2010 - Suaram

Transcription

2010 - Suaram

SUARAM 2010 BOOK FINAL.indb 1
7/21/11 2:07 PM
7/21/11 2:07 PM
7/21/11 2:07 PM
Published by:
SUARAM Kommunikasi
433A, Jalan 5/46
Gasing Indah
46000 Petaling Jaya
Selangor
Malaysia
Tel: +603 7784 3525
Fax: +603 7784 3526
Email: suaram@suaram.net
Website: www.suaram.net
Cover design and layout by:
Bright Lights at Midnight
Printed by:
Polar Vista Sdn. Bhd.
SUARAM © 2011
7/21/11 2:07 PM
Foreword
Acknowledgments
Executive Summary
7
9
11
CHAPTER 1:
Detention Without Trial and Restriction of Movement
15
CHAPTER 2:
Abuse of Power by the Malaysian Police and Other Law Enforcement Agencies
41
CHAPTER 3:
Freedom of Speech, Expression and Information
67
CHAPTER 4:
Freedom of Assembly and Association
91
CHAPTER 5:
Freedom of Religion and Matters Pertaining to Religion
105
CHAPTER 6:
Racism, Racial Discrimination and Related Intolerance
125
CHAPTER 7:
Refugees, Asylum Seekers, Undocumented Migrants and Trafficked Persons
141
CHAPTER 8:
Free and Fair Elections - Dr Wong Chin Huat
163
CHAPTER 9:
Law and The Judiciary - Andrew Khoo
189
CHAPTER 10:
Human Rights Commission of Malaysia (SUHAKAM)
201
VOICES OF THE PEOPLE: SELECTED STORIES
Yong Vui Kong’s Story - Ngeow Chow Ying
Letters from Death Row - Yong Vui Kong
223
226
7/21/11 2:07 PM
7/21/11 2:07 PM
7/21/11 2:07 PM
Malaysia Human Rights Report 2009
A
n 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
7/21/11 2:07 PM
7/21/11 2:07 PM
T
he 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
7/21/11 2:07 PM
7/21/11 2:07 PM
The Malaysian government is directly responsible for a worsened human rights
situation in 2010. 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. 2010 is testimony to the fact that Malaysia does not deserve
a place at the UNHRC table.
T
he 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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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.
7/21/11 2:07 PM
7/21/11 2:07 PM
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
A
s 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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
What is the Emergency Ordinance
(Public Order and Prevention of Crime)
1969?
What is the Dangerous Drugs
(Special Preventive Measures)
Act 1985?
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.
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
7/21/11 2:07 PM
Shamsuddin Sulaiman, was released
on 2 September 2010 after being detained
for 8 years6 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 2010.
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
Detention-Without-Trial Laws
under
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
7/21/11 2:07 PM
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 2010.12
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
Detention
Group
on
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
Arbitrary
http://www2.ohchr.org/english/bodies/hrcouncil/
docs/16session/A.HRC.16.47.Add.2_en.pdf
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,
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
7/21/11 2:07 PM
(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 1959.
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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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
2010. Over the year there were twenty-five
known arrests made under the ISA, up from
seven in 2009 and ten in 2008.
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
2009. 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
7/21/11 2:07 PM
Table 1.1 Known ISA Statistics 2008, 2009, 2010
Category
Arrests made
2008
2009
2010
10
7
25
Renewed detention orders given
7
1
4
Releases made
34
40
15
Number of detainees at KDC on 31 December
43
9
25
(Source: SUARAM monitoring)
Table 1.2 ISA Arrests in 2010
No
Name
Allegation
Arrest
Status
1
Azzahari bin Murad
(Malaysian)
International
Terrorist Link
21 January 2010 Under Restricted
Order,
11 March 2010
2
Aiman Al Dakkak (Syrian)
USM PHD Student
International
Terrorist Link
21 January 2010 Deported, March 2010
3
Mohamed Hozifa (Syrian)
Son of Aiman Al Dakkak
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
21 January 2010 Unknown
11
Mohamad Fadzullah (Malaysian)
International
Terrorist Link
15 July 2010
12
Mustawan Ahbab (Indonesian)
International
Terrorist Link
11 August 2010
Kamunting, 60 days
detention, 11 August
2010
13
Samsul Hamidi (Malaysian)
International
Terrorist Link
11 August 2010
Kamunting, 60 days
detention, 11 August
2010 (Released)
Kamunting, 2 years
detention, 2 September
2010
26
7/21/11 2:07 PM
14
Seikh Abdullah Sheikh Junaidi
(Malaysian)
International
Terrorist Link
11 August 2010
15
Released during 60
days period. Date of
release unavailable.
Sulaiman Tarmizi
Separatist
Movement
29 September
2010
Not available
16
Imigration Officer (Unknown)
Human
Trafficking
13 October
2010
Not available
17
Human
Trafficking
13 October
2010
Not available
18
Human
Trafficking
13 October
2010
Not available
19
Human
Trafficking
13 October
2010
Not available
20
Human
Trafficking
13 October
2010
Not available
21
Human
Trafficking
13 October
2010
Not available
22
Human
Trafficking
13 October
2010
Not available
23
Foreigener (Unknown)
Human
Trafficking
13 October
2010
Not available
24
Foreigener (Unknown)
Human
Trafficking
13 October
2010
Not available
25
Fadli Sadama (Indonesian)
Militant
13 October
2010
Deported, 4 December
2010
Table 1.3 ISA releases in 2010
No
Name
Allegation
Date
Arrested
Date
Released
Detention
Period
1
Azzahari bin Murad (Malaysian)
International
Terrorist Link
21 January
2010
Restricted
Order since 11
March
1 ½ Month
2
Aiman Al Dakkak (Syrian)
International
Terrorist Link
21 January
2010
Deported in
March 2010
1 ½ Month
3
Mohamed Hozifa (Syrian)
International
Terrorist Link
21 January
2010
Deported in
March 2010
1 ½ Month
4
Kutiba Al-Issa (Syrian)
International
Terrorist Link
21 January
2010
Deported in
March 2010
1 ½ Month
27
7/21/11 2:07 PM
5
Khalid Salem (Yamani)
International
Terrorist Link
21 January
2010
Deported 6
March 2010
1 ½ Month
6
Luqman Abdul Salam
(Nigerian)
International
Terrorist Link
21 January
2010
Deported 13
March 2010
1 ½ Month
7
Hassan Barudi (Syrian)
International
Terrorist Link
21 January
2010
Deported in
March 2010
1 ½ Month
8
Hussam Khalid (Jordanian)
International
Terrorist Link
21 January
2010
Deported 15
March 2010
1 ½ Month
9
Abdul Alhi Bolajoko Uthman (Nigerian)
International
Terrorist Link
21 January
2010
Deported 14
March 2010
1 ½ Month
10
Unknown
International
Terrorist Link
21 January
2010
Deported
1 ½ Month
11
Shamsuddin bin Sulaiman
JI
17 April
2002
2 September
2010
8 Years
12
Mas Selamat Kastari (Singapore)
JI
1 April
2009
Deported 24
September
2010
1 ½ Years
13
Seikh Abdullah Sheikh Junaidi (Malaysian)
International
Terrorist Link
11 August
2010
Released during 60 days period. (August )
-
14
Samsul Hamidi
International
Terrorist Link
11 August
2010
Released
during 60
days period.
(September )
-
15
Fadli Sadama (Indonesia)
Separatist
Movement
13 October
2010
Deported 4 December 2010
Table 1.4 ISA detainees in Kamunting (KDC), as of end 2010
No.
Name
Allegation
Date of
Arrest
In KDC
since
1st
Extension
2nd
Extension
Total
Detention
1
Shadul Islam
(Bangladesh)
Forgers of
Documents
22 May
2008
18 July
2008
17 July 2010
17 July 2012
1 year
2
Mahamad
Nakhrakhel
(Thailand)
Forgers of
Documents
22 May
2008
18 July
2008
17 July 2010
17 July 2010
1 year
3
Muhammad
Zahid Haji
Zahir Shah (Pakistan)
Forgers of
Documents
22 May
2008
18 July
2008
17 July 2010
17 July 2012
8 Months
28
7/21/11 2:07 PM
4
Abdul Matin
(Malaysia)
JI
1 April
2009
23 May
2009
22 July 2011
17 July 2012
5 Months
5
Samsuddin
Bin Hussein
(Malaysia)
JI
25 June
2009
20 August
2009
22 July 2011
7 Months
6
Abd Latif Bin
Omar
(Malaysia)
JI
25 June
2009
20 August
2009
22 July 2011
7 Months
7
Sulaiman Bin
Bohari
(Singapore)
JI
25 June
2009
20 August
2009
19 August
2011
7 Months
8
Anthony
Human
Trafficking
NA
NA
NA
NA
9
Umar Fareths
(Sri Lanka)
Human
Trafficking
NA
NA
NA
NA
10
Hemachandran
(Sri Lanka)
Human
Trafficking
NA
NA
NA
NA
11
Tanabal
(Sri Lanka)
Human
Trafficking
NA
NA
NA
NA
12
Ravindran
(Malaysia)
Human
Trafficking
NA
NA
NA
NA
13
Muniandy
(Malaysia)
Human
Trafficking
NA
NA
NA
NA
14
Mohd
Fadzullah
International
Terrorist Link
15 July
2010
2 September 2010
1 September
2012
15
Mustawan
Ahbab
(Indonesian)
International
Terrorist Link
11 August
2010
5 October
2010
4 October
2010
16
Imigration
Officer
(Unknown)
Human
Trafficking
13
October
2010
Not
available
17
Imigration
Officer (Unknown)
Human
Trafficking
13
October
2010
Not
available
18
Imigration
Officer (Unknown)
Human
Trafficking
13
October
2010
Not
available
19
Imigration
Officer (Unknown)
Human
Trafficking
13
October
2010
Not
available
20
Imigration
Officer (Unknown)
Human
Trafficking
13
October
2010
Not
available
29
7/21/11 2:07 PM
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 2007. (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:
1 Counterfeiting money, covered under
2
3
4
5
6
7
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 2007.
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 2009. In
2010 and the extended scope of the ISA to
30
7/21/11 2:07 PM
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 2009.
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 2009.1
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 2010.
31
7/21/11 2:07 PM
Chart 1: EO Arrests, 2000 - September 2009
(Source: Home Ministry, Malaysia37)
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 2010.
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
7/21/11 2:07 PM
Chart 2: EO Arrests of Minors, 2000-September 2009
(Source: Home Ministry, Malaysia41)
conformity with the law and shall only be
used as a measure of last resort and for the
shortest appropriate period of time.
others held at Muar Rehabilitation Centre in
Johor and Batu Gajah Rehabilitation Centre
in Perak.
Statistics of Detentions without Trial
under the DDA
Other Forms of Restriction to Freedom
of Movement
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 200943. 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
(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
7/21/11 2:07 PM
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 2010.
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 1994.
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
2010. 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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
End notes
1
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 1984.
2
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)
3
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.”
4
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.”
5
6
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,
http://www.straitstimes.com/BreakingNews/
SEAsia/Story/STIStory_574063.html;
accessed 31 March 2011
7
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, http://www.ohchr.
org/en/NewsEvents/Pages/DisplayNews.
aspx?NewsID=10176&LangID=E; accessed
30 March 2011
8
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, http://
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, http://www.
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. 29-30); the case of Abdul Malek Hussin
(SUARAM (2008) Malaysia Human Rights
Report 2007: Civil and Political Rights, Petaling
Jaya: SUARAM Kommunikasi, pp. 19-21);
Dr. Munawar Anees’s statutory declaration
dated 7 November 1998 (reproduced in Aliran
Monthly 2010: Vol. 30, No. 2).
9
2010) op. cit.
10 Reuters (18 June 2010) “UN slams Malaysian
detention-without-trial laws”, Royce Cheah,
http://in.reuters.com/article/2010/06/18/
idINIndia-49423420100618; accessed 1 April
2011
11 Office of the United Nations High
2010) op.cit.
36
7/21/11 2:07 PM
12 International Secretariat of the World Against
Torture (20 December 2010) “Malaysia:
Follow-up of case MYS 151210_Writ of
habeas corpus to free M. K. Selvachandran was
rendered academic_OMCT remains seriously
concerned about his safety and detention”
http://www.omct.org/urgent-campaigns/
urgent-interventions/malaysia/2010/12/
d20998/; accessed 31 March 2011
13 Office of the United Nations High
2010) op. cit.
14 Ibid.
15 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, http://
www2.ohchr.org/english/bodies/hrcouncil/
docs/16session/A.HRC.16.47.Add.2_en.pdf;
16 SUHAKAM (2003) Review of the Internal
Security Act 1960, Kuala Lumpur:
SUHAKAM (p. 86)
17 Ibid. (p. 88)
18 Ibid. (pp. 90-91)
19 SUHAKAM (2011) Annual Report 2010
Human Rights Commission of Malaysia,
Kuala Lumpur: SUHAKAM (p.13)
20 The Star (29 October 2009) “Even sceptics
will be pleased with ISA changes: Hisham”,
Mazwin Nik Anis, http://thestar.com.my/
news/story.asp?file=/2009/10/29/nation/
20091029194025&sec=nation; accessed 31
March 2011
21 Ibid.
22 Bernama (24 December 2009) “ISA
amendments to be tabled at next parliamentary
sitting”, published in The Star, http://thestar.
com.my/news/story.asp?file=/2009/12/24/
nation/20091224171556&sec=nation;
23 The Star (9 February 2010) “ISA amendments
to spell out what national threats are”, Mazwin
Nik Anis, http://thestar.com.my/news/story.
asp?file=/2010/2/9/nation/2010020919155
9&sec=nation; accessed 30 March 2011
24 Bernama (20 March 2010) “ISA amendments
must be done together with related laws, says
Hishammuddin”, published in the Malay Mail
http://www.mmail.com.my/content/30851isa-amendments-must-be-done-togetherrelated-laws-says-hishammuddin; accessed 30
March 2011
25 The Malaysian Insider (8 June 2010) “ISA,
Police Act amendments to be tabled”, Clara
Chooi,
http://www.themalaysianinsider.com/
malaysia/article/gover nment-to-tableamendments-to-isa-police-act/; accessed 31
March 2011
26 The Malay Mail (30 November 2010) “ISA
detention down to 30 days”, Joseph Kaos Jr,
http://www.mmail.com.my/content/56374isa-detention-down-30-days; accessed 1 April
2011
27 The Malay Mail (30 November 2010) “ISA
detention down to 30 days”, Joseph Kaos Jr,
http://www.mmail.com.my/content/56374isa-detention-down-30-days; accessed 1 April
2011
28 The Malaysia Insider (30 January 2010) “ISA
arrests in national interest, global security”,
malaysia/article/ISA-arrests-in-nationalinterest-global-security/; accessed 31 March
2011
37
7/21/11 2:07 PM
29 Malaysiakini (18 October 2007) “Ex-ISA
detainee gets RM2.5 million”, Soon Li Tsin,
http://www.malaysiakini.com/news/73679;
30 New Straits Times (10 December 2010) “Two
lawyers sue over detention under ISA”, http://
www.nst.com.my/nst/articles/29isu/Article/;
accessed 1 April 2011
31 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 . m y / n e w s / s t o r y.
asp?file=/2010/10/13/nation/20101013141
655&sec=nation; cited 31 March 2011
32 Bernama (31 October 2010) “Don’t use
ISA on traffickers” published in The
Star
http://thestar.com.my/news/story.
asp?file=/2010/10/31/nation/20101031172
618&sec=nation; accessed 31 March 2011
33 Islamic Human Rights Commission (17 March
2010) “Malaysia – Deportation of five ISA
detainees whose habeas corpus applications
have been refused”, Action Alert, http://
www.ihrc.org.uk/activities/9263-action-alertmalaysia-deportation-of-five-isa-detaineeswhose-habeas-corpus-applications-have-bee;
cited 2 April 2011
37 Reply to Parliamentary Written Question,
Dewan Rakyat; Third Meeting, Second
Session of the Twelfth Parliament (OctoberDecember 2009) Question number: 386;
Reference: 2250
38 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’”,
http://malaysiakini.com/news/97029;
39 See for instance SUARAM (2007) Malaysia
Human Rights Report 2006, Petaling Jaya:
SUARAM (pp. 21-22)
Reference: 2250
41 Ibid.
42 Syed Hamid Albar (6 May 2008) First Meeting
of the First Session of the Twelfth Parliament,
Hansard, DR.6.5.2008 (p. 13) http://www.
parlimen.gov.my/hindex/pdf/DR-06052008.
pdf; accessed 27 November 2008
Reference: 2250
Reference: 2251
Reference: 2251
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.6.5.2008
(p.
13)
http://www.parlimen.gov.my/
hindex/pdf/DR-06052008.pdf; accessed 27
November 2008)
36 New Straits Times (23 February 2010) “Turn
over a new leaf here, or never”
38
7/21/11 2:07 PM
45 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.
46 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 2008. Other cases are documented
in SUARAM’s 2007 Human Rights Report,
and many others have been recorded since
1999. See SUARAM (2008) Malaysia Human
Rights Report 2007: Civil and Political Rights,
Petaling Jaya: SUARAM (pp. 110-113)
47 The Star (17 November 2010) “Jannie:
Conditional entry makes it difficult to carry
out duties”, http://thestar.com.my/news/
story.asp?file=/2010/11/17/nation/2010111
7193757&sec=nation, accessed 12 May 2011
48 Malaysiakini (21 July 2010) “’Najib, can you
guarantee Tharmendran’s safety?’”, http://
www.malaysiakini.com/news/137844;
39
7/21/11 2:07 PM
7/21/11 2:07 PM
7/21/11 2:07 PM
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
A
t 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 2010. 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 2010. The largest
number of complaints to the national rights
commission, SUHAKAM, is about the police,
with 125 of such complaints received in 2010.
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
7/21/11 2:07 PM
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 2010. 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 1990.8
43
7/21/11 2:07 PM
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 Officials9
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 Officials10
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 2003.
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, thenChief 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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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 SUHAKAM25, 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 2009.
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 groups27 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
7/21/11 2:07 PM
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 2010.
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
7/21/11 2:07 PM
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 AttorneyGeneral’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
2010. 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 guns39, 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.
48
7/21/11 2:07 PM
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 201040
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 201041
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 200945. 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
7/21/11 2:07 PM
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.49
R. Logeswaran (38) & Satchithananthan
(25) – 8 April 2010
3 men (unknown identity) – 5 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.
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.
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
Defence and prosecution lawyers together with court officials examining the car driven by Aminulrasyid when he was shot and killed.
50
7/21/11 2:07 PM
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 reversed55 and
two policemen56 had fired at least twenty-four
shots resulting in thirty-two bullet holes in the
car.57 The rusty parang found in the car58 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 family60), 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
questions62 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”.64
2 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 machetes65
51
7/21/11 2:07 PM
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 2010. 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’ deaths68 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 2010. (Photograph courtesy
of Malaysiakini)
52
7/21/11 2:07 PM
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 police70;
Shahril Azlan Ahmad Kamil (26) who was
shot when reversing from a roadblock because
of an expired road tax71; 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 Hamid72.
Deaths in Prisons and Police Custody
Through media monitoring SUARAM has
recorded at least 2 deaths in police custody
in 2010. 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 2010. 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
2010. 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
2005 - April 2010 (5 years)
66
n/a
2000 - 23 November 2009 (10 years)
n/a
2,587 (P)
2003 - 2007 (5 years)
85
1,535 (PRD) 76
2000 - March 2007 (7 years)
n/a
95 (D)
2000 - 2006 (6 years)
108
n/a
1999 - 2008 (10 years)
153
n/a
(Source: SUARAM monitoring)
53
7/21/11 2:07 PM
Table 2.2: Official annual number of deaths in police custody & prisons
Year
Deaths in
police custody
Deaths in prison
2009
7
n/a
2008
13
255
2007
n/a
n/a
2006
14
n/a
2005
14
n/a
2004
19
n/a
2003
23
n/a
2002
15
n/a
2001
16
n/a
2000
7
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.79
54
7/21/11 2:07 PM
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 2010. 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 2010. 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
7/21/11 2:07 PM
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.82
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 2011.85
2008 Torture Case, prosecution still
pending
Targeting human rights defenders
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 2008. 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 2010.
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
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.87
56
7/21/11 2:07 PM
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
2008. 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
7/21/11 2:07 PM
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 2010.
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 2010. 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
7/21/11 2:07 PM
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.95
59
7/21/11 2:07 PM
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
7/21/11 2:07 PM
End notes
1
Parliamentary Oral Reply (18 March 2010)
Dewan Rakyat, Reference No: 2357
2
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
3
4
The Malaysia Insider (8 January 2011) “Police
promise to open up on Glenmarie killings
probe”,
http://www.themalaysianinsider.
com/malaysia/article/police-promise-toopen-up-on-glenmarie-killings-probe/;
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 /
NewsEvents/Pages/DisplayNews.
aspx?NewsID=10176&LangID=E; accessed
30 March 2011
5
SUHAKAM (2011) 2010 Annual Report,
Kuala Lumpur: SUHAKAM (p.36)
6
“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.
7
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. 59-61)
8
SUHAKAM (2011) op.cit. (p.38)
9
UN Code of Conduct for Law Enforcement
Officials, Adopted by UN General Assembly
resolution 34/169, 17 December 1979
(Article 3)
10 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)
11 SUHAKAM (2011) op. cit. (p.38)
12 The Nut Graph (4 March 2010) “No charges
in police shooting”, Ding Jo-Ann, http://
www.thenutgraph.com/no-charges-in-policeshooting/; accessed 3 April 2011
13 Parliamentary Select Committee on the Penal
Code and the CPC (2006) op. cit. (p. 71)
14 The Star (2 April 2006) “Inquests not held
despite being required”
15 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.
item 33, A/HRC/16/47/Add.2, (p. 6) http://
61
7/21/11 2:07 PM
item 33, A/HRC/16/47/Add.2, (p. 6) http://
Civil Society
27 See Memorandum of
Organisations to the Parliament on the
Proposed Special Complaints Commission
Bill, 18 December 2007.
28 New Straits Times (14 December 2007)
“Dzaiddin: It’s not what we had in mind”
29 SUHAKAM (2011) op. cit. (p.36, 38)
18 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.
19 SUHAKAM (23 April 2010) Public Inquiry 5
lawyers, Public Enquiry Report, http://www.
suhakam.org.my/public_inquiry; accessed 10
April 2011
20 SUHAKAM (2011) op. cit. (p.40)
21 The Malay Mail (2 August 2010) “Suhakam
regrets police arrests, 30 GMI activists released,
http://mmail.com.my/content/45087suhakam-regrets-police-arrests-30-gmiactivists-released; accessed 13 April 2011
22 Royal Commission to Enhance the
Management and Operations of the Royal
Malaysian Police (2005) op. cit. (p. 340-341)
23 SUHAKAM (2007) Report of SUHAKAM
Public Inquiry into the Incident at KLCC on
28 May 2006, Kuala Lumpur: SUHAKAM
(p. 97)
24 New Straits Times (21 August 2009) “ISA and
Police Act to see changes”
25 SUHAKAM (2011) op. cit. (p.15)
26 Special Complaints Commission Bill, D.R.
57/2007
30 SUHAKAM (2011) op. cit. (p.36)
31 New Straits Times (1 October 2010) “IGP’s
plan for a ‘polished force’”, Lee Shi-Ian,
http://www.nst.com.my/nst/articles/9cop/
Article/; accessed 3 April 2011
32 The Malaysian Insider (8 September 2010)
“Home ministry denies Musa’s ‘interference’
claim”, Yow Hong Chieh, http://www.
themalaysianinsider.com/malaysia/article/
home-ministry-denies-musas-interferenceclaim/; accessed 13 April 2011
33 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.
34 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,
http://www.malaysiakini.com/
news/127511; accessed 3 April 2011
36 Malaysiakini (1 April 2010) “Gunshot victim
Norizan meets home minister”, Pathma
Subramaniam,
http://www.malaysiakini.
com/news/128069; accessed 3 April 2011
37 Bernama (26 May 2010) “Report on Fatal
Shooting of 18-year-old by Johor Police to
be Ready Tomorrow”, http://www.bernama.
com/bernama/v3/news_lite.php?id=501297;
62
7/21/11 2:07 PM
38 Malaysian Mirror (1 December 2010) “Noodle
seller urges probe over police shooting”,
http://www.malaysianmirror.com/mediabuzz-detail/6-nation/50848-noodle; accessed
13 April 2011
39 The Malay Mail (15 December 2009)
“Taser-Powered Police” Marhalim Abas &
Teoh El Sen, http://www.mmail.com.my/
content/21858-taserpowered-police, accessed
24 May 2011
40 Malaysiakini (24 November 2010) “Victim’s
family cries foul over ‘trigger-happy’ police”,
http://www.freemalaysiakini.com/modules.
php?name=News&file=article&sid=7098&m
ode=thread&order=0&thold=0; accessed 12
April 2011
41 The Star (29 April 2010) “IGP hits out at
critics over shooting of teenager”, Steven
Daniel, http://thestar.com.my/news/story.
asp?file=/2010/4/29/nation/201004291657
41&sec=nation; accessed 4 April 2011
42 The Nut Graph (22 March 2010) “Are the
police shooting to kill?” Ding Jo-Ann, http://
www.thenutg raph.com/are-the-policeshooting-to-kill; accessed 3 April 2011
43 Ibid.
44 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.” http://www.thenutgraph.com/
user_uploads/images/2010/05/25/250510_
POLICEKILL_LETTER1.jpg; accessed 21
April 2011
45 The Malaysian Insider (4 December 2010)
“Police shot dead 88 in 2009, lawyers reveal,
Melissa Chi, http://www.themalaysianinsider.
com/malaysia/article/police-shot-dead-88in-2009-lawyers-reveal/, accessed 24 May
2011
“Police shot dead 88 in 2009, lawyers reveal,
com/malaysia/article/police-shot-dead-88in-2009-lawyers-reveal/, accessed 24 May
2011
47 Ibid.
48 Bernama (16 March 2010) “Three Gondol
gang members killed in shootout”, published
at
http://www.thesundaily.com/article.
cfm?id=44417
49 The Jakarta Post (8 April 2010) “Police
to investigate workers’ deaths”, Indra
Harsaputra,
http://www.thejakartapost.
com/news/2010/04/08/police-investigateworkers%E2%80%99-deaths.html; accessed
12 April 2011
50 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
51 The Star (29 April 20101) “IGP hits out at
critics over shooting of teenager”, Steven
Daniel,
asp?file=/2010/4/29/nation/201004291657
41&sec=nation; accessed
4 April 2011
63
7/21/11 2:07 PM
52 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 = / 2 0 1 0 / 4 / 2 9 /
nation/6155962&sec=nation;
accessed 4
April 2011
53 Malaysiakini (3 May 2010) “Witness:
Aminulrasyid didn’t ram car into police”,
Aidila Razak, http://www.malaysiakini.com/
60 Malaysiakini (3 May 2010) “Witness:
Aminulrasyid didn’t ram car into police”,
61 The Star (4 September 2010) “Investigations
into Aminulrasyid’s death followed rules,
says ministry”, posted with permission at
http://www.malaysianbar.org.my/speeches/
investigations_into_aminulrasyids_death_
followed_rules_says_ministry.html; accessed 4
April 2011
54 The Star (3 May 2010) “Cooperate
in
investigations
into
teen’s
death,
PM
urges
cops”,
http://thestar.com.
my / n e w s / s t o r y. a s p ? f i l e = / 2 0 1 0 / 5 / 3 /
nation/6178147&sec=nation; accessed 4
April 2011
62 The Star (14 December 2010) “Aminulrasyid
trial: Cop struggles to recall events”, Ong Han
Sean,
http://thestar.com.my/news/story.
asp?file=/2010/12/14/nation/20101214201
847&sec=nation.com; accessed 4 April 2011
55 Malaysiakini (11 November 2010) “’No
evidence that Aminulrasyid reversed car’”,
Hafiz
Yatim,
http://malaysiakini.com/
(29
November
2010)
63 Malaysiakini
“Aminulrasyid trial: 10 rounds from second
gun”, Aidila Razak, http://www.malaysiakini.
com/news/149438; accessed 4 April 2011
56 Malaysiakini (11 November 2010) “’No
evidence that Aminulrasyid reversed car’”,
Hafiz
Yatim,
64 Bernama (5 July 2010) “Four shot dead in
attempted robbery at state exco’s house”,
published at http://thestar.com.my/news/
32938&sec=nation
57 The New Straits Times (12 November 2010)
“Aminulrasyid shooting case: Court checks
bullet-riddled car”
58 The Start (20 October 2010) “Aminulrasyid
shooting: No bloodstains on rusty parang
found in car (Updated)”, http://thestar.com.
my/news/story.asp?file=/2010/10/20/natio
n/20101020163940&sec=nation; accessed 4
April 2011
59 The Star (29 April 2010) “Transparent
probe
a
must”,
http://thestar.com.
my/news/stor y.asp?file=/2010/4/29/
April 2011
Harian
(27
August
2010)
65 Berita
“Perompak
bersenjata
pistol,
parang
tumpas”, Oleh Khairul Azran Hussin,
http://www.bharian.com.my/bharian/
articles/2010082706013420100827060134/
Article/index_html, accessed 24 May 2011
66 Malaysiakini (21 November 2010) “Family says
police executed 15-year-old and two others”,
67 Ibid.
68 Malaysiakini (21 November 2010) “Family says
police executed 15-year-old and two others”,
64
7/21/11 2:07 PM
69 Malaysiakini (25 November 2010) “Speaker
shoots down motion on police shooting”,
S Pathmawathy, http://malaysiakini.com/
70 The Star (9 May 2010) “Cop shoots alleged
‘Mat Rempit’”, Sarban Singh, http://
thestar.my/news/story.asp?file=/2010/5/9/
nation/6224906&sec=nation, accessed 24
May 2011
71 Malaysiakini (19 May 2010) “Yet another
report lodged over police shooting”, Jimadie
Shah Othman,
news/132191, accessed 24 May 2011
72 The Star (10 May 2010) “Policemen shoot
amok; onlooker shot accidentally”, Edward R.
Henry & Steven Daniel, http://thestar.com.
my/news/story.asp?file=/2010/5/10/nation
/20100510171419&sec=nation, accessed 24
May 2011
73 Parliamentary written reply, Dewan Negara,
First Meeting, Third Session of the Twelfth
Parliament, Reference Number 2659
74 The Star (14 April 2010) “66 died in police
custody since 2005, says Hisham”
75 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
2002. 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 2002. There are similar
discrepancies in deaths in custody figures for
2003. 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.
76 Wan Ahmad Farid Wan Salleh (8 July 2008)
Second Meeting of the First Session of the
Twelfth Parliament, Hansard, DR.8.7.2008
(p. 14) http://www.parlimen.gov.my/hindex/
pdf/DR-08072008.pdf; accessed on 3
December 2008
77 Parliamentary Reply (14 December 2009)
Dewan Negara, Reference Number 2288
78 The Start (25 October 2010) “Open verdict
on Gunasegaran who died in police custody
(updated)”
http://thestar.com.my/news/
79 International Secretariat of the World Against
Torture (20 December 2010) “Malaysia:
Follow-up of case MYS 151210_Writ of
habeas corpus to free M. K. Selvachandran was
rendered academic_OMCT remains seriously
concerned about his safety and detention”
http://www.omct.org/urgent-campaigns/
urgent-interventions/malaysia/2010/12/
d20998/; accessed 31 March 2011
80 Department of National Registration, Death
Certificate, Ulaganathan A/L Muniandy
(dated 22 July 2003, registration number
C699909)
Mission to Malaysia, Sixteenth session
Agenda item 33, A/HRC/16/47/Add.2, (p.
11) http://www2.ohchr.org/english/bodies/
hrcouncil/docs/16session/A.HRC.16.47.
Add.2_en.pdf; accessed 30 March 2011
82 Malaysiakini (19 February 2010) “SPM
school-leaver alleges police brutality”, Vasugi
Supramanian, http://www.malaysiakini.com/
83 Malaysiakini (6 December 2010) “Police beat
me up, says Aminulrasyid’s friend”,
www.malaysiakini.com/news/15011
65
7/21/11 2:07 PM
84 The Star (26 December 2010) “Two
cops in assault case arrested”, M. Kumar,
asp?file=/2010/12/26/nation/20101226200
85 The Malay Mail (27 December 2010) “Court
rejects remand on cops who allegedly beat
businessman”, http://www.mmail.com.my/
content/58968-court-rejects-remand-copswho-allegedly-beat-businessman; accessed 12
April 2011
86 SUARAM (2 August 2010) “Nationwide antiISA rally in conjunction with 50 years of ISA:
Success despite of police brutality!” press
statement,
http://suaram.net/2010/08/
press-statement-2-august-2010-2/; accessed
13 April 2011
87 The Malay Mail (2 August 2010) “Suhakam
regrets police arrests, 30 GMI activists released,
http://mmail.com.my/content/45087suhakam-regrets-police-arrests-30-gmiactivists-released; accessed 13 April 2011
88 Malaysiakini (2 August 2010) “Activist charged
for ‘disorderly conduct’”, Susan Loone,
http://www.malaysiakini.com/news/138989,
accessed 24 May 2011
89 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 2009. Malaysiakini ( 19 November 2009)
“High Court: MACC’s night interrogation
illegal”,
91 See SUARAM (2008) 2007 Annual report
Kuala Lumpur: SUHAKAM (p. 54)
92 The Malaysia Insider (3 November 2010) “Bar
Council demands RMAF to withdraw threat”,
Melissa Chi,
malaysia/article/bar-council-demands-rmafto-withdraw-threat/;
93 Malaysiakini (21 July 2010) “’Najib, can you
guarantee Tharmendran’s safety?’”, http://
www.malaysiakini.com/news/137844;
94 Centre for Independent Journalism (4 July
2010) “Securities Commission’s interrogation
shows need for journalist protection”, Media
statement, http://www.malaysianbar.org.my/
legal/general_news/centre_for_independent_
journalism_media_statement_securities_
commissions_interrogation_shows_need_for_
journalist_protection.html; accessed 21 April
2011
95 The Star (18 May 2009) “Ministry out to curb
human trafficking”, Farik Zolkepli,
s t o r y. a s p ? f i l e = / 2 0 0 9 / 5 / 1 8 /
May 2011
96 SUARAM (26 August 2010) “Changes to
Immigration Detention Centres Must Respect
Human Rights”, Press Statement, http://
www.facebook.com/note.php?note_id=14504
7518862898&comments&ref=mf, accessed 10
May 2011
90 Bernama (15 October 2010) “TBH Inquest:
Investigating officer denies covering-up
evidence, republished at http://www.
malaysiandigest.com/bahasa-melayu/10126tbh-inquest-investigating-officer-deniescovering-up-evidence.html; accessed 13 April
2011
66
7/21/11 2:07 PM
7/21/11 2:07 PM
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 20101
F
reedom 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
campuses6, it simultaneously violates freedom
of expression and the right to information
68
7/21/11 2:07 PM
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, 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’.
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 2010. This is the worst ranking
for Malaysia in the last 9 years.
Chart 1: Malaysia’s ranking in RSF’s
Press Freedom Index8
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 2011.
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
7/21/11 2:07 PM
(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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
Calls for Reform and Government
Responses
Selangor and
Information
Penang
Freedom
of
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: 14
1. 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
2011. The Penang Freedom of Information
Bill is with a select committee for further study
and expected to come back to parliament in
2011. 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
7/21/11 2:07 PM
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, 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’.
Attacks on cyber-space
Freedom of expression online also came
under further attack in 2010. 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
7/21/11 2:07 PM
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)
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
Cases of Media Withdrawals and SelfCensorship
Discussion of racial discrimination
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
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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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 2010. 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
7/21/11 2:07 PM
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
beyond the media
of
expression
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
7/21/11 2:07 PM
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
Kim Quek
OrienGroup
Sdn. Bhd.
Polar Vista
Sdn. Bhd.
English
27-09-2010
P.U. (A) 326
2
isu dalam kartun
Februari 2010
Vol:01
Zunar
Anillusca
Ideas
Enterprise
Naj Press
Resources
(M)
Sdn. Bhd.
Bahasa
Malaysia
17-06-2010
P.U. (A) 208
3
1 Funny Malaysia
Zunar
Kinibooks
Vinlin Press
Sdn. Bhd.
English
17-06-2010
P.U. (A) 208
4
Perak Darul Kartun
Zunar
Sepakat
Efektif Sdn.
Bhd.
Polar Vista
Sdn. Bhd.
Bahasa
Malaysia
17-06-2010
P.U. (A) 208
5
Gadis Jelita Yang
Matang
-
Qiang Ba
Publishing
House
Qi Jian
Printing
Ltd. Co.
Mandarin
11-03-2010
P.U. (A) 67
79
7/21/11 2:07 PM
6
Dewi Pesona
-
Qiang Ba
Publishing
House
Qi Jian
Printing
Ltd. Co.
Mandarin
11-03-2010
P.U. (A) 67
7
Visionary No. 2 - 3
Ujin
Leed
Publishing
Ltd. Co.
Leed
Publishing
Ltd. Co.
Mandarin
11-03-2010
P.U. (A) 67
8
X President No. 6
-
Da Han
Publishing
House
Ming Yu
Printing
Ltd. Co.
Mandarin
11-03-2010
P.U. (A) 67
9
Hard Magazine
-
Chun Jia
Co. Ltd.
Fei Fan
Printing
Factory Co.
Ltd.
Mandarin
04-02-2010
P.U. (A) 32
10
Sensasi #3
-
-
-
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
11
Sensasi - majalah
lelaki millennium
-
-
-
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
12
Antara Kasih &
Dosa
Fahmi Ismail
Penerbitan
MetroZone
Sdn. Bhd.
(255642-K)
Percetakan
Riches
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
13
DENDAM NAFSU
Jalinan nafsu Edisi
#2
Nor
Rafeena
-
-
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
14
JENDELA HATI
Kompilasi 4 Cerita
Terbaik
Jamal Shamsudin
Penerbitan
Azam
Klaasik
-
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
15
JENDELA HATI
Kompilasi 4 Cerita
TerbaikKAMA
Casandra
-
-
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
16
Gelora Nafsu #7
-
-
-
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
17
Gelora Nafsu #6
Nawawi
Munir
Penerbitan
Azam
Klasik
-
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
18
Gelora Nafsu #3
Kompilasi 5 Cerita
Terbaik
Jamal Shamsudin
Penerbitan
Azam
Klasik
-
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
19
Tips-Tips Bahagia
Bersama Pasangan
-
Penerbitan
Azam
Klasik
Percetakan
Zoom Sd.
Bhd.
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
20
Gelora Nafsu 2
Kompilasi 6 Cerita
Terbaik
Nawawi
Munir
Penerbitan
Azam
Klasik
Percetakan
Prima
Mewah
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
80
7/21/11 2:07 PM
21
Sensasi Edisi ke-2
-
-
-
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
22
Kamasutra Jawa &
Kuantum Cinta
Dr Razmi Ali
Raden Amir,
Siti Nurul
Ainor B.Sc
Kalam
Ilham Sdn.
Bhd.
-
Bahasa
Malaysia
21-01-2010
P.U. (A) 13
23
Aan-Penn Eruttarai
Valkhai
Tamilvanan
Manimegalai
Pirasuram
Maruthi
Press
Tamil
21-01-2010
P.U. (A) 16
24
Aanmai KuraivumPenmai Kuraivum
Tamilvanan
Manimegalai
Pirasuram
Sounthara
Printers
Tamil
21-01-2010
P.U. (A) 16
25
Sex Exercise
Tamilvanan
Manimegalai
Pirasuram
Sounthara
Printers
Tamil
21-01-2010
P.U. (A) 16
(Source: Home Ministry, Malaysia http://epq.kdn.gov.my/e-pq/index.php?mod=public&opt=pl)
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 2010. 1 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
7/21/11 2:07 PM
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 2010.46 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 2010.50 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 times51 were seized by the Customs
Department in December 2009,52 and only
approved for sale in Malaysia in April 2010.
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
7/21/11 2:07 PM
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
200955 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 2005.56 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 2001. 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
7/21/11 2:07 PM
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 policies62. 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 2010. 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 2010.
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
7/21/11 2:07 PM
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 2011.
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
7/21/11 2:07 PM
End Notes
1
United Nations (3 May 2010) “Top UN officials
stress importance of freedom of information”,
press statement, http://www.un.org/apps/
news/story.asp?NewsID=34570&Cr=press+f
reedom&Cr1; accessed 26 April 2011
9
2
Ibid.
3
United Nations (29 April 2010) “Public right
to information essential to good governance,
Ban stresses”, press statement, http://www.
un.org/apps/news/story.asp?NewsID=345
36&Cr=journalist&Cr1=; accessed 26 April
2011
10 Reporters Sans Frontières (2009) Press Freedom
Index – Asia: Authoritarianism prevents press
freedom progress in much of Asia, http://
www.rsf.org/en-classement1003-2009.html;
4
UN General Assembly Resolution 217A(III),
adopted 10 December 1948
5
See, for example, the Ha Noi Plan of Action,
adopted at the 6th ASEAN Summit 15-16
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, 2002.
6
7
8
The Star (27 jaunary 2010) “Speaker’s Corner
back at UM”, Richard Lim, http://thestar.
April 2011
528taknakpotong, “Stop Political Intervention
into and Self-Censorship in the Media Industry:
Memorandum by Malaysians Demanding Press
Freedom 2010”, http://528taknakpotong.
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”, http://en.rsf.org/
p re s s - f re e d o m - i n d ex - 2 0 1 0 , 1 0 3 4 .h tm l;
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.
11 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)
12 The Star (15 July 2010) “Selangor tables
freedom of information Bill”, Edward
R. Henry, http://thestar.com.my/news/
story.asp?sec=nation&file=/2010/7/15/
nation/6666691, accessed 26 April 2011
13 Coalition for Good Governance (10 August
2010) Statement, published at http://
right2info.wordpress.com/, accessed 26 April
2011
14 Coalition for Good Governance (10 August
2010) Statement, published at http://
right2info.wordpress.com/, accessed 26 April
2011
15 Najib Razak (6 April 2009) “Malam
Wartawan 2009: Policy, politics and the
media – a new way forward”, speech at
the Hotel Istana Kulala Lumpur, http://
www.pmo.gov.my/?menu=speech&news_
id=117&page=1676&speech_cat=2; accessed
25 April 2011
86
7/21/11 2:07 PM
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”, http://www.
thenutgraph.com/friday-sermons-to-islamsrescue/; accessed 29 April 2011
17 SUARAM’s 2006, 2007 and 2008 Human
Rights Reports document cases where
whistleblowers have been persecuted and
prosecuted in Malaysia in recent years.
26 Jais (12 March 2010) “Isu Menghina Sebatan
Syarie”, cited by The Nut Graph (19 March
2010) “Friday sermons to Islam’s rescue”,
http://www.thenutg raph.com/fridaysermons-to-islams-rescue/; accessed 29 April
2011
18 Malaysia Today (10 July 2010) “Panel set up
to ‘stop lies’”, http://www.malaysia-today.
net/index.php?option=com_content&view=
article&id=33011:panel-set-up-to-stop-lies&c
atid=19:newscommentaries&Itemid=100131;
19 Asia Sentinel (17 August 2010) “Malaysia’s
uneasy dance with the web”, http://www.
asiasentinel.com/index.php?option=com_co
ntent&task=view&id=2645&Itemid=178,
20 The Star (8 July 2009) “No censorship
of
the
Internet”,
http://thestar.com.
April 2010
21 The Star (12 August 2009) “Govt cancels
Net filter plan”, http://star-techcentral.com/
tech/story.asp?file=/2009/8/12/technology/
20090812145638&sec=technology; accessed
20 April 2010
22 The New Straits Times (4 September 2010)
“Najib calls for MCMC action against those
using websites to insult Islam”, http://www.
nst.com.my/nst/articles/
23 MSC Malaysia Bill of Guarantees (point 7),
http://www.mscmalaysia.my/topic/MSC+M
alaysia+Bill+of+Guarantees, accessed 15 June
2009
24 Malaysia (28 April 2006) “Aide-Memoire;
Malaysia’s Candidature to the United Nations
Human Rights Council” (p. 1)
27 The Star (24 February 2010) “No
offence
meant”,
http://thestar.com.
my/news/story.asp?file=/2010/2/24/
April 2011
28 Associated Press (4 March 2010) “Malaysian
daily slammed for killing caning article”,
h t t p : / / w w w. b u s i n e s s w e e k . c o m / a p /
financialnews/D9E7VQ380.htm; accessed 22
April 2011
29 Free Malaysia Today (20 August 2010)
“Talk show clampdown: It’s not a political
move, says Ngaim”, Patrick Lee, http://
w w w. m a l ay s i a - t o d ay. n e t / m t c o l u m n s /
n e w s c o m m e n t a r i e s / 3 3 9 4 4 - t a l k - s h ow clampdown-its-not-a-political-move-saysngiam-; accessed 22 April 2011
30 The Malaysian Insider (20 August 2010)
“MCMC disavows involvement in 98.8FM
axings”,
Clara
Chooi,
http://www.
mcmc-disavows-involvement-in-98.8fmaxings; accessed 22 April 2011
31 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 http://web1.themalaysianinsider.
net/breakingviews/article/now-lets-have-adiscussion-tengku-razaleigh-hamzah; accessed
22 April 2011
87
7/21/11 2:07 PM
32 Asia Sentinel (17 August 2010) “Malaysia’s
Uneasy Dance with the Web”, http://www.
asiasentinel.com/index.php?option=com_co
ntent&task=view&id=2645&Itemid=178,
33 Malaysiakini (29 April 2010) “RTM hits back
by tightening grip”, http://www.malaysiakini.
com/news/130564, accessed 29 April 2011
34 Malaysiakini (20 October 2010) “Malaysiakini
booted from Umno AGM media room”,
http://freemalaysiakini.com/modules.php?na
me=News&file=print&sid=5912; accessed 24
April 2011
35 New Straits Times (14 November 2010)
“Kedah lets in Bernama but media ban stays”,
http://www.nst.com.my/nst/articles/8dib2/
Article/; accessed 24 April 2011
36 Centre for Independent Journalism (4 July
2010) “Securities Commission’s interrogation
shows need for journalist protection”, Media
statement, http://www.malaysianbar.org.my/
legal/general_news/centre_for_independent_
journalism_media_statement_securities_
commissions_interrogation_shows_need_for_
journalist_protection.html; accessed 25 April
2011
37 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”,
nation/6596928; accessed 22 April 2011)
38 The Star (14 July 2010) “Anwar: Harakah,
Rocket,
Suara
Keadilan
suspended”,
asp?file=/2010/7/14/nation/201007141836
39 Free Malaysia Today (7 July 2010) “Ministry
‘raids’ Harakah printers; Suara Keadlian set
for print”, http://freemalaysiatoday.com/
fmtenglish/politics/pakatan-rakyat/7702ministry-raids-harakah-printers-suarakeadilan-set-for-print-/; accessed 22 April
2010
40 Bernama (13 July 2010) “Home Ministry
lodges police report over ‘Keadilan’newspaper
content”,
published
at
http://www.
malaysiandigest.com/news/38-health/5783home-ministry-lodges-police-report-overkeadilan-newspaper-content.html; accessed 22
April 2011
41 The Malaysian Insider (22 September 2010)
“Suara Keadilan stops as vendors back off ”,
Clara Chooi, http://www.themalaysianinsider.
com/malaysia/article/suara-keadilan-stopsas-vendors-back-off/; accessed 22 April 2011
42 Sisters in Islam (17 February 2010) “Sisters
in Islam condemns caning of three muslim
women under syariah law”
43 The Nut Graph (19 March 2010) “Friday
sermons to Islam’s rescue”, http://www.
thenutgraph.com/friday-sermons-to-islamsrescue/; accessed 21 April 2011
44 The Star (18 October 2010) “Cops call
in “March to Putrajaya” author over
sedition allegation”, M. Kumar, http://
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/20101018184842; Kim Quek (1
October 2010) “Press statement by Kim Quek
on banning of his book “March to Putrajaya””,
http://www.malaysia-today.net/mtcolumns/
letterssurat/34920-press-statement-by-kimquek-on-banning-of-his-book-the-march-toputrajaya; accessed 22 April 2011
45 Malaysiakini (25 August 2009) “Comic mag
with Najib waving Mongolian flag seized”,
88
7/21/11 2:07 PM
46 International Freedom of Expressions
Exchange (3 February 2010) “CIJ calls for an
end to book banning”, Alert, http://www.ifex.
org/malaysia/2010/02/03/books_banned/;
55 The Star (12 June 2009) “Make art,
not
war”,
http://ecentral.my/services/
sprinterfriendly.asp?file=/2009/6/12/
movies/4081552&sec=movies, accessed 27
April 2011
47 Malaysiakini (24 June 2010) “Malaysiakini’s
“1Funny Malaysia” by Zunar banned”,
accessed 24 November 2010
56 Norani Othman (2005) Muslim Women and
the Challenge of Islamic Extremism, Petaling
Jaya: Sisters In Islam
48 The Star (26 September 2010) “Zunar
on police bail, plans to sell ‘Cartoono-phobia’”,
http://thestar.com.my/
n e w s / s t o r y. a s p ? f i l e = / 2 0 1 0 / 9 / 2 6 /
April 2011
49 Malaysiakini (21 August 2010) “Vendor books
Zunar investigated alleged seditious act
50 International Freedom of Expressions
Exchange (3 February 2010) “CIJ calls for an
end to book banning”, Alert, http://www.ifex.
org/malaysia/2010/02/03/books_banned/;
51 Wain, B. (2009) Malaysian Maverick: Mahathir
Mohamad in Turbulent Times, Basingstoke,
Hampshire, UK: Palgrave Macmillan.
52 Malaysiakini (23 December 2009) “Mahathir
book ‘pending approval’ by Home Ministry”,
53 Bernama (12 May 2010) “Police Seize 22 “After
the Tsunami” VCDs”, http://www.bernama.
com/bernama/v5/newsprs.php?id=497546;
54 Malaysiakini (1 September 2010) “‘Gadoh’
film not approved for public screening”,
Christine Chan, http://www.malaysiakini.
57 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.
58 The Star (25 January 2010) “Ban lifted on
Sisters in Islam book (updated)”, http://thestar.
com.my/news/story.asp?file=/2010/1/25/na
tion/20100125154150&sec=nation; accessed
24 April 2011
59 Associated Press (12 February 2010) “Malaysia
court upholds ban on book on racial clash”,
Julia Zappei, published at http://wwrn.org/ar
ticles/32693/?&place=malaysia&section=sect
arian-violence; accessed 24 April 2011
60 The Star (13 October 2010) “Survey: Malaysians
have most Facebook friends”, http://thestar.
April 2011
61 Malaysiakini (26 January 2011) “Nazri: No
media clampdown in cyber-sedition guide”,
http://www.malaysiakini.com/news/154562
62 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”, http://
www.1malaysia.com.my/blog/our-leadershipin-online-social-media/; accessed 22 April
2011)
89
7/21/11 2:07 PM
63 The Star (16 January 2010) “Malaysians
advised against being immersed in Facebook,
Twitter”,
asp?file=/2010/1/16/nation/201001161756
08&sec=nation; accessed
22 April 2011
64 The Star (20 January 2010) “Rais comment
has Net users boiling, creates global sensation”,
Jo Timbuong, http://thestar.com.my/news/
65 The Star (3 September 2010) “Journalist
charged over TNB parody in blog posting”,
Nurbaiti
Hamdan,
http://thestar.com.
courts/6969991&sec=courts; accessed 22
April 2011
66 Bernama (26 January 2010) “No action to be
taken against remorseful blogger”, published
at http://www.theborneopost.com/?p=7185;
67 Malaysiakini (28 June 2010) “Court orders
water documents revealed”, http://www.
malaysiakini.com/news/135816, accessed 25
April 2011
68 Ibid.
69 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 2011
70 Bernama (2 February 2010) “Selangor agrees
to make Syabas deal public”, published at
asp?file=/2010/2/2/nation/2010020220381
90
7/21/11 2:07 PM
7/21/11 2:07 PM
T
he Barisan Nasional (BN) government
continued to flout the fundamental
right to freedom of assembly by
arresting over 100 individuals participating
in peaceful assemblies in 2010. 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 placards2 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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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 Asli18 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 2009.
The sentences were considered lenient and
analysts expressed concern that they may
further strain race relations.23
97
7/21/11 2:07 PM
Citizens protesting against the relocation of a Hindu Temple carrying a cow’s head, an animal considered sacred by Hindus.
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
7/21/11 2:07 PM
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 1998.
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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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 2010. 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
7/21/11 2:07 PM
End Notes
1
Section 27, Police Act 1967
2
3
4
Section 27A(7), Police Act 1967
10 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”
6
SUHAKAM (2001) “Inquiry on its Own
Motion into the November 5th Incident
at the Kesas Highway”, Kuala Lumpur:
SUHAKAM (pp. 64-66)
7
SUHAKAM (2007) “Report of SUHAKAM
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 2006. 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.
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
2011
8
9
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)
13 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, http://www.
khalid-says-protest-or-pay-for-selangor-waterrates-hike; accessed 26 April 2011)
14 The Malaysian Insider (13 November 2010)
“Khalid says protest or pay for Selangor
water rates hike”, Melissa Chi, http://www.
khalid-says-protest-or-pay-for-selangor-waterrates-hike; accessed 26 April 2011
15 Malaysiakini (1 August 2010) “Barricades
greet anti-ISA vigils, 36 arrested”, Lee Way
Loon and Hazlan Zakaria, www.malaysiakini.
16 Bernama (24 September 2010) “Five UM
students freed of arson, trespassing charges”,
posted at http://www.malaysiandigest.com/
news/8974-five-um-students-freed-of-arsontresspassing-charges.html; accessed 12 April
2011
102
7/21/11 2:07 PM
17 Malaysiakini (13 August 2010) “SB also grilled
accused in Rosmah graffiti case”, http://
freemalaysiakini.com/modules.php?name=N
ews&file=print&sid=3218; accessed 21 April
2011
26 Section 27, Trade Unions Act 1959
18 Orang Asli are the indigenous people of
Peninsular Malaysia.
29 Section 12, UUCA (2008 Amendments)
19 Malaysiakini (17 March 2010) “Cops halt
Orang Asli advance on Putrajaya”, Aidila
Razak,
news/126760, accessed 26 April 2011
20 The Malaysia Insider (7 March 2010) “Cops
crash DAP party”, Clara Chooi, http://www.
Cops-crash-DAP-party/, accessed 26 April
2011
21 For example, see SUARAM (2010) 2009
Human Rights report, pp.101-102
22 The Malaysia Insider (11 March 2010) “Police
action shows Umno ‘desperate’, says Anwar”
23 Reuters (27 July 2010) “Malaysia fines Muslims
for hindu temple protest”, Razak Ahmad,
idINIndia-50423520100727, accessed 26
April 2011
24 Malaysiakini (1 May 2010) “May day: Police
arrest six anti-GST protesters”, http://www.
malaysiakini.com/news/130700, accessed 26 April
2011
25 Kuala Lumpur Legal Aid Centre (19 October
2010) “Legal Aid lawyers and volunteers denied
right to educate community”, http://www.kllac.
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, http://www.malaysianbar.org.my/
press_statements/press_release_detention_of_legal_
aid_volunteers_highlights_need_for_increased_
awareness_of_rights.html, accessed 25 May 2011
27 Section 2, Trade Unions Act 1959
30 New Straits Times (25 January 2002)
“Undergrads to sign good-conduct pledge”
32 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)
33 Ibid. (para. 87, p. 27)
“Cabinet decision on undergrads in
politics is gutless: Khairy”, http://www.
cabinet-decision-on-undergrads-in-politics-isgutless-khairy/, accessed 26 April 2011
35 Ibid.
36 AFP (20 October 2010) “Malaysia pressured
to drop ban on student politics” published
at
http://www.bangkokpost.com/news/
asia/202338/malaysia-pressured-to-dropban-on-student-politics, accessed 26 April
2011. 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.11.12.08 (pp. 65-69) http://
www.parlimen.gov.my/hindex/pdf/DR11122008.pdf, accessed 15 June 2009)
37 Malaysiakini (20 October 2010) “‘UKM
students involved in Umno general assembly’”,
Hazlan Zakaria, http://www.malaysiakini.
103
7/21/11 2:07 PM
38 Bernama (11 April 2010) “AUKU to be
amended to allow appeal by students”,
published at http://www.mmail.com.my/
category/tags/auku, accessed 26 April 2011
39 Malaysiakini (15 October 2010) “UKM
withholds dean’s award for one of UKM4”,
Joseph Sipalan, http://www.malaysiakini.
40 Bernama (4 June 2010) “Former USM
student fails to challenge UUCA”, http://
www.bernama.com/bernama/v3/news_lite.
php?id=503669; accessed 12 April 2011
7/21/11 2:07 PM
7/21/11 2:07 PM
F
reedom 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 SeMalaysia, 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 2010.
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 nonMuslims – 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 2010.
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 2010. 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
7/21/11 2:07 PM
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
Jurisdiction
Disputes
and
Conversion of deceased persons
Legal
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
7/21/11 2:07 PM
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 1983.5
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.
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
2010.
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
7/21/11 2:07 PM
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 2007.
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 1984. 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 PanMalaysian 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
7/21/11 2:07 PM
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 mufti12 to issue,
amend and revoke fatwa13. 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 2011.
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 2010.
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
7/21/11 2:07 PM
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 maksiat20 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
7/21/11 2:07 PM
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 2010. (Photograph courtesy of Malaysiakini)
112
7/21/11 2:07 PM
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 2010.27 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.28
113
7/21/11 2:07 PM
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 2010.
114
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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 temple34 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
7/21/11 2:07 PM
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 KadazanDusun (an indigenous ethnic group in Sabah)
edition of The Herald was also rejected by the
Home Ministry in November 2009.
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 2009. The sentences were
117
7/21/11 2:07 PM
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 2009.
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
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 nonMuslim 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
2010.
In August 2010 Teo visited Surau AlHuda, 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
7/21/11 2:07 PM
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
2011.57 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
7/21/11 2:07 PM
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 nonMuslim 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 2009.
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
7/21/11 2:07 PM
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”,
nation/20100820131534, accessed 6 May
2011
12 A mufti is the highest-ranking religious official,
appointed to advise a state Ruler on Islamic
laws.
3
Bernama (25 January 2011) “No leave given
to widow of late Everest climber to appeal”,
published at http://www.mmail.com.my/
content/61905-no-leave-given-widow-lateeverest-climber-appeal, accessed 11 May 2011
4
Malaysiakini (6 July 2010) “Bid to strike out
Banggarma’s case”, Susan Loone, http://
www.malaysiakini.com/news/136579,
accessed 5 May 2011
14 Associated Press (29 December 2010) “Shiites
demand rights of worship in Malaysia”,
Sean Yoong, published at http://www.
thejakartaglobe.com/home/shiites-demandrights-of-worship-in-malaysia/414035,
accessed 6 May 2011
5
Ibid.
6
New York Times (5 April 2010) “In Malaysia,
woman challenges reach of Shariah Courts:,
Liz Gooch, http://query.nytimes.com/gst/
fullpage.html?res=9F0DE6DD1339F936A35
757C0A9669D8B63, accessed 6 May 2011
7
UCA News (28 July 2010) “Malaysian High
Court to hear conversion case”, www.ucanews.
com/2010/07/28/malaysian-high-court-tohear-conversion-case/, accessed 6 May 2011
8
Malaysiakini (17 November 2010) “Federal
Court told not to shirk conversion cases”,
accessed 5 May 2011
9
Bernama (12 November 2010) “Federal
court rejects Shamala’s referral application
(Updated)”, published at http://thestar.com.
n/20101112141055&sec=nation, accessed 5
May 2011
13 A fatwa is a religious decree that is binding and
enforceable once gazetted.
15 Malaysiakini (24 December 2010) “Jais moots
special detention camps for deviationists”
16 http://www.youtube.com/watch?v=JPDLKEQMqM
17 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
“Asri: Shi’a arrests proof of Talibanisation”,
www.themalaysianinsider.com/malaysia/
article/asri-shia-arrests-proof-oftalibanisation, accessed 6 May 2011
19 Khalwat is the close proximity between men
and women who are not related to each other
by blood.
20 Maksiat are Islamic vices.
10 Malaysiakini (16 November 2010) “Parent
uses Syariah Court to ‘snatch’ her child”,
Susan Loone, http://malaysiakini.com/
121
7/21/11 2:07 PM
21 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”,
nation/20081122111842, accessed 15 June
2009
22 The Star (24 June 2008) “KB council bans
lipstick, high heels”, www.thestar.com.
May 2010
23 Jais (12 March 2010) “Isu Menghina Sebatan
Syarie”, cited by The Nut Graph (19 March
2010) “Friday sermons to Islam’s rescue”,
h ttp : / / w w w. th enu tg r ap h . c o m /fridaysermons-to-islams-rescue/; accessed 29 April
2011
24 AFP (29 October 2010) “Malaysia’s Sisters of
Islam win right to use name”
25 See SUARAM (2008) Malaysia Human
Rights Report 2007: Civil and Political Rights,
Petaling Jaya: SUARAM (p.127)
26 Reuters (24 October 2008) “Malaysia
Muslim body issues fatwa against tomboys”,
http://in.reuters.com/article/lifestyleMolt/
idINTRE49N2AM20081024, accessed 12
November 2008
27 Pink News (28 July 2010) “Malaysian trans
woman wins asylum in UK”, http://www.
pinknews.co.uk/2010/07/28/malaysiantrans-woman-wins-asylum-in-uk/, accessed 6
May 2011
28 The Nut Graph (8 December 2009) “Why
Fatine can’t come home”, Ding Jo-Ann,
http://www.thenutgraph.com/why-fatinecant-come-home/, accessed 6 May 2011
29 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.
30 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”,
www.thestar.com.my/
nation/3443845&sec=nation , accessed 15
May 2010
32 The Star (1 January 2010) “High Court
grants Catholic publication Herald the right
to use ‘Allah’ word again”, http://thestar.
May 2010; My Sin Chew (31 December 2009)
“Court rules Catholic Herald can use Allah
word”, www.mysinchew.com/node/33373 31Dec2009, accessed 14 November 2010
33 My Sinchew (6 January 2010) “Home ministry
to allow protests against ‘Allah’ ruling”, www.
mysinchew.com/node/33598, accessed 5 May
2011
34 Sikhs also use the word Allah and had
unsuccessfully sought to be part of the legal
suit.
35 Malaysiakini (12 January 2010) “Stones
thrown at Sikh temple in Sentul”, http://www.
malaysiakini.com/news/121808; accessed 5
May 2011
36 Associated Press (17 January 2010) “Rum bottle
thrown at Malaysia mosque amid tension”
published at http://asiancorrespondent.
com/27653/rum-bottle-thrown-at-malaysiamosque-amid-tension/, accessed 5 May 2011
122
7/21/11 2:07 PM
37 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 = / 2 0 1 0 / 1 / 9 /
nation/5440994&sec=nation, accessed 5 May
2011
38 The Star (9 January 2010) “Najib condemns
attacks”, Mazwin Nik Anis, http://thestar.
2011
39 Bernama (28 January 2010) “Hishammuddin:
Police don’t need Azmin’s statement”,
published at http://sun2surf.com/article.
cfm?id=42890, accessed 5 May 2011
40 Malaysiakini (13 August 2010) “Church arson:
Brothers jailed 5 years, told don’t play with
fire”, Hafiz Yatim, http://www.malaysiakini.
com/news/139945, accessed 5 May 2011
41 The Malaysian Insider (3 August 2010) “DPM
warns MCA over ‘Allah’ appeal”, Asrul Hadi
Abdullah Sani, www.themalaysianinsider.
com/malaysia/article/dpm-warns-mca-overallah-appeal, accessed 5 May 2011
“Hishammuddin says regrets ‘Allah’ ban”,
Asrul Hadi Abdullah Sani,
article/hishammuddin-says-regrets-allahban/, accessed 5 May 2011
“Minister says no to dropping ‘Allah’ appeal”,
article/minister-says-no-to-dropping-allahappeal/, accessed 5 May 2011
45 Malaysiakini (29 October 2009) “‘Allah’
ban: 15,000 copies of bible seized”, www.
malaysiakini.com/news/116211, 20 April
2010
46 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)
47 Malay Mail (21 April 2009) “Temples around
KL ready to relocate”,
h t t p : / / w w w. m m a i l . c o m . my / c o n t e n t /
temples-around-kl-ready-relocate, accessed 27
May 2011
April 2011
49 Malaysiakini (28 August 2009) “Temple demo:
Residents march with cow’s head”, www.
May 2010
50 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’”, www.malaysiakini.com/news/112369,
accessed 15 May 2010)
51 MCA (6 November 2010) “Not up to teachers
or school senior assistants to impose ‘halal
food’ policy in schools”, Loh Seng Kok, http://
www.mca.org.my/en/mca-%E2%80%93n o t - u p - t o - t e a c h e r s - o r- s c h o o l - s e n i o rassistants-to-impose-%E2%80%9Chalalfood%E2%80%9D-policy-in-schools/,
accessed 6 May 2011
7/21/11 2:07 PM
52 Bernama (30 August 2010) “Mosque visit: Teo
was ‘deemed dirty’, says Hisham”, published at
accessed 6 May 2011
53 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”,
news/152131, accessed 6 May 2011)
54 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=532097
“Perkasa wants non-muslims banned from
mosques, suraus”, Boo Su-Lyn,
article/perkasa-wants-non-muslims-bannedfrom-mosques-suraus/, accessed 5 May 2011
56 Ibid.
57 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”,
s t o r y. a s p ? f i l e = / 2 0 1 0 / 1 / 1 1 /
May 2011
124
7/21/11 2:07 PM
7/21/11 2:07 PM
R
acism 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 1987.1
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
7/21/11 2:07 PM
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 2009. 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 1971.
Consequently, while this populist
“bumiputera” policy has been applied to
the benefit of “bumiputeras” as a whole, the
127
7/21/11 2:07 PM
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 1971. 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 1971.
128
7/21/11 2:07 PM
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 1957. The
government has continued to ignore the grave
129
7/21/11 2:07 PM
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 2009. The 1Malaysia
website http://www.1malaysia.com.my 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.”15
130
7/21/11 2:07 PM
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 2009.19 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 Speaker20 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 2010. 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.24
131
7/21/11 2:07 PM
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 1969.
132
7/21/11 2:07 PM
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 1990. 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 nonMalay 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.33
133
7/21/11 2:07 PM
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 nonIslamic 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.40
134
7/21/11 2:07 PM
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 2009. 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
Opportunities Commission
Equal
On numerous occasions, SUARAM has
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”, 1988. 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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
End Notes
1
Malaysian Government White paper (1988)
Towards Preserving National Unity
2
Kua Kia Soong (2005) The Malaysian Civil
Rights Movement, SIRD (p.108)
3
Malaysiakini (1 February 2001) “Police report
against Sunday rally cites ‘racial tension’”, K
Kabilan
4
Percentages and numbers of death by
police shooting cases, according to race
and nationality: Indonesians - 40.5% (113
deaths); Indians - 21.8% (61 deaths); Chinese
- 18.6% (52 deaths); and Malays - 15% (42
deaths). (Lawyers for Liberty (6 June 2010)
“Top 10 facts from the PDRM fatal shootings
statistics (2000 – 2009)”, http://www.
lawyersforliberty.org/2010/12/top-10-factsfrom-the-pdrm-fatal-shootings-statistics-2000%e2%80%93-2009/, accessed 24 May 2011)
5
US State Department (28 January 2011)
Background Note: Malaysia, Bureau of East
Asian and Pacific Affairs, http://www.state.
gov/r/pa/ei/bgn/2777.htm, accessed 24
May 2011
6
K. Arumugam (2007) March 8, Petaling
7
Bintulu Edition (5 April 2010) “Thugs ‘threaten’
NCR landowners over logging dispute”,
http://www.bintulu.org/news/2010/04/05/
gangsters-threaten-balingian-ncr-landownersover-dispute-with-logging-company.php,
8
Report of the Federation of Malaya
Constitutional Commission 1957, Govt Press,
para 165 (p.72)
9
Government of Malaysia Census 1980
10 Written reply to parliamentary question, Dec
1990
11 Kua Kia Soong (1990) Malaysian Cultural
Policy and Democracy, Huazi Research
Centre, 1990
12 Adopted and opened for signature and
ratification by General Assembly resolution
2106 (XX)
of 21 December 1965. Entry into force 4
January 1969, in accordance with Article 19.
13 International Convention on the Elimination
of All Forms of Racial Discrimination, http://
www2.ohchr.org/english/law/cerd.htm,
14 Malaysiakini (30 November 2010) “Dr
M: Forget our roots if we want to achieve
1Malaysia”, Hazlan Zakaria, http://www.
May 2011
15 Malaysiakini (11 December 2010) “Can
Ketuanan Melayu and 1Malaysia co-exist?”,
Adila Razak, http://www.malaysiakini.com/
16 Ibid.
17 Malaysiakini (27 November 2010) “Azizah
rallies party faithful, trashes ‘ketuanan
Melayu’”, Aidila Razak, http://www.
May 2011
“BN Youth wants ‘racist’ school principal
punished”, http://www.themalaysianinsider.
com/malaysia/article/bn-youth-wants-racistschool-principal-punished, accessed 18 May
2011
19 The Sun (9 November 2010) “‘Non-Malays’
patriotism not strong enough”, Husna
Yusop,
http://www.sun2surf.com/article.
20 The Malaysia Insider (9 November 2010)
“Why fewer non-Malays in military? Low
patriotism and fear of discipline, says
ministry”, Shazwan Mustafa Kamal, http://
article/why-fewer-non-malays-in-militarylow-patriotism-and-fear-of-discipline-saysministry/, accessed 18 May 2011
137
7/21/11 2:07 PM
“Cabinet gag order on non-Malay numbers
in military, says Koh”, Melissa Chi, http://
web1.themalaysianinsider.net/malaysia/
article/cabinet-gag-on-non-malays-numbersin-military-says-koh, accessed 18 May 2011
28 Razak, N. Prime Minister (30 March 2010)
“Full text of PM’s speech at launch of NEM”,
story.asp?file=/2010/3/30/neweconomicmo
del/20100330113457&sec=neweconomicmo
del, accessed 18 May 2011
22 The Star (30 September 2010) “Racist
remarks: Public complaints bureau to probe
Hamim on Thursday”, http://thestar.com.
my/news/story.asp?file=/2010/9/30/nation
/20100930095022&sec=nation, accessed 18
May 2011
29 The Star (30 March 2010) “PM: New
Economic Model to benefit all”, http://thestar.
com.my/news/story.asp?file=/2010/3/30/ne
weconomicmodel/20100330095105&sec=ne
weconomicmodel, accessed 18 May 2011
“Putrajaya says BTN official suspended over
racist remarks”, Shazwan Mustafa Kamal,
malaysia/article/putrajaya-says-btn-officialsuspended-over-racist-remarks/, accessed 18
May 2011
24 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,
25 The Malaysian Insider (19 August 2010) “BN
Youth wants ‘racist’ school principal punished”,
Boo Su-Lyn, http://www.themalaysianinsider.
com/malaysia/article/bn-youth-wants-racistschool-principal-punished, accessed 18 May
2011
30 Malaysiakini (29 May 2010) “Malay coalition
wants Najib to revamp NEM”, Hazlan
Zakaria,
31 Malaysiakini (30 May 2010) “Najib vows to
never betray NEP”, Hazlan Zakaria, http://
May 2011
32 Malaysiakini (10 June 2010) “Bumi equity
target still 30%”, Aidila Razak, http://
May 2011
33 Bernama (3 December 2010) “New Economic
Model (NEM)”, published at http://
www.mmail.com.my/category/tags/neweconomic-model-nem, accessed 18 May 2011
34 Free Malaysia Today (31 March 2010) “NEM
a fresh gloss on old ideas, says prof ”
35 Ibid.
26 The Malaysian Insider (11 October 2010)
“Speaker claims ‘racist’ principals already
disciplined”, Shazwan Mustafa Kamal, http://
article/speaker-claims-racist-principalsalready-disciplined, accessed 18 May 2011
27 Ibid.
36 Article 160, Federal Constitution of Malaysia
37 The Star (10 March 2009) “Remaining
states to gazette ruling for non-Muslim
publications”,
www.thestar.com.my/
nation/3443845&sec=nation , accessed 15
May 2010
138
7/21/11 2:07 PM
38 The Star (1 January 2010) “High Court
grants Catholic publication Herald the right
to use ‘Allah’ word again”, http://thestar.
May 2010; My Sin Chew (31 December 2009)
“Court rules Catholic Herald can use Allah
word”, www.mysinchew.com/node/33373 31Dec2009, accessed 14 November 2010
39 My Sinchew (6 January 2010) “Home ministry
to allow protests against ‘Allah’ ruling”, www.
mysinchew.com/node/33598, accessed 5 May
2011
40 Associated Press (17 January 2010) “Rum bottle
thrown at Malaysia mosque amid tension”
published at http://asiancorrespondent.
com/27653/rum-bottle-thrown-at-malaysiamosque-amid-tension/, accessed 5 May 2011
45 “Incitement to racial hatred” was established
as an offence by the provisions of §§ 17-29
of the Public Order Act 1986. It was first
established as a criminal offence in the Race
Relations Act 1976. 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.
41 The Star (9 January 2010) “Najib condemns
attacks”, Mazwin Nik Anis, http://thestar.
2011
April 2011
7/21/11 2:07 PM
7/21/11 2:07 PM
7/21/11 2:07 PM
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 20091
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
I
n 2010, Malaysia showed no intention
of ratifying the 1951 UN Convention
Relating to the Status of Refugees2 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
7/21/11 2:07 PM
1959/1963.3 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 1979.
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
Malaysia
and
Asylum
seekers
in
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-2009. However, the
waiting period in detention for asylum seekers
to be given access to UNHCR remains long.
143
7/21/11 2:07 PM
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
1759
36137
37896
Rohingya
1153
18582
19735
Muslim
1166
6565
7731
Burmese
829
968
1797
Kachin
157
3353
3510
Karen
550
2690
3240
Arakanese
312
1411
1723
Mon
777
3072
3849
Shan / Thai Yai
1029
874
1903
Kayah
166
519
685
Others
347
520
867
Myanmar Total
8245
74691
82936
OTHER COUNTRIES
Sri Lanka
1709
2262
3971
Iraq
176
499
675
Somalia
224
786
1010
Afghanistan
90
428
518
Others
609
516
1119
Others Total
2808G
4485
7293
Grand Total
11053
79176
90229
(Source: UNHCR)
144
7/21/11 2:07 PM
International watchdog, the U.S.
Committee for Refugees and Immigrants
(USCRI) named Malaysia as one of the
worst places for refugees in 2008 and 2009.
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
7/21/11 2:07 PM
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
Recommendations for reform
and
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
7/21/11 2:07 PM
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;
closely
with
8. Collaborate
governments of sending countries in
solving migrant workers’ problems;
9. Develop a comprehensive legal and
147
7/21/11 2:07 PM
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 2008.30
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
7/21/11 2:07 PM
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
2008.38 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 5,500.42
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
2009.43
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
7/21/11 2:07 PM
Chart 7.1: Undocumented migrant detainees (incl. refugees)
(source Home Ministry)
470 children in 2007. (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 2009 48 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
7/21/11 2:07 PM
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
and April 2009. 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.
Access to Detention Centres and Justice
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
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 2010.52
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 2009.
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
Special Immigration Courts
151
7/21/11 2:07 PM
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 2009. 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 2009.56 It was also stated that
2,571 detainees died in the country’s prisons,
rehabilitation centres, and immigration
detention centres between 1999 and 2008.57
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 2002.
At least 34,923 cases of undocumented
migrant caning had been carried out between
2002 and 2008,59 and 29,759 between 2005
and 2010.60 The U.S. Committee for Refugees
and Immigrants 2009 report stated that a
Table 7.2 Death in immigration detention, 2005-2009 55
Year
2005
Number of deaths
1
2006
5
2007
27
2008
14
2009
31
152
7/21/11 2:07 PM
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 2009. 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
Detention
and
Conditions
of
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 2010 64
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. 19-20
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 2010.
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.”68
153
7/21/11 2:07 PM
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
2009. 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
7/21/11 2:07 PM
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 2010. 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
7/21/11 2:07 PM
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
2009.87
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 2009. 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 2009.
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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
End Notes
1
2
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 1950.
3
Act 155, as amended by Immigration
Regulations 1963 (Act A719)
4
SUHAKAM (2011) Annual Report 2010,
Human Rights Commission of Malaysia:
Kuala Lumpur (p.36)
5
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.
6
7
8
Bangkok Post (27 February 2009) “Abdullah:
We must be firm in turning back Rohingya”,
h t t p : / / w w w. b a n g k o k p o s t . c o m / n e w s /
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, http://www.aseansec.org/22328.htm,
SUARAM email communication
UNHCR Malaysia, 3 June 2010
with
9
U.S Committee for Refugees and Immigrants
(2009) World Refugee Survey 2009, Arlington
VA: USCRI (p.51)
10 Minister Chris Bowen (Australia) (18 May
2011) “Malaysia deal is a safe solution”,
published in The Australian, http://www.
theaustralian.com.au/national-affairs/
commentary/malaysia-deal-a-safe-solution/
story-e6frgd0x-1226057805927, accessed 2
June 2011
11 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.
“8
12 Utusan Malaysia (18 May 2010)
warga Afghanistan diberkas”, http://
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,
13 Sydney Morning Herald (28 October 2009)
“Police head to Asia to fight smugglers”,
http://www.smh.com.au/world/police-headto-asia-to-fight-smugglers-20091027-hj3a.
html, accessed 20 May 2010
14 US Department of State (2011) Trafficking
in Persons 2010 (p.223) http://www.state.
gov/documents/organization/143187.pdf,
15 Amnesty International (2010) Malaysia
Must End Abuse of Migrant Workers,
ASA 28/002/2010, Amnesty International
Publications:London (p.4), available at http://
www.amnesty.org/en/news-and-updates/
report/malaysia-must-end-abuse-migrantworkers-2010-03-24, accessed 9 May 2011
16 Ibid.
158
7/21/11 2:07 PM
17 Ibid. (p.4); US Department of State (2011) op.
cit.
18 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
19 Malaysiakini (6 July 2010) “Suhakam barred
from entering new palace site”, http://www.
May 2011
20 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
26 The Malays Mail (18 November 2010)
“Refugees’ right to work in Malaysia”,
Joseph Kaos Jr, http://www.mmail.com.my/
content/55365-refugees-right-work-malaysia,
accessed 7 May 2011
27 Bernama (12 February 2010) op. cit.
28 Associated Press (16 June 2010) op. cit.
29 SUHAKAM (2011) Annual Report 2010,
Human Rights Commission of Malaysia:
Kuala Lumpur (p.89)
30 Ibid. (pp.17-18)
31 Amnesty International (24 March 2010) op.
cit.
32 The Star (21 May 2010) “Malaysian
government to offer amnesty to foreign
workers”, Dharmender Singh, published at
http://www.asianewsnet.net/home/news.
php?id=12050&sec=1, accessed 10 May 2011
21 Ibid.
22 Associated Press (2 February 2010) “Sec-Gen:
UN recognised refugees to get ID cards”
23 Associated Press (16 June 2010) “Malaysia
backtracks on ID cards for ‘illegal’ refugees”,
published at www.thejakartaglobe.com/news/
malaysia-backtracks-on-id-cards-for-illegalrefugees/380935, accessed 7 May 2011
24 Bernama (12 February 2010) “Employ refugees
instead of foreigners, says MTUC”, published
at
www.mmail.com.my/content/27567employ-refugees-instead-foreigners-says-mtuc,
accessed 7 May 2011
25 The Star (22 February 2010) “Government
may allow refugees to work”, Mazwin
Nik
Anis,
2011
33 Irrawaddy (24 May 2010) “Uncertainty
about Malaysian amnesty”, Kyaw Thein
Kha, http://irrawaddy.org/article.php?art_
id=18543&Submit=Submit, accessed 10 May
2011
34 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)
35 Chor Chee Heung, 3 July 2008, Second
Meeting of the First Session of the Twelfth
Parliament, Hansard, DR.3.7.2008 (p. 14)
http://www.parlimen.gov.my/hindex/pdf/
DR-03072008.pdf, accessed 3 December 2008
159
7/21/11 2:07 PM
36 Amnesty International (June 2010) Abused
and Abandoned: Refugees denied rights in
Malaysia, Amnesty International Publications,
ASA 28/010/2010, http://www.amnesty.
org/en/library/asset/ASA28/010/2010/
en/2791c659-7e4d-4922-87e0940faf54b92c/asa280102010en.pdf, accessed
2 June 2011
37 The Sun (5 August 2010) “Police liaison
officers posted at immigration depots”, Husna
Yusop, http://www.thesundaily.com/article.
38 Before 2008, the Immigration Detention
Centres had been handled by the Prisons
Department.
39 See SUARAM (2009) op. cit. (pp. 140-141)
40 Amnesty International (2010) Trapped: The
Exploitation of Migrant Workers in Malaysia,
London: Amnesty International Publications
(p. 82)
May 2011
42 Jawapan Lisan Dewan Negara YBM Tunku
Abdul Aziz Bin Tunku Ibrahim Pada (27 July
2010)
43 Email communication
Malaysia, 3 June 2010
with
UNHCR
44 United Nations Radio (25 March 2010) “The
plight of Myanmar refugees in Malaysia”,
http://www.unmultimedia.org/radio/
english/detail/92761.html, accessed 10 May
2011
45 Bernama (17 January 2010) “Marine police detain
26 Myanmarese near Pulau Ketam”, published at
www.mmail.com.my/content/24915-marinepolice-detain-26-myanmarese-near-pulauketam, accessed 10 May 2011
46 The Star (26 April 2010) “Sri Lankans detained
after 57-hour deadlock”, Tan Sin Chow and
Winnie Yeoh, http://thestar.com.my/news/
nation/6130661, accessed 10 May 2011
47 Associated Press (27 May 2010) “Sri Lankan
asylum seekers on hunger strike”, published
at
http://asiancorrespondent.com/32994/
sri-lankan-asylum-seekers-on-hunger-strike/,
48 Parliamentary reply (27 July 2010) Upper
House, Twelfth Parliament, Third Term,
Second Meeting
49 The Malaysian Insider (24 March 2009) “Over
200,000 illegals nabbed in past 3 years”, http://
my-1.themalaysianinsider.com/index.php/
malaysia/21082-over-200000-illegals-nabbedin-past-3-years accessed 24 March 2009
50 Malaysiakini (19 January 2010) “Authorities free
19 Sri Lankans”, http://malaysiakini.com/
51 SUARAM (20 April 2009) “Stop the
Repatriation of the Sri Lankan Refugees Now!”
Urgent Appeal
52 SUHAKAM (2011) op.cit.
53 Mizzima (25 February 2010) “Demonstration
in Malaysian camp, 106 Burmese released”,
Salai Han Thar San, http://www.mizzima.
com/news/regional/3574-demonstration-inmalaysian-camp-106-burmese-released-.html,
54 Malaysiakini (28 October 2009) “Swift
‘injustice’ at immigration courts”, http://www.
May 2010
55 Jawapan Lisan Dewan Negara YBM Tunku
Abdul Aziz bin Tunku Ibrahim Pada (26 July
2010)
7/21/11 2:07 PM
56 Pemberitahuan Pertanyaaan Bagi Jawab Lisan
Dewan Rakyat (9 November 2009), No. AUM:
27
57 The Star (24 March 2009) “2,571 detainees
died in past nine years”, http://thestar.com.
my/news/story.asp?file=/2009/3/24/parliam
ent/3539996&sec=parliament, accessed 1 May
2010
58 Amnesty International (6 December 2010)
“Nian Vung, a refugee caned in Malaysia after
fleeing Myanmar”, http://www.amnesty.org.
au/hrs/comments/24320/, accessed 10 May
2011
59 Parliamentary Written Reply to Liew Chin
Tong (Bukit Bendera), Dewan Rakyat, 17 June
2009
60 Amnesty International (11 March 2011)
“Malaysia: Government reveals nearly 30,000
foreigners caned”, Press statement, http://www.
amnesty.org.au/news/comments/25050/,
61 U.S Committee for Refugees and Immigrants
(2009) World Refugee Survey 2009, Arlington
VA: USCRI (p.51)
62 “Q&A: Detainee tells of squalor, beatings in
Malaysian camp”, World Focus, 25 August 2009,
http://worldfocus.org/blog/2009/08/25/qadetainee-tells-of-squalor-beatings-in-malaysiancamp/6928/, accessed 21 May 2010
63 See story of ‘Lwin’ in SUARAM (2010)
Malaysia Human Rights Report 2009,
SUARAM Kommunikasi: Petaling Jaya (p.146)
64 Irrawaddy (25 February 2010) “Demonstration
in Malaysian camp, 106 Burmese released”,
Salai Han Thar San, http://www.mizzima.
com/news/regional/3574-demonstration-inmalaysian-camp-106-burmese-released-%20.
65 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”, http://www.ohchr.
org/en/NewsEvents/Pages/DisplayNews.
aspx?NewsID=10176&LangID=E, accessed 2
June 2011
66 New Straits Times (22 July 2007) “Detention
centres bursting at seams”
67 Series of interviews with refugees and former
detainees, January-April 2007 and May 2008
68 SUHAKAM (2010) op. cit. (p. 22)
69 Interview with refugee from Burma, 2 May
2008
70 See interview with ‘Tun’ in SUARAM (2010)
SUARAM Kommunikasi: Petaling Jaya
(pp.145-146) and World Focus (25 August
2009) “Q&A: Detainee tells of squalor, beatings
in Malaysian camp”, http://worldfocus.
org/blog/2009/08/25/qa-detainee-tells-ofsqualor-beatings-in-malaysian-camp/6928/,
71 Series of interviews with former detainees,
January-April 2007
72 SUHAKAM (2010b) op. cit. (p.25)
73 SUHAKAM (2010b) op. cit. (p.25)
74 SUHAKAM (2010) op. cit. (p. 21)
75 Series of interviews with former detainees,
January-April 2007
76 See story of ‘Lwin’ in SUARAM (2010)
SUARAM Kommunikasi: Petaling Jaya (p.146)
7/21/11 2:07 PM
77 World Focus (25 August 2009) “Q&A: Detainee
tells of squalor, beatings in Malaysian camp”,
http://worldfocus.org/blog/2009/08/25/qadetainee-tells-of-squalor-beatings-in-malaysiancamp/6928/, accessed 21 May 2010
78 New Straits Times (7 June 2010) “Rioters claim
bad treatment at camp”, http://www.nst.com.
my/articles/10ulu/Article/, accessed 10 May
2011
79 The Star (17 June 2010) “Myanmar detainees’
charge rejected”, Sarban Singh, http://thestar.
2011
80 The Sun (5 August 2010) “Police liaison officers
posted at immigration depots”, http://www.
thesundaily.com/article.cfm?id=50335; New
Straits Times (3 August 2010) “Panel to rope
in prison officers”, http://www.nst.com.my/
nst/articles/04MMDEP/04MMDEP/68634c
81624cdea25e60655afd991def/Article/index_
May 2011
82 New Straits Times (24 August 2010) “Security
woes at detention centres housing foreign
criminals”, Farrah Naz Karim, http://www.
nst.com.my/nst/articles/, accessed 10 May
83 New Straits Times (25 August 2010) “Complete
makeover”, Farrah Naz Karim, http://www.
nst.com.my/nst/articles/20100825081653/
Article/, accessed 10 May 2011
85 US Department of State (2010) Trafficking in
Persons 2009
86 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)
87 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
88 New Straits Times (13 October 2010) “Nine held
under ISA for human trafficking”, Lee Shi-lan,
http://www.nst.com.my/nst/articles/10mmi/
Article/, accessed 10 May 2011
89 US Department of State (2011) op. cit. (pp.223224)
90 Malaysiakini (13 January 2010) “Fresh
allegations on Malaysia’s refugees for sale”,
91 New Straits Times (3 August 2010) “20
escapees were victims of human trafficking”,
Koi Kye Lee and Elizabeth Zachariah, http://
www.nst.com.my/nst/articles/04klaf/04klaf/
a375cd81840d0acf26b60893793ffded/
Article/index_html, accessed 10 May 2011
92 New Straits Times (3 August 2010) “Immigration
D-G ready to take rap”, http://www.nst.
com.my/nst/articles/05mmt/05mmt/
ff26b67a2ffec6d55f527dc11d6210dd/Article/
index_html#ixzz1Ly5fpz8Y, accessed 10 May
2011
84 US Department of State (2011) Trafficking in
Persons 2010; Indonesia (p.177) and Malaysia
(p.223)
http://www.state.gov/documents/
organization/142983.pdf, accessed 10 May
2011
7/21/11 2:07 PM
7/21/11 2:07 PM
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
7/21/11 2:07 PM
Table 9.1 Overview of the four by-elections in 2010
Constituency
Hulu Selangor1
Sibu2
Galas3
Batu Sapi4
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
Postal Voters
64,500
799
55,562
1.24%
4.4%
11,140
122
25,582
1.06%
1,615
6.31%
Nomination Day
17/04/2010
08/05/2010
26/10/2010
26/10/2010
Polling Day
25/04/2010
16/05/2010
04/11/2010
04/11/2010
Campaign period (days)
8
8
9
9
Total Candidates
2
3
2
3
BN vote share
24,997
51.79%
18,447
49.16%
5,324
56.29%
9,773
64.22%
Pakatan Rakyat vote share
23,272
48.21%
18,845
50.22%
4,134
43.71%
3.414
22.43%
Third Party/ Independent
vote share
-
-
232
0.62%
-
-
2,031
13.35%
731
1.49%
395
1.04%
132
1.38%
372
2.39%
Spoiled votes (% of total
votes cast)
Winner
BN-MIC
PR-DAP
BN-UMNO
BN-PBS
Winning Margin
1,725
3.57%
398
1
6,359
41.79%
Turnout %
49,000
75.97%
34
40
41,449
74.60%
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
1969-70, 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
7/21/11 2:07 PM
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 Malaysia7 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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
Two parliamentary constituencies for one rural district, one constituency for another
rural district.
Sungai
Besar
Sabak
Bernam
Hulu Selangor
(34,073)
(31,381)
(63,593)
Sabak Bernam 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)
Hulu Selangor District
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,
Two parliamentary constituencies for one rural district, one constituency for another
rural district.
Constituencies sorted by electorate size
168
7/21/11 2:07 PM
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 26.08 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 2008. 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
7/21/11 2:07 PM
Elections
Alliance
/ BN
PAS
PN
Labour
/ SF /
PSRM
/ PRM
PPP
PAP /
DAP
Gerakan
SNAP
1955
1.20
0.47
0.00
0.00
0.00
1959
1.37
0.59
0.45
0.61
0.61
1964
1.46
0.00
0.00
0.12
0.56
0.47
1969
1.35
0.00
0.82
0.76
1974
1.44
0.00
0.32
1978
1.48
0.00
0.54
0.00
1982
1.42
0.00
0.30
0.00
1986
1.46
0.00
0.64
1990
1.32
0.00
0.63
0.29
3.40
1995
1.29
0.00
0.39
0.31
1.26
1999
1.36
0.00
0.41
2004
1.42
0.55
0.05
2005
1.23
0.90
0.74
0.74
Pekemas
S46
PBS
PKN /
PKR
2.32
1.05
0.13
0.72
0.22
(Source: Wong, Chin and Othman, 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
Votes to match
1 Alliance / BN
vote
1955
PN
Infinity
PAS
2.54
NAP
Infinity
1959
PAS
2.34
SF
2.31
PPP
2.25
1964
SF
12.25
PAS
2.47
UDP
6.65
1969
PAS
3.39
DAP
1.79
Gerakan
1.81
1974
DAP
4.52
SNAP
1.37
Pekemas
11.39
1978
DAP
2.72
PAS
7.03
Pekemas
Infinity
1982
DAP
4.75
PAS
6.30
PSRM
Infinity
1986
DAP
2.27
PAS
40.41
PSRM
Infinity
1990
DAP
2.10
S46
4.48
PAS
2.28
1995
DAP
3.33
S46
4.22
PAS
2.259
1999
PAS
1.45
DAP
3.28
PKN
6.11
1995
PAS
8.15
DAP
2.58
PKR
26.08
1999
PKR
1.67
PAS
1.70
DAP
1.37
(Source: Wong, Chin and Othman, 2010)
170
7/21/11 2:07 PM
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 2011. 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, Commissioners 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.11
1.3
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
7/21/11 2:07 PM
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.12
1.4
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
7/21/11 2:07 PM
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 forums21,
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 2009 25, and
would amount to RM 54 million to register
the remaining 3.93 million citizens outside the
electoral rolls.
173
7/21/11 2:07 PM
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”.27
2.2
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 suffrage28 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 2010.
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
7/21/11 2:07 PM
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 2008.33
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 2009.36
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.39
175
7/21/11 2:07 PM
2.4
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 overseas40
(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
7/21/11 2:07 PM
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 government42,
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
7/21/11 2:07 PM
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 1959-1969, 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 2008.
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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
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 37.72 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 RM550,000.00. 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.57
3.3
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
7/21/11 2:07 PM
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
7/21/11 2:07 PM
2007 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 Galas66, 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
7/21/11 2:07 PM
End Notes
1
New Straits Times (3 August 2010) “Immigration
D-G ready to take rap”, http://www.nst.
com.my/nst/articles/05mmt/05mmt/
f f 2 6 b 6 7 a 2 f f e c 6 d 5 5 f 5 2 7 d c 1 1 d 6 2 1 0 d d/
Article/index_html#ixzz1Ly5fpz8Y, accessed
10 May 2011
2
See
http://www.spr.gov.my/index_files/
result_praya/Borang16PRKP.212.pdf,
accessed 13 June 2010.
3
See
result_praya/borang16N45.pdf, accessed 13
June 2010.
4
See
result_praya/borang16P185.pdf, accessed 13
June 2010.
5
Wong, Chin-Huat; Chin, James; and
Othman, Norani (2010) “Malaysia - towards
a topology of an electoral one-party state”,
Democratization, 17: 5, pp.920 — 949
6
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 2009.
7
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 1965.
8
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.
9
Unless otherwise mentioned, all constituency
data are those of 2008.
10 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.
11 Puthucheary, M. & Norani Othman (2003)
The Electoral System of Malaysia: A Report,
Bangi: IKMAS, UKM, p.15
12 Mafrel (7 April 2010) “Mafrel lost EC’s
accreditation to Ulu Selangor by-election”
http://mafrel.wordpress.com/2010/04/07/
mafrel-lost-ecs-accreditation-to-ulu-selangorby-election/, accessed 26 June 2011
13 Section 32 of Election Offences Act 1954.
14 Puthucheary, M. & Norani Othman (2003)
pp.34-36
15 The Star (16 September 2008) “PAS’
Hashin Jasin declared Sanglang winner”,
asp?file=/2008/9/16/nation/200809161313
19&sec=nation, accessed 17 June 2009
183
7/21/11 2:07 PM
16 The Star (14 March 2009) “Kurop gets to keep
Pensiangan”, Ruben Sario, http://thestar.
June 2009
17 Malaysian Insider (5 August 2010) “Court
strikes out Zaid’s Petition”, Asrul Hadi Abdullah
Sani, http://www.themalaysianinsider.com/
malaysia/article/court-strikes-out-zaidspetition/, accessed 26 June 2011
18 New Straits Times (4 May 2011)
“Unregistered voters in Sabah worrying,
EC”, http://www.nst.com.my/nst/articles/
UnregisteredvotersinSabahworrying_EC/
Article/, accessed 13 June 2011
19 The Malaysian Insider (4 May 2011) “Number
of registered voters now at 11.82m”. http://
article/number-of-registered-voters-now-at11.82m/, accessed 13 June 2011
20 Ibid.
21 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
http://www.facebook.com/NoMegaTower/
posts/112807378807967, accessed 13 June
2010.
22 Saya Anak Bangsa Malaysia (12 July 2010)
“Malaysian Civil Society’s Memorandum
on Electoral Reforms in Malaysia”, http://
www.sayaanakbangsamalaysia.net/index.
php?option=com_content&view=article&id
=412:malaysian-civil-societys-memorandumon-electoral-refor ms-in-malaysia2010&catid=1:letters&Itemid=88, accessed
13 June 2010
23 Klik4Malaysia (22 March 2010) “Calling for
Automatic Voter Registration”, http://www.
klik4malaysia.com/index.php?option=com_
content&view=article&id=816:calling-forautomatic-voter-registration&catid=25:latestnews&lang=zh, accessed 13 June 2010
24 Ong BK, Loyar Burok (22 February 2010)
“Sarawak’s low voter registration problems: a
response to EC” http://www.loyarburok.com/
human-rights/express-yourself/sarawaks-lowvoter-registration-problems-a-response-to-ec/,
accessed 13 June 2010
25 Malaysia Today (9 November 2010)
“RM2,226,000.00 was spent to register only
161,148 new voters in 2009; what is the KPI
of the EC?”, Teo Nie Ching,
http://www.malaysia-today.net/mtcolumns/
letterssurat/35836-rm222600000-was-spentto-register-only-161148-new-voters-in-2009what-is-the-kpi-of-the-ec, accessed 13 June
2010
26 The Malaysian Insider (18 March 2010) “No
plans for automatic voter registration, says
Nazri” http://www.themalaysianinsider.com/
malaysia/article/No-plans-for-automaticvoter-registration-says-Nazri/
27 The Star (26 October 2010) “No automatic
voter registration: Nazri” http://thestar.com.
n/20101026170633&sec=nation, accessed 13
June 2010
28 Saya Anak Bangsa Malaysia (12 July 2010)
29 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?” http://www.bernama.com/
ber nama/v5/newsprs.php?id=496146,
accessed 13 June 2011.
184
7/21/11 2:07 PM
31 Sarawak News (28 October 2010) “Batu
Sapi riushed election leave 100 centenarian
voters and almost all voters with no house
number.”
http://sarawaknews.wordpress.
com/2010/10/28/batu-sapi-rushed-electionleave-100-centenarian-voters-and-almost-allvoters-with-no-house-number/, accessed 13
June 2011
32 Malaysiakini has a special report collection
in 2006. (http://www.malaysiakini.com/
news/53046, accessed 13 June 2011)
33 Malaysiakini Video, April 24, 2010, “P.
Kamalanathan a phatom voter in Sg. Siput?”
http://www.malaysiakini.tv/video/19120/pkamalanathan-a-phantom-voter-in-sg-siput.
html, accessed on 13 June 2011
34 Malaysian Insider (7 May 7 2010) “Pakatan
claims 3000 voters moved in Sibu” http://
www.themalaysianinsider.com/mobile/
malaysia/article/pakatan-claims-3000-votersmoved-in-sibu/, accessed on 13 June 2011
35 Malaysiakini (17 May 2010) “Wanita Umno
uncovers illegal transfer of voters” http://
www.malaysiakini.com/news/164362
36 Malay Mail (24 April 2010) “No transfer of
voters in Selangor, says EC deputy chairman”
http://www.mmail.com.my/content/34434no-transfer-voters-hulu-selangor-says-ecdeputy-chairman
37 The Sun (22 April 2010) “Bersih: Transfer of
voters out of Hulu Sgor not constitutional”,
Karen Arukesamy, http://www.sun2surf.
com/articlePrint.cfm?id=45902, accessed 13
June 2011
38 Ibid.
39 Sarawak Indigenous Community News
(10 March 2011) “Sibu-by-election Final
Report: weakened institutions failed to deliver
fair elections!” http://sarawaknews.wordpress.
com/2011/03/10/sibu-by-election-finalreport-weakened-institutions-failed-to-deliverfair-elections/, accessed 24 June 2011
40 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.
41 The Malaysian Insider (17 May 2010) “PKR
election agent claims DAP’s majority could
have been more”, Clara Choi, http://www.
pkr-election-agent-claims-daps-majoritycould-have-been-more/, accessed 22 June
2010
42 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.
43 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.
44 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.
7/21/11 2:07 PM
45 See the well documented analysis in Sarawak
Indigenous Community News (10 March
2011) “Sibu-by-election Final Report:
weakened institutions failed to deliver
46 Malaysian Digest (25 April 2010) “Police arrest
32 trouble makers in Hulu S’gor By-election”,
http://www.malaysiandigest.com/index.php/
news/3237-police-arrest-32-troublemakers.
html, accessed 24 June 2011
47 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.
48 Negaraku (23 April 2010) “Chegu Bard and
two others arrested in Hulu Selangor”, blog,
http://www.negarakita.com/Post-42583-Che
gu+Bard+And+Two+Others+Arrested+in+
Hulu+Selangor, accessed 24 June 2011
49 Lee Way Loon (31 October 2010) “Teoh Beng
Hock’s sister arrested in Galas”, http://www.
June 2011
50 The Star (29 April 2010) “Najib makes
good on RM3m pledge”, Mazwin
Nik
Anis,
June 2011
51 The Malaysian Insider (28 April 2010)
“Zaid wants Hulu Selangor result made
invalid”, Syed Jaymal Zahiid, http://www.
themalaysianinsider.com/mobile/malaysia/
article/Zaid-wants-Hulu-Selangor-resultmade-invalid/, accessed 26 June 2011
52 MAFREL (12 April 2010) “Abuse of govt
machineries for campaign catch royal
and public attention!” http://mafrel.
wordpress.com/2010/04/12/abuse-of-govtmachineries-for-campaign-catch-royal-andpublic-attention/ accessed 26 June 2011
53 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.” http://www.youtube.com/
watch?v=LwNLT428PqU, accessed 26 June
2011)
54 Malaysiakini (16 June 2010) “PM’s Dept:
RM5m carrot in Sibu not a crime”, http://
www.freemalaysiakini.com/modules.php?na
me=News&file=article&sid=14249, accessed
26 June 2011
55 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”
http://sarawaknews.wordpress.
com/2010/06/23/bn-made-r m37milallocations-during-sibu-by-election/, accessed
26 June 2011
56 Malaysiakini (2 November 2010) “’Reach
for the Moon’: Guan Eng”, http://www.
malaysiakini.com/news/147084 accessed 26
June 2011
57 Malaysiakini (4 November 2010) “Brown
envelopes provoke suspicions”, http://www.
malaysiakini.com/news/147324 accessed 26
June 2011
58 The Nut Graph (21 April 2010) “Is Zaid’s
drinking relevant?”, Shanon Shah, http://
www.thenutgraph.com/is-zaids-drinkingrelevant/, accessed 26 June 2010
7/21/11 2:07 PM
59 Sarawak Indigenous Community News
(10 March 2011) “Sibu-by-election Final
Report: weakened institutions failed to deliver
66 Harakah Daily (29 October 2010) “UMNO
dikhuatiri guan pengundi hantu di Galas”
http://www.harakahdaily.net/v2/index.
php?option=com_content&view=article&i
d=29235:umno-dikhuatiri-guna-pengundihantu-di-galas&catid=1:utama&Itemid=50,
60 The Star (4 March 2008) “EC cancels use
of indelible ink”, http://thestar.com.my/
election/story.asp?file=/2008/3/4/election
2008/20080304175316&sec=Election2008,
67 Harakah Daily (4 November 2010) “UMNOBN-SPR didakwa bersekongkol bawa
pengundi hantu masuk ke pusat pengundian
Batu Sapi” http://www.harakahdaily.my/
umno-bn-spr-didakwa-bersekongkol-bawapengundi-hantu-masuk-ke-pusat-pengundianbatu-sapi, accessed 26 June 2011
61 The Star (17 May 2008) “EC Chairman:
Cabinet didn’t approve of indelible ink”,
http://bersih.org/?p=1213, accessed 16 June
2009
62 The New Straits Time (18 May 2008)
“Cabinet only ‘suggested’ scrapping use of
indelible ink in poll”, posted at http://bersih.
org/?p=1239, accessed 16 June 2009
68 Malaysiakini (31 March 2011) “Battling ‘stolen
votes’ and ‘stuffed ballot boxes’”, Karuah Usit,
63 The EC started talking about biometric
authentication as an alternative in April
2011. (GovernmentIDNews (7 April 2011)
“Malaysia bringing biometric authentication
to elections” http://www.governmentidnews.
c om /2011/04/07/m alay s ia-brin gingbiometric-authentication-to-elections,
64 Free Malaysia Today (25 April 2010) “PKR
Youth nabs phantom voters”, http://archive.
freemalaysiatoday.com/fmt-english/politics/
pakatan-rakyat/4917-pkr-youth-catchesphantom-voters, accessed 26 June 2011
65 Free Malaysia Today (25 April 2010) “Orang
Asli mykads snatched, fuels fear of phantom
voters”
http://archive.freemalaysiatoday.
com/fmt-english/news/general/4916-orangasli-mykads-snatched-fuels-fear-of-phantomvoters, accessed 26 June 2011
7/21/11 2:07 PM
7/21/11 2:07 PM
7/21/11 2:07 PM
T
he 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
dismissals
appointments
&
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
7/21/11 2:07 PM
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 DiPertuan Agong, the Federal Court ruled that
the Yang di-Pertuan Agong only had a limited
role in the appointment of federal cabinet
ministers.4
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:
•
•
•
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 so5.
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
•
•
•
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 lawyers8.
These were met with counter-accusations by
the legal profession of numerous instances of
191
7/21/11 2:07 PM
injustice9. The matter remained unresolved
as at the end of 2010.
In late 2010 the Chief Justice also
announced that plea bargaining would soon
become possible after Parliament passed the
Criminal Procedure Code (Amendment) Act
2010.10
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 2008. 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
7/21/11 2:07 PM
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
1976.
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 2010.
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 AntiCorruption 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 incident15. 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
7/21/11 2:07 PM
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
1960.18 This was overturned by the Court
of Appeal in March 2010. 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 them21.
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
7/21/11 2:07 PM
VK Lingam interviewed by the media - 21 November 2007. (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 2008. It was
passed on 13 December 2008 after minimal
debate and gazetted on 8 January 2009.
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
7/21/11 2:07 PM
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
2008. 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 2010.
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
2008. 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 2010.
196
7/21/11 2:07 PM
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
2011.
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.
197
7/21/11 2:07 PM
Conclusion
The overall trend of decisions by the judiciary
in 2010 did not raise the bar in favour of
furthering human rights.
While break
through decisions were made in ISA cases,
these were overturned on appeal, and what
little headway that seemed to have been made
were lost.
The lack of a genuine separation
of powers between the Executive and the
Judiciary continues to be a real problem in
Malaysia. Politically biased decisions continue
to come out of the country’s court rooms,
and the courts allow their standards to be
compromised by political dictates. The cord
between the Executive and the Judiciary must
be broken, and courts must be free to make
independent decisions based on the rule of
law.
For the courts to reduce the backlog in
cases that have been long criticised, real efforts
must be taken not to compromise justice by
pushing cases through too fast. Increases in
resources and changes to procedures need
to be thought through in a thorough and
evidence based evaluation, that prioritises the
deliverance of justice above all else.
The same is true of inquiries into other
law enforcement agencies. The inquiry into
Teoh Beng Hock’s death has highlighted the
inadequacy of the Coroner’s Inquest system.
Serious reforms are needed.
The challenges for any country and its
judiciary are many and wide ranging. The
challenges faced in Malaysia are more than
they need be. If the rule of law and the
separation of powers were prioritised at all
times, the judiciary could better work for the
people of Malaysia.
Andrew Khoo is an Advocate and Solicitor of the High
Court of Malaya. He graduated from King’s College
London, and was called to the Bar of England and
Wales by The Honourable Society of Gray’s Inn.
He currently serves as chairperson of the Malaysian
Bar Council’s Human Rights Committee, and Deputy
Chairperson of the Trade in Legal Services Committee.
In 2010 he was awarded a Commonwealth
Professional Fellowship by the Commonwealth
Foundation to understudy the Law Society of England
and Wales.
198
7/21/11 2:07 PM
End Notes
1
The Star (10 February 2011) “5-0 for
BN’s
Zambry”,
http://thestar.com.
nation/5649677&sec=nation; accessed 7 June
2011
2
The Malaysian Insider (25 October 2010)”
Ex-Perak Speaker loses last legal bid to regain
post” http://www.themalaysianinsider.com/
malaysia/article/ex-perak-speaker-loses-lastlegal-bid-to-regain-post/; accessed 7 June
2011
3
4
The Star (11 June 2010) “Karpal Singh
acquitted of sedition against Sultan of Perak”
asp?file=/2010/6/11/nation/201006111534
45&sec=nation; accessed 7 June 2011
The Malay Mail (8 March 2010) “Court:
Anwar’s sacking from cabinet posts is valid”
http://www.mmail.com.my/content/29538court-anwars-sacking-cabinet-posts-valid;
5
The Star (27 November 2010) “Landmark
ruling: Regent has same power as Sultan when
Sultan is incapacitated” http://thestar.com.
n/20101126161016&sec=nation; accessed 7
June 2011
6
The Star (25 September 2010) “3,395 cases to
be cleared in two years”
asp?sec=nation&file=/2010/9/25/
nation/7099803; accessed 7 June 2011
7
The Star (14 February 2010) “Opt for
mediation, people told”
s t o r y. a s p ? f i l e = / 2 0 1 0 / 2 / 1 4 /
2011
8
See for example the speech by the Chief Justice
at the Opening of the Legal Year 2010 on 22
January 2010 http://www.malaysianbar.org.
my/speeches/speech_by_yaa_tun_dato_seri_
zaki_tun_azmi_chief_justice_of_malaysia_at_
the_opening_of_the_legal_year_2010_.html;
accessed on 7 June 2011
9
The Malay Mail (22 September 2010) “Being
FRANK: Justice hurried takes its toll” http://
www.mmail.com.my/content/49772-beingfrank-justice-hurried-takes-its-toll; accessed on
7 June 2011.
10 The Malay Mail (13 December 2010) “Courts
to implement plea bargaining, pre-trial
conferences soon”
http://www.mmail.com.my/content/57615courts-implement-plea-bargaining-pretrialconferences-soon; accessed 7 June 2011
11 The Malay Mail (19 February 2010) “I won’t
step down, says judge”
12 The Malay Mail (28 October 2010) “Anwar’s
sodomy trial: Karpal’s request for clinical
reports denied” http://www.mmail.com.my/
content/53621-anwars-sodomy-trial-karpalsrequest-clinical-reports-denied; accessed 7
June 2011
13 The Nut Graph (9 November 2010) “Repeal
Section 498, groups say” [insert link] accessed
7 June 2011
14 The Star (21 May 2010) “MACC can
quiz witnesses after office hours, rules
Federal
Court”
http://thestar.com.
my/news/story.asp?file=/2010/5/21/
2011
15 My Sinchew (12 July 2010) “Investigation
papers on Amunlrasydi’s death submitted to
DPP for court action” http://www.mysinchew.
com/node/41649; accessed 7 June 2011
199
7/21/11 2:07 PM
16 The Malay Mail (10 May 2010) “Police
corporal charged with Aminulrasyid’s death”
http://www.mmail.com.my/content/35931police-corporal-charged-aminulrasyids-death;
17 The Malay Mail (22 October 2010) “Accused
in Kugan’s case to know fate on Dec 3”
http://www.mmail.com.my/content/53103accused-kug ans-case-know-fate-dec-3;
18 MalaysiaKini (18 October 2007) “Ex-ISA
detainee gets RM2.5 million” http://www.
June 2011
19 MalaysiaKini (25 March 2010) “Ex-ISA
detainee loses RM2.5 mil court award”
25 MalaysiaKini (13 November 2008) “Karpal
lodges report against CJ” http://www.
June 2011
26 MalaysiaKini (12 November 2008) Motion
on CJ rejected twice in 24 hours http://
June 2011
27 The Sun (18 February 2009) “Karpal plays
recording to prove what CJ had said” http://
www.sun2surf.com/article.cfm?id=30190;
28 MalaysiaKini (18 November 2008) “Karpal
gives Zaki 7 days to quit” http://www.
June 2011
20 The Malay Mail (10 June 2010) “RM3.3
million award for ex-ISA detainee” http://
www.mmail.com.my/content/39433-rm33million-award-exisa-detainee; accessed 7 June
2011
21 The Star (25 August 2010) “Lingam can
contest findings” [insert link] accessed 7 June
2011.
22 The New Straits Times (20 August 2010)
“Syariah Court can decide on religious status”
http://www.nst.com.my/nst/articles/06bals/
Article/; accessed 7 June 2011
23 The New Straits Times (24 July 2010) “3-year
rule for these lawyers” http://www.nst.com.
my/nst/articles/6vathr/Article/; accessed 7
June 2011
24 The Star (15 February 2009) “Will the
JAC measure up?” http://thestar.com.
focus/3273044&sec=focus; accessed 7 June
2011
200
7/21/11 2:07 PM
7/21/11 2:07 PM
R
atification
of
international
covenants and treaties is one
of the benchmarks of human
rights promotion and protection. Since
its inception in 1999, SUHAKAM has
recommended the government sign several
key international covenants and treaties, but
these recommendations have fallen on deaf
ears.
At the end of 2010 the government still
refuses to ratify the International Covenant
on Civil and Political Rights (ICCPR),
the International Covenant on Economic,
Social and Cultural Rights (ICESCR), and
the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment (CAT), among others.
Since its establishment, SUHAKAM
has been criticised by critics for not effectively
promoting and protecting human rights in
Malaysia, as per its obligation as a national
human rights institution (NHRI).
This
is largely due to the lack of political will
on behalf of the government to prioritise
and improve the human rights situation in
Malaysia.
Arguably
SUHAKAM’s
greatest
challenge is to get the government to act
on its recommendations. After completing
his tenure as SUHAKAM vice-chairperson
in April 2010, Simon Sipuan spoke of the
frustration of making recommendations to
a government that did not value the work
of a human rights commission. Sipuan
said progress in achieving human rights in
Malaysia had been so “minuscule that it’s
really not worth mentioning at all – it’s so
embarrassing.”1
The government refuses to make
SUHAKAM a truly independent body
with adequate remit and authority, and to
date has not allowed parliamentary debate
on any SUHAKAM report. It seems that
the Malaysian government has established
a NHRI in order to tick a box at an
international level, rather than out of a
genuine commitment to human rights.
Overall, 2010 was a mixed year for
SUHAKAM. After minor government
amendments to the SUHAKAM Act in
order to meet international requirements,
the government exposed the low priority
that is accorded to human rights in Malaysia
by allowing a six week period where there
were no Commissioners, after the tenure for
existing Commissioners ended. Under the new
commissioners there were some encouraging
signs with SUHAKAM being more proactive
than they had been before, however, there
were also statements that provoked cause for
concern about the commission’s commitment
to pursuing human rights protection for
certain groups.
SUHAKAM’s International Status
SUHAKAM’s status as a tier “A” National
Human Rights Institution (NHRI) has been
in jeopardy since its April 2008 review.2
The body responsible for status ranking, the
International Coordinating Committee of
National Institutions for the Promotion and
Protection of Human Rights (ICC), gave
SUHAKAM one year to make improvements
that required legislative changes. Due to
outstanding concerns following legislative
amendments, this long struggle continued
into 2010, with an assessment by the ICC
Sub-Committee on Accreditation (SCA) in
November 2010. The ICC’s final decision was
due in January 2011.3
In April 2008, the ICC said that in
order for SUHAKAM not to be downgraded
from “A” to “B” status, improvements had
to be made within one year, based on four
recommendations made by the SCA:
1. SUHAKAM’s independence
needed to be strengthened
by the provision of a clear
202
7/21/11 2:07 PM
and transparent appointment
and dismissal process for
commissioners.
2. The SCA noted that once
appointed, commissioners only
had short terms of two years.
3. The SCA highlighted the
importance
of
ensuring
representation of different
groups within society and
seeking these communities’
involvement in recommending
candidates to SUHAKAM’s
governing body.
needed
to
4. SUHAKAM
interact more with the
International Human Rights
System, participate in human
rights mechanisms and make
recommendations
at
the
national level.
In order to effect the necessary changes
to satisfy the first three recommendations,
amendments to SUHAKAM’s enabling law,
the Human Rights Commission of Malaysia
Act 1999, were required. Throughout the
year that followed, the government did not
undertake any genuine efforts to consult with
civil society groups or take any other steps
to strengthen SUHAKAM in line with the
recommendations.4
Amendments were only tabled in
parliament on 24 March 2009, just two days
before the SCA special review meeting. The
amendments were pushed through the lower
house next day, giving MPs insufficient time
to evaluate and debate the bill.5 Because
the amendments were still before the Upper
House of the Malaysian Parliament on 26
March, the SCA had to defer the review until
its next session. (The Bill was passed by the
Lower House on 2 July 2009 and 9 July by the
Upper House.)
The amendments extended the term
of office from two to three years renewable,6
which was welcomed by the SCA.7 However,
the other amendments were minor and
superficial and attracted further comments of
concern.
In regard to the appointment of
commissioners, instead of the King
appointing Commissioners solely on the
Prime Minister’s recommendation, the
amendments introduced a committee for
the Prime Minister to consult, although its
views and recommendations are not binding.
The amendments said the committee would
comprise of the Chief Secretary to the
Government, SUHAKAM’s incumbent
Chair, and three other ‘eminent’ members
appointed by the Prime Minister.8
The SCA expressed disappointment
that the amended process was not more
transparent, and recommended that the
process be further strengthened by requiring
inclusion and participation of civil society
in the nomination, review and selection of
Commissioners.9 Members of civil society
and the political Opposition have been
concerned that the government appoints
people connected to it, creating potential
for conflicts of interest. For example,
Commissioner Mohd Shafee Abdullah was
an active lawyer for the ruling-UMNO party
whilst a SUHAKAM Commissioner.
The SCA also expressed concern
about the amendments introducing key
performance indicators (KPIs), as determined
by the Prime Minister, to be considered
in the re-appointment and dismissal of
Commissioners. The ICC recommended that
these be made public and be appropriately
circumscribed, so as not to interfere in the
independence of members.10
The SCA also stressed the need
for SUHAKAM to continue to promote
ratification
and
implementation
of
international human rights instruments.11
203
7/21/11 2:07 PM
As the government could not be in any
doubt that they had not satisfied the ICC,
further amendments were tabled in June
2009. The three members appointed by the
Prime Minister to the consultative committee
were now from ‘civil society’, as opposed to
‘eminent persons’, and the provision that
the opinion, view or recommendation of the
committee would not be binding on the Prime
Minister in making recommendations to the
King had been dropped.12
In November 2009, the ICC accredited
SUHAKAM with an “A” status, but not without
expressing concern that the selection of civil
society representatives on the committee is at
the sole discretion of the Prime Minister, and
that the Prime Minister is not bound to accept
decisions made by the committee. The ICC
also reiterated previous concerns that KPIs
must be “clearly established; appropriately
circumscribed, so as not to interfere in
the independence of members; and made
public.”13 Due to these outstanding concerns,
the ICC said it would take the unusual step
of reassessing SUHAKAM’s status after one
year.
The government has made the minimal
changes necessary to tick the box and
maintain an “A” tier status for SUHAKAM.
After all, it would be embarrassing for a
country elected to the UN Human Rights
Council, as Malaysia was in 2010, not to
have an “A” grade NHRI. It is imperative that
Prime Minister Najib Razak’s commitment to
his international reputation is matched by his
government’s commitment to human rights.
(i) Lack of Structural Autonomy
SUHAKAM’s Challenges
According to the Paris Principles, an NHRI
“shall be given as broad a mandate as
possible”.15 SUHAKAM, however, has a
very limited mandate, with Section 2 of the
Human Rights Commission of Malaysia
Act 1999 (SUHAKAM Act) restricting the
definition of human rights to fundamental
liberties as enshrined in Part II of the Federal
As a NHRI, SUHAKAM faces a number of
challenges. These include the Commission’s
lack of structural autonomy; the narrow
definition of “human rights” in its enabling
law; Commissioners only serving on a parttime basis; and the limitation in their powers
of inquiry and visits to places of detention.
SUHAKAM was transferred to the
Prime Minister’s Department from the
Ministry of Foreign Affairs in 2004. Being
under the direct supervision of the Prime
Minister’s Department has undermined the
Commission’s credibility and dispels claims
of structural autonomy from the Executive
branch of the government. SUARAM and
ERA Consumer recommended in July 2009
that SUHAKAM be placed under Parliament
instead of the Prime Minister’s Department.14
The Prime Minister, even after the
ICC amendments, retains control over
appointments to SUHAKAM. Despite the
inclusion of members of civil society in the
proposed selection committee, there remain
concerns that no provision is included to
ensure civil society’s full and transparent
participation throughout the process. Another
concern is the possibility of governmentorganised NGOs being appointed to the
committee by the Prime Minister.
At the most recent round of
appointments in May 2010, the selection
process was surrounded in secrecy and
the three civil society members appointed
to the five-member selection committee
were not officially made public. Further,
civil society groups were not consulted in
either the appointment of members to the
selection committee or the selection of new
Commissioners.
(ii) Narrow Mandate
204
7/21/11 2:07 PM
Constitution. SUARAM has long maintained
that the definition of human rights should be
in accordance with the Universal Declaration
of Human Rights and other international
human rights laws.
Part II is not the only section of the
Federal Constitution that is concerned with
human rights. Many critical matters covered
in other parts of the Constitution, including
rights of citizenship, right to universal adult
franchise, eligibility to contest a seat in
Parliament, and protection for detainees
under preventive detention laws, have been
deliberately excluded from the SUHAKAM
Act.
Although Section 4(4) of
the
SUHAKAM Act states that “regard shall be
had to the Universal Declaration of Human
Rights 1948 to the extent that it is not
inconsistent with the Federal Constitution”,
there is no provision for incorporation of
rights embodied in international conventions
to which Malaysia is a party. Even the few
fundamental liberties defined in Part II of
the Constitution can be easily circumscribed,
as the Constitution subordinates individual
rights to the need for social stability, security
and public order. This permits the Executive
and Legislature to impose many restrictions
on fundamental liberties.
(iii) No enforcement powers
On top of its limited mandate, SUHAKAM
also has no enforcement powers. Regardless of
its findings in investigations or inquiries, there
is no way to enforce any recommendations.
This has resulted in SUHAKAM being called
a ‘toothless tiger’.
(iv) Part-time Commissioners
SUHAKAM Commissioners serve on
a part-time basis, which compromises
the effectiveness of the Commission and
underscores the lack of priority accorded
to protection of human rights. It is the only
NHRI in ASEAN whose commissioners do
not serve full-time.
SUARAM and other NGOs have long
recommended that all Commissioners serve
full-time while in office.16 Furthermore, in
a general recommendation in April 2008,
the ICC SCA noted, “Members of the
NHRIs should include full-time remunerated
members.”17
(v) Powers of Inquiry
SUHAKAM has powers similar to those
of a court of law in demanding access to
documents and attendance of witnesses.
However, Section 12(2) of the SUHAKAM
Act bars SUHAKAM from inquiring into any
complaint relating to an alleged infringement
of human rights if a court has made a decision
on the matter, or if the matter is currently in
the court system.
This is problematic as it may restrain
the Commission from investigating an
alleged human rights violation that was
connected to, but not the subject matter of,
a court proceeding. This means that there is
a possibility that the Commission would have
to refrain from inquiry even when the alleged
violator initiates legal action to frustrate an
inquiry by the Commission.18
(vi) Visits to Places of Detention
While Section 4(2) (d) of the SUHAKAM Act
provides SUHAKAM with the power to visit
places of detention, these visits have to be “in
accordance with procedures as prescribed by
the laws relating to the places of detention.”
In order to inspect conditions of prisons,
for example, SUHAKAM must first write to
the Prison Department for permission. There
are concerns that SUHAKAM may not have
a complete picture of prison conditions, as the
205
7/21/11 2:07 PM
prison and detention camp authorities have
time to prepare for their visit, possibly making
things look better than they regularly are.
SUHAKAM should be given powers to
conduct spot checks on places of detention in
order to ensure that the level of maintenance
and treatment of detainees are on par with
stipulated standards at all times.
Sarawak’s imposition of arbitrary
conditions on anybody, let alone a
SUHAKAM Commissioner, is an abuse of
power and gross violation of human rights.
In order for Commissioners to be able to fulfill
their mandate their freedom of movement
and association cannot be restricted. State
politicians should not be able to trump a
federally constituted human rights body.
(vii) Restrictions of Movement
(viii) Influence on government
Sabah Commissioner Jannie Lasimbang’s
freedom of movement is restricted by her
conditional entry permit issued by the Sarawak
state government. Jannie had previously been
banned from entering Sarawak in 1996. State
immigration had not given a reason, but
Jannie believes it was connected to work she
was doing with the Penan fact-finding mission
in 1994.
The conditional entry permit that
Jannie now has explicitly states that she may
enter Sarawak for SUHAKAM duties but she
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.”19
Jannie said that it was not clear what
‘activities’ and ‘organisations’ the Sarawak
government was referring to, and expressed
concern that these conditions could “make it
hard to gather information in the [upcoming
national] inquiry [into the rights of indigenous
peoples] because the indigenous people’s right
to land is also an interest of the state.”20
Section 66 of the Immigration Act
provides exemptions to Sarawak and Sabah’s
right to restrict entry, but Sarawak contends
that this does not apply to SUHAKAM
as it is not established under either the
Federal Constitution or the Sarawak State
Constitution.
A written parliamentary reply dated 30 June
2009, exposed that the government gives little
weight to SUHAKAM’s recommendations. It
was confirmed that there have only been five
occasions when recommendations made in
SUHAKAM’s annual reports were taken into
consideration by the government. These were
regarding the establishment of the Judicial
Appointments Commission to improve
public confidence towards the judiciary; the
passage of the Evidence of Child Witness Act
2007, Anti-Trafficking in Persons Act 2007
and Persons with Disabilities Act 2008; and
in regards to the government’s obligations
under the Convention on the Elimination
of All Forms of Violence against Women
(CEDAW).21
Even in these instances, closer
examination reveals that it is important
not to overstate SUHAKAM’s impact
on government decisions. The Judicial
Appointments Commission was also called for
by a Royal Commission of Inquiry established
in 2008 to investigate the independence of
judges. It is widely considered that the major
imperative behind the Anti-Trafficking in
Persons Act 2007 was being listed on the US
Department of State Watch List on trafficking.
With regard to CEDAW, the government still
refused to withdraw its reservations.
SUHAKAM’s annual human rights
reports have been submitted to Parliament
since 2002, as required by law, but the
206
7/21/11 2:07 PM
government has refused to table them for
debate. SUARAM has long recommended for
an amendment to the SUHAKAM Act which
compels all of SUHAKAM’s reports (annual
reports, thematic reports and reports of public
inquiries) to be debated in Parliament.22
This way the human rights conditions in
Malaysia will be better communicated to
MPs and demand the official attention
that they deserve, enabling SUHAKAM to
have a greater influence on Parliament and
Government.
An Empty SUHAKAM
The amendments that were made in response
to the ICC ARC review of SUHAKAM’s
status saw limits imposed on how long
Commissioners could serve. Previously, the
King appointed Commissioners on the sole
recommendation of the Prime Minister for
two year terms, but with no limit on how many
times they served. After the amendments,
terms were extended to three years, but
Commissioners could only serve twice.
This amendment effectively meant
that all former Commissioners could not
be re-appointed. On 23 April 2010, when
all of the serving Commissioners’ terms
ended, SUHAKAM found itself without any
Commissioners. This was a disaster for the
national human rights commission, especially
given the ICC ARC was due to review
SUHAKAM’s status as a tier “A” NHRI at
the end of the year. Commissioners were
not appointed to SUHAKAM until 7 June,
meaning there was over six week’s hiatus,
causing complaints to pile up.
The Prime Minister knew that the end
of the Commissioners’ term was approaching,
yet did not prioritise their replacement,
exposing his lack of commitment to human
rights.
SUHAKAM’s Work in 2010
From January to December 2010, the
Commission received a total of 1,005
complaints, 42 of which were in the form of
memoranda. Of these, 572 were determined
to fall under SUHAKAM’s jurisdiction. This
is an increase of 145 over 2009; a 34 per
cent jump. Complaints about human rights
violations included the following categories:
abuse of power by police, preventive
detention laws, land matters, migrant workers,
refugees, freedom of religion, and freedom of
expression.23
The other 437 complaints were
determined to fall outside of SUHAKAM’s
jurisdiction, and included complaints about
administrative inefficiency of government
agencies, complaints that required criminal
investigation or were either pending trial or
had been decided on by the Courts.
When the new set of Commissioners
assumed office they sought to redeem
SUHAKAM’s battered image, both for not
having Commissioners for over six weeks, and
for not being identified by the ICC for not
complying with international standards.
SUHAKAM has previously been
criticised for not being proactive and always
requiring a complaint to be launched in
order to open up an investigation, even
when issues of grave concern were brought
to its attention. The new Commissioners in
2010 stepped out of this mould, and were
proactive in investigating alleged abuses
against migrant workers working at the Istana
Negara site, despite no complaint being
received. Commissioner Muhammad Sha’ani
Abdullah was quoted as saying, “Even if no
formal complaint has been lodged, we are
mandated and duty-bound to make sure that
no human rights abuses are taking place.”24
It was alleged that migrant workers’
rights were being violated, workers were
receiving piecemeal payment of salaries, the
207
7/21/11 2:07 PM
living conditions were deplorable and diets
inadequate, and there were children living
on site. SUHAKAM found no evidence
of migrant worker abuse, nor did it find
any children living on the site. However,
an Opposition MP Lim Lip Eng refuted
SUHAKAM’s findings, offering evidence to
the contrary and criticising SUHAKAM for
not finding evidence. Lim produced photos of
children and reported he had been told there
were ten children living on the site.25
It is very possible that the most egregious
violations and conditions were quickly patched
up before SUHAKAM visited, as they were
not able to gain access for two weeks.26 This
highlights the problem with SUHAKAM not
having greater authority and enforcement
powers, including the ability to do spot checks.
One of the setbacks with regard to
SUHAKAM’s work in receiving complaints
is that its offices in Kuala Lumpur, Sabah
and Sarawak are located in the cities, making
it difficult for people from suburban and
rural areas to lodge their complaints. The
Commission has no mobile ground staff in
these areas to reach out to local communities.
Victims must therefore travel to SUHAKAM
offices to file complaints.
Public Inquiries
Despite Section 12(1) of the SUHAKAM Act
stating that SUHAKAM “…may, on its own
motion or on a complaint made to it” inquire
into allegations of human rights infringement,
SUHAKAM is reactive rather than proactive and does not open an inquiry until
a complaint is lodged. Since SUHAKAM
started operating in 2000, a total of seven
public inquiries have been conducted, all of
which were held after complaints were lodged.
In 2010 SUHAKAM did not conduct
any public inquiries; however, the 2009 public
inquiry into the arrest of five lawyers of the
Kuala Lumpur Legal Aid Centre (KL LAC)
on 7 May 2009 at Brickfields police station
was concluded on 23 April 2010.
This case was considered to be of high
importance due to the special position of
lawyers in the criminal justice system. The
public inquiry commenced on 14 August
2009 but was delayed, mainly due to the
initial refusal of most police officers to give
written statements to SUHAKAM during the
public inquiry.27
The five lawyers were arrested when
they arrived to provide legal representation
to fourteen persons arrested for holding a
candlelight vigil on the same day. Not only
was this a violation of the lawyers rights, but
it also violated the protesters’ rights to legal
representation.
(See also Chapter 2: Abuse of Powers by the
Malaysian Police; and Chapter 5: Freedom of
Assembly and Association.)
SUHAKAM found that the arrest and
detention of the five lawyers constituted a
denial of legal representation to the protesters
earlier detained, contravening Article 5(3) of
the Federal Constitution and section 28A of
the Criminal Procedure Code. There was
therefore found to be “a clear violation of
human rights.” SUHAKAM also found that
there was no justification in arresting and
detaining the five lawyers under Section 27
of the Police Act 1967, and again found “a
clear transgression and violation of human
rights.”28
In its report SUHAKAM noted that
it found “the evidence of DSP Jude Pereira
totally unsatisfactory.”29 Claims by police that
they did not know the five were lawyers and
that their actions were motivated by the fact
that security was threatened were dismissed
by SUHAKAM.
208
7/21/11 2:07 PM
Apparently, according to DSP Jude the armoury
too could have been put in danger. We find no
evidence of this magnitude. The Police in
Brickfields were well in control of the situation...
The Police having exaggerated the situation of
the 14 arrestees then made the claim that the
drama relating to the 14 is a continuous activity
or transaction to the event leading to the arrest of
the 5 LAC lawyers. We find this claim absurd
as the 5 LAC lawyers came to the station for
the sole purpose of acting as counsel for the 14
arrestees.30
Jude and OCPD Wan Bari were found
to be responsible for committing violations
of human rights in this case. SUHAKAM
stated that “such violations of human rights
occurred because the relevant officers did
not understand nor appreciate the functions
and duties of defence lawyers in the context
of the criminal justice system.”31 A damning
statement considering Jude and Wan are
senior officers.
To ensure that such violations did
not occur in the future, SUHAKAM
recommended that police officers must “be
made to be familiar with the constitutional
provisions in relation to fundamental liberties
and human rights.... [As well as] the basic
local and international instruments pertaining
to human rights.”32
Despite SUHAKAM’s damning public
inquiry report, the Home Ministry confirmed
on 9 June 2010 that no action would be taken
against the two senior officers.33 Once again,
the government’s lack of political will to
prioritise human rights was exposed.
National Inquiry
According to SUHAKAM, “A national
inquiry is a mechanism that can be used to
achieve the Commission’s mandate to look
into systemic human rights issues, with a view
to solving it through systematic means.”34
SUHAKAM
announced
the
commission’s first national inquiry in 2010,
into the land rights of indigenous peoples.
The inquiry is scheduled to start in January
2011 and finish by June 2012.
Press Statements
SUHAKAM released twelve press statements
in 2010, significantly less than 2009 when it
released twenty two. (See Table 9.1)
Table 9.1: Press statements released by SUHAKAM in 2010
Item
Issue
Number of Statements
1
Preventive laws
2
2
Freedom of assembly
2
3
Free and fair elections
1
4
Indigenous rights
1
5
Freedom of the media
1
6
Freedom of religion
1
7
Announcements
4
TOTAL
12
209
7/21/11 2:07 PM
SUHAKAM’S Position on Several Key
Human Rights Issues in Malaysia
(i) Detention without Trial
SUKAHAM released two press releases in
2010 about preventive laws. Both reiterated
its position that the government should repeal
the Internal Security Act (ISA), and one
criticised the fact that the ISA was being used
to arrest persons alleged to be involved with
human trafficking when the Anti-Trafficking in
Persons Act 2007 was specifically enacted to
prosecute such cases.35
In its 2010 annual report, SUHAKAM
identified the public sentiment against
detention without trial and recommended
“the Government repeals all preventive
detention laws in line with international
human rights instruments.”36
In 2003, SUHAKAM released the
Review of the Internal Security Act 1960. The
Commission called for the repeal of the
draconian act and for a new comprehensive
law to be enacted that would redress the
situation that is “disproportionately weighted
in favour of national security.”37
It was proposed that the government
consolidate all laws pertaining to national
security, including the ISA, into one statute that
“takes a tough stand [on] threats to national
security” and yet “conforms [to] international
human rights principles”, and spells out the
specific offences related to threats to national
security. Judges, not the government, would
be the best people to prepare the list and all
offences should be tried in the High Court.
To avoid abuse of power, the new law should
only be valid for one year, with its renewal
thereafter determined by Parliament which
will review the law annually. Detention for
investigative purposes must not be more
than 29 days, after which detainees must be
charged or released, and each remand order
must be obtained from a High Court judge.
The Commission also recommended
various interim measures while a new security
law was being drawn up. The proposed
interim measures include:38
1. clearly defining the detention criteria
2. under the ISA;
3. reducing the detention period from
2 years to 3 months, after which time
detainees must be either charged or
released;
4. allowing judicial review of detention
orders;
5. requiring detaining authorities to
submit an annual ISA report to
Parliament and making the ISA valid
for only one year, unless reviewed by
Parliament annually.
During the adoption of Malaysia’s
Universal Periodic Review in the UN Human
Rights Council in June 2009, SUHAKAM
Chairman Abu Talib welcomed Prime
Minister Najib Razak’s statement that there
would be a review of the ISA, but urged the
government to also review other preventative
legislations, including the Emergency
Ordinance and the Dangerous Drugs Act.39
Two months later, at the Annual Meeting of
the Asia Pacific Forum of National Human
Rights Institutions, SUHAKAM identified
the ISA as the biggest domestic human
rights issue, calling it “the greatest burning
concern.”40
reiterated its position that the ISA has to be
repealed and replaced with an anti-terrorism
law. However, SUHAKAM suggested certain
amendments to the ISA “if the government
is not agreeable to repealing the ISA.” The
amendments suggested were:41
210
7/21/11 2:07 PM
i. Right to be informed of reasons for
arrest and detention
The specific grounds and precise allegations
must be clearly expressed, either in writing or
orally, in a language the detainee understands.
The grounds or allegations must not be vague,
overlapping or inconsistent. A copy of the
grounds of arrest must be given to the nextof-kin the same day.
ii. Right to be brought promptly before a
judicial authority
Detainees must be brought promptly before
a judicial authority and must be allowed the
right to speak to the judge or officer in private.
The judge or officer must be allowed to order
medical examination of detainees, where this
is deemed necessary.
iii. Right to challenge the lawfulness of
detention
Detainees must be allowed to challenge the
lawfulness of their detention before a judicial
Review/Appellate Body, with a statutorily
prescribed code of procedure that complies
with the requirements of natural justice and
that hearings be open and in a normal court
set up, instead of in detention centres. The
Review Body must be empowered to order
the release of detainees if it is not satisfied
that continued detention is necessary and the
rights to habeas corpus applications should
not be limited to procedural matters only.
While SUHAKAM has maintained its
stance against the ISA, the let-out clause, “if
the government is not agreeable”, has perhaps
provided the government with an excuse not
to repeal the law.
It is good that SUHAKAM re-submitted
its Review of the Internal Security Act 1960
to relevant government agencies in 2010,42
but it needs to be bolder in pressuring the
government to repeal preventive laws. There
is simply no compromise when it comes to
detention without trial.
(ii) Deaths in Custody
In 2005 SUHAKAM pledged to hold public
inquiries into all cases of death in custody
where inquests were not held.43 However,
only one public inquiry has been held into a
death in police custody case (in 200644) despite
the fact that a number of these cases remain
unresolved.
In the past SUHAKAM has also
concurred with the recommendation of the
Royal Commission on the Police report in
2005 that a Coroner’s Court be established
to conduct inquests. In SUHAKAM’s 2009
annual report, the commission called for
mandatory inquests in every death in custody
case.45
After receiving a memorandum from P.
Babu’s family, following his death in custody
in 2010, SUHAKAM met with Supt. Mohd.
Sabri, OCPD Jempol at the Bahau police
Station where Babu died. SUHAKAM
reports that they concurred with the police
version of his death after the police showed the
delegation closed circuit television cameras
(CCTV) of Babu whilst in detention.46 This
‘investigation’ fell far short of an inquest or
public inquiry.
If SUHAKAM still holds its 2009
position on deaths in custody, that mandatory
inquests be held in every death in custody case,
then its own investigations need to be more
rigorous. This is particularly so given that it is
difficult to foresee speedy amendments to the
Criminal Procedure Code making inquests
into all deaths in custody cases mandatory
and establishing a Coroner’s Court.
In the 2009 annual report, SUHAKAM
also recommended that sanitation conditions
be improved in immigration detention centres
and CCTV installed in detention facilities to
help determine the cause of death in some
situations.47 It must be noted however that
CCTV ‘evidence’ can be used in particular
ways to demonstrate particular things. CCTV
211
7/21/11 2:07 PM
evidence is not black and white, and does not
necessarily tell the whole picture.
(iii) Use of Firearms
SUHAKAM received a memorandum in
2010 from Pakatan Rakyat about the death
by police shooting of Aminulrasyid Amzah.
SUHAKAM decided not to inquire into the
incident as the matter was before the court.
SUHAKAM did ask for information about
guidelines on the use of firearms but was
given no details.
Given the importance of the matter and
the high profile death by shootings received in
the media, SUHAKAM stated its position on
the use of firearms in its 2010 Annual Report:
The Commission views the use of firearms as
an extreme measure. Non-lethal means and
instruments such as electric tasers should be
employed. In the event that the use of firearms is
inevitable, this should be strictly for self-defence or
to incapacitate the suspect but not to cause death.
Therefore the Commission recommends that the
police should 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 1990 in
discharging their duty.48
Use of electric tasers must be thoroughly
debated by parliament, research undertaken,
and thorough training programmes designed
before tasers are used by police in Malaysia,
as they have been linked to deaths in other
countries.
(iv) Conditions of
Detention Centres
Prisons
and
All people have inherent dignity and equal and
inalienable rights by virtue of being human. It is
based on this principle SUHAKAM asserts that
the rights of the detained although restricted must
be balanced against their right to a life in dignity.
SUHAKAM, 2010
SUHAKAM’s 2010 Annual Report
identifies sixteen visits were made to places of
detention (this includes one police lock-up and
the Temporary Holding Centre in Kimanis,
Sabah). There was also an inspection of the
Royal Malaysian Air Force base in August
2010 where a man was detained in 2010.49
There is concern that the number of visits
SUHAKAM has made to places of detention
in 2009 and 2010, 14 and 16 respectively, are
significantly less than previous years when
there were 37 visits in 2008 and 48 in 2007.50
There is an urgent need for SUHAKAM to
increase its visits to places of detention as
conditions remain a grave source of concern.
The State of Prisons and Immigration
Detention Centres in Malaysia 2007-2008,
released by SUHAKAM in 2010, “identified
five major areas in (sic) which require urgent
improvement: overcrowding, the quality of
material conditions, healthcare, children in
detention and limited organized activities.”51
Overcrowding is getting worse and
heightens the risk of conflict and the spread of
infectious disease. SUHAKAM recommends
investigating alternatives to detention, such as
community service or electronic tagging, and
distributing prisoner and detainee numbers
evenly, noting that prisoners must remain
close enough for families to visit.52
It was noted that overcrowding is “more
severe” in immigration detention centres
than prisons,53 and to alleviate numbers
SUHAKAM has alarmingly recommended
repatriating foreigners as soon as possible.54
212
7/21/11 2:07 PM
(See viii: ‘Asylum seekers and refugees’ in this chapter
for further discussion)
Describing conditions of places of
detention to be “in a decrepit state,”55
SUHAKAM’s
2010
annual
report
recommended that “water and sewerage
systems in older prisons are upgraded urgently
to prevent any potential disease outbreak;
and that all detainees must be provided with
adequate bedding.”56
In
addressing
health
concerns,
SUHAKAM has recommended that detainees
and prisoners undergo regular health checks
“by qualified medical personnel”, that a
medical officer is on site every day, that mental
health is monitored by a qualified person, and
that staff mental health is also monitored.57
Noting the benefits of organised activities
in prisons, SUHAKAM recommends that
similar activities take place in immigration
detention centres, with a focus on basic
language skills, personal development skills
and their rights and choices as immigrants in
Malaysia.58
The Southeast Asia National Human
Rights Institutions Forum (SEANF), of
which SUHAKAM was the Chair in 2010,
also focused on detention conditions,
recommending the government “ensure
that conditions in places of detention are in
compliance with internationally recognised
human rights standards.”59
(v) Freedom
Association
of
Assembly
and
In 2010 SUHAKAM released two press
statements in support of freedom of assembly.
The first came after SUHAKAM attended
the anti-ISA vigil on 1 August to observe and
monitor the gathering. This was the first time
that SUHAKAM had accepted an NGO’s
request to monitor a public assembly.
SUHAKAM witnessed first-hand the
undue force used by police at public assemblies,
and found that “the right to assembly was
denied during the event as authorities stopped
the gathering and dispersed the crowds with
much haste.”60 The second press statement
in support of freedom of assembly followed
the use of tear gas and water cannons against
protesters in December, assembled over the
Selangor State water issue.
In both cases SUHAKAM urged
the government to implement the
recommendations made in previous reports,
such as the ‘Bloody Sunday’ Public Inquiry,
and said that in the event where police
find it necessary to control or disperse a
crowd, “proportionate and nonviolent
methods should be employed.”61 The same
recommendations had been made in 2009,62
and were again made in SUHAKAM’s 2010
Annual report.
The ‘Bloody Sunday’ report also
recommended that “peaceful assemblies
should be allowed to proceed without a
licence.”63 In 2010 SUHAKAM maintained
this position.64
SUHAKAM’s presence at assemblies
in order to monitor them is welcome, in the
hope that the visibility of the commission will
encourage police and other law enforcement
agencies to observe the law as well as the
commission’s recommendations. While this
did not occur in 2010, it is hoped that this will
change with time. In any case, monitoring of
public assemblies to document and ensure
protection of human rights is clearly under
SUHAKAM’s remit.
While monitoring rallies was a good
step forward by SUHAKAM, the quote
that Bernama attributed to Commissioner
James Nayagam raised concerns about
SUHAKAM’s wider commitment to freedom
of assembly and association. Nayagam was
quoted as saying that taking children to
protests was “certainly exploitation under
the Child Act 2001.”65 Articles 13, 14 and
213
7/21/11 2:07 PM
15 of the Convention on the Rights of the
Child specifically protect children’s freedom
of expression, assembly and association. The
exploitation of children that has occurred at
rallies has been by the police who have used
undue force against them, including water
cannons and tear gas.
There is pressing concern about
SUHAKAM’s commitment to the rights
of students, following SUHAKAM Chair
Hasmy Agam’s declaration in 2010 that the
political freedoms and right of association
of undergraduate students, violated by the
Universities and University Colleges Act
(UUCA), are “not an issue which falls within
the scope and purview of SUHAKAM.”66
Four students filed a complaint to
SUHAKAM in May 2010 that their civil
and political rights had been violated by their
university when it took disciplinary action
against them as a result of their association
with a (Opposition) political party during a
by-election. Under the UUCA it is an offence
for undergraduate students to show “support,
sympathy or opposition to political parties.”
SUHAKAM has abandoned the
political rights of young people in higher
education. Political rights are undoubtedly
human rights and thus fall under the purview
of SUHAKAM.
It is imperative that
SUHAKAM publicly commit to defending
human rights violations under the UUCA.
(See Chapter 4 for further discussion of Freedom of
Assembly and Association.)
(vi) Freedom of Religion and Matters
Pertaining to Religion
In 2010 SUHAKAM issued one press
statement on fundamental rights to freedom
of religion, in response to the attacks on
places of worship at the beginning of the year.
SUHAKAM warned that, “Any intolerance
of religious differences can undermine the
fundamental right to freedom of religion as
enshrined in the Universal Declaration of
Human Rights and in Article 11 of the Federal
Constitution.”67 SUHAKAM also called for
high-level inter-faith dialogue, supported by
the Government.
Following this, SUHAKAM hosted a
roundtable discussion with religious groups
on human rights and religious freedom on 31
March 2010. The aims were to discuss growing
racial intolerance; how religious bodies
and NGOs can help resolve religion-based
conflict and promote tolerance; and make
recommendations to strengthen respect for
religious freedoms and practices. Participants
suggested that SUHAKAM hold more regular
dialogues on the freedom of religion and
intensify its efforts in this area. SUHAKAM
was also asked to urge the government to
ratify the International Covenant on Civil
and Political Rights (ICCPR), International
Covenant on Economic, Social and Cultural
Rights
(ICESCR)
and
International
Convention on the Elimination of All Forms
of Racial Discrimination.68
In December 2010 thirty Shiite
representatives delivered a petition to
SUHAKAM, following more than two
hundred arrests of Shiite worshippers.
Practice of non-Sunni Islam is illegal in
Malaysia, and although those arrested had
been released they could still be prosecuted
under Syariah law for following ‘deviationist’
teachings, and receive up to two years in jail.
It is inexplicable that SUHAKAM did
not declare support for the petition as this was
is a clear ongoing matter that restricts freedom
of religion. Commissioner Muhammad
Sha’ani said that “everyone should have
the freedom to practice their own faith and
religion”69 and said that SUHAKAM would
try to organise meetings between the Shiite
community and government and Islamic
affairs authorities to reach a solution.
In SUHAKAM’s 2009 annual report,
the Commission stated that the absence
214
7/21/11 2:07 PM
of stipulated procedures for conversion
from Islam under Syariah legislation was
problematic. SUHAKAM also highlighted
that varying state Islamic Laws cause some
difficulties in interpretation and application.
The Commission thus submitted a
memorandum to the Rulers’ Conference on
3 October 2009, recommending uniformity
in Syariah laws and clear procedures for
conversion cases.70
At the end of 2010 SUHAKAM was
told by the Attorney-General’s Chambers
that progress was being made in amending
laws relevant to conversion cases.71 It is not
know what the details of this are.
(vii) Freedom
Information
of
Expression
and
SUHAKAM released one press statement
in 2010 urging respect for freedom of
expression. The press statement was in
response to the banning of political cartoon
books and the fact that the publishing permit
had not been renewed for Suara Keadilan
and Harakah had been issued a warning by
the Ministry of Home Affairs. (See Chapter 3
for more discussion on freedom of expression
and opposition party publications.)
SUHAKAM considered that these bans
constituted “infringement of freedom of
speech, expression and information”,72 and
called on the government to cease its actions.
SUHAKAM had to issue a very similar press
statement in 2009.73
noted that freedom of expression is
“extensively monitored by the Government,”74
and continued to call for the repeal of laws
restricting and regulating the media, such
as the Print Presses and Publications Act.
SUHAKAM suggested that an independent
media council be established to support selfregulation, monitor compliance with the
professional code of ethics and arbitrate
complaints and disputes.75
(viii) Asylum Seekers and Refugees
SUHAKAM continues to advocate that
Malaysia has a responsibility to protect
refugees and asylum seekers, and in its
2010 annual report said that it is examining
the Convention Relating to the Status of
Refugees “with a view to recommending its
ratification.”76
SUHAKAM
acknowledges
that
asylum seekers and refugees are vulnerable
to harassment, physical abuse and assault
by the authorities and that they are denied
their right to basic needs such as healthcare,
education and employment. Detention has a
particularly adverse affect on child refugees
and SUHAKAM stresses that, as a signatory
to the Convention on the Rights of the Child,
the Malaysian government is obliged to
protect refugee and asylum-seeking children.
SUHAKAM recommended in 2010
that “less restrictive alternatives to detention”
be considered and that children are only
detained in immigration detention centres
as a last resort and for the shortest possible
time. Adequate necessities, such as diapers
and baby formula, should be provided to child
detainees, as well as continuous education.77
SUHAKAM also recommended in 2010
that alternatives to detention be explored for
adults.78
While this is commendable, another
SUHAKAM recommendation in 2010
directly threatens the security of refugees
in Malaysia. In its report The State of Prisons
and Immigration Detention Centres in Malaysia
2007-2008, SUHAKAM recommended
repatriating foreigners “who have violated
immigration laws” as soon as possible in order
to alleviate overcrowding in immigration
detention centres.79
Encouraging immigration authorities to
repatriate persons in immigration detention
faster would heighten the risk of refugees
being returned to countries where they will be
215
7/21/11 2:07 PM
subject to persecution. There are already cases
in Malaysia where asylum seekers and refugees
have nearly been returned to countries from
which they had fled persecution.
For example, in January 2010 SUARAM
issued an urgent appeal to secure the release
of nineteen Sri Lankan asylum seekers and
refugees facing imminent deportation. Only
then were they given access to UNHCR
who processed their asylum claims and
secured their release.80 Had the refugees
been repatriated it would have been a case
that breached the international law of nonrefoulement, which prohibits people being
returned to a place where their lives are in
danger or they face persecution.
It is urgent that repatriations are not
rushed and that proper and detailed processes
are developed that enable all detainees
adequate face-to-face consultation time with
UNHCR and lawyers, before any decisions
about repatriation are made.
(ix) Sexuality and Gender
In response to ongoing discrimination
of the LGBT (Lesbian, Gay, Bisexual,
Transsexual) community in Malaysia, and
two articles in the Kosmo and Harian Metro
in particular, a memorandum of protest
was delivered to SUHAKAM on 10 June
2010. The memorandum was endorsed
by fifty-two individuals and eleven NGOs.
A similar memorandum was delivered in
2003, and the activists highlighted that the
situation has worsened since that time and
criticised SUHAKAM for “do[ing] nothing
to effectively uphold the human rights of the
queer community as Malaysians of equal
status.”81
The memorandum repeated its 2003
call for SUHAKAM “to push for the
protection of the human rights of individuals
perceived or identified lesbians, bisexuals, gay,
transsexual, transgendered, queer, under the
Constitution and the Universal Declaration
of Human Rights”; to urge the government
to repeal all laws criminalising consensual sex
acts between adults, as well as laws that restrict
freedom of expression and information; and
to educate Malaysians about human rights.82
SUHAKAM filed this complaint as one
against the media and agreed to conduct a
study of legislation, particularly laws that
criminalise sexual orientation and gender
identity.
However, at its press conference on 16
June 2010 SUHAKAM Chair Hasmy Agam
said that while sexuality “concerns a person’s
right”, it was necessary “to look into our
local, cultural and religious contexts.”83 In an
interview in August 2010, Hasmy said that he
had a “personal dilemma dealing with these
issues. We need to protect human rights, but
at the same time, we live in a society that is not
ready to embrace these communities.”84 It is
dangerous territory for Hasmy to be deciding
what Malaysian communities are and are not
willing to accept. The same line was used as
an excuse for not doing more in 2003.85
The role of a national human rights body
is to defend all human rights, not to prioritise
things according to what they think people
might feel, nor to allow political perspectives
to interfere when they see a human right has
been violated. If SUHAKAM allows such
things to determine the direction of its work,
those suffering the most systematic violations
of human rights will be left to languish.
SUHAKAM’s Relationship with Civil
Society
The relationship between SUHAKAM and
civil society had deteriorated significantly
in 2009. This was best illustrated by civil
society’s boycott of the Commission’s Human
Rights Day event in conjunction with its 10th
anniversary. The boycott by forty-two civil
society groups was to register protest and
disapproval of the failure of SUHAKAM
216
7/21/11 2:07 PM
to proactively protect and promote human
rights, the failure of the government to make
SUHAKAM a truly independent and effective
institution, and the failure of the government
to implement most of SUHAKAM’s
substantive recommendations.
Some specific issues have engendered
some form of institutionalised cooperation
between SUHAKAM and particular civil
society groups. For instance, in its work on the
rights of women, particularly in monitoring
the implementation of the Convention on the
Elimination of All Forms of Discrimination
against Women (CEDAW), the Human Rights
Education and Promotion Working Group of
SUHAKAM established a Sub-Committee on
Women’s Rights in February 2008. This subcommittee comprises representatives of the
Ministry of Women, Family and Community
Development, NGOs working on women’s
issues, and a number of gender and women’s
rights experts.86
Other collaborations have been at
a less institutionalised level. For example,
SUHAKAM has collaborated with some
NGOs in conducting trainings and workshops
on various human rights issues. For instance,
SUHAKAM in recent years has invited
SUARAM to assist the Commission in its
human rights training session for police
officers.
While some meetings and consultations
have occurred, SUHAKAM has been criticised
for not being regular in its cooperation and
consultation with civil society groups, and
lacking in follow-up work.
It is hoped that the upcoming
development of a National Human
Rights Action Plan (NHRAP) will enable
SUHAKAM to play a broader and more
formal intermediary role between civil
society and relevant ministries or government
departments by holding regular constructive
meetings. In SUHAKAM’s own words,
developing a NHRAP “will involve close
consultations with the relevant Government
agencies, non-governmental organisations
(NGOs) and civil society.”87
In 2009, SUHAKAM announced that
it had set up a Human Rights Defenders
Desk to improve its protection of human
rights defenders. This was announced by
Commissioner Michael Yeoh in a roundtable
discussion with NGOs on 11 March 2009.
According to the commissioner:
[T]he idea of setting up the Human Rights
Defenders Desk arose from suggestions from
participants of the previous civil and political
rights session with NGOs held on 17 July 2008.
As human rights defenders from NGOs and civil
society face risks of arrest and harassment at
public assemblies and demonstrations from law
enforcement, participants urged SUHAKAM to
publicise the need for protection of human rights
defenders.88
However, the desk has not been
functioning actively as of 31 December 2010.
SUHAKAM’s monitoring of rallies,
where many human rights’ defenders are
threatened and intimidated by the police,
are very much welcomed and it is hoped that
this will continue going forward, but more is
needed to protect human rights defenders.
217
7/21/11 2:07 PM
Conclusion
Over recent years SUHAKAM has suffered
from a crisis in public confidence. Some
actions by commissioners in 2010 went some
way in starting to rebuild this confidence, but
other statements have given cause for concern.
The
international
spotlight
on
SUHAKAM over the past three years has
highlighted concerns about several of civil
society’s longstanding concerns; in particular
concerns about SUHAKAM’s independence,
effectiveness
and
compliance
with
international standards. While SUHAKAM’s
enabling law was amended twice, the
amendments were minor and superficial.
While this has been disappointing, it is not
surprising as the government wishes to keep
a tight rein on critical voices, including
SUHAKAM.
At the end of 2010 it remained to be
seen if the amendments would be considered
sufficient for SUHAKAM to maintain its “A”
tier status at an international level. However,
human rights groups were clear that more
radical amendments should have been made.
While not effecting the legal changes that
many would have hoped for, this international
attention did encourage more proactive
behaviour on the part of commissioners. 2010
saw commissioners launch an investigation
into abuse of migrant workers without any
complaint being lodged; commissioners
monitored
rallies
and
SUHAKAM
announced it would conduct its first national
inquiry, into the rights of indigenous people.
Countering these positive steps however,
other actions and statements have caused great
alarm amongst human rights activists in 2010.
SUHAKAM’s recommendation to facilitate
faster repatriation of persons in violation of
immigration laws poses a significant threat to
the security of asylum seekers and refugees.
SUHAKAM’s ambivalence towards LGBT
rights and the disregard for students’ political
rights are further matters that caused alarm
in 2010.
The role of a national human rights
body is to defend all human rights and
SUHAKAM must urgently clarify its position
in regards these matters.
In 2010, it looked like SUHAKAM
might be taking a more proactive approach
in protecting human rights. For example,
SUHAKAM visited the construction sight of
the new Istana Negara without a complaint
being lodged, in order to investigate migrant
worker conditions, and SUHAKAM attended
an anti-ISA rally in order to monitor and
observe the protest and police action.
While these signs were encouraging,
there was also cause for pressing concern
in 2010 as the human rights commission
revealed that restrictions of human rights
under the Universities and University Colleges
Act are not within SUHAKAM’s scope. This
is unacceptable from a human rights body
that is supposed to be independent from the
government. If a law results in human rights
violations then it is SUHAKAM’s business
and needs investigating. Also of concern is
the non-committal approach of the current
Chair in tackling human rights violations
experienced by lesbian, gay, bisexual and
transgender communities. If SUHAKAM
considers that certain human rights are off
limits, or cannot be awarded equal status as
others, then it needs to seriously evaluate its
role as a human rights body.
218
7/21/11 2:07 PM
End Notes
Protection of Human Rights (26-30 March
2009) op. cit. (p. 10)
1
Malaysiakini (2 June 2010) “Ex-Suhakam
vice-chair vents frustration”, Joe Fernandez,
http://malaysiakini.com/news/133375,
9
2
NHRI’s may be awarded “A”, “B”, or “C”
status, based on compliance with the Paris
Principles (adopted by the UN General
Assembly resolution 48/134) which set
international standards to ensure NHRI’s
independence and effectiveness. Only “A”
status NHRI’s have the right to participate in
the regular sessions of the UN Human Rights
Council.
10 Ibid.
3
The ICC confirmed SUHAKAM’s “A” status
on 28 January 2011.
4
The government’s lack of political will
to strengthen SUHAKAM was clearly
demonstrated during the Universal Periodic
Review of Malaysia in February 2009.
Recommendations of at least four countries,
to ensure SUHAKAM’s independence and
widen its scope to cover all rights in the
Universal Declaration of Human Rights, were
merely noted by the government of Malaysia,
but were not listed as those which enjoyed its
support.
5
When Opposition MP Lim Kit Siang
complained about the lack of notice and
consultation he was temporarily suspended
from parliament by the Speaker.
6
Section 5(4), Human Rights Commission of
Malaysia Act 1999
7
Protection of Human Rights (26-30 March
2009) “Report and Recommendations
of the Session of the Sub-Committee on
Accreditation”, Geneva, (p. 10)
8
Section 5(2), Human Rights Commission of
Malaysia Act 1999
11 Ibid.
12 Human Rights Commission of Malaysia
(Amendments) (Amendments) Bill 2009
13 International Coordinating Committee of
Protection of Human Rights, “Report and
Recommendations of the Session of the SubCommittee on Accreditation”, Geneva, 16-18
November 2009 (p. 9)
14 See SUARAM and ERA Consumer (June
2009) Proposed Amendments to the Human
Rights Commission of Malaysia Act (Act 597);
SUARAM (1 July 2009) Letter to Datuk Seri
Mohamed Nazri Abdul Aziz, Re: Proposals by
Human Rights NGOs for Amendments to the
Human Rights Commission of Malaysia Act
15 Paris Principles, adopted by the UN General
Assembly resolution 48/134 (Competence
and responsibilities)
16 For example see SUARAM (1 July 2009)
Letter to the Minister in the Prime Minister’s
Department, Re: Proposals by Human Rights
NGOs for Amendments to the Human Rights
Commission of Malaysia Act
17 International Coordinating Committee of
Protection of Human Rights, “Report and
Recommendations of the Sub-Committee of
Accreditation”, Geneva, 21-23 April 2008 (p.
12)
219
7/21/11 2:07 PM
18 Tikamdas & Rachagan provided a formulation
that an inquiry would be discontinued only
if the complainant initiates an action in the
courts, the subject matter of which is identical
to the Commission’s inquiry. See Tikamdas,
R. & Rachagan, S.S. (1999) “Human Rights
Commission of Malaysia Act: a critique,” in
Tikamdas, R. & Rachagan, S.S. (eds.) Human
Rights and the National Commission. Kuala
Lumpur: HAKAM (pp.194-195)
19 The Star (17 November 2010) “Jannie:
Conditional entry makes it difficult to carry
out duties”, http://thestar.com.my/news/
7193757&sec=nation, accessed 12 May 2011
20 Ibid.
21 Jawapan bukan lisan, Mesyuarat Pertama,
Penggal Kedua, Paralimen Kedua belas, #127
[Parliamentary written reply, First Sitting of
the Second Session of the Twelfth Parliament,
#127]
26 The Nut Graph (30 August 2010) “Suhakam
chief: ‘We’re an independent entity’”, Gan
Pei Ling, posted at http://www.suhakam.org.
my/c/document_library/get_file?p_l_id=24
205&folderId=314540&name=DLFE-8802.
pdf, accessed 16 May 2011
27 This matter was resolved on 11 September
2009, when SUHAKAM made an
interlocutory decision that Section 14(1)
(a) of the SUHAKAM Act empowers the
Commission to record statements of witnesses,
whether civilians or police officers.
28 SUHAKAM (2010) “Decision of the Public
Inquiry into the Arrest and Detention of Five
Lawyers of the Bar Council Legal Aid Centre”,
23 April (pp. 40-41), http://www.suhakam.
org.my/c/document_library/get_file?p_l_id=
35723&folderId=262020&name=DLFE7902.pdf, accessed 12 May 2011
29 Ibid. (p.34)
30 Ibid. (p.37)
22 For example see SUARAM (1 July 2009)
Letter to the Minister in the Prime Minister’s
Department, Re: Proposals by Human Rights
NGOs for Amendments to the Human Rights
Commission of Malaysia Act
23 SUHAKAM (2011) 2010 Annual Report,
Kuala Lumpur: SUHAKAM (pp.35-36)
24 The Nut Graph (14 July 2010) “How the
govt undermines Suhakam”, Deborah Loh,
http://www.thenutgraph.com/how-the-govtundermines-suhakam/, accessed 19 May 2011
25 The Malaysian Insider (22 July 2010) “DAP MP
claims proof kids living on new palace site”,
com/malaysia/article/dap-mp-claims-proofkids-living-on-new-palace-site/, accessed 12
May 2011
31 Ibid. (p.41)
32 Ibid. (p.41)
33 Jawapan Lisan Dewan Rakyat Ahli Parlimen
Kelana Jaya, Gwo-Burne Loh [Parliamentary
Oral Reply at the Dewan Rakyat by Member
of Parliament of Kelana Jaya, Gwo Burne
Loh], 9 June, 2010
34 SUHAKAM (2011) Annual Report 2010,
Kuala Lumpur: Human Rights Commission
Malaysia (p.11)
35 SUHAKAM (24 June 2010) “Arbitrary
detention is an infringement of human rights”;
SUHAKAM (27 Oktober 2010) “Suhakam
gesa kerajaan hentikan penahanan suspek
pemerdagangan orang di bawah ISA”, press
statements
220
7/21/11 2:07 PM
36 SUHAKAM (2011) op. cit. (p.43)
37 SUHAKAM (2003) Review of the Internal
Security Act 1960. Kuala Lumpur:
SUHAKAM (p. 83)
38 Ibid. (pp.90-91)
39 SUHAKAM (12 April 2009) “Oral Statement
at the Adoption of Malaysia’s UPR”
51 SUHAKAM (2010a) The State of Prisons and
Immigration Detention Centres in Malaysia
(pp.19-20), http://www.suhakam.org.my/c/
document_library/get_file?p_l_id=22118&
folderId=236834&name=DLFE-7802.pdf,
52 SUHAKAM (2010a) op. cit. (p.25)
53 SUHAKAM (2010a) op. cit. (pp.19-20)
40 SUHAKAM (6 August 2009) “14th Annual
Meeting of the Asia Pacific Forum of National
Human Rights Institutions”
41 SUHAKAM (2010) op. cit. (pp. 53-54)
42 SUHAKAM (2011) op. cit. (p.59)
43 New Straits Times (14 December 2005)
“Custodial Deaths: We’ll hold public inquiries”
58 Ibid.
44 SUHAKAM (21 April 2006) “Report of
SUHAKAM public inquiry into the death in
custody of S. Hendry, 17 & 18 February 2006”,
http://www.suhakam.org.my/c/document_
library/get_file?p_l_id=23908&folderId=264
57&name=DLFE-647.pdf, accessed 15 May
2011
45 SUHAKAM (2010) op. cit. (p.32)
46 SUHAKAM (5 February 2010) “SUHAKAM
Investigation into the Death in Police Custody
of P. Babu,”, http://www.suhakam.org.my/c/
document_library/get_file?p_l_id=10408&
folderId=163007&name=DLFE-7310.pdf,
47 SUHAKAM (2010) op. cit. (p.32)
48 SUHAKAM (2011) op. cit. (p.38)
49 SUHAKAM (2011) op. cit. (p.159)
50 SUHAKAM (2010) op. cit. (p.33); SUHAKAM
(2009) 2008 Annual Report, Kuala Lumpur:
SUHAKAM
(pp.41-42);
SUHAKAM
(2008) 2007 Annual Report, Kuala Lumpur:
SUHAKAM (pp.68-69)
55 SUHAKAM (2011) op. cit. (p.76)
59 SUHAKAM (2011) op. cit. (p.76)
60 SUHAKAM (3 August 2010) “Inability to
assemble peacefully is a violation of human
rights”, press statement
61 SUHAKAM (3 August 2010) “Inability to
assemble peacefully is a violation of human
rights”; SUHAKAM (8 December 2010)
“rights to peaceful assembly and freedom of
expression are fundamental human rights
principles”, press statements
62 SUHAKAM (3 August 2009) “SUHAKAM:
The Right to Peaceful Public Assemblies
Should Be Respected”
63 SUHAKAM (2007) Report of SUHAKAM
28 May 2006, Kuala Lumpur: SUHAKAM (p.
97). This recommendation came on the back
of findings that the police had used excessive
force, had infringed the rights of some of the
participants, and that certain officers could be
charged under the Penal Code. To date, no
legal action has been taken against any of the
personnel said to be involved.
7/21/11 2:07 PM
64 SUHAKAM (2011) op. cit. (p.45)
65 Malaysiakini (15 December 2010) “Children
in demos: Police or parents irresponsible?”
66 The Malay Mail (16 June 2010) “Suhakam’s
new commissioner addresses student issues”,
Azreen Hani, http://www.mmail.com.my/
content/40122-suhakams-new-commissioneraddresses-student-issues, accessed 13 May
2011
67 SUHAKAM (12 January 2010) “Fundamental
rights to freedom of religion”, press statement
68 SUHAKAM (2011) op.cit. (p.62)
69 Associated Press (29 December 2010)
“Malaysia’s Shiite Muslims seek to
legally worship”, published at http://
asiancorrespondent.com/44953/malaysiasshiite-muslims-seek-to-legally-worship/,
80 Malaysiakini (19 January 2010) “Authorities
free 19 Sri Lankans”, http://malaysiakini.
com/news/122289, accessed 10 May 2011
81 (10 June 2009) “Memorandum of Ill
Representation and Discrimination of the
Queer Community in the Media”, http://
www.loyarburok.com/the-lobby/queercommunity-to-deliver-memorandum-ondiscrimination-in-media-to-suhakam/
82 (10 June 2009) “Memorandum of Ill
Representation and Discrimination of the
Queer Community in the Media”, http://
www.loyarburok.com/the-lobby/queercommunity-to-deliver-memorandum-ondiscrimination-in-media-to-suhakam/
83 The Malay Mail (16 June 2010) “Suhakam’s
new commissioner addresses student issues”,
Azreen Hani, http://www.mmail.com.my/
content/40122-suhakams-new-commissioneraddresses-student-issues, accessed 13 May
2011
70 SUHAKAM (2010) op. cit. (p. 55)
72 SUHAKAM (7 July 2010) “SUHAKAM urges
respect for freedom of media”, press statement
73 SUHAKAM (26 March 2009) “SUHAKAM
Regrets the Suspension of Publishing Permits
of Suara Keadilan and Harakah”, press
statement
84 The Nut Graph (30 August 2010) “Suhakam
chief: ‘We’re an independent entity’”, Gan
Pei Ling, posted at http://www.suhakam.org.
my/c/document_library/get_file?p_l_id=24
205&folderId=314540&name=DLFE-8802.
pdf, accessed 16 May 2011
85 Malaysiakini (28 August 2003) “Suhakam
ticks off media on ‘effeminate men, masculine
women’, Fauwaz Abdul Aziz, http://www.
May 2011
75 SUHAKAM (2011) op. cit. (p.12)
86 SUHAKAM (2009a) op. cit. (pp.55,31)
76 SUHAKAM (2011) op. cit. (p.9)
87 SUHAKAM (2011) op. cit. (p.2)
88 SUHAKAM (11 March 2009) “Report of the
Roundtable Discussion on Economic, Social
and Cultural, Civil and Political Rights with
NGOs” (p. 2)
7/21/11 2:07 PM
7/21/11 2:07 PM
Yong Vui Kong’s Story
– Ngeow Chow Ying
Letters from Death Row
– Yong Vui Kong
A
t the time of committing the offence,
he was 19 years and 8 months old.
He was due to be hanged to death
on 4 December 2009 at six in the morning.
His family received a letter a week before the
scheduled hanging, informing them of his
“execution date” and asking them to make
preparations for his funeral.
What was his offence? He was charged
and convicted for the offence of 47.27g
of diamorphine into Singapore. The only
sentence to this crime is death.
His name is Yong Vui Kong and this is
his story.
Born in small village in Sandakan, Sabah,
Vui Kong was a victim of circumstances. His
father left the family when Vui Kong was 3
years old. His life changed thereafter. His
mother was a timid person, who has no choice
but to continue to live with her father-in-law
in the oil palm estate, working hard to raise
her 7 children. Vui Kong did not complete his
primary education. When he was young, he
had to work for his grandfather in the oil palm
fields, thus neglecting his studies. He did not
have proper guidance and was always left to
his own devices. At the age of 10, he started
working odd jobs; working at a car wash and
distributing newspapers.
He loathed going back home, to him the
palm plantation was not “home”. He roamed
the streets, and no one seemed to care for
him. Although his mother loved him dearly,
she had to go through great hardship herself,
and his siblings were separated as they were
“given” to other relatives.
When he was older, he decided to head to
Kuala Lumpur to earn a living. He first worked
as a kitchen helper, then as a Video Compact
Disc (VCD) peddler in Petaling Street. He mixed
with the wrong company. His ‘boss’ asked him
to bring ‘stuff ’ into Singapore and told him that
if he got caught, the most it would cost him was
7 years imprisonment. Believing his employer,
he embarked down a path of no return.
Many have asked, if he committed a
crime, why should we help him? The question
is not whether he should be punished or not.
No doubt he should, if he was convicted after a
fair trial. The question is whether a mandatory
death penalty (being the only punishment)
is appropriate? Is it proportionate? Does it
deter? Does it solve the problem?
224
7/21/11 2:07 PM
Voices of The People: Selected Stories
Let’s talk about drug laws. These laws
are by and large the same in Singapore and in
Malaysia, the only difference is the quantity of
drugs requiring a mandatory death sentence.
The law provides that when a person is
found to be in possession of drugs, he is, first of
all, presumed to have knowledge of the drug.
This is the first presumption. When the drug
exceeds a certain amount, he is presumed to
be trafficking. This is the second presumption.
The prosecution does not need to prove the
crime, it is already there. The burden shifts to
the accused to prove otherwise.
Imagine this, you fall in love with
someone, you two start a business together.
One day, your lover tells you that you have to
bring in some stocks from, say, China, because
it is urgent and the courier company refuses
to do it for some reasons. Without suspecting
anything, you do what you are told.
The luggage bag contains drugs, it
was well hidden, and you did not notice it.
You are caught for possession. The “double
presumption” kicks in. You now have to prove
your innocence. You tell the police and the
court your version of story, where and how
this person got you into this. You provide
all information relating to this person to the
police. The police did not make adequate
efforts to trace this person. Why should they?
After all, the crime has been proven.
How would you trace this person
yourself ? You have been locked up. You rely
on your defense lawyer. However, your lawyer
does not have the means and resources to do it.
It is your story against the prosecution’s case.
In the witness box, you say what you
need to say. The judge does not believe your
story, because you did not check the luggage
bag when you ought to, or you did not look
into the eyes of the customs officer when your
bag was searched; that you must have known
that the bag contained drugs.
You desperately tell the court that there
is this person, who can prove your innocence
and the judge said it is “immaterial” that
the police did not make efforts to trace this
person. You are stuck, eventually convicted of
the offence.
Now comes sentencing, you put forth
your mitigating circumstances, your family
background, your age, you are a single parent,
first time offender, no previous record, doubts
in the facts of the case; but the judge must
turn a blind eye to all of these and treat you
as a faceless human being. Because the judge’s
hands are tied, as the only sentence once
convicted is death.
This is a real life story. And it is repeated
over and over again.
Death penalty abolitionists have argued
that no matter how detailed an investigation,
there is still the possibility of a miscarriage of
justice as human beings may make mistakes
and death is irreversible. There are many
cases where it was later found that the accused
was wrongly convicted but it is too late as
execution had already been carried out.
Bear in mind that these cases had put the
burden on the prosecution to prove their case
beyond reasonable doubt and yet miscarriages
of justice occur. What about drug cases where
the prosecution does not even need to prove
their case? And the accused is left in such a
disadvantaged position?
Vui Kong has found faith in Buddhism
while in prison. He has now repented. He realised
his mistake and vowed to do all he could with
his remaining time to create awareness among
the young on the dangers of drug abuse and
trafficking. Shouldn’t he be given a second chance?
Yong Vui Kong was sentenced to death
for drug trafficking in November 2009. On
April 4, Yong lost his final appeal against
a mandatory death sentence. He will be
executed soon unless he is granted clemency
by Singapore’s president.
Ngeow Chow Ying is a coordinator for the Save Vui
Kong Campaign (http://savevuikong.blogspot.com)
225
7/21/11 2:07 PM
Letters from Death Row
Yong Vui Kong
The Seventh Letter: Happy Father’s Day
Yetian,
How are you these days? I am well, thank
you for your concern. I do well in prison.
Everyone treats me well.
Entering this June, everyone must be
preparing to celebrate Fathers’ Day. Even
though everyone is hard at work, I hope that
you will all find some time to go back to visit
your fathers.
In 1993, while I was still very young,
my father left my mother. At the time all of
us siblings were very angry and very upset,
because from then on my mother was alone,
with no companion.
At that time we blamed my father for
being so cold-hearted as to abandon our
family. We kept feeling hate, resentment and
anger in our hearts. But we were young and
there was nothing more we could do but
resent my father’s cruelty.
I remember that back then we put all
the blame on my father. Only my oldest sister
Yoke Yin alone understood, so apart from my
big sister, my father was estranged from the
rest of his children. But even though we were
young we also knew that these were grown-up
matters, and it was not easy for us young ones
to judge.
To me, my father’s leaving was unfair to
my mother, because from then on my mother
had to take on the burden of supporting a
family alone. She had to take care of all of
us, and because of that, at a young age we
siblings had to be separated.
I still remember one morning before
class, my mother did not wake me up and I
overslept, and because of that my mother got
a beating from my grandfather. At that time
I hid in a corner and I was very afraid, but I
really wanted to use my own body to shield
my mother. Then I cried and I vowed to go
out to work as soon as possible so I could take
my mother away from this place.
At the time I thought that if my father
had still be around, my mother would not
have been beaten. But this was so long ago,
and things have already changed; studying
and learning Buddhist philosophy has
allowed me not to be angry with my father
and grandfather anymore.
Parents are very important. Everyone
needs their parents, parents who are bound to
them by blood.
I don’t know how my father sees his
marriage with mother, perhaps he thought
that it was a mistake from the beginning, or he
just felt that it was a responsibility: but in the
eyes of the children, without him we would
not have been born into this world.
After entering prison, my father came to
see me a few times. He looks much older now.
He always cried before me. I know he blames
himself. As for me, I have let go of the past
resentment. In my heart I only have gratitude.
I also have a godfather. He is a good
friend of my father. He pitied me and took
me in for about 2 years. I am also grateful to
him. I heard that because of my case, he was
very upset, and wrote an open letter for me.
Here, I would like to say, “Happy
Father’s Day”. Please forgive me.
Yun Leong came to see me after he went
back to our hometown, and I keep asking
him to tell me about how our mother is. My
mother thinks, “Vui Kong is inside in search
of enlightenment”. I hope that she will always
think this. I hope that she will be well for the
rest of her days. I remember that I promised
myself that I wanted to give my mother a good
life, but I did not fulfilled. This responsibility
must now be given to my sisters and brothers.
Yun Leong tells me, our mother’s illness
has improved recently. She does not take as
much medication and she is always smiling.
7/21/11 2:07 PM
I was very glad to hear this. Although I cannot see
my mother smiling, I am happy to hear it through
my brother. Whether my mother will find out about
my situation at the end, we will just let things take its
course.
Yetian, the President decision will be coming.
Whether it is good or bad, I hope that everyone
will accept it. We must work hard not to let the next
young person walk down the path I have taken.
Thinking about this, I also think of my family. They
are really very upset. I have let them down. Because
of me, they are under a lot of pressure.
Of course I hope that the Malaysian
government can help the other death row inmates,
because some of them do not deserve to die.
Yetian, even if you are working hard, remember
to at least make a phone call to your family.
Thank you.
Vui Kong
Yong Vui Kong is on death row in Singapore for drug trafficking.
While awaiting his execution, he wrote a series of twelve letters
to Yetian, a member of the Save Vui Kong Campaign. This
letter was translated from Mandarin and is the seventh letter in
the series. SUARAM would like to thank the Save Vui Kong
Campaign for permitting us to reproduce this letter.
7/21/11 2:07 PM
7/21/11 2:07 PM

2010 - Suaram

Transcription

Similar documents

Innovating New Directions - Konsultant Proses Sdn Bhd

Effie Awards Judging Day

Agricultural Science Lecture Series

Message from the Principal

full pdf

the MXGM Report

Bulletin Of The Board Of Quantity Surveyors Malaysia •Calendar of

2010 - The Department of Social and Preventive Medicine

The European Security and Defence Policy

2015 Annual Report - Oswego Police Department

Code of practice for independent safety assessors (ISAs)

report - Estelle Levin Ltd.

PEN INTERNATIONAL CASE LIST January

OS Multi-Service Integrated Services Adapter Guide - Alcatel

Indochina War Refugee Movements in Laos, 1954-1975

Yu Chak Tin michael242 GCFW Version 1.7 Original submission