa, were issued a warning not to do anything to upset national unity after its first issue recommended Deputy Education Minister Wee Ka Siong be arrested under the ISA. The article said that Wee s comments about scholarship awards threatened other awards set aside for Malays and indigenous people. The Home Ministry issued a stern warning to the newsletter s Editor and said they would be closely monitoring the publication. While SUARAM defends Perkasa s right to freedom of expression, we draw the line at irresponsible racist, racially discriminatory and incitement to hate crimes. It must also be noted that they seem to have got off lightly compared to the ongoing harassment SIS and opposition parties are subjected to. Legal reviews of book bans On 25 January 2010, High Court Justice Mohamad Ariff Md Yusof overturned the 2008 ban on the Sisters In Islam (SIS) book, Muslim Women and the Challenge of Islamic Extremism, published in The book is a compilation of essays by international scholars and activists on the impact of fundamentalist Muslim movements on women s rights. The book was banned by former Home Minister Syed Hamid Albar, based on JAKIM s objection to the publication. 57 Justice Mohamad Ariff said that he could not find objective evidence that the book could disrupt public order, and labelled the Home Minister s decision illegal and irrational. The ban was overturned and the Home Minister was ordered to pay costs to SIS. 58 The government is appealing the decision. On 12 February, the same judge upheld the 2006 ban of March 8, documenting the ethnic clashes in Kampung Medan between 8 March and 21 March Authored by SUARAM Chairperson K. Arumugam, March 8 is based on research and eyewitness accounts of the events which left six people dead and more than forty seriously injured. Justice Mohamad Ariff ruled that there was an objective basis for the Deputy Home Minister (who he ruled had the same powers as the Minister) to have banned the book as it could upset ethnic sensitivities and was therefore justified on public order grounds. 59 The fact that the Deputy Minister did not provide the materials upon which he based his decision (a police report and reports from civil servants) was not addressed in the judge s decision, nor was Arumugam s argument that he had the right to be heard before the ban was issued. No costs were ordered against Arumugam, as Justice Mohamad Ariff declared it a public interest case. Curbing Freedom of Speech on the Internet Internet penetration continues to climb in Malaysia, and according to a survey by international company TNS, Malaysians are the heaviest users of social networks in the world. 60 In 2010 there were 217 cases investigated under the Communications and Multimedia Act (CMA). Twenty-three people were fined under the MCA and thirteen charged in court. Thirty-eight of the cases were investigated by police, of which at least five have been taken to court. No action will be taken in 175 of the 83

84 Malaysia Human Rights Report 2009 cases either because the website was hosted overseas, there was a lack of evidence or the complaint was retracted. 61 Investigations under the CMA are not transparent and no detail is given as to what the investigations were about. The government has a schizophrenic relationship with cyberspace and the internet. On the one hand it promotes cyberconnectivity because it is attracted by the lure of international investment and the possibly of internet users propagating government opinions and policies 62. However, on the other hand, the government is afraid of online dissent and so wants to curtail or reshape cyberspace. Exposing the government s fear of the internet, Information Communication and Culture Minister Rais Yatim, at the launch of a 1 Malaysia seminar in January 2010, warned Malaysians, especially Muslims about the internet and social networking services such as Facebook and Twitter, as they were designed by the West and threatened Malaysian culture. 63 These comments caused uproar in cyberspace and the Twitter hashtag #yorais (Twitter s way of setting topics for discussion) peaked at No 3 on the Top 10 Trending Topics Chart on Twitter globally. 64 Attacks on bloggers Bloggers continued to be monitored and targeted in Irwan Abdul Rahman (aka Hassan Skodeng), the Malay Mail s lifestyle and entertainment executive editor, was arrested and charged under Section 233 (1)(a) of the CMA for posting a blog that intended to cause hurt to the feelings of others. Irwan is the first person to be charged under section 233(1)(a) of the Act, which if found guilty, carries a maximum fine of MYR30,000 and/ or a maximum jail term of one year. Irwan s crime was a satirical blog posting entitled TNB to sue WWF over Earth Hour, which jokingly claimed that the national power provider, Tenaga National Berhad (TNB), would sue the World Wildlife Fund (WWF) over lost profits endured during the WWF s 2010 Earth Hour campaign. Irwan engaged in self-censorship and removed the blog after two days when he noticed a spike in visitor numbers, realising it was attracting attention. 65 The case was scheduled in court for 24 November, but was delayed and remained unheard as of the end of Khairul Nizam Abd Ghani was charged in 2010 for comments on his blog, adukataruna.blogspot.com, critical of the late Sultan Iskandar Ismail of the State of Johor. Khairul apologised and withdraw the comments, after which the government said they would not take action. 66 Freedom of Information Landmark decision re. Government Secrets In a landmark ruling on 28 June 2010, the judicial commissioner in the Kuala Lumpur High Court, Hadhariah Syed, declared that the federal government must release the 2004 Concession Agreement between the federal government, the Selangor state government and Syarikat Bekalan Air Selangor Sdn. Bhd. (Syabas), as well as an audit report justifying an increase in water charges. The federal government had previously kept the information out of the public realm, saying the information was classified under the OSA. The case was brought in 2007 by the Coalition against Water Privatisation, including the Malaysian Trade Union Congress (MTUC) President Syed Shahir Syed Mohamud, Klang MP Charles Santiago, and twelve other water consumers, against the Energy, Water and Telecommunications Ministry, the Selangor government and the federal government. Hadhariah said that privatising water 84

85 Freedom of Expression and Information and arbitrarily increasing the tariff meant that the public had been adversely affected by the agreement, and therefore the matter was one of public interest. In her judgement, Hadhariah said that there must be a reasonable explanation why information is classified as secret, and the fact that it had been presented to cabinet was not a sufficient reason. It is...counter to the principles of good governance, accountability, transparency and the interests of the rakyat should come first. 67 Hadhariah said, The disclosure will serve the public interests in keeping the public informed of the working of the government, as well as promote discussion on public affairs. Hadhariah also made it clear that the government could not use the OSA to suppress critique and dissent saying, It also cannot be in the spirit of OSA, to extend protection in cases where the government believes there will be public discussion and criticisms against the government s action. 68 However, on 2 July the High Court granted the federal government a stay of its order that the federal government or Energy, Water and Communications Ministry would not have their right of appeal to the Court of Appeal frustrated. 69 The federal government is not prepared to accept transparency and accountability as a fundamental pillar of good governance. The appeal hearing is expected in The Selangor state government had agreed to make the concession agreement between the state government and Syabas public in February 2010, urging the government to also make the agreement between the three parties public. 70 As of the end of 2010, the state government had not released the agreement. Conclusion The situation for freedoms of expression and information has not improved under Najib s premiership. On the contrary, the environment is even more hostile. Suppression of freedom of expression in an attempt to mute political dissent is a BN strategy to maintain political power. Print, radio and TV media continued to engage in self-censorship and suspended and sacked media personnel who were marked to be rocking the boat, and opposition political party publications came under universal attack. The government shows increasing frustrations about its lack of ability to control cyberspace. Talk of guidelines for cybersedition rings alarm bells for the future. The PR-led states of Penang and Selangor have breathed fresh air into the public life of Malaysia with the introduction of Freedom of Information (FOI) bills. While these bills need improving before their enactment, the space for public information is opening up. It is disappointing that the BN s response has been to dig in its heels and maintain that matters pertaining to public life are secrets. It is also disappointing that other PR-led states have not embraced FOI legislation to date. It is alarming that the BN-government has taken even more regressive steps in 2010 to suppress political and social dissent. The situation for 2011 does not bode well, especially with elections in sight. 85

86 Malaysia Human Rights Report 2009 End Notes 1 United Nations (3 May 2010) Top UN officials stress importance of freedom of information, press statement, news/story.asp?newsid=34570&cr=press+f reedom&cr1; accessed 26 April The Redberry Media group is headed by tycoon Siew Ka Wai, a pro-government industrialist, and business partner Mohamad Al-Amin Abdul Majid, known to be close to Prime Minister Najib Ibid. United Nations (29 April 2010) Public right to information essential to good governance, Ban stresses, press statement, un.org/apps/news/story.asp?newsid=345 36&Cr=journalist&Cr1=; accessed 26 April 2011 UN General Assembly Resolution 217A(III), adopted 10 December 1948 See, for example, the Ha Noi Plan of Action, adopted at the 6th ASEAN Summit December 1998, Hanoi, Vietnam; Report of the World Conference on Human Rights, UN Doc. No. A/CONF.157/24 (Part I), 13 October 1993; the Coolum Declaration on the Commonwealth in the 21st Century: Continuity and Renewal, Australia, The Star (27 jaunary 2010) Speaker s Corner back at UM, Richard Lim, com.my/news/story.asp?file=/2010/1/27/ nation/ &sec=nation; accessed 26 April taknakpotong, Stop Political Intervention into and Self-Censorship in the Media Industry: Memorandum by Malaysians Demanding Press Freedom 2010, wordpress.com/2010/05/12/stop-politicalintervention-into-and-self-censorship-in-themedia-industry-memorandum-by-malaysiansdemanding-press-freedom-2010/; accessed 27 April 2011 Reporters Sans Frontières (2010) Press Freedom Index 2010, press-freedom-index-2010,1034.html; accessed 21 April Reporters Sans Frontières (2009) Press Freedom Index Asia: Authoritarianism prevents press freedom progress in much of Asia, accessed 20 April 2010 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) The Star (15 July 2010) Selangor tables freedom of information Bill, Edward R. Henry, story.asp?sec=nation&file=/2010/7/15/ nation/ , accessed 26 April 2011 Coalition for Good Governance (10 August 2010) Statement, published at right2info.wordpress.com/, accessed 26 April 2011 Coalition for Good Governance (10 August 2010) Statement, published at right2info.wordpress.com/, accessed 26 April 2011 Najib Razak (6 April 2009) Malam Wartawan 2009: Policy, politics and the media a new way forward, speech at the Hotel Istana Kulala Lumpur, id=117&page=1676&speech_cat=2; accessed 25 April

87 Freedom of Expression and Information 16 In April 2008, then-prime Minister Abdullah Ahmad Badawi announced that the government would enactment legislation to protect whistleblowers. 25 The Nut Graph (19 March 2010) Friday sermons to Islam s rescue, thenutgraph.com/friday-sermons-to-islamsrescue/; accessed 29 April SUARAM s 2006, 2007 and 2008 Human Rights Reports document cases where whistleblowers have been persecuted and prosecuted in Malaysia in recent years. Malaysia Today (10 July 2010) Panel set up to stop lies, net/index.php?option=com_content&view= article&id=33011:panel-set-up-to-stop-lies&c atid=19:newscommentaries&itemid=100131; accessed 25 April 2011 Asia Sentinel (17 August 2010) Malaysia s uneasy dance with the web, asiasentinel.com/index.php?option=com_co ntent&task=view&id=2645&itemid=178, accessed 22 April 2011 The Star (8 July 2009) No censorship of the Internet, my/news/story.asp?file=/2009/8/8/ nation/ &sec=nation; accessed 20 April 2010 The Star (12 August 2009) Govt cancels Net filter plan, tech/story.asp?file=/2009/8/12/technology/ &sec=technology; accessed 20 April 2010 The New Straits Times (4 September 2010) Najib calls for MCMC action against those using websites to insult Islam, nst.com.my/nst/articles/ MSC Malaysia Bill of Guarantees (point 7), alaysia+bill+of+guarantees, accessed 15 June 2009 Malaysia (28 April 2006) Aide-Memoire; Malaysia s Candidature to the United Nations Human Rights Council (p. 1) Jais (12 March 2010) Isu Menghina Sebatan Syarie, cited by The Nut Graph (19 March 2010) Friday sermons to Islam s rescue, accessed 29 April 2011 The Star (24 February 2010) No offence meant, my/news/story.asp?file=/2010/2/24/ nation/ &sec=nation; accessed 21 April 2011 Associated Press (4 March 2010) Malaysian daily slammed for killing caning article, h t t p : / / w w w. bu s i n e s s w e e k. c o m / a p / financialnews/d9e7vq380.htm; accessed 22 April 2011 Free Malaysia Today (20 August 2010) Talk show clampdown: It s not a political move, says Ngaim, Patrick Lee, www. malaysia- today. net/ mtcolumns/ newscommentaries/ talk- showclampdown-its-not-a-political-move-saysngiam-; accessed 22 April 2011 The Malaysian Insider (20 August 2010) MCMC disavows involvement in 98.8FM axings, Clara Chooi, themalaysianinsider.com/malaysia/article/ mcmc-disavows-involvement-in-98.8fmaxings; accessed 22 April 2011 Tengku Razaleigh Hamzah (31 July 2010) Now let s have a discussion, Address to the UKEC s Fourth Malaysian Student Leaders Summit in Kuala Lumpur on 31 July 2010, published at net/breakingviews/article/now-lets-have-adiscussion-tengku-razaleigh-hamzah; accessed 22 April

88 Malaysia Human Rights Report Asia Sentinel (17 August 2010) Malaysia s Uneasy Dance with the Web, asiasentinel.com/index.php?option=com_co ntent&task=view&id=2645&itemid=178, accessed 22 April 2011 Malaysiakini (29 April 2010) RTM hits back by tightening grip, com/news/130564, accessed 29 April 2011 Malaysiakini (20 October 2010) Malaysiakini booted from Umno AGM media room, me=news&file=print&sid=5912; accessed 24 April Free Malaysia Today (7 July 2010) Ministry raids Harakah printers; Suara Keadlian set for print, fmtenglish/politics/pakatan-rakyat/7702- ministry-raids-harakah-printers-suarakeadilan-set-for-print-/; accessed 22 April 2010 Bernama (13 July 2010) Home Ministry lodges police report over Keadilan newspaper content, published at malaysiandigest.com/news/38-health/5783- home-ministry-lodges-police-report-overkeadilan-newspaper-content.html; accessed 22 April New Straits Times (14 November 2010) Kedah lets in Bernama but media ban stays, Article/; accessed 24 April 2011 Centre for Independent Journalism (4 July 2010) Securities Commission s interrogation shows need for journalist protection, Media statement, legal/general_news/centre_for_independent_ journalism_media_statement_securities_ commissions_interrogation_shows_need_for_ journalist_protection.html; accessed 25 April The Malaysian Insider (22 September 2010) Suara Keadilan stops as vendors back off, Clara Chooi, com/malaysia/article/suara-keadilan-stopsas-vendors-back-off/; accessed 22 April 2011 Sisters in Islam (17 February 2010) Sisters in Islam condemns caning of three muslim women under syariah law The Nut Graph (19 March 2010) Friday sermons to Islam s rescue, thenutgraph.com/friday-sermons-to-islamsrescue/; accessed 21 April FELDA, the Federal Land Development Authority, is a government agency handling the resettlement of rural poor into newly developed areas. FELDA focuses on opening smallholder farms growing cash crops and is generally only open to ethnic Malays. (The Star (3 Jul 2010) No go for Suara Keadilan, story.asp?sec=nation&file=/2010/7/3/ nation/ ; accessed 22 April 2011) The Star (14 July 2010) Anwar: Harakah, Rocket, Suara Keadilan suspended, h t t p : / / t h e s t a r. c o m. my / n e w s / s t o r y. asp?file=/2010/7/14/nation/ &sec=nation; accessed 22 April The Star (18 October 2010) Cops call in March to Putrajaya author over sedition allegation, M. Kumar, w w w. t h e s t a r. c o m. m y / n e w s / s t o r y. asp?sec=nation&file=/2010/10/18/ nation/ ; Kim Quek (1 October 2010) Press statement by Kim Quek on banning of his book March to Putrajaya, letterssurat/34920-press-statement-by-kimquek-on-banning-of-his-book-the-march-toputrajaya; accessed 22 April 2011 Malaysiakini (25 August 2009) Comic mag with Najib waving Mongolian flag seized, accessed 20 April

89 Freedom of Expression and Information 46 International Freedom of Expressions Exchange (3 February 2010) CIJ calls for an end to book banning, Alert, org/malaysia/2010/02/03/books_banned/; accessed 26 April The Star (12 June 2009) Make art, not war, sprinterfriendly.asp?file=/2009/6/12/ movies/ &sec=movies, accessed 27 April Malaysiakini (24 June 2010) Malaysiakini s 1Funny Malaysia by Zunar banned, accessed 24 November 2010 The Star (26 September 2010) Zunar on police bail, plans to sell Cartoono-phobia, n e w s / s t o r y. a s p? f i l e = / / 9 / 2 6 / nation/ &sec=nation; accessed 24 April 2011 Malaysiakini (21 August 2010) Vendor books Zunar investigated alleged seditious act International Freedom of Expressions Exchange (3 February 2010) CIJ calls for an end to book banning, Alert, org/malaysia/2010/02/03/books_banned/; accessed 26 April 2011 Wain, B. (2009) Malaysian Maverick: Mahathir Mohamad in Turbulent Times, Basingstoke, Hampshire, UK: Palgrave Macmillan. Malaysiakini (23 December 2009) Mahathir book pending approval by Home Ministry, accessed 20 April 2010 Bernama (12 May 2010) Police Seize 22 After the Tsunami VCDs, com/bernama/v5/newsprs.php?id=497546; accessed 24 April 2011 Malaysiakini (1 September 2010) Gadoh film not approved for public screening, Christine Chan, com/news/141665, accessed 26 April Norani Othman (2005) Muslim Women and the Challenge of Islamic Extremism, Petaling Jaya: Sisters In Islam In 2007 it came to light that the banning of religious books is effectively undertaken by the Department of Islamic Development Malaysia (Jabatan Kemajuan Islam Malaysia or JAKIM), rather than the Home Ministry. The Star (25 January 2010) Ban lifted on Sisters in Islam book (updated), com.my/news/story.asp?file=/2010/1/25/na tion/ &sec=nation; accessed 24 April 2011 Associated Press (12 February 2010) Malaysia court upholds ban on book on racial clash, Julia Zappei, published at ticles/32693/?&place=malaysia&section=sect arian-violence; accessed 24 April 2011 The Star (13 October 2010) Survey: Malaysians have most Facebook friends, com.my/news/story.asp?file=/2010/10/13/ nation/ &sec=nation; accessed 24 April 2011 Malaysiakini (26 January 2011) Nazri: No media clampdown in cyber-sedition guide, In November 2010 Prime Minister Najib Razak blogged on the 1 Malaysia site, celebrated Malaysians remarkable online connectivity as the greatest users of social networking sites in the world, as a way of urging them to propagate moderate voices online. (Razak (21 November 2010) Our leadership in online social media, accessed 22 April 2011) 89

90 Malaysia Human Rights Report The Star (16 January 2010) Malaysians advised against being immersed in Facebook, Twitter, h t t p : / / t h e s t a r. c o m. my / n e w s / s t o r y. asp?file=/2010/1/16/nation/ &sec=nation; accessed 22 April 2011 The Star (20 January 2010) Rais comment has Net users boiling, creates global sensation, Jo Timbuong, story.asp?file=/2010/1/20/nation/ &sec=nation; accessed 21 April 2011 The Star (3 September 2010) Journalist charged over TNB parody in blog posting, Nurbaiti Hamdan, my/news/story.asp?file=/2010/9/3/ courts/ &sec=courts; accessed 22 April 2011 Bernama (26 January 2010) No action to be taken against remorseful blogger, published at accessed 25 April 2011 Malaysiakini (28 June 2010) Court orders water documents revealed, malaysiakini.com/news/135816, accessed 25 April 2011 Ibid. The Malaysian Insider (2 July 2010) Putrajaya blocks Syabas information from going public, Yow Hong Chieh, malaysia/article/putrajaya-blocks-syabasinformation-from-going-public/, accessed 25 April Bernama (2 February 2010) Selangor agrees to make Syabas deal public, published at h t t p : / / t h e s t a r. c o m. my / n e w s / s t o r y. asp?file=/2010/2/2/nation/ &sec=nation; accessed 25 April

91

92 Malaysia Human Rights Report 2009 The Barisan Nasional (BN) government continued to flout the fundamental right to freedom of assembly by arresting over 100 individuals participating in peaceful assemblies in People were arrested for peacefully protesting against increases in water and fuel prices, e-voting systems in campus elections, the proposed Goods and Services Tax, the Internal Security Act, distributing leaflets about police powers and installation of large scale electricity infrastructure. Besides making arrests and detaining participants of public assemblies, the police also continued to harass and intimidate individuals and disrupt the Opposition s political events. The serious and repeated violations of freedom of assembly in 2010 continue to demonstrate the Malaysian government s disregard for, not only the recommendations by SUHAKAM, but also Article 20 of the Universal Declaration of Human Rights 1948 and Article 10 of the Federal Constitution. The Trade Unions Act 1959, Societies Act 1966, Universities and University Colleges Act (UUCA) 1971 and Police Act 1967, all impose restrictions on the public exercising freedoms of expression, association and assembly. Restrictions on Freedom of Assembly The Police Act 1967 The right to assemble is a constitutional right in Malaysia, under Article 10 of the Federal Constitution. This right is severely circumscribed however by the Police Act 1967, which confers wide discretionary powers to the police in regulating assemblies, meetings and processions, the power to stop assemblies and the right to use force. The Police Act requires a license be obtained from the police for any public assembly, meeting or procession. License applications are frequently refused and, even if one is issued, conditions can be imposed and the licence may be cancelled at any time, on any ground. Without a license, or upon breach of conditions, the police can interrupt and stop assemblies, meetings or processions. 1 Amendments to the Act in 1987 extended police powers, enabling them 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. The amendments also provided the police with power to use force against participants when closing down events, whether in public or private places. To quote from Section 27A(1), any police officer or any other person acting in aid of a police officer may do all things necessary for dispersing them and for arresting them [ ], and, if any person makes resistance, may use such force as is reasonably necessary for overcoming resistance. The Act further provides police with powers to regulate the playing of music in public places, and to prohibit the display of flags, banners, emblems or placards 2 and the use of loudspeakers, amplifiers and other devices. 3 Persons in violation of the Act, including participants in illegal assemblies, can be fined between MYR 2,000-10,000 and imprisoned for up to one year. 4 The Criminal Procedure Code, Section 98 Since 2007, the government has also used court orders, under Section 98 of the Criminal Procedure Code, to stop public assemblies. These court orders are aimed at preventing obstruction, annoyance or injury to any persons lawfully employed, or danger 92

93 Freedom of Assembly and Association to human life, health or safety, or a riot or any affray. The police have the power to arrest individuals named in court orders if they enter identified areas, nearby venues of planned assemblies. Recommendations for Law Reform and the Government s Response The Human Rights Commission of Malaysia (SUHAKAM) has repeatedly stated that the right to assemble peacefully is a fundamental human right guaranteed by the Malaysian Constitution, and that prohibition of public assemblies is a violation of human rights. As early as 2001, in the Freedom of Assembly report in 2001, SUHAKAM stated that freedom of assembly does not necessarily disrupt peace or lead to public disorder, and called for amendments to regulations and legislation. 5 In the Kesas Highway Incident report, also released in 2001, SUHAKAM specifically recommended: the right to hold assemblies should be applied equally; road-blocks should not be used to prevent assemblies from taking place; police should exercise restraint when dispersing assemblies; police should give three loud and clear warnings to disperse, at 10 minute intervals; sufficient time should be given by the police for the crowd to disperse; and people who are trying to move away after a warning should not be chased and/or assaulted. 6 In March 2007, in a public inquiry report, SUHAKAM took one step further and made the important recommendation that peaceful assemblies should be allowed to proceed without a licence. 7 Despite SUHAKAM s recommendations, police continued to use excessive force, and caused serious injuries to a 21-year old man during a protest in Bandar Mahkota Cheras, Kuala Lumpur. SUHAKAM held another public inquiry, condemning the excessive use of force and unprofessional police conduct, and noting the failure of the authorities to implement its previous recommendations. 8 The international community has also taken an interest in violations of freedom of assembly in Malaysia. In February 2009, when Malaysia s human rights record was scrutinised at the United Nations Human Rights Council s Universal Periodic Review, the Netherlands government recommended: 9 The Police Act be reformed in such a way that the requirement of a police permit for public assemblies of three or more persons does not violate the right to peaceful assembly. In its response in June 2009, the Malaysian government dismissed the recommendation by erroneously equating Malaysia s restrictions to those of government s who had made recommendations for change. 10 Home Minister Hishammuddin Hussein announced in August 2009 that Section 27 of the Police Act would be reviewed to recognise the right of the public to gather peacefully, but public gatherings would only be allowed if they were confined to suitable areas in order to ensure national security and stability. 11 As of 31 December 2010, no amendments to Section 27 of the Police Act had been tabled in Parliament. (see chapter 2) Excessive force and arrests at water rally On 5 December 2010 the police used excessive force against peaceful protesters, once again proving they have no intentions of reforming the law or government actions. 93

94 Malaysia Human Rights Report 2009 Police resort to using a water cannon to disperse peaceful protestors. (Photograph courtesy of Malaysiakini) Riot police charged at peaceful protesters, and tear gas and water cannons were turned on the 1,000-strong crowd. The police action was violent and unprovoked, and did not abate against some individual protesters when they chose to retreat from the rally. Over fifty protesters were arrested for participating in an illegal public assembly including Selangor state assemblyperson Dr. Nasir Hashim (Parti Sosialis Malaysia (PSM chairperson) and a 15 year old boy. Dr. Nasir was arrested on his way to the rally, as were S. Arutchelvan (PSM Secretary General) and A. Sivarajan (PSM Treasurer). 12 The rally was the climax of a Selangor state government campaign opposing a potential MYR 1 billion federal government bail-out of private water provider Syarikat Bekalan Air Selangor (Syabas). 13 The Selangor government argues that water services would be best delivered under state government control, highlighting that Syabas had failed to fulfil the concessionaire agreement, had not provided an efficient service and were charging high fees for public water usage. 14 During the rally a memorandum seeking support for the government s takeover of the state s water industry was delivered to the Yang di-pertuan Agong (the King). Part of the crowd that participated in the 5 December 2010 rally. The banner read Students and citizens reject the 37% water tariff hike. (Photograph courtesy of Malaysiakini) 94

95 Freedom of Assembly and Association Targeting assemblies of human rights defenders The authority s targeting of human rights defenders and intolerance of peaceful assembly continued with the arrest of forty people for protesting the fiftieth anniversary of the Internal Security Act (ISA) on 1 August. Five individuals were arrested in Penang, five in Kelantan and another 30 in Selangor, in connection to nationwide candlelight vigils. Riot police and regular police used excessive use of force when dispersing the crowd and making arrests at Petaling Jaya, Selangor. Among those arrested were Abolish the ISA movement (GMI) chief Syed Ibrahim Syed Noh, Parti Sosialis Malaysia (PSM) secretary-general S Arutchelvan and Parti Keadilan Rakyat supreme council member Badrul Hisham Shaharin. Members of the police Light Strike Force charged at protesters, chasing protesters as they retreated into a shopping mall. Police arrested people connected to the vigil, identified by their red t-shirts and anti-isa t-shirts. Eye witnesses, including Siti Kasim from the Bar Council and SUARAM s director Kua Kia Soong, expressed shock and condemnation at the violence used by police. Petaling Jaya police chief Arjunaidi justified police action saying organisers did not have a permit for the gathering and defied police orders to disperse. Those arrested were held by police until 3am when they were released on bail one at a time. Arrests were also made at anti-isa vigils in Penang, with two people arrested before the vigil began. At a blatant attempt of intimidation, police personnel outnumbered protesters nearly two to one. Police had previously tried to intimidate people into not attending the vigil by posting notices around the Speaker s Square in Georgetown warning against any illegal assembly. Federal Reserve Unit (FRU) officers standing guard at Amcorp Mall. (Photograph courtesy of Malaysiakini) 95

96 Malaysia Human Rights Report 2009 Participants of the anti-isa candlelight vigil at the Amcorp Mall entrance. (Photograph courtesy of Malaysiakini) In Ipoh, Perak, police had tried to prevent people from exercising their right to freedom of assembly by cordoning off the planned protest site and blocking people from entering the area. Two hundred protesters continued to exercise their rights and held a candlelight vigil. No arrests were made. 15 While arrests were not as numerous as 2009 (when 589 people were arrested), the systematic attack on the freedoms of expression and assembly remain unacceptable. In particular, the violence that accompanied the arrests in Selangor was shocking. Restrictions on students freedom of assembly and expression On 15 January 2010, five people were arrested at the Selangor campuses of Universiti Malaya (UM) and Universiti Kebangsaan Malaysia (UKM), when over one hundred students, in peaceful protest, sent a memorandum to the Higher Education Ministry at Putrajaya regarding their concerns about campus electronic voting. Student concerns included questions over the transparency, privacy protection and integrity of the e-voting system. The persons arrested were Shazni Munir Mohd Ithnin, Mohd Syahruldeen Ahmad Rosli, Zainul Faqar Muhammad, Huzaifah Jusof and Muhd Zarimi Mohamad. All five were released without charge following pressure from SUARAM and other members of civil society. This is not the first time that students have been arrested and it appears that some students may be targeted by the authorities because of their assumed political sympathies with the Pakatan Rakyat opposition, or discussion of sensitive subjects. Two of the UM students arrested in 2010 had previously been arrested and charged in December 2009, with three other students (Muhammad Aizat Roslan, 96

97 Freedom of Assembly and Association Mohd Izzuddin Hilmi Mohamad Zaini and Muhammad Saufi Jelani). The students were alleged to have poured petrol on the red carpet when the Prime Minister s wife Rosmah Mansour visited campus in June that year, and drawn anti-rosmah graffiti in a lecture hall. These charges were ultimately dismissed and the students acquitted in 2010, with the prosecution considered not to have made a case. 16 However, it was revealed that political motivations may have been behind the charges, as Shazni was questioned by the Special Branch about such unrelated matters as his comments about the ISA, the death of Teoh Beng Hock and 1Malaysia. 17 Restrictions on indigenous peoples freedom of assembly and expression On 17 March, police brought a historic march of Orang Asli 18 protesters to an end before it had hardly begun. The 2,000-strong march, organised by grassroots groups and agreed to by representatives of Orang Asli in seven states, protested against the government s unfair land policy that denies Orang Asli autonomy over their native lands. The protest also asked for genuine community consultation over the Orang Asli representative in Dewan Negara. Protesters had intended to march from the Putrajaya mosque to the Prime Minister s office to deliver a memorandum signed by over 9,000 Orang Asli, but were stopped by police after 15 minutes. Police banned protesters from chanting slogans and displaying banners and diverted half of the crowd to the Ministry of Rural Development. Finally only five representatives were allowed to submit the memorandum. 19 Harassment of Political Opposition Speeches and Gatherings In early March, opposition coalition members organised a series of events to commemorate the two year anniversary of the 8 March 2008 elections which saw the Pakatan Rakyat (PR) take control of 4 states (in addition to Kelantan) and deny the ruling Barisan Nasional two-thirds majority in Parliament for the first time. The authorities responded by organising police to disrupt events. A dinner organised by the Democratic Action Party on 6 March, was subjected to a police raid, where officers climbed onstage to bring the event to a halt. The police said that the permit granted was to organise a dinner, not a ceramah with political speeches. After negotiations with politicians present, ten minute speeches were allowed as approximately twenty police officers intimidated those present by surrounding the stage while speeches were given. 20 Other events were also stopped by police for the same reason, including a Pakatan Rakyat (PR) event at Sultan Sulaiman Club in Kampung Baru, Kuala Lumpur, where at least one person was arrested. The authorities used the same tactics in 2009 to restrict freedoms of assembly, association and expression of opposition political party members and supporters. 21 Four PR leaders, Anwar Ibrahim, Lim Guan Eng, R. Sivarasa and Salahuddin Ayub, were asked to meet with police about their speeches who were investigating cases of unlawful assembly, sedition and criminal defamation. 22 Cow Head Protest verdicts In July 2010 one person was sentenced to a week in jail and eleven others fined for carrying and abusing a slaughtered cow s head while protesting against the relocation of a Hindu temple on 28 August The sentences were considered lenient and analysts expressed concern that they may further strain race relations

98 Malaysia Human Rights Report 2009 Citizens protesting against the relocation of a Hindu Temple carrying a cow s head, an animal considered sacred by Hindus. (Photograph courtesy of Malaysiakini) Human rights groups opposed the protesters being charged under Section 27 of the Police Act and the Sedition Act as both these laws undermine fundamental human rights. On numerous occasions, SUARAM has advocated the enactment of a Race Relations Act and establishment of a permanent Race Relations Commission to better deal with issues related to racism. See also Chapter 5: Racism and Racial Discrimination Arrests at Public Assemblies Police disrupted a peaceful rally against the proposed Goods and Services Tax (GST) on 1 May, arresting six people (including a 17-year old youth), blocking off the originally-planned venue, and stopping busloads of protestors from entering the city. Police also confiscated twenty protesters identity cards, taking down particulars before returning them. 24 This violation of the constitutionallyenshrined freedoms of expression and assembly highlight the partiality of the police, stopping gatherings and demonstrations which criticise the current government and its policies, while tolerating others which do not. Similar violations were seen at the Gabungan Memprotes Kenaikan Harga Minyak (PROTES), an anti-fuel price hike campaign at Kampung Kerinchi, Selangor, on 2 August. Rozam Azen (assistant to Opposition MP Tian Chua) and Tah Moon Hui (SUARAM coordinator) were detained because they refused to open a car, which did not belong to either of them. The authorities intolerance towards peaceful assembly continued on 7 October when police arrested three people at Kampung Sungai Terentang, Rawang. Villagers were protesting the installation of high-tension electric cables and a transmission tower by Tenaga Nasional Berhad (TNB). Instead of 98

99 Freedom of Assembly and Association maintaining peace during the protest, the police chose to side with the corporation and arrest people when they had committed no crime but exercised their freedoms of assembly and expression. On 11 October, four legal aid volunteers from the Bar Council s Legal Aid Centre, lawyers Jason Kong and Chan Khoon Moh and two chambering students, were detained at Sungai Besi police station for distributing The Police and Your Basic Rights pamphlets to the public at the Bukit Jalil bus terminal in Selangor. Police threatened that they could be in violation of the Sedition Act and hence might be detained under the Internal Security Act. It was National Law Awareness Week 2010 and the leaflet was authored by the Bar Council and had been launched by Minister Nazri Aziz. 25 Freedom of Association The right to freedom of association in Malaysia is severely restricted by numerous laws in Malaysia. Below are examples of some of them. Societies Act 1966 The Societies Act 1966 states that any association consisting of seven or more members must register as a society. The government may refuse to register a new society, impose conditions, or deregister a society. In recent years, opposition parties and NGOs have often faced difficulties in their efforts to register as political parties or societies, including delays and dismissal by the Registrar of Societies (ROS). One example is that of the Socialist Party of Malaysia (Parti Sosialis Malaysia, PSM), which only obtained its legal registration as a political party in 2008, ten years after it first filed its application. NGOs also face such difficulties, for example Amnesty International remains unregistered despite numerous applications since Trade Unions Act 1959 Restrictions to the fundamental right to freedom of association are imposed on trade union officials through the Trade Unions Act. Workers employed under categories labelled confidential, managerial, executive, and security, are prohibited from joining trade unions, as are non-clerical police and military personnel. 26 For those who are able to participate in trade union activities, there are many restrictions on the right to organise. All trade unions must be registered and each union is limited to representing workers in a particular establishment, trade, occupation, or industry or within similar trades, occupations and industries. 27 This restriction has encouraged in-house and enterprise-level unions, keeping the labour movement fragmented. The Director General of Trade Unions has absolute discretion to define similar trades, and may refuse or withdraw registration at any time. Such decisions are discretionary and not subject to challenge in court. Section 28 further states that officers of trade unions cannot hold office in political parties, unless exemptions are sought. Legal Profession Act 1976 Section 46(A)(1) of the Legal Profession Act prohibits members of the Bar Council, the professional body of the legal profession, from hold[ing] 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 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. 99

100 Malaysia Human Rights Report 2009 Amendments to UUCA in 2008 extended the reach of the Act to part-time and graduate students, who were previously exempt. 28 The minister was also given powers to amend, vary or revoke campus orders or internal regulations. 29 Since a 2001 amendment made by then-prime Minister Mahathir Mohamad, UUCA compels undergraduate students and civil servants (including university teachers and lecturers) to sign a loyalty pledge, Aku Janji (literally translated to I Promise ), promising loyalty and good conduct. This was to ensure that students stick to the original purpose of entering universities to gain knowledge, and not indulge in antigovernment activities. 30 Penalties for not signing the pledge include warnings, fines, and loss of monetary benefits such as allowances, demotions and termination of employment. The UUCA, among other things, imposes a variety of prohibitions against students, including prohibiting students, student bodies and organisations from joining, affiliating, or dealing, with political parties and other bodies, as listed by the Minister. Nor can student organisations or students express support for, or opposition to, any political party. 31 Recommendations for reform to The Universities and University Colleges Act and the Government s response In 2009, the UN Special Rapporteur on the Right to Education said students rights must be guaranteed, both on and off campus and urged the parliament to urgently amend the Universities and University Colleges Act (UUCA), so as to recognise and give effect to the freedom of expression and association of university students, as required by any modern and humane developed society. 32 The Special Rapporteur, specifically made mention that this included students right to participate in political activity. 33 There is widespread support for a change in the law, including from the youth wing of UMNO. Khairy Jamaluddin, leader of UMNO s youth wing, condemned the 2010 Cabinet decision to continue to prohibit university students joining political parties as gutless and indicates outdated thinking. 34 Deputy Education Minister Saifuddin Abdullah and MCA Youth Chief Dr Wee Ka Siong also supported the change. 35 Khairy again called for change at the UMNO general assembly in October 2010, reminding the party that young people will account for 49 % of voters in the next general election. 36 The UMNO general assembly itself created controversy when it was alleged that two students from Universiti Kebangsaan Malaysia were endorsed participants. 37 It is also worth noting that UMNO has student clubs for Malaysian students in several countries overseas, including the United Kingdom and France. In April 2010 parliament amended the UUCA to introduce the possibility of appeal against indiscipline charges. 38 While this amendment is welcome in the hope that it will assist in delivering procedural fairness to students, it falls far short of the changes that are required to enable students freedom to exercise their rights of freedom of expression, assembly and association. Freedom of association prohibitions for university students Numerous cases demonstrate that university authorities often target students involved in societies and groups which are not overtly pro-establishment. In May 2010 four Universiti Kebangsaan Malaysia students, Muhammad Hilman bin Idham, Muhammad Ismail bin Aminuddin, Wong Kim Chai and Azlin Shafina Mohamad Adzha, were charged by university authorities after they allegedly showed political support 100

101 Freedom of Assembly and Association for an opposition party during the Hulu Selangor by-election. The university initiated disciplinary proceedings under Section 15(5) (a) of the UUCA which prohibits students from participating in or expressing sympathy or support for any political party. The four students filed for judicial review on the grounds that the charges contravene Article 119 of the Federal Constitution, which specifically states that citizens over the age of 21 are allowed to vote, which is expression and participation in politics. Therefore, by disallowing persons over the age of 21 their right to express and participate in politics, simply because of their student status, is unconstitutional. On September 28, High Court (Appellate and Special Powers) Judge Aziah Ali dismissed their application. The students now worry that the University will take extra-judicial action against them and not award their degrees in June 2011, especially after Wong s Dean s award was withheld in October. 39 In a similar case, where the University Science Malaysia disciplined Soh Sook Hwa under the UUCA for participating in the 2004 general election, the student took the case to the High Court. The High Court dismissed her application to declare Section 15 of the UUCA unconstitutional. Filing for judicial review at the time in 2005, the Kuala Lumpur High Court delivered its decision on her application on 4 June Judge Mohd Zawawi Salleh declared there was no reason for Soh to challenge the provision as Section 15 of the UUCA had been abolished and the act amended. 40 Soh was ordered to pay costs of MYR 3,000. Conclusion The government continues to abuse its power, limiting freedom of assembly and association, apparently fearing losing control of public rhetoric, public space and public power. Recommendations for law reform remain unheeded. Protesters are continuously arrested at protests critical of the government and government policies, with excessive force remaining a feature of the police force. Human rights defenders, student activists, indigenous activists and political opponents come under specific attack. Freedoms of association and assembly are fundamental human rights, fundamental to a healthy democracy. These rights are violated by the government and police, and repeatedly given the stamp of approval by the judiciary, who continue to find against peaceful protesters. 101

102 Malaysia Human Rights Report 2009 End Notes Section 27, Police Act 1967 Section 30, Police Act 1967 Section 28, Police Act 1967 Section 27A(7), Police Act UNHRC (3 June 2009) Report of the Working Group on the Universal Periodic Review of Malaysia, Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, A/HRC/11/30/ Add.1 (p. 7, no. 16) 5 SUHAKAM (2001) Freedom of Assembly: A Report, Kuala Lumpur: SUHAKAM 11 New Straits Times (21 August 2009) ISA and Police Act to see changes SUHAKAM (2001) Inquiry on its Own Motion into the November 5th Incident at the Kesas Highway, Kuala Lumpur: SUHAKAM (pp ) SUHAKAM (2007) Report of SUHAKAM Public Inquiry into the Incident at KLCC on 28 May 2006, Kuala Lumpur: SUHAKAM (p. 97). This was an 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 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. SUHAKAM (2009) Report of SUHAKAM Public Inquiry Into the Allegation of Excessive Use of Force by Law Enforcement Personnel During the Incident of 27th May 2008 at Persiaran Bandar Mahkota Cheras 1, Bandar Mahkota Cheras, Kuala Lumpur: SUHAKAM (p. 36) UNHRC (3 June 2009) Report of the Working Group on the Universal Periodic Review of Malaysia, Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, A/HRC/11/30/ Add.1 (p. 7, no. 16) 12 The Malaysia Insider (6 December 2010) Selangor water protesters tear-gassed:, Boo Su-Lyn, com/malaysia/article/selangor-waterprotesters-tear-gassed/; accessed 26 April Syabas had previously been bailed out in 2009 with a MYR320.8 million loan and is considered to be closely connected to UMNO. (The Malaysian Insider (13 November 2010) Khalid says protest or pay for Selangor water rates hike, Melissa Chi, themalaysianinsider.com/malaysia/article/ khalid-says-protest-or-pay-for-selangor-waterrates-hike; accessed 26 April 2011) The Malaysian Insider (13 November 2010) Khalid says protest or pay for Selangor water rates hike, Melissa Chi, themalaysianinsider.com/malaysia/article/ khalid-says-protest-or-pay-for-selangor-waterrates-hike; accessed 26 April 2011 Malaysiakini (1 August 2010) Barricades greet anti-isa vigils, 36 arrested, Lee Way Loon and Hazlan Zakaria, com/news/138896, accessed 26 April 2011 Bernama (24 September 2010) Five UM students freed of arson, trespassing charges, posted at news/8974-five-um-students-freed-of-arsontresspassing-charges.html; accessed 12 April

103 Freedom of Assembly and Association 17 Malaysiakini (13 August 2010) SB also grilled accused in Rosmah graffiti case, freemalaysiakini.com/modules.php?name=n ews&file=print&sid=3218; accessed 21 April Section 27, Trade Unions Act 1959 Section 2, Trade Unions Act 1959 Section 2, UUCA (2008 Amendments) Orang Asli are the indigenous people of Peninsular Malaysia. Malaysiakini (17 March 2010) Cops halt Orang Asli advance on Putrajaya, Aidila Razak, news/126760, accessed 26 April 2011 The Malaysia Insider (7 March 2010) Cops crash DAP party, Clara Chooi, themalaysianinsider.com/malaysia/article/ Cops-crash-DAP-party/, accessed 26 April 2011 For example, see SUARAM (2010) 2009 Human Rights report, pp The Malaysia Insider (11 March 2010) Police action shows Umno desperate, says Anwar Reuters (27 July 2010) Malaysia fines Muslims for hindu temple protest, Razak Ahmad, idinindia , accessed 26 April 2011 Malaysiakini (1 May 2010) May day: Police arrest six anti-gst protesters, malaysiakini.com/news/130700, accessed 26 April 2011 Kuala Lumpur Legal Aid Centre (19 October 2010) Legal Aid lawyers and volunteers denied right to educate community, com/articles/legal%20aid%20lawyers%20 and%20volunteers%20denied%20right%20to%20 educate%20community.html; The Malaysian Bar (11 October 2010) Detention of legal aid volunteers highlights need for increased awareness of rights, Press statement, press_statements/press_release_detention_of_legal_ aid_volunteers_highlights_need_for_increased_ awareness_of_rights.html, accessed 25 May Section 12, UUCA (2008 Amendments) New Straits Times (25 January 2002) Undergrads to sign good-conduct pledge Section 15, UUCA (2008 Amendments) Report of the Special Rapporteur on the right to education, Vernor MuñozVillalobos, Addendum: Mission to Malaysia, A/ HRC/11/8/Add.2, 20 March 2009 (para. 76, p. 23) Ibid. (para. 87, p. 27) The Malaysian Insider (11 August 2010) Cabinet decision on undergrads in politics is gutless: Khairy, themalaysianinsider.com/malaysia/article/ cabinet-decision-on-undergrads-in-politics-isgutless-khairy/, accessed 26 April 2011 Ibid. 36 AFP (20 October 2010) Malaysia pressured to drop ban on student politics published at asia/202338/malaysia-pressured-to-dropban-on-student-politics, accessed 26 April Khairy voiced similar sentiments when amendments to UUCA were discussed in 2008 though not so angry, although he supported the governments amendments. (Third Meeting of the First Session of the Twelfth Parliament, Hansard, DR (pp ) pdf, accessed 15 June 2009) 37 Malaysiakini (20 October 2010) UKM students involved in Umno general assembly, Hazlan Zakaria, com/news/145859, accessed 26 April

104 38 39 Bernama (11 April 2010) AUKU to be amended to allow appeal by students, published at category/tags/auku, accessed 26 April 2011 Malaysiakini (15 October 2010) UKM withholds dean s award for one of UKM4, Joseph Sipalan, com/news/145428, accessed 26 April Bernama (4 June 2010) Former USM student fails to challenge UUCA, php?id=503669; accessed 12 April 2011

105

106 Malaysia Human Rights Report 2009 Freedom of religion is guaranteed under Article 11 of the Federal Constitution. In addition, Article 3 of the Federal Constitution provides that while Islam is the religion of the Federation, other religions may be practiced in peace and harmony. Despite this, religious minority groups increasingly feel the government elevates Sunni Islam over all other faiths in ways that restrict their freedom of religion. While the Federal Constitution guarantees freedom of religion, it conflates ethnicity with religion in a problematic way. An ethnically Malay person is defined as, among other things, a person who professes the religion of Islam. 1 Politicisation of religion has increased as competition intensifies between the two largest Malay-Muslim political parties, the opposition Pan-Malaysian Islamic Party (Parti Islam Se- Malaysia, PAS) and the dominant party in the ruling Barisan Nasional (BN) coalition, United Malays National Organisation (UMNO). After suffering significant losses in both the Parliament and state assemblies, the UMNO-dominated BN government has sought to regain the Malay majority vote by asserting UMNO as the defender of Islam and the Malays. This trend worsened in This politicisation of religion has meant that important human rights issues associated with freedom of religion receive little attention, and even less protection. The rights of Muslims to leave Islam, the rights of non- Muslims particularly in regard to family law - when a partner is Muslim or is considered Muslim and the religious rights of children continue to be unresolved, with several new cases surfacing in The increasing politicisation of religion in 2010 has also worsened religious tensions, with the most well known example being the continued legal battle over which religious groups can use the word Allah. This legal battle was started by the government two years ago, and continues to be a highly contentious issue at the end of Similarly, tensions amongst the Hindu community remain high as a result of how the government handled an anti-hindu protest in 2009, among other things. Open interfaith dialogue between divergent Muslim and non-muslim communities is not a priority for the government, although it is desperately needed. Legal arguments about Apostasy Legal and constitutional experts hold divergent views on whether the Federal Constitution allows action to be taken against apostates. The legal argument raised to support action relies on Articles 3(1) and 11(4) of the Constitution limiting Article 11, which guarantees the freedom of religion. Article 3(1) grants Islam special status as Malaysia s official religion and Article 11(4) 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. SUARAM is among those who believe that freedom of religion is an absolute and that the intention of the Constitution is to protect freedom of religion, and a person s right to choose their religion. While Article 3(1) makes clear that Islam is the religion of the Federation;, but other religions may be practiced in peace and harmony in any part of the Federation. Article 12(3), which states 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, specifically provides for freedom of religion. While Article 11(4) permits restrictions on 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. 106

107 Freedom of Religion and Matters Pertaining to Religion Legal experts highlight that it is not within the competence of state legislatures to make laws prohibiting Muslims from renouncing their faith. Syariah courts and the states only have jurisdiction over persons who profess Islam. A person who no longer professes Islam following renunciation should accordingly be free from the jurisdiction of Syariah courts and Islamic laws. In practice it is nearly impossible for individuals who have renounced Islam and embraced another faith to obtain official recognition of their decision. The civil courts largely take the view that Syariah courts have exclusive jurisdiction over apostasy cases. In May 2008, in an extremely rare judgement, the Penang Syariah High 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. Siti converted to Islam in July 1998 to marry a Muslim, but upon separation a few months later claimed that she had maintained her Buddhist faith. The Penang state Islamic Council lost their appeal against the decision in March 2009, with the Syariah Appellate Court upholding the decision, permitting Tan Ean Huang to return to Buddhism. Although the judgements of the Syariah High Court and the Appellate Court were welcomed by advocates of freedom of religion, the fact that permission needed to be obtained from the Syariah Court remains an issue of concern. Advocates of freedom of religion believe that religion is a personal choice that should not require sanctioning by a court. Conversion Disputes and Legal Jurisdiction Conversion of deceased persons An increasing number of disputes over the religion of deceased persons who had purportedly converted to Islam without the knowledge of their families have surfaced in recent years. The families have disputed the conversions so that they may give their family member a burial according to their religious rites, and access the partner s estate. The issue of legal jurisdiction on such cases remains contentious. Article 121(1A) of the Federal Constitution stipulates that civil courts have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. Article 121(1A) was inserted in 1988 to prevent overlapping jurisdiction and conflicting decisions by the civil and Islamic courts. As a result, civil courts have ruled that they do not have jurisdiction to determine the religion of diseased persons whose conversions are disputed by their families. In 2010 a Court of Appeal and the Penang High Court both ruled that civil courts have no jurisdiction to determine religious status and that jurisdiction lays exclusively in the Syariah Court. This is problematic on a number of levels. On 20 August 2010, the Court of Appeal ruled that the religion of the late Sergeant M. Moorthy, well known in Malaysia for climbing Mount Everest, could only be determined by a Syariah court. Moorthy s wife, Kaliammal, disputes that he had converted to Islam, and lodged a summons in 2005 seeking a declaration that he was Hindu. 2 Kaliammal appealed the decision to the Federal Court, which on 25 January 2011 ruled that Kaliammal could not appeal the High Court decision and her late husband s religion could only be determined by the Syariah Court. 3 On 4 August 2010 the Penang High Court ruled that S. Banggarma, who identifies as a Hindu, is actually a Muslim and that if she wishes to nullify her conversion she needs to go the Syariah Court. Her lawyer rejects the directive to go to the Syariah court as 107

108 Malaysia Human Rights Report 2009 Banggarma s case is not one of renunciation or apostasy, but an unconstitutional and unlawful conversion of a minor to Islam that needs to be nullified. 4 Judicial Commissioner Yaakob Sam seemingly accepted that Banggarma had been unwittingly converted while under the care of a welfare home when she was seven years old. Banggarma only discovered her conversion when she went to register her marriage, and disputes the Welfare Department s claim that her father converted her six years beforehand, arguing that the welfare home would not have converted her in 1989 if she became a Muslim in Banggarma is appealing to the Court of Appeal, on the grounds that her conversion was unlawful as Section 80 of the Penang Administration of Islamic Affairs Enactment 1993 states that no child under the age of 18 can be converted to Islam without the parents permission. Banggarma with her birth cert (right) and conversion certificate. (Photograph courtesy of Malaysiakini) Conversion of children by one parent Cases of unilateral conversions of children continue, where one spouse, usually the father, converts to Islam and then converts the child(ren) without the other parent s knowledge or consent. Unilateral conversion to Islam is often a tool to win custody of children through a Syariah court order. The jurisdiction for contesting such cases is confused. Civil courts in recent years have abdicated their responsibilities, maintaining that Syariah courts have exclusive jurisdiction. Non-Muslims cannot appear in Syariah courts and lawyers believe that a Syariah court would be more likely to rule in favour of the Muslim parent in custody cases. Indira Gandhi s success at appeal in a civil court in 2010 may be a signal that the civil courts are reclaiming jurisdiction. In April 2009 Indira Gandhi challenged the conversion of her three children who were secretly converted to Islam by their father Mohd Ridzuan. A Syariah court granted the father custody over their children in 2009, but this was overturned on 3 April 2010 in a landmark ruling by a civil court who transferred custody back to Indira. 6 Indira s youngest child was living with the father and had not been returned to her by the end of After the custody ruling, the civil court, in July 2010, allowed Indira to contest her children s conversion. In allowing the case, Justice Zainal Adzam Abdul Ghani said the matter was of public interest. 7 While this decision is welcomed, it must be remembered that this is the decision of one judge and Shamala Sathiyaseelan s case remains unresolved. Shamala is fighting for full custody of her two children who were converted to Islam by their father without her knowledge. In April 2010, just days after the decision in Indira Gandhi s case, the Court of Appeal referred constitutional matters to the Federal Court. When the case got to the Federal Court on 12 November however, it refused to consider the case because Shamala was not present, ruling that she must return to Malaysia in order to seek a court decision. This decision is not a reasonable one, and would place Shamala s custody rights in jeopardy, the precise reason forcing her to leave Malaysia in the first place. Shamala left 108

109 Freedom of Religion and Matters Pertaining to Religion Malaysia in 2004 so that a Syariah court could not give custody to the children s father based on the fact that he had unilaterally converted them to Islam. The Bar Council criticised the Federal Court for failing to live up to its responsibility to resolve fundamental questions that affect public interest, including constitutional questions and jurisdictional conflict. The Bar Council said that the Federal Court ought to fulfil its responsibility to right an injustice, no matter how difficult or divisive the issues are, suggesting the court had purposely chosen to avoid the matters raised. 8 The Federal Court could have exercised discretion and heard the case and made a ruling on important constitutional matters that affect cases beyond Shamala s. Instead, the decision could have wide adverse ramifications. Ambiga Sreenevan, former Bar Council president and part of Shamala s legal team, said that parents in such a situation may feel they cannot seek protection of the court, but feel that their interests will be better protected by leaving the jurisdiction of the court entirely and leaving Malaysia. 9 In November 2010, the custody case of child Tan Yi Min was heard by the civil court. Tan Yi Min had been living with her father since the parents separated in Her mother, a convert to Islam, took her from school, showing the school principal a Syariah Court order, of which the father knew nothing. Yan Ti Min was converted to Islam by the mother with the father s consent. 10 Proposed legal changes Kedah PKR Youth vice-chairperson Gooi Hsiao Leung, also Tan Yi Min s father s lawyer, publicly advocated in November 2010 for all matrimonial disputes for civil law marriages to be handled by civil courts. Gooi argued that the current confused situation resulted in ultimate primacy of the Syariah Court, subjugating the rights of non-muslim parents. 11 In 2009, following public outcry about Indira Gandhi s case, Cabinet declared that religious conversion of children would not be allowed without both parents consent. Many believe that this is the intention of the precise intention of the Constitution when it says child conversions should be decided by the parent. Cabinet also said that in cases where there may be disputes, a child s religion is the common religion at the time of the parents marriage. Amendments were subsequently planned to the Law Reform (Marriage and Divorce) Act 1976, Administration of Islamic Law (Federal Territories) Act 1993 and Islamic Family Law (Federal Territories) Act The amendments would have ramifications for the conversion of a child s religion, the right to custody of children, the maintenance of children and wife, and the division of matrimonial assets, among other things. These amendments were welcomed by many, but Cabinet proved beholden to conservative Muslim religious opinion over civil law. Cabinet s decision was strongly condemned by the federal opposition Pan- Malaysian Islamic Party (PAS) and some Muslim NGOs, who declared this was contrary to Islamic laws and the Constitution. Their complaints gained traction, and the amendments were put on hold when the Conference of Rulers decided that any legislative amendments pertaining to matters of religious conversion must first be referred to state religious authorities. As of 2010, there had been no progress in this area and children s religion can still be changed without their or one of their parent s consent. The government s retreat on this important matter shows a lack of political will to protect the religious freedoms of children and families, choosing instead to placate vocal conservative Muslim NGOs in a vain hope to 109

110 Malaysia Human Rights Report 2009 secure Malay-Muslim votes. As a result, the religious status of children remain fragile, lacking support from a legal system that does not equally value each parent s right to take responsibility for their children, nor does it value the child s right to religious freedom. The issue of unilateral child conversions could have been resolved by now, but the government, parliament and the Federal Court have backed away from making decisive decisions to protect the religious freedoms of children and non-muslim family members. Clear laws and clear jurisdiction are necessary to prevent unilateral conversion of children. Deviationist Teachings and Unauthorised Islamic Practices and Expressions Islamic authorities have been vested with broad and unchecked power over a wide range of things that can be considered a religious matter at both state and federal levels. Amongst other things, Islamic authorities have the power of defining true Islam. If Muslims do not practice their religion in line with what has been defined as true, they can be subject to harassment, arrest and imprisonment. Only Sunni Islam is considered legal, with other forms of Islam outlawed. Minority Islamic congregations are frequently labelled deviationist, although there is no clear definition of this term. Followers of divergent Islamic beliefs are forced to worship behind closed doors, fearful that they will picked up in the next round of arrests for exercising their right to freedom of religion. State and federal territory laws (such as the Administration of Islamic Law Enactment 1989 for Selangor and the Syariah Criminal Offences Act 1997 for the Federal Territories) assign exclusive powers to mufti 12 to issue, amend and revoke fatwa 13. It is a crime for persons to hold or disseminate opinions, or even own books, contrary to fatwa, Islamic teachings and Islamic law. This effectively stifles debate within the diverse body of Islam and enables a few people to define the truth about the religion. The Shi a denomination of Islam, estimated at 40,000, has been targeted many times over the years. 15 December 2010 saw the greatest number of arrests of a deviant group, when approximately two hundred Hauzah Ar Ridha Alaihissalam Shi a Muslims, mostly Malays, were arrested by the Selangor Islamic Religious Department (JAIS), some under ISA. JAIS said that the worshipers activities were a security threat and those arrested may be charged with the teachings of a deviationist movement, which can attract a two year prison sentence. 14 National media ran sensationalist and negative stories about Shiites, JAIS said special detention centres should be build for deviationists as they were so dangerous they needed to be segregated from other prisoners, 15 and further complained that Shiite followers were resilient against ISA. 16 The rector at the International Islamic University of Malaysia also joined, assuring authorities that stern action would be taken against any student Shiite followers. 17 A court hearing was set for 20 January Since October 2000, six persons have been arrested under ISA for no reason other than being practising Shiites, with four incarcerated at the end of Both the current Perlis mufti Dr Juanda Jaya, and his predecessor Dr Mohd Asri Zainul Abidin, condemned the arrest of worshippers, accusing the government of allowing Talibanlike behaviour in only allowing one school of Islamic thought and denying people their right to religious freedom. 18 Shiite community leader Kamil Zuhairi Abdul Aziz lodged a protest letter to SUHAKAM following the raid. 110

111 Freedom of Religion and Matters Pertaining to Religion Mohd Asri is widely known and respected for his liberal approach to Islam and the fact that he is vocal about his differences of opinion with some other Islamic scholars and authorities in Malaysia. Mohd Asri was arrested days after the Malaysian Syariah Lawyers Association submitted a memorandum to the King, opposing his proposed appointment as the new president of the Islamic Dakwah Foundation. Charged with conducting a religious lecture in October 2009 without certification of authority under Section 119(1) of the Selangor Islamic Religious Administration Enactment 2003, Mohd Asri faces a potential jail sentence of up to two years and/or a fine of up to MYR3,000. Legislated Islamic Norms, Values and Morals and calls for reform Not only are Muslims in Malaysia told which form of Islam to worship, but also how to interpret and define Islamic norms, values, and morals. These are codified into state legislation and directly impose wide restrictions on Muslims, and indirectly on non-muslims. Syariah criminal laws provide for close surveillance and tight policing of Muslims immorality including prohibition of alcohol consumption, gambling, and khalwat; 19 the enforcement of fasting during the month of Ramadan; observance of prayers; and decency requirements (affecting dress, social activities and places of socialising). Islamic law is under state and federal territory jurisdiction, as stated in List II, Ninth Schedule of the Federal Constitution. 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 MYR3,000 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 MYR5,000 fine. Under Section 35, those found guilty of committing maksiat 20 can face a jail term of up to three years and/or a MYR5,000 fine. Over the years, human rights 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 legislation is vague and overly broadly, and prone to manipulation and abuse by enforcement officers. State Islamic authorities have the power to gazette fatwa, however not all gazetted fatwa become public knowledge, resulting in gaps between enforcement and public awareness. Fatwa can 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. 21 Enforcement of both fatwa and Syariah criminal law is not as consistent or widespread as enforcement of secular criminal laws. The often sporadic and arbitrary enforcement of these laws serves to heighten their power, as there is always a possibility of arrest, as well as resulting in selective prosecution and victimisation. Women and Islam Some state Syariah criminal offences laws are clearly discriminatory against women, contravening Article 8 of the Federal Constitution which guarantees equality before the law. The Terengganu Syariah Criminal Offences (Takzir) 2001 has provisions that specifically discriminate against, and persecute, women. Section 48 makes it an offence for a virgin woman, without any reasonable excuse under Hukum Syarak (Syariah laws), to abscond from the custody of her parents or legal guardian. In addition, Section 35 states that any woman, who exposes any part of her body 111

112 Malaysia Human Rights Report 2009 that arouses passion in any public place, is liable for a fine of MYR1,000 or a jail term of up to six months. Clothing and make-up restrictions were placed on women employees in Kota Bharu 2006 and 2008, with women and their clothing held responsible for rape. Those who do not adhere to the regulation can be fined up to MYR500 under the municipal council s by-law. 22 Authorities are often guilty of exploiting and sensationalising arrests of women under Syariah law. On many occasions, the press are present at arrests and raids and sensationalise stories, resulting in public humiliation, intimidation and selective punishment. In 2009, the sentencing of Kartika Sari Dewi Shukarno to six strokes of the cane and a fine of MYR5,000 for consuming alcohol led to a public outcry and international condemnation. A legal debate ensued as to whether a woman could in fact be caned by the state: Section 289 of the Criminal Procedure Code exempts women from the whipping sentence, whereas Section 125 of the Syariah Criminal Procedure Enactment specifies how a woman should be caned. Following the public outcry over Kartika s sentence, the Syariah Court reviewed its own decision and in September 2009, only to uphold the original caning sentence. In March 2010, however, Kartika had her caning sentence commuted by the Sultan of Pahang to three weeks community service. The authorities effectively tried to shut down the debate on caning women, but caning will continue to be a human rights violation and the legal debate will continue. When three women were caned under Syariah law for pre-marital sex in 2010, those who spoke in favour of the women s rights and against corporal punishment were Kartika Sari Dewi Shukarno during an interview with Malaysiakini - 1 February (Photograph courtesy of Malaysiakini) 112

113 Freedom of Religion and Matters Pertaining to Religion targeted. Police reports were lodged by the Selangor Islamic Religious Council (MAIS) against a journalist and Sisters of Islam NGO for criticising the canings and therefore, apparently, insulting Islam and Syariah law. MAIS advocated penalties under the Sedition Act and Penal Code. 23 (See Chapter 3: Freedom of Expression and Information for more discussion) Sisters in Islam The NGO, Sisters in Islam (SIS) continue to be targeted by religious authorities and conservative Muslim NGOs who are uncomfortable with SIS s advocacy on behalf of Muslim women and human rights. In 2010, after SIS was outspoken against caning of women under Syariah law, this harassment continued in the form of condemnations, complaints and police reports. On 22 March 2010, a group called Dewan Pemuda Masjid Malaysia (Malaysian Assembly of Mosque Youth, MAMY) filed a summons at the High Court to stop SIS using its name on the grounds that the word Islam was controlled and limited by the Registrar of Companies, and because SIS causes harm and confusion among Muslims by making statements that contradict the teachings of Islam. The High Court struck off the application on 29 October 2010, giving SIS permission to continue to use the name Sisters in Islam. 24 Sexuality and Trans People Religious authorities have a track record of using Islam to intrude on the private lives of citizens, especially members of the GLBTI (Gay, Lesbian, Bisexual, Trans and Intersex) community. In recent years, many transsexuals have been subjected to serious human rights abuses in Malaysia. In 2007, SUARAM documented the case of Ayu, a transsexual who was arrested and 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. Ayu was seriously beaten by JAIM officials when she was arrested, and while in detention. As a result of the assault, Ayu had to undergo surgery for a pre-existing abdominal hernia condition which was aggravated by the assault. 25 In October 2008, the National Fatwa Council issued a fatwa which ruled that Islam forbids young women from supposedly behaving and dressing like men. 26 Fatine s case is particularly concerning as it exposed the virulent discrimination of the federal government, not just religious authorities, towards transsexuals. Fatine, a Malaysian, was granted asylum in the United Kingdom in June Fatine was forced to apply for asylum after her case attracted strong negative media coverage in Malaysia, condemnation and threats by the government. There were wide fears for Fatine s safety were she to return to Malaysia, and it was expected that she would not be respected as a transsexual and would be prosecuted under Malaysian laws that criminalise homosexuality and cross-dressing. Fatine s case became known after her original application for residency in the UK had been rejected and she needed to return to Malaysia to reapply. Immigration directorgeneral Abdul Rahman Othman publicly declared that Fatine and her relationship with a UK man had brought great shame to Malaysia, and threatened to confiscate Fatine s passport if she returned to Malaysia

114 Malaysia Human Rights Report 2009 Prohibition on Proselytising of Muslims Article 11(4) of the Federal Constitution and Islamic Syariah laws prohibit the proselytising of Muslims by members of other religions. (It is not a crime for Muslims to preach Islamic doctrines and attempt to convert people of other faiths.) Penalties for proselytising of Muslims vary according to the different state Syariah laws. In Kelantan, for example, the punishment for those found guilty of trying to convert Muslims may face a maximum penalty of up to six strokes of the cane and five years in prison. People of other religions have been arrested by police without investigation, purely on the basis of one complaint. In 2009 nine Christian students were arrested when one Muslim student filed a complaint that they were proselytising. Police decided, after arresting them that they were actually handing out questionnaires on Christianity and were not trying to convert Muslims. Baseless arrests do nothing to encourage inter-religious discourse and harmony, as they remind non-muslims who discuss their faiths with Muslims that they can be charged for illegally proselytising. The legal battle over the word Allah Indigenous Christians in Sabah and Sarawak mainly speak Malay and have widely used the word Allah for decades without incident. However, in January 2008 then-home Minister Syed Hamid Albar, not state religious authorities, prohibited the Roman Catholic newspaper The Herald from using the word Allah to refer to the Christian God, purporting it would confuse Muslims (possibly leading them away from Islam) and was a matter of national security. A protest against the usage of the word Allah by non-muslim at the Kampung Baru mosque, Kuala Lumpur - 8 January (Photograph courtesy of Malaysiakini) 114

115 Freedom of Religion and Matters Pertaining to Religion The Metro Tabernacle Church after the firebomb attack. (Photograph courtesy of Malaysiakini) The Herald filed a judicial review in March 2008, challenging the Internal Security Ministry (now the Home Ministry) and the government. The Herald wanted the court to declare the ministry s prohibition null and void, and that the word Allah is not exclusive to the religion of Islam. The Herald also asked to be allowed to continue using Allah until the court had decided on the matter. While Syed Hamid temporarily allowed for conditional usage of the word Allah in February 2009, 29 it was rescinded just days later after pressure from the Malaysian Islamic Da wah Foundation. 30 Soon after, and although the court-decision was still pending, ten states (Johor, Malacca, Negri Sembilan, Pahang, Perak, Kelantan, Terengganu, Kedah, Perlis and Selangor) issued fatwa prohibiting non-islamic uses of the word Allah. 31 On 31 December 2009, the Kuala Lumpur High Court ruled in favour of Archbishop of Kuala Lumpur, lifting the Home Minister s 3-year ban of the Catholic Church using the word Allah to refer to the Christian God in The Herald. Justice Lau Bee Lan declared The Herald had the Constitutional right to use the word Allah, as it was not directed at Muslims. The Home Minister s ban was declared illegal, null and void. 32 Home Minister Hishammuddin Hussein immediately stated that the government would appeal the decision and apply for a stay of execution. The government also gave permission for a public protest to be held to protest the court s decision. 33 While SUARAM supports people s rights of freedom of expression and assembly, the government s double standards were acutely highlighted. The government hardly ever formally allows protests, but they allowed this one in an apparent attempt to be able to point to public Malay-Muslim support and be seen 115

116 Malaysia Human Rights Report 2009 Muslim volunteers stand guard at midnight in front of St. James Church to avert any attack on the church. (Photograph courtesy of Malaysiakini) as the defender of Islam to the Malay voters. In January 2010, after the decision to appeal and permit the protest, some state funded mosques in Kuala Lumpur and Selangor displayed banners exhorting Muslims to protect the sanctity of the word Allah from non-muslims. A series of attacks on twelve churches, a Sikh temple 34 and the office of the lawyer representing the Catholic Church ensued. Most churches employed extra security out of fear of attacks. 35 As religious tensions escalated there were also attacks on three mosques and two Muslim prayer rooms, with a bottle of alcohol thrown at one of them. 36 While the government condemned the attacks on places of worship, along with Opposition politicians and leaders within civil society, they failed to appreciate that the government s original decision to ban the use of the word Allah, giving permission for a rally to protest the court s decision to overturn the ban, and their appeal of the court s decision directly worsened a hostile anti-christian environment and exacerbated religious tensions. The Deputy Education Minister Dr Mohd Puad Zarkashi even said that he did not believe the attacks on churches were a result of the High Court ruling. 37 When a journalist suggested UMNO had been fanning the flames since the court verdict, Prime Minister Najib accused the journalist of making a very scurrilous statement. 38 Instead of allowing impartial police investigations into the church attacks, Hishammuddin intervened in January 2010, disallowing Parti Keadlian Rakyat (PKR) vice president Azmin Ali from giving a statement to police. Azmin claimed to have knowledge that UMNO party members were involved in the first arson attack on the Metro Tabernacle Church in Desa Melawati, Kuala Lumpur. Hishammuddin accused Azmin of trying to 116

117 Freedom of Religion and Matters Pertaining to Religion make political mileage out of the situation and declared, with no investigation, that the claim was baseless. 39 Ultimately, eight persons were arrested for the devastating arson of the Metro Tabernacle Church, and another seven people for attacks on other churches. On 13 August two Muslim men were convicted of arson of the Metro Tabernacle Church, and sentenced to five years in jail. An application for a stay of execution was approved, with their bail raised from MYR 10,000 to MYR 20,000 each. Judge SM Komathy Suppiah said the court was bound to ensure that a deterrent custodial sentence is imposed on offenders who desecrate religion or religious beliefs to ensure peace and harmony in a multi-racial country like ours. 40 Numerous quarters, including the BN coalition partner the Malaysian Chinese Association (MCA), have lobbied the government to drop their appeal. MCA argued there can be no monopoly over the word Allah and that no confusion arises when one s spiritual conviction is strong. They urged the Home Minister to rescind the ban on the word Allah so that the issue could stop polarising the public. 41 While Hishammuddin said he wished his predecessor had not banned Allah from being used by non-muslims, 42 Minister for Islamic Affairs Senator Jamil Khir Baharom was adamant that the government would continue pursuing the appeal, 43 and the MCA was publicly berated. 44 The government s appeal, still unheard at the end of 2010, is politicising religion more than ever and providing fertile ground for religious tensions to fester and escalate further. Restrictions on religious publications Federal and State governments discourage, and in Peninsular Malaysia forbid, circulation of Malay-language versions of the Bible, other Christian printed material and Christian tapes. Malay-language Bibles permitted in East Malaysia are required to carry the words Not for Muslims printed on the cover. Christian books published in Malay and the East Malaysian indigenous Iban languages have been banned in the past. As the legal debacle over the use of the word Allah continued, Christian publications were seized and prohibited. At least 15,000 copies of the bible were seized in 2009 because they carried the word Allah. 45 The Kadazan- Dusun (an indigenous ethnic group in Sabah) edition of The Herald was also rejected by the Home Ministry in November Hindu temples: Attacks, relocations and demolition Religious minorities have long complained of difficulties in obtaining approval to build new churches and temples. The rate of reported demolition of Hindu places of worship has been a particular issue of concern. Recent years have seen a large number of Hindu temples demolished by local councils, raising public alarm, especially among non-muslims. 46 In April 2009, the government announced plans to relocate 29 Hindu temples in and around Kuala Lumpur. While 28 of the 29 temples agreed to relocate, committee members at the Sri Muniaswarar Temple located in Setapak, Kuala Lumpur refused. 47 Government policy states that temples which refuse to relocate will be given 30-days notice to vacate, after which the buildings would be demolished. The Cow-Head Protest In July 2010 one person was sentenced to a week in jail and eleven others fined for carrying and abusing a slaughtered cow s head while protesting the relocation of a Hindu temple on 28 August The sentences were 117

118 Malaysia Human Rights Report 2009 considered lenient and analysts expressed concern that they may further strain race relations. 48 The Cow-Head protest was the most high-profile case of temple relocation in It had been proposed that a Hindu temple be relocated to a predominantly Malay-Muslim neighbourhood in Shah Alam, Selangor. The Selangor state government s confirmation of the relocation of the temple on 11 August 2009 sparked protests among Malay-Muslim residents. 28 August 2009 saw 50 Malay-Muslim residents protest, carrying a slaughtered cow s head, obviously meant to provoke and upset Hindu s as the cow is a sacred animal in Hinduism. Protesters placed the cow s head at the entrance of the Selangor state secretariat building and gave speeches warning the Selangor state government against the relocation of the Hindu temple to the their neighbourhood. One speaker threatened violence, saying, If there is blood [shed], [the Selangor state government] will be responsible if you are adamant about building the temple. 49 Before dispersing, several protesters spat and stomped on the cow s head. The government was slow to respond and initially seemed to support the protest. Following public outrage, protesters were arrested and charges made under Section 27 of the Police Act and the Sedition Act. Human rights groups oppose these charges as both laws undermine fundamental human rights. On numerous occasions, SUARAM has advocated the enactment of a Race Relations Act and establishment of a permanent Race Relations Commission to better deal with issues related to racism. On 5 September 2009, the Selangor state government organised a public dialogue in an attempt to seek a solution to the controversial relocation of the Hindu temple. After much hurling of insults, abuse and threats at the Selangor state government by some Malay- Muslim residents opposed to the relocation, the state government agreed to look for an alternative location. 50 In September 2009 an alternative site was announced, some distance from the originally-planned location. Non-Muslims and Islamic Precepts There is a growing trend of enforcing Islamic precepts on non-muslims. In October, Basil anak Baginda, a 10-year old non-muslim schoolboy, was caned 10 times by a senior school officer at his school in Kuching, Sarawak, for bringing non-halal food for his lunch. The MCA demanded the Education Ministry take action against the school, and said that enforcing a halal food policy on non- Muslim students was trampling on their rights and that the boy and his family were owed an apology. The school was also condemned for warning the student s parent not to make a big deal of this sensitive issue. The MCA identified there was a growing trend to use this simplified excuse to enforce one s religious values onto believers of other faiths and ignore the religious freedom of minority groups. 51 The officer who caned the boy made a public apology, and the Education Ministry said it would distribute a circular to ensure student could bring non-halal food for lunch. Interfaith dialogue and understanding Instead of welcoming politicians desires to get to know constituents of different faiths, Opposition MP Teo Nie Ching s attempts to build a relationship with Muslim constituents resulted in her becoming a political target in In August 2010 Teo visited Surau Al- Huda, a Muslim place of worship in her constituency, to deliver state government funds so that the surau s fence could be fixed, and have breakfast with the surau s committee. 118

119 Freedom of Religion and Matters Pertaining to Religion Teo s relationship with Muslim constituents irked UMNO, who accused Teo s party, the Democratic Action Party (DAP) of attacking the rights and privileges defended by Malay leaders and rulers. 52 Actually UMNO feared that Malay-Muslims might vote for the Opposition instead of UMNO. UMNO politicians, pro-umno blogs and newspapers and Malay rights NGO Perkasa, launched a full-scale attack on Teo, focusing on the fact that she had talked to the congregation about the state s education programme after being asked by the committee. Home Minister Hishammuddin Hussein described Teo as dirty and her visit a disaster for the Muslim community. It was not clear whether Teo was dirty because she is not a Muslim or, even more concerning, because she is a woman. Utusan Malaysia s reporting used Teo s gender to sensationalise the story even further, criticising Teo for not wearing a headscarf and wearing a tight fitting kebaya (traditional Malay dress). 53 MAIS took over management of the surau, and issued Teo with a warning, claiming that her visit had displeased the Sultan of Selangor. Teo submitted an apology and explanation to the Sultan for the incident. 54 PERKASA would have liked to see MAIS take stronger action, including charging Teo. They also wanted MAIS to introduce Syariah laws to bar non-muslims from entering Muslim houses of worship. 55 Muslim scholars, including Former Perlis mufti Dr Mohd Asri Zainul Abidin, PAS spiritual leader Nik Aziz Nik Mat and the National Fatwa Council, maintain that visits to Muslim places of worship are not against Islamic law, so long as visitors act appropriately. 56 Conclusion Religious tensions in Malaysia had not abated in 2010 and Malaysia continues to slide down a slippery slope of racial-religious communal politics. The ultimate goal for UMNO is to increase its share of the Malay-Muslim vote, discrediting ideas that politics, and even everyday life, can be truly multi-religious and multi-racial. This is in direct contrast to the stated aims of the 1Malaysia campaign. Post-2008 Malaysia has seen a heightened politicisation of religion, as a result of the UMNO-dominated BN government s attempts to regain the Malay majority vote by posturing as the defender of Islam and Malays. This trend continued in 2010, manifesting in further escalated religious tension, while other longstanding issues relating to freedom of religion remained unresolved. The politicisation of religion increased in 2010, with the Sarawak state election due in This was seen most obviously with the Home Minister s commitment to the highly controversial ban on non-muslims using the word Allah, his effective endorsement of a protest against the court decision overturning the ban, and his immediate appeal of this decision. The Home Ministry created this divide and continues to give it currency for political purposes as UMNO vies for the Malay-Muslim vote. Meanwhile churches have been attacked and the environment for Christians has become increasingly hostile. Religious tensions were further inflamed by the Home Minister in 2010 with his condemnation and personal attack of a non-muslim MP visiting a Muslim place of worship. As politicisation of religion continues in Malaysia, the power and reach of Islamic religious authorities grows, dictating morals and norms and enforcing punishment. In one of the most regressive moves for human rights in Malaysia in 2010, three Muslim women were caned under Syariah law for the first time, despite civil law clearly stating that women cannot be caned. These canings exposed the deep divide between moderate 119

120 Malaysia Human Rights Report 2009 Muslims and some religious authorities who are much more conservative. While there was hope in 2009 the government would introduce amendments to laws, clarifying that unilateral conversions of children were not legal, the government remains beholden to religious authorities who oppose legislation that would give non- Muslim parents equal rights to decide on the religion of their child. The jurisdiction for child conversions, as with all other matters of contested Muslim identity such as apostasy and when the religion of deceased family members is contested, remains confused. The government s refusal to clarify jurisdiction results in Syariah law having supremacy over civil law, as civil courts regularly abdicate their responsibilities and allow Syariah courts exclusive jurisdiction. A moment of hope did arrive however in 2010 with the landmark decisions by a civil court that awarded Indira Ghandi custody of her children, and allowed her to challenge their unilateral conversions to Islam. It is hoped that civil courts take a lead from this case and exercise their authority in such cases. In the meantime pressure will remain on the government to amend legislation, as they proposed in Non-Sunni Muslim religious beliefs remain outlawed, with worshippers continuing to be labelled as deviationists and arrested. In January 2010 the government said that the Institute of Islamic Understanding and the government had begun holding closeddoor interfaith dialogue. 58 It is unclear what these talks were about, who was involved or what was achieved. For interfaith dialogue to be genuinely beneficial to a multi-faith society it must be inclusive, transparent and ongoing, but by the end of 2010 the government had still done nothing to help facilitate this. 120

121 Freedom of Religion and Matters Pertaining to Religion End Notes 1 Article 160, Federal Constitution of Malaysia 11 Ibid. 2 Bernama (20 August 2010) Civil court cannot decide on Moorthy s religious status, published at story.asp?sec=nation&file=/2010/8/20/ nation/ , accessed 6 May A mufti is the highest-ranking religious official, appointed to advise a state Ruler on Islamic laws. A fatwa is a religious decree that is binding and enforceable once gazetted Bernama (25 January 2011) No leave given to widow of late Everest climber to appeal, published at content/61905-no-leave-given-widow-lateeverest-climber-appeal, accessed 11 May 2011 Malaysiakini (6 July 2010) Bid to strike out Banggarma s case, Susan Loone, accessed 5 May 2011 Ibid. New York Times (5 April 2010) In Malaysia, woman challenges reach of Shariah Courts:, Liz Gooch, fullpage.html?res=9f0de6dd1339f936a35 757C0A9669D8B63, accessed 6 May 2011 UCA News (28 July 2010) Malaysian High Court to hear conversion case, com/2010/07/28/malaysian-high-court-tohear-conversion-case/, accessed 6 May 2011 Malaysiakini (17 November 2010) Federal Court told not to shirk conversion cases, accessed 5 May 2011 Bernama (12 November 2010) Federal court rejects Shamala s referral application (Updated), published at my/news/story.asp?file=/2010/11/12/natio n/ &sec=nation, accessed 5 May 2011 Malaysiakini (16 November 2010) Parent uses Syariah Court to snatch her child, Susan Loone, news/148356, accessed 6 May Associated Press (29 December 2010) Shiites demand rights of worship in Malaysia, Sean Yoong, published at thejakartaglobe.com/home/shiites-demandrights-of-worship-in-malaysia/414035, accessed 6 May 2011 Malaysiakini (24 December 2010) Jais moots special detention camps for deviationists KEQMqM Bernama (30 December 2010) No Shi te Islam in IIUM, says rector, published at malaysia/article/no-shite-islam-in-iium-saysrector/, accessed 6 May 2011 The Malaysian Insider (18 December 2010) Asri: Shi a arrests proof of Talibanisation, a r t i c l e / a s r i - s h i a - a r r e s t s - p r o o f - o f - talibanisation, accessed 6 May 2011 Khalwat is the close proximity between men and women who are not related to each other by blood. 20 Maksiat are Islamic vices. 121

122 Malaysia Human Rights Report On 22 November 2008 the National Fatwa Council declared that yoga was forbidden in Islam. National Fatwa Council chairman Dr Abdul Shukor said that the ban on yoga was because the Hindu elements of worshipping and chanting is against Islam and can erode one s faith or aqidah. (The Star (22 November 2008) Fatwa Council says yoga with worshipping, chanting is prohibited, story.asp?sec=nation&file=/2008/11/22/ nation/ , accessed 15 June 2009 The Star (24 June 2008) KB council bans lipstick, high heels, my/news/story.asp?file=/2008/6/24/ nation/ &sec=nation, accessed 15 May 2010 Jais (12 March 2010) Isu Menghina Sebatan Syarie, cited by The Nut Graph (19 March 2010) Friday sermons to Islam s rescue, accessed 29 April 2011 AFP (29 October 2010) Malaysia s Sisters of Islam win right to use name See SUARAM (2008) Malaysia Human Rights Report 2007: Civil and Political Rights, Petaling Jaya: SUARAM (p.127) Reuters (24 October 2008) Malaysia Muslim body issues fatwa against tomboys, idintre49n2am , accessed 12 November 2008 Pink News (28 July 2010) Malaysian trans woman wins asylum in UK, pinknews.co.uk/2010/07/28/malaysiantrans-woman-wins-asylum-in-uk/, accessed 6 May 2011 The Nut Graph (8 December 2009) Why Fatine can t come home, Ding Jo-Ann, accessed 6 May The government gazetted an order titled Internal Security (Prohibition on Use of Specific Words on Document and Publication) Order 2009, permitting the The Herald to use the word Allah, as well as Kaabah, Baitullah and Solat, in its publications, on the condition that For Christians Only was printed on the cover. Bernama (28 February 2009) Home minister rescinds new gazette on Allah 31 The Star (10 March 2009) Remaining states to gazette ruling for non-muslim publications, n e w s / s t o r y. a s p? f i l e = / / 3 / 1 0 / nation/ &sec=nation, accessed 15 May The Star (1 January 2010) High Court grants Catholic publication Herald the right to use Allah word again, com.my/news/story.asp?file=/2010/1/1/ nation/ &sec=nation, accessed 15 May 2010; My Sin Chew (31 December 2009) Court rules Catholic Herald can use Allah word, accessed 14 November 2010 My Sinchew (6 January 2010) Home ministry to allow protests against Allah ruling, www. mysinchew.com/node/33598, accessed 5 May 2011 Sikhs also use the word Allah and had unsuccessfully sought to be part of the legal suit. Malaysiakini (12 January 2010) Stones thrown at Sikh temple in Sentul, malaysiakini.com/news/121808; accessed 5 May 2011 Associated Press (17 January 2010) Rum bottle thrown at Malaysia mosque amid tension published at com/27653/rum-bottle-thrown-at-malaysiamosque-amid-tension/, accessed 5 May

123 The Star (9 January 2010) Muhyiddin leads leaders in condemning church arson, n e w s / s t o r y. a s p? f i l e = / / 1 / 9 / nation/ &sec=nation, accessed 5 May 2011 The Star (9 January 2010) Najib condemns attacks, Mazwin Nik Anis, com.my/news/story.asp?file=/2010/1/9/ nation/ &sec=nation, accessed 5 May 2011 Bernama (28 January 2010) Hishammuddin: Police don t need Azmin s statement, published at cfm?id=42890, accessed 5 May 2011 Malaysiakini (13 August 2010) Church arson: Brothers jailed 5 years, told don t play with fire, Hafiz Yatim, com/news/139945, accessed 5 May 2011 The Malaysian Insider (3 August 2010) DPM warns MCA over Allah appeal, Asrul Hadi Abdullah Sani, com/malaysia/article/dpm-warns-mca-overallah-appeal, accessed 5 May 2011 The Malaysian Insider (1 August 2010) Hishammuddin says regrets Allah ban, Asrul Hadi Abdullah Sani, article/hishammuddin-says-regrets-allahban/, accessed 5 May 2011 The Malaysian Insider (2 August 2010) Minister says no to dropping Allah appeal, article/minister-says-no-to-dropping-allahappeal/, accessed 5 May 2011 The Malaysian Insider (3 August 2010) DPM warns MCA over Allah appeal, Asrul Hadi Abdullah Sani, com/malaysia/article/dpm-warns-mca-overallah-appeal, accessed 5 May Malaysiakini (29 October 2009) Allah ban: 15,000 copies of bible seized, www. malaysiakini.com/news/116211, 20 April 2010 Human Rights Party of Malaysia (January 2009) Malaysian Indian Minority & Human Rights Violations Annual Report 2008, presented by Waytha Moorthy Ponnusamy at the Global Organisation of People of Indian Origin (GOPIO) and Pravasi Bharatiya Divas International Conference, Chennai, India, 7-9 January 2009 (p. xviii) Malay Mail (21 April 2009) Temples around KL ready to relocate, temples-around-kl-ready-relocate, accessed 27 May 2011 Reuters (27 July 2010) Malaysia fines Muslims for hindu temple protest, Razak Ahmad, idinindia , accessed 26 April 2011 Malaysiakini (28 August 2009) Temple demo: Residents march with cow s head, www. malaysiakini.com/news/111628, accessed 15 May 2010 One of the participants even threatened to rape Selangor state executive councillor Rodziah Ismail. (Malaysiakini (8 September 2009) Charge those who threatened Rodziah with rape, accessed 15 May 2010) MCA (6 November 2010) Not up to teachers or school senior assistants to impose halal food policy in schools, Loh Seng Kok, not-up-to-teachers-or-school-seniorassistants-to-impose-%e2%80%9chalalfood%e2%80%9d-policy-in-schools/, accessed 6 May 2011

124 Malaysia Human Rights Report Bernama (30 August 2010) Mosque visit: Teo was deemed dirty, says Hisham, published at accessed 6 May 2011 UNMO aligned Utusan Malaysia marked Teo as a target, carrying a front page story in December 2010 that attempted to smear her. Teo was accused of causing further problems at Muslim places of worship by wearing tight clothes (a t-shirt and track pants) whilst participating in aerobics in a mosque compound. Teo had been invited by the event by the mosque committee, who had no problems with her clothing. Teo and others consider it an attack on her as an Opposition MP, using her gender to personally attack her. (For discussion of the gender discrimination see Malaysiakini (1 January 2011) Utusan told to stop obsession with Teo s attire, Aidila Razak, news/152131, accessed 6 May 2011) Bernama (2 October 2010) Serdang MP Teo gives statement to police over surau incident, w w w. b e r n a m a. c o m / b e r n a m a / v 5 / newsgeneral.php?id= The Malaysian Insider (19 August 2010) Perkasa wants non-muslims banned from mosques, suraus, Boo Su-Lyn, article/perkasa-wants-non-muslims-bannedfrom-mosques-suraus/, accessed 5 May 2011 Ibid. The Sarawak state election is expected to be followed by the government calling an early general election if the ruling BN coalition does well. 58 The Star (11 January 2010) Govt to hold inter-faith dialogues to resolve differences of views, 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 / 1 1 / nation/ &sec=nation, accessed 12 May

125

126 Malaysia Human Rights Report 2009 Racism and racial discrimination have been part of Malaysian political, economic, social and cultural realities ever since colonial times. Today, race has been so deeply institutionalised that it is a key factor determining benefits from government development policies, bids for business contracts, education policy, social policy, cultural policy, entry into educational institutions, discounts for purchasing houses and other official policies. Practically every aspect of Malaysian life is permeated by the so-called Bumiputra policy based on Malay-centrism. This is unabashedly spelled out by political leaders in the daily mass media in Malaysia. While the Government tries to account for this problem by blaming other extraneous factors, such as the existence of vernacular schools, it is clear that the roots of polarisation lie in this institutionalisation of racism and racial discrimination. Institutionalisation of Racism Racism is an integral part of the Malaysian socio-political system. The ruling coalition is still dominated by racially-defined component parties, the United Malays National Organisation (UMNO), the Malaysian Chinese Association (MCA) and the Malaysian Indian Congress (MIC). These parties compete for electoral support from their respective racial constituencies by pandering to racial interests. Invariably, their racist inclinations are exposed at their respective party congresses. Some opportunistic Opposition parties likewise pander to their constituencies using racial propaganda to win electoral support, and they have also contributed to the vicious circle of racial politics which has characterised Malaysian politics all these years. UMNO, the ruling party, continues to insist that Malay Unity and even Malay Dominance is essential for National Unity. Malay dominance is invariably used interchangeably with Malay Privileges, which the ruling Malay elite justify in the Malaysian Federal Constitution. Consequently, we have witnessed the periodic controversies over the alleged challenges to Malay Special Privileges every time sections of Malaysian society call for non-racial solutions to Malaysian problems. The official White Paper on the mass ISA detentions of 1987 documents the UMNO Youth rally at the Jalan Raja Muda Stadium on 17 October 1987, at which racist sentiments were flagrantly displayed, including MAY 13 HAS BEGUN; SOAK IT (KRIS) WITH CHINESE BLOOD UMNO leaders, including those who are ministers today, were among the rabble rousers on the podium. The ruling party condoned such racism on the grounds that theirs was a reaction to the protests by the Chinese organisations over the posting of unqualified officers to the Chinese schools in The fracas over the Appeals (Suqiu) by the Chinese Associations of Malaysia in 2000 is another case in point. A group of UMNO Youth had confronted officials from the Selangor Chinese Assembly Hall and threatened to burn down the building if the Chinese associations did not withdraw the Appeals. 2 There have been other cases in recent Malaysian history in which the ruling party has allowed racist reaction to be used against the Non-Malay communities. On 4 February 2001, a Malay Action Front rally was organised by former and current UMNO leaders using the provocative emblem of an unsheathed kris (Malay dagger) against a blood-red backdrop and calling for the further extension of Malay privileges. 3 Marginalised groups such as the Indian community have been subject to racial slurs and although they are a minority group in the 126

127 Racism, Racial Discrimination and Related Intolerance country, they form the majority in statistics on deaths in police custody and police shootings. According to statistics released in 2010, Indians accounted for 21.8% (61 persons) of death by police shooting between 2000 and If Indonesians are removed from the statistics, Indian Malaysians account for 36% of death by police shooting cases, 4 when demographic statistics count the Indian Malaysian population in the country at 7.7%. 5 The worst case of racist killings in contemporary history is the 2001 killings at Kampung Medan, Petaling Jaya where five Indians were killed and scores injured while the police stood by, offering no protection. 6 Racism and racial discrimination are also manifested in the way indigenous peoples are uprooted from their traditional homelands and displaced to ill-planned resettlement schemes to make way for dams, plantations and other industrial projects. Many development agencies do not respect their native customary land rights and rarely consult indigenous communities properly. When there are disputes between indigenous groups and commercial companies, indigenous protesters are often violently harassed and intimidated, and awarded little to no protection from the police and other state authorities. For example, the Iban communities of Sungai Tepus, Ulu Balingian set up a blockade on 12 March 2010 to protest Bitani Maju Sdn. Bhd. s illegal logging. A group of hired thugs was sent to intimidate and beat the protesters, and despite three police reports being lodged, no action was taken against them or the company. Instead, police dismantled the blockade and arrested Oren Ak Linggang when he went to make a police report after being attacked. To quote Banggau Ak Panggai, Chaiman of the Joint Action Committee Gerubat, Our communities are leaving in fear at the moment as the police cannot guarantee our safety. 7 The underlying assumption in official circles is one rooted in racism, that their cultures and ways of life are backward and need to be modernised. It is these assumptions that result in directly harmful policies. Denial of land rights, and the taking of land from indigenous peoples, makes it almost impossible for communities to escape cycles of poverty and have a deleterious impact on group and individual autonomy and culture. Layers of poverty and disempowerment make communities increasingly vulnerable, at both a group and individual level, to dependency, exploitation, trafficking and violence, including sexual violence. Unless there is a radical overhaul in policies and realities that affect indigenous peoples, there is a real risk that their fate is tantamount to ethnocide. Migrant workers, including foreign domestic workers, are another group of people who face racism and racial discrimination in Malaysia. There are over 2 million foreign workers in the country, out of which there are over 160,000 hired as domestic help. The negative and derogatory perception of foreign workers held by many Malaysians condone the abuse of these workers. As women, foreign domestic workers are often subject to verbal, physical and even sexual abuse. They are discriminated against because of their gender, race as well as class. The ruling party UMNO prides itself on the supposedly successful affirmative action in favour of bumiputeras. Bumiputera literally means princes of the soil, the official epithet for Malays and other indigenous peoples but which excludes the original peoples, the Orang Asli, of Peninsula Malaysia. This has been the cornerstone of development plans since the New Economic Policy which started in Consequently, while this populist bumiputera policy has been applied to the benefit of bumiputeras as a whole, the 127

128 Malaysia Human Rights Report 2009 new Malay ruling elite is strategically placed to reap the full benefits of this racially-based policy. Totally committed to capitalism and to privatisation, this policy has ensured that the Non-Malay local and foreign elite have also gained from the New Economic Policy since This class cohesion among the Malaysian ruling elite underpins the racialist politics which has characterised Malaysian society since Independence. Article 8 (1) of the Malaysian Constitution clearly spells out the principle of equality of all Malaysians, while Article 12 (1) allows no discrimination against any citizens on the grounds of religion, race, descent or place of birth. Article 153 on the special position of Malays was inspired by the affirmative action provisions of the Indian Constitution to protect the minority under-privileged class of harijans. Malaysia s is fundamentally different from those provisions because the ethnic group in whose favour the discrimination operates in Malaysia happens to be the majority group and the one in political control, the Malays. At the time of Independence in 1957, four matters in relation to which the special position of Malays were recognised and safeguarded were: land; admission to public services; issuing of permits or licences for operation of certain businesses; and scholarships, bursaries or other forms of aid for educational purposes. The Federal Constitution certainly does not adhere to any notion of Ketuanan Melayu (Malay Dominance), which is a totally racist concept used routinely by UMNO leaders today. Higher Education quotas After the Tunku was deposed in 1971, the new Malay ruling elite felt that adequate opportunities had not been made available to Malays, especially in education, and that there should be a larger proportion of Malays in the various sectors. In 1971, under Emergency conditions, Article 153 was duly amended to introduce the quota system for Malays in institutions of higher learning. Clause (8A) specifically provided for the reservation of places for Bumiputeras in any University, College and other educational institutions. Nevertheless, the quota system was not intended to be the totally non-transparent and non-accountable and unfair system we know it today. Article (8A) makes it clear that the Yang di-pertuan Agong can only order the reservation of a proportion of such places for the Malays. This would therefore mean that the quota system is applicable only on a faculty basis, and more importantly every faculty or institution should reserve places for students of every race. No faculty or institution under this provision could cater for the Malays alone to the exclusion of the other races. To apply the quota system on the total number of places available in any particular university will again be a wrong interpretation of the provisions of the Constitution. Article 153 (8A) does not authorise the administrators of any university to refuse admission to any student of a particular race. It only allows a proportion of the places to be reserved for Malay students. The constitutionality of institutions like the Asasi Sains in the University of Malaya or Kursus Sains Matriculasi Sidang Akademik of the Universiti Sains Malaysia, UiTM, which cater only for Bumiputera students, is therefore doubtful as it violates the equality provision of Article 8. The question of the constitutionality of the quota system as it has been practised since 1971, especially in totally Bumiputera institutions, has never been tested. Nevertheless, the Malay Special Privileges provision in the Merdeka Constitution has been used by the ruling UMNO as a carte blanche for all manner of racial discrimination since

129 Racism, Racial Discrimination and Related Intolerance International law and affirmative action International law sets limits on affirmative action measures. Notably, affirmative action policies must be carefully controlled and not be permitted to undermine the principle of nondiscrimination itself, nor violate human rights. Holding the equality principle uppermost, the raison d etre and reasonableness for differential treatment must be proven. Another important criterion to ensure successful affirmative action, synonymous with international law, is that such special measures should be introduced for a limited duration, as was suggested by the Reid Commission in its Report of the Federation of Malaya Constitutional Commission in 1957, when considering whether such a provision should be included in the Constitution: Our recommendations are made on the footing that the Malays should be assured that the present position will continue for a substantial period, but that in due course the present preferences should be reduced and should ultimately cease so that there should be no discrimination between races or communities. 8 Consequence of Malaysia s affirmative action Two striking and damning consequences of Malaysia s so-called affirmative action policies are firstly that wealth distribution objectives have not been accomplished, and secondly that intra-ethnic inequality in wealth has widened. Worse, the poorest community remains the Orang Asli of Peninsula Malaysia, the Original People of Malaysia who are not even considered Bumiputera under the Federal Constitution. Just ten years after the National Economic Plan (NEP) was implemented, the 1980 Census showed that more than 80 per cent of all government executive officers were Malay; Malays held 75 per cent of the publicly-funded tertiary education places; and 96 per cent of FELDA settlers were Malay. 9 By 1990, it was widely held by observers that the wealth restructuring policy objective was very much on target if nominee companies were analysed. It is also well-known that many of these nominee companies have been formed by the bumiputera elite. All the same, these figures showing ownership of equity capital, however distorted, also reveal that the rich Non-Malay elite have done quite well under the NEP. This perhaps accounts for the elite cohesion which has held the Barisan Nasional coalition together for so long. The evidence further shows that the NEP s wealth restructuring has mainly resulted in increased wealth concentration and greater intra-ethnic inequality. Discrimination in financial services The Amanah Saham Nasional (ASN) is a prime example of a savings institution, secured by Malaysian taxpayers irrespective of race, but which blatantly discriminates against Non-Bumiputeras. This racial discrimination extends to access to loans, end-financing, purchase of housing, shares allocation, and so forth. Discrimination in education Racial discrimination in education policy is manifested in unfair financial allocations to the different education sectors and language streams, and the reluctance of the Government to allow development of the mother tongue schools of Non-Malays. Thus the number of Chinese and Tamil primary schools in the country have dropped from 1342 and 888 at Independence, to 1284 and 535 today respectively, even though the population has doubled since The government has continued to ignore the grave 129

130 Malaysia Human Rights Report 2009 problem of shortage of qualified teachers for these schools for years. By 1990, the realities of the racially discriminatory quota system in education were as follows: An average of 90 per cent of loans for polytechnic certificate courses, 90 per cent of scholarships for Diploma of Education courses, 90 per cent of scholarships/loans for degree courses in Malaysia, and almost all scholarships/loans for degree courses overseas were given to Bumiputeras. Regarding the enrolment of students in residential schools throughout the Eighties, 95 per cent of these were Bumiputera, and the enrolment in MARA s Lower Science College, Maktab Sains MARA was almost 100 per cent Bumiputera. 10 Discrimination in culture and religion Racial discrimination in the realm of culture is seen not only in education policy but also in the discrimination against Non-Malay cultures and religions in the National Cultural Policy. Non-Muslims face obstacles in their freedom to build places of worship and access to burial grounds, among other complaints. 11 1Malaysia For all of its talk of 1Malaysia, the government refuses to ratify the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). 12 By ratifying the convention, Malaysia would commit itself at an international level to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion. 13 The concept, launched by Najib Razak in his inaugural speech as Prime Minister on 3 April 2009, continues to be an elusive dream for many Malaysians even as the ruling government advertises its latest slogan in public spaces. The 1Malaysia concept is not simply a government policy, it is Prime Minister Najib Razak s brain child, announced when he took office in April The 1Malaysia website is The Personal Website of Dato Sri Najib Razak, linking the success (or failure) of the 1Malaysia concept and zero tolerance towards racism directly with Najib. The stated aim of 1Malaysia is to strengthen national unity and ethnic tolerance. Some analysts believe that while 1Malaysia has good intentions, the same tensions will remain. Instead of focusing on the benefits and advantages of being a multiethnic and multi-racial country, 1Malaysia has been criticised for demanding that minority ethnic groups abandon their racial background and culture and assimilate into a Malaysian identity. In November 2010, this is precisely how Former Prime Minister Dr. Mahathir Mohammad said national unity and the 1Malaysia concept could be achieved. (You) forget your past, your origins, and identify yourself only as Malaysian...We cannot call ourselves Malaysians of Malay origin, Chinese origin or Indian origin. 14 This ignores both the importance of recognising and celebrating individual and community experiences and the fact that communities from ethnic minority groups have long felt that their cultures are not accorded the same status as the dominant Malay culture. Questions have also been raised as to whether 1Malaysia can be genuinely achieved when the major party promoting it, UMNO, follows the concept of Ketuanan Melayu or Malay Supremacy. To quote Universiti of Malaya (UM) political scientist Noor Sulastry Yurni Ahmad, Ketuanan Melayu and 1Malaysia just don t match

131 Racism, Racial Discrimination and Related Intolerance Meanwhile the Opposition Pakatan Rakyat (PKR) labelled the juxtaposition between 1Malaysian and ketuanan Melayu as double speak 16, with PKR president Dr Wan Azizah Wan Ismail declaring that ketuanan Melayu should be abandoned. Wan Azizah said Malay supremacy is a slogan used by a small group of Malay elites who are cheating the Malays as a whole for their own interests, noting that intra-malay disparity was large. 17 Racism by Government Officials While the government bandies the 1Malaysia logo around, government representatives continue to openly declare their racism, exposing the fact that the concept has not been embraced by the whole government. In February 2010, at a 1Malaysia event, the prime minister s special officer Nasir Safar was reported as saying the Indians came to Malaysia as beggars and Chinese, especially women, came to sell their bodies. Although Nasir was asked to resign, there was no further action taken against him because, according to Minister in the Prime Minister s Department Nazri Aziz, it was hard to prove if what Nasir had said had any tendency to be seditious. 18 In November 2010, Defence Minister Ahmad Zahid Hamidi accused the Chinese and Indian communities of not having a high enough sense of patriotism. Ahmad Zahid was responding to a question in Parliament and detailing why there were so few Indian and Chinese recruits in the Malaysian Armed Forces (ATM), totalling only 1.2 per cent in 2008 and A lack of patriotism was listed as a reason, despite the fact that Malaysians from all ethnic groups have served in the armed forces with pride, defending Malaysia and representing the Malaysian armed forces overseas. The systemic racism and racial discrimination against Non- Bumiputeras in the civil and armed forces since May 13, 1969 is perhaps the main reason for the low recruitment of Chinese and Indians in the services. Ahmad Zahid s statement received widespread condemnation from both sides of the political divide, civil society and retired military personnel. Ipoh Barat MP M. Kulasegaran asked for an apology in parliament, but this request was dismissed by the Speaker 20 and no apology or retraction was demanded by the government. As outrage grew, the Cabinet tried to contain the fallout by gagging ministers from commenting on the matter, 21 but this did not stop the sensationalist, UMNO-aligned paper, Utusan Malaysia from publishing an editorial which labelled the May 13 race riots in 1969 a blessing in disguise for Malaysia. While this editorial was clearly designed to inflame racial tension, no action was taken against the newspaper. Racism in the Civil Service National Civics Bureau (BTN) assistant director, Hamim Husin, was reported as referring to ethnic Indians as Si Botol (drunkards) and ethnic Chinese as Si Mata Sepet (slant-eyed), during a speech at a Puteri UMNO event in September Politicians and civil society were outraged that a person in public life could make such racist statements, and MCA President Dr Chua Soi Lek said that Hamim was not fit to hold his position. 22 In November, in response to a parliamentary question, it was announced that Hamim had been sent a warning and was suspended as of 6 October. The government denied that Hamim s racist comments reflected the public service more generally, 23 yet they issued a circular to all heads of government on October 1, apparently reminding officers not to make statements touching on racial and religious sensitivities

132 Malaysia Human Rights Report 2009 There remains no acknowledgement of racism within the public service and hence no strategy to deal with it. The fact that such a senior person within the BTN could espouse such views publically is certainly indicative of a problem of racism within the civil service. The first step in countering racism is acknowledging it exists. Racism in Schools Overt racism continues to be tolerated within the public school sector, highlighted in at least two cases in 2010 with school principals in Kedah and Johor uttering racial slurs at their students. What is even more alarming than the racism voiced by the principals is the poor and slow response by the authorities. In August, parents lodged seventeen police reports against the SMK Tunku Abdul Rahman Putra principal, Siti Inshah, for comparinging Indian students wearing prayer threads to dogs, and telling ethnically Indian and Chinese students that if they were unhappy they could return to China or India. Parents also claimed that Siti Inshah had been transferred from her previous school because she called Indians Nigerians. 25 Education Director-General Alimuddin Mohd Dom originally dismissed the case, saying that it had been a misunderstanding that had been cleared up. The parents denied this and accused Alimuddin of a cover-up, demanding concrete action be taken against the principal. In a second case in Kedah, SMK Bukit Selambau school principal Ungku Aznan Ungku Ismail was alleged to have told ethnically Chinese students to go back to China for behaving disrespectfully by eating in the school canteen during the Ramadan fasting month. 26 After two months had passed without the government reporting any progress in the handling of the case, Lim Kit Siang tried to raise an emergency motion in Parliament to demand an explanation for the delay in action. House Speaker Pandikar Amin. Pandikar rejected the motion, saying that action had already been taken by the Education Ministry and the Public Service Department (PSD). It is worth noting that the Education Minister Muhyiddin Yassin had previously absolved himself from taking any action, saying that he had to allow them to continue in their roles as he had no power to discipline them, assigning responsibility to the PSD. 27 On 18 October the government announced that both principals had been suspended from the schools and put on desk duty in the education department. It was confirmed that no further action would be taken, and that their apologies were considered sufficient. (There had been earlier reports that police were investigating the case in Johor under Section 504 of the Penal Code, for provocation.) In order to effectively tackle racism in schools, the government needs to develop a transparent and multi-pronged approach that includes training and detailed disciplinary action. Unless both are enforced publicly, teachers will continue to operate within a culture of impunity and will merely be transferred from one school to another, carrying their racism with them. Racism in a classroom is one of the most damaging things the state can subject children to, and urgently requires a welldesigned strategy. But this is assuming the state sincerely wants to eradicate racism and racial discrimination. The scandals emanating from the BTN, a strategic propaganda outfit, suggests that there is a method to the propagation of this racist ideology and that it has been going on at least since

133 Racism, Racial Discrimination and Related Intolerance The New Economic Model and Race Politics On 30 March 2010 the government announced the New Economic Model (NEM), with an emphasis on attracting increased foreign investment. Economists had predicted that the NEM would include privatisation of state assets, encourage increased private investment and significantly alter the affirmative action policies established in the New Economic Policy (NEP). Introduced in 1971, the core aim of the NEP was to increase the wealth of the Malay and indigenous bumiputera communities, so as to close the gap with the Chinese community which held greater wealth. The NEP identified the problem as that of differential wealth-holding on the basis of race, as opposed to improving the standard of living of all Malaysians on the basis of need and access to resources. A key feature of the NEP was to raise Bumiputera equity ownership from 2.4 per cent in 1971 to 30 per cent by The NEP ended in 1990, and was succeeded by the National Development Policy, which extended these goals of the NEP. History has shown that while the NEP may be able to point to some successes, it did not alleviate intra-ethnic wealth disparities within Malay and indigenous communities. Nor did it do anything to assist poor non- Malay communities. The NEP and its reliance on the concept of ketuanan Melayu has been criticised for dividing racial groups, and for suppressing entrepreneurial, independent and risk-taking behaviour among Malays. The NEP has also been criticised for capital flight, a brain drain and decreasing levels of foreign direct investment. It was hoped that the NEM would signify a genuine move away from racially based affirmative action towards a policy driven by needs. At the launch of the NEM, Prime Minister Najib Razak made great effort to stress the point that the NEM will strike a balance between maintaining the special position of the bumiputera and the interests of the other groups. The New Economic Policy has been a milestone of our society for decades, a policy I have fully supported and admired. Its original objectives are still relevant, but it is time to review its implementation. We will chase the same goals, but transform the way we do things. Our renewed affirmative action policy, therefore, will be built on four principles: it must be market friendly; it must be merit based; it must be transparent and it must be needs based. 28 The NEM would, among other things, revise the affirmative action policy into a new growth policy that will cover all persons in the bottom forty per cent of households, regardless of their race. 29 Not surprisingly, Perkasa, the far-right Malay NGO, immediately criticised the NEM and urged the government to revamp it so that it does not ignore bumiputera interests. 30 Observers believe that Perkasa has influenced the government significantly. At the Bumiputera Economic Congress, opened by Perkasa s Ibrahim Ali, speakers united in condemning what they considered to be the anti-malay policy. To allay fears, Najib said that the NEM was not finalised, and that he would defend Malays. 31 Come June 2010, the government announced that the NEP goal of 30 per cent bumiputera corporate equity ownership by 2015 remained intact in the NEM. 32 On 3 December 2010, when the second part of the NEM was released, the report called for a review of the previous affirmative action, such that the negatives and flaws from past practices could be removed

134 Malaysia Human Rights Report 2009 Political analyst University Malaya Professor Edmund Terence Gomez is sceptical about the changes in the NEM and believes that this is just the NEP repackaged: Najib says that the affirmative action policy will now be needs-based instead of race-based. But the aspects of its transparency and marketfriendliness are clearly targeted at Bumiputeras (Ethnic Malays). And this is no different from the NEP. 34 Meanwhile, Professor Lim Teck Ghee urged the government to explain the details of the new merit-based or needs-based affirmative action, as well as how and when discriminatory policies and programmes in education, housing, corporate equity, land alienation and other areas of the economy would be phased out. 35 Allah Controversy and Protection of Islam The Federal Constitution defines an ethnically Malay person as, among other things, a person who professes the religion of Islam. 36 This conflation of religion and race is exploited by UMNO to win votes. The ongoing politicisation of religion and UMNO s emphasis on the survival of the Malays and Islam has been an intentional strategy to create anxiety amongst Malay voters and win votes as the champion of Islam and Malays. The ongoing controversy about Christian use of the word Allah, which began with the Home Ministry banning non-muslim use of the word, is a potent example of the manipulation and fear tactics used. Christians in Sabah and Sarawak have used the word Allah for decades without being considered a threat to Islam, and there was no racial or religious tension over the usage of the word until the government imposed a ban on the Roman Catholic Church s publication, The Herald, using Allah to refer to God. Since the government imposed the ban in January 2008, racial and religious tensions have grown, and government actions or lack of action - have fanned the flames. The ban was imposed because using the word Allah to refer to the Christian God would purportedly confuse Muslims (possibly leading them away from Islam), and was labelled a matter of national security by the Home Ministry. The Roman Catholic Church appealed and before the court case could be heard, religious authorities in ten states (Johor, Malacca, Negri Sembilan, Pahang, Perak, Kelantan, Terengganu, Kedah, Perlis and Selangor) issued fatwa prohibiting non- Islamic uses of the word Allah. 37 It was not only Christians and Sikhs (who also use the word Allah) who were offended, but the non-muslim communities more widely. Racial and religious tensions were vented across the internet and within communities. By the time the Kuala Lumpur High Court ruled in favour of the Archbishop of Kuala Lumpur at the start of 2010, allowing The Herald to use the word Allah, 38 racial tensions were at an all-time high. Perpetuating the controversy, Home Minister Hishammuddin Hussein immediately declared that the government would appeal the decision and gave almost unheard of permission for a public protest in opposition to the court s decision. 39 Some state funded mosques in Kuala Lumpur and Selangor displayed banners about protecting the sanctity of the word Allah from non-muslims, and a series of attacks on twelve churches, a Sikh temple and the office of the lawyer representing the Catholic Church ensued. As tensions escalated there were also attacks on three mosques and two Muslim prayer rooms, with a bottle of alcohol thrown at one of them

135 Racism, Racial Discrimination and Related Intolerance When a journalist suggested UMNO had been fanning the flames since the court verdict, Prime Minister Najib accused the journalist of making a very scurrilous statement. 41 Numerous quarters, including the BN coalition partner the MCA, have lobbied the government to drop their appeal for fear that tensions may grow further. 42 The MCA was publicly berated for this request. 43 The government s appeal, still unheard at the end of 2010, is politicising religion more than ever and providing fertile ground for religious and racial tensions to fester and escalate further. (See Chapter 6 for further discussion about the controversy over the use of the word Allah) Racial tensions took another turn for the worst in July 2010 when the court handed down its verdict for those charged after using a slaughtered cow s head while protesting against the relocation of a Hindu temple on 28 August One person was sentenced to one week in jail, with eleven others receiving a fine. The sentences were considered lenient and much of the public were of the view that a non-muslim protesting in a similarly offensive manner would have received a much stronger penalty. 44 Human rights groups opposed the protesters being charged under Section 27 of the Police Act and the Sedition Act as both these laws undermine fundamental human rights. Race Relations Act and Equal Opportunities Commission On numerous occasions, SUARAM has advocated the enactment of a Race Relations Act and establishment of a permanent Equal Opportunities Commission to better deal with issues related to racism. Modelled on the British Race Relations Act 1976, this would criminalise any incitement to racial hatred : A person commits an offence if he publishes or distributes written matter which is threatening, abusive or insulting; or he uses in any public place or at any public meeting words which are threatening, abusive or insulting, in a case where, having regard to all the circumstances, hatred is likely to be stirred up against any racial group 45 In 1987, UMNO Youth organised a rally at the Jalan Muda Stadium in Kuala Lumpur at which banners read: MAY 13 HAS BEGUN ; SOAK THE KRIS IN CHINESE BLOOD, among others. This can be corroborated in the Government White paper, Towards Preserving National Unity, It was also covered by the Chinese-language press at the time. Only a few years ago, an Education Minister tried to play to the gallery at an UMNO general assembly by saying that, as long as he was the Education Minister, he would not allow a single non-bumiputera to be admitted into UiTM! These two examples are the reality of racism and racial discrimination in Malaysia. When we bear in mind that UiTM has a total enrolment of some 100,000 students and that it is a public funded institution, it is shocking that the government can get away with such blatant racial discrimination by justifying it as affirmative action. A Race Relations Court will be able to determine and define the legality or illegality of such actions and an Equal Opportunities Commission can work toward the elimination of racism and racial discrimination; promote equality of opportunity and harmonious ethnic relations, and keep under review the workings of the Act. Is there any wonder the Government has not ratified the United Nations Convention against Racial Discrimination up to the present day? 135

136 Malaysia Human Rights Report 2009 Conclusion Racism has become institutionalised in Malaysian policy making, through a particular and repeated interpretation of the Constitution. This interpretation is presented by policy makers as a necessary affirmative action programme. In reality however, this is a misinterpretation, a story that if told often enough, will be taken as the truth at least, that is what policy makers hope for. It is these small political and economic elite who benefit from a vicious circle of racial politics. Race has therefore become increasingly politicised and racial propaganda is common. For the majority, institutionalised racism in Malaysia is a disservice. Intra-ethnic wealth is more disparate than ever before, and the poorest people in the country do not benefit from policies drafted to address their needs. While the NEM had offered some hope for policy change, the Najib government has decided to cling to its populist bumiputera policy. Beyond this, changing racially based employment, education and housing policies, to name but a few, will require a significant shift in political will and government mentality. The 1Malaysia campaign is pure rhetoric. A populist slogan, designed to do little more than bring BN voters to the polls. It remains to be seen whether such a tactic will pay off when the Malaysian public do not benefit from any policy change and see racist propaganda continue and racism by government officials go unchecked. Racial tensions continue to rise in Malaysia, when all many Malaysians want is to be respected and treated equally as Malaysian citizens. In order to achieve this it is imperative that policy making is not underpinned by racial determinants. That is, political parties and other political players must stop politicizing race. It is vital that all Malaysian ethnic identities are simultaneously genuinely embraced and cultural diversity seen as a source of strength and asset to the nation. Finally, it is essential that a Race Relations Act be enacted to criminalise incitement to racial hatred and an Equal Opportunities Commission is established, to hear complaints of racial discrimination, with the authority to investigate and enforce just decisions. 136

137 Racism, Racial Discrimination and Related Intolerance End Notes 1 2 Malaysian Government White paper (1988) Towards Preserving National Unity Kua Kia Soong (2005) The Malaysian Civil Rights Movement, SIRD (p.108) 12 Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December Entry into force 4 January 1969, in accordance with Article Malaysiakini (1 February 2001) Police report against Sunday rally cites racial tension, K Kabilan 13 International Convention on the Elimination of All Forms of Racial Discrimination, www2.ohchr.org/english/law/cerd.htm, accessed 16 May Percentages and numbers of death by police shooting cases, according to race and nationality: Indonesians % (113 deaths); Indians % (61 deaths); Chinese % (52 deaths); and Malays - 15% (42 deaths). (Lawyers for Liberty (6 June 2010) Top 10 facts from the PDRM fatal shootings statistics ( ), lawyersforliberty.org/2010/12/top-10-facts- from-the-pdrm-fatal-shootings-statistics %e2%80% /, accessed 24 May 2011) US State Department (28 January 2011) Background Note: Malaysia, Bureau of East Asian and Pacific Affairs, gov/r/pa/ei/bgn/2777.htm, accessed 24 May 2011 K. Arumugam (2007) March 8, Petaling Bintulu Edition (5 April 2010) Thugs threaten NCR landowners over logging dispute, gangsters-threaten-balingian-ncr-landownersover-dispute-with-logging-company.php, accessed 19 May 2011 Report of the Federation of Malaya Constitutional Commission 1957, Govt Press, para 165 (p.72) Malaysiakini (30 November 2010) Dr M: Forget our roots if we want to achieve 1Malaysia, Hazlan Zakaria, malaysiakini.com/news/149588, accessed 18 May 2011 Malaysiakini (11 December 2010) Can Ketuanan Melayu and 1Malaysia co-exist?, Adila Razak, news/150522, accessed 18 May 2011 Ibid. Malaysiakini (27 November 2010) Azizah rallies party faithful, trashes ketuanan Melayu, Aidila Razak, malaysiakini.com/news/149313, accessed 18 May 2011 The Malaysian Insider (19 August 2010) BN Youth wants racist school principal punished, com/malaysia/article/bn-youth-wants-racistschool-principal-punished, accessed 18 May 2011 The Sun (9 November 2010) Non-Malays patriotism not strong enough, Husna Yusop, cfm?id=53844, accessed 18 May Government of Malaysia Census 1980 Written reply to parliamentary question, Dec 1990 Kua Kia Soong (1990) Malaysian Cultural Policy and Democracy, Huazi Research Centre, The Malaysia Insider (9 November 2010) Why fewer non-malays in military? Low patriotism and fear of discipline, says ministry, Shazwan Mustafa Kamal, article/why-fewer-non-malays-in-militarylow-patriotism-and-fear-of-discipline-saysministry/, accessed 18 May

138 Malaysia Human Rights Report The Malaysian Insider (14 November 2010) Cabinet gag order on non-malay numbers in military, says Koh, Melissa Chi, web1.themalaysianinsider.net/malaysia/ article/cabinet-gag-on-non-malays-numbersin-military-says-koh, accessed 18 May Razak, N. Prime Minister (30 March 2010) Full text of PM s speech at launch of NEM, published at story.asp?file=/2010/3/30/neweconomicmo del/ &sec=neweconomicmo del, accessed 18 May The Star (30 September 2010) Racist remarks: Public complaints bureau to probe Hamim on Thursday, my/news/story.asp?file=/2010/9/30/nation / &sec=nation, accessed 18 May 2011 The Malaysian Insider (8 November 2010) Putrajaya says BTN official suspended over racist remarks, Shazwan Mustafa Kamal, malaysia/article/putrajaya-says-btn-officialsuspended-over-racist-remarks/, accessed 18 May 2011 The Malaysian Insider (18 October 2010) Government insists prompt action taken against racist officials, Shazwan Mustafa Kamal, com/malaysia/article/government-insistsprompt-action-taken-against-racist-officials, accessed 18 May 2011 The Malaysian Insider (19 August 2010) BN Youth wants racist school principal punished, Boo Su-Lyn, com/malaysia/article/bn-youth-wants-racistschool-principal-punished, accessed 18 May 2011 The Malaysian Insider (11 October 2010) Speaker claims racist principals already disciplined, Shazwan Mustafa Kamal, article/speaker-claims-racist-principalsalready-disciplined, accessed 18 May 2011 Ibid. 29 The Star (30 March 2010) PM: New Economic Model to benefit all, com.my/news/story.asp?file=/2010/3/30/ne weconomicmodel/ &sec=ne weconomicmodel, accessed 18 May Malaysiakini (29 May 2010) Malay coalition wants Najib to revamp NEM, Hazlan Zakaria, news/133084, accessed 18 May Malaysiakini (30 May 2010) Najib vows to never betray NEP, Hazlan Zakaria, malaysiakini.com/news/133132, accessed 18 May 2011 Malaysiakini (10 June 2010) Bumi equity target still 30%, Aidila Razak, malaysiakini.com/news/134142, accessed 18 May 2011 Bernama (3 December 2010) New Economic Model (NEM), published at accessed 18 May 2011 Free Malaysia Today (31 March 2010) NEM a fresh gloss on old ideas, says prof Ibid. Article 160, Federal Constitution of Malaysia 37 The Star (10 March 2009) Remaining states to gazette ruling for non-muslim publications, n e w s / s t o r y. a s p? f i l e = / / 3 / 1 0 / nation/ &sec=nation, accessed 15 May

139 The Star (1 January 2010) High Court grants Catholic publication Herald the right to use Allah word again, com.my/news/story.asp?file=/2010/1/1/ nation/ &sec=nation, accessed 15 May 2010; My Sin Chew (31 December 2009) Court rules Catholic Herald can use Allah word, accessed 14 November 2010 My Sinchew (6 January 2010) Home ministry to allow protests against Allah ruling, www. mysinchew.com/node/33598, accessed 5 May 2011 Associated Press (17 January 2010) Rum bottle thrown at Malaysia mosque amid tension published at com/27653/rum-bottle-thrown-at-malaysiamosque-amid-tension/, accessed 5 May 2011 The Star (9 January 2010) Najib condemns attacks, Mazwin Nik Anis, com.my/news/story.asp?file=/2010/1/9/ nation/ &sec=nation, accessed 5 May 2011 The Malaysian Insider (3 August 2010) DPM warns MCA over Allah appeal, Asrul Hadi Abdullah Sani, com/malaysia/article/dpm-warns-mca-overallah-appeal, accessed 5 May 2011 The Malaysian Insider (3 August 2010) DPM warns MCA over Allah appeal, Asrul Hadi Abdullah Sani, com/malaysia/article/dpm-warns-mca-overallah-appeal, accessed 5 May 2011 Reuters (27 July 2010) Malaysia fines Muslims for hindu temple protest, Razak Ahmad, idinindia , accessed 26 April Incitement to racial hatred was established as an offence by the provisions of of the Public Order Act It was first established as a criminal offence in the Race Relations Act The Criminal Justice and Public Order Act 1994 made publication of material that incited racial hatred an arrestable offence. This offence refers to: deliberately provoking hatred of a racial group distributing racist material to the public making inflammatory public speeches creating racist websites on the Internet inciting inflammatory rumours about an individual or an ethnic group, for the purpose of spreading racial discontent.

140

141

142 Malaysia Human Rights Report 2009 Everyone has the right to seek and to enjoy in other countries asylum from persecution. Article 14, The Universal Declaration of Human Rights Malaysia is not party to the 1951 United Nations Convention relating to the status of refugees and as such does not recognise persons claiming refugee status or asylum seekers. The Malaysian government, June Malaysia can and must do better for its workforce. Everyone, regardless of immigration status, is entitled to safe and fair working conditions and to equal treatment under the law. Michael Bochenek, Director of Policy, Amnesty International, March 2010 In 2010, Malaysia showed no intention of ratifying the 1951 UN Convention Relating to the Status of Refugees 2 and its 1967 Protocol. If Malaysia were to sign these, the government would recognise refugees and asylum seekers as a special category of people who need international protection under Malaysian laws. Malaysia currently provides refugees and asylum seekers with no legal status. Even if a refugee is formally registered with the United Nations High Commissioner for Refugees (UNHCR), Malaysian law does not recognise that the country has any obligation to provide protection. Malaysia maintains a blanket policy that all undocumented migrants, including refugees and asylum seekers, are illegal migrants without any right to work. As such, Malaysia is criminalising refugees and asylum seekers flight from persecution in their home countries in order to seek protection elsewhere, a right accorded to them under international law. The right to seek asylum is enshrined in Article 14 of the Universal Declaration of Human Rights (UDHR). Being a signatory to the UN Convention on the Rights of the Child, Malaysia has taken a commitment to provide assistance and protection to refugee children. Despite this, child refugees are subject to detention and live economically and physically uncertain lives with no legal status. Most refugee children do not have access to education, although the government says it supports refugee children s right to education. All persons found to be undocumented, including refugees registered with UNHCR and children, are subject to the harsh stipulations of the Immigration Act 142

143 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons 1959/ They live in fear of arrest, arbitrary detention in appalling conditions, caning as punishment and deportation. The vulnerable legal status that both migrant workers and refugees have in Malaysia makes them vulnerable to human trafficking, which Malaysian immigration officials continue to be involved in. SUHAKAM received thirty three complaints about abuses of migrant workers rights in 2010, and another thirty about abuses of refugees rights. 4 These complaints constituted the third largest number of complaints to the human rights commission after complaints about police power and preventative detention laws, comprising of nineteen percent of all complaints made in peninsular Malaysia. Bearing in mind that refugees and migrant workers are amongst the least likely to lodge complaints as a result of their immigration status, this indicates a crisis in the human rights situation of migrants and refugees in Malaysia. The Immigration Act 1959/1963 & the Emergency (Essential Powers) Act 1979 The Immigration Act 1959/1963 provides the Malaysian police and immigration authorities with widespread powers to arrest, detain, and eventually deport undocumented persons. Powers of arrest and detention of undesirable persons or suspected illegal immigrants were extended to the People s Volunteer Corps (Ikatan Relawan Rakyat, RELA) in 2005, by the Essential (Ikatan Relawan Rakyat) (Amendment) Regulations 2005 amending the Emergency (Essential Powers) Act Under Section 6 of the Immigration Act, persons without documents or a valid visa can be sentenced to up to five years in prison, fined up to RM10, 000 and subjected to six strokes of the cane. As refugees have no legal status in Malaysia, this law applies to them in exactly the same way as migrant workers. Refugees and Asylum seekers in Malaysia As of September 2010, there were 90,229 refugees and asylum seekers registered with the United Nations High Commissioner for Refugees (UNHCR). Over ninety percent of refugees and asylum seekers in Malaysia are from Burma, with more from countries including Sri Lanka (over 3,000), Somalia, Iraq and Afghanistan. Burmese refugees come from a number of ethnic groups within Burma, with the largest group registered with UNHCR being the Chin, followed by the Rohingya. 5 Despite having no citizenship rights in Burma, when boats carrying Rohingya refugees arrived in Malaysian waters in 2009, then-prime Minister Abdullah Ahmad Badawi said We have to be firm at all borders. We have to turn them back. 6 Malaysia and other ASEAN governments dealt a further blow to the Rohingya in 2010, labeling them as illegal migrants in the Indian Ocean. 7 It seems that the whole of ASEAN refuses to accept the refugee status of the Rohingya. In 2009, twenty percent of refugees were women and twenty five percent were minors. 8 If the same demographic breakdown was true in 2010, there would be 18,060 women and 22,575 minors. Most refugees eventually live in urban areas of Malaysia, struggling to survive. Whether they have UNHCR registration or not, refugees live in constant fear of abuse, exploitation, arrest and detention from authorities. While daily arrest and detention of UNHCR card holders and non-unhcr card holders continues, refugees and asylum seekers report increased recognition of UNHCR cards since mid However, the waiting period in detention for asylum seekers to be given access to UNHCR remains long. 143

144 Malaysia Human Rights Report 2009 Table 7.1 Asylum Seekers and Refugees Registered with UNHCR in Malaysia, as of 30 September 2010 Country of Asylum-Seekers Refugess Total Origin / Ethnicity Persons Persons Persons MYANMAR Chi Rohingya Muslim Burmese Kachin Karen Arakanese Mon Shan / Thai Yai Kayah Others Myanmar Total OTHER COUNTRIES Sri Lanka Iraq Somalia Afghanistan Others Others Total 2808G Grand Total (Source: UNHCR) 144

145 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons International watchdog, the U.S. Committee for Refugees and Immigrants (USCRI) named Malaysia as one of the worst places for refugees in 2008 and In the 2009 survey, Malaysia received the worst rankings possible for refoulement and physical protection, arbitrary detention and denial of access to courts, and the right to earn a livelihood. There were over one hundred cases of refoulement (deportation of refugees to countries of origin where conflict or persecution may still occur). Over 220 refugees were arbitrarily detained and blocked from accessing the courts. Malaysia received the second worse ranking possible for freedom of movement and residence. 9 Malaysia as a Transit Country Malaysia is both a destination country for refugees and a transit country, from where they move to other countries in order to seek asylum and legal status and protection. An established route for refugees is from Malaysia to Indonesia and then on to the final destination of Australia. This trip can take many months/years and is estimated to cost up to AUD 15,000 (US dollars). 10 The trip is fraught with risk. Beyond the high risk of arrest and detention along the way, many of the boats refugees travel on are not sea worthy and the waters can be very dangerous. The tragic disaster of 15 December 2010 on the coast of Christmas Island, Australia, serves as a devastating illustration of the dangers inherent in this journey. A wooden fishing boat carrying refugees was smashed when it crashed on rocks as the boat approached land. An estimated forty-eight people were killed in the tragedy, with forty-two miraculously surviving. 11 The refugee issue has been highly politicised in Australia over the years, with government seeking ways to halt refugee flows by boat. The Australian government puts pressure on the Malaysian government to stop the number of people leaving Malaysia to travel to Australia to seek asylum. (For example, on 17 May 2010 eight Afghans were arrested as they left Malaysia, en route to Australia via Indonesia. 12 ) Refugees arrested as they attempt to leave Malaysia, including those with UNHCR cards, are indefinitely detained; some in immigration detention centres and others in regular detention centres, such as Simpang Renggam Detention Centre. On 28 October 2009 it was announced that Australian police would be sent to Indonesia, Malaysia, Sri Lanka and Pakistan. 13 There are an estimated 2 million regular (or documented) migrant workers in Malaysia, with a further estimated 1.9 million irregular (or undocumented) migrant workers. 14 Migrant workers comprise more than twenty percent of Malaysia s workforce, 15 and typically work on plantations, construction sites, textile factories, and as domestic workers. For many communities there is no clear line between refugees and migrant workers. Many migrant workers in Malaysia are believed to be refugees without UNHCR registration. Migrant workers in Malaysia are highly vulnerable, including those who are documented. Nearly all employers confiscate migrant workers passports meaning that migrant workers have neither the money, nor travel document, to return home or leave their employer. This has proven to be a particular problem for domestic workers, resulting in the Indonesian government wanting a new or amended Memorandum of Understanding, enabling Indonesian domestic workers to retain their passports. Most migrant workers take out substantial, high-interest loans to pay recruitment agents to secure work in Malaysia. Wage fraud and debt bondage are significant problems, with many deceived about the conditions, type or even existence of work. Many migrant workers find that despite paying 145

146 Malaysia Human Rights Report 2009 for what they thought was legal permission to work, they do not have legal work status and are forced to work twelve hours or more per day in dangerous conditions. An Amnesty International report in March 2010 identified that coercive practices such as these are indicators of forced labour. 16 Both Amnesty International and the US State Department agree with migrant worker advocates in Malaysia that coercive and repressive conditions such as these make migrant workers extremely vulnerable to trafficking. 17 On top of all this, living conditions can be as unsafe as the working conditions, and migrant workers are highly vulnerable to sexual, physical and psychological, and fear of harassment, extortion and arrest by police and RELA. Finally, it is hard for migrant workers to join trade unions and many migrant workers do not or cannot access the legal system, with labour court cases often taking months or years to resolve cases. In 2010, it was alleged that migrants working on the new National Palace site were subject to violations of their rights, including piecemeal payment of salaries; deplorable living conditions and inadequate diets. It was further alleged that children were living on site. Opposition MP Lim Lip Eng said he had been to the site and offered evidence including photos of children. Lim said he had been told there were ten children living there. 18 SUHAKAM visited the site, although they were denied access at first. 19 Their investigation found no evidence of migrant worker abuse, nor did it find any children living on the site. However, it is very possible that the most egregious violations and conditions were patched up before SUHAKAM visited, in the effective twenty-four hours notice that they had been given while the investigation team had to contact the contractors in order to gain access. UNHCR, Government Policies and Recommendations for reform Malaysia has long been urged to take steps to improve its protection of refugees and their human rights. During the Universal Periodic Review (UPR) of Malaysia at the UN Human Rights Council in 2009, the United Kingdom urged Malaysia to sign and ratify the 1951 Convention relating to the status of Refugees, while the Netherlands recommended that Malaysia develops with UNHCR an administrative framework to distinguish refugees and asylum seekers from irregular migrants and apply international standards for the treatment of foreign nationals. 20 The Malaysian government was unambiguous in its rejection of these recommendations, stating that Malaysia is not party to the 1951 United Nations Convention relating to the status of refugees and as such does not recognise persons claiming refugee status or asylum seekers. 21 As refugee status is not recognised in Malaysian law, United Nations High Commissioner for Refugees (UNHCR) registration in itself generally does not provide any special rights under Malaysian immigration laws. UNHCR only acts in a semi-official capacity in Malaysia with a restricted ability to provide protection to refugees and asylum seekers. In practice, UNHCR generally works on the basis of ad-hoc understandings with officials at the Immigration Department and police. Refugee identity cards On 2 February 2010, the Home Ministry announced the government was in the final stages of plans to issue identification (ID) cards to refugees recognised by UNHCR which would allow refugees to remain in the country temporarily and avoid arrest. 22 There has been longstanding pressure on 146

147 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons the government to provide such ID cards in the hope that this would alleviate the risk of arrest and detention, as well as the regular harassment and extortion by police, immigration officials and RELA. Refugee groups and advocates cautiously welcomed the announcement, but the government abandoned the idea in June on the pretext that their hands were tied as there was no provision in Malaysian law allowing for ID cards to be issued to undocumented migrants. 23 The Malaysian government could readily improve the situation for refugees by immediately stopping arrests and detentions of UN-recognised refugees holding UNHCR cards. Refugees right to livelihood The right to livelihood is a universal human right, enabling people to live in peace, security, justice and dignity. It includes, among other things, the right to dignified work and basic labour protections. The right to livelihood is protected in international law by a number of covenants and conventions, including Article 23 of the Universal Declaration of Human Rights. Following calls by the Malaysian Trades Union Congress (MTUC) 24 and others, the government announced on 22 February 2010 that the Home Ministry and the Ministry of Foreign Affairs would discuss allowing refugees to work during their temporary stay in Malaysia. Foreign Minister Anifah Aman identified that, It will benefit the country if refugees with certain expertise are allowed to work while they are here. 25 By the end of the year there had been no progress, only another announcement in November that a special cabinet meeting would discuss issues on foreign workers and refugee work rights in mid-december. 26 The MTUC argued that allowing refugees to work was a win-win situation whereby refugees can earn a livelihood, part of Malaysia s labour shortage can be met and the country s reputation as a humane country would be enhanced internationally. The MTUC said that it makes sense for refugees already in Malaysia to be able to fill jobs, instead of organising visas for new migrant workers. 27 The government has also acknowledged that refugees need to be able to work to survive, and that forcing refugees to work illegally heightens their risk of exploitation. 28 Migrant workers Following the 2010 ASEAN National Human Rights Institutions Forum, SUHAKAM made recommendations to the Malaysian Government, including: 1. Review laws and policies inconsistent with UN and International Labour Organisation conventions to which Malaysia is a party; 2. Amend labour laws to cover domestic work ; 3. Agree to the request from the Special Rapporteur on the Human Rights of Migrants to officially visit Malaysia; 4. Launch a public campaign against the holding of migrant workers passports by employers; 5. Scrap the current system of labour outsourcing; 6. Ensure that conditions in places of detention comply with internationally recognised human rights standards; 7. Assign medical staff to be permanently based at Immigration Detention Centres; 8. Collaborate closely with governments of sending countries in solving migrant workers problems; 9. Develop a comprehensive legal and 147

148 Malaysia Human Rights Report 2009 policy framework to regulate the recruitment, admission, placement, treatment and repatriation of migrant workers; and 10. Develop measures to identify trafficking in persons among migrant workers. 29 Exactly the same recommendations had been made two years earlier in SUHAKAM has also long encouraged the government to sign on to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW). Human rights groups and migrant worker advocates continue to urge the government to protect migrant workers human rights under law, and be clear that human rights violations must be stopped regardless of nationality or legal status. The current lack of legal protection directly increases the vulnerability of migrant workers to exploitation and trafficking. To quote Michael Bochenek, author of the Amnesty International report, Malaysia can and must do better for its workforce. Everyone, regardless of immigration status, is entitled to safe and fair working conditions and to equal treatment under the law. 31 Undocumented migrant worker amnesty In a welcome move, Deputy Prime Minister, Tan Sri Muhyiddin Yassin announced in May 2010 plans for an amnesty to undocumented migrant workers. The amnesty would allow undocumented migrant workers to be voluntarily repatriated without being penalized by the Malaysian authorities. Details of who would meet the costs of repatriation were not clear, but those in detention centres would have to return by plane and if they did not have the necessary money would have no choice but to remain in detention. 32 The last amnesty in 2004 was taken up by 230,000 people; however undocumented workers from Burma did not seem too interested in the proposal. (Over 70 per cent of workers from Burma in Malaysia are thought to be undocumented.) People left Burma either due to economic hardship or fear of persecution, meaning that returning to their homeland is not attractive or possible in some cases. 33 The amnesty was mainly targeted at Indonesian migrant workers. Abuses of Power by RELA Personnel and Immigration Department Officers RELA and immigration department personnel frequently refuse to recognise UNHCR cards. While there are some reports that this has improved slightly in recent years, UN-refugees are still subject to arrest and detention, and the associated fear. RELA as a distinct group has been criticised by local and international human rights groups for human rights abuses during raids on refugees and undocumented migrants and arbitrary detentions. Bribery, extortion, wrongful arrests and detentions beyond their mandate have all been reported. 34 A key motivation behind frequent and brutal raids prior to 2008 was the fact that RELA personnel were given MYR80 for every undocumented migrant they arrested. In 2008 payment changed to an hourly allowance rate of either MYR4 per hour (member) and MYR5.80 per hour (platoon leaders). 35 Many human rights violations of refugees and migrant workers go unreported due to their vulnerable immigration status and fear of possible reprisals. This means that RELA personnel guilty of abuses are only brought to account in the rarest cases. With no judicial oversight, a lack of adequate training, lack of standard operation procedures and no systematic accountability to a government department, RELA has the worst culture of 148

149 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons impunity of all law enforcement agencies in Malaysia. RELA have continued their harassment, raids and arrests of people they believe to be undocumented migrant workers and vulnerable asylum seekers and refugees. Local NGOs report these events to SUARAM and Amnesty International staff saw RELA personnel in early 2010 checking people for immigration documents near Central Market in Kuala Lumpur. 36 RELA at Immigration Detention Centres Following the second breakout at KLIA Detention Centre in August 2010, Home Ministry secretary-general Mahmood Adam announced that RELA would be involved in the management of immigration detention centres with police and immigration. It was announced that RELA members would be responsible for external security at immigration centres across Malaysia. 37 SUARAM has grave concerns about this, given the many allegations of poor treatment of detainees by RELA, including verbal, psychological and physical abuse when RELA was given responsibility for security at thirteen immigration detention centres in Under RELA security, two major riots were recorded, one in Lenggeng (April 2008) and the other in Semenyih (June 2008). 39 In mid-2009 the Immigration Department gradually replaced the part-time RELA personnel with its own officers. Some detainees claimed that conditions improved since RELA was replaced; 40 however, it has not been possible to ascertain if improvements were observed in all immigration detention centres around the country. SUARAM continues to argue that RELA should not have powers to act as a law enforcement agency, 41 let alone have responsibility for security at immigration detention centres. Arrests and Detentions In July 2010 the government stated that as of 30 June 2010, the total number of people in detention was 5, Joint raids on undocumented migrants by the police, the Immigration Department and RELA occur daily and often result in the mass arrests of migrants, refugees and asylum seekers. According to UNHCR, 3,500 UNHCR-recognised refugees and asylum seekers were arrested throughout Malaysia in The fear of raids and law enforcement agencies is almost as stressful as the raids themselves. To quote Yante Ismael from UNHCR in Malaysia, in a 2010 radio interview: What we ve learned from the refugees is that they do live in a constant state of fear of law enforcement agencies. Many refugees talk to us about raids that are done in order to weed out the undocumented migrants but where refugees are also swept up in these operations. And of course this creates a constant state of stress and fear for the refugees. 44 Forty-two Sri Lankan refugees and asylum seekers were arrested in Ipoh on 23 March and detained at Langkap Immigration Detention Centre. Twenty-one were refugees recognised by UNHCR but were detained regardless. It took just over one week for UNHCR to obtain the release of the refugees and asylum seekers. Children in detention In a parliamentary written reply during the June/July 2009 session, the Home Ministry revealed that they had detained 235,397 undocumented migrants between 2004 and 2008, 15.6 per cent (3,675) of whom were children below the age of 18. Most of these children were detained in 2008 when 2,397 children were held, a huge increase from the 149

150 Malaysia Human Rights Report 2009 Chart 7.1: Undocumented migrant detainees (incl. refugees) (source Home Ministry) 470 children in (see Chart 7.1) This huge jump in child detainees is one of the most concerning issues in recent years. The fact that Malaysia has ratified the Convention on the Rights of the Child (CRC) has not prevented child detentions. The CRC obligates the government to provide protection to asylum seeking and refugee children. The Convention also states that detention of children should only be a measure of last resort and for the shortest time possible. The largest numbers of child detainees come from Indonesia and Burma, with growth in child detainees from these and other countries alarming. Arrests upon arrival Cases of arrest upon arrival in 2010 include the 17 January 2010 arrest of twenty-six asylum seekers from Burma as the ferry they were on approached Port Klang. Twentyone were holding UNHCR cards issued in Thailand and Malaysian authorities would not permit them to seek asylum in Malaysia. 45 One hundred and eleven Sri Lankan asylum seekers were arrested upon arrival in two groups on 25 April. One group of seventy-five asylum seekers arrived on board a Malaysian-registered trawler and a fifty-seven hour stand-off ensued with authorities before they agreed to leave the boat and be taken into custody. 46 After being in detention for a month at KLIA detention centre, without being given any information about the progression of their cases, sixty-one of these seventy-five asylum seekers went on a hunger strike on 25 May. 47 Deportations In a parliamentary answer in July 2010, the government stated that 555,862 persons had been deported from Malaysia between 2000 and December Deportation rates are very high in Malaysia. On 23 March 2009, the government disclosed that of the 216,373 undocumented migrants (including refugees and asylum seekers) detained between 2005 and 2008, 88.5 per cent (191,583) were deported. 49 In January 2010 SUARAM issued an urgent appeal, to help secure the release of 150

151 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons nineteen Sri Lankan asylum seekers and refugees facing imminent deportation. Had the refugees been repatriated it would have been a case that breached the international law of non-refoulement, which prohibits people being returned to a place where their lives are in danger or they face persecution. The deportation was halted and the refugees were released after being given access to UNHCR who processed their asylum claims. 50 Access to Detention Centres and Justice Human rights groups remain gravely concerned that on 20 October 2009 the Sri Lankan High Commission officials were allowed access to 108 Sri Lankan UNHCRrecognised refugees in the Pekan Nenas Immigration Detention Centre. It was reported that the Sri Lankan representatives forced the refugees to sign repatriation agreements by means of force. SUARAM immediately released an urgent appeal to urge the Malaysian government to stop their repatriation to Sri Lanka. 51 After the matter became highly publicized, UNHCR and SUHAKAM also intervened to secure the release of the refugees. SUHAKAM reports visiting a number of immigration detention centres in This is a positive change when we recall that SUHAKAM was refused access into the KLIA Immigration Detention Centre by the Home Ministry in October Burmese refugees in Lenggeng Immigration Detention Centre went on a hunger strike on 22 February 2010, to protest the fact that they had not had access to UNHCR for two months. The leader of the hunger strike had been detained for seven months. Two days later UNHCR visited the detention centre and recognised three hundred detainees as refugees. 53 Reports indicated that UNHCR access to detention centres improved from March and April Those with verified asylum claims were released by Immigration to UNHCR, although the waiting period can take a month to more than six months. However, UNHCR s intervention in cases of arrest and detention can still be difficult, as it remains largely subject to the discretion of the Police and Immigration authorities. Special Immigration Courts Between December 2006 and March 2007, fourteen Special Immigration Courts were established at Immigration Detention Centres to speed up the processing of immigration cases. This has been criticised as it reduces the likelihood of a fair trial. Interpretation is not provided, meaning many do not understand the charges against them, nor can they obtain necessary assistance to prove their legal status when they have it. The isolated locations of the Immigration Courts also make it difficult to secure legal representation. As such, many persons charged have pleaded guilty either unknowingly or in order to avoid prolonged and indefinite detention, despite being innocent of charges brought against them. Between March and May 2007, volunteer lawyers and pupils from the Bar Council Legal Aid Centres held watching briefs in six such courts, in Immigration Detention Centres in Semenyih, Langkap, Juru, Pekan Nenas, Belantik (Kedah) and Machap Umboo (Malacca). Lawyers observed that 94.8% of the migrants facing charges were unrepresented with 89.9% pleading guilty; 74.4% of the accused were not told of the consequences of their plea. In 82.5% of the cases, the judge did not ask questions for clarification as to their age, sickness or family background. In October 2009, a news report revealed that in one court alone (the Special Immigration Court in the Semenyih Immigration Detention Centre), an average 151

152 Malaysia Human Rights Report 2009 of 200 to 300 cases were processed in a month. The report covered the hearings of three migrants who were being charged with immigration offences, and noted that all three cases were heard with sentences passed in under 20 minutes. The report also revealed that most migrants are denied bail even when they do not plead guilty. This was confirmed by an officer at the Immigration Department who said We do not allow bail because most of the time, the accused will run away. 54 Deaths in Immigration Detention In an oral answer to a parliamentary question, the government stated that 78 persons had died in immigration detention between 2005 and Of the 78 deaths, two were children. Thirty one of these deaths were in 2009 alone. This increase in deaths is a damning indictment of the detention system. The government had previously said that there were a total of seventy deaths in immigration detention centres from 2006 to September It was also stated that 2,571 detainees died in the country s prisons, rehabilitation centres, and immigration detention centres between 1999 and It is unclear whether these figures include detainees who died in medical centres as opposed to the detention centre. It is suspected they do not and, as such, the statistics of deaths under the custody of the Immigration Department could possibly be much higher than Table 7.2 reflects. Caning, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Malaysia has not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). As such, corporal punishment remains in Malaysia, with Section 6 of the Immigration Act 1959/1963 providing for persons without documents or valid visa to be given up to six strokes of the cane, as well as up to five years in prison and a fine up to MRY10,000. In December 2010 Amnesty International released the story of Nian Vung, a 23 year old refugee from Burma who had been caned in Malaysia for not holding documentation. Even though Nian Vung is now registered with UNHCR he continues to live in fear. I m afraid I ll be arrested again even with my UNHCR card, said Nian Vung. If I get arrested, I ll get the cane again. So I live in fear. Several refugees told Amnesty International they had been caned not just once, but a number of times. 58 In June 2009, the Malaysian government announced that 47,914 undocumented migrants had been sentenced to caning since amendments to the Immigration Act in At least 34,923 cases of undocumented migrant caning had been carried out between 2002 and 2008, 59 and 29,759 between 2005 and The U.S. Committee for Refugees and Immigrants 2009 report stated that a Table 7.2 Death in immigration detention, Year Number of deaths

153 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons child refugee was sentenced to caning for immigration violations. 61 Some detainees have also reported various forms of cruel, inhuman and degrading punishments whilst in detention. One former detainee interviewed in 2009 claimed that ill treatment and torture by authorities at the immigration detention centres are commonplace, with detainees randomly beaten or forced to perform inhuman and degrading acts. 62 Lwin (not his real name), a 54 year old former detainee, was beaten when he was accused of taking his confiscated hypertension medication from the rubbish bin in September Lwin was beaten with a one inch cane and a three foot long baton by several Immigration officers. He was beaten on the head, shoulders, thighs, throat and ribs. An officer also pressed his head to the floor with his feet. Following this, Lwin could not eat, drink or sleep properly for a week. Lwin was later released on 26 November 2009 after UNHCR registered him in the detention centre. 63 Overcrowding and Conditions of Detention We are provided with nothing in the camp except a set of clothes, with some lucky people getting two sets. And we do not even receive a bed sheet and blanket. We must purchase the blanket ourselves, 80 ringgits for one blanket. Only 30 prisoners out of 300 can afford to have a blanket. There is also inadequate medicine or proper care for the sick. Only those who are seriously ill are sent to the clinic. So, three prisoners passed away in the prison while I was there in the camp. Since we are not fed properly, many prisoners frequently get sick. Burmese refugee, February The problem of overcrowding at immigration detention centres has become arguably the most critical problem in recent years. While overcrowding persists, raids and arrests continue, compounding the dire situation. This problem was reinforced by both SUHAKAM in its 2010 report on the state of prisons and immigration detention centres in Malaysia, and the UN Working Group on Arbitrary Detention following its mission to Malaysia. In comparison with the situation in prisons, overcrowding in immigration detention centres is generally more severe, to a large extent due to Malaysia s strict immigration policies and lengthy immigration procedure [T]he reality is that there is simply not enough infrastructure to accommodate such large numbers of detainees. SUHAKAM (2010) pp The Group could observe that conditions in prisons and in Simpang Renggam Detention Centre are considerable better than those at the Immigration Detention Centres, which are in a deplorable state. UN Working Group on Arbitrary Detention (7-8 June 2010) 65 Former detainees in the Semenyih Immigration Detention Centre, for example, reported to SUARAM that up to 400 inmates are housed in a cell measuring 50 by 25 square feet with only four toilets available for all inmates. In 2007 several centres were reported to be operating at up to 30 percent over capacity,1 with overcrowding expected to be worse in As a result of the overcrowding, migrant and refugee children have been placed together with adults. 67 This contravenes Article 37(c) of the Convention on the Rights of the Child (CRC), to which Malaysia is a signatory. SUHAKAM has also noted this as a matter of serious concern

154 Malaysia Human Rights Report 2009 Detainees report frequent violence among inmates, abuse by guards, a deplorably deficient diet, unhygienic environment and insufficient water supply. For example, a former Burmese detainee reported in 2008 that the Lenggeng Immigration Detention Centre in Negeri Sembilan only had two big pails of water available to each block of detainees per day. (A block contains more than 200 people.) Some detainees report not having access to any drinking water and resorting to drinking water from toilet cisterns. 69 Cuts to water supplies are frequent, as are floods from pipes and problems with sewage systems. 70 While the situation varies from one detention centre to another, SUARAM s interviews with refugees indicate conditions in the remotely located depots are likely to be worse. 71 Such overcrowding and poor infrastructure results in deplorable living conditions and unsanitary environments, escalating the risk of ill health and communicable disease. Many detainees contract infections such as tuberculosis and skin diseases as a result of living in an overcrowded environment and sleeping on concrete floors without blankets or bedding. Two Burmese detainees died in an outbreak of Leptospirosis (an infectious disease that occurs through contaminated water or food) at Juru Immigration Detention Centre in May The outbreak of the disease attested to the deplorable conditions at immigration detention centres. In 2010 SUHAKAM identifies that overcrowding is at crisis point. To reduce overcrowding, SUHAKAM makes several good recommendations, including investigating alternatives to detention, and distributing detainee numbers evenly. 72 However, in an alarming move, SUHAKAM also recommended repatriating foreigners as soon as possible, without any stipulations about how this may be done in a way that protects detainees rights. 73 It is deeply disappointing that SUHAKAM s recommendations and conclusions did not stress the importance of not returning refugees and asylum seekers back to countries where they may be subject to persecution. Repatriations may be rushed with detainees not having access to UNHCR, and increasing cases of refoulement could result. It is urgent that a proper process be developed to handle all repatriation cases to ensure against refoulement. Medical treatment There are no medical check-ups for detainees and on-site medical facilities are unavailable in some detention centres, including Semuja, Tawau, Sandakan, Kota Belud, and Lenggeng. SUHAKAM has further identified that there is no medical officer stationed at an immigration detention centre. Instead, any arrangements for providing medical care and services are at the discretion of the officer-in-charge. 74 Detainees who are unwell are frequently treated with aspirin or penicillin-based pills, regardless of their complaint, and only taken to hospital after they become critically ill. 75 Some detainees have reported having their medication confiscated. 76 A former detainee interviewed by a journalist upon his release in August 2009 revealed that a female detainee had died as immigration detention authorities had failed to provide immediate medical attention. 77 Numerous other deaths have occurred as a result of inadequate medical facilities and poor response by persons of authority within the detention centres. 154

155 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons Riots and unrest Over the years riots have occurred in various Immigration Detention Centres, most following incidences of abuses and violence against detainees or unbearable conditions of detention. According to police, poor treatment resulted in a riot at Ajil Immigration Detention Centre on 5 June Immigration officers denied this claim, and placed the blame squarely on two Vietnamese troublemakers who were subsequently deported. 78 There was no commitment to improving the conditions at detention centres. Just a week later SUARAM was informed that an estimated five hundred detainees from Burma at Lenggeng Immigration Detention Centre had gone on hunger strike to protest against the lack of water for 5 days. Again, the Immigration department rebuffed accusations about detention conditions and denied that there was a lack of water supply. Camp commandant Naser Awang refused to contemplate the suggestion that conditions might be poor, and instead said detainees from Burma who were not refugees often caused problems. 79 The second escape from KLIA Immigration Detention Centre in August 2010 (the first was in March 2010) should have alerted the authorities to urgently review and improve conditions at immigration detention centres. However, the government seemed more concerned about security. 80 SUARAM issued a press statement, urging the government to ensure that the basic rights of detainees were met: These include providing clothing, bedding, adequate clean water, sufficient diet, on-site access to health care, personal sanitary supplies, and daily activities. 81 Immigration director-general Abdul Rahman conceded that basic facilities needed urgent attention, citing poor ventilation, deplorable sanitation systems, lack of recreational space and overcrowding. Rahman identified the poor conditions as push factors which make the detainees want to get out quickly. 82 In August 2010 the government said camps would be undergoing a major revamp, including separate centres for men and women; separate centres for those detained for Immigration offences and criminals. 83 The timeframe for this revamp was unknown. Semenyih detention centre underwent repairs following a riot in July 2009 and a new detention centre was built in Papar, Sabah. Trafficking in Persons The majority of trafficking victims in Malaysia are refugees or foreign workers who willingly migrate to Malaysia from countries including Indonesia, Nepal, India, Thailand, China, the Philippines, Burma, Cambodia, Bangladesh, Pakistan, and Vietnam. Once they arrive they encounter forced labor or debt bondage, with many forced into prostitution in Malaysia and the Middle East. A new trend has been identified by Indonesian police whereby Indonesians are recruited in Malaysia for Umrah, a religious pilgrimage to Mecca, and upon arrival in Saudi Arabia they are then trafficked to other places in the Middle East. Some Malaysians, mostly from rural communities and indigenous groups, are trafficked internally and abroad to Singapore, Hong Kong, France, and the United Kingdom for commercial sexual exploitation. 84 Tackling trafficking After being downgraded by the United States Department of State in 2009 to Tier 3 the worst category - of countries which do not comply with the minimum standards for the elimination of human trafficking, 2010 saw Malaysia return to Tier 2. Malaysia was a Tier 3 country in 2007, upgraded to Tier 2 in 2008, after the Anti-Trafficking in Persons Bill was introduced, 155

156 Malaysia Human Rights Report 2009 making human trafficking a punishable offence. In 2009 Malaysia was downgraded to Tier 3 due to a lack of significant efforts by the government to eliminate trafficking, including a number of credible reports of Malaysian immigration authorities involvement in the trafficking of Burmese refugees from immigration detention centers to the Thai-Malaysian border. 85 A report released by the Committee on Foreign Relations of the United States Senate in April 2009 also revealed Malaysian immigration officials involvement in the trafficking of refugees from Burma. 86 The Malaysian government refuted allegations of immigration officers involvement in human trafficking in 2008 and The problem is far from resolved and immigration personnel are still involved in human trafficking, but 2010 saw arrests of immigration officers involved in human trafficking. In early October 2010, seven Immigration officers and two foreigners were arrested for human trafficking. 88 Despite the creation of the Anti-Trafficking in Persons Act 2007 to handle trafficking cases, these nine were arrested under the Internal Security Act. SUARAM is opposed to the accused being held under the Internal Security Act (ISA) as preventative laws deny protection under the law. Combating human trafficking must not be at the expense of human rights. Long-established syndicates remain intact and active and The US Department of State 2010 Trafficking in Persons report found that refugees were particularly vulnerable to trafficking, and that despite government efforts there was limited progress in convicting traffickers. 89 Cases in point include the ten refugees from Burma reported in January 2010 to have been taken from Belantik Immigration Detention Centre by Immigration officers and sold to trafficking agents, and the case of two other refugees from Burma sold to an agent in Penang in December The men sold in Penang reported being told that they were being moved to a different detention camp, but were instead taken to a house where large sums of money were given to immigration officers in exchange for the refugees. The refugees reported then having to pay MYR2,600 each to be let free. 90 Trafficking victims In October 2010 the Anti-Trafficking in Persons Act was subject to regressive amendments that will undermine efforts to combat human trafficking and reduce protections for undocumented migrants. The amendments conflate undocumented migrants and victims of human trafficking, reducing protection to victims of trafficking and subjecting them all to immediate deportation. The amendments contravene Malaysia s obligations under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which Malaysia accepted in By virtue of the provisions of Section 25 of the Anti-Trafficking in Persons Act 2007, trafficked persons should not be treated as prisoners. However, many victims of trafficking, including women and children, have been rescued only to be detained in detention centres with other undocumented persons. For example, the twenty Afghans who escaped from KLIA Immigration Detention Centre on 1 August were victims of human trafficking who, after being saved, were detained for nearly six months. 91 Victims of trafficking are effectively criminalised, with no information about when they may be freed or what will happen to them. There needs to be designated safehouses for victims of trafficking, as supported by Immigration director general Abdul Rahman Othman. After the Afghans escaped from KLIA detention centre, Immigration director general Abdul Rahman Othman was clear that trafficked victims must be treated 156

157 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons differently from the other undocumented detainees. Rahman spoke of better and more appropriate conditions for female victims of trafficking who are housed at a specific shelter home, compared to male victims who are in the detention centre. It becomes a psychological burden to them because they cannot understand why they are being detained and have no idea when they will be released. 92 Conclusion In 2010, the Malaysian government still refused to ratify the 1951 Convention relating to the Status of Refugees. Accorded no legal status in Malaysia, refugees are especially vulnerable to trafficking. Many migrant workers also live in such fragile circumstances, with many effectively subject to forced labour and other coercive practices. Such conditions also increase the chances of becoming victims of human trafficking. SUHAKAM s recommendation that overcrowding in immigration detention centres can be alleviated partly by repatriating those arrested faster, must not be adopted without clear and detailed processes being established to ensure that all persons wishing to seek asylum in immigration detention centres have access to UNHCR for their asylum claims to be processed. There is a real possibility that rushed repatriations will mean that refugees and asylum seekers are sent back to governments from whom they have fled for fear of persecution, known as refoulement. There are better ways to tackle overcrowding, that can be undertaken immediately and carry no risk of human rights violations. The government should ratify the 1951 UN Convention Relating to the Status of Refugees and its 1967 Protocol, and immediately implement its previously proposed ID cards for refugees. The government should stop arresting and detaining all refugees, asylum seekers, stateless persons, trafficked persons and children, and explore alternatives to detention for undocumented migrant workers. The government should also take swift action to that refugees may be permitted to work full-time. RELA should not be involved in raids and arrests of refugees and undocumented migrant workers and the government should remove their security responsibilities at immigration detention centres as experience has shown that human rights violations escalated under their watch last time they had security responsibilities. While the government has finally taken some action against immigration officers involved I human trafficking, much more remains to be done and arrests cannot come at the expense of even more human rights violations. As such, the government should tackle trafficking under the national law that has been design to do so, not the Internal Security Act. Finally, ASEAN and its component governments fail to discuss, let alone address, the root causes of large refugee populations, as well as undocumented migrants. While Malaysia and other ASEAN governments refuse to tackle member countries human rights violations, refugee populations will continue to grow. There are also growing concerns about the increasing cooperation between Malaysia and Australia on immigration, and Australia s desperate search for a regional solution to the refugee problem. 157

158 Malaysia Human Rights Report 2009 End Notes Report of the Working Group on the Universal Periodic Review, Malaysia Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, A/HRC/11/30/Add.1, dated 3 June 2009 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) SUHAKAM (2011) Annual Report 2010, Human Rights Commission of Malaysia: Kuala Lumpur (p.36) U.S Committee for Refugees and Immigrants (2009) World Refugee Survey 2009, Arlington VA: USCRI (p.51) Minister Chris Bowen (Australia) (18 May 2011) Malaysia deal is a safe solution, published in The Australian, theaustralian.com.au/national-affairs/ commentary/malaysia-deal-a-safe-solution/ story-e6frgd0x , accessed 2 June 2011 Australians have demanded an explanation from their government as to how such a tragedy could occur when the navy and customs patrol the waters for safety and immigration purposes. An internal inquiry by the Australian Customs Service was ordered, despite public pressure for a more thorough and transparent investigation The Rohingya are Muslims from Arakan state in Burma and are denied citizenship by the dictatorship in Burma, with the dictatorship in Burma claiming they are illegal migrants from Bangladesh. Rohingya people suffer extreme persecution and gross human rights violations, including forced labour. Rohingya are subject to repression in all walks of their day-to-day and private lives, including seeking permission before they marry, and to leave their village. Bangkok Post (27 February 2009) Abdullah: We must be firm in turning back Rohingya, www. bangkokpost. com/ news/ local/12370/abdullah-we-must-be-firm-inturning-back-rohingya, accessed 20 May 2010 Chairman s Statement of the 14th ASEAN Summit, ASEAN Charter for ASEAN Peoples, Cha-am, 28 February - 1 March 2009, accessed 20 May 2010 SUARAM communication with UNHCR Malaysia, 3 June Utusan Malaysia (18 May 2010) 8 warga Afghanistan diberkas, w w w. u t u s a n. c o m. m y / u t u s a n / i n f o. asp? y=2010& dt=0518& pub=utusan_ Malaysia&sec=Jenayah&pg=je_03.htm, accessed 10 May 2011 Sydney Morning Herald (28 October 2009) Police head to Asia to fight smugglers, html, accessed 20 May 2010 US Department of State (2011) Trafficking in Persons 2010 (p.223) gov/documents/organization/ pdf, accessed 10 May 2011 Amnesty International (2010) Malaysia Must End Abuse of Migrant Workers, ASA 28/002/2010, Amnesty International Publications:London (p.4), available at report/malaysia-must-end-abuse-migrantworkers , accessed 9 May Ibid. 158

159 Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons Ibid. (p.4); US Department of State (2011) op. cit. The Malaysian Insider (22 July 2010) DAP MP claims proof kids living on new palace site, Melissa Chi, malaysia/article/dap-mp-claims-proof-kidsliving-on-new-palace-site/, accessed 12 May 2011 Malaysiakini (6 July 2010) Suhakam barred from entering new palace site, malaysiakini.com/news/136533, accessed 12 May The Malays Mail (18 November 2010) Refugees right to work in Malaysia, Joseph Kaos Jr, content/55365-refugees-right-work-malaysia, accessed 7 May 2011 Bernama (12 February 2010) op. cit. Associated Press (16 June 2010) op. cit. SUHAKAM (2011) Annual Report 2010, Human Rights Commission of Malaysia: Kuala Lumpur (p.89) Ibid. (pp.17-18) Report of the Working Group on the Universal Periodic Review, Malaysia Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, A/HRC/11/30/Add.1, dated 3 June 2009 Ibid. Associated Press (2 February 2010) Sec-Gen: UN recognised refugees to get ID cards Associated Press (16 June 2010) Malaysia backtracks on ID cards for illegal refugees, published at malaysia-backtracks-on-id-cards-for-illegalrefugees/380935, accessed 7 May 2011 Bernama (12 February 2010) Employ refugees instead of foreigners, says MTUC, published at employ-refugees-instead-foreigners-says-mtuc, accessed 7 May 2011 The Star (22 February 2010) Government may allow refugees to work, Mazwin Nik Anis, n e w s / s t o r y. a s p? f i l e = / / 2 / 2 2 / nation/ &sec=nation, accessed 7 May Amnesty International (24 March 2010) op. cit. The Star (21 May 2010) Malaysian government to offer amnesty to foreign workers, Dharmender Singh, published at php?id=12050&sec=1, accessed 10 May Irrawaddy (24 May 2010) Uncertainty about Malaysian amnesty, Kyaw Thein Kha, id=18543&submit=submit, accessed 10 May For example, in May 2008, a staff member of the Pakistan embassy in Kuala Lumpur was detained by RELA personnel when travelling to work. The RELA personnel did not recognise his identity card that was issued by Ministry of Foreign Affairs. He was released after intervention by the embassy and his identity card was verified. See SUARAM (2009) Malaysia Human Rights Report 2008: Civil and Political Rights, Petaling Jaya: SUARAM Kommunikasi (p. 134) Chor Chee Heung, 3 July 2008, Second Meeting of the First Session of the Twelfth Parliament, Hansard, DR (p. 14) DR pdf, accessed 3 December

160 Amnesty International (June 2010) Abused and Abandoned: Refugees denied rights in Malaysia, Amnesty International Publications, ASA 28/010/2010, org/en/library/asset/asa28/010/2010/ e n / c e 4 d e 0-940faf54b92c/asa en.pdf, accessed 2 June 2011 The Sun (5 August 2010) Police liaison officers posted at immigration depots, Husna Yusop, cfm?id=50335, accessed 10 May 2011 Before 2008, the Immigration Detention Centres had been handled by the Prisons Department. See SUARAM (2009) op. cit. (pp ) Amnesty International (2010) Trapped: The Exploitation of Migrant Workers in Malaysia, London: Amnesty International Publications (p. 82) SUARAM (26 August 2010) Changes to Immigration Detention Centres Must Respect Human Rights, Press Statement, &comments&ref=mf, accessed 10 May 2011 Jawapan Lisan Dewan Negara YBM Tunku Abdul Aziz Bin Tunku Ibrahim Pada (27 July 2010) communication with UNHCR Malaysia, 3 June 2010 United Nations Radio (25 March 2010) The plight of Myanmar refugees in Malaysia, org/ radio/ english/detail/92761.html, accessed 10 May 2011 Bernama (17 January 2010) Marine police detain 26 Myanmarese near Pulau Ketam, published at accessed 10 May The Star (26 April 2010) Sri Lankans detained after 57-hour deadlock, Tan Sin Chow and Winnie Yeoh, story.asp?sec=nation&file=/2010/4/26/ nation/ , accessed 10 May Associated Press (27 May 2010) Sri Lankan asylum seekers on hunger strike, published at sri-lankan-asylum-seekers-on-hunger-strike/, accessed 10 May Parliamentary reply (27 July 2010) Upper House, Twelfth Parliament, Third Term, Second Meeting The Malaysian Insider (24 March 2009) Over 200,000 illegals nabbed in past 3 years, my-1.themalaysianinsider.com/index.php/ malaysia/21082-over illegals-nabbedin-past-3-years accessed 24 March 2009 Malaysiakini (19 January 2010) Authorities free 19 Sri Lankans, news/122289, accessed 10 May 2011 SUARAM (20 April 2009) Stop the Repatriation of the Sri Lankan Refugees Now! Urgent Appeal SUHAKAM (2011) op.cit. Mizzima (25 February 2010) Demonstration in Malaysian camp, 106 Burmese released, Salai Han Thar San, com/news/regional/3574-demonstration-inmalaysian-camp-106-burmese-released-.html, accessed 10 May 2011 Malaysiakini (28 October 2009) Swift injustice at immigration courts, malaysiakini.com/news/116093, accessed 20 May 2010 Jawapan Lisan Dewan Negara YBM Tunku Abdul Aziz bin Tunku Ibrahim Pada (26 July 2010)

161 Pemberitahuan Pertanyaaan Bagi Jawab Lisan Dewan Rakyat (9 November 2009), No. AUM: 27 The Star (24 March 2009) 2,571 detainees died in past nine years, my/news/story.asp?file=/2009/3/24/parliam ent/ &sec=parliament, accessed 1 May 2010 Amnesty International (6 December 2010) Nian Vung, a refugee caned in Malaysia after fleeing Myanmar, au/hrs/comments/24320/, accessed 10 May UN Working Group on Arbitrary Detention (7-8 June 2010) Statement by the Working Group on Arbitrary Detention upon conclusion of its Mission to Malaysia, org/en/newsevents/pages/displaynews. aspx?newsid=10176&langid=e, accessed 2 June 2011 New Straits Times (22 July 2007) Detention centres bursting at seams Series of interviews with refugees and former detainees, January-April 2007 and May 2008 SUHAKAM (2010) op. cit. (p. 22) Parliamentary Written Reply to Liew Chin Tong (Bukit Bendera), Dewan Rakyat, 17 June 2009 Amnesty International (11 March 2011) Malaysia: Government reveals nearly 30,000 foreigners caned, Press statement, amnesty.org.au/news/comments/25050/, accessed 10 May 2010 U.S Committee for Refugees and Immigrants (2009) World Refugee Survey 2009, Arlington VA: USCRI (p.51) Q&A: Detainee tells of squalor, beatings in Malaysian camp, World Focus, 25 August 2009, accessed 21 May Interview with refugee from Burma, 2 May 2008 See interview with Tun in SUARAM (2010) Malaysia Human Rights Report 2009, SUARAM Kommunikasi: Petaling Jaya (pp ) and World Focus (25 August 2009) Q&A: Detainee tells of squalor, beatings in Malaysian camp, org/blog/2009/08/25/qa-detainee-tells-ofsqualor-beatings-in-malaysian-camp/6928/, accessed 21 May 2010 Series of interviews with former detainees, January-April 2007 SUHAKAM (2010b) op. cit. (p.25) SUHAKAM (2010b) op. cit. (p.25) See story of Lwin in SUARAM (2010) Malaysia Human Rights Report 2009, SUARAM Kommunikasi: Petaling Jaya (p.146) Irrawaddy (25 February 2010) Demonstration in Malaysian camp, 106 Burmese released, Salai Han Thar San, com/news/regional/3574-demonstration-inmalaysian-camp-106-burmese-released-%20. html, accessed 10 May SUHAKAM (2010) op. cit. (p. 21) Series of interviews with former detainees, January-April 2007 See story of Lwin in SUARAM (2010) Malaysia Human Rights Report 2009, SUARAM Kommunikasi: Petaling Jaya (p.146)

162 World Focus (25 August 2009) Q&A: Detainee tells of squalor, beatings in Malaysian camp, accessed 21 May 2010 New Straits Times (7 June 2010) Rioters claim bad treatment at camp, my/articles/10ulu/article/, accessed 10 May 2011 The Star (17 June 2010) Myanmar detainees charge rejected, Sarban Singh, com.my/news/story.asp?file=/2010/6/17/ nation/ &sec=nation, accessed 10 May 2011 The Sun (5 August 2010) Police liaison officers posted at immigration depots, thesundaily.com/article.cfm?id=50335; New Straits Times (3 August 2010) Panel to rope in prison officers, nst/articles/04mmdep/04mmdep/68634c 81624cdea25e60655afd991def/Article/index_ html, accessed 10 May 2011 SUARAM (26 August 2010) Changes to Immigration Detention Centres Must Respect Human Rights, Press Statement, &comments&ref=mf, accessed 10 May 2011 New Straits Times (24 August 2010) Security woes at detention centres housing foreign criminals, Farrah Naz Karim, nst.com.my/nst/articles/, accessed 10 May New Straits Times (25 August 2010) Complete makeover, Farrah Naz Karim, nst.com.my/nst/articles/ / Article/, accessed 10 May 2011 US Department of State (2011) Trafficking in Persons 2010; Indonesia (p.177) and Malaysia (p.223) organization/ pdf, accessed 10 May US Department of State (2010) Trafficking in Persons 2009 Trafficking and Extortion of Burmese Migrants in Malaysia and Southern Thailand: A Report to the Committee on Foreign Relations, United States Senate, One Hundred Eleventh Congress, First Session, 3 April 2009 (p. 2) New Straits Times (27 April 2009) No inside job, says Immigration and Pemberitahuan pertanyaan bagi jawab lisan Dewan Rakyat [Dewan Rakyat parliamentary reply to Charles Santiago, Klang], question number 33, reference number 1294, dated 22 October 2008 New Straits Times (13 October 2010) Nine held under ISA for human trafficking, Lee Shi-lan, Article/, accessed 10 May 2011 US Department of State (2011) op. cit. (pp ) Malaysiakini (13 January 2010) Fresh allegations on Malaysia s refugees for sale, accessed 10 May 2011 New Straits Times (3 August 2010) 20 escapees were victims of human trafficking, Koi Kye Lee and Elizabeth Zachariah, a375cd81840d0acf26b ffded/ Article/index_html, accessed 10 May 2011 New Straits Times (3 August 2010) Immigration D-G ready to take rap, com. my/ nst/ articles/ 05mmt/ 05mmt/ ff26b67a2ffec6d55f527dc11d6210dd/article/ index_html#ixzz1ly5fpz8y, accessed 10 May 2011

163

164 Malaysia Human Rights Report 2009 Introduction: Elections without Democracy The year 2010 witnessed four by-elections in Malaysia, three for federal seats and one state seat. None of the by-elections substantially changed the legislative landscape in the Federal Parliament or the state legislature involved, but they demonstrated some of the chronic flaws in Malaysia s electoral process. The 2007 rally organised by BERSIH (Coalition for Clean and Fair Elections) saw an amazing 50,000 people march in central Kuala Lumpur, united in their demand for clean and fair elections in Malaysia. Despite this overwhelming cry from the public, the ruling coalition National Front (Barisan Nasional, BN) refused to embark on electoral reform. The 2008 general elections, dubbed the political tsunami - as the Opposition denied the BN two-third parliamentary majority for the first time and won five out of thirteen state governments, demonstrated a clear public demand for change. The BN refuses to respond to the calls of the people, and the electoral system remains lacking. Contrary to the claim by some, the changes seen in the 2008 election results therefore happened despite the frauds and 164

165 Free and Fair Elections - Dr Wong Chin Huat Table 9.1 Overview of the four by-elections in 2010 Constituency Hulu Selangor 1 Sibu 2 Galas 3 Batu Sapi 4 State Selangor Sarawak Kelantan Sabah Level Parliamentary Parliamentary State Parliamentary Cause of vacancy Death Death Death Death Incumbent PR-PKR BN-SUPP PR-PAS BN-PBS Electorate 64,500 55,562 11,140 25,582 Postal Voters % 4.4% % 1, % Nomination Day 17/04/ /05/ /10/ /10/2010 Polling Day 25/04/ /05/ /11/ /11/2010 Campaign period (days) Total Candidates BN vote share 24, % 18, % 5, % 9, % Pakatan Rakyat vote share 23, % 18, % 4, % % Third Party/ Independent vote share % - - 2, % Spoiled votes (% of total votes cast) % % % % Winner BN-MIC PR-DAP BN-UMNO BN-PBS Winning Margin 1, % , % Turnout % 49, % , % manipulations, rather than because of the lack thereof. To argue that the 2008 election proved the fairness of elections is as flawed as saying that tobaccos do not kill since some people survive lung cancer. Despite having regular elections since 1955, with a brief two-year interruption in , Malaysia should not be mistaken as a democracy. Elections are used to complement human rights violations, from detention without trial cases to general suppression of civil and political rights, in maintaining the authoritarian system which may be called an electoral one-party state. 5 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 13 states have popularly-elected state unicameral legislative assemblies, producing a total of 576 state assemblypersons. In Sabah, the state government may appoint six additional members to strengthen its majority. By convention, most states would dissolve their state assemblies when the Federal 165

166 Malaysia Human Rights Report 2009 Parliament is dissolved, resulting in a single occasion of general elections. The centralising characteristic of the electoral system is also demonstrated in the organisation of constituencies: a parliamentary constituency consists of two or more state constituencies such that the parliamentary candidate often campaigns with the state candidates of the same party or coalition as a team. Malaysia has no elected third-tier of government, as city, municipality and district authorities are all appointed, either by the state government or, in the case of federal territories, by the federal government. The office bearers of village/community level governing bodies, which have no taxing authority and little administrative power, are also appointed. 6 Introduced in 1951 by the British colonial government, local elections were suspended by the national government 14 years later while the newly-expanded Federation of Malaysia 7 was confronted by Indonesia s territorial ambitions on Borneo. Local elections were never restored, although the confrontation ended months later. Most Malaysians hence have only two ballots to cast, one for their federal parliamentary representative and the other for the state legislator. Some 700,000 voters, constituting 6-7% of the national electorate, have however been disenfranchised at the state level as they are registered in the three federal territories of Kuala Lumpur, Labuan and Putrajaya. The flaws of Malaysia s electoral process and system appear in four aspects: institutional, franchise, contestation and polling, which this chapter will examine and cite current examples where appropriate. 1. Institutions 1.1 Constituency Re-delineation As part of the British legacy, Malaysia adopts the simple member plurality (SMP) system, more commonly known as first-past-the-post (FPTP) system, which has a democratically problematic feature - the tendency to produce severe vote-seat disproportionality. Malaysia s vote-seat disproportionality may simply be a result of non-corresponding geographical distribution of party support, 8 but it may also be due to two independent forms of manipulations: mal-apportionment and gerrymandering. The biggest institutional issue in elections in Malaysia is the rampant and excessive mal-apportionment and gerrymandering of constituencies. Mal-apportionment of constituencies refers to unequal division size of electorates, resulting in very large and very small constituencies. This can be the outcome of following certain administrative, sociocultural or economic boundaries, or simply due to deliberate manipulation. In gerrymandering, constituencies are deliberately drawn in a partisan manner so that particular contestants may be rewarded disproportionately in allocation of seats, whether or not the constituencies are malapportioned. 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%. Mal-apportionment Mal-apportionment in Malaysia is rampant, despite constitutional provision. Sub-section 2(c), Part 1 of the 13th Schedule in the Federal Constitution stipulates that: The number of electors within each constituency in a State ought to be approximately equal except that, having regard to the greater difficulty of 166

167 Free and Fair Elections - Dr Wong Chin Huat Illustration 9.1 Excessive Mal-apportionment Largest state constituency in Selangor is twice as large as its neighbour and nearly 60% larger than the state s smallest parliamentary constituency. reaching electors in the country districts and the other disadvantage facing rural constituencies, a measure of weightage for area ought to be given to such constituencies. Treated as the rule rather than exception, the undefined rural weightage has been used as a license for mal-apportionment. Take the state of Selangor for example, the largest parliamentary constituency, Kapar, (112,224 voters) is about 3.5 times the smallest, Sabak Bernam (31,381) while the largest state constituency, Sri Serdang (49,757) is nearly 4 times the smallest Sungai Air Tawar (12,726). 9 Most ridiculously, while state constituencies are treated as divisions of parliamentary constituencies in principle in Malaysia s electoral system, Sri Serdang and 16 other state constituencies, or 30% of the total state seats are larger than the smallest parliamentary state constituency, Sabak Bernam. The over-size of Sri Serdang is not even justified by urban-rural divide as Kinrara, its neighbour and the only other state constituency within the same parliamentary constituency of Puchong, has only about half of its electorate, 25,868 voters. (See Illustration 9.1) Similarly, while the Sabak Bernam administrative district largely corresponds to two parliamentary constituencies (Sabak Bernam and the neighbouring Sungai Besar) with a total of 65,454 voters, another equally rural administrative district, Hulu Selangor, is delineated into only one parliamentary constituency (with the same name) with 63,593 voters. (See Illustration 9.2) Contrary to the common belief that malapportionment is to systematically advantage the traditionally rural Malays vis-à-vis the largely urban non-malays, the demographic picture has changed so much over the years that often Malays are under-represented and non-malays over-represented the Malaymajority Sri Serdang is twice the size of its Chinese-majority neighbor Kinrara! Epidemic mal-apportionment in Malaysia places the ultimate political power in the hand of the over-represented minority, much like how wealth is concentrated in the hand of elites in economies with severe wealth disparity. A simple majority to form the federal government, or 112 out of 222 seats, 167

168 Malaysia Human Rights Report 2009 Illustration 9.2 Excessive Mal-apportionment Two parliamentary constituencies for one rural district, one constituency for another rural district. Sungai Besar (34,073) Sabak Bernam (31,381) Hulu Selangor (63,593) Sabak Bernam District Hulu Selangor District is controlled by the top 33.79% voters. This means even if the opposition parties win the most under-represented 110 constituencies, where 66.21% of total voters reside, they will still be one seat short from forming the government. Theoretically speaking, since a candidate maximally needs only 50% plus one vote to win a constituency, it minimally takes only half of the 33.79% of voters, or 16.90%, to win the privileged 112 constituencies and form the federal government. 10 (See Illustration 9.3) While this minimal scenario is most unlikely, a government that wins less than half of the votes but more than half of the seats is possible. In fact, in the 2008 polls the three main opposition parties that later formed the People s Alliance (Pakatan Rakyat, PR) won 49.95% of the votes in West Malaysia, slightly more than the BN s 49.65%, but the BN won 85 seats from the Peninsular, beating PR s 80 seats. It is also possible that this scenario may happen nationwide in future elections, Illustration 9.2 Excessive Mal-apportionment Two parliamentary constituencies for one rural district, one constituency for another rural district. Constituencies sorted by electorate size 168

169 Free and Fair Elections - Dr Wong Chin Huat which will produce a government with a manufactured majority but questionable legitimacy. Hence, excessive malapportionment of constituencies can be a recipe for political unrest and chronic instability. Gerrymandering Gerrymandering is equally epidemic despite Sub-section 2(d), Part 1 of the 13th Schedule of the Federal Constitution. Regard ought to be had to the inconveniences attendant on alterations of constituencies, and to the maintenance of local ties. One glaring consequence of gerrymandering is that many parliamentary and state constituencies span across local jurisdictions, especially in urban centres. This affects the aggregation of interests, effectiveness of representation and quality of constituency service as a parliamentarian or a state assemblyperson may have to deal with two or more local authorities. In Selangor alone, eight out of all 22 parliamentary constituencies (36%) and 13 out of 56 state constituencies (23%) are victims of such inefficient and unreasonable districting. The worst amongst them span across three municipalities. For example, P111 Kota Raja and its constituent state constituency, N50 Sri Muda, cover parts of the Municipality of Shah Alam, the City of Shah Alam and the Municipality of Subang Jaya. In summary: Constituency Redelineation Combining the effects of mal-apportionment, gerrymandering and partisan distribution inherent in Malaysian constituency boundary drawing, the result is severe vote-seat disproportionality. This means that votes cast for different parties can have very different electoral values that run counter to the democratic ideal of one person, one vote. In the worst instance in 2004, BN won 91% of parliamentary seats with only 64% of votes, enjoying 1.42 times the number of seats than the votes it received. Meanwhile, the opposition parties were grossly underrepresented: The non-muslim-based Democratic Action Party (DAP) won only 0.55 times the number of seats than the votes it received, the Pan-Malaysia Islamic Party (PAS) won only 0.17 times the number of seats than the votes it received, while the multiethnic People s Justice Party (Parti Keadilan Rakyat, PKR) suffered the most, translating only 0.05 of its votes into seats. (See Table 9.2). 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 9.3) Historically, such seat-vote disproportionality hits two types of parties the hardest: firstly, leftwing parties such as the Socialist Front (SF), Parti Sosialis Rakyat Malaysia (PSRM), Parti Keadilan Masyarakat Malaysia (Pekemas); secondly, Malay parties which compete with both the nationalist UMNO and Islamist PAS: Parti Negara (PN), Parti Semangat 46 (S46) and PKR. The implication of such systemic electoral discrimination ran deep and has great consequence for Malaysian electoral politics. With the leftwing votes suppressed, the left-right cleavage could not emerge to erode the idiom of ethnic politics. With the electoral failure of non-theologicallydriven Malay parties, inclusive and electable opposition coalitions proved to be infeasible or untenable before Hence, until the 2008 polls which were described by some as a perfect storm, the FPTP system has failed to bring about a two-party system as it did in the United Kingdom and the United States. Elections have instead been used to help sustain the electoral one-party state which 169

170 Malaysia Human Rights Report 2009 Table 9.1 Overview of the four by-elections in 2010 Elections Alliance / BN PAS PN Labour / SF / PSRM / PRM PPP PAP / DAP Gerakan SNAP Pekemas S46 PBS PKN / PKR (Source: Wong, Chin and Othman, 2010) Table 9.1 Overview of the four by-elections in 2010 Elections Largest Opposition Party Votes to Match 1 Alliance / BN vote Second Largest Opposition Party Votes to match 1 Alliance / BN vote Third Largest Opposition Party 1955 PN Infinity PAS 2.54 NAP Infinity 1959 PAS 2.34 SF 2.31 PPP SF PAS 2.47 UDP PAS 3.39 DAP 1.79 Gerakan DAP 4.52 SNAP 1.37 Pekemas DAP 2.72 PAS 7.03 Pekemas Infinity 1982 DAP 4.75 PAS 6.30 PSRM Infinity 1986 DAP 2.27 PAS PSRM Infinity 1990 DAP 2.10 S PAS DAP 3.33 S PAS PAS 1.45 DAP 3.28 PKN PAS 8.15 DAP 2.58 PKR PKR 1.67 PAS 1.70 DAP 1.37 Votes to match 1 Alliance / BN vote (Source: Wong, Chin and Othman, 2010) 170

171 Free and Fair Elections - Dr Wong Chin Huat 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 perpetuates the violations of human rights documented in previous chapters. As constituency redelineation may be carried out in an interval of eight to 10 years, the next exercise may begin anytime after March There is no sign that the EC will correct the mal-apportionment and gerrymandering, or not exacerbate it further. 1.2 The Election Commission The Election Commission (EC) consists of a Chairman, a Deputy Chairman and five other members. Theoretically, the EC should function independently as they are appointed by the Federal King (Yang dipertuan Agong) to [enjoy] public confidence and can only be removed in the like manner as a Federal Court judge. In practice, the EC is often dubbed as the BN s 14th component party by its critics for its partiality and inconsistency. Firstly, Co mmissioners are all former top civil servants who are trained to execute instructions of ministers in their careers, rather than standing up against them. Their appointments are in fact recommended by the Prime Minister. Secondly, the EC s supportive staff is not funded independently but instead operates on a budget under the Department of Prime Minister. Thirdly, the Returning Officers and other election staff are mostly recruited from amongst federal, state and local government officials, many of whom fail to observe administrative neutrality. The Human Rights Commission of Malaysia (SUHAKAM) aptly commented: 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 Election Observation Malaysian laws do not provide for the right of electoral observation. Accreditation of election observers therefore depends completely on the discretion of the EC. The last time international observers monitored Malaysian elections was in the 1990 elections. Local election observer groups emerged in the 1999 elections. The EC accredited, with restrictive conditions, 171

172 Malaysia Human Rights Report 2009 a local watchdog Malaysians for Free and Fair Elections (MAFREL) to observe first the 2007 Ijok by-election, then the 2008 general elections and subsequent by-elections. Other observer groups such as the Sibu Election Watchers (SEW) were not given such accreditation. MAFREL s accreditation was withdrawn in April 2010 on the pretext that MAFREL had failed to submit its election observation report. This however happened after MAFREL slammed the abuse of state machinery in the Hulu Selangor by-election Election Petition 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 as 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. Secondly, an election may only be declared void, with regards to corrupt practices and non-compliance of law, if such practices and non-compliance have affected the election outcome. 13 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 Officer has the final and unquestionable say in 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 decision or conduct of media, police and other institutions, even though their actions may have immense implications on the freeness and fairness of an electoral campaign. Lastly and fundamentally, the prospect of judicial review relating to elections has not been encouraging so far. 14 In 2008, only two out of 29 petitions were accepted. With a miscount overturned, PAS candidate Hashim Jasin was eventually declared the rightful winner of Sanglang state seat, Perlis. 15 In the case of Pensiangan parliamentary seat of Joseph Kurup of the Parti Bersatu Rakyat Sabah (PBRS), BN however kept his walkedover seat when the Federal Court eventually overturned a High Court decision and dismissed the petition by his PKR opponent that Kurup s two opponents who were disqualified on the ground of lateness were actually blocked on the way to nomination centre. 16 In 2010, the PKR candidate for Hulu Selangor, Zaid, filed an election petition on the ground of bribery. Zaid s petition against the BN candidate, Kamalanathan, under Section 10(a), 10(c) and 10(e) [Bribery] of the Election Offences Act 1954, alleged that corruption had taken place and asked that the court declare the outcome of the by-election null and void with BN promising RM3 million to a Chinese school in Rasa and RM160,000 per acre to Sungai Buaya Felda settlers. Zaid also claimed a breach of Section 32(c) of the Act which makes the by-election void on grounds of corrupt practices with Kamalanathan s or his agent s knowledge and /or consent. Justice Azahar Mohamed struck out Zaid s petition on the ground that he had failed to identify the recipients of the alleged 172

173 Free and Fair Elections - Dr Wong Chin Huat bribes offered by the BN, stressing that the petition was fundamentally defective. The judge claimed that Zaid had failed to provide substance or material on the people alleged to have received bribes and how the BN s election promises had influenced the results.5 2 Franchise The greatest threats to the probity and legitimacy of Malaysian elections lie with the electoral rolls. Unlike some newly democratising countries, outright rigging tactics such as ballot stuffing, discarding, spoiling and miscounting of ballots are not employed widely in Malaysia. The major issues in the polling process in Malaysia are impersonation, multiple voting, secrecy and non-registration, which may be traced back to how the electoral rolls are managed and organised, or fundamentally, the quality of franchise. 2.1 Non-registration As at December 31, 2010, 3.93 million or 25.2% of eligible Malaysians above 21 years of age remain outside of the electoral rolls. 18 The law requires citizens to register themselves as voters and the electoral rolls are updated every quarter. While the groundshattering outcome of the 2008 elections has politically activated many citizens and encouraged the political parties to aggressively run voter registration campaigns, the progress is quite slow. In the last quarter of 2010, only 269,033 new voters were added to the list. 19 With this pace, it would take 3.65 years to register all the existent unregistered voters. But by then, 2015, Malaysians would probably have some additional 1.5 million new voters to be registered, with an estimated growth of 400,000 eligible voters a year. The slow pace is the result of many factors, one of which is that the law rightly allows for protests against inclusion of new voters or constituency transfer. In the last quarter of 2010, the EC received 57 protests involving 23,405 voters and 3,144 cases of address changes in 10 parliamentary constituencies during the period, and none of the disputes had been resolved. 20 However, anecdotal complaints about unprocessed applications are also plenty, from feedback of activists involved in voter registration drives to online forums 21, which could be due to insufficient human resources on the EC s part. A simple solution is automatic registration, which would require only a synchronisation of the National Registration Department (NRD) database and the EC database to allow all eligible citizens to be automatically registered in the constituencies by their official address. This was a demand by not only civil society groups led by the Coalition for Clean and Fair Elections 2.0 (BERSIH 2.0) 22, and opposition parties but also even some BN politicians. 23 This solution is particularly pressing for the resource-rich but politically and economically marginalised in East Malaysia where the EC has limited number of outreach officers. In the entire state of Sarawak, with the same geographical size of Peninsular Malaysia, the EC has only one single office in the state capital, Kuching, and a very limited operating budget. This leads to low registration rate as low as 20-30% in certain inland constituencies. 24 Automatic voter registration can also help to cut down the heavy cost of the current voter registration drives, which was as high as RM13.81 per voter registered in , and would amount to RM 54 million to register the remaining 3.93 million citizens outside the electoral rolls. 173

174 Malaysia Human Rights Report 2009 This proposal was however adamantly rejected by the Government in 2010 on various grounds. One tactic has been to wrongly equate automatic voter registration with compulsory voting, claiming that this infringes the freedom of citizens. 26 Another tactic used by the BN government was arguing that since many Malaysians do not update their residential address, automatic voter registration will have them registered in constituencies they previously lived in and may be faraway to travel back to vote, hence reducing the turnout rate and making the country look bad Voting Eligibility Age Malaysia set the voting eligibility age at 21, while most countries, including her Southeast Asian neighbours have set them at 18 or even lower. The eligibility age is unjustified considering Malaysians are legally considered as adult by the age of 18 and can freely choose to decide their faith, drive cars and join the military and police and die defending the nation. The demand by civil society to reduce the age of suffrage 28 is ignored by the state. 2.3 Contamination and Tampering of electoral rolls The integrity of the electoral roll is questionable on two counts. Firstly, the inclusion of deceased voters and other fraudulently registered names, often dubbed as phantom voters 29 ; and secondly the transfer of voters to other constituencies, in both voluntary and involuntary senses. The first issue opens the door for impersonation while the second leads to the question of disenfranchisement or dilution of rightful voters. The issue of phantom voters is a chronic one and in the past has put the EC under tremendous pressure. However, the issue remains unsolved, as was exposed in at least two of the four by-elections in In May, the Sibu Election Watchers (SEW) claimed that 209 voters in the parliamentary by-elections were centenarians (100 years old or above), an allegation which the EC did not deny but instead promised investigation. 30 In October, for the contested Batu Sapi parliamentary constituency, as many as 156 names on the electoral rolls were found to be 100 years old or above. Also, 92% of the entire electorate was registered without house numbers making it difficult, if not impossible, for any attempt to verify the authenticity of the registered names. 31 As in the case of automatic voter registration, a synchronization of the NRD database and the EC database can resolve the issues of outdated or flawed records easily, with the names of deceased voters automatically purged when their deaths are reported to the NRD. The resistance of the government to introduce automatic voter registration and updates leads to reasonable speculation that it wants to prevent the political parties and election watchdogs from having the full database of all eligible citizens, which would easily allow the number of newly naturalised foreigners to be traced. The Government has been accused of giving national identity cards to foreign workers so that they may vote in elections. In Sabah, the Federal Government has been accused of orchestrating a scheme to naturalise en mass Muslim Filipinos and Indonesians. It is alleged that this is to dilute the Sabahan votes which may be cast against the BN government due to closely held demands for the state s autonomy. The project which many suspect could date back to the 1980s is dubbed as Project M - referring to former Prime Minister Dr Mahathir Mohamed. 32 Meanwhile, the issue of voter transfer happens in both voluntary and involuntary 174

175 Free and Fair Elections - Dr Wong Chin Huat ways. Voluntary transfers mean that voters readily transfer themselves into marginal constituencies to help the parties they support. This often results in a premise registered with unreasonably high number of voters, such as 20 or more. One interesting case in 2010 is that of the BN-Malaysian Indian Congress (MIC) candidate in the Hulu Selangor by-election, P. Kamalanathan, who claimed to be a resident of Rawang, Selangor. Kamalanathan has allegedly been found on the electoral roll in the parliamentary constituency of Sungai Siput, Perak, which the MIC president S. Samy Vellu contested as an incumbent but lost it in Such voluntary transfers dilute the ballot power of the actual residents. As the winning margin in a FPTP constituency may be only a few thousand or even hundred votes, transfer of voters, like deployment of phantom voters, is both feasible and appealing for political parties as an alternative to legitimate campaigning on programmatic differences or constituency services. As a matter of fact, both tactics has also served as a substitute to constituency redelineation, by altering the electorate size and composition in the years between the redelineation exercises. Involuntary transfer of voters, which cannot be done without either involvement of the EC officials or illegal access to the EC database, can distort the electoral outcomes in two ways. First, the transferred voters are disenfranchised from their rightful constituencies, or even completely if they refuse or fail to vote in the new constituencies. Secondly, as in the case of voluntary transfers, it also dilutes the voter bases in the new constituencies, if the transferred voters actually turn out to vote or are simply impersonated. In the bitterly contested Sibu by-election in 2010, the opposition parties alleged that some 3000 voters have been transferred out of their stronghold to a neighbouring parliamentary seat to weaken their chances of electoral success. 34 Interestingly, UMNO leaders have made similar allegations but have provided no details. 35 In the Hulu Selangor by-election, a new issue arose as 228 voters were relocated from Hulu Selangor to Selayang parliamentary constituency. The EC claimed that the 228 voters were wrongly placed in the Hulu Selangor constituency when their homes are actually located in Selayang. The EC blamed the mistake on the absence of Geographical Information System (GIS) until recently and claimed that there was no objection when the new roll was displayed for public inspection in the first quarter of BERSIH 2.0 slammed the EC s act as unconstitutional, stating: The EC cannot authorise the transfer of voters from one constituency to another on its own accord. In between delineation exercises, [only] voters can apply to change their constituencies when they move residence. BERSIH 2.0 claimed that the EC had usurped the functions of Parliament as delineation is under the purview of Parliament. 37 The EC also transferred 14,000 registered voters in the Hulu Selangor byelection across different polling stations. Bersih 2.0 Chairperson Ambiga Sreenevasan criticised this move as the short campaign period, 8 days, does not provide sufficient time to notify each of the affected 14,000 registered voters. 38 Election watchdog Sibu Election Watchers (SEW) even questions whether electoral rolls were actually gazetted as legally required. SEW s methodical analysis shows that the gazetting process, if it ever took place, was shorter than 22 days for Hulu Selangor, 17 days for Sibu, 30 days for Galas and 13 days for Batu Sapi

176 Malaysia Human Rights Report Postal Voting Malaysia has a very rigid and problematic system for postal voting. Six types of voters are considered to be absent voters: (a) military personnel; (b) spouses of military personnel if they opt to do so; (c) civil servants posted overseas 40 (mostly diplomats); (d) spouses of civil servants posted overseas; (e) tertiary students overseas; and (f) spouses of tertiary students. By law, together with police personnel, absent voters are listed separately from ordinary voters on the electoral rolls. Ordinary voters can apply to use postal ballots if they belong to one of four other groups: (a) election workers; (b) the members of EC; (c) civil servants who happen to be overseas on polling day; and (d) any categories of voters designated as postal voters by the EC via notification on gazette. The current system has two problems. Firstly, it is mandatory for some voters Military and police voters - to vote with postal ballots, leading to possible rigging; secondly, most voters who are not in their constituencies on polling day - except civil servants, students overseas, their spouses, election workers, members of the EC are denied such facilities, resulting in effective disenfranchisement. Rigged postal votes The problem of rigged postal votes has long been identified by the Opposition and civil society. Postal ballots are often seen as the saviour for the ruling coalition s vulnerable seats. 176

177 Free and Fair Elections - Dr Wong Chin Huat First of all, police and military voters are given the ballots a few days in advance and allowed to bring the ballots back before returning the ballots in sealed envelopes. While the distribution of postal ballots can be monitored by party agents, it is impossible to monitor by whom, when and in what environment the ballots are cast. This makes postal votes vulnerable to proxy voting, undue influence and/or violation of secrecy. In many cases, ballot papers cannot be delivered to the security force members who are on duty in remote locations, making it likely for impersonation. It is not only these postal voters franchise which may be compromised, but their rigged votes may even be large enough in total to overturn the result. Police and military voters are registered by police stations or military barracks and then assigned en mass to one of the constituencies nearby. This is very different from the case of overseas absent voters who are registered as voters in their home constituencies. The concentration of such votes makes it electoral fraud attractive as it cost-efficient and simple to target voters with offers. Conventionally, the ruling coalition has won at least 80% of the postal votes in most constituencies. Postal voters, which stood at 221,085 or about 2% of the national electorate in 2008, are concentrated mostly in urban centres or some barrack towns. In 2010, while the BN could claim victory in Hulu Selangor (a winning margin of 1,725 votes) and Batu Sapi (6,359 votes) without depending on postal voters (which were 799 or 1.24% of the vote and 1,615 or 6.31% respectively), the picture was very different in the bitterly-fought Sibu by-election. Here the DAP was reportedly leading with 2,651 votes, until the 2,661 postal ballots cast were added. The DAP only managed to get 70 votes (2.9% of the total postal ballots), the Independent candidate won 60 votes (2.4%) while BN took the bulk, the 2,323 votes (93.7%) 41. Similar cases have led to widespread speculation that postal ballots are stuffed by the BN for marginal constituencies. Disenfranchisement through denial of postal votes The issue of disenfranchisement due to the denial of postal voting facilities particularly affects two groups of voters: Firstly, overseas Malaysians who are neither studying nor working for the Malaysian government 42, and secondly, Malaysians who left their home towns or home states for employment or education but continue to be registered as voters in the village or town. Both groups of voters should be recognized as absent voters like the six groups currently listed. While the law requires citizens to update their addresses frequently, this is not strictly enforced and arguably not pragmatic. Many workers or even students have little interests in the constituency where they reside if it is only for a few years or even months. Instead of requiring these unrecognized absent voters to travel back to their home constituency - encouraging voters to be tempted by travel allowances offered by political parties, voters should be entitled to postal ballots and the right to vote in advance in special polling centres in major towns in each state. 3 Contestation Free and fair elections are not only about the electorate s votes being faithfully registered, but also about the electorate casting their votes after being well-informed, which requires freedom of expression, information and association and level playing fields for electoral contestation. While the nomination process is generally smooth (notwithstanding occasional instances, such as in Pensiangan where 177

178 Malaysia Human Rights Report 2009 opposition candidates were obstructed or disqualified from nomination), the main critique is that deposits of RM 15,000 for parliamentary contests and RM 8,000 for state contests inhibits the participation of resource-poor citizens. 43 The most important issues in electoral contests are vote-buying involving both private and public funding, the campaign period and freedom, and media freedom. Political funding and expenses in Malaysia are seriously under-regulated. 3.1 Campaign Period and Freedom Campaign period Malaysia has had ridiculously short campaign periods in recent decades, despite the much longer allowance provided for by law. 1. Article 55(4) of the Federal Constitution stipulates that a general election must be held within sixty days from the date of dissolution. 2. Sub-section 12(3) of the Election Act further stipulates that the EC shall issue writs for elections, which shall be issued not earlier than four days and not later than ten days from vacancy in the case of by-elections. 3. Sub-regulation 3(1) of the Elections (Conduct of Elections) Regulations further stipulates that the EC shall publish a notice (the writ) in the Gazette to specify the polling day which must be not being less than seven days after the day of nomination. 4. The Election Offences Act 1954 defines the campaign period as starting at the closing of nomination (which is normally at 11am on nomination day) and ending on the eve of polling day. Combining these requirements, the campaign period can be as short as seven days. The longest it can take, for by-elections, will be 55 days, the sixty-day period minus the minimum four days for the writ after the vacancy and the polling day itself. 44 Historically, the period has been gradually shortened, from six weeks in 1955, to five weeks in , to about two weeks in 1970s, to nine to ten days during PM Mahathir s rule and finally to a minimum of eight days in 2004, before going back to 13 days in The call by BERSIH since 2006 for a minimum campaign period of 21 days, on the ground that it is just half of the 42 days of campaign period under the British, remains unheeded to date. The four by-elections in 2010 had only eight to nine days for their campaign periods. Restricted campaign freedom Beyond the length of campaign period, electioneering was generally restricted. In Sibu, an opposition MP was denied entry into the State of Sarawak by the state government, abusing the immigration power originally intended to curb trans-migration from West Malaysia. Opposition campaigners were also denied entry into some of the native long houses by their headmen, appointed by the BN state government. There were also complaints of government buildings being abused for partisan purposes. 45 In Hulu Selangor, a total of 32 trouble makers were arrested by the police during the campaign period. 46 However, whether the police actions were to neutrally maintain order or to harass opposition campaigners is open to question. A charismatic PKR party leader Chegu Bard was arrested for wearing a Who Killed Altantuya t-shirt. 47 The arrest was allegedly made after a police report by an UMNO supporter. Six other PKR youth 178

179 Free and Fair Elections - Dr Wong Chin Huat leaders were also arrested for allegedly possessing a small blade that they used to cut strings for putting up banners. 48 In Galas, Teoh Lee Lan and her colleagues in the Malaysians for Beng Hock group were arrested for leafleting against custodial deaths. Her brother, Teoh Beng Hock, a political aide to a DAP Exco member (state minister), was found mysteriously dead in the Malaysian Anti-Corruption Commission (MACC) state headquarters after 11 hours of interrogation. Teoh Lee Lan and her fellow campaigners were arrested for allegedly violating Section 4A (1) of the Election Offences Act which prohibits acts to promote feelings of ill-will or hostility during elections. They were however released without charge. 49 A key issue to campaign freedom in Malaysia is the administrative neutrality of state institutions from the EC and the police to the bureaucrats at different levels of government. Insofar as state employees see themselves as servants of the ruling coalition, and not servants of the public guided by the Constitution and laws, the playing fields can hardly be level. 3.2 Vote buying The most pressing issues in by-elections are vote-buying, to the extent that by-elections are dubbed buy-elections. Vote-buying may be used to cover three types of undemocratic attempts to affect election outcomes with money: 1. Out-right vote-buying where private funds are given out in exchange for votes, which directly violates Section 10 of the Election Offenses Act 1954 [Bribery]; 2. Treating voters using private funds, which directly violates Section 8 of the Act [Treating] and may indirectly help to breach the expenditure caps, RM 200,000 for a parliamentary contest and RM 100,000 for state contest; and 3. Vote buying with public expenditure, which may or may not be string-attached, and therefore may or may not violate Section 10 of the Act [Bribery]. Of these three, the greatest threat to free and fair elections is the abuse of public expenditure. As in previous by-elections, the federal government announced development projects or distributed goodies to the electorate, especially in the hotly contested Hulu Selangor, a semi-rural constituency neighbouring Kuala Lumpur which the BN desperately wanted to recapture, and Sibu, a Sarawak urban constituency which the BN fought hard to defend. In Hulu Selangor, the PM made an infamous offer to the Chinese community in Rasa that if the BN candidate carried the seat, a cheque of RM 3 million would be arranged on the very next day for the renovation of the local Chinese school. This conditional promise was kept, even though the BN did not get strong support from the area, butthe BN did recapture the constituency. 50 As described in earlier section, the PKR candidate Zaid Ibrahim filed an election petition on the ground of bribery but his petition was struck out. This BN promise was just tip of the iceberg for the public funds had been thrown in to win the 64,500 votes; RM 167 million according to a Chinese-language daily Oriental Daily, and RM 70 million according to English-language online portal The Malaysian Insider. This amounts to RM 1,085 to RM2589 per voter. 51 It is important to note that the PKR-led Selangor State Government has also been 179

180 Malaysia Human Rights Report 2009 accused of abusing government machineries to court voters. Chief Minister Khalid Ibrahim claimed that his party was merely following the precedence set by the former BN state government. 52 In Sibu, Sarawak, PM Najib Razak corruptly pledged first RM 300,000 then RM 50,000 to mitigate a flooding problem in the Rejang Park. He openly told the voters to strike a deal: you help me, I help you. 4 A year later, the PM s Department replied in written form to the new Sibu MP Wong Ho Leng that: Based on previous court judgments, it was found that incentives such as project approvals and promises to build basic infrastructure made during election campaigns is not a form of bribery or inducement because it is in the public interest and not for individual interest. 54 In a parliamentary reply to Wong Hong Leng in June 10, the PM Department announced that RM millions were allocated during the 8-day campaign period in Sibu but claimed that the expenses were pre-planned and not linked to elections. This sum was distributed between 107 allocations in three categories: (a) 66 allocations, costing RM28,674,050.00; (b) 40 hardware development projects costing RM8,503,332.00; and (c) 1 community project costing RM550, Minister of the PM Department Nazri Abdul Aziz claimed that no unplanned allocations were ever made during the 8-day election campaign period, as in all other elections. 55 Treating of voters is a common practice in Malaysian elections, even though it explicitly violates Section 8 of the Election Offenses Act 1954 [Treating]. This misconduct took a twist in 2011 as the treating task was taken over by a dubious NGO named 1Malaysia throwing dinners to win over voters, especially Chinese voters. These dinners began with the inland constituency of Galas, Kelantan. As many as 1,200 locals in Kampung Baru Pulai were treated to a free dinner with dishes, beer, lucky draws and performances with sexilydressed dancers. Some local folks shouted 1Malaysia instead of the traditional Yum Seng! toast. While no political speech was given, the BN candidate Abdul Aziz appeared at the dinner to shake hands with the attendees. 56 By disassociating from the BN parties while campaigning for them, 1Malaysia and the BN hoped to evade the law. Outright vote-buying practice continued alongside bribery and treating. In Galas, about 300 people queued up at the BN Bukit Cekati operations room allegedly to collect a reward of RM250 after voting. Tengku Razaleigh, the BN veteran leader who oversaw the campaign, dismissed the allegation by saying that these were volunteers, paid for rendering their help in the campaign. The opposition PAS may also be guilty of offering to pay RM 250 per head for outof-town voters to return home for the polls Media Control Notwithstanding the growing role of new media, the playing field in mainstream mass media is far from level, especially in rural and inland areas where internet penetration is low. The Opposition enjoy little access to the mainstream media, both print and broadcast, thanks to the concentration of media ownership in the hands of the BN and BNaligned parties. Under the Printing Presses and Publication Act (PPPA), any newspaper requires a publication permit, renewable annually and revocable and suspendable anytime by the Minister in his absolute discretion. Meanwhile, the free-to-air television industry is practically a duopoly between the state-owned Radio and Television 180

181 Free and Fair Elections - Dr Wong Chin Huat Malaysia (RTM) and the UMNO-controlled Media Prima, which owns all four private free-to-air channels, TV3, NTV7, 8TV and TV9. Unsurprisingly, there has been no airtime for election broadcast or televised debates in either the state or private television channels. The last time the opposition were given some, albeit meagre, radio airtime was in the 1990s. The popular satellite television provider, Astro, is also controlled by a welllinked businessman, although it has many channels with news reporting and talk shows that are quite critical by Malaysian standards. (See Chapter on Freedom of Expression for further discussion on limitations on freedom of the media) In the four by-elections in 2010, not only was the mainstream media widely used by the BN to smear its opponents, new media were also abused to the same effect. In Muslim-dominated Hulu Selangor, PKR candidate Zaid Ibrahim was slammed with accusations of alcoholism, beginning with a doctored photo on a blog that superimposed a bottle of whisky in Zaid s hands. The UMNO-controlled Malay-language Utusan Malaysia soon followed up with a front page lead story titled Bloggers accept challenge to prove Zaid an alcoholic. 58 In largely Chinese-speaking Sibu, a media monitoring report by the Sibu Election Watchers (SEW) found that the four monitored dailies three Chinese and one English found that the BN appear unmistakably as the favoured side in the election especially as the polling day approaches. All except Sin Chew on the last day, threw away their balanced reporting approach at the beginning of the study. 59 Civil society groups like BERSIH have long been calling for free and fair media access for all political parties, which includes free airtime for all contestants and televised debates on state-own broadcasters, nondiscriminatory and uncensored access to private media in news and advertisement space, and right of reply across the board. The EC has however refused to push for any changes in law. As it stands, it is not an election offence for someone to publish a biased report affecting the electability of a contestant without giving him/her a fair chance to respond. 4 Polling The most common issues in polling are impersonation and multiple voting, which are often lumped as phantom voters. The contamination in the electoral rolls has made impersonation rather easy as many names belong to deceased voters or non-residents, who may not turn out to vote. As argued earlier, the EC s refusal to synchronise its database with the National Registration Department database has made it impossible to minimise the occurrence, or perceived occurrence, of impersonation. Multiple voting however can be stopped rather easily, which may help reduce the instance of impersonation. If impersonators what Malaysians commonly refer to as phantoms can be recycled through multiple voting, then to tip off the balance in three nearby constituencies with expected margins of 2,500, 3,000 and 3,500 voters needs only 3,500 voters at the maximum. However, if recycling of phantoms can be stopped, then effective rigging in the three constituencies would require 9,000 nonvoters. This poses challenges to both the supply and deployment of fresh phantom voters, reducing its edge and appeal over democratic campaigning. Indelible ink has been put forward by the opposition parties and civil society since 2006 as a remedy to curb multiple voting. This was interestingly agreed to by the EC in 181

182 Malaysia Human Rights Report which spent about RM 2 million to buy 47,000 bottles of India-made indelible ink. The EC however did not make any attempt to amend the election by-laws to spell out how this safeguard measure will be administered. Just four days before the polling day in 2008, the EC cancelled the use of indelible ink, claiming that it has no right to deny a citizen s constitutionally-enshrined voting right even if the voter refuses to be marked with ink or has had his/her nail marked. 60 Two months later, the then EC chairman Abdul Rashid revealed that the Cabinet was actually the one that stopped the use of indelible ink, citing legal and security concerns. 61 PM Abdullah Badawi however claimed that the cabinet had only made a suggestion, not an instruction, to the EC. 62 The EC has never gone back to indelible ink. 63 The issue of phantom voters continued in the 2010 by-elections, but did not seem to be as alarming as it was thought to be in the past. In Hulu Selangor, PKR Youth deputy chief Fariz Musa claimed that they managed to stop several buses allegedly ferrying phantom voters leaving the Institute Kemahiran Belia Negara (IKBN) building at 3am on polling day and heading to the constituency. 64 PKR also lodged a police report against a group allegedly intimidating the Orang Asli from Peretak village and snatching their identity cards, which might be used for impersonation. 65 While PAS warned against phantom voters in Galas 66, no incidences of phantomcarrying buses being stopped was reported. In Batu Sapi, PKR lodged a police report against the impersonation of a 72-yearold woman, allegedly by a female who looked to be in her 30s. 67 In Sibu, the issue of phantom voter existed but greater damage might have been done by ballot stuffing and stolen ballots. Election watchdog SEW discovered 208 centenarian voters, with the oldest being 130 years-old but there was no known report made against impersonation, perhaps deterred by disclosure of such findings. SEW however said that polling, counting, tabulation and announcement, which cover both ordinary voters and postal voters, were marred by irregularities that call for a full auditing of the election process, especially on the postal votes. 68 Conclusion The state of human rights in Malaysia cannot be substantially improved until the authorities believe that human rights violations in elections may be punished. While the Malaysian public may have grown more supportive towards human rights, this political preference will not be effectively transformed into laws, policies and practices insofar as the elections can be manipulated. Reducing electoral manipulations and frauds in Malaysia must therefore be a key policy goal in itself and as a strategy for advancement of human rights in general. As we have argued, reforms need to happen in all four aspects: institution, franchise, contestation and polling. So far, as shown in the four buy-elections in 2011, nothing has changed. Changes demanded by the BERSIH rally in 2007 did not take place. In hind sight, issues like vote-buying would get worse in the 2011 Sarawak state elections, and likely the 13th General Elections, the date of which has not been announced. Dr. Wong Chin Huat is 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 2.0 (BERSIH 2.0) and has assisted in some of Malaysians For Free and Fair Elections (MAFREL) initiatives. 182

183 Free and Fair Elections - Dr Wong Chin Huat End Notes New Straits Times (3 August 2010) Immigration D-G ready to take rap, com. my/ nst/ articles/ 05mmt/ 05mmt/ ff26b67a2ffec6d55f527dc11d6210dd/ Article/index_html#ixzz1Ly5fpz8Y, accessed 10 May 2011 See result_praya/borang16prkp.212.pdf, accessed 13 June See result_praya/borang16n45.pdf, accessed 13 June See result_praya/borang16p185.pdf, accessed 13 June Wong, Chin-Huat; Chin, James; and Othman, Norani (2010) Malaysia - towards a topology of an electoral one-party state, Democratization, 17: 5, pp 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 overthrew the former in February Before 1963, what constituted Federation of Malaysia were the independent Federation of Malaya and three British colonies: Singapore which had home rule, and Sabah and Sarawak with only nascent representative politics. Singapore left the Federation (a constitutional monarchy) to become an independent republic on 9 August Examine this hypothetical example. For an electorate that gives 60% support to party A and 40% support to party B, perfect seatvote 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. Unless otherwise mentioned, all constituency data are those of Theoretically speaking, that a majority government may actually be installed by a minority of voters is an inherent weakness of the FPTP electoral system. Even if constituencies are equally apportioned that a party needs to win at least 50% plus one vote to win 50% plus one seat, that merely means some 25% of voters can theoretically vote in a majority government. Puthucheary, M. & Norani Othman (2003) The Electoral System of Malaysia: A Report, Bangi: IKMAS, UKM, p.15 Mafrel (7 April 2010) Mafrel lost EC s accreditation to Ulu Selangor by-election mafrel-lost-ecs-accreditation-to-ulu-selangorby-election/, accessed 26 June 2011 Section 32 of Election Offences Act Puthucheary, M. & Norani Othman (2003) pp The Star (16 September 2008) PAS Hashin Jasin declared Sanglang winner, h t t p : / / t h e s t a r. c o m. my / n e w s / s t o r y. asp?file=/2008/9/16/nation/ &sec=nation, accessed 17 June

184 Malaysia Human Rights Report The Star (14 March 2009) Kurop gets to keep Pensiangan, Ruben Sario, com.my/news/story.asp?file=/2009/3/14/ nation/ &sec=nation, accessed 17 June 2009 Malaysian Insider (5 August 2010) Court strikes out Zaid s Petition, Asrul Hadi Abdullah Sani, malaysia/article/court-strikes-out-zaidspetition/, accessed 26 June 2011 New Straits Times (4 May 2011) Unregistered voters in Sabah worrying, EC, UnregisteredvotersinSabahworrying_EC/ Article/, accessed 13 June 2011 The Malaysian Insider (4 May 2011) Number of registered voters now at 11.82m. article/number-of-registered-voters-now-at m/, accessed 13 June Klik4Malaysia (22 March 2010) Calling for Automatic Voter Registration, klik4malaysia.com/index.php?option=com_ content&view=article&id=816:calling-forautomatic-voter-registration&catid=25:latestnews&lang=zh, accessed 13 June 2010 Ong BK, Loyar Burok (22 February 2010) Sarawak s low voter registration problems: a response to EC human-rights/express-yourself/sarawaks-lowvoter-registration-problems-a-response-to-ec/, accessed 13 June 2010 Malaysia Today (9 November 2010) RM2,226, was spent to register only 161,148 new voters in 2009; what is the KPI of the EC?, Teo Nie Ching, letterssurat/35836-rm was-spent- to-register-only new-voters-in what-is-the-kpi-of-the-ec, accessed 13 June Ibid. The author has heard some of the complaints aired by the activists in his capacity as a steering committee member of the Coalition for Clean and Fair Elections 2.0 (BERSIH 2.0). Examples of online complaints include posts/ , accessed 13 June Saya Anak Bangsa Malaysia (12 July 2010) Malaysian Civil Society s Memorandum on Electoral Reforms in Malaysia, php?option=com_content&view=article&id =412:malaysian-civil-societys-memorandumo n - e l e c t o r a l - r e f o r m s - i n - m a l a y s i a &catid=1:letters&Itemid=88, accessed 13 June The Malaysian Insider (18 March 2010) No plans for automatic voter registration, says Nazri malaysia/article/no-plans-for-automaticvoter-registration-says-nazri/ The Star (26 October 2010) No automatic voter registration: Nazri my/news/story.asp?file=/2010/10/26/natio n/ &sec=nation, accessed 13 June 2010 Saya Anak Bangsa Malaysia (12 July 2010) This term was originally used to describe imposters who vote in the name of dead voters on the electoral rolls, but over the years the phrase has been extended to include all illegitimate names on the electoral rolls. 30 Bernama (6 May 2010) 209 Voters In Sibu Parliamentary Constituency Are Centenarians? bernama/v5/newsprs.php?id=496146, accessed 13 June

185 Sarawak News (28 October 2010) Batu Sapi riushed election leave 100 centenarian voters and almost all voters with no house number. com/2010/10/28/batu-sapi-rushed-electionleave-100-centenarian-voters-and-almost-allvoters-with-no-house-number/, accessed 13 June 2011 Malaysiakini has a special report collection in ( news/53046, accessed 13 June 2011) Malaysiakini Video, April 24, 2010, P. Kamalanathan a phatom voter in Sg. Siput? html, accessed on 13 June 2011 Malaysian Insider (7 May ) Pakatan claims 3000 voters moved in Sibu malaysia/article/pakatan-claims-3000-votersmoved-in-sibu/, accessed on 13 June 2011 Malaysiakini (17 May 2010) Wanita Umno uncovers illegal transfer of voters Malay Mail (24 April 2010) No transfer of voters in Selangor, says EC deputy chairman no-transfer-voters-hulu-selangor-says-ecdeputy-chairman The Sun (22 April 2010) Bersih: Transfer of voters out of Hulu Sgor not constitutional, Karen Arukesamy, com/articleprint.cfm?id=45902, accessed 13 June 2011 Ibid. Sarawak Indigenous Community News (10 March 2011) Sibu-by-election Final Report: weakened institutions failed to deliver fair elections! com/2011/03/10/sibu-by-election-finalreport-weakened-institutions-failed-to-deliverfair-elections/, accessed 24 June The actual phrases used are outside the boundaries of the Peninsular Malaysia or Sabah or Sarawak (for absent voters) and Peninsular Malaysia or Sabah or Sarawak (civil servants overseas on polling day). This implies that a civil servant or an absent voter of other categories, originally from Peninsular Malaysia but posted in either of the Borneo states, or vice versa, would be entitled to register as a voter. However, to our knowledge, only those overseas are actually allowed to register for postal votes. The Malaysian Insider (17 May 2010) PKR election agent claims DAP s majority could have been more, Clara Choi, themalaysianinsider.com/malaysia/article/ pkr-election-agent-claims-daps-majoritycould-have-been-more/, accessed 22 June 2010 The former Kelantan state director of the EC revealed recently that he had never seen a single ballot paper sent home from overseas as the campaign period was too short for those ballots to be counted and sent back. This means the postal ballot facilities for civil servants and students and their spouses overseas is actually a placebo illusion. The deposit actually consists of two parts. The first part is the deposit for contestation, paid to the EC and refundable if the candidate secures at least one eighth of the valid votes. This deposit is RM10,000 for parliamentary contest and RM 5,000 for state contest. The second part is the deposit paid to the local council for putting up posters, which is refundable upon the clearing of campaign posters. This amounts to RM 5,000 for parliamentary contest and RM 3,000 for state contest. There is no exact stipulation for general elections but one would expect the issuance of writ to take as long, if not longer, than four days stipulated for by-elections. To be precise, the campaign period spans from 6.5 to 54.5 days, since nomination normally ends at 11am.

186 See the well documented analysis in Sarawak Indigenous Community News (10 March 2011) Sibu-by-election Final Report: weakened institutions failed to deliver fair elections! com/2011/03/10/sibu-by-election-finalreport-weakened-institutions-failed-to-deliverfair-elections/, accessed 24 June 2011 Malaysian Digest (25 April 2010) Police arrest 32 trouble makers in Hulu S gor By-election, news/3237-police-arrest-32-troublemakers. html, accessed 24 June 2011 This embarrassed Prime Minister Najib Razak who was alleged romantically involved with Altantuya Shaariibuu, a Mongolian modelcum-translator who had an affair with Najib s aide Baginda Abdul Razak and was later murdered. Negaraku (23 April 2010) Chegu Bard and two others arrested in Hulu Selangor, blog, gu+bard+and+two+others+arrested+in+ Hulu+Selangor, accessed 24 June 2011 Lee Way Loon (31 October 2010) Teoh Beng Hock s sister arrested in Galas, malaysiakini.com/news/146927, accessed 24 June 2011 The Star (29 April 2010) Najib makes good on RM3m pledge, Mazwin Nik Anis, n e w s / s t o r y. a s p? f i l e = / / 4 / 2 9 / nation/ &sec=nation, accessed 26 June MAFREL (12 April 2010) Abuse of govt machineries for campaign catch royal and public attention! wordpress.com/2010/04/12/abuse-of-govtmachineries-for-campaign-catch-royal-andpublic-attention/ accessed 26 June 2011 Najib s bribe offer was video-taped, giving a full context of his offer. (Malaysiakini. tv (15 May 2010) Najib: You help me, I help you. watch?v=lwnlt428pqu, accessed 26 June 2011) Malaysiakini (16 June 2010) PM s Dept: RM5m carrot in Sibu not a crime, me=news&file=article&sid=14249, accessed 26 June 2011 Lee Wei Loon, Malaysiakini (23 June 2010) (Chinese) translated in Sarawak Indigenous Community News (23 June 2010) BN made RM37.72mil allocations during Sibu byelection com/2010/06/23/bn-made-r m37milallocations-during-sibu-by-election/, accessed 26 June 2011 Malaysiakini (2 November 2010) Reach for the Moon : Guan Eng, malaysiakini.com/news/ accessed 26 June 2011 Malaysiakini (4 November 2010) Brown envelopes provoke suspicions, malaysiakini.com/news/ accessed 26 June The Malaysian Insider (28 April 2010) Zaid wants Hulu Selangor result made invalid, Syed Jaymal Zahiid, themalaysianinsider.com/mobile/malaysia/ article/zaid-wants-hulu-selangor-resultmade-invalid/, accessed 26 June The Nut Graph (21 April 2010) Is Zaid s drinking relevant?, Shanon Shah, accessed 26 June 2010

187 59 Sarawak Indigenous Community News (10 March 2011) Sibu-by-election Final Report: weakened institutions failed to deliver fair elections! com/2011/03/10/sibu-by-election-finalreport-weakened-institutions-failed-to-deliverfair-elections/, accessed 24 June Harakah Daily (29 October 2010) UMNO dikhuatiri guan pengundi hantu di Galas php?option=com_content&view=article&i d=29235:umno-dikhuatiri-guna-pengundihantu-di-galas&catid=1:utama&itemid=50, accessed 26 June The Star (4 March 2008) EC cancels use of indelible ink, election/story.asp?file=/2008/3/4/election 2008/ &sec=Election2008, accessed 14 June 2009 The Star (17 May 2008) EC Chairman: Cabinet didn t approve of indelible ink, accessed 16 June 2009 The New Straits Time (18 May 2008) Cabinet only suggested scrapping use of indelible ink in poll, posted at org/?p=1239, accessed 16 June 2009 The EC started talking about biometric authentication as an alternative in April (GovernmentIDNews (7 April 2011) Malaysia bringing biometric authentication to elections com/ 2011/ 04/ 07/ malaysia- bringingbiometric-authentication-to-elections, accessed 26 June 2011 Free Malaysia Today (25 April 2010) PKR Youth nabs phantom voters, freemalaysiatoday.com/fmt-english/politics/ pakatan-rakyat/4917-pkr-youth-catchesphantom-voters, accessed 26 June 2011 Free Malaysia Today (25 April 2010) Orang Asli mykads snatched, fuels fear of phantom voters com/fmt-english/news/general/4916-orangasli-mykads-snatched-fuels-fear-of-phantomvoters, accessed 26 June Harakah Daily (4 November 2010) UMNO- BN-SPR didakwa bersekongkol bawa pengundi hantu masuk ke pusat pengundian Batu Sapi umno-bn-spr-didakwa-bersekongkol-bawapengundi-hantu-masuk-ke-pusat-pengundianbatu-sapi, accessed 26 June 2011 Malaysiakini (31 March 2011) Battling stolen votes and stuffed ballot boxes, Karuah Usit, accessed 26 June 2011

188

189

190 Malaysia Human Rights Report 2009 The year began with the Prime Minister defending the integrity and independence of the judiciary. In his New Year message, Prime Minister Najib Razak called upon all Malaysians not to intimidate the courts and to allow the legal process to work its way through the courts. (Najib was referring to the case brought by the Roman Catholic Church, appealing the government s ban on the Church s publication The Herald using the word Allah in its Bahasa Malaysia section. On 31 December 2009 the Kuala Lumpur High Court ruled that the newspaper had the right to use Allah and overturned the government s ban. The government immediately announced it would appeal this decision.) As if to return the favour, in many ways 2010 was a year where the courts handed down decisions largely in support of the proestablishment status quo. Political court cases In cases relating to contestations at federal and state-level between the Barisan Nasional (BN) coalition on the one hand, and the federal opposition coalition, Pakatan Rakyat, on the other, the courts continued to hand down decisions in favour of the BN. The BN controls the federal parliament, holding government at the federal level and in 9 out of 13 states. Appointments of Perak Menteri Besar & Speaker In February 2010 the Federal Court ruled that the controversial appointment of Dr. Zambry Abdul Kadir as the Menteri Besar of Perak by the Sultan of Perak was correct in law. The Federal Court held that there was no requirement for the state legislative assembly to first deliver a vote of no confidence in the incumbent, Menteri Besar Mohamad Nizar Jamaluddin a member of the Pakatan Rakyat. The court ruled that in making the decision to call for the resignation of an incumbent Menteri Besar, it was sufficient for the Sultan to take into consideration external matters in concluding that he had ceased to enjoy the support of the majority of the members of the legislative assembly. 1 Later in the year, the Court of Appeal upheld the election of BN s R. Ganesan as speaker of the Perak state legislative assembly and the removal of Pakatan Rakyat s V. Sivakumar. In making that decision, the Court of Appeal held that the state legislative assembly had the power and jurisdiction to elect or dismiss the speaker. The courts could not interfere with proceedings within the state legislative assembly. 2 A further legal challenge was made to the validity of the decision by the Election Commission not to regard 3 state assembly seats as having fallen vacant, despite the production of 3 pre-signed letters of resignation. (In connection to this case, senior lawyer and Opposition MP Karpal Singh, was charged with making seditious statements against the Sultan of Perak. In June 2010, Singh was acquitted and discharged by the High Court, ruling that the prosecution had not made a prima facie case. 3 ) Federal cabinet appointments & dismissals In the matter of the federal cabinet, the Federal Court has held that it is the prime minister who has the absolute power to appoint and dismiss members of the federal cabinet. Although members of the federal cabinet are appointed by the Yang Di-Pertuan Agong upon the advice of the prime minister, the prime minister is free to sack a federal cabinet member without first advising the Yang Di-Pertuan Agong. 190

191 Law and The Judiciary - Andrew Khoo In a case brought by Opposition leader Anwar Ibrahim, challenging his sacking as deputy prime minister and finance minister in 1998 by former Prime Minister Dr Mahathir Mohamad without first advising the Yang Di- Pertuan Agong, the Federal Court ruled that the Yang di-pertuan Agong only had a limited role in the appointment of federal cabinet ministers. 4 Sultanate of Kelantan powers In a matter involving the Sultanate of Kelantan, the Federal Court held that a regent of a state performing the duties and functions of the Sultan thus enjoyed similar powers to that of the Sultan. As such, if there were any powers of the Sultan that were exercisable by the regent due to the incapacitation of the Sultan, then only the regent could do so 5. The previous Sultan of Kelantan had raised the question whether the Regent was included in the reference to His Royal Highness in the Kelantan state constitution. The Federal Court held that the Kelantan Regent was vested with all the powers of His Royal Highness under various provisions in the Kelantan state constitution. There could only be one individual attending to the affairs of the Kelantan state at any one time, and, so long as the Sultan of Kelantan remained incapacitated, the acting Kelantan Ruler was the only person entitled to exercise the powers of His Royal Highness. Courts and the administration of justice Central to a review of the courts and administration of justice in 2010 is the Chief Justice s vigorous attempts to clear the backlog of cases at all levels of the courts. Citing a growing backlog of unheard or postponed cases, the Chief Justice embarked on a series of measures designed to improve the rates of disposal of cases within the legal system. Judges who cleared cases quickly were held up as positive examples to be followed. Among the measures implemented to deal with the backlog were: a much stricter exercise of judicial discretion to adjourn cases; the dismissing of cases due to witnesses failing to turn up; the hearing of submissions immediately upon the conclusion of the evidentiary part of a trial; a call to judges to write shorter judgments (1-page judgments were suggested by the Chief Justice); a greater use of technology; and new specialist courts were established. (The new specialist courts established to deal with this fast track comprise of commercial courts, civil courts and admiralty (shipping) courts.) The Chief Justice hoped that within a period of 2 years, a total of 3,395 backlogged civil and commercial cases would be cleared. A target was set to clear a case within 9 months of it being filed. 6 Great emphasis was also placed in the course of the year on mediation as an alternative form of dispute resolution, instead of pursuing a case in the courts. 7 While the axiom justice delayed is justice denied holds true, the alternative saying that justice hurried is justice buried cannot also be denied. Early hearings, speedy trials and numerical targets are no indicators of justice. The efficiency of a legal system is not judged merely by what is expeditious, but also by the quality of decisions. Through the course of 2010, the country was treated to accusations by the Chief Justice of delays caused by lawyers 8. These were met with counter-accusations by the legal profession of numerous instances of 191

192 Malaysia Human Rights Report 2009 injustice 9. The matter remained unresolved as at the end of In late 2010 the Chief Justice also announced that plea bargaining would soon become possible after Parliament passed the Criminal Procedure Code (Amendment) Act Again, there was concern whether this initiative was driven by a need to reduce the costs of administering justice, or for reasons of speedier trials and greater administrative efficiency. This will be a mixed blessing, as unless the authorities are prepared for the disadvantages and potential abuses of plea bargaining, it may lead to injustice for those accused of crimes. High profile trials The Anwar Ibrahim trial The trial of former Deputy Prime Minister Anwar Ibrahim on charges of sodomy began in February 2010 and would occupy the attention of the nation for the remainder of the year. Anwar was charged with sodomising his former aide Mohd Saiful Bukhari Azlan at a condominium in Bukit Damansara in Kuala Lumpur in Anwar denies the accusation, while Mohd Saiful maintains that the alleged encounter was not consensual. Proceedings were still under way at the end of the year. The trial commenced with various procedural challenges. There were applications to strike out the charge, and 2 attempts to disqualify the trial judge, Mohamed Zabidin Mohd Diah, on grounds of potential bias. 11 All failed. There were also several applications to gain access to documents such as medical reports in the possession of the prosecution, pursuant to Section 51A of the Criminal Procedure Code. 12 None of these were successful. Daphne Iking A private prosecution was allowed on the part of Ryan Chong, the (now ex-) husband Anwar Ibrahim (left) and Saiful Bukhari. (Photograph courtery of Malaysiakini) 192

193 Law and The Judiciary - Andrew Khoo of local television personality Daphne Iking, against Darren Choy Khin Ming, on the charge of enticing a married woman away from her husband, contrary to Section 498 of the Penal Code. According to commentators, this provision has only been used 6 times since the Penal Code was introduced into then Malaya in 1860, the last occasion being in Women s groups have criticised the private prosecution as being discriminatory against women. 13 Law enforcement agencies Malaysian Anti-Corruption Commission The coroner s inquiry into the death of Teoh Beng Hock was held in the course of The inquiry, which was carried out in public, saw a number of controversial witnesses and interesting testimony. In the course of the inquiry, it became clear that the whole coroner s inquest system was handicapped in dealing with the case, and that serious reforms of the system were required in order to arrive at an acceptable conclusion. At the close of the year, the verdict of the inquiry was awaited. In May 2010 the Federal Court held that a witness assisting with investigations being carried out by the Malaysian Anti- Corruption Commission could be questioned beyond office hours. 14 This decision, coming as it did in the aftermath of the Teoh Beng Hock incident itself, highlighted the courts continuing unwillingness to accord adequate protection to those who had been called by law enforcement agencies to give statements and otherwise assist with investigations. Whilst those who were arrested and/or held on remand could rely on existing rules to prevent them from being interrogated throughout the night, no such protection is afforded to those who, while not arrested, were nonetheless assisting with enquiries. In so doing, the courts chose to place the operational needs of law enforcement agencies above that of the human rights of individuals. Police force At the year end the trial of a policeman, Corporal Jenain Subi, charged with causing the death of 15-year-old Aminulrasyid Amzah, was still continuing. Corporal Jenain was charged with shooting to death Aminulrasyid, who was the driver of a car which had allegedly committed several traffic offences in the early hours of 26 April 2010 and which had refused to stop when instructed to do so. The incident caused public uproar and accusations of both brutality and a shoot-to-kill policy by the police. It revived calls for an independent police complaints and misconduct commission. Instead, the government established an ad-hoc inquiry panel into the incident 15. As a result of the inquiries, Corporal Jenain was charged with causing Aminulrasyid s death. 16 Also at the end of the year, the prosecution wrapped up its case against another policeman, Constable V.Navindran, who was charged with 2 counts of causing grievous bodily hurt to a suspected car thief, A. Kugan, who subsequently died in police custody. 17 These two court cases were attempts to show that the government was getting tough on police brutality. However, the public disquiet with the police has not been silenced. The culture of impunity in the police force remains, other than in scenarios where the authorities intend to make a point. 193

194 Malaysia Human Rights Report 2009 Discouraging appeals In October 2007 the Kuala Lumpur High Court judge Mohd Hishamuddin Mohd Yunus awarded Abdul Malek Hussein the sum of RM2.5 million for wrongful arrest and detention under the Internal Security Act This was overturned by the Court of Appeal in March In addition to overturning the award on appeal, the Court of Appeal awarded costs of RM50, 000 against Abdul Malek Hussein. 19 In June 2010 the same High Court judge Mohd Hishamuddin Mohd Yunus awarded Badrul Zaman P. S. Mohamed, yet another person who was held under the Internal Security Act 1960 a sum of RM3.3 million in general and exemplary damages. This is after he ruled that the extension of the latter s detention was unlawful and unconstitutional. 20 The government has appealed against the award. It remains to be seen whether the appeal in this case will follow the same direction as the appeal in the first case. More importantly, the awarding of costs of such magnitude against the respondent is tantamount to punishing the respondent for daring to challenge the government s original detention order. This should not be the case. In matters of public interest, where the human rights and fundamental liberties of an individual are concerned, winning or losing an appeal should not carry with it such heavy financial repercussions. This may wrongly be interpreted as attempting to discourage taking such cases to court in the first place. Other developments Lingam lingers The Minister in the Prime Minister s department in charge of law stated that in his opinion, there was nothing to charge senior lawyer V. K. Lingam with because there was no proof that he had influenced the appointment of judges. There was also no element of corruption because he was not caught with money. This goes to show that where necessary, the government defines corruption very narrowly so as to potentially exclude influencepeddling and non-monetary or non-financial benefit. In 2007 a video-clip was released purportedly showing Lingam discussing over a mobile telephone the appointment of senior judges. It was alleged that Lingam was involved in attempting to procure the appointment of certain positions to senior positions in the judiciary. A Royal Commission was subsequently established to investigate the matter. It subsequently confirmed that Lingam was the person in the video-clip. It also recommended that further investigations be conducted on 5 individuals, including Lingam, for possible breaches of the law. 3 of the 5 individuals applied to the courts for leave to challenge the findings and recommendations of the Royal Commission. The courts subsequently granted leave to Lingam and former chief justices Eusoff Chin and Ahmad Fairuz Sheikh Abdul Halim to challenge the recommendations of the Royal Commission that was set up in 2007 to investigate whether the system of appointing judges had been compromised by them 21. Civil court refuses jurisdiction The Court of Appeal ruled that only the Syariah Court was the competent authority to decide the religious status of a Muslim whose conversion is disputed. 22 According to such a ruling, a non-muslim challenging conversion can only appear in the Syariah Court. This decision is contrary to the provision of the Federal Constitution in that a Syariah 194

195 Law and The Judiciary - Andrew Khoo VK Lingam interviewed by the media - 21 November (Photograph courtery of Malaysiakini) Court has no jurisdiction over a person who does not profess the Muslim religion. By refusing jurisdiction, the civil court has basically turned its back on non-muslim litigants seeking a declaration of this nature. Lack of adequately-qualified counsel for capital punishment cases Court-assigned lawyers, who have been designated by the court to represent an accused in criminal trials which attract capital punishment, must now have at least three years experience to ensure that the accused may receive a fair trial. 23 Concern had been expressed that some assigned counsel did not have the requisite experience, and whether this impinged on the right of an accused to a fair trial. The Judicial Appointments Commission The Government tabled the Judicial Appointments Commission (JAC) Bill in Parliament on 11 December It was passed on 13 December 2008 after minimal debate and gazetted on 8 January Under the provisions of the JAC Act, judicial commissioners are not vetted by the JAC. Nonetheless the Chief Justice of Malaysia has voluntarily chosen to utilise the JAC to review potential candidates for the position of judicial commissioner. These are contract positions at the High Court judge level for a period of two years at a time. Those who perform well as judicial commissioners have an opportunity to be appointed High Court judges. On 10 February 2009 then-prime Minister Abdullah bin Ahmad Badawi 195

196 Malaysia Human Rights Report 2009 appointed former Chief Justice Abdul Hamid Mohamad, former Chief Judge of Sabah and Sarawak Steve Shim, former High Court judge L.C. Vohrah, and former Attorney-General Ainum Mohd Saaid as the four eminent members of the Commission (apart from the ex-officio appointees designated by law). No members of the Malaysian Bar or any nonlawyers were appointed. The way in which these four eminent members were chosen violated the underlying principle of consultation. The then-president of the Malaysian Bar, Ambiga Sreenevasan said in a press interview: We were asked to provide names and we gave the PM s Office a list of eight names comprising senior lawyers and lay people all respected individuals in civil society. However, when we asked for further consultation they never got back to us. We were also not consulted on the proposals of others. They won t get a fresh perspective on prospective judges if they only select people from the judiciary. It was just lip service. 24 Looking at similar institutions in other jurisdictions, for example in the United Kingdom and in South Africa, the lack of lay participation in the selection process is a significant shortcoming which weakens the integrity and efficacy of the JAC. The Judges Ethics Committee Act 2010 The Judges Ethics Committee Bill 2008 was first read in Parliament on 15 December The intention of the Government was to establish this Judges Ethics Committee to enforce the Judges Code of Ethics. The Bill was approved by both houses of Parliament in 2009, receiving Royal Assent on 6 January 2010 and becoming law on 4 March The Act established a Judge s Ethics Committee that was empowered to look into misconduct by trial judges. The appointments are made by the Chief Justice of Malaysia, who would be the Chair of the Committee. Allegations of Corruption Chief Justice During the year, the Chief Justice continued to be dogged by allegations, repeatedly brought up by senior lawyer and opposition Member of Parliament that he had paid bribes whilst practising as a lawyer in private practice. These allegations made headlines in A journalist reported that the Chief Justice had made this startling admission in an interview he had given. 25 On the same day that the story was first published in a local newspaper, the Chief Justice denied the admission, saying, the reporter must have [mis]interpreted what I said, which is that during that period there was corruption in order to get things done at the court registry, as I myself have done it. I have never in my life bribed or received any bribe. 26 To counter this denial, a leading opposition politician obtained a copy of the tape recording of the press interview in which the Chief Justice appeared to have said: It took me six months to be nice, to bribe each and every individual to get back into their good books before our files were attended to. That was my personal experience. I am telling this to all the clerks and all the registries to stop this nonsense. 27 Calls were made for the Chief Justice to resign. 28 However, no investigations have carried out by the authorities as of the end of

197 Law and The Judiciary - Andrew Khoo Former transport minister Ling Liong Sik (striped shirt) leaving the Kajang Sessions Court after being charged over his involvement in the multi-billion ringgit Port Klang Free Zone (PKFZ) scandal. (Photograph courtesy of Malaysiakini) Dr Ling Liong Sik & Mohamad Khir Toyo The former federal transport minister and President of the Malaysian Chinese Association Dr Ling Liong Sik was charged with cheating/corruption. So too was former Menteri Besar of Selangor Mohamad Khir Toyo. Both these trials will commence in Both these prosecutions have been highlighted apparently to prove that the Malaysian Anti-Corruption Commission is politically neutral. The government has also used these prosecutions to burnish its anticorruption credentials, and to say that no one is above the law, not even previous members of the federal and state governments. However it remains to be seen whether these cases will lead to any convictions. Former Menteri Besar of Selangor Khir Toyo. (Photograph courtesy of Malaysiakini) 197