2012 (download here)

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SUARAM_HRR2012.indb 3
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Published by:
Suara Inisiatif Sdn Bhd (562530-P)
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. (318716-P)
ISBN: 978-967-11426-3-9
SUARAM © 2012
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Staff and Secretariat of SUARAM 2012
Directors
Dr. Kua Kia Soong
Dr. Yeoh Seng Guan
Staff team 2012
Nalini Elumalai
Diane Savari
Sarah Devaraj
Thevarajan.R
Syukri Rezab
Wong Kar Fai
Maisarah Najib
Lee Hui Fei
Secretariat members
Cynthia Gabriel
Fadiah Nadwa
Arumugam K
Teh Yee Keong
Masjaliza Hamzah
Nyam Kee Han
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CONTENTS
Foreword
Acknowledgements
Executive Summary
7
10
12
Chapter 1:
Detention Without Trial
36
Chapter 2:
Abuse Of Power By The Police And Other Law Enforcement Agencies
49
Chapter 3:
Freedom Of Speech, Expression And Information
70
Chapter 4:
Freedom Of Assembly
94
Chapter 5:
Freedom Of Association
110
Chapter 6:
Freedom Of Religion
127
Chapter 7:
Refugees And Asylum Seekers
134
Chapter 8:
Death Penalty
146
Chapter 9:
Free And Fair Elections
153
Chapter 10:
Corruption & Accountability
172
Chapter 11:
Law And Judiciary
181
Support Suaram
193
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FOREWORD
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Malaysia Human Rights Report 2012
I
am deeply honored that SUARAM has
given me the opportunity to write the
foreword for their 2012 Annual Human
Rights Report. I want to congratulate
SUARAM for successfully producing another
annual report on the status of human rights
in Malaysia.
I also want to congratulate SUARAM for its
persistence in documenting, investigating
and publicizing human rights abuses. Since
July 2012, SUARAM has withstood a series
of sustained attacks and harassment from
the Malaysian government, and has been the
subjected to investigations, intimidation and
pressure from government agencies, including
the Company Commission of Malaysia (CCM),
the Registrar of Society (ROS), and the police.
Despite all of this, SUARAM has not wavered
in its fight for justice. I commend SUARAM
and its staff for their dedication and courage,
proving worthy of their mission as the “Voice
of the Malaysian People.”
I first began to closely follow the issues of
freedom of assembly and association in
Malaysia in 2012 when I met with activists at the
UN Human Rights Council session in Geneva.
They shared with me what had happened
during the Bersih rallies in 2011 and 2012,
when the authorities dispersed thousands of
peaceful protestors and arrested hundreds.
Since then, I have had the opportunity to meet
with a number of activists from SUARAM and
Bersih, who have expressed their concerns
about the deteriorating state of the right to
assemble – and human rights in general –in
Malaysia.
I also made an academic visit as UN Special
Rapporteur on the rights to freedom of
peaceful assembly and of association – in
September 2012. At that time, I was able to
meet with various stakeholders and gained a
fuller understanding of the problems faced
by SUARAM, civil society organizations, the
Royal Malaysian Police Force, SUHAKAM and
opposition politicians.
What I learnt then, and what I continue to
learn as I follow issues in Malaysia, is of
concern to me.
Despite the impressive efforts of Malaysian
Civil Society Organizations, who are working
hard to bring change, the current situation for
politics and human rights in Malaysia remains
precarious. The ongoing attacks on peaceful
assemblies and on human rights defenders
in particular are especially disturbing, and
undermine the basic tenets of democracy and
human rights.
The right to assemble peacefully rests at the
core of functioning democratic systems, and
is closely related to other cornerstones of
democracy and pluralism, such as freedom
of expression and freedom of association.
It is enshrined in a number of international
human rights instruments and guaranteed
under the Universal Declaration of Human
Rights (UDHR) and as well as in the Federal
Constitution of Malaysia. Malaysia is bound
by these instruments to uphold its citizens’
rights to peacefully assemble.
In 2010, I formally requested the Government
of Malaysia to invite me to make an official
visit to the country in my capacity as UN
Special Rapporteur and to investigate and
witness firsthand the conditions of freedom
of assembly and association in Malaysia. The
government accepted my request, but they
have yet to agree suitable dates for the visit.
I sincerely hope that I will be given a date
quickly, enabling me to make a formal visit to
Malaysia and to meet a range of stakeholders,
including government departments and
officials, to better understand the issues and
the evolution of the current situation.
In closing, I wish to express my hope
that SUARAM will continue its fine work,
particularly the publication of its annual report
on the situation of human rights in Malaysia.
I also hope that the government will respect
SUARAM’s work, work constructively with civil
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Foreword
society to implement improvements in the
human rights landscape, and acknowledge
their accountability to the Malaysian people
– who are the ultimate mandate holders in a
democracy.
This annual report is a critical tool to
support civil society actors in their effort to
advocate and contribute to strengthened
implementation of human rights. Its continued
publication is vital to a vibrant democracy in
Malaysia.
The struggle for change and human rights is
never an easy fight. It requires high morale
and unbreakable courage. I am pleased to
say that I can see these traits in each of the
activists and CSOs I have met in Malaysia.
I wish you the best – and offer whatever
assistance I can provide in my capacity as
UN Special Rapporteur – in your struggle to
uphold human rights. May SUARAM always
be a voice for Malaysian people.
In Solidarity,
Maina Kiai, UN Special Rapporteur on the
rights to freedom of peaceful assembly and
of association
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ACKNOWLEDGEMENTS
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T
he publication of SUARAM’s Human
Rights Report 2012 involved efforts and
contributions of numerous individuals.
The publication of the report was made
possible with support from all the individuals,
editors, writers and layout designers.
The report was written mainly by Vincent Lee
Choon Fai and assisted by Nalini Elumalai.
Other contributors are: Andrew Khoo (Law
and Judiciary); Wong Chin Huat (Free and Fair
Elections); Charles Hector (Death Penalty);
and Sumitha Shanthini (Refugees and Asylum
Seekers). SUARAM would like to extend
our gratitude to all the individuals that have
contributed the chapters.
The Principal Editor of this report is Dr. Kua
Kia Soong. Various sections were reviewed by
Nalini Elumalai, Thevarajan, Syukri Razab and
Hooi Hoe Sia (SUARAM intern). Finally, we
would like to wish our sincere appreciation to
all our supporters and as well as to Mr Maina
Kiai, Special Rapporteur on Freedom of
Assembly and of Association for the foreword
that has been dedicated in this report.
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EXECUTIVE
SUMMARY
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P
rime Minister Najib had a year to deliver
on his promises of reform before the
impending 13th general elections but
the human rights situation in Malaysia for
2012 has not improved.
The concerted harassment of SUARAM
throughout the second half of this year
demonstrates the government’s flagrant
flouting of human rights and its habit of
vindictive persecution of human rights
defenders.
Detention without trial and incommunicado
detention remains on the statute books as
the Internal Security Act 1960 was replaced
by the Security Offences (Special Measures)
Act 2012. The freedom of assembly is now
governed by a restrictive legislation; the
freedom of expression has been restricted by
the introduction of S114A Evidence Act 1950;
a program that was supposed to regulate noncitizens was abused by government cronies
through fraudulent employment agencies.
Continuing detention without trial
The Security Offences (Special Measures) Act
2012 (“SOSMA 2012”) received the Royal
Assent from the Yang Dipertuan Agong on
18/6/2012 and was set to commence on
31/7/2012 to replace the Internal Security Act
1960 (“ISA”). However, critics propounded
that the SOSMA is in fact, “old wine in a new
bottle” since it still allowed detention without
trial and incommunicado detention.
Throughout the year, the Home Minister made
several releases notably after a series of hunger
strikes. Documentation and monitoring by
SUARAM and Abolish ISA Movement show
that by end of December 2012, there were
23 detainees comprising of 8 Malaysians, 4
Sri Lankans, 2 Indians from India, 2 Iraqis, 2
Indonesians, 1 Bangladeshi, 1 Pakistani and
3 Filipino. A total of 22 out of 45 remaining
detainees were released throughout the year,
compared to 20 releases in 2011. No arrest was
made under the SOSMA 2012 as of December
2012.
More deaths in custody and police
shootings
In 2012, deaths in custody, fatal police
shootings and violence against suspects
have continued unabated. Official statistics
for deaths in custody stood at 209 from
2000 to September 2012. As a result of the
failure of the government to implement
these recommendations, deaths in custody
remain rampant and in most cases, the police
have not been held accountable as was
demonstrated in the cases of death in custody
documented by SUARAM throughout the year.
There were nine (9) cases were documented by
SUARAM in 2012
Home Minister Hishammuddin Hussein
disclosed in Parliament that a total of 298
individuals were shot dead from 2007 to
August 2012. Thirty seven deaths were
recorded for 2012 compared to 30 in 2011.
Despite repeated calls by human rights
defenders and victims of police brutality for the
setting up of the Independent Police Complaints
and Misconduct Commission (“IPCMC”), the
government remained adamant that IPCMC
is not necessary. Instead, the Enforcement
Agencies Integrity Commission (“EAIC”) was
introduced which lacked the independence and
capacity of the IPCMC.
Questionable integrity and impartiality of
the police
The police’s integrity and impartiality were
questioned following damning exposes made
by former Inspector-General of Police, Musa
Hassan which revealed the rampant political
influences in the police force, including taking
orders from politicians or ‘top people’ to
release certain individuals in certain cases. A
statutory declaration made in 2009 surfaced
amidst the revelations which further casted
doubts on the police force. Former aide de
camp for Musa, Noor Azizul Rahin Taharim
deposedaccused Musa of wrongdoings during
his tenure and exposed how he had silenced
critics within the force with manipulation of
promotions, ranks and postings in the force.
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Executive Summary
Injustices to Migrants
Malaysia has yet to ratify the 1951 Convention
relating to the Status of Refugee and its 1967
protocol despite repeated calls from local,
regional and international human rights
defenders. The Immigration Act 1959/63
performed a perfunctory role in detaining,
whipping
and
deporting
non-citizens
throughout 2012.
Government statistics reveal that a total of
35,000 non-citizens were whipped under S6(1)
of the Immigration Act 1959/63 from 2005 to
2012. A total of 32,664 (93.3%) were found
to have violated the Immigration Act 1959/63
while the remaining 2,336 (6.7%) were found
guilty under the Penal Code, Dangerous
Drugs Act 1952 and Drug Dependants
(Treatment and Rehabilitation) Act 1983.
The 6P Program relating to undocumented
migrants had to cease operation on
10/4/2012 after allegations of corruption and
other injustices. It was revealed that former
Home Minister and current MP for Kangar,
Mohd Radzi Sheikh Ahmad is the director
of SNT Universal Corporation Sdn Bhd, an
agent appointed by the government in the
6P Amnesty program. SNT had committed
several offences including collecting fees
from non-citizens and falsely representing to
the non-citizens that it is able to register and
obtain work permits for them from a number
of bogus employment agencies.
Suppression of freedom of expression and
information
The government continued to curtail the
legitimate exercise of freedom of expression
throughout 2012. In May 2012, about 30
officers from the Federal Territory Islamic
Religious Department (“JAWI”) confiscated
copies of Irshad Manji’s ‘Allah Liberty & Love
- Courage to Reconcile Faith & Freedom’
from Borders bookstore as the content was
deemed to be contrary to Islamic teachings.
The publisher, Ezra Zaid of ZI Publications
was taken to Jabatan Agama Islam Selangor
headquarters for questioning under S47(1)
of the Selangor Syariah Criminal Offences
Enactment 2003. Borders store manager, Nik
Raina Nik Abdul Aziz was charged under S13
of the Federal Territory Syariah Offences Act
1997 for distributing Manji’s books.
Mkini Dotcom’s application to quash the
Home Ministry’s decision to reject a publishing
permit of Malaysiakini was allowed by the
Kuala Lumpur High Court on 1/10/2012.
Justice Abang Iskandar Abang Hashim in
an oral decision stated that “…the decision
affects the right of the applicant to the right of
freedom of expression, which also includes the
right to apply for a permit. It is a fundamental
liberty enshrined in the constitution…”
However, the Attorney General’s Chambers
and the Home Ministry have filed a notice of
appeal against Justice Abang’s decision.
Selective prosecution under the Peaceful
Assembly Act 2012
The real function of the new Peaceful
Assembly Act 2012 was demonstrated in the
government’s handling of the BERSIH 3.0
rally on 28/4/2012. A total number of 909
tear smoke shells were used in BERSIH 3.0 as
compared to 262 at BERSIH 2.0. There were
around 300,000 participants in the rally and a
total number of 572 were arrested on the day
of rally. The government, in an unusual move
filed two civil suits against BERSIH Steering
Committee members for causing damage to
public properties.
The speedily passed Peaceful Assembly Act
2012 (“PAA 2012”) received its Royal Assent
on 30/1/2012 and was set to commence
on 23/4/2012, just in time for the BERSIH
3.0 rally on 28/4/2012. Participants, Anwar
Ibrahim, Azmin Ali and Badrul Hisham
Shaharin were charged under S4(2)(c) of the
PAA 2012 for violating a Magistrate’s Order
by taking part in BERSIH 3.0 rally. The three
were also alleged to have conspired with R.
Tangam, G. Rajesh Kumar and Farhan Ibrahim
for incitement to breach the barricades set up
at Dataran Merdeka.
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Student groups made a significant impact in
2012. On 14th April 2012, about 500 members
of Malaysia Bangkit, Gabungan Mahasiswa
Islam Malaysia, Kelab Mangsa PTPTN and
Malaysia Student Democratic Movement
took to the streets to demand the abolition
of PTPTN and called for free education.
Violence against the students escalated when
a group of about 50 to 70 thugs attacked
the students and destroyed their tents at
Dataran Merdeka, with one student having
to be rushed to the hospital. About a dozen
of police officers stood by and watched the
entire incident without intervening.
Environmental groups made headlines with
a series of rallies. Himpunan Hijau began
an epic 300 kilometre walk from Kuantan to
Kuala Lumpur. From a mere 70 participants in
Kuantan, the crowd along the way gathered
to a massive 20,000 participants at Dataran
Merdeka in Kuala Lumpur to protest against
several environmental issues namely, the Lynas
Corporation’s rare earth refinery in Gebeng;
the use of cyanide by Raub Australia Gold
Mining Sdn Bhd; the RM60 billion Petronas
Refinery and Petrochemical Integrated
Development project at Pengerang and the
building of more mega dams in Sarawak. At
the end of the rally, the police announced to
the participants that the organisers would be
investigated under the Peaceful Assembly Act
2012.
Vindictive harassment of human rights
defenders
SUARAM began to face an unprecedented
barrage of intimidation and harassment
from the government and its agencies
as a result of the Scorpene public inquiry
arising from SUARAM’s complaint in Paris.
On 1/7/2012, President of Jaringan Melayu
Malaysia (“JMM”), Azwanddin Hamzah urged
SUARAM to clarify its status as an NGO and
to reveal its sources of funds locally and
internationally. Two days later, on 3/7/2012,
Companies Commission of Malaysia (“CCM”)
arrived at SUARAM’s doorsteps for a ‘routine’
inspection.
The
government-controlled
mainstream
newspapers, News Straits Times, Berita
Harian and Utusan Malaysia joined in this
government chorus, accusing SUARAM and
other organisations including BERSIH 2.0,
Malaysiakini and Centre for Independent
Journalism of being involved in a “Zionist plot
to destabilise the government”.
That first visit was the beginning of an
interminable series of investigations of
SUARAM and other individuals deemed to
be related to SUARAM by a government
orchestrated task force consisting of the
Companies Commission Malaysia, Malaysian
Communication and Multimedia Commission,
Bank Negara, Registrar of Societies, the Royal
Malaysian Police and the Home Ministry. This
harassment has not ceased as at December
2012.
Hopeful developments in the judiciary,
negative developments in the law
On 2/10/2012, five former ISA detainees
namely Hishamuddin Rais, MP Chua Tian
Chang, Badrulamin Bahrom, Saari Sungib
and Badaruddin Ismail were awarded
RM15,000.00 each for each day of their
detention and RM30,000 each as aggravated
damages by Kuala Lumpur High Court Judge
Lau Bee Lan. Justice Lau further awarded
RM60,000.00 in general damages and
RM40,000.00 for aggravated and exemplary
damages to the plaintiffs in a defamation suit
brought by all five of them except Badaruddin
Ismail. In her decision, Justice Lau found that
the plaintiffs were detained unlawfully and in
bad faith, and had been subjected to cruel
treatment during their detention.
In May 2012, an amendment to the Evidence
Act 1950 was passed in the Parliament.
S114A of the Act provides punishment to
internet users for any content posted through
their registered networks or data processing
device. The amendment has reversed the
burden of proof to the accused person, failing
which an author is liable whenever unlawful
materials are published in the author’s name,
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Executive Summary
blog or website or even transmitted from
any individual’s computer. The burden to
prove otherwise now rests squarely on the
accused person. The amendment could be
open to abuse by the investigators and force
an innocent party to rebut the presumption
of guilt at serious risk of wrongful prosecution
and injustice.
In October 2012, de facto Law Minister, Nazri
Aziz announced that the government may
replace the death penalty for drug offenders
with a prison term, whilst acknowledging that
the law only punishes drug mules and not
the baron themselves. This would in effect
entail reprieves for about 900 offenders on
death row. He was, however quick to exclude
murder cases from this reprieve from the
death penalty saying that there are many
differing opinions that are inclined towards
the eye for an eye sentencing policy.
Plight of Stateless People in Malaysia
Cases of stateless people in Malaysia have
escalated at a worrying degree. In June 2012,
Pertubuhan Kebajikan dan Sosial Malaysia
claimed that the Social Welfare Department
had failed to issue birth certificates to about
1,758 Malaysian orphans.
Laudable actions by SUHAKAM
On 21/5/2012, SUHAKAM announced that
it has decided to hold a public inquiry into
unnecessary use of force by the police during
BERSIH 3.0 rally on 28/4/2012. SUHAKAM
demonstrated a sense of urgency on the
necessity of the inquiry coupled with the
obligation to carry out its own inquiry pursuant
to its mandate as provided under the Human
Rights Commission of Malaysia Act 1999.
In the on-going harassment of SUARAM,
SUHAKAM released a statement in October
saying that freedom of expression and
association are central and guaranteed under
the Federal Constitution of Malaysia and in
the Universal Declaration of Human Rights.
SUHAKAM also pointed out that the Universal
Declaration on Human Rights Defenders
recognises human rights defenders and
their legitimate activities to promote and
protect human rights including the receipt
foreign funds. The commission added that
human rights defenders should be allowed
to function freely, operate in an enabling and
safe environment, and have the freedom to
determine their status, structure and activities.
DETENTION WITHOUT TRIAL
Assent from the YDPA Agong on 18/6/2012
and was set to commence on 31/7/2012 to
replace the Internal Security Act 1960 (“ISA”).
However, critics propounded that the SOSMA
is in fact, “old wine in a new bottle” since
it still allowed detention without trial and
incommunicado detention.
The day SOSMA was passed in Dewan
Rakyat, Home Minister Hishammuddin
Hussein asked for a grace period of one week
to study the files personally to determine if
the remaining ISA detainees will be tried in
court or released.He has also dismissed the
need for a truth commission, saying that it is
an effort to distract the public and instil anger
and hatred while admitting that there were
instances when the Act was used for political
reasons.
A series of hunger strikes followed after the
repeal of the ISA. On 18/5/2012, the detainees
broke their fast on condition that SUHAKAM
provided them with information pertaining
to their status of detention by 30/6/2012.
Tired of waiting for SUHAKAM to secure their
release, a second wave of hunger strikes was
then started by two detainees on 21/6/2012.
Unperturbed by this second wave of hunger
strikes, the Home Minister stated that the
hunger strike was the detainees’ own decision
and he alleged that they had been carried
out to hijack the government transformation
plan.When pressed to explain further, Home
Minister just tweeted, “Next week the Home
Ministry will explain everything.”
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On 27/6/2012, Bakri MP Er Teck Hwa filed
a motion at the Dewan Rakyat to discuss
the torture of those detained under ISA but
this was rejected by the speaker because
“the subject involves secrecy and there is no
urgent need under Standing Order 18(1).”
Throughout the year, the Home Minister
made several releases. In July 2012, the
Home Minister released 3 detainees; on
17.8.2012, 12 detainees were released;on
25/9/2012, Mustawan Ahbab was released;on
19/11/2012, 2 detainees were released.
Documentation and monitoring by SUARAM
and Abolish ISA Movement show that by end
of December 2012, there were 23 detainees
comprising of 8 Malaysians, 4 Sri Lankans, 2
Indians from India, 2 Iraqis, 2 Indonesians,
1 Bangladeshi, 1 Pakistani and 3 Filipino. A
total of 22 out of 45 remaining detainees
were released throughout the year, compared
to 20 releases in 2011. No arrest was made
under the SOSMA 2012 as of December 2012
compared to 27 arrests made under the ISA
1960 in 2011.
Three emergency proclamations were lifted by
Prime Minister Najib on 24/11/2012, namely,
the 1966 state emergency proclamation to
“quell political discord” in Sarawak, the 1969
national emergency after the May 13 racial riot
and the 1977 state emergency proclamation
issued to “quell political discord” in Kelantan.
The proclamations will cease to have effect
after 6 months pursuant to Article 150 of the
Federal Constitution.
Brothers Rafe Mohamed Ali, Mohd Ramadhan
Mohamed Ali and friend, Mohamad Arif Abu
Semah were released without conditions on
6/3/2012 by an order signed by Deputy Home
Minister, Datuk Wira Abu Seman Yusop.The
trio were arrested for alleged motorcycle
thefts in Selayang on 8/3/2011 and was
detained under the EO on 19/3/2011. The
trio were later banished under the Restricted
Residence Act 1933 on 17/3/2012. The
release was secured as an answer to lawyer,
K. Shanmuga’s request to the Home Minister
for their release since the emergency
proclamations were lifted.
In June 2012, Deputy Selangor Police Chief
A. Thaiveegan implied that the surge in
complaints of crime levels may be a result
of mass release of detainees following the
repeal of the EO. He went on to state that the
detainees had been detained for too long and
they needed to “exercise” and thus relapsed
into criminal activities again. When questioned
further on the direct link of the rising crime
and the mass releases, Thaiveegan replied
that he needed a month or two to confirm
his allegation.Home Minister Hishammuddin
Hussein was quick to deny that the recent
spate of crimes was caused by the release of
EO detainees. He stated that only 0.27% out
of 1,476 caused the rise in crime statistics.The
Inspector General of Police, Ismail Omar had
also denied the link and reminded the public
not to speculate because the crime rate was
still under control, adding that the public
should provide employment opportunities
to former detainees should they ask for
assistance.
ABUSE OF POWERS BY THE POLICE AND
OTHER LAW ENFORCEMENT AGENCIES
In 2012, deaths in custody, fatal police
shootings and violence against suspects
have continued unabated. Official statistics
for deaths in custody stood at 209 from
2000 to September 2012. From 2007 to
2012, a total of 228 non-citizens died in
police lock-ups, immigration depots and
those who were referred to hospitals by the
authorities.In reply to a written question on
statistics of fatal shooting in 2012 by MP for
Sungai Siput, Dr. Jeyakumar, Home Minister
Hishammuddin Hussein disclosed that a total
of 298 individuals were shot dead from 2007
to August 2012. 37 deaths were recorded for
2012 compared to 30 in 2011.
Crime statistics rose in 2012 despite the
government’s implementation of the National
Key Results Areas on crime reduction. Denying
the surge in crime statistics, Prime Minister
Najib described the opposition’s dispute over
the crime statistics as mere polemic and told
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Executive Summary
the police not to be disappointed. He said
a transformation from within the force was
necessary to meet the demands of the people
who are now more aware of their human
rights. He was quoted as saying,
“…If the police can be as disciplined as
Muslims are in the month of Ramadhan, to
be self-disciplined even though they are
not watched by their superiors...we will be
respected and the police’s performance will
shine even more…”
In November 2012, former Inspector General
of Police, Musa Hassan claimed that Home
Minister Hishammuddin Hussein had once
given instructions directly to junior police
officers and a district police chief without
his knowledge. Musa added that often,
politicians and “top people” will interfere in
police’s work by giving orders to immediately
release certain individuals in certain cases.
Musa stated that political influences were
more rampant under the current IGP’s
administration.
Citing an example on Sentul police district,
Musa recalled that misclassification and
discrepancy in crime statistics can happen. He
stated that about 20-30% of discrepancy was
discovered from his probe on the statistics of
Sentul police district.
A statutory declaration made in 2009 surfaced
amidst the damning revelations made by
Musa. Former aide de camp for Musa,
Noor Azizul Rahin Taharim accused Musa of
wrongdoings during his tenure and exposed
how Musa had silenced critics within the
force by manipulation of promotions, ranks
and postings in the force. Likening Musa
to a traitor, Noor Azizul stated that many of
Musa’s actions undermined the integrity and
credibility of the police. Noor Azizul was
reportedly to be willing to testify should a
royal commission was set up to probe into
the matter.
Despite endless calls from human rights
defenders and victims of police brutality for
the setting up of the Independent Police
Complaints and Misconduct Commission
(“IPCMC”) since 2005, the government
remained adamant in not implementing
the IPCMC. Minister in the Prime Minister’s
Department, Nazri Aziz said that the
establishment of Enforcement Agency
Integrity Commission (“EAIC”) was already
sufficient to investigate complaints and
misconduct of enforcement personnel.
The EAIC, was established in April 2011 after
stringent opposition from the police force
against the IPCMC, including threats to the
government to allow crime rates to sky rocket
and to vote for the opposition parties. One
year into its operation, the EAIC has only
received a meagre 170 complaints with only 16
fully probed cases. The remaining complaints
were either in preliminary investigation stage
or were referred to other relevant agencies for
further actions due to lack of jurisdiction.
On the lack of actions by the EAIC, Chief
Executive Officer, Nor Afizah Hanum Mokhtar
explained that due to the insufficient RM7
million allocation per annum and with only
26 staff, the commission could not initiate its
own investigation whilst maintaining that the
commission wants to act but it needs to have
complaints in the first place, lamenting that the
people just do not trust them.Further, citing
the commission’s powers under the EAIC Act
2009, Afizah boasted that even the Inspector
General of Police cannot be exempted from
scrutiny if a complaint is lodged against him.
Fatal police shootings have increased from
30 in 2011 to 37 in 2012. The standard
explanation for fatal shootings was that
the police were acting in self-defence. On
21/8/2012, Dinesh Darmasena Wijemanna,
26, was brutally killed in a police shooting at
a traffic light at a junction at Pandan Permai
nearby Ampang Waterfront.
The police
claimed that Dinesh, together with four others
had approached a group of plainclothes
police in a threatening manner with iron rods,
meat chopper and machetes. Witnesses
denied the police’s claim that Dinesh and
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9/18/13 3:49 PM
company had just returned from a gang fight
at an apartment nearby and maintained that
Dinesh and company were on their way to
have dinner.
According to two witnesses who were present
at the scene, Dinesh had just alighted from
his vehicle at the said traffic lights after
two unmarked police cars cornered his car.
Unarmed, Dinesh walked towards the police
cars when the plainclothes police officers
began shooting at Dinesh without any
warning.
Assistant Public Relations Officer, Ramli
Mohamed Yoosuf stated that the police
had already concluded its investigation
and submitted the papers to the AttorneyGeneral’s Chambers. He added that an
inquest would be held to determine the cause
of Dinesh’s death. Lawyers, N.Surendran and
Latheefa Koya stressed that an inquest will be
irrelevant as the cause of death was certain
and it was more important to determine why
Dinesh was shot and why the police officers
responsible for Dinesh’s death have not been
investigated. The lawyers added that the
proper action would be to charge the police
officers for murder in court.
In 14/4/2012, siblings Aidi Noor Hafizal
Othman, 24 and Noor Azman Othman, 39
and friend Ahmad Soufa Ahman, 23, were
shot dead by the police at a roundabout
near Taman Billion in Cheras. According to
the police, the three were suspected to be
involved in a jewellery shop heist in Shah
Alam on 6/4/2012. City Criminal Investigation
Department Chief, Datuk Ku Chin Wah
claimed that one of the suspects opened
fire at the policemen and that the policemen
had to return fire in self-defense. He added
that the police found several machetes and
methamphetamine in the car, which was
reportedly stolen in Kajang.Noor Azman died
of eight gunshot wounds while Aidi died
of eleven wounds. Lawyers for the victims’
families cast doubt on the police’ version of
the events for, if the police were acting in selfdefence, how do they explain the numerous
gunshots to the head and not to other parts
of their bodies? Father of the siblings claimed
that the police had even stopped a reporter
from speaking to him at the morgue in
Hospital University Kebangsaan Malaysia.
There was not a single case in 2012 in
which the police took responsibility over the
death of detainees under their custody. Two
days after being detained for drug abuse,
S. Isparan, 37, was found dead in Sungai
Siput Utara police station on 29/5/2012. A
postmortem concluded that Isparan had died
of perforated peptic ulcer with peritonitis.
Family members were incredulous as Isparan
had never had any record of stomach ailment
prior to his arrest.The disappointed family
members lamented that despite having
delivered a memorandum to SUHAKAM and
having written to the Chief Justice, AttorneyGeneral and the Sungai Siput district police
chief calling for an inquest, the various
authorities did not respond to their plight.
Cheah Chin Lee, 36, died in police custody
after being detained for five hours. Cheah
was arrested on 14/8/2012 at or about
12:00AM and was brought to Jalan Pattani
police headquarters for urine test until
about 2:00AM. Cheah was later brought
to Tanjong Tokong police station at about
5:00AM and was found dead 20 minutes later.
Post mortem revealed that Cheah died of
“asphyxia due to hanging”.The family argued
that Cheah had no reasons to kill himself
by hanging as he was mentally stable and
held a permanent job. SUARAM argued that
the officer in charge of Cheah needs to be
accountable for his negligence as the LockUp Rules 1958 requires the officer-in-charge
to be responsible for taking care of detainees
in the lock-up at all times.
On 11/6/2012, after a 3-year long struggle
for justice in the case of Kugan Ananthan,
Shah Alam Sessions Judge, Aslam Zainuddin
sentenced Constable V. Navindran to 3 years
of concurrent imprisonment for two charges
of causing hurt under S330 of the Penal Code.
Kugan, a suspected car thief was beaten to
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9/18/13 3:49 PM
Executive Summary
death at Taipan Police Station on 20/1/2009.
According to a post mortem conducted by
Hospital Serdang, Kugan’s case was classified
as sudden death caused by fluid accumulation
in the lungs. A second post mortem at
Universiti Malaya Medical Centre revealed
that Kugan’s kidney had reportedly failed as
a result of broken muscle cells and congested
blood flow due to severe assault. Mother of
deceased, N. Indra has filed a RM100 million
civil suit at the High Court on 13/1/2012
against the Deputy IGP, V. Navindran and 3
others.
SUARAM documented a crime committed
by three young police officers against a
vulnerable Indonesian woman. On 9/11/2012,
the nation was shocked by the news that
three police officers had gang-raped an
Indonesian restaurant worker in Prai, Penang.
The victim was apprehended by the officers
for purportedly not being able to produce her
passport. She was taken back to the police
station in Prai where she was gang-raped in a
separate room before being sent back to her
home in a police patrol car. The trio, Nik Sin
Mat Lazim, Syahiran Romly and Remmy Anak
Dana claimed trial for charges under S376
and S377C of the Penal Code. They were later
released on bail for RM25,000.00 each.When
asked if it is high time to set up the IPCMC
and that he should resign for such police
misconduct, Home Minister Hishamuddin
Hussein replied, “…we have already ensured
that they are brought to court. What else can
we do? This is our country’s system… IPCMC?
There is no single formula that would solve all
our problems…”
FREEDOM
OF
INFORMATION
EXPRESSION
AND
The government continues to curtail the
legitimate exercise of freedom of expression
throughout 2012. A total number of six books
were banned from publication namely, Allah,
Liberty & Love – Courage to Reconcile Faith &
Freedom and its Malay language translation
by Irshad Manji, “Where Did I Come From?”
by Peter Mayle, Penghantar Ilmu-Ilmu Islam
by Murtadha Muthahhari, Dialog Sunnah
Syi’ah by A. Syarafuddin Al-Musawi and Tafsir
Sufi Al-Fatihah Mukadimah by Jalaluddin
Rakhmat.
On 23/5/2012, about 30 officers from the
Federal Territory Islamic Religious Department
(“JAWI”) confiscated seven copies of Irshad
Manji’s ‘Allah Liberty & Love - Courage To
Reconcile Faith & Freedom’ from Borders
bookstore as the content was deemed to be
contrary to Islamic teachings. During the raid,
JAWI officers together with media personnel
took photographs of the staff and recorded
their identification card numbers, including
non-Muslim staff. JAWI was investigating the
case under S13 of the Federal Territory Syariah
Offences Act 1997 for offences against the
sanctity of Islam and its institutions.
The book was banned the next day under
S7(1) of the Printing Presses and Publication
Act 1984 and the ban was gazetted on
29/5/2012. According to Deputy Home
Minister Abu Seman, the book was believed
to contain elements that can shake Muslims
from their faith, Islamic teachings and
elements which insulted Islam. ‘Allah Liberty
& Love - Courage to Reconcile Faith &
Freedom’, according to Manji “…shows all
of us how to reconcile faith and freedom in a
world seething with repressive dogmas… This
book is the ultimate guide to becoming gutsy
global citizen…”
Subsequently, on 29/5/2012, the Selangor
Islamic Affairs Department (“JAIS”), in a group
of 20 officers have raided ZI Publications office
and confiscated copies of Manji’s books under
S16(1)(a) or (b) of the Religious Publications
Offences against Islamic Law. Director, Ezra
Zaid was taken to JAIS headquarters for
questioning under S47(1) of the Selangor
Syariah Criminal Offences Enactment 2003.
On 19/6/2012, Borders store manager;
Nik Raina Nik Abdul Aziz was charged with
distributing the said book under S13 of the
Federal Territory Syariah Offences Act 1997,
which relates to the sanctity of Islam and its
institutions.
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9/18/13 3:49 PM
Theater producers were also reminded of the
limits to their freedom of expression. Producer
of “Beng Hock” , Faisal Mustaffa of Rumah
Anak Teater (“RAT”), received a call from the
police on 3/7/2012 requesting him to appear
at Jinjang police station for questioning.
Faisal was questioned on the synopsis of the
play. KLPAC Theatre manager, Ian Chow was
also called by the police for ‘routine’ queries.
Puzzled and not knowing the offences he may
have committed, Faisal asserted that a permit
from the DBKL was not necessary since it is
free and open to public and that the theatre
would take place in a private property.
Mkini Dotcom filed an application for a Judicial
Review at the Kuala Lumpur High Court
(Appellate and Special Powers division) after
the rejection of an application for a publishing
permit of its print version on 14/4/2010 under
S6(1)(a) of the PPPA 1984. The application
was filed to quash the decision of the Home
Ministry in rejecting the said application. Mkini
Dot Com contended that the government
must be fair in its approach as enshrined in
Article 8 of the Federal Constitution and
that Malaysiakini is not a threat to public
order, security and morality as it has won
many awards both locally and internationally.
Considering that most major mainstream
media like Utusan Malaysia and News Straits
Times are significantly owned by the Barisan
Nasional and even Suara Perkasa of PERKASA,
known to bear racial prejudices and inciting
intolerance, the Minister’s decision should be
quashed as it lacks procedural fairness and
violates the laws of natural justice.
On 1/10/2012, Justice Abang Iskandar Abang
Hashim, in an oral decision quashed the Home
Minister’s decision because it was ‘improper
and irrational’. “…the decision affects the
right of the applicant to the right of freedom
of expression, which also includes the right
to apply for a permit. It is a fundamental
liberty enshrined in the constitution…” His
Lordship had also stated that freedom of
expression (through publication) is a natural
right and is enshrined in Article 10 of the
Federal Constitution, rather than a privilege
of the Home Minister. However, the Attorney
General’s Chambers and the Home Ministry
have filed a notice of appeal against Justice
Abang’s decision.
At least 4 cases were documented on
alleged insults to the Sultan of Johor,
Sultan Ibrahim Ismail ibni al-Marhum Sultan
Mahmud Iskandar. The first was recorded in
June 2012 where former Menteri Besar of
Perak, Mohammad Nizar Jamaluddin was
questioned by the police over his statement
on Twitter on the Sultan’s bid for WWW1
vehicle registration number, second was in
July 2012, where a blogger, Syed Abdullah
Hussein Al-Attas, known as Uncleseekers was
arrested over a series of controversial articles
which feature documents on the heritage of
the late Sultan Iskandar ibni Almarhum Sultan
Ismail. In July 2012, Solidariti Mahasiswa
Malaysia’s media secretary, Ahmad Shukri
Kamarudin was investigated under S4(1)(b) of
the Sedition Act 1948 over his comments on
Uncleseekers blog. Lastly, in November 2012,
quantity surveyor, Ahmad Abdul Jalil was
detained by the police under the Sedition
Act 1948 and Malaysian Communications
and Multimedia Commission Act 1998 for
allegedly insulted the Sultan on Facebook.
After the watershed 12th General Elections
in 2008, Barisan Nasional lost its two-thirds
parliamentary majority the first time since
1969 where the use of the internet for
political mobilization was widely perceived
as contributing to the opposition’s electoral
gains, the government had recognized the
potential political impact of the internet and
had therefore grown more determination
to control it. Recent amendments to the
Evidence Act 1950 namely S114A which holds
intermediaries liable for seditious content is
very troubling development.
Commenting on US-based Freedom House’s
annual study on internet freedom, Freedom
on the Net 2012: A Global Assessment of
Internet and Digital Media where Malaysia has
worsened as reported by the study, Executive
Officer of Centre for Independent Journalism
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9/18/13 3:49 PM
Executive Summary
(“CIJ”), Masjaliza Hamzah commented that
“…the report’s analysis confirms our own fears
of increasing government clampdown for
speech online, as evidenced by the Section
114A amendment. These moves are an effort
to tame the internet which is considered
too permissible towards airing unfavourable
views of the ruling government…”
CIJ in an open letter endorsed by Southeast
Asian Press Alliance, Media DefenceSoutheast Asia and Centre for Law and
Democracy to Prime Minister Najib, Menteri
Besar of Selangor, Than Sri Khalid Ibrahim
and Chief Minister of Penang Lim Guan Eng
called upon the Barisan Nasional government
to enact a Right to Information law and repeal
all laws that unduly restrict citizen’s right to
access public information. The letter also
called upon the opposition governments
to publish an inventory of information held
by public bodies and undertake routine
proactive disclosure of information of public
interest. While pointing out that the right
to information as enshrine in Article 19 of
the Universal Declaration of Human Rights,
the letter expressed deep concerns that the
government had repeatedly rejected calls
to enact such law but instead systematically
targeted whistleblowers who sought to
expose wrongdoing and corruption in the
public sector.
FREEDOM OF ASSEMBLY
The speedily passed Peaceful Assembly Act
2012 (“PAA 2012”) received its Royal Assent
on 30/1/2012 and was set to commence
on 23/4/2012.Barely a month after coming
into effect, several individuals were charged
under this new law. Condemning the charges,
SUARAM in a statement regarded the charges
as selective prosecution under the PAA 2012.
Anwar Ibrahim, Azmin Ali and Badrul Hisham
Shaharin were charged under S4(2)(c) of the
PAA 2012 (violating Order and taking part in
rally), S188 (breaching Magistrates’ Order)
and S147 (abetting in rioting) of the Penal
Code.
The three were also alleged to have
conspired with R. Tangam, G. Rajesh Kumar
and Farhan Ibrahim for incitement to breach
the barricades set up at Dataran Merdeka.67
Counsel for Anwar Ibrahim, Karpal Singh, has
filed an application to the Sessions Court to
transfer the case to a High Court judge as
S4(1)(c) of the PAA 2012 directly contradicts
Article 10 (1) of the Federal Constitution which
guarantees a person’s freedom of assembly.
Student groups made significant impact in
2012. On 14th April 2012, about 500 members
of Malaysia Bangkit, Gabungan Mahasiswa
Islam Malaysia, Kelab Mangsa PTPTN and
Malaysia Student Democratic Movement took
to the streets to demand for the abolition of
PTPTN and free education. The group had
marched from Masjid Jamek Light Railway
Transit station to Dataran Merdeka where the
group camped calling on the government to
respond to their demands by 28th April 2012.
About 30 Kuala Lumpur City Hall (“DBKL”)
officers then intervened and in the course
of evicting the students, injured at least four
students. When questioned by reporters, one
DBKL officer identified as Nordin retorted
by warning the reporters not to provoke
the DBKL, altogether ignored the questions
despite the fact that clear evidence of
aggression against the students had been
recorded on video.
Violence against the students escalated when
a group of about 50 to 70 thugs attacked the
students and destroyed their tents, with one
student having to be rushed to the hospital.
The fracas was photographed and recorded
on video by the students but the assailants
destroyed or confiscated their cameras and
camcorders. Unfortunately, about a dozen
of police officers stood by and watched the
entire incident without intervening.
remarked that the students’ allegation of
attacks were an attempt to raise emotions
among public. He was quoted as saying “…I
don’t really see the traction… twenty or thirty
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9/18/13 3:49 PM
people set-up tents in Dataran Merdeka and
it’s as if the world is coming to an end…”
BERSIH made a comeback by organizing a
mammoth rally, BERSIH 3.0 on 28/4/2012. A
total number of 909 tear smoke shells were
used in BERSIH 3.0 as compared to 262 at
BERSIH 2.0. About 300,000 participants
turned up and a total number of 572 were
arrested on the day of rally. The government,
in an unusual move filed two civil suits against
S. Ambiga and Maria Chin Abdullah for
causing damages to public properties.
As expected, the government began its
massive crackdown prior to the rally. Tan
Hong Kai was the first person to be arrested
on 20/4/2012 under S447 of the Penal
Code for putting up BERSIH 3.0 posters in
the compound of Universiti Sains Malaysia.
Magistrate Noor Aini Yusoof ordered a
discharge without amounting to acquittal
to Hong Kai on 9/8/2012. Hong Kai had
maintained that he was in the campus by
invitation.
Intimidation and harassment against S.
Ambiga and other steering committee
members began with a group of army veterans
performing their “butt” exercise (shaking
their backsides) outside Ambiga’s residence
followed by a group of petty traders who
identified themselves as BERSIH 4.0, Halau
1.0, Gerakan Belia Gagasan 1Malaysia who
claimed to have suffered economic loss on
the day of the rally. The groups demanded
a personal apology from S. Ambiga and a
revocation of her citizenship.There was also
a call from UMNO’s MP for Sri Gading for
Ambiga to be “hanged” similar to Al-Ma’unah
leaders.
On the eve of Merdeka Day celebration,
Gabungan Janji, a coalition of 47 NGOs and
civil society groups organized a demonstration
calling for “Janji Demokrasi” (Democratic
Promises) - the implementation of unfulfilled
promises by Prime Minister Najib, especially
for clean and fair elections. Despite being
declared illegal under S9(1) and S11 of the
Peaceful Assembly Act 2012 by Dang Wangi
district police chief Zainuddin Ahmad, the
demonstration proceeded with about 10,000
participants adhering to several self-imposed
restrictions set by the organizers namely,
no banners and placards, no provocation,
no loudspeakers and a strict warning
that participants abide by the organiser’s
instructions.
Two distinct incidents took place during the
demonstration which kicked off a series of
nationwide police operation to nab individuals
alleged to have committed offences under
the Penal Code and the Sedition Act 1948.
A 19 year-old college student was arrested
on 4/9/2012 under S290 and S504 of the
Penal Code over his mooning (showing his
backside) at portraits of Prime Minister Najib
and wife during the event. The student was
however released on 5/9/2012 on police bail.
In another incident, 2 youths were accused
of replacing the Jalur Gemilang with Sang
Saka Malaya despite the fact that the duo
had intended to unfurl the flag alongside
Jalur Gemilang in honour of the Malay
leftist struggle for independence, a fact they
claimed had been erased from official history.
The police were investigating the incident
under S290 and S504 of the Penal Code and
S4(1)(a) of the Sedition Act 1948.
Whilst acknowledging that there were no
untoward incidents at the demonstration,
Home Minister, Hishammuddin Hussein
remarked, “…we see that the event, which
was aimed at creating chaos, failed, but we
have to always be cautious…”
Environmental groups made headlines with a
series of significant rallies. Himpunan Hijau led
by Wong Tack began an epic 300 kilometre
walk from Kuantan to Kuala Lumpur starting
on 13/11/2012. From a mere 70 participants
from Kuantan, the amassed crowd along
the way ended up at Dataran Merdeka to a
massive 20,000 participants. Reminding the
participants not to breach any barricades
set up at Dataran Merdeka and to remain
peaceful, Wong Tack led an estimated 20,000
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Executive Summary
walkers to Dataran Merdeka to protest against
several environmental issues namely the Lynas
Corporation’s rare earth refinery in Gebeng,
the use of cyanide by Raub Australia Gold
Mining Sdn Bhd, the RM60 billion Petronas
Refinery and Petrochemical Integrated
Development project at Pengerang and the
building of more mega dams in Sarawak.
Hussein had declared BERSIH 2.0 as unlawful
under S5 of the Societies Act 1966. He added
that investigation had revealed that BERSIH
2.0 was not a registered organisation and
that it has been ‘moving actively and creating
uneasiness’ among the people by distributing
pamphlets containing propaganda to topple
the government.
The Kuala Lumpur City Hall had set up
blockades on both ends of Dataran Merdeka
for “renovation and upgrading works”.
Despite this, the group managed to enter
Dataran Merdeka from an unblocked entrance
adjacent to the main crossroad. The next
morning, the group handed over resolutions
to more than a dozen opposition MPs. The
group had hoped to elicit a response from the
Prime Minister but he did not turn up on the
26/11/2012 morning. The organisers were to
be investigated under the PAA 2012.
However, although he had declared BERSIH
2.0 as illegal, on 10/4/2012 Hishammuddin
gave the permission for BERSIH 3.0 rally to
take place subject to the provisions of the
Peaceful Assembly Act 2012. This would later
become the bone of contention as Justice
Rohana Yusof quashed Hishammuddin’s
declaration. In her decision, Justice Rohana
stated the said declaration was “tainted with
irrationality.”
Himpunan
Hijau
had
earlier
held
demonstrations in Raub together with
residents of Kampung Baru Bukit Koman
protesting against the use of cyanide by Raub
Australia Gold Mining Sdn Bhd on 2/9/2012
and in Pengerang on 30/9/2012 protesting
against the RM60 billion Petronas Refinery
and Petrochemical Integrated Development
project which would occupy 9,000 hectares of
land, affecting at least 15 villages.
FREEDOM OF ASSOCIATION
In 2012, the Malaysian government displayed
a wanton disregard for the legitimate exercise
of freedom of association by a concerted
harassment of SUARAM, apparently for
having the temerity to complain to the French
courts over suspected corruption in the
Scorpene submarine deals. SUARAM suffered
an unprecedented attack from a taskforce
consisting of no less than six agencies which
had been ordered by the government to
specifically “pin a charge or charges” on
SUARAM.
On 1/7/2011, Home Minister Hishammuddin
Because it had initiated the Scorpene public
inquiry in Paris, SUARAM began to face
an unprecedented barrage of intimidation
and harassment from the government and
its agencies in its 23rd year of operation.
On 1/7/2012, President of Jaringan Melayu
Malaysia (“JMM”), Azwanddin Hamzah urged
SUARAM to clarify its status as an NGO
and reveal its sources of funds locally and
internationally. Two days later, on 3/7/2012,
CCM arrived at SUARAM’s doorsteps for
a ‘routine’ inspection. That first visit was
the beginning of an interminable series of
investigations of SUARAM which have not
ceased as at December 2012.
The
government-controlled
mainstream
newspapers, News Straits Times, Berita
Harian and Utusan Malaysia joined in this
government chorus accusing SUARAM and
other organisations including BERSIH 2.0,
Malaysiakini and Centre for Independent
Journalism of being involved in a Zionist plot
to destabilise the government.
On 11/9/2012, a decision to form a taskforce
consisting of six government agencies,
namely, the Companies Commission Malaysia,
Malaysian Communication and Multimedia
Commission, Bank Negara, Registrar of
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9/18/13 3:49 PM
Societies, the Royal Malaysian Police and
the Home Ministry was made to determine
the jurisdiction of respective agencies and
coordinate any actions to be taken against
SUARAM.
On 18/9/2012, Minister of Domestic Trade,
Cooperatives and Consumerism, Ismail Sabri
Yaakob stated that he would recommend to
the Attorney-General to bring charges against
SUARAM in two days’ time. Ismail added that
SUARAM’s accounts were confusing but when
questioned further by reporters, he said “…
All kind of things. It is misleading… they do
one thing and report another…”
Ismail mentioned five possible charges but
has only confirmed one charge under S364(2)
of the Companies Act 1965. The possible
sections include S166A(3), S169(14), S167(1),
S167(2) and S132(1) of the Companies Act
1965. The next day, the purported CCM
Investigation Papers (“IPs”) were returned
to the CCM with Deputy Solicitor-General
II Tun Abdul Majid Tun Hamzah stating that
the IPs were incomplete and insufficent for
the Attorney-General to draft any charges.
Ismail had also requested the Bank Negara to
investigate SUARAM under the Anti-Money
Laundering and Anti-Terrorism Financing Act
2001. However a bank official stated that they
were still looking for the source of funds and
its money trail together with other suspected
transactions before submitting its IPs to the
Attorney-General. After further investigation,
the IPs were again submitted to the AttorneyGeneral on 11/10/2012. The AttorneyGeneral was reported to be waiting for the
Registrar of Societies (“RoS”) (which has since
initiated its investigation of SUARAM) to wind
up its investigation before initiating legal
proceedings against SUARAM.
In a press conference on 5/10/2012, President
of JMM, Azwanddin Hamzah alleged that
SUARAM had bribed more than 10 officers
from various government agencies i.e the
CCM, the Prime Minister’s Department,
the Finance Ministry and Bank Negara to
cover up financial transactions and to obtain
information regarding national security.
Azwanddin claimed that SUARAM has
links with 40 companies, of which 38 out
of these are inactive in business but would
receive USD3,000.00 or USD5,000.00 every
day or once a week. He added “…these
are actions of lackeys who are uncouth and
impudent. We must destroy these people…”.
SUARAM challenged JMM to substantiate
their allegations and called upon the alleged
‘bribed’ officials to reveal the truth and
defend themselves.
In September 2012, a police report no.
10952/12 was lodged in Muar by one Mohd
Said bin Bakri to Constable Muhamad Shuid
bin Osman, R182036, complaining that
SUARAM had received funding from the Jews
and attempted to topple the government by
way of unlawful demonstrations, defamation
and treason. The alleged activities had also
“caused the complainant to feel dissatisfied
as it constitutes a serious offence” and he
could “no longer keep quiet on SUARAM’s
activities.”
The Muar report was enough for the RoS to
start vigorous investigation of SUARAM’s
activities since 24/9/2012. This was despite
S2 of the Societies Act 1966 which defined
a society as inter alia, excluding “…any
company registered under the provisions
of any written law relating to companies
for the time being in force in Malaysia…”
Consequently, SUARAM has on 29/10/2012
written to the RoS requesting them to clarify
and justify its jurisdiction and powers over
SUARAM but to date, SUARAM has yet to
receive a satisfactory answer from the RoS.
Ignoring the request, the RoS has continued
its harassments of SUARAM.
On 5/11/2012, the RoS served notices
under S111 of the Criminal Procedure Code
(“S111 notice”) to individuals who were not
acquainted with the facts and circumstances
of SUARAM, viz. Executive Director of
EMPOWER, Maria Chin Abdullah; President
of the Malaysian Bar, Lim Chee Wee;
human rights lawyer, Syahredzan Johan and
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9/18/13 3:49 PM
Executive Summary
opposition Members of Parliament YB Chua
Tian Chang (Batu) and YB Tony Pua Kiam
Wee (Petaling Jaya Utara). The RoS had even
issued a notice to deceased Fan Yew Teng.
The staffs of SUARAM were not spared as they
also received the same S111 notices from
the RoS on 9/11/2012, including SUARAM
Penang office’s coordinator, Lee Hui Fei.
Then on 30/11/2012, two police officers
visited SUARAM’s office to investigate
SUARAM under S9 of the Peaceful Assembly
Act 2012 for allegedly assembling unlawfully
at CCM building on 18/9/2012. On 7/12/2012,
the RoS saw it fit to appear at the residence of
the company secretary of SUARAM’s landlord
together with a blaring police patrol car just
for the purpose of serving a notice under S66
of the Societies Act 1966. According to the
company secretary, eyewitnesses saw that the
RoS had visited his home several times the
day before on 6/12/2012 when he was not at
home. The wife of the company secretary, a
high blood pressure patient, was in a series
of panic attacks since 6/12/2012 and had to
be sent to the hospital for medical check-up.
A total number of 62 notices and 34 persons
have been called by CCM, RoS and PDRM
since 3/7/2012.
It was ironic and highly embarrassing to the
government that in the midst of this concerted
campaign against SUARAM, the Auditor
General released his annual report showing
that CCM had failed in its responsibility to rein
in companies for not paying their compounds
and submitting audited accounts. MP for
Petaling Utara, Tony Pua highlighted the fact
that the CCM had been prejudicial to SUARAM
in keeping an eye closed on companies
belonging to Shahrizat Jalil’s family, namely
the National Meat and Livestock Company
Sdn Bhd and Meatworks Sdn Bhd which
had reportedly failed to hold annual general
meetings and file annual returns together
with audited financial reports. These are clear
offences under the Companies Act 1965. He
further pointed out that Yayasan Gerakbakti
Kebangsaan whose directors, UMNO Youth
Chief Khairy Jamaluddin and UMNO’s Kota
Belud MP, Abdul Rahman Dahlan had not filed
its accounts since 2009,112 and that National
Aerospace and Defense Industries Sdn Bhd, a
partner in the country’s newest budget airline
Malindo Airways has not filed its audited
accounts since 2007. The chairperson, Gen
(Rtd) Mohd Hashim Mohd Ali, is the brother
in-law of Tun Mahathir.113
FREEDOM OF RELIGION
SUARAM has documented three cases
of human rights violations on freedom of
religion and its practises. These involved
alleged proselytization claims in Penang;
alleged teaching of Islamic lessons to nonMuslim children without the knowledge and
permission of parents, and another regarding
freedom of religion for all Malaysians.
In August 2012, Jabatan Agama Islam Pulau
Pinang (“JAIPP”) began probing claims of
proselytization among Muslims in Penang.
State Executive Committee member, Abdul
Malik Abul Kassim said the JAIPP had taken
the initiative to investigate the claims but
had yet to get hold of any evidence and
identify those concerned. The investigation
was a result of a claim by Pertubuhan Aktivis
Pengupayaan Insan (“API”) that efforts to
convert Muslims to Christian were made to
especially homeless and trishaw riders by
two Caucasian tourists using cash and basic
necessities during Ramadan. API claimed to
have photographs and video evidence of an
elderly trishaw rider being offered mandi air
(likely to mean baptised) and said they would
submit them to the Penang Islamic Affairs
Council.
In October, a group of parents lodged police
reports at the Gua Musang police station
against a teacher at SK Pos Bihai (an exclusively
Orang Asli school) for slapping four 12-yearold children because they did not recite the
doa (prayer) after lunch. According to deputy
chairperson of Parent-Teacher Association,
Arom Asir, the children were made to recite
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prayers before and after meals but they
did not know how to perform it. They were
slapped when they decided to keep quiet
during the prayers. The parents contacted
SUHAKAM and planned to hold a dialogue
with the Kelantan Education Department
and Orang Asli Development Department
(“JAKOA”). The parents also claim that the
children were made to study a religion that
is not their faith.116 The Kelantan Education
Department and JAKOA have apologised
to the parents during a 5 hour meeting. The
parents are considering taking legal actions if
no actions are taken against the teacher who
had clearly violated S17 of the Aboriginal
Peoples Act 1954. On 1/11/2012, Rural and
Regional Minister Shafie Apdal denied that
the children were slapped and said that the
issue had been politicised.
According to Arom, he was told by the
parents that they were offered RM250.00 by a
group of teachers for each child and that the
teacher who slapped the children would then
top up RM50.00, making the total amount
to RM300.00 per child. In return, the parents
would have to retract their police reports
against the teacher.
Then on 3/11/2012, Lembah Pantai MP Nurul
Izzah Anwar made a controversial statement at
a forum titled “Islamic State: Which Version;
Whose Responsibility?” jointly organised
by Oriental Hearts and Minds Study Institute
and Islamic Renaissance Front. A transcript
showed that in replying to a question on
whether freedom of religion applies to
Malays, the MP has stated “…how can you
ask me or anyone, how can anyone really say,
sorry, this only apply to non-Malays… it has to
apply equally, apply equally… in the Quran,
there is no specific terms for the Malays. This
is how it should be done… So I am tied, of
course, to the prevailing views but I would
say that…” She went on to say that quality is
what matters, citing example of herself being
schooled in Assunta with a huge cross in the
hall and an active Catholic society.
Her statements created uproar in the
Muslim community which led to several
individuals, including the Selangor Sultan
making statements on the issue. Puteri
UMNO claimed that the statements carried
significant implications especially to the
younger generation as it paved the way for
other movements to “deviate the faith of
Muslims”. They also claimed that it could
be viewed as maligning Islam or cause Islam
to be looked down upon by others. Nurul
protested that she had been misrepresented
by Utusan and said she intended to lodge a
complaint with the Selangor Islamic Affairs
Deparment (“JAIS”).
ASYLUM SEEKERS, REFUGEES, STATELESS
PERSONS AND PERSONS OF CONCERN
Malaysia has yet to ratify the 1951 Convention
relating to the Status of Refugee and its 1967
protocol despite repeated calls from local,
regional and international organisations.
The Immigration Act 1959/63 performed a
perfunctory role in detaining, whipping and
deporting non-citizens throughout 2012.
As of 31/8/2012, the total number of refugees
stood at 98,787 as compared to 95,000
in 2011. On 1/11/2012, Home Minister,
Hishammuddin Hussein disclosed that 35,000
non-citizens were whipped under S6(1) of the
Immigration Act 1959/63 from 2005 to 2012.
A total of 32,664 (93.3%) were found to have
violated the Immigration Act 1959/63 while
the remaining 2,336 (6.7%) were found guilty
under the Penal Code, Dangerous Drugs Act
1952 and Drug Dependants (Treatment and
Rehabilitation) Act 1983.
On 12/2/2012, the Malaysian government
deported an asylum seeker to Saudi Arabia
where he faced the immediate risk of a death
sentence for act of apostasy. The 23-year old
who was en-route to New Zealand to seek
political asylum had on Prophet Muhammad’s
birthday tweeted “…I have loved things
about you and I have hated things about you
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Executive Summary
and there is a lot I don’t understand about
you. I will not pray for you…” The tweet had
sparked more than 30,000 responses and
several death threats. Hamza Kashgari has
profusely apologized for his tweet but that
did not stem the outrage especially when the
King of Saudi Arabia had ordered his arrest.
In an unusual court sitting on a Sunday, human
rights lawyers, N. Surendran together with
Fadiah Nadwa Fikri had successfully secured
an interim injunction to stop Kashgari’s
deportation but upon rushing to the airport,
Fadiah was informed by the Immigration
that Kashgari had already been deported.
Outraged by the foul play, N. Surendran
stated that the Home Ministry and police have
withheld crucial information as to Kashgari’s
whereabouts and that the deportation plans
were deliberate and unlawfully withheld from
the lawyers.
Senior Middle East researcher of Human
Rights Watch, Christoph Wilcke had earlier
called on the Malaysian government not to
be “…complicit in sealing Kashgari’s fate
by sending him back…” Equally outraged,
President of the Malaysian Bar, Lim Chee
Wee stated that “…it would appear that
the Malaysian government has sacrificed
Hamza Kashgari’s liberty and life for the sake
of diplomatic expediency. This must not be
repeated…”
Kashgari was reportedly to have repented
before a syariah court in Riyadh in the presence
of his family and that it is likely that he will
face a lighter sentence. However, mounting
pressures to execute Kashgari is rising by the
day with scholars saying that anyone who
insults the Prophet should be killed.
Almost a year after the introduction of the
6P Program, Home Minister Hishammuddin
Hussein had on 5/4/2012 announced that
the 6P Program will cease operation when it
expires on 10/4/2012, citing that information
obtained from the program is sufficient for
all interested parties. Earlier, Kajian Politik
Untuk Perubahan (“KPRU”) has pointed out
that 6P has failed in several ways and that the
focus should be put on resolving corruption,
non-citizen oriented economy structure and
implementation of policies in relation to noncitizens. Lashing out at 6P, KPRU has claimed
that the 6P was used to fund the expenses
of 13th General Election. It is also revealed
that former Home Minister and current MP
for Kangar, Mohd Radzi Sheikh Ahmad is a
director of SNT Universal Corporation Sdn
Bhd, an agent appointed by the government
in the 6P Amnesty program. Other directors
include former president of Jasin City Council,
Mustadza Abu Bakar and Malacca Puteri
UMNO leader, Rozilahwati Kalil.
Police investigation revealed that SNT had
committed several offences including falsely
representing itself to non-citizens that it
is able to register non-citizens under the
6P program, able to obtain work permits
for them and setting up dozens of bogus
employment agencies. Selangor Council
Against Human Trafficking (“MAPMAS”) also
released a CCTV recording of violent assaults
of job-seeking non-citizens by the bogus
employment agencies.
Stateless cases in Malaysia escalated at a
worrying degree. In June 2012, Pertubuhan
Kebajikan dan Sosial Malaysia claimed that
the Social Welfare Department had failed to
issue birth certificates to Malaysian orphans.
The Home Ministry has since been asked why
1,758 people who had been under the care
of government-operated welfare homes have
grown up to be stateless. PKR vice-president,
N. Surendran had earlier claimed that about
300,000 Indian Malaysians are either without
blue identity cards, birth certificates or both.
Citing examples from previous rejected
applications under Article 16 (meant for
foreigners) instead of Art 14 of the Federal
Constitution, the lawyer challenged the
cabinet to resolve the long-standing issue
within a week as it is duty-bound to guarantee
the livelihood of its citizens.
He had also highlighted the plight of many
facing difficulties to sit for Sijil Pelajaran
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Malaysia (“SPM”) examinations as the main
requirement to sit for the examinations is an
identity card. Many are still on permanent
resident status and hence denied education
and employment opportunities. Being noncitizens, they are not covered under the Social
Security Organisation or Employee Provident
Fund schemes.
In June 2012, more than 3,000 Muslim
Rohingyas protested outside the Burmese
Embassy demanding urgent international
intervention to stop the killings and violence
against Muslim Rohingyas. Clashes between
the Buddhist Rakhines and minority Muslim
Rohingyas had left dozens dead and more
than 30,000 displaced.
In August 2012, the Young Buddhist
Association of Malaysia called for an
immediate end of all violence and bloodshed
in Arakan against minority Muslim Rohingyas.
Official statistics from the Burma’s National
Human Rights Commission showed that at
least 78 people were killed whilst Amnesty
International recorded about 90,000 were
displaced.
In November 2012, Parti Keadilan Rakyat MP
for Lembah Pantai, Nurul Izzah Anwar filed a
motion to the Dewan Rakyat to debate the
bloody ethnic riots between the Rohingyas
and Rakhines which has now caused about
200 lives and nearly 30,000 people displaced
but it was rejected by the Dewan Rakyat
Speaker. It was reported that the motion was
rejected because the Foreign Ministry had
already addressed the matter through various
public statements expressing concerns and
intention to provide aid to Burma.
FREE AND FAIR ELECTIONS
The Parliamentary Select Committee (“PSC”)
on Electoral Reform which was formed in
August 2011 completed its nationwide public
hearing sessions on 13/1/2012. The Election
Commission (“EC”) has agreed to implement
seven out of ten proposals presented by the
PSC for electoral reform in the coming 13th
general election. The seven proposals are:
use of indelible ink; early voting; electoral
roll display up to 14 days; abolishing
objection process and withdrawal period of
candidates; cleaning up the electoral rolls and
strengthening the EC.
The PSC report was tabled in the Parliament
on 3/4/2012. However, BERSIH 2.0 has
argued that the PSC report failed in five
key areas, namely, manipulation of electoral
roll by the NRD and EC; manipulation of
citizenship-for-votes; enhancing the problems
and infringements of Election Offences Act
1954; inviting international observers; and a
plan to stop dirty politics. Eighteen out of the
22 recommendations also do not set out a
time-frame for implementation.
Deputy Chairman of EC, Datuk Wira Wan
Ahmad Wan Omar has further set a condition
to allow overseas voters to cast their ballot
only if they return to Malaysia at least once
every 5 years to show their loyalty to the
country.
The use of indelible ink was mooted and
approved by the PSC. The EC has adopted
an approach by inking the voter’s finger
before casting the ballot. BERSIH 2.0 has
slammed the process by saying that it is
“fraught with unfair procedures and delays”.
The coalition argues that the inking would run
the risk of smudging the ballot paper which
will then invalidate it. It also runs the risk of
obstructing the critical path of other voters.
Thus, the process would likely cause delays
and overcrowding at polling centres as the
inking process would take at least one minute
per voter.
On 25/5/2012, Merdeka Centre released the
results of a survey done three weeks prior to
BERSIH 3.0 rally. The results revealed that
92% of respondents wanted the electoral roll
cleaned up before the next general election
while nearly half of the respondents expressed
distrust of the electoral system. Only 37%
thought postal voting was transparent and
unbiased whilst most respondents felt that
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Executive Summary
there were irregularities in the roll including
doubtful voters such as foreigners, people
transferred without their knowledge or people
with multiple identities.
Irregularities in the electoral roll were
highlighted in several cases pointed out by
Ong Kian Ming, project director of Malaysia
Electoral Roll Analysis Project (“MERAP”).
In May 2012, Ong identified two individuals
with identity card numbers registered under
their names but with different dates of birth.
In June 2012, Ong discovered another four
individuals whose identity card numbers were
not reflective of their dates of birth. Falling
short of an explanation on the discrepancies,
the EC stated that it has no right to either
reject or remove them from the electoral
roll (still valid) as long as the details match
the records in the National Registration
Department database.
On 28/5/2012, Information, Communications
and Cultural Minister Rais Yatim prepared
a cabinet paper on equal media access to
political parties to present their election
manifestos. Rais Yatim reportedly said that
manifestos would be aired depending on
their newsworthiness. BERSIH condemned
the paper, saying that it does not even scratch
the surface of fulfilling the demands for free
and fair access to the media.
Other irregularities found in the electoral roll
included: questionable numbers of voters
registered in one home; postal voters being
allowed to cast their vote 72 hours prior to
voting day; 1,000 voters more than 100
years old; 18 voters born before 1900 with
the oldest born in 1853; incomplete home
addresses; immediate approval of identity
cards to foreigners to enable them to vote.
LAW AND THE JUDICIARY
Two cases of child rape came to public
attention after both accused were sentenced
to good behaviour bonds. The first case
reported concerned a national bowler, Noor
Afizan who had earlier pleaded guilty to raping
a 13-year old girl at Ayer Keroh, Malacca. On
8/8/2012, after a successful appeal by the
prosecution, the Court of Appeal bench led
by President Raus Md Sharif bound Noor
Afizal Azizan over on good behaviour for
five years, in a sum of RM25,000.00 setting
aside the 5 year imprisonment imposed by
the Malacca High Court. “He still had a bright
future ahead of him” was one of the reasons
national bowler Noor Afizal was spared
imprisonment. However, the Court of Appeal
President said the decision should not be
construed to apply to all young offenders in
similar cases.
Then on 28/8/2012, the Sessions Court in
Penang bound Chuah Guan Jiu over on
good behaviour for three years, in the sum
of RM25,000.00 after he was found guilty of
raping a 12-year old girl. Mirroring Nor Afizal’s
case, Judge Nisa Abdul Aziz said Chuah was
young and had a bright future. However, after
hearing the submission from the prosecutor
on appeal, Penang High Court Judge Datuk
Seri Zakaria Sam overturned the Sessions
Court decision and sentenced Chuah to fiveand-a-half year’s imprisonment.
Following this, de facto Law Minister, Nazri
Aziz announced that S376 of the Penal Code
would be amended to provide that S294 of
the Criminal Procedure Code would not apply
to statutory rape cases. The government is
currently studying the amendment to the
Penal Code.
Assent from the YDPA Agong on 18/6/2012
and was set to commence on 31/7/2012 to
replace the Internal Security Act 1960 (“ISA”).
However, critics abound that the SOSMA is in
fact, old wine in new bottle since it still allowed
detention without trial and incommunicado
detention.
On 2/10/2012, five former ISA detainees i.e
Hishamuddin Rais, MP Chua Tian Chang,
Badrulamin Bahrom, Saari Sungib and
Badaruddin Ismail were awarded RM15,000.00
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each for each day of their detention and
RM30,000 each as aggravated damages by
Kuala Lumpur High Court Judge Lau Bee Lan.
Justice Lau further awarded RM60,000.00
in general damages and RM40,000.00 for
aggravated and exemplary damages to the
plaintiffs in a defamation suit brought by all
five of them except Badaruddin Ismail. In her
decision, Justice Lau found that the plaintiffs
were detained unlawfully and in bad faith,
and had been subjected to cruel treatment
during their detention.
In May 2012, an amendment to the Evidence
Act 1950 was passed in the Parliament.
S114A of the Act provides punishment to
internet users for any content posted through
their registered networks or data processing
device. The amendment has reversed the
burden of proof to the accused person, failing
which an author is liable whenever unlawful
materials are published in the author’s name,
blog or website or even transmitted from
any individual’s computer. The burden to
prove otherwise now rests squarely on the
accused person. The amendment could be
open to abuse by the investigators and force
an innocent party to rebut the presumption
of guilt at serious risk of wrongful prosecution
and injustice. Responding to the critics on
the reversal of burden of proof, Malaysian
Communications and Multimedia Commission
chairman said that if an accused can produce
witnesses to say that he/she is nowhere near
his/her computer or any other communicating
device at the material time, he/she can get off.
Minister in the Prime Minister’s Department,
Nazri Aziz said that the Government does not
want to stifle anyone’s freedom of expression
but does not want people to slander or
threaten others.
In March 2012, de facto Law Minister, Nazri
Aziz revealed that the government may
replace the death penalty for drug offenders
with a prison term, whilst acknowledging
that the law only punishes drug mules and
not the baron themselves. Home Minister
Hishammuddin Hussein had said that the
death penalty had not succeeded in deterring
offenders under S39B Dangerous Drugs Act
1952, i.e there were 2,955 cases in 2009,
3,700 cases in 2010 and 3,845 cases in 2011.
This would in effect entail reprieves for about
900 offenders on death row. He was, however
quick to distinguish murder cases where there
are many differing opinions that are inclined
towards the eye for an eye sentencing policy.
Consequently, 79 organisations, including
SUARAM called for the abolition of the
death penalty and demanded an immediate
moratorium on all executions pending
abolition. The organisations also called on
the government to ratify the Second Optional
Protocol to the International Covenant on
Civil and Political Rights. The next step must
be for a moratorium on the use of death
penalty, which must culminate in the abolition
of the penalty as it amounts to barbarity to
society and legitimizes the taking of human
lives.
HUMAN
RIGHTS
COMMISSION
MALAYSIA (SUHAKAM)
OF
SUHAKAM has lived up to its re-gained
National Human Rights Institution (“NHRI”)
A-status since 2009. In 2012, SUHAKAM
has recorded its firm stand on several main
issues namely, the inquiry on BERSIH 3.0, the
abolition of death penalty for drug offences,
to encourage judges in taking into account of
human rights in decision making, a firm stand
on freedom of association and a probe into
the incident at SK Bihai, Kelantan.
On 21/5/2012, SUHAKAM announced that
it has decided to hold a public inquiry into
unnecessary use of force by the police during
BERSIH 3.0 rally on 28/4/2012. SUHAKAM
demonstrated a sense of urgency on the
necessity of the inquiry coupled with the
obligation to carry out its own inquiry pursuant
to its mandate as provided under the Human
Rights Commission of Malaysia Act 1999.
Referring to former IGP, Tun Hanif Omar who
also intent to head an inquiry on the subject
but had yet to obtain the terms of reference
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Executive Summary
from the Home Minister, the Commission
states “…the commission had wanted to wait,
but can no longer await the release of the
terms of reference of the independent panel
established by the government as they have
yet to finalised…”
Tun Hanif’s credibility as the panel chief was
questioned especially after he said that he
identified communist elements in the rally.
He was reportedly said that he recognised
participants from the rally who were involved
in 1970s pro-communist demonstrations and
his support to Najib’s coup d’état theory
Despite mounting pressure from the public,
maintained that the government will not bow
to pressure over calls to remove and change
the panel chief.
SUHAKAM has consistently called on the
government to consider a moratorium on the
death penalty for drug offences or commuting
this form of punishment to life imprisonment.
It also called upon the government to review
the relevance and effectiveness of capital
punishment and to join other 140 UN
member states to completely abolish the
death penalty. Adding that the move is in
line with a person’s right to life and the right
not to be subject to torture, cruel, inhuman
or degrading treatment and punishment
as provided in the Universal Declaration of
Human Rights and the International Covenant
on Civil and Political Rights.
In September 2012, Chairperson Tan Sri
Hasmy Agam, in a 2 day colloquium with the
country’s top judges had urged judges to take
into account human rights and international
conventions in arriving at decisions, even
though these were not expressly laid out in
law. He also urged the courts to interpret
and breathe life into international laws in
Malaysian courts, otherwise, it is futile to
signify and ratify the said laws. Citing that
these international laws have yet to be
encoded into Malaysian laws, as much as
judges are facing constraints, they should also
be able to ensure that the UN Declaration
of Human Rights and the Charter of United
Nations are taken into account when arriving
at decisions.
In October 2012, in reply to SUARAM’s
Memorandum to the commission dated
21/9/2012 pertaining to the intimidation and
harassment of government and its agencies
against SUARAM, SUHAKAM stated that
freedom of expression and association are
central and guaranteed under the Federal
Constitution of Malaysia and in the Universal
Declaration of Human Rights. SUHAKAM also
pointed out that the Universal Declaration on
Human Rights Defender recognises human
rights defenders and its legitimate activities to
promote and protect human rights including
the receipt foreign funds. The commission
added that human rights defender should
be allowed to function freely, operate in an
enabling and safe environment, and have the
freedom to determine their status, structure
and activities.
On 23/10/2012, upon receiving a complaint
to investigate an incident involving the
slapping of 4 orang asli children by a teacher
from SK Bihai Parent-Teacher Association
chairperson, Arom Asir, SUHAKAM has
conducted a study on the incident and had
a meeting with Arom and the parents on
23/10/2012. SUHAKAM had also attended a
dialogue on the incident among the parents,
the Education Department, JAKOA, Bar
Council representative, Siti Kassim and about
30 government and NGO representatives on
30/10/2012.
We hope the national human rights
commission will go further in being more
proactive in human rights cases and even
drafting alternative human rights-based bills
for the people.
COMPETENCY, TRANSPARENCY
ACCOUNTABILITY
AND
On 31/5/2012, former Women and Family
Development Minister Shahrizat Abdul Jalil
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was cleared of involvement in the multi million
ringgit National Feedlot Corporation (“NFC”)
project run by her family with a government
loan amounting to RM250 million. MACC’s
Operations Review Panel chief, Hadenan
Abdul Jalil said that the panel had decided to
wrap up the matter.
Shahrizat’s husband who is also the Chairman
of NFC, Mohd Salleh Ismail was charged with
four counts under S409 of the Penal Code and
S132 of the Companies Act 1965 for criminal
breach of trust. Salleh was alleged to have
channeled a large portion of the loan into
investments not related to the cattle rearing
business including the purchase of two
luxurious condominiums in Kuala Lumpur, a
prime piece of land in Putrajaya, a restaurant
business and a supermarket in Singapore.
Unfortunately, the whistleblowers, PKR
strategy director, Rafizi Ramli and former
bank clerk, Johari Mohamad were charged
under S97 and S112 (1)(c) of the Banking and
Financial Institutions Act 1989 respectively for
disclosing and abetting to disclose financial
accounts related to NFC. Rafizi was arrested
at 6:50AM by five police officers and five Bank
Negara officers at his residence and charged
in court on the same day
Whistleblower website Sarawak Report has
revealed documents purported from the
Independent Commission Against Corruption
(“ICAC”)which reveal millions of Euro and
US, Singapore and Hong Kong dollars had
flowed from certain companies into accounts
managed by timber trader Micheal Chia
and his nominees and finally to Sabah Chief
Minister Musa Aman’s account in Zurich. On
14/8/2008, Micheal Chia was caught redhanded at Hong Kong International Airport
with about RM40 million in his luggage before
boarding his flight to Kuala Lumpur.
To this, Kota Belud MP Abdul Rahman
Dahlan and Minister in the Prime Minister’s
Department, Nazri Aziz had stated that
the RM40 million was political contribution
to Sabah UMNO and not for Musa Aman
and that the MACC had concluded that no
element of corruption was proven in the
case. This was despite the fact that MACC
Deputy Chief Commissioner, Mohd Shukri
Abdull stated that the investigation against
Musa Aman has completed but the operation
evaluations panel has instructed Shukri’s team
to obtain more evidence before the matter
can proceed to prosecution.
Accusing Nazri of conflict of interest when
clearing Musa and Micheal Chia, PKR strategy
director, Rafizi Ramli’s produced photographic
evidence that showed Nazri’s son, Nedim
using a luxurious vehicle registered in Micheal
Chia’s name. Stressing that it was a personal
arrangement between Nedim and Chia, Nazri
stated “…I don’t sleep with my son. I am not
gay. My son is not my wife; my son is not my
lover. What he does, he doesn’t tell me…”
This has led to former MACC adviser, Robert
Phang commenting that it would put a
damper on the Government’s Transformation
Plan if this case is not done transparently as
it will set a bad precedent. He called on the
Prime Minister to seriously look at the adverse
effects of the case and the message it carried.
He also noted that there was no independence
in the MACC investigations as heads of legal
and prosecution are representatives of the
Attorney General’s Chambers.
CONCLUSION
In 2012, the promised reforms by Prime
Minister Najib Razak never came. In its 23
years’ existence, SUARAM has never faced
such an unprecedented barrage of vindictive
actions coordinated by no less than six
government agencies under executive orders
with the mainstream press in concert. All this
was in response to SUARAM’s legitimate
complaint to the French courts to probe
suspected corruption in the Scorpene
submarine deal.
The fundamental liberties of Malaysians
remain restricted, with continuing detention
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Executive Summary
without trial, more deaths in police custody
and police shootings, gross injustices to
migrants, suppression of the freedom of
expression and information and selective
prosecution under the new Peaceful Assembly
Act.
There have been hopeful developments in the
Malaysian judiciary although developments
in the law have been negative. We are
encouraged to note that the actions and
positions taken by the National Human Rights
Commission SUHAKAM in 2012 have been
laudable.
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38
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CHAPTER 1:
DETENTION
WITHOUT TRIAL
9/18/13 3:49 PM
D
Datuk Seri Najib
Razak making good on his preMalaysia Day 2011 promise to repeal
the Internal Security Act 1960 (ISA) along with
the Emergency (public Order and Prevention
of Crime) Ordinance 1969 (EO) all of which
allows detention without trial, the subsequent
tabling and passing of the Security Offences
(Special Measures) Act 2012 (SOSMA) in
Parliament gave Malaysians little cause for
celebration.
espite prime minister
Under SOSMA, the government retains the
power to arbitrarily detain individuals without
trial. Furthermore, the abolition of the ISA did
not have any effect on the people who is still
under detention under the Act. However, 22
out of 45 detainees who have “repented”
for their alleged crimes were released on
separate occasions in 2012. All estimated
2,000 EO detainees were released when the
law was repealed.
SOSMA - Old wine in new bottle
Shortly after repealing the ISA, SOSMA
was quickly passed by Parliament as a
replacement without any consultation with
the public. Its stated purpose is “to provide
special measures relating to security offences
for the purpose of maintaining public order
and security and for connected matters”.
Like the ISA, it is not clearly defined what
constitutes a security offence or a threat to
public order, which means the law is similarly
open to interpretation and possible abuse.
The Act sets out several actions below that
warrant prosecution1 :
“1. To cause, or to cause a substantial
amount of citizens to fear, organised
violence against persons or property;
2. To excite disaffection against the Yang
di-Pertuan Agong (the King);
3. Which is prejudicial to public order in, or
the security of the Federation or in any
part thereof; or
4. To procure the alteration, otherwise than
by unlawful means, of anything by law
established.”
Detention without Trial Stays
Under Section 4 of the Act, it is stated that
the police can arrest an individual without
warrant on mere suspicion for 24 hours and
they have the sole discretion to extend the
detention period for a further 28 days to
facilitate investigations:
Section 4 (1) - A police officer may, without
warrant, arrest and detain any person whom
he has reason to believe to be involved in
security offences.
Section 4 (4) - The person arrested and
detained under subsection (1) may be
detained for a period of 24 hours for the
purpose of investigation.
Section 4 (5) - Notwithstanding subsection
(4), a police officer of or above the rank of
Superintendent of Police may extend the
period of detention for a period of not more
than 28 days, for the purpose of investigation.
Although the Act states under Section 4
(3) that individuals will not be arrested or
charged under SOSMA for political reasons,
no specifics are outlined as to what constitutes
political reasons and what are legitimate
security concerns.
Furthermore, even if the suspect is acquitted
of his alleged crime, the police can orally
apply for an indefinite remand period should
they decide to appeal the court’s decision as
stated in the provision below.
Section 30: Indefinite remand period - Upon
acquittal, the accused person to be remanded
pending the filing of a notice of appeal from
the Prosecution. Upon an oral application,
the court shall remand the accused person
pending the filing of the notice to appeal
until the disposal of the appeal. The same
process is repeated if the Prosecution intends
to appeal further to the Court of Appeal.
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9/18/13 3:49 PM
In essence, detention without trial for an
indefinite period of time is here to stay, albeit
with some relaxed conditions such as the
accused being then formally charged and
standing trial, and also allowing the accused
to have legal representation.
Also, due to the ambiguity of the phrases used,
the Act can still be used to stifle legitimate
dissent, including political opponents of the
ruling party
Right to Fair Trial Compromised
Besides the government retaining the power
to arbitrarily detain individuals without
due process, provisions under SOSMA
also undermine the constitutional right to
a fair trial by reducing, if not eliminating,
the prosecution’s burden to prove beyond
reasonable doubt that the suspect is guilty of
his alleged crime.
In the following clauses, doubtful evidence
and witness testimonies that would have
otherwise been thrown out of court without
a second thought will be enough to secure a
conviction.
Section 5 (2) - A police officer not below the
rank of Superintendent of Police may delay
right to legal practitioner to the suspect for
up to 48 hours.
Section 8 (1) - For information deemed
sensitive, Prosecutor may by an ex-parte
application apply to be exempted from s51A
of the Criminal Procedure Code (Prosecutor
to furnish documents entitled by the Defence
before trial).
Section 14 - The Prosecution may make an oral
application to the court for the prosecution’s
protected witness to be heard in camera
without the presence of the accused or his/
her counsel. The protected witness’ identity
is fully protected including his/her voice and
identity in general.
Section 17 - Admissibility of evidence in
SOSMA supersedes the requirements of basic
evidential rules under the Evidence Act 1950.
Section 18 - Statement by a person who is dead,
cannot be found or has become incapable
of giving evidence shall be admissible as
evidence. Hearsay is allowed and there is
no requirement for the Prosecution to call
witnesses at all. There is also no requirement
to produce primary or secondary documents
as evidence.
Section 19 - Uncorroborated child evidence
that is not taken under oath is legal to convict
a person.
Section 20 - All documents, primary or
secondary prejudicial or not to national
security and its contents obtained during a
raid shall be admissible.
Section 21 - Evidence of identification
by photographs shall be admissible. The
basic evidential rule on the precautions of
identification by photographs is removed in
toto.
Section 22 - Search list is admissible in court
to show the existence of documents or things
seized in a raid without having to produce to
the court the documents or things seized due
to the nature of the documents and things.
Section 23 - The non-production of real
evidence or primary evidence by way of
exhibits to prove sensitive information before
or during trial shall not be prejudicial to the
Prosecution’s case.
Section 25 - All kinds of computer
generated documents shall be admissible
notwithstanding computer’s fault or status of
the maker of the documents.
Section 26 - Uncorroborated evidence by an
accomplice and agent provocateur shall not
be regarded as unworthy of credit and shall
be admitted as evidence.
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Due to the provisions above, an individual’s
right to fair trial will severely be compromised
as a conviction can be easily achieved even if
the prosecution’s case is only flimsy at best.
After a few weeks, nine detainees including
some from the former group again staged a
hunger strike in June with some refusing to
even drink water, putting their health at great
risk.
ISA Detentions Unaffected
Alleged Torture
Despite the ISA being phased out by SOSMA,
Section 32 of the new law provides that any
decision made under the ISA is still in effect
and only the Home Minister has the power to
revoke detention orders.
At the time of ISA’s repeal, 45 individuals,
both foreign and local, were still in
Kamunting detention centre for various
suspected offences such as human trafficking,
possessing false documents, arms trafficking,
and suspected connection to terrorist groups
such as Jemaah Islamiah and Darul Islam.
Home Minister Datuk Seri Hishammudin
Hussein told Parliament that he would go
through the cases of detention individually to
determine if they should be released, but no
news was forthcoming from the Ministry after
that2.
Detainees start hunger strike
Angered by the uncertainty of their release,
seven detainees began a hunger strike in
mid-May for a week to protest their continued
arrest. Some stated that they were ready to
give up their lives if there were not released.
The Human Rights Commission of Malaysia
(SUHAKAM) managed to persuade them to
call off their hunger strike and promised to
take the matter up to the Home Ministry.
However, the Home Minister refused to
release the ISA detainees, stating that the rule
of law must be followed and he will not give in
to their hunger strike.
“The decision to go on a hunger strike is
theirs. At the end of the day, we go by the
rule of law.” 4
According to a news article published by
Malaysiakini, a note smuggled out by camp
staff detailed the barbaric methods of torture
allegedly used on detainees during their
remand period in the Police Headquarters at
Bukit Aman.6 However, Malaysiakini pointed
out that they could not independently verify
the contents of the notes as listed below,
which included:
• The detainees being forced to strip
down to their underwear, and hung
upside down from a gadget that moves
around the torture room suspected to
be in Bukit Aman; being hit repeatedly
with a blunt object, this process being
repeated over and over;
• Hot oil being poured onto their genitals;
• Their body hair, including pubic hair
being ripped out;
• Their bodies, especially the genitals,
being smeared with chilli and the paste
being left to dry on the body for two to
three days;
• Their genitals burnt with cigarettes;
• Being made to do naked half-squats for
several hours a day for 60 days.
Further details of torture inflicted on an Iraqi
detainee, Sami Hammood Yaseem Al Kshish,
were released to the media by his lawyers
from the NGO, Lawyers for Liberty. Sami was
arrested on 12/1/2011 on suspicion of human
trafficking and was allegedly tortured by four
police officers using the following methods. 7
• The police had deliberately stomped on
his injured leg;
• Pieces of chilli were being forced up his
nose and mouth;
• Chilli paste was smeared on his mouth
and on his anus as well as on his wooden
plank bed;
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9/18/13 3:49 PM
• He was threatened with being framed as
a terrorist;
• Beaten on many occasions with a rubber
hose;
• Threatened that his naked photographs
taken by the police would be publicised.
GMI also claimed that detainees were
physically and mentally abused for taking part
in the protest; Razali told his wife during a
visit that he was beaten and spat on for taking
part. Fadzullah was also allegedly subjected
to solitary confinement for his actions.
A police spokesperson, Ramli Yoosuf
responded that the notes were baseless
claims aimed to maliciously smear the
reputation of the police force. He said that
the detainees had concocted the allegations
to garner public sympathy, hoping to secure
their early release.8
It was also claimed that camp guards reduced
their one hour visiting time to only 30
minutes. The Special Branch also allegedly
called Razali’s wife to advise her husband to
stop participating or she would never get the
chance to see him again.
Ramli said there are neither records nor
complaints by detainees that such tortures
took place in remand. He advised the
detainees to lodge a formal complaint to
the ISA Advisory Board while pointing out
that the detainees had all confessed to their
alleged crimes.
At the same time, the hunger strike was having
adverse effects on the detainees’ health since
the detention centre had no qualified doctors
to care for them. Detainee Razali Kassan, who
was arrested for suspected arms trafficking
in January 2011, was hospitalised due to his
deteriorating health during the hunger strike.
Some Detainees Released
The families of those on hunger strike then
presented a memorandum to SUHAKAM with
the help of the Abolish ISA Movement (GMI)
detailing the plight of those who are still
under detention and urged the government
to release them immediately.9
SUHAKAM followed up on the matter by
visiting detainees regularly and have also
written to the Home Ministry, but they have
yet to receive any sort of response.
A SUHAKAM commissioner, Muhammad
Sha’ani Abdullah, also noted that officers
in the Kamunting facility appeared to be
complicit with detention officers and hospital
staff by ordering the father of detainee Mohd
Fadzullah Abdul Razak to remove his T-shirt
containing anti-ISA slogans before visiting his
son.
(Picture 1: GMI organised series of protest at the Kamunting
detention camp and demanded release of the ISA detainees)
In July, 11 days after the second hunger
strike started and during a picket by some
200 activists outside Kamunting, the Home
Minister finally responded by saying he
was looking into releasing the remaining
detainees but no specific details or deadlines
were given.10
On July 28, the government started releasing
22 detainees in batches. Hishammudin said
in a statement that those released would not
be charged in courts as they had repented
and had been successfully rehabilitated, thus
posing no further risks to national security.
He also remarked that the releases were not
due to pressure from third parties including
the detainees’ hunger strike.11
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• P. Valantine Jayakumar - A Sri Lankan
who was detained on suspicion of human
trafficking;
• S. Loganthan - A local Indian who
was detained on suspicion of human
trafficking;
• Malik Rehmat Ali Syakir- A Pakistani
national who was detained on suspicion
of human trafficking.
On September 25, Indonesian national
Mustawan Ahbab was released from
detention on suspicion of involvement with
Jemaah Santri Melayu.
On August 17, another 12 detainees were
released:
Another two were released a day later on
November 20 - Iraqi national Sami Hammood
Yaseem Al Kashish and Indian national
Perdeep Kumar Arora. Both were arrested
under suspicion of human trafficking.
• Ali Farman- A Pakistani national who
trafficking;
• Tan Choo Peng - A local Chinese who
was detained for forging documents;
• Mohamad Fadzullah Abdul Razak A local Malay who was detained on
suspicion of having connections to
Jemaah Islamiah;
• S. Vikneswaran - A local Indian who
trafficking;
• Ari Nahar - An Indonesian national who
trafficking;
• Faisal Mehmood Noor Ellahi - A Pakistani
national who was detained on suspicion
of human trafficking;
• Abu Bakar Mohamad - A local Malay who
trafficking;
• Muhd Abdul Umar – A local Malay
who was detained on suspicion of
involvement with Darul Islam;
• Suardi Rapi - An Indonesian national
suspected to be involved with Darul
Islam;
• Makbul Affan - An Indonesian national
detained
for
allegedly
forging
documents;
• Pangidaman @ Sani Emat - A Sabahn
Iranun detained for alleged human
trafficking;
• Zainal Senong - A local Malay detained
on suspicion of involvement with Darul
Islam.
More than a month later on November 19,
two local Malays who were detained on
suspicion of involvement with Darul Islam
were released.
On December 21, the sixth and final batch
was released. They were Nyelang Mesidi,
an Iban who was detained on suspicion of
human trafficking and T. Hemachandran, a Sri
Lankan national who was also detained under
suspected human trafficking activities.
Speaking to the press after his release,
Fadzullah detailed his hunger strike and
vowed to fight for the release of all detainees
still held in Kamunting.
“…I had held on because I wanted
freedom to be given to all detainees. Until
this happens, the rakyat will continue to
be fed lies by the government that the
ISA is not cruel… I had thought of how
my parents and society would feel, but
we had a message to send out, and we
had hoped for their support. It is this
strong support which eventually pushed
the government to release them and not
because they have been rehabilitated as
claimed by the government. If it is truly
because we have repented, then how is it
that we don’t support them now?”12
44
9/18/13 3:49 PM
(Picture 2: Family of Mustawan Ahbab who were detained from 2010)
45
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ISA Releases, 2012
In 2012, the government released a total of 22 ISA detainees. Table 1.1 lists the names of those
who were released from the ISA in 2012.
Name
Country
Allegation
Date of Arrest
Status
1
P. Valantine
Jayakumar
Sri Lanka
Human
Trafficking
19 Aug 2010
Released on 3rd
August 2012
2
Loganthan
A/L Sanmugam
India
Human
Trafficking
02 Sep 2012
Released on 3rd
August 2012
3
Malik Rehmat
Ali Syakir
Warganegara
Pakistan
Human
Trafficking
03 Dis 2010
Released on 3rd
August 2012
4
Ali Farman
Pakistan
Human
Trafficking
19 Aug 2010
Released on 17
August 2012
5
Tan Choo Peng
Malaysia
Forgery of
documents
19 Aug 2010
Released on 17
August 2012
6
Mohamad Fadzullah
Bin Abdul Razak
Malaysia
Jemaah
Islamiah(JI)
02 Sep 2010
Released on 17
August 2012
7
Vikneswaran
A/L Seennasagam
Malaysia
Human
Trafficking
02 Sep 2012
Released on 17
August 2012
8
Ari Bin Nahar
Indonesia
Human
Trafficking
02 Sep 2012
Released on 17
August 2012
9
Faisal Mehmood
Noor Ellahi
Pakistan
Human
Trafficking
02 Sep 2012
Released on 17
August 2012
10
Abu Bakar Bin
Mohamad
Malaysia
Human
Trafficking
06 Okt 2011
Released on 17
August 2012
11
Muhd Abduh Bin Umar
Malaysia
Darul Islam
06 Jan 2012
Released on 17
August 2012
12
Suardi Bin Rapi
Indonesia
Darul Islam
06 Jan 2012
Released on 17
August 2012
13
Makbul Bin Affan
Indonesia
Forgery of
documents
26 Aug 2010
Released on 17
August 2012
14
Pangidaman @
Sani Bin Emat
Malaysia
Human
Trafficking
21 Jul 2011
Released on 17
August 2012
15
Zainal Bin Senong
Malaysia
Darul Islam
06 Jan 2012
Released on 17
August 2012
16
Mustawan Ahbab
Indonesia
Jemaah Santri
Melayu (JSM)
05 Oct 2010
Released on 25
September 2012
17
Shamsuddin Bin Alik
Malaysia
Darul Islam
06 Jan 2012
Released on 19
November 2012
18
Mohd Sarail Bin Osman
Malaysia
Darul Islam
06 Jan 2012
Released on 19
November 2012
19
Sami Hammood
Yaseem Al Kashish
Iraq
Human
Trafficking
19 Apr 2011
Released on 20
November 2012
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9/18/13 3:49 PM
20
Perdeep Kumar Arora
India
Human
Trafficking
03 Dis 2010
Released on 20
November 2012
21
Nyelang Anak Mesidi
Malaysia
Human
Trafficking
15 Sep 2011
Released on 21
December 2012
22
Hemachandran
A/L Thiyagarajah
Sri Lanka
Human
Trafficking
24 Dec 2009
Released on 21
December 2012
(Source: SUARAM monitoring)
Table 1.2 : Detainees in Kamunting as of December 2012
Name
Country
Allegation
Date of Arrest
Detention Period
1
Antony Sackarayas
Natkunam
Sri Lanka
Human
trafficking
06 Nov 2009
5 Nov 2013
2
Md Radzali Bin Kassan
Malaysia
Jemaah
Islamiah(JI)
02 Mar 2011
01 Mar 2013
3
Indra Syafaruddin
Indonesia
Human
trafficking
07 Apr 2011
06 Apr 2013
4
Nadarajah Muthumani
India
Human
trafficking
07 Apr 2011
06 Apr 2013
5
Waseem Khan Saleem
Khan Awan
Pakistan
Human
trafficking
07 Apr 2011
06 Apr 2013
6
Murthadha A Ibrahim
Iraq
Human
trafficking
19 Apr 2011
18 Apr 2013
7
Letchumanan Senthirasa
Sri Lanka
Human
trafficking
19 Apr 2011
18 Apr 2013
8
A T Anwar Khan
Bangladesh
Human
trafficking
19 Apr 2011
18 Apr 2013
9
Ahmed Kutty A/L
Mohamed
India
Human
trafficking
17 Jun 2011
16 Jun 2013
10
Vijayathasan Chelliah
Sri lanka
Human
trafficking
08 Jul 2011
07 Jul 2013
11
Cesal Bin Amilhamja
Philippines
Human
trafficking
21 Jul 2011
20 Jul 2013
12
Radzman Empak
Philippines
Human
trafficking
21 Jul 2011
20 Jul 2013
13
Suresh Ariyaraja
Sri Lanka
Human
trafficking
17 Aug 2011
16 Aug 2013
14
Omar Rashid Bin
Ahmed Kutty
Malaysia
Human
trafficking
17 Aug 2011
16 Aug 2013
15
Alias Bin Maulot
Malaysia
Human
trafficking
17 Aug 2011
16 Aug 2013
16
Jonson Sureskumar
Selvanayagam
Sri Lanka
Human
trafficking
15 Sep 2011
14 Sep 2013
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17
Azman Bin Md Yunos
Malaysia
Human
trafficking
06 Oct 2011
05 Oct 2013
18
Muhammad Adnan Bin
Umar
Malaysia
Darul Islam
06 Jan 2012
05 Jan 2014
19
Muadz Bin Hakim
Philippines
Darul Islam
06 Jan 2012
05 Jan 2014
20
Adzmi Bin Pindatun
Malaysia
Darul Islam
06 Jan 2012
05 Jan 2014
21
Mohd Nazri Bin Dollah
Malaysia
Darul Islam
06 Jan 2012
05 Jan 2014
22
Darto Bin Bandu
Indonesia
Darul Islam
06 Jan 2012
05 Jan 2014
23
Bakar Bin Baba
Malaysia
Darul Islam
06 Jan 2012
05 Jan 2014
i. Jemaah Islamiah (JI)
Since 2001, the ISA has been used extensively
against those alleged by the Malaysian
government to be “terrorist-linked” or have
“Islamic/ideological”
connections
with
other groups in the Philippines, Pakistan,
Afghanistan and Indonesia. The arrested
persons are mostly labelled as members
of Jemaah Islamiah (JI), an alleged Islamic
terrorist group based in Indonesia. A
significant number of persons arrested under
the ISA were also accused to be members of
the Kumpulan Militan/Mujahiddin Malaysia
(KMM, Malaysian Militant Group). Many of
them were initially arrested as KMM suspects,
but their letters of arrest later accused them of
being JI members instead. Such arbitrariness
in the charges raises doubts about the
reliability of the evidence the authorities
possess.
ii. Forgers of Documents
A large number of alleged forgers of
documents have also been detained under
the ISA in recent years. Their detention under
the ISA exposes the flimsy justification for the
ISA since Malaysia already has ample laws
to deal with such crimes without having to
invoke detention without trial. For example,
the crime of falsifying passports is already
covered in Section 56 of the Immigration Act.
iii. Foreign Nationals
There are also a number of foreign nationals
detained under the ISA in the Kamunting
Detention Camp. Those who were eventually
released were deported back to their home
countries. As of December 2012, there were
fifteen foreign nationals being detained at
the Kamunting Detention Camp. All fifteen of
them were alleged to be involved in human
trafficking and Darul Islam.
iv. Human Trafficking
Holding alleged human traffickers under the
ISA was the most regressive action by the
government. While we have Anti-Trafficking
In Persons Act 200713 but the Government still
detaining this people under the ISA without
producing any evidences against them.
Reviving Emergency Ordinance?
Three emergency proclamations were lifted by
Prime Minister Najib on 24/11/2011, namely,
the 1966 state emergency proclamation to
“quell political discord” in Sarawak, the 1969
national emergency after the May 13 racial riot
and the 1977 state emergency proclamation
issued to “quell political discord” in Kelantan.
The EO was officially lifted upon its passage
in Dewan Negara on 20/12/2011. The
proclamations ceased to have effect after 6
months pursuant to Article 150 of the Federal
Constitution.14
The EO, like the ISA 1960, allows the Home
Minister to order suspects to be detained for
two years without the possibility of any judicial
oversight. Individuals who are deemed to
be a threat to public order will be detained
without trial.
In 2005, the Royal Commission to Enhance
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the Operation and Management of the Royal
Malaysian Police recommended that the law
should be repealed because it had outlived
its purpose and had facilitated the abuse of
fundamental liberties.
In SUARAM’s records, most of those detained
were usually victims who were the scapegoats
of a larger alleged syndicate dealing with
criminal activities. Most notable were cases of
motorcycle theft and in one particular case,
the scapegoats were teenagers.
As admitted by the police themselves, they
had to invoke the EO because most of the
time, they did not have sufficient evidence to
proceed to press charge against the detainees.
However, the police denied abusing the EO to
skip procedures without having to go through
standard operating procedures before a
suspect can be arrested.15
Soon after, a series of highly publicised
violent crimes rocked the Klang Valley and
the Police implied that these were related to
the EO’s abolition although they did not have
any concrete evidence to back up the claim.
16
This was followed by the Inspector General
of Police (IGP) Tan Sri Ismail Omar denying
any links between the EO and the rising crime
rate.17
The Home Ministry also denied that the crime
rate was on the rise and merely discounted it
as a matter of perception due to the media
attention that the recent violent crimes had
received. 18
Arbitrary Laws still in place despite lifting
of Emergency
i. Dangerous Drugs (Special Preventive
Measures) Act 1985 (DDA)
Similar to the ISA and the EO, the
Dangerous Drugs (Special Preventive
Measures) Act 1985 (DDA) also gives
powers to the 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” for up to
60 days without an order of detention.
At the end of the 60-day detention, the
Home Minister is provided powers to
hand a two-year detention order, if he
is satisfied that “it is necessary in the
interest of public order that such person
be detained”.19 Section 11A of the DDA
provides powers to the Home Minister to
extend a detention order, for a period not
exceeding two years, but the number of
extensions is not limited.
The DDA has further similarities to the
EO in that the detainees are often not
well-known personalities and that the
legislation is lesser known compared to
the ISA, resulting in many abuses of the
legislation by the police to arrest and
detain individuals conveniently without
trial.
Further, Section 6(3) of the legislation
also states that the Home Minister may
order the restriction of movement of
individuals if the Minister “is satisfied that
[…] it is necessary control and supervision
should be exercised over any person”
who is suspected to be associated with
dangerous drugs-related activities.
Conclusion
Although the three proclamations of
emergency have been lifted by the Prime
Minister, some laws that allow detention
without trial remain. These laws are the
Dangerous
Drugs
(Special
Preventive
Measures) Act 1985 and the Prevention of
Crime Act 1959.
Although the ISA has been repealed, it
has been replaced by a new law (SOSMA)
which was hastily rushed through Parliament
without proper consultation with all of the
stakeholders. There are serious flaws in the
new law that still allows detention without
trial and this need to be addressed urgently.
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Although the law has yet to be put to test,
the government can still detain a person
without compliance to due process, denying
fundamental human rights to people who
may be charged under SOSMA. The Act also
supersedes the need for the prosecution
to prove beyond reasonable doubt that
the suspect is indeed guilty of the crime
charged, causing serious concerns about the
defendant’s right to a fair trial. Furthermore,
it defies logic that even though the ISA
was repealed, the Home Minister still holds
absolute power to decide whether detainees
will be freed.
Prime Minister Najib Razak’s attempts to
project an image of a reformer have been
shattered with his enactment of SOSMA.
Such a baseless defence of the SOSMA has
also exposed the hypocrisy of the Malaysian
government, which has to date refused to
ratify the Convention Against Torture (CAT).
Given the long history of well-documented
gross human rights violations, and the fact
that there are ample existing laws to cover
the various offences for which the detentionwithout-trial laws are purportedly used to
curb, the continued existence of the SOSMA
and DDA cannot be justified.
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End notes
1
2
3
4
http://malaysianlaw.my/attachments/
Act-747-Security-Offences_85130.pdf
(SOSMA)
http://www.mysinchew.com/node/72668
(Hisham to study ISA release)
http://www.freemalaysiatoday.com/
category/nation/2012/05/14/isadetainees-on-hunger-strike/ (hunger
strike 1)
http://www.thestar.com.my/News/
Nation/2012/05/26/Hisham-Govt-notgiving-in-to-ISA-hunger-strike-threat.aspx
(Hisham not giving in)
5
http://www.malaysiakini.com/
news/201671 (second hunger strike)
6
news/201143 (Harrowing Torture Notes)
7
news/201814 (more torture details)
8
news/201311 (Police denies torture)
9
Nation/2012/07/02/Families-of-ISAdetainees-on-hunger-strike-presentmemo-to-Suhakam.aspx (Families send
Memorandum)
13 http://www.hsph.harvard.edu/
population/trafficking/malaysia.traf.07.
pdf
14 http://www.malaysiakini.com/
news/194726 (emergencies lifted)
news/203290 (IGP denies using EO nillywilly)
news/202350 (EO made scapegoat for
crime surge)
news/203535 (Eo link denied, July 13,
2012)
news/200472 (rising crime is perception,
June 19, 2012)
19 Section 6(1) Dangerous Drugs (Special
Preventive Measures) Act 1985 (Act 316).
news/202430 (Hisham to respond next
week)
11 http://www.themalaysianinsider.com/
malaysia/article/12-isa-detaineesreleased-today (released detainees have
repented)
news/206650 (Ex-detainee vows to fight
on)
51
9/18/13 3:49 PM
52
9/18/13 3:49 PM
CHAPTER 2:
ABUSE OF
POWER BY
POLICE &
ENFORCEMENT
AGENCIES
9/18/13 3:49 PM
T
royal malaysian police (pdrm) and
various other law enforcement agencies
continued to be mired in controversies
in 2012. From alleged political bias to
deaths in police custody, these incidents
severely undermined the agencies’ integrity,
competency, and accountability.
he
The PDRM again made up the bulk of
controversies as alleged shooting deaths,
abuse of power, deaths in custody continued
to occur. The severe crackdown of electoral
reform rally Bersih 3.0 showed PDRM’s
disregard for the right of peaceful assembly.
Actions taken against protestors were
unnecessarily violent.
2012 was the year that saw the Registrar of
Societies (RoS) and the Companies Commission
of Malaysia (CCM) taking unprecedented
actions to initiate investigations against Suara
Rakyat Malaysia (SUARAM for allegedly being
“foreign agents”. The government ordered
no less than six government agencies to
probe SUARAM, including Bank Negara
to investigate the possibility of “money
laundering” by SUARAM. The timing of the
investigations coincided with the probe by
French courts into alleged corruption in the
purchase of Malaysia’s two Scorpene-class
submarines from the French naval defence
company DCNS.
Deaths in Police Custody
“Death in Police custody, especially
under dubious conditions, is among
the worst one can imagine in a civilised
society under the rule of law,” Lim Chee
Wee, 2012 Bar Council President. 1
On the 30th October 2012, the Home Minister
Hishammuddin Hussein, revealed that from
2007 to 2012, a total of 228 non-citizens died
in police lock-ups, immigration depots and
those who were referred to hospitals by the
authorities.2
Hishammudin mentioned that “It
should be understood, that not all
deaths occurring in police custody but
mostly happened in hospital. Among
the causes of the deaths are due to
HIV / AIDS and other diseases such as
tuberculosis, hepatitis C, asthma and (ill)
heart,”13
As with previous cases, victims were found
dead in dubious circumstances in which the
police invariably denied responsibility and the
cases were classified as “sudden death”.
In addition to the recommendations by
the Commission, the Parliamentary Select
Committee on the Penal Code and the
Criminal Procedure Code, in its 2006
report, also recommended the legislation
of a Coroner’s Act with a view towards
establishing a Coroner’s Court and improving
the procedures for inquests into deaths in
police custody.1 This, too, had not been
implemented as of 31 December 2012.
As a result of the failure of the government to
implement these recommendations, deaths
in custody remain rampant and in most cases,
the police have not been held accountable
as was demonstrated in the cases of death
in custody documented by SUARAM
throughout the year. There were nine (9)
cases documented by SUARAM in 2012.
The Royal Commission on the Police also made
recommendations relating to deaths in police
custody. The Commission recommended that
for every case of death in police custody, the
police must submit a report of sudden death
within one week, and an inquest must be
held within one month. However, inquests
into cases of death in custody have been
extremely slow, with several long overdue
cases still pending in the courts.
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9/18/13 3:49 PM
Abuse Of Power By Police & Enforcement Agencies
Below are the documented cases of deaths in custody in 2012:
(Isparan’s family submitted memorandum to Suhakam)
1. Isparan Subramaniam, 37
S. Isparan was found dead in Sungai Siput
Utara Police Station, Perak at or about
10:30am on 29/5/2012 after he was arrested
and detained under suspicion of being a drug
addict.
The initial post mortem performed by Ipoh
Hospital found that the cause of death was
due to perforated peptic ulcer with peritonitis.
His family members were shocked to learn
of this neither as they knew Isparan had not
been suffering nor had he been diagnosed
with such illness before the detention.
The law requires that the police must ensure
that every lock-up in police stations is manned
by a competent Officer-in-Charge whose
main task is to ensure that all detainees are
always in good health and safe and keeps
in order a daily journal recording all matters
related to detainees. If the post mortem was
accurate, the Officer-in-Charge should have
immediately provided medical support for
Isparan and this may have saved his life.5
SUARAM on 4 June 2012 called on the
Perak Police Chief to conduct a thorough
investigation into the circumstances leading
to Isparan’s death and also demanded that
the Officer-in-Charge produced his/her daily
journal. On 7th June 2012, SUARAM also
wrote to the Attorney-General, Chief Justice
and the OCPD of Sungai Siput Police Station
but failed to get ant response from the AG
office.
2. Cheah Chin Lee, 36
Cheah was arrested on 13 August 2012 at
about 12:00am on suspicion of vehicle theft
and was brought to Jalan Pattani police
headquarters, Penang for a urine test (urine
test for drug, and the result shows negative)
until about 2:00am. The urine test was proven
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9/18/13 3:49 PM
to be a negative and Cheah was later brought
to the Tanjong Tokong police station at about
5:00am, where he was found dead 20 minutes
after arrival. 6
Post mortem revealed the cause of death to be
“asphyxia due to hanging”. Cheah’s brotherin-law, Looi Chooi Aik, argued that it could
not have been possible as the deceased was
mentally stable, held a permanent job, and
had no reason to hang himself. Cheah’s family
demanded that the police took responsibility.
Looi also demanded a CCTV recording of the
incident from the police as he was shocked
that Cheah would commit suicide barely five
hours after his arrest. Ng Eng Kiat, a SUARAM
volunteer, told Malaysiakini:
Piasau assemblyperson Ling Sie Kiong has
also written to the Inspector General of Police
Tan Sri Ismail Omar requesting an immediate
and independent investigation. He also wrote
to the Miri Hospital director Dr. Jack Wong
seeking a post mortem on Lagan.1 Till the
date of writing this report, there was no
inquest conducted.
4. Miss Tienthong Chaipaniya
Miss Tienthong Chaipaniya from Thailand
died in Taman Johor Jaya police station on
the 7 September 2012. The case goes unseen
by the public.
5. P. Chandran, 47
“We are disturbed because a citizen who
has never been convicted of any crime
can suddenly die after being arrested
for less than six hours. The police are
supposed to protect the community
and carry out investigations on cases
to identify the perpetrators. The police
station should be the safest place but it
is clearly not so…”7
SUARAM also demanded that the officer in
charge of Cheah should be held accountable
for his negligence as the Lock-Up Rules 1958
states that the officer-in-charge is responsible
for taking care of detainees in the lock-up at
all times.1 Till the date of writing this report,
there was no inquest conducted.
3. Lagan Dollah ak Gaong, 59
Lagan was arrested on suspicion of being
involved in a RM60, 000 heist involving a
security firm of which he was an employee in
Miri, Sarawak. The police suspected that it was
an inside job and this led to his arrest. Lagan
was found dead in his cell on 22 August 2012.
Lagan’s son, Douglas Jubin Lagan, lodged a
police report and demanded an immediate
investigation into his death, which has been
classified by ACP Mun Kock Keong as a case
of “sudden death”.
Chandran worked as a lorry driver and was
arrested on 6 September 2012 in Sungai Besi
, Selangor under suspicion of involvement in
a kidnapping case. He was found dead on 10
September 2012 in the Dang Wangi Police
Station lock-up. A preliminary post-mortem
report found that the deceased had died from
“hypertensive heart disease”.
The police classified the case as sudden
death. However, the family suspected that
Chandran was refused access to medication
as the deceased’s wife N. Selvi had previously
notified the police of his medical condition. 10
She claimed that the police had refused
to allow her to meet her husband in order
to pass him his medication despite several
pleas. The police even ignored a Magistrate’s
order for Chandran to be taken to a hospital
for immediate treatment. Selvi also claimed
that the police demanded a payment of
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9/18/13 3:49 PM
RM300.00 for information on her husband
and for the handover of medication.11
Circumstances surrounding Chandran’s death
were also suspicious as statements from the
police were inconsistent with the physical
evidence found on Chandran’s body. The
family was informed of the time of death at
about 10:00pm on 10/9/2012 but the time
of death recorded was 11:55pm on the same
day. The deceased’s brother, P. Gunalan, said
he also found cuts on Chandran’s forehead,
torso, and around the ribcage. He lamented:
“Chandran was a good man… Even a
death row prisoner will get his final wish
fulfilled, but my brother was not even
allowed to see his wife…”12
The victim left behind a widow and six
children.
6. R. Kumarajah, 27
Kumarajah was serving time for alleged
motorcycle theft and had complained of
abdominal pain on 26 October 2012. The
prison authorities allegedly did not provide
any medical attention and he then died on
29 October 2012. He was brought to the
Kajang Hospital mortuary at about 4:40pm on
29 October 2012 but prison authorities only
broke the news to his family at 10:30am, 30
October 2012. He was arrested in 2011 but
scheduled to be released in February 2013.
The family’s lawyer G. Sivamalar claimed the
prison doctor only gave some painkillers to
Kumarajah:
“The doctor had the audacity to suggest
that Kumarajah was faking his illness and
sent him back to the cell while he was
still in pain. The doctor told Kumarajah
to stop play acting and that if he wanted
to die, he should just go ahead…”13
Mother of the deceased, M. Sooriakandhi
said Kumarajah looked fine when she visited
him three days prior to his death.
7. S. Krishnan, 34
Krishnan, a general worker at a sanitary
company, was arrested on his way home
from work on 8/11/2012 at Kota Damansara,
Selangor for suspected drug use and to
undergo a urine test. His brother S. Palanisamy
said Krishnan was tested three to four times a
month for drugs and the tests turned out to
be clean each time. He also had no previous
record of drug abuse.
It was claimed that Krishnan did not resist
arrest and did as the police instructed.
However, he accidentally dropped his
trousers during the urine test and was beaten
by police for it. His brother Palanisamy also
claimed that the police had given Krishnan a
new shirt to replace the blood-drenched one
before producing him at the police station.
He was subsequently remanded at the Shah
Alam police station.
On Nov 20, Krishnan appeared in the Petaling
Jaya Magistrate’s Court where he was ordered
to be put under observation in Hospital
Bahagia, Tanjung Rambutan, Perak. However,
he was only sent there on Nov 22 where he
died. He died in Tanjung Rambutan Hospital.
His grieving brother Palanisamy exclaimed:
“The police have killed my brother…
Can you give me my brother back?
Who is going to take care of my mother
now?”14
8. K. Nagarajan, 32
Odd job worker Nagarajan was arrested on
21/12/2012 for alleged drug offences and
was detained in the Dang Wangi police
headquarters lock-up. He was scheduled to
appear before the court on 24/12/2012 but
he was found dead on 24 December 2012.
The police informed Nagarajan’s family that he
had died from a fall in the lock-up. However,
physical evidence on his body contradicted
the statement. Nagarajan suffered a deep
gash above the left eye, a coin sized bruise
above the right eye brow and a wound on
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9/18/13 3:49 PM
his right leg. The police gave no explanation
for how he had sustained those injuries. Till
the date of writing this report, there was no
inquest conducted.
Nagarajan’s mother M. Nagamah said she
was not informed of her son’s arrest and the
police had delayed undertaking an autopsy
on her son:
“It has been a week and the autopsy
report is still not out. This is not fair to
the family. They want to know why he
went in the lock-up alive and came out
dead...even after Kugan’s case, death in
custody is still happening... I don’t want
the same to happen to other people,
this should stop...”15
9. Onochie Martins Nwanko, 35
Shah Alam Sessions Judge, Aslam Zainuddin
sentenced Constable V. Navindran to 3
years of concurrent imprisonment for two
charges of causing hurt under S330 of the
Penal Code.18 Kugan, a suspected car thief
was beaten to death at Taipan Police Station
on 20/1/2009. According to a post mortem
conducted by Hospital Serdang, Kugan’s
case was classified as sudden death caused
by fluid accumulation in the lungs. A second
post mortem at Universiti Malaya Medical
Centre revealed that Kugan’s kidney had
reportedly failed as a result of broken muscle
cells and congested blood flow due to severe
assault.19 Mother of deceased, N. Indra has
filed a RM100 million civil suit at the High
Court on 13/1/2012 against the Deputy IGP,
V. Navindran and 3 others.20
Police Shootings
The harassment of foreigners by People’s
Volunteer Corps (Rela) personnel has been
noted in previous human rights reports by
SUARAM.
Onochie was a Nigerian national living at the
Venice Hills Condominium in Batu 9, Cheras,
Selangor. He was accused of molesting and
attempting to rape a 43 year-old cleaner
working there. Upon learning of the incident,
seven Rela members allegedly assaulted
Onochie and allegedly beat him to death.16
Residents alleged that the Rela members,
who acted as security guards at the
condominium, have always treated foreigners
living in the condominium with disrespect and
were inclined to bullying and harassing them.
Angered by Onochie’s death, approximately
200 Africans rioted and tore down the Rela
guardhouse, leaving local residents in fear
of the foreigners.17 As of April, ACP Abdul
Rashid said that the seven RELA personnel
had been detained for police questioning but
the outcome is not yet known.
Kugan’s Civil Suit
On 11 June 2012, after a 3-year long struggle
for justice in the case of Kugan Ananthan,
International law clearly stipulates the basic
criteria for the use of arms. For instance, in
the United Nations Code of Conduct for
Law Enforcement Officials it is stated, “Law
enforcement officials may use force only
when strictly necessary and to the extent
required for the performance of their duty.”21
(Emphasis added) Whereas Principle 9 of the
United Nations Basic Principles on the Use
of Force and Firearms by Law Enforcement
Officials states:
“Law enforcement officials shall not use
firearms against persons except in selfdefence or defence of others against the
imminent threat of death or serious threat
to life […] In any event, intentional lethal use
of firearms may only be made when strictly
unavoidable in order to protect life.”22
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9/18/13 3:49 PM
(Emphasis added)
The Standard Operating Procedures and
the Inspector-General Standing Orders for
the discharge of firearms by the police were
classified as official secrets under the Official
Secrets Act 1972. In 1979, Malaysia adopted
Resolution 34/169 on a Code of Conduct
for Law Enforcement Officials at the United
Nations General Assembly. Further, in 1990
the government of Malaysia participated
and adopted the basic Principles on the Use
of Force and Firearms by law Enforcement
Officials in the Eighth United Nations
Congress on the Prevention of Crime and
Treatment of Offenders.
However, in 2012 SUARAM till observe a stark
contrast in the actions by the Malaysian police
and the implementation of the international
principles noted above.
Police constable Balaprakash, 21, of the
General Duties Division at Sri Aman, Kuching
district headquarters was charged under
three counts of illegal discharge of firearms
and three counts of criminal intimidation
under S39(a) of the Arms Act 1960 and S506
of the Penal Code at a public house between
2:15am and 2:45am on 3/10/2012. Seen
with two other friends, the constable had
consumed a large amount of whiskey and
he drew his 9mm Walther P99 at Darul Azlan
Muhammad Farid, Irwan Iskandar Md Yasin
and the bartenders for having refused his
order for more drinks. He claimed trial to the
charges.23
The above can be considered a rather
fortunate case as no one was reported to
have been hurt, but the same could not be
said for other cases where there was fatality,
sometimes in questionable circumstances
such as the case of 15 year-old Aminulrasyid
Amzah. The teenager was out having tea
with his friend Azamuddin Omar, also 15, on
26/4/2010 at approximately 2:00am in Shah
Alam, Selangor and they drove home after
that. The police claimed that the boys had
tried to ram a police roadblock, causing them
to chase and subsequently fired more than
20 shots were fire at the car with Heckler and
Koch MP5 submachine guns. The police also
allegedly found a cleaver in the Proton Iswara,
car the boys were driving. 24Aminulrasyid was
shot in the head and killed while Azamuddin
Omar managed to escape and only broke
silence to dispute the police’s statements on
3/5/2010. The inconsistencies in the police
version include the existence of the cleaver,
the act of ramming a police vehicle, and the
reason for the pursuit. 25
Police Corporal Jenain Subi was found guilty
of a culpable homicide charge in 2011 and
was sentenced to five years of jail but the
conviction was overturned on appeal on
5/12/2012, resulting in a full acquittal.26 The
judge said it was clear that the appellant (Kpl
Jenain) had intended to shoot at the car to
immobilise it.
Besides the controversial ruling on
Aminulrasyid’s case, according to SUARAM
monitoring there were recorded 37 shootings
by the police in 2012, some under suspicious
circumstances.
In a reply to Parliament on 23 October 2012,
Tuesday, Home Minister Hishammuddin
Hussein said police shot dead 298 “criminals”
between January 2007 and August 2012,
of whom 134 were Indonesians. In the
written reply to Dr Jeyakumar Devaraj (PSMSungai Siput), Hishammuddin said the other
foreigners shot dead were five Vietnamese,
Burmese (three), Thai (three), Nigerian (one),
Liberian (one) and another of unknown
nationality.27 Malaysians accounted for the
second largest group, with 134 people dead.
Next come Vietnamese (5), Myanmarese
(3) and Thais (2). During the same period,
police also killed one Nigerian, one Liberian
and another person of unknown nationality.
Most of the fatal shootings occurred in
2008 and 2009. In 2008, 26 Malaysians
and 58 Indonesians were killed. In 2009, 48
Malaysians and 34 Indonesians were killed28.
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9/18/13 3:49 PM
Death by police shooting by nationality
Year
Malaysian
Indonesian
Vietnamese
Burmese
Nigerian
Liberian
Unknown
Total
2007
11
2
0
0
0
0
0
13
2008
26
58
0
0
0
1
0
85
2009
48
34
5
0
0
0
0
88
2010
18
26
0
0
0
0
0
45
2011
12
13
0
3
1
0
1
30
Jan - Aug
2012
19
18
0
0
0
0
0
37
Total
134
151
5
2
1
1
1
298
(Chart 1: Courtesy of Malaysiakini)
Of the total, 142 people were aged between 21 and 40. Three were between 16 and 18 years.
None was 60 or older. Only two of the 298 were women. It was also revealed that a large
number of the cases involving people getting shot are from Selangor (53 cases). They were
followed by Kuala Lumpur police (16), Johor (14), Penang (14) and Perak (11). According to
Hishamuddin, these deaths accounted for a total of 145 cases, and that they were classified
as “sudden deaths”.
Death by police shooting by age
Year
16-18
19-21
21-30
31-40
41-50
51-60
>60
Unknown
Total
2007
0
2
4
3
3
0
0
1
13
2008
0
1
11
23
6
2
0
42
85
2009
2
4
28
21
9
0
0
24
88
2010
1
2
5
11
4
0
0
22
45
2011
0
1
5
7
0
0
0
17
30
Jan - Aug
2012
0
0
14
10
2
1
0
10
37
Total
3
10
67
75
24
3
0
116
298
(Chart 2: Courtesy of Malaysiakini)
SUARAM on its statement on 24th October
to respond to the parliament reply expressed
that it was not shocked and stated that the
numbers clearly reflects the common unofficial
Standard Operating Procedures (SOP) of
the force in Malaysia, “Shoot to Kill”. The
question is, was there anyone accountable for
these atrocities done by the police force in
this country? In few cases, there were cops
been charged but how many of them?
The 298 died were not even brought to the
court and proven guilty for their charge.
The model justifications for killings by the
police are:
1. The police are very quick in establishing
the claim that the victims are criminals.
2. They police acted on self defense
3. The victims attacked the police using
parang
4. The victims are linked to gangsters
5. The victims are perpetrators of other
previous crimes in the past
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9/18/13 3:49 PM
SUARAM expressed that, the pathetic and
saddest part will be to run up and down to
seek justice for the 298 dead bodies murdered
mercilessly by the police. In many of the
police shooting cases that SUARAM assisted,
the family members of those killed had to
“run up and down to seek justice”. SUARAM
said that “Every death must be investigated
automatically without the pressure from the
public. A thorough and open investigation
is needed to prove the transparency and
credibility of the force in taking action on
errant police officers. The police investigating
the police mechanism are the mirror of failed
reforms as can be seen from past records and
coupled with the lackadaisical approach of
the police on the safety of individuals”. 29
The following is a list of notable incidents
in which the police opened fire and which
resulted in deaths.
1. “Geng 08” leader shot dead
Chor King Ying, an alleged leader of a crime
syndicate known as “Geng 08” was reportedly
were killed in a shootout with police officers
on January 17 in Paya Terubong, Penang
Island at 2:40am. He was believed to be on
his way to Air Itam to celebrate Chinese New
Year.
PDRM claimed that he was on the most
wanted list and they had managed to locate
him through a public tip off. Upon noticing
that the police was following him, Chor sped
off along Jalan Paya Terubong with the police
in pursuit.
Chor allegedly rammed into an intercepting
police vehicle, got out of the car and tried to
escape into a nearby durian orchard. It was
claimed that he fired several shots at the
police during the attempt and the police shot
back in self-defence, killing him at the scene.
The police said Chor was suspected of
involvement in several extortion cases in and
around Air Itam.30
2. North South Highway Shooting of 3
One Malaysian and two unidentified
foreigners were gunned down by the police
at kilometre 160 on the North South Highway
on 5/2/2012. According to Chief of Pulau
Pinang Criminal Investigation Department,
SAC II Zahrudin Abdullah, the Malaysian and
two foreigners aged between 30 and 40 were
wanted for robbery around the state since
2011. He said the death of the trio may have
solved 56 other robbery cases in the state.
The police located the trio at the Juru toll gate
at approximately 1:30am from information
received. When the police stopped the
Hyundai driven by the trio, they attempted to
flee upon the police request for identification
documents. They were immediately shot and
killed by the police, who claimed it was an act
of self-defence.
According to Zahrudin, the police found
several items from the deceased’s vehicle,
namely, a knife, machete, masks, ropes,
gloves, keris, folded knife, an iron rod and a
laptop. Police also found a pistol, two bullets
shells at the scene. The press was informed
that the police were still on the look out for
another two suspects believed to be members
of the same group.31
3. Three from Lombok shot dead
Herman, 34, Abdul Kadir Jaelani, 25 and
Mad Noon, 28 from West Nusa Tenggara,
Indonesia were gunned down by the police at
Port Dickson on 24/3/2012. According to the
police, the trio had attacked the police with
machetes and as a result, the police opened
fire in self defence and killed them on the
spot. They were in the midst of a robbery
when the incident took place.
Commenting on the fatal shooting of these
Indonesian citizens, Executive Director of
Migrant Care in Indonesia, Anis Hidayah
stated:
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9/18/13 3:49 PM
“Indonesians have been brutally shot to
death by the Malaysian police without
due process of law several times now.
However, while the government has
sent protest letters to Malaysia, there
has been no investigation against the
perpetrators, and the extra-judicial
killings continue…” 32
Several lawmakers and activists said
that they planned to sue the Malaysian
authorities through an international court.
Tenku Rezasyah, a law expert at Padjadjaran
University in Bandung said the government,
the House and civil groups should unite if
they want to file a lawsuit against the Royal
Malaysian Police:
“Filing a lawsuit is easy. The hard part
is bringing the government, lawmakers
and NGOs together to legally fight
Malaysia…”33
4. Two Buyung gang members shot
Elezulhelmie Ilias, 24, and Ahmad Izzuddin
Che Deraman, 24, were gunned down at
a budget hotel in Kota Bharu, Kelantan on
18/4/2012. According to Kelantan Police
Chief Datuk Jalaluddin Abdul Rahman, the
police had searched a budget hotel upon a
public tip-off. The duo jumped out of their
room window in a bid to escape during the
search. The police attempted to arrest the
men but one of them opened fire at the
police, so the police returned fire in selfdefence and killed both the suspects.
The police claimed that they had found a semiautomatic pistol, two machetes, four bank
cards, five driving licenses, an identification
card and two road tax tags. The police also
claimed that the deceased duo was involved
in eight other criminal cases in the state since
early 2012. The police was on an active look
out for other Buyung gang members.34
activities were shot dead at around 10:30am
at Jalan Ampang on 27/4/2012.
According to the police, the duo’s vehicle
which they thought was suspicious was first
spotted at Jalan Desa. The police finally
stopped the vehicle at Ampang LRT station.
According to Ampang Jaya District Police
Chief assistant commissioner Amiruddin
Jamaluddin, one of the two men opened fire
at the police prompting the police to return
fire in self defence. The two men died while
seated in their vehicle.
Amiruddin claimed that the police found
firearms believed to be used in their criminal
activities. He also claimed that one of the men
had previous criminal records and the police
was still investigating the location they were
heading to commit their criminal activities.35
6. Food court samurai shot and injured
An unidentified man, 33, from Permatang
Damar Laut was shot and injured when he
allegedly attacked three police officers at a
food court in Macalum Street, Pulau Pinang
on 1/6/2012.
According to Barat Timur Laut Police Chief
ACP Gan Kong Meng, the police officers had
been told by a woman about a man armed
with a samurai sword who was quarrelling
with a customer and another man in the food
court. The police had to open fire in self
defence when the man started to attack him.
The man was shot in the leg and was warded
at Penang hospital for treatment. Gan claimed
that the man had three criminal records for
theft and causing hurt with a dangerous
weapon.36 The man had an accomplice who
panicked and escaped on a motorcycle when
the police opened fire.
7. Three Indonesians shot in Templer
Saujana
5. Two killed in Jalan Ampang Shootout
Two unidentified men whom the police
believed were on their way to commit criminal
Three unidentified Indonesians from East Java
were gunned down at a housing complex at
Templer Saujana, Rawang on 19/6/2012.
62
9/18/13 3:49 PM
According to a spokesman for the Indonesian
embassy in Malaysia, Suryana Sastradiredja,
the police had informed the embassy that the
trio had allegedly attempted to break into the
housing complex by cutting through an iron
security fence surrounding a dwelling.
In the 4:30am incident, the police claimed
that the trio had attempted to flee and that a
scuffle broke out and the police had to open
fire in self defence. The police claimed that
the men were armed with machete and a
gun.37
8. Imam Mahadi shot at Prime Minister’s
Department
An unemployed man, Khalil Hamid Afandi,
47, who was known as ‘Imam Mahadi’ and
an unidentified woman, 28 were shot by
the police at the Prime Minister’s Office at
Putrajaya at or around 2:30pm on 9/7/2012.
Imam Mahadi died on the way to Putrajaya
hospital while the unidentified woman
suffered injuries to her right thigh.
According to Putrajaya district Police chief
ACP Abdul Razak Majid, the two suspects were
at the guard post when the police stopped
them and offered assistance. Imam Mahadi
had placed a samurai sword at the neck of
the officer. Fearing for his safety, he allowed
the suspects to enter into the compound. In
the compound, the police claimed that the
suspects had damaged vehicles using the
sword.
The police then contacted the police crime
prevention branch for help. According to
Abdul Razak, Imam Mahadi then attacked the
squad at close range with the sword and this
had prompted a member from the squad to
return fire in self defence. Imam Mahadi was
shot in the right hand and abdomen while
the woman was shot in her right thigh. Police
investigation revealed that both the suspects
were unemployed and had only knew each
other a week before the incident.38
9. Dinesh Darmasena (Businessman)
(Dinesh family members, Photos courtesy of SUARAM)
63
9/18/13 3:49 PM
Dinesh was shot in the head and arm near
Ampang Waterfront in the wee hours of Aug
21, 2012 and he died at Ampang Hospital
two days later (23 August). His friends
who witnessed the shooting claimed he was
not armed and that the plainclothes police
did not identify themselves before shooting at
least 10 rounds of ammunitions in a “haywire”
manner. Butpolice claim Dinesh was a gang
member and was part of a 14-car convoy
travelling to Pandan Perdana to resume a
gang fight that erupted there hours earlier39.
They also claimed that the car Dinesh was in
tried to rear-end a police car, after which four
men exited from Dinesh’s car and attacked
the police car with parangs and iron rods.
The family wants the police officer who shot
Dinesh to be suspended and for action to be
taken under Section 302 of the Penal Code
for murder.
10. Four members of ‘Geng Baju Hitam’
shot
Four unidentified men, believed to be
foreigners and members of ‘Geng Baju Hitam’
were gunned down in Taman Meru, Perak in
the wee hours of 7/9/2012. According to Perak
Police chief Datuk Mohd Shukri Dahlan, the
four unidentified men crashed their vehicle
in an alley after about 30 minutes of police
pursuit at approximately 2:00am. Shukri
claimed that two of the four then alighted
from the car and opened fire, prompting the
police to return fire in self defence, killing all
four of them on the spot. The police claimed
that the four were involved in 15 previous
cases in the state.40
11. Kathir shot in Angel Fun pub
Kathir Oli a/l Pakeer Mohamed, Shashitheren
a/l Kandasamy and two other friends wanted
to have some food and drinks at Angel Fun
Pub & Karaoke at Pekan Baru, Ipoh, Perak
on 14/9/2011. It was alleged that Kathir and
friends were prevented from entering the
purported “no Indians” bar, which resulted in
a scuffle. Kathir was shot in the chest at point
blank range by a plain-clothed police officer
when he was about to leave with his friends.
He died soon after.41
The police only informed the family nearly
a year later, much to their outrage, that no
inquest would be held on Kathir’s death.
Instead, his three friends who were with him
that fateful night would be charged for causing
mischief and hurt to a public servant.42
64
9/18/13 3:49 PM
Police brutality at Bersih 3.0
The movement for free and fair elections
in Malaysia, Bersih organised a third rally in
anticipation of the 13th General Election.
On April 28, between 80,000 to 100,000
protestors marched towards Dataran Merdeka
to demand for free and fair elections while
the police again cracked down on protestors
with tear gas canisters and water cannons
firing chemically-laced water. The Bar Council
prepared a report highlighting police brutality
during the rally, which it reckoned was worse
than Bersih 2.0.
(Police brutality that have been documented, Photo Courtesy of Malaysiakini)
65
9/18/13 3:49 PM
In the days leading up to the rally, war-grade
razor wire barricades were deployed to cordon
off Dataran Merdeka from protestors and the
police arrived in force to quell the protest.
Figures furnished by then Home Minister
Datuk Seri Hishammuddin Hussein show that
9,274 police officers were deployed:43 44
“It is incomprehensible, if not a
reflection of the sheer incompetence or
arrogance of
the police force that it has not learnt from
its past mistakes in the management of
assemblies of peoples exercising their
constitutional right.”
The final report, which included a detailed
account compiled by the Bar Council’s team
of 78 observers, noted the following:
• The rally was peaceful until around 3:00pm
when the police opened fire with their
water cannons and tear gas;
• The use of force by the police without
any obvious provocation or cause, was
indiscriminate,
disproportionate
and
excessive;
• Police brutality was widespread;
• There was a concerted effort by the police
to prevent and stop any recording of their
actions and conduct;
• Police fired tear gas directly at the crowd
and their firing pattern was to box in the
participants rather than allowing them to
disperse quickly;
• There were pockets of retaliatory action by
the participants of the rally to the wrongful
use of force by the police;
• The police were observed taunting and
mocking the crowd;
• When items were thrown by some of
the participants at the police, the police
retaliated in kind;
• The police personnel were not wearing
and displaying their police identification
number on their uniform;
• The crowd was estimated to be around
100,000.
In the aftermath of the rally, 512 participants
were arrested for various offences under
the new Peaceful Assembly Act 2012 (PAA).
During their period of detention, the Bar
Council report stated that participants were
denied their right to legal representation as
guaranteed by the federal constitution.45
In an attempt to prevent and stop any
recording of wrongdoings which occurred
during the rally, 12 local journalists from
various newspapers and online news portals
were either assaulted, threatened, had their
recording devices destroyed, or recorded
data deleted.
According to then National Union of
Journalists (NUJ) secretary general V.
Anbalagan, the police should have been able
identify journalists without difficulty by their
reporters’ tag. He also expressed the opinion
that the police were deliberately covering up
any wrongdoing during the rally.46
International broadcaster Al-Jazeera, which
had a camera crew on the ground during
Bersih 3.0, had their camera destroyed by
police officers when they tried to record
incidents of police brutality:
“On a number instances we saw a group
of (police officers) grabbing protestors,
holding them, while another one would
punch, knee, or slap the protestor. We
went in and tried to film that ourselves
and found ourselves subjected to not
quite such harsh treatment but not
dissimilar. We were shoved and held,
and our camera pushed to the ground.
It seemed they are under instructions
perhaps to prevent the media from
filming that kind of thing...” 47
Meanwhile, the BBC’s two minute news
coverage of the rally had 30 seconds of its
content removed before it was broadcast in
the local satellite television network, Astro.
The cut footage showed a police officer
firing on protestors and interviews with
demonstrators who gave their first hand
accounts on why they were protesting.48
Nevertheless, recordings of the police
brutality were circulated on the internet and
66
9/18/13 3:49 PM
social media in the aftermath of the rally such
as Youtube, Facebook, and Twitter.
In one of the videos, a traffic police officer on
duty during the day was seen pulling out his
gun and aiming it at protestors without any
provocation. Other police officers who were
seen in the video did not seem to regard their
colleague’s action as dangerous.7
Despite mounting evidence of police
brutality during Bersih 3.0, no one was held
accountable for the abuse of police powers.
During a Parliamentary sitting in June, it
was learned that a total of 967 tear gas
canisters were used and the government had
spent RM1.8 million to quell the protest.8
Enforcement officers from the Kuala Lumpur
City Hall (DBKL) had also assisted the police
in the crackdown.
Human rights defenders attacked
On 15 March 2012, 66 year-old Surik anak
Muntai, an Iban, fighting for land rights in
Melikin, Sarawak, was viciously attacked by
four men armed with sticks and parangs while
he waited to pick up his son from school.
Surik identified one of the assailants as an
“executive” of an oil palm plantation company
embroiled in a court battle over the Melikin
villagers’ NCR claim to land. According to
Surik’s wife, he suffered splintered fractures to
his right wrist, a deep gash on his forearm,
broken kneecaps and a contaminated ankle
wound.51
In June 2012, Michael Luang, an Iban,
fighting for the same NCR campaign in
Melekin was the victim of a Molotov cocktail
attack on his house. The fire resulted in
extensive damage to his vehicle. Residents
in Melekin have complained that their police
reports of criminal intimidation by gangsters52
have been ignored and say that the police
only took action when the palm oil company
accused villagers of assaulting its workers. In
November 2012, a molotov cocktail was
thrown into the driveway of indigenous land
rights lawyer See Chee How’s house. Chee
How believed the threat to be connected to
his legal work to safeguard the rights of NCR
landowners. Chee How was also threatened
by gangsters who had warned him to pull
out from an NCR lawsuit against the Sarawak
State Government and oil palm companies.53
Police Inaction in Allegations of Rape of
Indonesian women by Police
SUARAM
documented
a
crime
committed by three young police
officers against a vulnerable Indonesian
woman. On 9/11/2012, the nation was
shocked by the news that three police
officers had gang-raped an Indonesian
restaurant worker in Prai, Penang.
The victim was apprehended by the
officers for purportedly not being
able to produce her passport. She
was taken back to the police station
in Prai where she was gang-raped in a
separate room before being sent back
to her home in a police patrol car. The
trio, Nik Sin Mat Lazim, Syahiran Romly
and Remmy Anak Dana claimed trial for
charges under S376 and S377C of the
Penal Code. They were later released
on bail for RM25,000.00 each.54 When
asked if it is high time to set up the
IPCMC and that he should resign for
such police misconduct, Home Minister
Hishamuddin Hussein
replied, “…
we have already ensured that they are
brought to court. What else can we do?
This is our country’s system… IPCMC?
There is no single formula that would
solve all our problems…”55
Using enforcement agencies to harass NGO
critics
In an apparent attempt to harass SUARAM for
complaining to the French courts regarding
suspected corruption in the purchase of two
Scorpene-class submarines by the Malaysian
government, the Registrar of Societies (RoS),
Companies Commission of Malaysia (CCM)
as well as four other government agencies
was ordered to initiate investigations against
SUARAM.56
67
9/18/13 3:49 PM
(ROS and Police at SUARAM office on 19 September 2012 for an inspection, Photos courtesy of SUARAM)
After several allegations by government
ministers in the mainstream media of
SUARAM having received foreign funding
from “questionable sources” in order to
undermine the Malaysian government,
the CCM mounted a raid on SUARAM’s
headquarters in Petaling Jaya for “misleading
accounts”. In their first attempt, they were
stopped at SUARAM’s main door by lawyers
as the search party did not have valid search
warrants.57
Absence
of
Independent
Monitoring Body
Later in September, the RoS too, started
investigations on SUARAM and tried to raid
the NGO’s office with police officers in tow.
Their raid again failed to materialise as the
enforcement officers did not have a search
warrant.58
On page 122 on the report, the commission
recognised that,
Global
rights
watchdog
Amnesty
International raised concern on the timing of
the investigations and said SUARAM should
not be subjected to such harassment and
intimidation:
“The government began these actions
against SUARAM four weeks after the
organisation disclosed new information
from documents made available by the
French public prosecutor’s office, which
implicate Malaysian officials in the
corruption allegations…
“The Malaysian government should
respect SUARAM’s right as a human
rights organisation to seek and receive
funding, rather than abuse its power to
intimidate human rights defenders.” 59
Oversight
Civil society groups and politicians from both
divide continued to push for the establishment
of the Independent Police Misconduct and
Complaints Commission (IPCMC) which was
one of 125 recommendations set forth by the
Royal Commission to Enhance the Operation
and Management of the Royal Malaysian
Police (Police Commission).60
“…when officers act in contravention
of laws and regulations without fear of
investigation or reprimand, the culture
of impunity begins to develop. Each
wrongdoing that is not investigated
or punished or is supported by higher
ranks within the police leadership, leads
to the perception that such misconduct
is permissible. As each new generation
of officers observes and learns from
their superiors, the culture becomes
embedded in all the ranks of the
PDRM…”
Instead, a watered down version of the
IPCMC in the form of the Enforcement
Agency Integrity Commission (EAIC) was
implemented. This body, critics argued, is
ineffective in addressing the various issues
surrounding the culture of impunity by the
police and enforcement agencies in Malaysia.
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9/18/13 3:49 PM
There are a number of challenges to ensure
accountability of the misconduct of police in
Malaysia. Firstly, many of the regulations and
standard operating procedures of the police
are unknown or are kept an official secret,
which makes it difficult to ascertain the level
of compliance of police regulations on public
order policing with international standards.
Secondly, existing internal disciplinary
systems to deal with police misconduct lack
transparency and impartiality and there is
a lack of clarity on how police investigate
complaints and follow up on their findings.
Finally, criminal offenses amounting to
human rights violations are not addressed
in a transparent and systematic manner
to hold authorities accountable. As such,
there exist very few cases of police officers
being prosecuted for causing injury or death
during police operations. This is despite
the numerous recommendations for the
government to establish IPCMC, which was
recommended by the Royal Commission to
Enhance the Operation and Management of
the Royal Malaysia Police Force in 2005.
Instead, the Malaysian government opted
to create the Enforcement Agency Integrity
Commission (EAIC), which would allow
the public to report misconduct by any law
enforcement officer or agency – not just the
police. However, civil society organisations
have argued that the EAIC lacks independence
as it has been established under the Prime
Minister’s office as well as lacks powers
of prosecution. Since its establishment in
September 2011 until the end of 2012, the
Commission received a total of 347 complaints
prompting its Chair, Heliliah Yusof, to admit
that this start was “not too encouraging”. She
also confirmed that after the complaints were
investigated, they were forwarded to the
“relevant authorities such as the Malaysian
Anti-Corruption
Commission,
Attorney
General’s Chambers, and the disciplinary
boards of the agencies concerned, for further
action”. The EAIC has been unable to fulfil the
role of an independent oversight mechanism
to monitor abuses of power by the police, as
indicated by their inability to initiate their own
independent investigation into the police
brutality during the BERSIH protest.
Torture and Other Forms of Cruel, Inhuman
and Degrading Treatment
Malaysia’s non-compliance with international
human rights standards, demonstrated by
its refusal to ratify the Convention against
Torture and Other Forms of Cruel, Inhuman
and Degrading Treatment and Punishment
(CAT), has allowed the police to commit acts
of torture and other forms of cruel, inhuman
and degrading treatment with impunity.
In many of these cases, the police officers
involved are often not held accountable.
Conclusion
From harassing and intimidating legitimate
NGOs like SUARAM to the unaccountable
deaths in police custody, enforcement
agencies, particularly the PDRM continued
to damage the integrity and professional
image of the men in blue. The resistance by
the police and the government to the setting
up of an independent oversight mechanism,
namely, the IPCMC, has ensured that such
abuse of police powers will continue. The
police and enforcement agencies continued
to be used by the Malaysian government to
stifle legitimate dissent and peaceful protests.
The unprecedented violence inflicted by the
police during Bersih 3.0 showed a disregard
for human rights that are guaranteed by the
Federal Constitution of Malaysia.
In 2012, the grave problem of impunity and
lack of accountability of the police force
and other law enforcement agencies was
demonstrated by numerous cases of serious
abuse of power, ranging from arbitrary
arrests to deaths in custody. No substantive
efforts and commitments were made by
the government to reform and improve law
enforcement bodies’ compliance with human
rights standards.
The year saw an alarmingly high number of
37 deaths by police shootings, while nine
persons died in police custody. Systemic noncompliance with and disregard for human
rights standards has led to gross human
rights abuses not only in the police force but
69
9/18/13 3:49 PM
also in other law enforcement agencies. The
government’s failure to ensure accountability
in the operations of these enforcement bodies
has contributed to this dismal state of affairs.
While strong public pressure throughout
the year had prompted the government
to prosecute a few perpetrators of serious
human rights violations, these actions still
fall short of a satisfactory solution as other
perpetrators have not been held accountable
thus far.
70
9/18/13 3:49 PM
End notes
1
2
3
http://www.malaysianbar.org.my/
press_statements/end_deaths_in_police_
custody_now.html (End Deaths in Police
Custody Now)
Written answer by the Home Minister to
Sungai Siput MP Dr Micheal Devaraj’s
question in Dewan Rakyat dated
20/11/2012, Question no 31, Reference
no 5218
category/nation/2012/10/30/209-matidalam-tahanan-sejak-2000/
4
Parliamentary Select Committee on the
Penal Code and the CPC (2006) op. cit.
(p. 71).
5
category/opinion/2012/06/04/anotherdeathin-custody-now-whos-responsible/
(another death in custody? Now who is
respoinsible?)
6
7
8
9
category/nation/2012/08/15/familywants-probe-intolockup-death/ (Family
wants probe into lock-up death)
news/206348 (Man dies in Lock-up five
hours after arrest)
Death in custody again! Have we not
learned, SUARAM, Press statement
dated 15/8/2012 by Thevarajan, Right to
Justice Coordinator.
http://mocsarawak.wordpress.
com/2012/08/25/igp-asked-to-probedeath-ofsuspect-in-custody-in-miri/ (IGP
asked to probe death in custody)
news/208730 (Family urges probe in yet
another death in custody)
11 http://www.freemalaysiatoday.com/
category/nation/2012/10/12/suaramdecries-policeextortionists/ (Suaram
decries police extortionists)
category/nation/2012/10/11/death-incustody-familyto-sue/ (death in custody
family to sue)
13 ttp://www.freemalaysiatoday.com/
category/nation/2012/10/30/anotherdeath-inprison-family-cries-foul/ (Family
cries foul)
14 ttp://www.freemalaysiatoday.com/
category/nation/2012/10/30/anotherdeath-inprison-family-cries-foul/ (Family
cries foul)
news/217677 (Man dies from ‘fall’ in lockup, family in disbelief)
16 http://www.nst.com.my/latest/7-relamembers-remanded-over-nigerianman-s-death-1.69299 (Rela members
remanded)
news/193938 (condo residents in fear
after foreigners rioted)
18 Kugan case: Constable gets 3 years
for ‘causing hurt’, Malaysiakini,
11/6/2012, http://www.malaysiakini.com/
news/200513 (last accessed: 11/11/2012)
19 Post-mortem: Kugan ‘starved and
beaten’ to death, Malaysiakini,
20 RM100m suit: Kugan’s mother to
testify on Nov 2, freemalaysiatoday,
30/10/2012, http://www.
freemalaysiatoday.com/category/
nation/2012/10/30/rm100m-suitkugans-mother-to-testify-on-nov-2/ (last
accessed: 11/11/2012)
71
9/18/13 3:49 PM
21 UN Code of Conduct for Law
Enforcement Officials, Adopted by UN
General Assembly resolution 34/169, 17
December 1979 (Article 3).
22 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).
23 http://www.theborneopost.
com/2012/10/09/cop-claims-trial-toillegal-firearm-discharge/ (cop claims trial
to illegal firearms discharge)
litee/malaysia/article/chemist-saysparang-found-in-aminulrasyids-car-wasclean/ (Parang found in car was clean)
25 http://www.thestar.com.my/story.aspx?se
c=nation&file=%2f2010%2f5%2f4%2fnat
ion%2f6186125 (friend recounts eventful
night out in car)
26 http://www.nst.com.my/latest/corporaljenain-acquitted-1.181572 (jenain
acquitted)
news/212621
category/nation/2012/10/23/cops-killednearly-300-since-2007/
29 SUARAM Press Statement: Cops Killed
298 People- Anyone Accountable (24
October 2012)
30 http://www.utusan.com.my/utusan/info.
asp?y=2012&dt=0118&pub=Utusan_
Malaysia&sec=Jenayah&pg=je_01.htm
(Geng 08 chief shot dead)
news/188332 (break-in trio shot dead by
police)
32 http://www.thejakartaglobe.com/archive/
malaysian-police-too-willing-to-shootindonesians-activists-say/
33 http://www.thejakartaglobe.com/
home/malaysian-police-too-willingtoshoot-indonesians-activists-say/514895
(Malaysian police too willing to shoot
Indonesians)
34 http://www.bharian.com.my/articles/
Polistembakmati2anggotaGengBuyung/
Article/ (Buyung Gang duo shot dead)
Polistembakmati2anggotaGengBuyung/
Article/ (Buyung Gang duo shot dead)
35 http://www.nst.com.my/nation/general/
two-killed-in-shoot-out-1.78492 (two
killed in Shootout)
36 http://www.thestar.com.my/News/
Nation/2012/06/01/Police-shoot-andinjure-man-armed-with-samurai-sword.
aspx (Police shoot and injure man with
samurai sword)
37 http://www.thejakartaglobe.com/
home/malaysian-policefatally-shoot3-indonesians-after-foiling-allegedburglary/525536 (police shot dead three
Indonesians in burglary attempt)
38 http://www.nst.com.my/latest/manbrandishing-samurai-sword-shotdead-1.104961 (Man brandishing
samurai sword shot dead)
news/208268
Nation/2012/09/07/Four-Gang-BajuHitam-robbery-suspects-shot-dead.aspx
(four gang suspects shot dead)
category/nation/2011/10/17/cop-killsman-outside-no-indians-allowed-pub/
(cop kills man outside ‘no indians’ pub)
72
9/18/13 3:49 PM
news/209391 (No inquest for fatal Ipoh
police shooting)
category/nation/2012/07/05/barbedwire-used-meant-for-war-zones/ (wargrade barbed wires used)
Nation/2012/06/12/Hisham-24-peopleincluding-12-cops-injured-during-Bersih30-rally.aspx (9,274 officers deployed)
53 Malaysiakini, “Can Palm Oil Fuel a
Molotov Cocktail?”, 20 November 2012
54 Three cops charged with ‘gang rape’,
Malaysiakini, 16/11/2012, http://www.
malaysiakini.com/news/214297 (last
accessed: 1/12/2012)
55 Home Minister won’t resign over rape
case, Malaysiakini, 17/11/2012, http://
www.malaysiakini.com/news/214406 (last
accessed: 1/12/2012)
45 http://www.malaysianbar.org.my/index.
php?option=com_docman&task=doc_
view&gid=3709&Itemid=332 (Bar
Council’s final report on Bersih 3.0)
category/nation/2012/05/31/scorpenescandal-secret-documents-sold-tofrench-company/ (secret documents sold
to french compay)
malaysia/article/cops-assaulted-12journalists-nuj-tells-bersih-panel (NUJ
tells bersih panel 12 journalists assaulted)
malaysia/article/raid-on-suaram-officecalled-off-due-to-invalid-warrant (Search
called off due to invalid warrant)
47 https://www.youtube.com/
watch?v=y8fzCE_gjAI (Al-Jazeera’s
camera crew busted by Malaysian police
at rally)
litee/malaysia/article/ros-cops-in-bid-toraid-suaram-office/ (Ros, cops fail to raid
suaram office)
category/nation/2012/05/01/explaindoctored-bbc-aljazeera-clips-astro/
(BBC’s Bersih 3.0 footage doctored by
Astro)
malaysia/article/amnesty-sees-linkbetween-suaram-shakedown-scorpenescandal (Amnesty International sees link)
news/196712 (Police aimed gun at
protestor)
Nation/2012/06/12/967-tear-gascanisters-fired-during-rally.aspx (967 tear
gas canisters used)
view&gid=680&Itemid=332
(recommendation 12 of the Police
Commission)
51 Malaysiakini, “Iban furious at attack on
land rights defender”, 17 March 2012
52 Sarawak Report, “Gangster State”, 19
August 2012
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9/18/13 3:49 PM
CHAPTER 3:
FREEDOM
OF SPEECH,
EXPRESSION &
INFORMATION
9/18/13 3:49 PM
F
reedom of expression and information
is the foundation of a working
democracy. Without free flow of
information in which opinions can be formed
and the freedom to express such opinions,
society will not be able to maintain a healthy
level of discourse where potentially good
ideas may be found.
Information from within the government can
also be arbitrarily declared “official secrets”
under the Official Secrets Act 1972. By
using this law, the government has declared
information of public interest such as the
signed agreements between companies and
the government during the privatisation of
water services.
In Malaysia, both freedoms are limited. On
the surface, Malaysians seem to enjoy a
certain degree of freedom of expression, but
there are many topics deemed too sensitive
to be discussed in the public sphere, such as
the role of the sultans in modern Malaysia and
the special privileges of the Malays.
Printing Presses and Publications Act 1984
(PPPA)
The colonial-era Sedition Act 1948 serves
as the government’s deterrent to any public
discussions about these so-called “sensitive”
issues and this law is often used, ostensibly
to safeguard racial and religious harmony, to
stifle individuals who voice out about issues
deemed to fall within the wide ambit of this
law.
However, the same treatment seems not to
apply to politicians from the ruling coalition
whenever they express opinions that can
be interpreted as similarly “seditious”,
showcasing double standards in the
enforcement of the law by the police and
Attorney-General.
The government continues to keep the flow
of information on a tight leash by controlling
the mainstream media through the Printing
Presses and Publications Act 1984 (PPPA)
or through private ownership by media
companies closely linked to the ruling
coalition.
Although the government has done away
with the need for newspapers and other
publishing companies to renew their licenses
every year, the Home Minister still has sole
discretion to revoke the licenses should the
respective newspapers or publishing houses
violate the PPPA.
The control over the printed press was
loosened slightly in 2012 when the Prime
Minister made good on his promise to
amend the PPPA. The amendments removed
the Home Minister’s absolute discretion
to regulate the printing and publishing of
newspapers. Once a permit to publish has
been granted, newspapers will no longer
have to renew it annually. However, the Home
Minister still retains the power to revoke a
newspaper’s permit should the latter run afoul
of the PPPA.1
Opposition parties and press freedom
advocates criticised the amendments as mere
cosmetic changes since the Home Minister
retains control over the printed media. Centre
of Independent Journalism (CIJ) issued a
press release saying that the government can
still issue show-cause letters and summon
editors to the Home Ministry at its whim and
fancy:
“The fact that publishing permits must
still be granted and the minister has
a right to revoke or suspend these
permits means that the government still
has effective control over the Malaysian
print media…Newspapers would still be
subjected to show-cause letters and be
required to answer summonses to the
Home Ministry if they published articles
that displeased the minister or ministry
officials. These show-cause letters may
still be used as a political tool by any
political party in government should a
newspaper run foul of its voter-base.
Editors would also still be subject to calls
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Freedom Of Speech, Expression & Information
from the ministry dispensing ‘advice’.
These aspects are not consistent with
the concept of a free media that is able
to serve the public interest by reporting
fairly and holding the government and
those in power to account.” 2
The CIJ also pointed out that the amendments
do not alter the fact that most major Malaysian
newspapers are owned and controlled by
political parties. The amendments therefore
do not address the additional barrier that
editors and journalists face in trying to report
in a fair and balanced manner.
Ownership and control: Control of the
media by the government
Malaysia’s major print and broadcast outfits
still remain heavily influenced by the Barisan
Nasional (BN) coalition which has ruled for
the past 55 years. The PPPA requires all
newspapers to have a permit before they can
publish. This has led to many newspapers
being owned, either directly or indirectly,
by BN component parties, which in turn has
led to a relative lack of media freedom in
Malaysia. Malaysia was rated “Not Free” in
Freedom House’s 2012 freedom of the press
data3 and ranked 145th out of 179 countries
in the 2013 World Press Freedom index
compiled by Reporters Without Borders4.
On 18 April 2012, amendments were made
to the PPPA which were part of Prime
Minister Najib Razak’s eve of Malaysia Day
address that promised “sweeping reforms”
to “accommodate and realise a mature,
modern and functioning democracy.”5 The
Home Minister will no longer have absolute
discretion to approve printing licences and
publishing permits, and judicial oversight
over the minister’s decisions was reinstated.
The fact that publishing permits must still be
granted and the minister has a right to revoke
or suspend these permits means that the
ruling government still has effective control
over the Malaysian print media. Newspapers
would still be subjected to show-cause letters
and be required to answer summonses to the
Home Ministry if they published articles that
displeased the minister or ministry officials.
Editors would also still be subject to calls from
the ministry officials and politicians dispensing
“advice”. These aspects are all not consistent
with the internationally-recognised concept
of a free and independent media that is able
to serve the public interest by reporting fairly
and accurately and holding the government
and those in power to account.
The proposed statutory media council is also
raising much cause for concern. While the
idea has surfaced even back in the 1970s and
a bill proposed in 2001, the latest government
proposal was reintroduced to select editors
and the National Union of Journalists by the
Attorney General in May 20126. While a selfregulatory media council can help to uphold
the standards of journalistic freedom and
independence, any media council initiative
led by the Government instead of by the
industry will be another layer of control over
media, especially when the PPPA, Official
Secrets Act and sedition Act are still in place
and are used to curtail freedom of expression.
The government control of print and
broadcast media can be seen in the continued
smearing of its critics. This can be seen daily
especially as the 13th General Elections nears.
Additionally, is also demonstrated by the fact
that Opposition Members of Parliament such
as Khalid Samad7 Theresa Kok8, Lim Guan
Eng9 and Anwar Ibrahim10 have all managed
to win their defamation suits against the
UMNO-owned Utusan Malaysia11.
Barring Journalists from Press Events by BN
and PR
There were also two instance of the Penang
and Kelantan state government restricting
media access to state assembly sittings. The
Democratic Action Party-led government
of Penang denied Utusan Malaysia from
attending and providing coverage of state
assembly meetings. In fact, the media are
required to fill out a special form and submit
certificate card media respectively. Though
12
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9/18/13 3:49 PM
motivated by Utusan’s alleged false reporting
of news of the three states led by the Federal
Opposition parties, the ban is a suppression
of the freedom of the press and an unhealthy
precedent which restricts media’s access to
state events.
Violence against Journalists
On 28 April 2012, tens of thousands of
Malaysians gathered in Kuala Lumpur for
Bersih 2, a rally demanding free and fair
elections. The rally’s demand to use Dataran
Merdeka (freedom square, a culturally
symbolic field in the heart of Kuala Lumpur
that is supposed to symbolize independence
and freedom) for the peaceful gathering
was denied by a court injunction at the very
last minute, thus thousands of extra police
manpower was summoned by the Home
Ministry to limit entry into the city on that day
and guard the perimeters to keep protesters
off the square. When some protesters
surrounding the sealed area of Dataran
Merdeka breached the barricades, the police
reacted with an all-out attack against the
protestors. Tear gas canisters were fired into
crowds consisting peaceful protesters,
including seniors and children, and several
journalists were attacked and beaten.
Expensive photographic, video and other
equipment relevant to documenting events at
the scene were destroyed and / or seized and
not returned.1 What is more troubling is that
the Home Minister regarded the seizures as
their standard operating procedure, a claim
which was refuted by the Inspector General of
Police. Injuries were also rampant.
Radzi Razak of the Sun, was admitted to the
hospital after injuries suffered from attacks
by at least seven policemen and had to have
his jaw wired. Arif Kartono, a photographer
for the Malay Mail was assaulted by six
uniformed police personnel. Wong Onn Kin,
a photographer with Guang Ming Daily, was
punched in the back of the head by three
policemen. P. Malayandy was assaulted by
five policemen. Al-Jazeera correspondent
Harry Fawcett alleged police violence when
his crew was documenting arrests and illtreatment of protesters. Fawcett told CIJ
that he and his colleagues were shoved and
held, and their camera equipment damaged
during the incident. Channel News Asia video
cameraperson Kenny Lew reported being
punched by police and had his tripod seized.
When probed further, it was clear that the
attacks against journalists were carried out
despite the fact that members of the press
wore clear identification as media providing
coverage of the protest. While two police
officers have been charged with using
criminal violence against the Guang Ming
Daily photographer, other assaults against
journalists and the loss and damage of media
equipment remain unaddressed. As of 31
December 2012, there has yet to be any
offer or consideration of far-reaching reforms
by Malaysia to provide better protection for
media and journalists as called for by the
UN Inter Agency Action Plan on Safety of
Journalists.
There were other instances of attacks against
journalists. At the Himpunan Hijau (Green
Rally against the rare earth Lynas plant in
Kuantan) on Penang Island on 28 February
2012, two journalists from Kwong Wah Yit
Poh, Adam Chew and Lee Hong Chun, were
attacked by pro-Lynas supporters. Both
lodged police reports on the attack and the
violence against journalists was condemned
by the National Union of Journalists Malaysia.
On 21 February 2013, some 60 disgruntled
People Progressive Party members ‘occupied’
the headquarters of Tamil daily Malaysian
Nanban to demand an apology over an article
which had allegedly defamed the party. The
“occupation” lasted for five hours, where one
of the daily’s reporter LK Raj assaulted by
several disgruntled PPP members. Malaysian
Nanban director Ahmad Mydin Sikandar
Batcha has said that he will take legal action
against the party.
We believes that such threats to media
professionals, whether by state or non-state
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actors, point towards the need for Malaysia
to develop legislation and mechanisms
favourable to freedom of expression and
information, and to implement existing
international rules and principles. The UN
Plan of Action on the Safety of Journalists and
the Issue of Impunity recognises the safety
of journalists is essential to upholding Article
19 of the Universal Declaration of Human
Rights that guarantees the right to freedom
of expression.
Clampdown on Dissenting Islamic Views:
Religious
interference
against
free
expression
The deteriorating state of freedom of
expression in the country is also manifested
by using religious interference against the
freedom of expression.
Post-2008 elections, the winning but badly
shaken BN coalition as well as new ethnoreligious Malay-Muslim groups have invoked
the “threat against Islam and Muslims” for
political mileage.
The upholding of state-sanctioned religious
orthodoxy have also served as a pretext for
seizures and banning of books on Islam.
Canadian author Irshad Manji’s1 books were
the most recent high-profile victim of this in
2012. In this instance, it led to the persecution
of a store manager for Border’s, Nik Raina Nik
Abdul Aziz, for selling a translated version
of Manji’s “banned” books, this despite the
manager being arrested on the same day as
the ban being announced.
Book banning as a supression of dissenting
views has been around for years. The works of
well-known authors such as Karen Armstrong,
Prof John Esposito, Salman Rushdie and Khalil
Gibran have been included in the banned list.
Local works by authors such as Faisal Tehrani
and Kassim Ahmad and a title published by
renowned Sisters in Islam have also been
banned under the PPPA under the pretext
of transgressing religious sensitivities. The
departments conducting the banning also
vary, from the Home Ministry’s Publication
and Quranic Texts Control Division to the 13
state-level religious authorities.
The year also saw 6 titles being banned by the
government. Table 3.1 lists the titles which
were banned by the government in 2012.
Table 3.1 : List of Banned Titles, 201215
No
Title
Author
Publisher
Printer
Language
Date of Ban /
Gazette number
1
Allah, Kebebasan
& Cinta
Irshad Manji
ZI Publications
Sdn. Bhd.
NexisPrint
Solution
Enterprise
Malay
29-05-2012
P.U. (A) 162
2
Allah, Liberty
And Love
Irshad Manji
Free Press
United
States of
America
English
29-05-2012
P.U (A) 162
3
Where did I
come from?
Peter Mayle
Kensington
Publishing
Corp.
-
English
02-03-2012
P.U. (A) 65
4
Pengantar
Ilmu-ilmu Islam
Murtadha
Muthahhari
Pustaka Zahra
-
Malay
01-03-2012
P.U. (A) 56
5
Dialog Sunnah
Syi'ah
A. Syarafuddin Al-Musawi
Penerbit Mizan -
Malay
01-03-2012
P.U. (A) 56
6
Tafsir Sufi Al-Fatihah
Mukadimah
Jalaluddin
Rakhmat
PT Remaja
Rosdakarya
Malay
01-03-2012
P.U. (A) 56
PT Remaja
Rosdakarya
Offset
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Despite Prime Minister Datuk Seri Najib
Razak’s pledge to repeal the Sedition Act
on 12/7/2012, the law continues to be used
against political opponents, civil activists, and
government critics.16
On May 18, the Kuala Lumpur Criminal
Investigation Department (CID) chief Datuk
Ku Chin Wah announced that she was being
investigated under the Sedition Act for her
remarks.18
The following cases demonstrate how
dissidents are often charged under the
Act while individuals aligned to the ruling
coalition are invariably let off scot-free.
This move was seen as an attempt to silence
her and it drew widespread condemnation
from civil society groups and opposition
political parties. The government decided not
to press charges.
1. Irene Fernandez
The government’s 6P amnesty programme to
legalise undocumented foreign workers was
implemented in July 2011, through which
foreign workers under the programme were
to be registered in a biometric system. The
programme’s implementation was marred by
delays and eventually it was terminated in
April 2012 after several deadline extensions.
However, migrant workers’ rights NGO
Tenaganita highlighted cases of alleged fraud
in 6P by companies masquerading as 6P
agents. They claimed that the agents would
take workers’ money and legal documents for
registration purposes but the workers would
later learn that they had not been legalised
and their documents withheld by the agents
without their consent.17
On May 7, Indonesian newspaper The Jakarta
Post published an article which quoted
Tenaganita executive director Irene Fernandez
as saying that Malaysia is not a safe country
for Indonesian workers. Her comments drew
flak from various parties, which accused her
of being unpatriotic, a traitor to her own
country, as well as an obstacle to Malaysia’s
and Indonesia’s bilateral relationship.
Fernandez claimed that she was misquoted
in the article and the newspaper published
an apology, but she largely stood by her
statement that Malaysia is not safe for migrant
workers due to a lack of clear policies to
protect migrant workers’ rights.
This incident was not the first altercation
between Irene Fernandez and the Malaysian
authorities. In 1996, she was arrested under
the PPPA for publishing a report in 1995
based on information given to her by a team
of journalists from local newspaper, The Sun,
who had uncovered evidence that 59 inmates
in the Semenyih immigration detention camp
had died of preventable diseases due to
negligence.
The subsequent trials and appeals spanned 13
years, with convictions, sentencing, appeals,
and finally, a full acquittal in November 2008.19
2. Datuk Seri Mohammad Nizar Jamaluddin
It was revealed in 2012 that the Johor Sultan
successfully outbid 9,998 others for the car
number plate WWW1 for RM520,000. Upon
learning the news, PAS politician Nizar posted
on micro-blogging website Tweeter that the
money could have been used more fruitfully
to help the poor in Johor. His tweet is shown
below:
“RM520,000 can be spent on poor Malays
in Johor who need help to survive, and
build 20 PPRT (Program Pembangunan
Rakyat Termiskin) homes!”20
The police swiftly initiated investigations on
May 30 under the Sedition Act against the
former Perak Menteri Besar. He was ultimately
not charged.21
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3. Syed Abdullah Syed Hussein Al-Attas
Syed Abdullah, better known as “Uncle
Seekers” for his television show as a
paranormal investigator, made several
allegedly defamatory postings about the
Johor Sultan and the state’s royal family in
July. He was arrested in Negri Sembilan under
the OSA on July 4 but was detained in Johor.22
The exact contents of his posts were unclear
and could not be verified.
He was released but subsequently rearrested
on July 10 but was then investigated under
the Sedition Act instead.23
4. Zulkiflee SM Anwar Ulhaque@ Zunar
Newsportal Malaysiakini cartoonist Zulkiflee
Anwar, also known as Zunar, was arrested for
sedition on 24/9/2010 for publishing books
deemed detrimental to public order. The
police raided his office in Brickfields, Kuala
Lumpur and seized 66 copies of his latest
book “Cartoon-o-phobia”, which was due to
be launched the following day.
The cartoon book touched on controversial
current issues such as corruption, the loss of
two jet engines in a Royal Malaysian Air Force
base, the controversial Scorpene submarine
deals, religious discrimination, and racism.24
The government had banned four of his
previous books, namely “1 Funny Malaysia”,
“Gedung Kartun”, “Perak Darul Kartun”, and
“Isu dalam Kartun”.
On 31/12/2012, the Kuala Lumpur High
Court ruled that the confiscation of his books
was illegal but that Zunar’s detention was
in accordance to the law. Calling it a partial
victory, Zunar and his lawyers also called for
the release of his previous titles.
However, international human rights NGO
Human Rights Watch (HRW) called the
verdict a disturbing infringement of the right
to free expression. Its deputy Asia director
Phil Robertson also noted the increased
censorship by the government in announcing
a ban on all political cartoons for a period of
two weeks before the general election.25
5. Ahmad Abd Jalil
On 2/11/2012, 27-year-old Ahmad Abd Jalil
was arrested for posting a comment on social
media website Facebook which allegedly
implied the Sultan of Johor is not fit to rule
the state. He was taken into custody in Cheras
and interrogated for hours in the Wangsa
Maju Police Station before being sent to
Johor to be charged for sedition.
Amidst rumours that Ahmad was to be
brought to the palace to apologise to the
Sultan, his family feared for his safety and
urged the police not to hand him over to
palace authorities. He was apparently not
informed of his charges other than that he
was being arrested under the Sedition Act.1
Ahmad was released without charge in Johor
but was rearrested shortly after and charged
under the Multimedia and Communication
Act 1998. His lawyers argued that the arrests
were illegal under the Criminal Procedure
Code and the Federal Constitution as he was
not informed of the grounds of his arrest.
Ahmad and his lawyers lodged a police
report claiming that the police had abused
their powers during his arrest. He also alleged
that he was subjected to mental torture
and threats to coerce him into a confession.
Ahmad was also denied legal access and
family visits. He claimed trial to two charges of
insulting the Sultan of Johor and denied that
the comments were attributed to him. Ahmad
was released on bail and if found guilty, could
face up to RM50,000 in fines or jail term of a
year or both.27
6. Ong Sin Yee
Civil society and opposition political parties
organised a protest rally on 30/8/2012, the eve
of independence day. An estimated 10,000
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people turned up for the rally championing
various causes around Malaysia such as the
Bersih 2.0 movement, the Stop Lynas Save
Malaysia movement, the Save Jalan Sultan
movement, and others. 28
Although there were no untoward incidences
during the rally, the police hauled up several
opposition leaders and civil society activists
for questioning and investigations under the
Sedition Act and the Public Assembly Act.
Among the eleven sought for questioning was
19-year-old Ong Sin Yee, who had allegedly
stepped on Prime Minister Datuk Seri Najib
Razak’s portrait during the rally.
The part-time model turned herself in at
the Johor Baru Police Station upon learning
that the police were looking for her and
the police promptly put Ong under arrest
and handcuffed her. She claimed she was
only in Kuala Lumpur on a planned trip and
had mistakenly thought the rally was a preindependence day parade.
history books and that they had flown the flag
on their own volition.
Zairi had posted on his blog the following:
“Pejuang haluan kanan atau kiri mereka
tetap sama2 berjuang. Mungkin cara lain,
kaedah berbeza tetapi siapa lah kita nak
kata yang tue pejuang, yang neh bukan.
Mari lah kita iktirafkan mereka seme2 yang
pernah berjuang - Fighting from the right
wing or left wing, they fought together.
Maybe their methods are different but
who are we to say who’s right or wrong.
Let’s give recognition to those who fought
together.)”.30
For their action, the duo was investigated
under Section 9 (1) of the Sedition Act while
the Prime Minister continued to accuse them
of campaigning to change the nation’s flag.31
Double standards in Allowing Racism in
UMNO Press
Ong issued a public apology with the
assistance of an opposition political party
the next day. However, it was learned that
she had been instructed to sign a document,
purportedly admitting to the offence in Johor
Baru before being sent to the Kuala Lumpur
Dang Wangi police district headquarters.29
While critics of the government were charged
under one law or another for legitimate and
lawful dissent, politicians and public figures
aligned to the ruling coalition could get away
with impunity. In contrast, the following is a
list of cases in which “seditious” violators of
the Act were let off the hook.
7. Sang Saka Malaya controversy
1. Utusan Malaysia
During the Janji Demokrasi rally, Mohd Zairi
Shafa’ai and Muhammad Nasir Abu Bakar
had allegedly flown a pre-independence flag
which was not the national flag. Politicians
from the ruling coalition were quick to accuse
the opposition of being responsible and
claimed they had an intention to change the
national flag if they came into power.
Utusan Malaysia is a Malay-language daily
owned by UMNO, the dominant party in
the ruling coalition. The newspaper is widely
considered as the party’s mouthpiece and has
consistently published inflammatory articles
that incite hatred between the different races
in Malaysia and also undermine religious
tolerance.
The two 24-year-old youth insisted the act was
merely to remember other freedom forces
such as the communists who had also fought
for the country’s independence against the
British colonial power, a fact they claimed had
not been given due recognition in the local
Among the articles that Utusan Malaysia
published were a declaration that it is sinful
for Muslims to vote for opposition party DAP;
an allegation that Christians in the country are
working with the DAP to turn Malaysia into a
Christian nation and install a Christian Prime
Minister.32
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The newspaper also has a track record of
publishing allegedly false news defaming
opposition politicians, resulting in a litany of
lawsuits against the paper through the years.
grows in terms of political and economical
power. He claimed that the growing demands
of the community could cause another racial
riot, such as happened on May 13, 1969.39
33 34 35
3. Infringement of privacy
While such articles in Utusan Malaysia can
likewise be interpreted as “seditious”, the
Attorney General and the Police did not see
fit to charge the paper under the Sedition
Act. All that Utusan Malaysia received was a
warning from the Home Ministry in 2011 for
publishing the alleged Christian plot. 36
2. Perkasa
In the aftermath of the Bersih 3.0 rally, about
10 members of petty traders group Ikhlas
staged a protest on 10/5/2012 in front of
Bersih 2.0 co-chairperson Datuk S Ambiga’s
residence in Bukit Damansara, Kuala Lumpur.
They claimed to have lost some RM200,000 in
business due to the rally.
The “Malay rights” group Perkasa was
responsible for making incendiary statements
and acts in 2012. In late February, the antiLynas movement organised a rally in Penang
in which the Chief Minister of Penang Lim
Guan Eng also attended. About 100 Perkasa
and UMNO members held a counter protest
at the same venue.
It was claimed that the latter used racial
slurs against the participants at the rally such
as ‘Cina babi’ (Chinese pigs), ‘Cina Pinang
Bodoh’ (Stupid Penang Chinese)’, and also
allegedly threatened Lim by waving their fists
at him saying ‘you jaga’ (watch your back).
Lim lodged a police report on the incident
and claimed that the group had also beaten
and injured two journalists from the Chinese
press. No action was taken against the group
for the incident.37
Then on 10/5/2012, Perkasa held a mock
funeral for Lim at his residence and at his office
as a provocation against his administration of
the Penang government. Opposition parties
condemned the stunt as akin to a death
threat. They also noted the partiality of the
police who did nothing to stop the unruly
mob.38
In December, Perkasa chief and founder
Datuk Ibrahim Ali made a racially provocative
statement that the ethnic Chinese of Malaysian
will become a security threat if the community
(Continuous harassment towards Ambiga after Bersih 3.0 rally at
in front of her house)
On April 6, 2012, verbal attacks against
Ambiga from right-wing Malay organisation,
Perkasa. In an interview published on 6 April
2011, Perkasa Youth chief Irwan Fahmi was
quoted as saying:
“I will fight to whatever extent… I am
going to fight her [Ambiga]. I do not care.
I am not a politician, I have nothing to
lose.”
He said that Ambiga “supported
Seksualiti Merdeka… and so many other
issues, going against Islamic principles. I
cannot accept it anymore. She is the antiChrist for Muslims.”
He also said “I hope that all Muslims in
this country will stay true to their religion
and stay away from Bersih 3.0 because it
is led by someone who is not only a traitor
to the country but also to Muslims.”40
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On 17 April 2012, www.bersih.org was
attacked in an apparent distributed denialof-service (DDoS) attack. The site became
inaccessible for 13 hours. Such attacks are
an attempt to deny the right to freedom of
expression.41
On 21 April 2012, posters depicting Ambiga
and Pak Samad were burned. The rally was
organised by a non-government organisation
called Jaringan Melayu Malaysia (JMM) rally
against homosexuality held at Universiti
Putra Malaysia (UPM) . At the event, which
was fuelled by hate-speech, slogans such as
“Reject Ambiga, Reject LGBT” were shouted
and posters depicting Ambiga and Pak
Samad were burned.42
On 23 April 2012, the former deputy
president of a Malaysian political party,
PAS, Nasharuddin Mat Isa was reported in a
mainstream English-language newspaper as
saying that Ambiga’s perceived support for
“LGBT activities” meant that she was a threat
to society. He was quoted as saying that,
“Based on an edict by (prominent Muslim
cleric) Yusof al-Qardhawi, one cannot eat
or drink with them, let alone be a follower.”
He said of those supporting the removal of
laws that criminalise homosexuality that, “As
Muslims, we are responsible to declare a war
against this and not keep our mouths shut.”43
On 4th May 2012, the deputy chief head
of the Election Commission, Wan Ahmad
Wan Omar, reportedly said that the Election
Commission would not engage with BERSIH
and, referring to Ambiga, said, “We will
not deal with the destroyer of democracy
again.”44
On 5th May 2012, Shopping centre
management bodies directed shop owners
to close their businesses on the day of the
BERSIH 3.0 rally. Claiming that huge losses
were sustained owing to these closures,
Malaysia Small and Medium Entrepreneurs
Alliance (Ikhlas) president Mohd Ridzuan
Abdullah was reported to have said, “We
urge the government to arrest Ambiga and
chase her out of the country…If the Home
Ministry fails to do it, we will stage a rally in
front of Ambiga’s house and do business over
there.”45
On the same day, In Baling, 500 members of
purportedly non-government organisations,
although with ties to the government,
including Perkasa, the Malaysian Youth
Council, JKKP Baling, Baling Siamese
Association, Pekida, Baling Women’s and
Wives Association and Puteri Umno and
Malay traders gathered to burn an effigy of
Ambiga and opposition leader Anwar Ibrahim
and called for the government to revoke
Ambiga’s citizenship.46
In a gathering in Kuala Terrenganu on 7 May
an image of Ambiga was burned. Gerakan
Kebangkitan Rakyat (Gertak) chairman Datuk
Razali Idris reportedly said, “We condemn
Ambiga’s action, which has become the
source of disunity among the people in the
country now. She is also a supporter of the
LGBT (lesbian, gay, bisexual and transgender)
group. Therefore, we urge the government
to take stern action against her, including
stripping her of citizenship. We don’t want
individuals like her to destroy the country.”47
The government-owned New Straits Times
newspaper favourably reported the gathering
as “peaceful” while depicting a photo of
Ambiga’s burning image.
(Burger stall outside Ambiga’s house, Photo courtesy of
Malaysiakini)
84
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On the 10th May, Malaysia Small and Medium
Entrepreneurs Alliance (Ikhlas) set up a burger
stall outside Ambiga’s personal residence
protesting that they had lost earnings during
the BERSIH 3.0 public rally.48 A video depicts
at least one of the protesters aggressively
shouting towards Ambiga’s house.49 Ambiga
has said that since this protest, several people
have come to her house requesting free
burgers.50 The traders threatened that they
would hold a bigger protest in front of her
house on 24 May 2012.
On 14 May, Referring to a protest by traders
outside Ambiga’s house on 10 May, deputy
police chief Khalid Abu Bakar was reported to
have said in a press conference, “Well, there
is no offence. What offence? If you want to
sit in front of her house without disrupting
other people, there is no offence.” After a
journalist pointed out that it was an invasion
of privacy, Khalid Abu Bakar said “Which
privacy? They didn’t enter her house, they
were in public space”51. Khalid Abu Bakar
was also reported to have said, “Police will
not take action against them. Under the
Peaceful Assembly Act 2011, people can
hold a gathering as long as they have given
notice and acknowledged to the police where
to gather.”52 It is appalling that the deputy
police chief does not recognise the actions
of the traders as blatant intimidation and
harassment.
In the morning of 15 May, about ten people
from the Malay Armed Forces Veterans
Association (PVTM) did ‘bottom exercises’
in front of Ambiga’s house.53 The exercises
consisted of the men leaning over and
shaking their bottoms in the direction of
Ambiga’s house. The PVTM president, Mohd
Ali Baharom, reportedly referred to Ambiga
as the enemy of the nation and said, “We
Armed Forces veterans have the right to
protest against an ‘enemy’ who tried to smear
the nation’s name.”54 Mohd Ali Baharom was
also reported to have said, “We are giving
a stern warning to Ambiga to immediately
apologise to the Malaysian people regarding
Bersih and free sex.”55 Only after these incidents did the police and
Kuala Lumpur City Hall (DBKL) enforcement
officers start keeping watch at the housing
area to prevent such protests.56
(Malay Armed Forces Veterans Association (PVTM) did ‘bottom exercises’ in front of Ambiga’s house, Photo by Malaysiakini)
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Repressive laws against internet freedom
57
Article 10 of the Malaysian Constitution
guarantees the freedom of speech,
expression, assembly and association, with
some limiting provisions which can be put
in place by the parliament under the pretext
of national security, foreign relations, public
order and morality. However, various laws
have been created by the current regime
to limit freedom of expression. One such
example is section 114A of the Evidence Act.
Section 114A is the second of two
amendments made to Malaysia’s Evidence
Act 1950 that was gazetted in July 2012.
Section 114A deals with allegedly illicit or
harmful content on the Internet. In short, the
amendment enables law enforcement officials
to swiftly hold someone accountable for
publishing seditious, defamatory, or libellous
content online. The problem is that the list
of those who can be held accountable is too
broad as to be easily abused.
Section 114A holds the following people
accountable for publishing content online:
• those who own, administrate, or edit
websites open to public contributors, such
as online forums or blogs;
• those who provide webhosting services or
Internet access; and
• those own thecomputer or mobile device
used to publish content online. Thus if
such content is traced back to a person’s
username, electronic device, and/or
WiFi network, Section 114A presumes
you are the publisher. It renders Internet
intermediaries–parties that provide online
community forums, blogging and hosting
services–liable for content that is published
through their services. It allows hackers
and cyber criminals to be free by making
the person whose account/computer is
hacked liable for any content/data which
might have changed.
content. This provision goes against the UN
Human Rights Council’s first Resolution on
Internet Free Speech which affirms that the
same rights that people have offline must also
be protected online.
Malaysia Internet Blackout Day on August
14, 2012, was a series of coordinated
protests occurred against a proposed
laws in amendment of the Section 114A is
the second of two amendments made to
Malaysia’s Evidence Act 1950 by the Centre
for Independent Journalism (CIJ) member of
IFEX and SEAPA, initiative, this campaigning
against the newly introduced Section 114A
to the Evidence Act 1950 Malaysia Internet
Blackout Day by the protesters also placed
their poster in their sites based on content is
gaining momentum and has received more
endorsements from prominent websites,
netizens, and politicians were reported
globally58.
The amendment of section 114A “makes
individuals and those who administer, operate
or provide spaces for online community forums,
blogging, and hosting services, liable for
content published through its services”. This
presumption of guilt goes against a
fundamental principle of justice innocent
until proven guilty and disproportionately
burdens the average person who may not
have the resources to defend himself in court
and enables law enforcement officials to
hold publishers of websites accountable for
seditious, defamatory, or libellous postings
even if they are not the actual authors of the
content.
Internet Blackout Day was also supported
by media sites Free Malaysia
Today,
Malaysiakini, Digital News Asia, The Nut
Graph, BFM 89.9, Merdeka Review, and party
organ news sites Harakah Daily and Keadilan
Daily.
Section 114A disproportionately burdens
average Internet users who are wrongfully
accused of publishing seditious or defamatory
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9/18/13 3:49 PM
Banning of Films, Concerts and Crossdressing
In 2012, an Erykah Badu concert was cancelled
because it was found that she had tattooed
the word Allah on a part of her body59.
On April 6, 2012, Information Communications
and Culture Minister Rais Yatim said in a Twitter
post that there is no censorship regarding
the portrayal of LGBT characters on stateowned TV channels, including the portrayal
of effeminate men; however the ministry has
the right of select content suitable for the
Malaysian public60.
The rights to sexual expression and choice
of dressing are also seriously violated
in Malaysia. Under several state Syariah
enactments, it is an offence for men to
dress as women.3 Exacerbating the existing
restrictions, in October 2008 the National
Fatwa Council issued a fatwa (edict) which
ruled that it is forbidden in Islam for young
women to behave like men and engage in
lesbian sex.
Positive Developments in terms of court
cases that have been filed
In 2012, Malaysian courts partially advanced
the right of free expression. Malaysiakini,
the largest online newspaper in Malaysia,
had repeatedly and unsuccessfully applied to
publish a daily print version. On October 1,
the Kuala Lumpur High Court ruled the home
minister’s refusal was “improper and irrational”
and the application should be resubmitted.
In a significant statement contradicting the
prevailing government view, the judge said
that a license to publish was “a right, not a
privilege.” The attorney general’s chambers
and the Home Ministry appealed the court’s
decision.
to challenge the government’s decision. On
25 August 2009, the High Court allowed
SIS’s application for a review of the ban. The
hearing commenced on 28 October 2009. SIS
won a significant victory in July when the Court
of Appeal dismissed a government appeal to
overturn a 2010 High Court decision lifting the
ban on Muslim Women and the Challenge of
Islamic Extremism, a book of essays originally
banned in 2008.
Conclusion
Freedom of expression and information
continues to be restricted despite the Prime
Minister’s attempt at reform. Basically,
the reform did not go far enough and the
institutions that obstruct such freedoms are
still in place.
Activists and politicians who are critical of
the government still have to be constantly on
the alert as the government can charge them
with a variety of laws that are broadly phrased
and thus open to interpretation and abuse.
As long as laws such as the Sedition Act,
OSA, and the PPPA remain, the freedom of
Malaysians to express their opinions and the
freedom of information will be denied.
The heightened politicisation of race and
religion were repeatedly used by the
government as a justification to restrict
the freedoms of speech, expression and
information in 2012, while the BN’s attempts
to regain its political control in the country
resulted in the stifling of dissenting views and
opinions.
Sisters In Islam (SIS), whose book “Muslim
Women and the Challenge of Islamic
Extremism” was banned by the government
in 2008, filed a judicial review at the Kuala
Lumpur High Court in December of that year
87
9/18/13 3:49 PM
End notes
1
category/nation/2012/04/18/ministrytables-amendments-to-press-act//
(Ministry tables PPPA amendments)
2
http://cijmalaysia.org/2012/04/18/
press-still-shackled-despite-pppaamendments/ (Press still shackled
despite PPPA amendments)
3
http://www.freedomhouse.org/reporttypes/freedom-press
4
http://www.themalaysianinsider.com/
malaysia/article/malaysia-falls-to-recordlow-145th-in-press-freedom-index
5
http://thestar.com.my/news/story.
asp?sec=nation&file=/2011/9/16/
nation/20110916070850
6
http://thestar.com.my/news/
story.asp?file=/2012/5/13/
nation/11282779&sec=nation
7
malaysia/article/khalid-samad-winsdefamation-suit-against-utusan
8
http://thestar.com.my/news/story.
asp?file=/2012/10/8/nation/2012100814
3150&sec=nation
9
malaysia/article/guan-eng-wins-seconddefamation-suit-against-utusan
12 Submission by Centre for Independent
Journalism (CIJ) Malaysia to the UN
Universal Periodic Review of Malaysia
Seventeenth Session of the Working
Group of the Human Rights Council,
October - November 2013
14 http://epq.kdn.gov.my/e-pq/index.
php?mod=public
malaysia/article/najib-sedition-act-to-berepealed (Sedition Act to be repealed)
category/nation/2012/05/04/blacklistedfirm-cheating-migrants-says-tenaganita/
(Blacklisted firm cheating migrants)
17 http://www.ntv7.com.my/index.
php//7edition/local-en/POLICE_
PROBING_IRENE_FERNANDEZ_
FOR_SEDITION_OVER_UNSAFE_
MSIA_REMARK.html (Irene Fernandez
investigated for sedition)
18 http://www.thestar.com.my/story.aspx?
file=%2f2008%2f11%2f24%2fnation%
2f20081124141426&sec=nation (irene
fernandez acquitted)
10 http://www.nst.com.my/latest/
anwar-wins-defamation-suit-againstutusan-1.205041
malaysia/article/nizar-my-tweet-was-notseditious (My tweet was not seditious)
11 UMNO whose support base is the
Malay ethnic community is the leading
party in the Barisan Nasional coalition
government.
Nation/2012/05/30/WWW-1-bid-Nizarbeing-investigated-under-Sedition-Actover-remarks-about-Johor-Sultan.aspx
(Nizar investigation for sedition)
88
9/18/13 3:49 PM
21 http://www.iphone.malaysiandigest.
com/news/36-local2/65862-johor-policeto-tell-all-on-uncle-seekers-arrest.html
(police to tell all on uncle seekers arrest)
31 http://www.utusan.com.my/utusan/
Politik/20120808/po_01/Haram-berdosaundi-DAP (Prohibited and sinful to vote
DAP)
Nation/2012/07/12/Uncle-Seekersrearrested-probe-now-on-sedition.aspx
(uncle seekers rearrested under sedition)
Nation/2012/06/22/Utusan-Malaysiato-pay-RM200000-to-Guan-Eng-fordefamation.aspx (Utusan guilty of
defaming Lim Guan Eng)
23 http://www.thestar.com.my/story.aspx
?file=%2f2010%2f9%2f24%2fnation%
2f20100924195251 (Zunar arrested)
category/nation/2012/07/31/partialvictory-for-cartoonist-zunar/ (partial
victory for zunar)
malaysia/article/arrested-youths-familyfear-johor-palace-interference-urgecops-to-help (arrested youth’s fear johor
palace interference)
26 http://www.fz.com/content/ahmadlodges-report-about-police-power-abuse
(Ahmad lodges report on alleged police
power abuse)
category/nation/2012/08/30/2000-atjalan-sultan-mrt-protest/ (10,000 at Janji
Demokrasi)
category/nation/2012/09/06/girl-sayssorry-for-stepping-on-pms-photo/ (Girl
says sorry for stepping on OM’s photo)
29 http://amenoworld.blogspot.
com/2012/09/ini-sebabnya-kamikibarkan-sang-saka.html (This is why we
flew the Sang Saka)
malaysia/article/changing-the-flag-aheinous-act-says-pm (changing the flag a
heinous act)
33 http://www.thesundaily.my/news/278459
(Syed Husin Ali sues Utusan)
34 http://www.kualalumpurpost.net/teresakok-sues-chamil-wariya-and-utusan-fordefamation/ (Teresa Kok sues Utusan)
malaysia/article/utusan-let-off-withministry-warning (Utusan let off with
warning)
malaysia/article/guan-eng-umnoperkasa-members-attacked-reportersat-anti-lynas-rally (Perkasa attacked
reporters)
category/nation/2012/05/11/funeralrites-for-lim-akin-to-death-threat/ (funeral
rites akin to death threat)
malaysia/article/growing-chinese-cloutmay-cause-new-may-13-says-ibrahim-ali
(growing chinese clout may cause second
May 13)
39 “Perkasa warns Muslims away from
Bersih 3.0”, The Malaysian Insider, 6 April
2012 (http://www.themalaysianinsider.
com/malaysia/article/perkasa-warnsmuslims-away-from-bersih-3.0/)
40 “Press statement regarding DDOS attack
on BERSIH 2.0 website”, BERSIH, 18
April 2012 (http://bersih.org/?p=4730)
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9/18/13 3:49 PM
41 “1,000 vent anger at anti-LGBT rally”,
Malaysiakini, 21 April 2012 (http://www.
malaysiakini.com/news/195626)
50 “Protest at Ambiga’s house ‘not criminal
offence’”, Malaysiakini, 14 May 2012
(http://malaysiakini.com/news/197852)
42 ‘Ambiga not fit to lead Bersih’”, New
Straits Times, 23 April 2012 (http://www.
nst.com.my/nation/general/ambiga-notfit-to-lead-bersih-1.76717)
51 “Deputy IGP: Hawkers free to peddle
wares in front of Ambiga’s house”, The
Star, 14 May 2012 (http://thestar.com.
my/news/story.asp?file=/2012/5/14/natio
n/20120514200101&sec=nation)
43 “EC snubs Bersih again, calls Ambiga
‘ruiner of democracy”. Malaysiakini, 4
May 2012 (http://www.malaysiakini.com/
news/196953)
44 “Indignant traders want Ambiga
arrested”, Malaysiakini, 5 May 2012
and “Traders demand compensation
from Ambiga”, New Straits Times, 5 May
2012 (http://www.nst.com.my/latest/
traders-demand-compensation-fromambiga-1.80980)
45 “Revoke Ambiga’s citizenship, urged
NGOs”, New Straits Times, 5 May
2012 (http://www.nst.com.my/latest/
revoke-ambiga-s-citizenship-urgedngos-1.80942)
46 “Call to strip Ambiga of citizenship”,
New Straits Times, 8 May 2012 (http://
www.nst.com.my/nation/general/call-tostrip-ambiga-of-citizenship-1.81704)
47 “Traders stage ‘burger protest’ in
front of Ambiga’s house”, The Star,
11 May 2012, (http://thestar.com.
my/news/story.asp?file=/2012/5/11/
nation/11270448&sec=nation)
48 “Traders ‘grill’ Ambiga with burger
protest,” Malaysiakini, 10 May 2012
49 “Army veterans do ‘butt exercises’
at Ambiga’s house”, Malaysiakini, 15
May 2012 (http://malaysiakini.com/
news/197928)
52 “Ex-army veterans ‘exercise’ outside
Ambiga’s house”, The Star, 15 May
2012 (http://thestar.com.my/news/story.
asp?file=/2012/5/15/nation/2012051511
2217&sec=nation)
53 “Veteran soldiers flex bottoms at
Ambiga”, The Malaysian Insider, 15 May
2012 (http://www.themalaysianinsider.
com/malaysia/article/veteran-soldiersflex-bottoms-at-ambiga/)
54 “Army veterans do ‘butt exercises’
at Ambiga’s house”, Malaysiakini, 15
May 2012 (http://malaysiakini.com/
news/197928)
Nation/2012/05/16/DBKL-officers-copskeep-watch-near-Ambigas-house.aspx
(Cops and DBKL officers keep watch
outside Ambiga’s house)
57 http://en.wikipedia.org/wiki/Malaysia_
Internet_Blackout_Day_(2012)
58 http://articles.timesofindia.indiatimes.
com/2012-02-29/news-andinterviews/31110500_1_tattoo-body-artinsult
90
9/18/13 3:49 PM
59 Rais Says No Ban On LGBT Characters
On Government TV Channels”. Bernama.
2012-04-06. Retrieved 2012-04-07.
60 In SUARAM’s Human Rights Report
2007, we documented the case of Ayu, a
transsexual, who was seriously beaten by
officials from the Melaka Islamic Religious
Affairs Department (Jabatan Agama
Islam Melaka, JAIM) for committing
the “offence” of “men dressing up as
women in a public space”. See SUARAM
(2008) Malaysia Human Rights Report
2007: Civil and Political Rights, Petaling
Jaya: SUARAM Kommunikasi (p. 127).
61 Norani Othman (2005) Muslim Women
and the Challenge of Islamic Extremism,
Petaling Jaya: Sisters In Islam.
91
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92
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CHAPTER 4:
FREEDOM OF
ASSEMBLY
9/18/13 3:49 PM
M
alaysians’
constitutional
right
to assemble continue to be
eroded even though Section 27
of the Police Act 1967, which requires rally
organisers to apply for a permit to assemble,
was repealed in April. It was replaced by the
Peaceful Assembly Act 2012 (PAA), which was
passed in the parliament despite objections
by civil society.
Instead of opening up more democratic
space, the PAA is more restrictive than before.
It seeks to restrict public demonstrations in
enclosed spaces such as stadiums and halls
as most public areas are now off limits and the
law totally bans “street rallies”.
As the year progressed, the government
used the new law for selective prosecutions
against opposition politicians and popular
movements that are critical of the government
or its policies. On the other hand, politicians
and public figures supportive of the ruling
coalition were not subject to the same
treatment.
Peaceful Assembly Act 2012
The PAA is justified as “…an Act relating to
the right to assemble peaceably and without
arms, and to provide restrictions deemed
necessary or expedient relating to such right
in the interest of the security of the Federation
or any part thereof or public order, including
the protection of the rights and freedoms
of other persons, and to provide for related
matters.”
The law was rushed through Parliament
without public consultation, much like
SOSMA, resulting in a law which is more
restrictive than Section 27 of the Police Act.
Among other prohibitions, the government
has made rallies more difficult to organise
instead of allowing the people to demonstrate
peacefully. The PAA totally bans “street
protests”, which are identified as “an open air
assembly which begins at a specified place and
consists of walking in a mass march or a rally
for the purpose of objecting to or advancing
a particular cause or causes”. A long list of
“prohibited places” is elicited under the law
while rallies in densely populated areas are
practically off-limits. These prohibited places
include:
• Dams, reservoirs, and water catchment
areas
• Water treatment plants
• Electricity generating stations
• Petrol stations
• Hospitals
• Fire stations
• Airports
• Railways
• Land public transport terminals
• Ports, canals, docks, wharves, piers,
bridges, and marinas
• Places of worship
• Kindergarten and schools
The PAA states that any rally within 50 metres
of any such places will be deemed illegal and
those who break this prohibition are liable to
face the full brunt of the law.
The police are also granted discretion to
impose conditions on a rally purportedly for
the “rights and freedom of other persons”.
Restrictions and conditions may include any,
several, or all of the below:
• the date, time and duration of assembly;
• the place of assembly;
• the manner of the assembly;
• the conduct of participants during the
assembly;
• the payment of clean-up costs arising out
of the holding of the assembly;
• any inherent environmental factor, cultural
or religious sensitivity and historical
significance of the place of assembly;
• the concerns and objections of persons
who have interest; or
• any matters of the Officer in Charge of
the Police District deems necessary or
expedient in relation to the assembly.
The last clause of listed conditions which
may be imposed above is a cause for alarm
as past experiences have revealed that such
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9/18/13 3:49 PM
Freedom Of Assembly
ambiguous terms could be used as a catch-all
for the police to arbitrarily set unreasonable
restrictions on an assembly.
Should an organiser fail to comply with any
of the conditions imposed by the police,
an officer may arrest him or her without
warrant. Furthermore, the police are granted
widespread powers in dispersing an assembly.
Section 21 of the PAA states that a police
officer may issue an order to disperse under
the following circumstances:
• the assembly is held at a prohibited place
or within 50 metres from the limit of a
prohibited place;
• the assembly is or has become a street
protest;
• any person at the assembly does any
act or makes any statement which has a
tendency to promote feelings of ill-will or
hostility amongst the public at large or
does anything which will disturb public
tranquillity;
• any person at the assembly commits any
offence under any written law;
• the participants did not or do not comply
with the restrictions and conditions
imposed under section 15; or
• the participants are engaging in, or about to
engage in, unlawful or disorderly conduct
or violence towards persons or property.
Once an order to disperse is given, it is
stated in the same section that the police
may use “all reasonable force” to disperse
an assembly. What constitutes “reasonable
force” is not stated in the law, which means
it can be open to interpretation and possible
abuse.
Last but not least, violators of the PAA can
face heavy fines of up to RM20,000 for
transgressing any of the provisions. With all
the conditions prescribed by the Act, it makes
a mockery of the right to peaceful assembly.1
Notable cases of the use of PAA in 2012
The newly-minted law was quickly put to use
in 2012. It was mostly selectively applied
against critics of the government but the
police were noticeably partial towards rallies
organised by pro-government parties, even
when they had clearly violated the same
provisions of the PAA.
Bersih 3.0
The new law was tested on April 28 during
the Bersih 3.0 rally, when more than 100,000
marched through the streets of Kuala Lumpur
calling for free and fair elections. When the
rally converged at Dataran Merdeka, the
police and Kuala Lumpur City Hall declared
the site off-limits and barricaded it from the
marchers.
What started as a peaceful rally with carnivallike atmosphere quickly degenerated into
chaos when some participants breached a
blockade to Dataran Merdeka. This prompted
the police to clamp down on protestors.
Excessive force was used to quell the protest,
and the police seemed to be aiming to trap
participants rather than allowing them to
disperse peacefully. The police pursued
participants while issuing tear gas canisters
well beyond Dataran Merdeka.
This show of police brutality on the day has
been well-documented on the internet.
Videos and pictures of police officers beating
up participants went viral on the internet,
causing public outcry. In a Parliamentary
sitting in November, it was revealed that 9,
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274 police officers were deployed on the day,
a total of 967 canisters of tear gas were used,
and that the government had spent RM1.8
million to clamp down on the protest.
Merlimau fracas
An opposition high-tea event organised on
May 26 in Merlimau, Malacca, which also
featured a talk by Bersih 2.0 co-chairperson
Datuk S Ambiga, was heckled and attacked
by local UMNO and Perkasa members.
When the event ended at about 7pm, the
angry mob threw eggs and stones at two
cars as they left the scene, causing some
damage to them. In one of the cars was
Banda Hilir assemblyperson Tey Kok Kiew
from opposition party DAP. The riot police
arrived soon after and provided safe exit for
participants of the event.
Both Perkasa and UMNO denied that they had
anything to do with the incident, and instead
claimed sabotage. Perkasa chief Ibrahim Ali
said agents planted in the crowd threw eggs
and stones to make the group look bad.
Nobody was held responsible or apprehended
by the police.
Occupy Pahang MB office
(Bersih rally 3.0 on 28 April 2012, Photos courtesy of
Malaysiakini)
A total of 512 participants were arrested
during the protest, and initially, they were
denied legal access. The detainees alleged
that they were interrogated on matters totally
unrelated to their arrest under the PAA. They
were all later released in the early hours of
morning.
The police also made clear attempts to deny
media access to prevent documentation
of police brutality during the rally. This
move violated Section 24 of the PAA, which
states that “…any media representative
may have reasonable access to a place of
assembly and use any equipment to report
on the assembly”. It should be noted that the
wording of this clause is ambiguous and can
be subject to interpretation.2
A group of 31 protestors who were
disgruntled with the inaction of the state
government over their complaints staged a
sit-in in front of Pahang Menteri Besar Datuk
Seri Adnan Yaakop’s office on July 10, vowing
to occupy the space until their problems had
been solved.
The police promptly arrested the group, which
had erected a tent near the state government
offices. The group consisted of 13 men, 12
women, and six children. It was alleged that
they had their urine tested for drugs, which
had nothing to do with their assembly.3
English daily The Star said the police had
persuaded the group to disperse and only
arrested them after they had refused to do
so.4
The police was not held to account for their
actions during Bersih 3.0.
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Freedom Of Assembly
Janji demokrasi organisers investigated
During the run-up to the annual 55th Independence Day celebration, the government unveiled
the “Janji ditepati” (promises fulfilled) celebration theme, which was roundly criticised by
opposition parties and civil society for politicising a national celebration event.
(Janji Demokrasi, Photo courtesy of Malaysiakini)
Various NGOs organised a rally to protest
the theme on the night of Aug 30, the eve of
Independence Day. The rally, dubbed “Janji
demokrasi”, drew about 10,000 protestors
and no untoward incidences happened.
Organisers of the rally, which included
prominent figures from the opposition and
civil rights societies, were subsequently
investigated under the PAA.
Several controversies also surfaced in the
aftermath of the rally, one involved two
persons who were investigated for “sedition”
because they had flown a pre-independence
flag of Malaya called the “Sang Saka Malaya”,
and another for mooning and stomping on a
portrait of Prime Minister Datuk Seri Najib
Razak.5
Warga Aman chairperson A Rajaratnam
who was one of those investigated said the
police asked ambiguous questions during
the interrogation. He refused to answer them
and said he would only do so in court.6 The
government did not press any charges.
Protest at DAP’s Hari Raya Open House
Opposition party DAP held a Hari Raya
open house on Sept 4 in Penang at Jalan
Pattani, which was stormed by a group of
20, who claimed to be hawkers working
at the Esplanade. The hawkers said they
were disgruntled about their relocation and
were frustrated with the state government’s
inaction. It was alleged that several cars
were damaged by the protestors during the
commotion.7
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9/18/13 3:49 PM
State police said on September 4 that they
had started investigations into the affair but
there has been no news since.8
Opposition event at mosque disrupted
De facto opposition leader Datuk Seri Anwar
Ibrahim was scheduled to deliver a religious
sermon in a mosque in Alor Setar, Kedah,
but it was disrupted by a group of people,
which opposition party PKR claimed to be
Perkasa members as they were wearing shorts
bearing the organisation’s logos on the night
of September 3.
It was alleged that the attackers shouted
obscenities at Anwar, threw a shoe into the
mosque, and demanded that he came out of
the mosque. The commotion lasted for about
an hour while Anwar was taken to the Imam’s
home to rest. The police were contacted but
they did not arrive until an hour later, by which
time the commotion had ended. PKR vice
president N Surendran said the police “just
stood by and watched” and did not try to
rein in the rowdy mob who tried to storm the
mosque during the incident.9
Environmental, health and livelihood
(Himpunan Hijau rallies on Environmental issues, Photos courtesy of Malaysiakini)
Environmental activists took centre stage in
2012 when major projects which were harmful
to the environment faced massive protest from
locals affected and ordinary members of the
public concerned over the quality of lives of
their future generation. Among these projects
were the petrochemical refinery in Pengerang,
Johor; the LYNAS Advance Materials Plant
in Gebeng, Kuantan; an incinerator project
in Cameron Highlands;a high-tension cable
project in Rawang and excessive logging
and mining on land belonging to indigenous
peoples in Tasik Chini.
Since 2007, when the idea for the construction
and operation of a gold mine was first
mooted, the people of Raub have been
opposing the operation of the Raub Australia
Gold Mining Sdn Bhd (“RAGM”) through the
judiciary and the Federal Government, but to
no avail. With every avenue exhausted, the
residents and NGOs then formed an ad hoc
Ban Cyanide Committee.
Residents living in close proximity to the
RAGM mine together with the Ban Cyanide
Committee gathered on 2/9/2012 to oppose
the use of cyanide by RAGM. The residents
argued that the use of cyanide must be
banned as it was harmful to health. However,
the government and the RAGM consistently
denied the residents’ claims.
Several residents who claimed they suffered
ailments as a result of exposure to cyanide
fumes, decided to publicise their stories. One
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Freedom Of Assembly
resident claimed that he had spent at least
RM10,000 on medical expenses for his family
of six who suffered skin diseases.
The organisers of the event were expecting
the RAGM representatives to receive their
protest note and when they did not turn up,
the organisers called on the participants to
march to the RAGM facilities. The police had
been mobilized to escort the crowd and to
regulate traffic.
The crowd was intercepted by the Raub Police
Chief before they reached RAGM. He told the
crowd that the representatives from RAGM
were late and denied claims that RAGM had
refused to accept the protest note. Instead of
high ranking officers from RAGM, a designer
and a security personnel of RAGM showed
up to receive the note. After strong protests
by the organisers, the Police Chief offered
to hand over the memorandum to the top
officials in RAGM. Raub MP, Ng Yen Yen nad
Pahang Mentri Besar Adnan Yaakob were also
absent although they had been invited to
attend. The protest was participated by more
than 10,000 people.
The event was initially agreed upon by the
police and the organisers on the condition
that there would not be any street protest.
Commenting on whether the police would
take actions against the organisers for
marching to RAGM, the Raub Police Chief did
not provide a clear answer. 10
On 30/9/2012, Pengerang NGOs coalition
organized Himpunan Hijau Lestari Pengerang
(Pengerang Sustainable Green Rally) against
the RM60 billion Petronas Refinery and
Petrochemical
Integrated
Development
(“RAPID”) project which would affect 9,000
hectares of land belonging to at least 15
villages in Pengerang and adversely affect
environment, health and livelihood.
The participants had gathered at a fishing
village in Pengerang before marching to
Dataran Sungai Rengit. From early morning,
it was reported that there were roadblocks at
roads leading to the highway to Pengerang.
The police had also cordoned off the main
road in front of Dataran Sungai Rengit. A few
FRU (Federal Reserve Unit) trucks were seen
at the site.
It was reported that due to the roadblock,
several busloads carrying the participants
were stopped and were prevented from using
the highway leading to Pengerang. Mindful
of the Peaceful Assembly Act 2012, the
organisers had instructed all children below
the age of 15 to leave the demonstration
venue. A car belonging to a Malaysiakini
citizen journalist was damaged by acid,
although the perpetrators could not be
verified. The protest was attended by about
8,00011 participants.12
The NGO coalition had protested that they
were not consulted prior to the announcement
of the project. Himpunan Hijau Lestari
Pengerang chief Anis Afida Mohd Azli
pointed out that there should have been prior
consultation with about 20,000 villagers who
had not heard about the matter. The residents
had in the past submitted five memoranda to
government agencies and the Sultan of Johor
but had yet to receive any response. The
residents had also invited the government to
a dialogue on 16/9/2013 but no one from the
government showed up.
However, Pengerang MP Azalina denied the
allegations and pointed out that there were
about 700 people involved in the first phase of
the relocation from the project area and they
had either agreed to move or had agreed to
the conditions. Dismissing a report produced
by concerned green activists, that the
project would reduce the life expectancy of
residents living in close proximity to the plant,
Azalina said that the report was not based on
scientific evidence. She even quipped that
life expectancy could be shortened just by
standing next to a smoker.
She added that if oil refineries cause harm,
then the people of Kerteh and Jurong and
even the people in Middle East should have
been affected because of their oil refineries.13
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Starting from 13/11/2012, a coalition of
environmental groups, Himpunan Hijau had
initiated an epic 300 kilometres walk from
Gebeng, Kuantan to Dataran Merdeka, Kuala
Lumpur to highlight their objections to the
construction and operation of LYNAS rare
earth refinery at Gebeng, Kuantan. From
a mere seventy activists, the group gained
massive support from activists and member
of the public, reaching 20,000 by the time
they reached Dataran Merdeka. The group’s
main objective was to congregate at Dataran
Merdeka where they would put up a night
and hand over a memorandum to Members
of Parliament.14
On 25/11/2012, the day when the group was
scheduled to arrive at Dataran Merdeka, the
Kuala Lumpur City Hall erected roadblocks
at both ends of Dataran Merdeka, which
connect to Jalan Tun Perak and Lebuh Pasar
Besar respectively, a similar scene to that of
the BERSIH 3.0 rally held earlier in 2012. The
City Hall’s justification was that the iconic
square was undergoing renovations and
upgrading works. About 100 police personnel
and 30 City Hall officers were seen guarding
the square from early morning.
However, the real reasons for the road
closure were contradictory. According to
City Hall Mayor, Ahmad Phesal Talib claimed
that the square was undergoing renovation
and upgrading works and that the Dataran
Merdeka was usually sealed in the weekends.
In fact, only the fountain adjacent to the
square was undergoing some construction
works. The police added that the whole
Dataran had been cordoned off because
there would be many nails and hard objects
scattered which could puncture vehicle tyres
if the road along the square was allowed to
be opened.
On the same day, DBKL issued a statement
disallowing the green marchers from setting
up camps at Dataran Merdeka because such
activities did not fulfil the requirements set by
the City Hall.15 However, the marchers were
adamant that they would sit in through the
night at the square with the hope of meeting
Prime Minister Najib the following day before
he attended Parliament, which was just down
the road from Dataran Merdeka.
About 200 participants spent the night at
the square, playing music and they slept in
sleeping bags or just on the road along the
barricades set up by the police. At or about
1:00AM, three buses of about 70 police
personnel approached the group and had
a 20 minutes briefing among themselves. It
turned out that the police were just guarding
the square. The group held a ‘people’s
tribunal’ on early 26/11/2012 calling for
the closure of LYNAS rare earth refinery at
Gebeng, Kuantan; suspension and review of
all projects deemed harmful to the nation;
and assurance that all future projects are in
line with the Earth Charter. They also called
for the closure and re-evaluation of gold mine
in Bukit Koman; the high tension electrical
tower in Rawang, Selangor; the refinery
and petrochemical integrated development
project in Pengerang, Johor, and an end to
land grabbing of the Indigenous Peoples for
so-called “development” projects in Malaysia.
Investigations were initiated against the rally
organisers and several witnesses were called
in for questioning. At least seven people
were hauled up for questioning over the
Green March. They were the movement’s
committee members Dr Phua Kia Yaw and
Bang Seet Peng, Jimmy Wong and his wife,
Gombak PAS chief Ishak Surin, and MPs Tian
Chua and Sivarasa Rasiah.
A particular case involving property agent
Jimmy Wong and his wife illustrate the
arbitrary nature of police enforcement: Wong
said the police rang him and informed him
that his car, which had been used during the
rally, had been compounded when the car
was still with him. According to Wong’s lawyer
Lim Lip Eng, who is also Segambut Member
of Parliament, the investigating officer could
not name the law under which the two were
being investigating in and there was no
complainant in the case.
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Freedom Of Assembly
“Never in my 10 years as a practising
lawyer have I come across a police
investigation without a complainant,”
Lim said on November 29.16
Stand up for SUARAM investigated
A group of NGOs organised a protest
outside the Companies Commission of
Malaysia (CCM)’s office on September 18
in order to “Stand up for SUARAM” and
to protest against the government’s abuse
of enforcement agencies to harass human
right’s NGO, SUARAM. This was apparently
in retaliation for SUARAM’s complaint to the
French courts regarding a corruption probe
into the sale of the Scorpene submarines to
Malaysia.
Participants of that protest were subsequently
investigated for unlawful assembly under the
PAA.17
(Civil Society and SUARAM supporters gathered at CCM office
on 18 September, Photo Courtesy of Malaysiakini)
Penang DAPSY chairman said they refused
to cooperate as the police did not reveal the
identity of the complainant and denied they
had done anything wrong by submitting the
memorandum. They lodged a police report
over the incident.18
Disruption at PKR event
Opposition party PKR organised a political
ceramah in Gombak, Selangor, in which de
facto opposition leader Datuk Seri Anwar
Ibrahim was scheduled to appear. A group
of UMNO Youth supporters showed up to
protest the event and this resulted in a scuffle,
leaving two PKR volunteers and an UMNO
youth member injured.
The two parties pointed fingers at each other
and called on the authorities to investigate
but no action was taken against either party.19
(Students occupied Dataran Merdeka for 14 days. Photo
Courtesy of Malaysiakini)
Anti-PTPTN protest
DAP investigated for calling for IPCMC
Opposition parties and civil societies in
Malaysia have long called for the setting up
of the Independent Police Complaints and
Misconduct Commission (IPCMC) in order to
hold the police more accountable for their
actions.
The DAP Socialist Youth wing (DAPSY) handed
a memorandum to the police calling for the
establishment of the IPCMC on December 1,
but a police report was lodged against them
as a result, they found themselves being
investigated under the PAA.
A group of students calling for the abolition
of the National Higher Education Fund
Corporation by occupying Dataran Merdeka
as a sign of protest had their tents taken down
and two were arrested by police officers.
Among the arrested was Umar Mohamad
Azmi, who was charged for obstructing a
Kuala Lumpur City Hall officer from executing
his duties. Umar was ordered to pay a fine of
RM1,000 and sentenced to a month in jail.
His lawyers successfully applied for a stay of
execution pending an appeal on December
24.20
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Three Universiti Malaya students, Mohd
Syahid, Muhammad Safwan and Haziq
Abdullah were suspended for one semester
and fined RM200.00 following a 500-strong
assembly calling for the abolishment of
PTPTN and free education on 14/4/2012.
Mohd Syahid was a final-year Islamic political
science student, Muhammad Safwan, a
third year Islamic studies student and Haziq
Abdullah, was a first year law student at
Universiti Malaya.
According to Mohd Syahid, the students
were unhappy with the suspension as it was
the first following the amendment to the
UUCA and insisted that their freedoms of
assembly and association enshrined in the
Federal Constitution had been breached. The
former president of UM Student Union further
claimed that there was ‘pressure from the
top’ to punish them. Professor Azmi Sharom,
representing the trio will be filing an appeal
on the punishment on their behalf.21
Harassment
Gatherings
of
Public
Speeches
and
• 21 January: A rowdy mob gate-crashed
a ceramah (public forum) organised by
Anything But Umno (ABU)/Hindraf (Hindu
Action Rights Force) in Jalan Kebun, Klang
causing serious injury to at least one
person. The volunteer at the ceramah was
badly assaulted and had to be rushed to
the hospital. About 30 attackers, waving
sticks and helmets, rode their motorcycles
into the ceramah venue – a hall – and
rammed into participants and chairs22.
Others had followed on foot and had
allegedly caused havoc by tossing chairs,
throwing away ABU brochures, and hurling
insults at participants, ordering them
to leave. The talk had to be cancelled
due to the chaotic situation. Organisers
and ceramah participants believe the
attackers were linked to UMNO23.
Meanwhile Selangor police chief Tun
Hisan Tun Hamzah brushed off claims of
any attacks at the ceramah. He said no
such incident took place though there was
some dissatisfaction by residents about
the activity. Police reports were lodged
against the mob incident but the police
failed to take action against the thugs.
• 12 February: Several undergraduates
on a roadshow campaigning for student
freedom were allegedly attacked by thugs
at a talk in Kampung Idaman, Klang. A
group of 20 men arrived at the community
hall and started to intimidate those present
by throwing chairs and yelling at them. The
talk was part of a nationwide roadshow
organised by Solidariti Mahasiswa Malaysia
(Malaysia Students Solidarity). Speakers
and cameras were also dismantled by
the group.24 The talk was cancelled
following the advice from the police. But
the thugs followed the students to the
police station and continued to intimidate
them. Malay daily Berita Harian25 reported
that according to Klang Selatan district
police chief Mohamed Mat Yusop, five
people were detained in connection
with the mob attack on the students and
they were released on Sunday morning.
South Klang District Police Chief Assistant
Commisioner Mohamad Mat Yusop
confirmed the police received two reports
on the incident. The police said that
investigations were going on with five
people called up for questioning; however
they were all released on bail the next
day. No actions were taken against them.
• 13 February: BN supporters at the
Felda Ghafar Baba in Machap, Malacca,
resorted to brutish tactics in a bid to
stop Opposition Leader Anwar Ibrahim
from making inroads into their traditional
stronghold - the Felda areas. Between 20
and 30 motorcycles as well as a dozen of
cars with BN supporters abruptly turned
up to disrupt the Pakatan Rakyat ceramah.
They created a lot of noise when Anwar
took the stage. When Anwar started to
speak, they started calling him names,
shouting that he was not wanted there. They also held up placards and chanted
abuse at the opposition leader, accusing
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Freedom Of Assembly
him of supporting the Jews as well as
the sodomy allegations against him.26
Several video clips on the incident were
uploaded on YouTube by pro-UMNO
supporters. The clips show, among others,
the supporters blasting UMNO party
songs with loudspeakers in an effort to
drown out the opposition leader’s speech.
• Feb 19: More than 100 youth heckled
Anwar at a ceramah in Sembrong, Johor6.
• Feb 26: The Himpunan Hijau gathering in
Penang heard vulgarities being hurled at
Chief Minister Lim Guan Eng28.
• March 26: A Pakatan Rakyat fourth
anniversary celebration of their take-over
of the Selangor state government was
disrupted by about 30 youth who hurled
bottles and stones at the event held at a
stadium in Kuala Selangor.
• April 3: A peaceful protest by Kampung
Kerinchi residents was disrupted by unruly
youth.
• April 19:
Demonstrators calling for
the abolishment of the PTPTN (study
loan scheme) at Dataran Merdeka were
attacked by some 30 people in the wee
hours of the morning29.
• May 2: A bloody clash between MIC Youth
and PKR1 Indian wing in front of the Prime
Minister’s office in Putrajaya resulted in
two people being warded in hospital.
• May 6: Pahang PKR headquarters was
broken into by unknown people who
destroyed computers at the office.
• May 11: About 30 members of Perkasa
conducted a “funeral” in front of Penang
chief minister’s residence to show their
dissatisfaction over the running of the
state.
• May 24: PR party members were pelted
with stones and eggs at an opposition
ceramah in Lembah Pantai by some
people believed to be UMNO members;31
11 cars were splashed with paint at an
opposition ceramah in Kuala Kangsar,
Perak; about 30 people threw stones at
PAS deputy president Mohd Sabu while
he was speaking at a ceramah in Bangi.
• July 10: PKR vice-president N Surendran
was threatened with an acid attack
through text messaging, which he
believed was linked to his criticism of the
MIC32. In his police report, Surendran said
the profanity-laced text message warned
him to stop criticising MIC or risked having
acid splashed on his face.
• September 1: PKR’s Jelajah Merdeka
Rakyat campaign was marred when its
double-decker bus had its windscreen
smashed and splashed with bright red
paint at Kota Baru1.
• 4 December: Two supporters of Pakatan
Rakyat and one BN backer were injured
in a scuffle in Gombak during a ceramah
by PKR de facto leader Anwar Ibrahim.
Both Opposition and UMNO supporters
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claimed that the other side was responsible
for the provocation. One was seriously
injured on the head and had to be rushed
to hospital. 2
• On 23 December: Two activists from Felda
settlers’ pressure group, Felda Settlers’
Children’s Association (Anak) suffered
injuries after their convoy was attacked
by BN supporters in Negri Sembilan. The
incident occurred when Anak’s 30-car
convoy, part of the group’s Save Felda
Orange Convoy roadshow3 was prevented
from entering Felda Bukit Rokan Utara,
near Tampin. They were barred from
entering the Felda settlement by 100 BN
flag-wielding youths, Felda employees
and police personnel.
In these altercations, the police did not play
a neutral role to end the political violence
between Pakatan and the ruling party. They
were invariably late, did not carry out proper
investigations and actions were not taken on
the police reports that have been lodged by
various people in the incidents.
SUARAM’s Advocacy and lobby work in
Human Rights Council
A team of civil society activists from SUARAM,
Aliran and BERSIH 2.0 attended the 20th
Session of the United Nations Human Rights
Council in Geneva from 18 June to 23rd June,
2012.1 The delegation’s aim was to highlight
the poor state of human rights in Malaysia,
in particular the constant harassment,
intimidation, provocation and excessive
clampdown on the people’s exercise of
freedom of assembly, association, expression
and opinion. During the week the team
took the opportunity to brief various United
Nations Special Rapporteurs, country specific
Permanent Missions and various human rights
organisations on the deteriorating human
rights situations in Malaysia.
In their mission, the team attended a closed
door informal meeting with Mr Kiai to further
capture his attention on the delegation’s
cause. The delegation presented a concise
briefing on the Peaceful Assembly Act 2012
to Mr. Kiai. Mr. Kiai suggested to request for
an invitation from the Malaysian government
for an official visit but kept his optimism high
for a study visit if anything falls short to an
official visit to Malaysia.
(Meeting with Mr Maina Kiai on21 June 2012 at Human Rights Council, Geneva, Picture courtesy of Nalini)
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Freedom Of Assembly
On 21 June 2012, Nalini Elumalai Executive
Director of SUARAM delivered an oral
statement at the United Nations Human
Rights Council. She highlighted the severe
restrictions imposed on freedom of assembly
by the Malaysian government through the
Peaceful Assembly Act 2012 which contains
prohibitions on street protests, organising
and participating in peaceful assemblies by
non-citizens, persons below the age of 21 and
children below the age of 15.
One of the significant outcomes of the mission
to HRC Geneva was Special Rapporteur;
Maina Kiai renewed his intention to make a
study visit to Malaysia from 6 September to
8 September 2012. The academic visit has
given opportunity to SUARAM and Mr Kiai to
capture the situations in Malaysia on his own
by meeting with different groups of people
and to understand better the situation in
Malaysia.
She lamented the onerous responsibilities
placed on the organizers of assemblies,
contrary to the recommendation of the
UN Special Rapporteur that “…assembly
organizers and participants should not be
held responsible and liable for the violent
behavior of others…” She called on the
government of Malaysia to repeal the PAA,
and to fulfil its obligation to actively protect
peaceful assemblies.
Mr. Kiai, in his closing remark at the interactive
dialogue called salient points from his report
in which he made specific mention of Malaysia
on 3 occasions37. The Special Rapporteur
affirms his intention to continue constructive
dialogues and debates with Malaysia. In his
observation, he pointed out that there is an
increasing trend of governments flexing its
legislative muscles to restrict and suppress
rights of citizens, in particular freedom of
assembly and association. Malaysia is one of
the nations that suffer reprisals from repressive
legislations, inter alia the notorious PAA which
threatens demonstrators with hefty monetary
sentences and other restrictions mentioned
above.
(Mr Kiai, visited Malaysia from 6 to 8 September, Photo
courtesy of Malaysiakini)
(Nalini Elumalai, delivered oral statement,
Picture courtesy of Forum Asia)
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Conclusion
With the introduction of the PAA, the police
have gained even more power to restrict
rallies and demonstrations instead of
facilitating the right to peaceful assembly.
United Nations special rapporteur on the
rights to peaceful assembly and association
Maina Kiai criticised the PAA as a flawed law
and is deeply disappointed with its failure to
meet international standards:
“The law is crafted not towards
facilitating assembly but more to
control. That, I think, is a fundamental
issue for me and the entire UN. It is a
disappointment that the law was passed
as it is, but there is room for change and
amendments.”
He also said that rallies are meant to disrupt
as they are sending a message and that the
police’s role is only to facilitate and minimise
the disruptions.38 Selective prosecution by
the government also sets a bad precedent
for what may follow in the coming years, as
legitimate dissent and criticism could be
blocked or stifled. Mass rallies in accordance
to the PAA will also lose its impact and
minimise the publicity of the cause in question.
Thus, in its current form, the PAA is a flawed
law that operates on a skewed premise.
Major amendments or a total overhaul must
be made to grant citizens their full right to
assemble peacefully. In the absence of laws
which outlaw racism, racial discrimination and
other forms of intolerance, existing repressive
laws were used to curb fundamental rights
such as freedom of assembly in the pretext of
maintaining peace and harmony.
The mass scale of arrests made during Bersih
rally in 2012 is a measure of the heightened
political control by the BN government.
The government’s attempts to strengthen
its political control also took the form of
threats and harassment against groups and
organisations which were critical of the ruling
BN government and its policies.
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Freedom Of Assembly
End notes
1
http://www.federalgazette.agc.gov.
my/outputaktap/20120209_736_BI_
JW001759%20Act%20736%20(BI).pdf
(Peaceful Assembly Act 2012)
11 “Pengerang rally declared ‘roaring
success’ “, 30/9/2012, Malaysiakini
at: http://www.malaysiakini.com/
news/210357
12 “Himpunan in Pengerang to protest
oil refinery”, 30/9/2012, Malaysiakini
news/210319
2
http://m.malaysiakini.com/news/204663
(Cops violated PAA)
3
bahasa/article/31-aktivis-occupy-pejabatmb-ditahan-polis/ (31 held by police)
4
Nation/2012/07/11/35-held-for-tryingto-camp-at-MBs-office.aspx (35 held for
trying to camp at MB office)
5
category/nation/2012/09/09/policewrapping-up-janji-demokrasi-probe/
(Police wrapping up janji demokrasi
probe)
6
category/nation/2012/09/21/ngo-leaderquizzed-over-merdeka-gathering/ (NGO
leader quizzed on Janji Demokrasi)
category/nation/2012/11/29/cops-quiztwo-over-anti-lynas-rally/ (Cops quiz two
over anti-lynas rally)
7
http://www.thestar.com.my/story.aspx?fi
le=%2f2012%2f9%2f6%2fnorth%2f1197
0393&sec=north (Unhappy traders cause
furore at open house)
17 http://www.suaram.net/?p=4005 (Suaram
investigated for unlawful assembly)
8
9
http://www.thestar.com.my/story.aspx?fil
e=%2f2012%2f9%2f8%2fnorth%2f11990
545&sec=north (Police probing Hari Raya
open house protest)
http://www.malaysiandigest.com/
ge13news/97872-pkr-perkasa-attackedanwars-mosque-event-while-cops-watch.
html (Perkasa attacked mosque event
while cops watched)
10 “Mining reps no-show, Green rally turns
into march”, 2/9/2012, Malaysiakini
news/207732
13 “Azalina: Pengerang project not the
same as Taiwan plant”, 25/9/2013,
Malaysiakini at: http://www.malaysiakini.
com/news/209820
14 Himpunan Hijau: We won’t breach
Dataran cordon”, 25/11/2012,
Malaysiakini at: http://www.malaysiakini.
com/news/215066
15 “Dataran sealed again due to ‘renovation
work’”, 25/11/2012, Malaysiakini
news/215063
18 http://www.thestar.com.my/story.aspx?fil
e=%2f2012%2f12%2f2%2fnorth%2f1239
5998&sec=north (Penang Dapsy lodges
police report over summons)
19 http://my.news.yahoo.com/
pkr-bn-supporters-injured-anwarceramah-051343938.html (BN, PKR
supporters injured at ceramah)
malaysia/article/court-grants-stay-on-jailsentence-for-student-activist
(court grants stay on jail sentence)
107
9/18/13 3:49 PM
21 “UM trio suspended over anti-PTPTN
march”, 3/5/2012, Malaysiakini at:
http://www.malaysiakini.com/news/
196799
category/nation/2012/01/21/mobdisrupts-abuhindraf-talk-many-assaulted/
23 http://www.malaysiakini.com/news/
187303
Nation/2012/02/12/Student-roadshowdisrupted-by-thugs.aspx
news/217352
36 SUARAM Press Statement, 19 June 2012
: SUARAM highlights Malaysian Rights
Abuses at the Human Rights Council
37 SUARAM Press Statement, 22 June
2012: Malaysia Mentioned 3 Times At Un
Human Rights Council
news/208759 (UN special rapporteur
pans PAA)
25 http://www.bharian.com.
my/bharian/articles/
Ceramahtuntutkebebasanakademik
kecoh/Article/
189292
189759
190371
malaysia/article/student-activists-claimattacked-by-mob-at-dataran-merdeka
Nation/2012/05/03/MIC-and-PKR-clashoutside-PMs-office.aspx
198961
203239
207661
news/215915
108
9/18/13 3:49 PM
CHAPTER 5:
FREEDOM OF
ASSOCIATION
9/18/13 3:49 PM
T
he right to freedom of association
in Malaysia is severely restricted by
laws such as the Societies Act 1966,
under which any association consisting
of seven or more members must register
as a society. The government may
refuse to register a new society, impose
conditions in registering new societies,
or deregister a society.
In recent years, opposition parties and
NGOs have faced difficulties, including
delays and dismissal by the Registrar of
Societies (ROS) in their efforts to register
as political parties or societies.
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 –
10 years after it first filed its application.
NGOs also face such difficulties, for
example Amnesty International, which
remains unregistered despite numerous
applications since 1998. Its latest
application, made in 2006 – the sixth
time since 1998 – was rejected by the
ROS.
Restrictions in breach of the fundamental
right to freedom of association are also
imposed on trade union officials through
the Trade Unions Act 1959. Under Section
27 of the legislation, public officers are
prohibited from joining any trade union,
while Section 28 states that officers
of trade unions cannot hold office in
political parties unless exemptions are
sought.
Likewise, officials of the Bar Council,
the professional body of the legal
profession, face similar restriction under
Section 46(A)(1) of the Legal Profession
Act, which states:
organisation […] which has objectives
or carries on activities which can be
construed as being political in nature
[…].”
The Universities and University Colleges
Act 1971 (UUCA) is another violation of
the freedom of association for university
students and academics. Under this Act,
students and faculty members are not
allowed to express support, sympathy
or opposition to any political party or
trade union, nor any action that may be
construed as such.
Harassment of SUARAM
In 2012, the Malaysian government
displayed a wanton disregard for the
legitimate exercise of freedom of
association by a concerted harassment
of SUARAM, apparently for having the
temerity to complain to the French
courts over suspected corruption in the
Scorpene submarine deals. SUARAM
suffered an unprecedented attack from
a taskforce consisting of no less than six
agencies which had been ordered by the
government to specifically “pin a charge
or charges” on SUARAM. 1
(Photos courtesy of Malaysiakini)
“A person shall be disqualified for being
a member of the Bar Council or a Bar
Committee […] if he holds office in any
trade union, any political party, or any
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9/18/13 3:49 PM
(Photos courtesy of Malaysiakini)
Because it had initiated the Scorpene
public inquiry in Paris, SUARAM began
to face an unprecedented barrage of
intimidation and harassment from the
government and its agencies in its
23rd year of operation. On 1/7/2012,
President of Jaringan Melayu Malaysia
(“JMM”), Azwanddin Hamzah urged
SUARAM to clarify its status as an NGO
and reveal its sources of funds locally
and internationally. 1 Two days later, on
3/7/2012, CCM arrived at SUARAM’s
doorsteps for a “routine” inspection.
That first visit was the beginning of an
interminable series of investigations of
SUARAM which had not ceased as at
December 2012.
On 4th July, the Directors, Chairman,
secretariat members and staff of Suara
Inisiatif Sdn Bhd (‘SUARAM’) together
with lawyers arrived at the organisation’s
office at or about 10:00AM in anticipation
of the CCM’s scheduled visit to re-serve
a proper s7B notice. However, the team
of officers only arrived at the office at
or about 5:53PM, long after the persons
authorised to accept service had left for
home. The team left the office when they
could not serve a set of revised notices
despite the staff offering to accept
service on behalf of Suara Inisiatif Sdn
Bhd. An offer by SUARAM to arrange
service on another date was also turned
down by the Assistant Registrar.
On the 6th July, SUARAM finally received
Notices of Inspection pursuant to s7B (2)
and s7 (11) (a) CA 1965 from the CCM
vide registered mail. The said notices
required directors, Dr. Kua Kia Soong
and Dr. Yeoh Seng Guan to produce
information and documents to the CCM
on 13th July, 2012.
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9/18/13 3:49 PM
On the prescribed date, SUARAM
together with their lawyers were present
at the CCM office. In view of the short
notice and the need for clarification
on the information and documents
requested by CCM, SUARAM applied
for an extension of time to compile
and furnish the 4- year records for the
CCM. SUARAM lawyers explained to
the CCM that since the information
and documents set out in the notices
to all parties are substantially similar
and to facilitate the process, CCM
should consolidate the notices. Thus,
fresh notices with similar contents were
served on Dr. Yeoh Seng Guan and our
Finance Manager, Danapakiam Savari.
The earlier notices (3 attempts) to all
parties were effectively invalidated and
cancelled by CCM.
On 20th July, in compliance with the
notices of inspection dated 13th July,
2012 and CCM’s clarification on the
requested information and documents
vide letter dated 18th July, 2012,
SUARAM
produced
all
requested
documents and information to the CCM.
(SUARAM Directors and Staff at the CCM office on 20th July 2012, Photo Nalini, SUARAM)
Subsequently, in a notice dated 3 August,
2012, Social Security Organisation
(“PERKESO”) ordered SUARAM to
produce a list of documents to the
office on 30th August. In compliance
to the notice, SUARAM produced the
requested documents to the office.
However, the officer in charge appeared
unaware of the reason for our presence
there even after being shown the letter
sent to SUARAM which were signed off
by none other than the officer himself.
This was despite a strict warning in the
letter stipulating a fine up to RM10,
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9/18/13 3:49 PM
000.00 or 2 years’ imprisonment or both
in the event of non-compliance.
have implications on Malaysia’s domestic
situation…”
On 3rd August, Domestic Trade,
Cooperatives
and
Consumerism
Minister, Ismail Sabri Yaakob announced
at a press conference that SUARAM’s
accounts were highly suspicious. He
maintained that CCM’s investigation into
SUARAM was not politically motivated
despite the sustained campaign against
SUARAM, accompanied by coordinated
mainstream media coverage. An UMNO
lawyer had also implied that SUARAM is
money laundering terrorist organisation
and called upon Bank Negara to take
immediate actions against SUARAM.
Then on 10th and 11th September,
SUARAM’s company secretary and
auditors were investigated by CCM.
On 13th September, 2012, SUARAM’s
Danapakiam Savari and Sarah Devaraj
were investigated by the CCM. CCM’s
investigation on Danapakiam Savari
resumed on the 18th September.
Then on 5th September, two officers
from CCM served notices pursuant to
ss 7C and 7D(1) CA 1965 to SUARAM’s
company secretary and auditors. The
S7C notices required the secretary and
auditors to produce a list of documents
to the CCM for investigation while
S7D(1) notices required the secretary
and auditors to appear at CCM on 10
September 2012 for investigation. All
documents, original and copies, related
to SUARAM were seized by the officers
without prior service of a search warrant.
On 7th September, two officers from
CCM served notices pursuant to
s7D(1) CA 1965 to SUARAM Finance
Manager, Danapakiam Savari, Refugee
Coordinator, Sarah Devaraj, Directors,
Dr Kua Kia Soong and Dr Yeoh Seng
Guan as well as Executive Director,
Enalini Elumalai. Dr Kua Kia Soong, Dr
Yeoh Seng Guan, Nalini Elumalai were
scheduled to be investigated on 18
September 2012.
On the same day, Wisma Putra expressed
its intention to summon the German
Embassy in Kuala Lumpur to explain the
alleged channelling of funds to SUARAM
for activities which purportedly showed
its “…partiality to certain issues that
On 18 September, Minister of Domestic
Trade, Cooperatives and Consumerism,
Ismail Sabri Yaakob stated that he would
recommend to the Attorney-General to
bring charges against SUARAM within
two days. Ismail added that SUARAM’s
accounts were confusing but when
questioned further by reporters, he said
“…All kind of things. It is misleading…
they do one thing and report another…” 2
Ismail mentioned that five possible
charges could be brought against
SUARAM but later only confirmed
one charge under S364(2) of the
Companies Act 1965. The possible
sections included S166A (3), S169(14),
S167(1), S167(2) and S132(1) of the
Companies Act 1965. 3 The next day, the
purported CCM Investigation Papers
(“IPs”) were returned to the CCM with
Deputy Solicitor-General II Tun Abdul
Majid Tun Hamzah stating that the IPs
were incomplete and insufficient for the
Attorney-General to draft any charges.
Ismail had also asked the Bank Negara
to investigate SUARAM under the AntiMoney Laundering and Anti-Terrorism
Financing Act 2001. However a bank
official stated that they were still looking
for the source of funds and its money
trail together with other suspected
transactions before submitting its IPs
to the Attorney-General. 4 After further
investigation, the IPs were again
submitted to the Attorney-General on
11/10/2012. The Attorney-General was
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9/18/13 3:49 PM
reported to be waiting for the Registrar
of Societies (“RoS”) (which had initiated
its investigation of SUARAM) to wind up
its investigation before initiating legal
proceedings against SUARAM.4
On 11 September, a decision to form a
taskforce consisting of six government
agencies,
namely,
the
Companies
Commission
Malaysia,
Malaysian
Communication
and
Multimedia
Commission, Bank Negara, Registrar of
Societies, the Royal Malaysian Police
and the Home Ministry was made to
determine the jurisdiction of respective
agencies and coordinate any actions to
be taken against SUARAM. 6
On 13 September, the family home of
a former SUARAM staff was visited by
officers believed to be from CCM. They
had enquired about matters pertaining
to registration of businesses. The officers
obtained the staff’s mobile number from
the family members upon learning that
the person concerned was not at home.
On the same day, SUARAM Chairman,
Arumugam Kalimuthu received by
registered mail a notice pursuant to
S7D(1) CA 1965 and was summoned to
appear at CCM for investigation on 19th
September.
On 19th September, Danapakiam Savari
was again summoned to appear at the
CCM on 20th September for further
investigation vide a notice pursuant to
S7D(1) CA 1965. The said notice was
served at her residence at or about
9:15PM.
Then on 21st September, Nalini Elumalai
was again summoned to appear at the
CCM on 24th September 2012 for further
investigation vide a notice pursuant to
S7D(1) CA 1965. The said notice was
served on her at or about 12:50PM.
On the same day, the governmentcontrolled
mainstream
newspapers,
(NST article on 21 September 2012, Photo courtesy of
Malaysiakini)
News Straits Times, Berita Harian
and Utusan Malaysia joined in this
government chorus, accusing SUARAM
and
other
organisations
including
BERSIH 2.0, Malaysiakini and Centre
for Independent Journalism of being
involved in a Zionist plot to destabilise
the government. 7
On 24th September, Cynthia Gabriel was
summoned to appear at the CCM on the
next day. It was later re-scheduled to
26th September 2012 for investigation
vide a notice pursuant to S7D(1) CA
1965.
In September 2012, a police report no.
10952/12 had been lodged in Muar by
one Mohd Said bin Bakri to Constable
Muhamad Shuid bin Osman, R182036,
complaining that SUARAM had received
funding from the Jews and had attempted
to topple the government by way of
unlawful demonstrations, defamation
and treason. The alleged activities had
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9/18/13 3:49 PM
also “caused the complainant to feel
dissatisfied as it constitutes a serious
offence” and he could “no longer keep
quiet on SUARAM’s activities.” 8
This police report was enough for the
RoS to start vigorous investigation of
SUARAM’s activities from 24 September
2012. This was despite S2 of the Societies
Act 1966 which defined a society as
inter alia, excluding “…any company
registered under the provisions of any
written law relating to companies for
the time being in force in Malaysia…” 9
Consequently, on 29 October, SUARAM
wrote to the RoS requesting them to
clarify and justify its jurisdiction and
powers over SUARAM but to date,
SUARAM has yet to receive a satisfactory
answer from the RoS. Ignoring the
request, the RoS continued its campaign
of harassment of SUARAM.
On 24 September, two police officers
from the Registrar of Societies (“RoS”)
came to SUARAM to serve a letter
(believed to be a notice under S111 of
the Criminal Procedure Code). SUARAM
staff had requested for their proper
identification and purpose of the visit.
The staff also told the officers that
SUARAM would only accept service
of the letter upon the arrival of their
lawyers. One Inspector Rahim shouted
at Nalini Elumalai (SUARAM’s ED) and
left the office shortly. According to the
police, SUARAM had failed to cooperate
by refusing to accept service of the
letter.
Then on 28 September, the RoS served
notices dated 27th September 2012
pursuant to S111 CPC to SUARAM
advisor Kua Kia Soong, secretariat
member Cynthia Gabriel and co-founder
R Sivarasa, instructing them to appear
before Inspector Rahim, the Investigating
Officer in charge. The investigation
conducted was in response to a report
lodged by a complainant made in Muar.
The notice read, “…The report is about
SUARAM causing dissatisfaction to the
complainant…”
On the same day, a coalition of 30
Malay non-governmental organisations
demanded that SUARAM be declared
illegal. They stressed that “…such stern
action would deter other NGOs from
emulating SUARAM which receives
funding from foreign parties to allegedly
undermine the nation’s sovereignty…”
Calling
themselves
Gerakan
NGO
Bertindak 1Malaysia, they demanded that
SUARAM be treated the same as other
illegal entities such as Al-Arqam, the
Malayan Communist Party and Hindraf
(Hindu Rights Action Force). The leaders
of the coalition of NGOs had earlier
submitted
their
joint-memorandum
at the prime minister’s office on 27th
September. Razali, who is also the
chairman of Gerakan Memartabatkan
Pejuang Negara (GMPN), said the
memorandum also calls for legal action
to be taken against SUARAM members
for “offences against the state” and
offences against the person of the
King. It also urged the Home Ministry,
the Attorney-General’s Chambers, Bank
Negara, Companies Commission of
Malaysia and Inland Revenue Board to
pursue legal course of action under their
respective jurisdiction against SUARAM
and its members.
On 29th September, SUARAM’s lawyers
issued a letter to RoS to postpone the
scheduled investigation on 1st October
2012 and proposed that the investigation
be conducted on 3rd October 2012. In
the letter, the lawyer requested the RoS
and /or the police to produce the police
report that had been lodged against
SUARAM by the complainant from Muar,
to clarify the status of those called for
investigation, ie. whether they were
suspects or witness, and finally to state
under what section the trio were to be
investigated.
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9/18/13 3:49 PM
On 2nd October, the CCM again served
notices dated 2nd October 2012 to Kua
Kia Soong and Yeoh Seng Guan under
S7B (2) of the Companies Act 1965
and requested SUARAM to produce
grant agreements, financial records and
receipts and vouchers from the year 2006
to 2011 by the following day. SUARAM’s
lawyers issued a letter to the CCM to
condemn such a request which required
SUARAM to produce such an extensive
list of documents in less than 24 hours.
Nevertheless, SUARAM produced part of
the documents requested from the list
and requested for extension of time to
fulfil CCM’s request.
On 3rd October as requested, Sivarasa
and Cynthia Gabriel were present at
the RoS office to record a statement
under S112 of the CPC. On the same
day, Cynthia received a notice from the
CCM dated 3rd October 2012 pursuant
to S7D(1) of the Companies Act 1965,
instructing Cynthia to appear at the
CCM office on 4th October 2012 for
questioning relating to SUARAM’s “Ops
Scorpene” campaign.
In a press conference on 5th October,
President of JMM Azwanddin Hamzah
made a scurrilous allegation that
SUARAM had bribed more than 10 officers
from various government agencies
i.e the CCM, the Prime Minister’s
Department, the Finance Ministry and
Bank Negara to cover up financial
transactions and to obtain information
regarding national security. Azwanddin
claimed that SUARAM has links with 40
companies, of which 38 out of these are
inactive in business but would receive
USD3,000.00 or USD5,000.00 every
day or once a week. He added “…
these are actions of lackeys who are
uncouth and impudent. We must destroy
these people…” 10 SUARAM challenged
JMM to substantiate their allegations
and called upon the alleged ‘bribed’
officials to reveal the truth and defend
themselves. 11 SUARAM in its response
challenged JMM 12 to substantiate its
allegations and demands an immediate
apology and retraction of the allegations
should it fail to do so. On 8th October, Cynthia Gabriel
accompanied
by
SUARAM
lawyer
appeared at the investigations at CCM
office at 10:30AM. On the same day,
the RoS issued notices pursuant to S111
of the CPC to Nalini Elumalai, Dr. Nasir
Hashim (founder member of SUARAM,
Chairperson of Parti Sosialis Malaysia
and State Representative of Kota
Damansara) and also to one deceased
founder member, Fan Yew Teng! A
separate notice under S51(1) of the CPC
was issued to SUARAM’s solicitors, Chan
Weng Keng & Associates requesting
our lawyer to hand over the following
documents:• SUARAM’s 2010 and 2011 annual
reports;
• SUARAM’s office bearers as at 2011;
• SUARAM’s Covenant of Guiding
principles;
• A copy of “SUARAM: 20 years
defending human rights” written by Dr
Kua Kia Soong;
• Application form of “Friends of
SUARAM”; and
• Brochure and business card of SUARAM
members.
The said notice to SUARAM’s lawyer ran
foul of the sanctity of Solicitors/Client
Privilege and Confidentiality under the
Legal Profession Act 1976 . A solicitor,
under the law must act in the best
interest of justice and the client without
fear or favour.
On 15th October, former KITA party
(Kesejahteraan Insan Tanah Air) member
alleged that SUARAM had links to
topple the Indonesian government back
in 1996 when SUARAM had been the key
proponent for the independence of East
Timor.
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9/18/13 3:49 PM
On 17th October Chairman of SUARAM,
Arumugam
and
founder
member,
Charles Hector also received notices
dated 17th October 2012 pursuant to
S111 of the CPC from the RoS while
Nalini received a notice under S51(1)
of the CPC requesting her to produce a
list of documents (similar to those of our
lawyer’s).
Then on 25th October, Kua Kia Soong
appeared at the RoS for questioning.
His appearance was to oblige the RoS
as instructed in their notice dated 27th
September 2012 when Kua Kia Soong
was in Scotland at that material time.
On 29th October, Nalini received a
notice pursuant to S111 of the CPC
from the RoS for further questioning.
SUARAM viewed the continued and
prolonged investigation by the RoS,
which does not have any jurisdiction to
investigate a registered company, as
undue harassment. SUARAM had duly
issued a letter to the RoS requesting
them to clarify and state their jurisdiction
and powers over a registered company.
On 1st November, the Minister of
Domestic Trade, Consumerism and Cooperatives, Ismail Sabri stated that the
Attorney General was currently waiting
for the conclusion of RoS’ investigation
before deciding whether or not to charge
SUARAM. That same day, Independent
Member of Parliament Wee Choo Keong
made a public statement accusing
Amer Hamzah (SUARAM’s
lawyer) of
being in cahoots with French lawyer,
William Bourdon (lawyer for SUARAM
in the Scorpene inquiry) to topple the
government.
On 1st November, Nasir and Yeoh Seng
Guan also received a notices dated 1st
November 2012 pursuant to S111 of the
CPC to appear at the RoS on 5/11/2012.
The next day, Nalini appeared at the
RoS for investigation and produced
documents requested by the RoS vide
S51(1) notice dated 17th October 2012.
Amer Hamzah held a press conference
that day to rubbish Wee Choo Keong’s
accusations.
On 2/3 November, RoS issued a
S111 notice to Parti Sosialis Malaysia
Secretary-General,
Arutchelvan.
However, attempts to serve the said
notice on him failed and officers from
the RoS informed him that the notice
would be served on him personally at a
later date.
On 5th November, the RoS served
notices under S111 of the Criminal
Procedure Code (“S111 notice”) to
individuals who were not acquainted with
the facts and circumstances of SUARAM,
viz. Executive Director of EMPOWER,
Maria Chin Abdullah; President of the
Malaysian Bar, Lim Chee Wee; human
rights lawyer, Syahredzan Johan and
opposition Members of Parliament YB
Chua Tian Chang (Batu) and YB Tony
Pua Kiam Wee (Petaling Jaya Utara) 13 .
The RoS had even issued a notice to
deceased Fan Yew Teng. 14 The staffs of
SUARAM were not spared as they also
received the same S111 notices from the
RoS on 9/11/2012, including SUARAM
Penang office’s coordinator, Lee Hui Fei.
All the staff received S111 notice dated
9/10/2012 by fax on 12/11/2012 at or
about 5:25PM to appear at the RoS office
for investigation on 14/11/2012. On
the same day Hui Fei accepted service
of the notice dated 12/11/2012 at or
about 3:15PM. SUARAM’s solicitors then
wrote to the RoS to fix new dates for
the investigations. Diane Savari, Wong
Kar Fai, Maisarah bt Najib, Thevarajan
and Sarah Devaraj were subsequently
investigated on 19/11/2012 while Syukri
Razab and Lee Hui Fei were investigated
on 28/11/2012 at the RoS office in
Putrajaya.
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9/18/13 3:49 PM
Human rights lawyer, Amer Hamzah,
secretariat member, Fadiah Nadwa and
former staff, Hasbeemasputra were
ordered to appear for investigation
at the RoS office on 28/11/2012,
29/11/2012 and 5/12/2012 respectively
by notices pursuant to section 66 of
the Societies Act 1966. SUARAM, on
behalf of Hasbeemasputra had written
to the RoS to excuse investigation
on
Hasbeemasputra,
citing
health
conditions. Amer Hamzah had challenged
the said notice and had yet to receive
any reply to this date. Fadiah Nadwa
had requested for a new date, citing
unavailability and had yet to receive any
reply from the RoS.
Then on 30/11/2012, two police officers
visited SUARAM’s office to investigate
SUARAM under S9 of the Peaceful
Assembly Act 2012 for allegedly
assembling unlawfully at CCM building
on 18/9/2012. On 7/12/2012, the RoS
saw fit to appear at the residence of
the company secretary of SUARAM’s
landlord together with a blaring police
patrol car just for the purpose of serving
a notice under S66 of the Societies
Act 1966. According to the company
secretary, eyewitnesses saw that the RoS
had visited his home several times the
day before on 6/12/2012 when he was
not at home. The wife of the company
secretary, a high blood pressure patient,
had suffered a series of panic attacks
since 6/12/2012 and had to be sent
to the hospital for medical check-up.
A total number of 62 notices and 34
persons had been called by CCM, RoS
and PDRM since 3/7/2012. 15
It was ironic and highly embarrassing to
the government that in the midst of this
concerted campaign against SUARAM,
the Auditor General released his annual
report showing that CCM had failed in
its responsibility to rein in companies
for not paying their compounds and
submitting audited accounts. 16 MP for
Petaling Utara, Tony Pua highlighted the
fact that the CCM had been prejudicial
to SUARAM in keeping an eye closed
on companies belonging to Shahrizat
Jalil’s family, namely the National Meat
and Livestock Company Sdn Bhd and
Meatworks Sdn Bhd which had reportedly
failed to hold annual general meetings
and file annual returns together with
audited financial reports. These are
clear offences under the Companies
Act 1965. He further pointed out that
Yayasan Gerakbakti Kebangsaan whose
directors, UMNO Youth Chief Khairy
Jamaluddin and UMNO’s Kota Belud MP,
Abdul Rahman Dahlan had not filed its
accounts since 2009, 17 and that National
Aerospace and Defense Industries Sdn
Bhd, a partner in the country’s newest
budget airline Malindo Airways has
not filed its audited accounts since
2007. The chairperson, Gen (Rtd) Mohd
Hashim Mohd Ali, is the brother in-law of
Tun Mahathir. 18
Up to the end of December 2012, none
of actions were taken against SUARAM.
SUARAM was still being investigated
by the CCM and other agencies and
had all along provided full cooperation
to CCM and other agencies. However,
not a single action had been taken
against SUARAM as had been pledged
by the Domestic Trade Minister. The
investigations turned out to be purely
harassment of SUARAM.
Human Rights Party
One of the major factors contributing to
the ruling coalition’s dismal performance
in the 12th General Election (2008)
included
a
mass
demonstration
organised by the Hindu Rights Action
Force (HINDRAF) in 2007, which saw
about 20,000 people marching through
the streets of Kuala Lumpur demanding
that the government end institutional
racism in the country.
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9/18/13 3:49 PM
Soon after, one of HINDRAF’s leaders,
P Uthayakumar formed the Human
Rights Party (HRP), a political party
that is focused on ending human
rights violations in the country as well
as institutional racism. The party sent
an official application to register as a
political organisation in November 2010
but it was rejected by the RoS in August
2011 on the grounds that the party’s
constitution did not meet the required
conditions.
Pakatan Rakyat’s Registration
HRP then took the matter to court and
the Kuala Lumpur High Court in March
2012 ordered the Home Ministry to
decide on the matter. However, the
ministry also rejected their application.
The unofficial alliance then submitted
a formal application to register as a
political coalition in November 2009,
with PKR leader Zaid Ibrahim being
named as pro-tem chairperson. In
November 2010, Zaid quit the coalition
due to internal disputes and the RoS
declared the application null and void as
the pro-tem chairman had ceased to be a
member. PR then appointed PAS central
committee member Kamaruddin Jaafar
to make a fresh application and elected
him as the new pro-tem chairperson in
November 2011.
Uthayakumar,
the
HRP
pro-tem
secretary-general, claimed that the
party’s constitution is 99% similar to
opposition party DAP’s constitution,
which has been in use for 46 years. The
party leader also protested that the
RoS had refused to state precisely what
needed to be amended to meet the
requirements of the RoS. He suspected
that the refusal to grant an approval to
HRP was politically motivated as the
organisation had organised a protest in
front of Prime Minister Datuk Seri Najib
Razak’s office in Putrajaya. 19
The HRP filed for a judicial review on
the Home Ministry’s decision to reject
their application. This too, proved to be
a futile effort as the Kuala Lumpur High
Court dismissed their application and
said the party had “no case to apply to
form a political party” in June 2012.
Commenting on the court’s decision,
Uthayakumar questioned if the DAP’s
constitution, which the HRP had
modelled, is also in breach of the
Societies Act. He also accused the RoS
of discriminating against HRP as the
registrar had only recently approved the
Sarawak Workers’ Party (SWP) and Parti
Ikatan Bangsa Malaysia. 20
During the 12th General Election in
2008, three opposition parties, namely
Parti Keadilan Rakyat (PKR), Parti Islam
Se-Malaysia (PAS), and the Democratic
Action Party (DAP) formed an informal
coalition to contest. The coalition,
dubbed Pakatan Rakyat (PR), made
unprecedented gains and denied BN
their traditional two-thirds majority in
Parliament.
However, as of June 2012, PR remained
an informal coalition and the RoS has
yet to decide on the application. PKR
secretary-general
Datuk
Saifuddin
Nasution Ismail said a new application
would be made and the names of all PR’s
top leaders would be included. 21
On
1/7/2011,
Home
Minister
Hishammuddin Hussein had declared
BERSIH 2.0 as unlawful under S5 of
the Societies Act 1966. He added that
investigation had revealed that BERSIH
2.0 was not a registered organisation
and that it has been ‘moving actively and
creating uneasiness’ among the people
by distributing pamphlets containing
propaganda to topple the government. 22
However, although he had declared
BERSIH 2.0 as illegal, on 10/4/2012
Hishammuddin gave the permission for
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9/18/13 3:49 PM
BERSIH 3.0 rally to take place subject to
the provisions of the Peaceful Assembly
Act 2012. 23 This would later become
the bone of contention as Justice
Rohana Yusof quashed Hishammuddin’s
declaration.
In her decision, Justice
Rohana stated the said declaration was
“tainted with irrationality.” 24
Restrictions on Freedom of Association
of Students
The Universities and University Colleges
Act 1971 (UUCA) severely restricts
students and university staff in their
exercise of free speech and expression,
assembly and association. The UUCA
targets university students, imposing a
variety of prohibitions against students.
These include, among others, prohibiting
student bodies and organisations from
affiliating with, or dealing in any way
with, any society, political party, trade
union, or organisation – whether on
campus or elsewhere, in or out of the
country – without the prior approval in
writing from the vice chancellor.
In addition to the restrictions under
the UUCA, undergraduate students and
civil servants, including teachers and
university lecturers, are also compelled
to sign a loyalty pledge, “Akujanji”,
promising “loyalty” and “good conduct”.
Then-Prime Minister Mahathir Mohamad,
who introduced this pledge in 2001,
said that signing the pledge would help
check the “poisoning of the minds” of
students, and to ensure that they “stick
to the original purpose of entering
universities to gain knowledge, and not
indulge in anti-government activities”. 28
Since then, students and educators have
received numerous threats and warnings
regarding the repercussions for not
signing the pledge. The penalties range
from warnings, fines, and the forfeiture
of monetary benefits such as allowances,
to demotions and termination of
employment.
The restrictive provisions in the UUCA
and the pledge which they are required
to sign make it extremely difficult for
students in universities to exercise their
freedom of association. Compounding
these legal and procedural restrictions
for students to form associations and
carry out activities, numerous cases in the
past show that authorities in universities
often victimise students who are involved
in societies and groups which are not
overtly “pro-establishment”.
In 19 April 2012, amendments were
made to the UUCA and were passed
by the Parliament. Six months after
a landmark Court of Appeal ruling
that declared it was unconstitutional
to prohibit university students from
supporting or opposing political parties.
The amendments were tabled for first
reading on April 9 by Higher Education
Minister Datuk Seri Khaled Nordin. It
was tabled for second and third reading
and passed on April 19 after a four-hour
debate. The Private Higher Educational
Institutions Act and the Education
Institutions (Discipline) Act were also
amended simultaneously to ensure they
were in line with the UUCA. Once these
laws come into force, varsity students will
be free to join political parties but will
still be banned from organising political
parties’ activities on campus in order to
maintain “neutrality” in the academic
institutions. Under Section 15(2)(b),
universities also retained the power to
ban students from joining any society or
organisation deemed “unsuitable” to the
interests and well-being of the students
or the university. They will be allowed to
make statements on an academic matter
relating to a subject of study or research,
and to express themselves at seminars
and symposiums that are not organised
or sponsored by any unlawful body.
A new provision in the UUCA Amendment
Bill seeks to appoint a director-general
of higher education to keep and
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9/18/13 3:49 PM
maintain a National Higher Education
Register. This means that tertiary
institutions will have to maintain a
database, to which the higher education
minister will have access. A Students’
Complaints Committee will have powers
to conduct investigations or inquiries
into complaints by students.
When the amendments were debated
in Parliament on 9 April 2012, concerns
were raised by several Members of
Parliament, from both the ruling and
opposition coalitions. A BN Member
of Parliament, Khairy Jamaluddin (BNRembau), also voiced his disagreement
with the banning of students from
political activities, saying that he would
vote in favour of the amendments but
nevertheless expressed concerns on the
ban on political activities of university
students. He tabled a motion to throw
out subsection 15(2)(c) which forbids
students who hold posts in political
parties, from running for or having
positions in campus bodies. Khairy
brought the motion on behalf of the
Barisan Nasional Backbenchers Club
(BNBBC) which was accepted by the
Dewan Rakyat (House of Commons).
He said that “subsection 15(2)(c)is
self-contradictory to the Government’s
aspiration for transformation and goes
against social norms which call for
the political freedom of students 29 ”.
He also said although the BNBBC
recognised that campus neutrality must
be maintained, there should not be a
regressive restriction on the freedom
given to students.
Petaling Jaya Utara MP Tony Pua
described this as an “impractical”
restriction as the students, especially
those studying law, should be allowed
to critique court rulings freely. He added
that Section 4(a) prohibits students from
commenting on issues outside of his
or her academic discipline and Section
4(b) gives the university full authority to
decide where a student can or cannot
speak.
Civil Societies, Students Coalitions and
the Bar Council had recommended the
government to scrap these provisions as
they restrict the young minds’ freedom
of speech and expression but their calls
fell on deaf ears. The student leaders and
student coalitions said the amendments
were “cosmetic” and they called for
total repeal of the law 30 . They also said
that the amendments also give university
authorities the power to decide which
organisations students could not join 31 .
Two days after they were passed in
the Dewan Rakyat, a student from
Universiti Malaysia Perlis (Unimap) was
suspended for 66 days and fined RM100
for allegedly organising a programme
to raise awareness on voting. On May
3, three Universiti Malaya (UM) students
were suspended for a semester and fined
RM200 for their involvement in a protest
calling for the abolition of the National
Higher Education Loan Fund (PTPTN)
on April 14. The UM disciplinary board
found that the trio – Mohd Syahid Mohd
Zaini, Safwan Anang and Haziq Abdullah
Abdul Aziz – had tarnished UM’s image
by hanging funeral garlands on Prime
Minister Datuk Seri Najib Razak’s and
Khaled’s portraits.
Khaled Nordin further announced that
all public university students will have
to sign contracts that specify what they
can and cannot do on campus starting
September.
Federal Court ruling on UKM 4 Appeal
case
The Federal Court here today dismissed
the appeal brought by the government,
Higher Education Minister and Universiti
Kebangsaan Malaysia (UKM) against
the landmark decision of declaring
unconstitutional, Section 15(5)(a) of the
Universities and University Colleges Act
(UUCA) 1971. This was after the five-
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member panel led by Chief Judge of
Malaya Tan Sri Zulkefli Ahmad Makinudin
had allowed the application by four
former UKM students to strike out the
appellants’ appeal on grounds that the
matter was academic as Section 15(5)(a)
has been repealed 32 . The Section 15(5)
(a) as repealed on 28 June 2012.
The former UKM students, Muhammad
Hilman Idham, Woon King Chai,
Muhammad Ismail Aminuddin and Azlin
Shafina Mohamad Adza were given
notices by the university to appear before
a disciplinary tribunal to answer charges
of allegedly being present during
campaigning for the Hulu Selangor
parliamentary by-election on April 24,
2010, thereby breaching Section 15(5)
(a) of the Act. The four have graduated.
Woon and Muhammad Ismail are currently
pursuing their masters in political science
while Muhammad Hilman and Azlin are
working. They (the former students)
subsequently
filed
an
originating
summons against the appellants to
challenge UKM’s action against them but
their claim was dismissed by the Kuala
Lumpur Appellate and Special Powers
Division in September 2010. On Oct 31
2011, the Appeals Court overturned the
High Court’s decision in a 2-1 majority
decision which also ruled that Section
15(5)(a) of the Act was unreasonable and
violated freedom of speech guaranteed
by the Federal Constitution. In 2009, the UN Special Rapporteur on
the Right to Education in the report of
his mission to Malaysia said:
“The Special Rapporteur urges the
Parliament of Malaysia urgently to
amend this Act so as to recognize and
give effect to the freedom of expression
and association of university students,
as required by any modern and humane
developed society. […] It is necessary
that their rights within and outside the
university be guaranteed and that they
be given the opportunity to participate
fully in the discussion of the reform
agenda.”33
The report of the Special Rapporteur
also
recommended
the
Malaysian
Government to:
“Introduce
amendments
to
the
Universities and University Colleges Act,
so as to guarantee recognition of the
right of teachers and pupils to freedom
of expression, freedom of assembly
and their right to participate in political
activity […].”34
Conclusion
The exercise of freedoms in Malaysia
comes with a caveat. Because of
SUARAM’s resolute stance on defending
human rights and civil liberties, the
organisation was subjected to continuous
harassment by a six-member taskforce
orchestrated by the government since
July 2012. Throughout the period,
SUARAM was investigated under at least
three legislations, namely the Companies
Act 1965, the Societies Act 1966 and the
Peaceful Assembly Act 2012. side. Apart
from being accused of being agents and
furthering Jewish interests in Malaysia,
SUARAM was also accused by Jaringan
Melayu Malaysia of alleged bribery
to government top officials, including
officials from the CCM in the midst of
CCM investigation.
Like the police force and other
enforcement agencies, the RoS seems
to be working in tandem with the ruling
coalition to harass, stifle, and frustrate
those who do not support the ruling
coalition. The RoS falls under the
jurisdiction of the Home Ministry and
has become subservient to the Minister
instead of upholding the professionalism
of the civil service which is supposed to
be above politics.
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9/18/13 3:49 PM
Perhaps, it is apt to remind the
government of the recommendations
made by the United Nations Special
Rapporteur on the Rights to Freedom of
Peaceful Assembly and of Association,
Maina Kiai, in his report, A/HRC/20/27
dated 21st May 2012 35 .
• Any associations should be allowed
to function freely, and their members
operate in an enabling and safe
environment;
• Associations should be free to
determine their statutes, structure
and activities and to make decisions
without State interference;
• Associations should enjoy the right to
privacy; and
• Associations should be able to access
domestic and foreign funding and
resources without prior authorization.
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9/18/13 3:49 PM
End notes
1
2
Pressure group probes SUARAM’s NGO
status, Malaysiakini, 1/7/2012, http://
accessed: 28/11/2012)
CCM hopes to charge SUARAM in two
days, Malaysiakini, 18/9/2012, http://
accessed: 28/11/2012)
11 Show us the officials we ‘bribed’,
challenges SUARAM, Malaysiakini,
category/opinion/2012/10/05/jmmsallegations-baseless-preposterous/
3
ibid
13 Pua cries abuse for being pulled into
ROS dragnet, Malaysiakini, 6/11/2012,
4
AG’s Chambers: CCM probe on
SUARAM incomplete, Malaysiakini,
14 SUARAM probe: ROS summons Bar
president, BERSIH leader, Malaysiakini,
5
SUARAM probe: AG receives CCM
report, awaiting RoS’s, Malaysiakini,
15 SUARAM’s documentation and
monitoring
6
ibid
7
Plot to destabilise govt, News Straits
Times, 21/9/2012, http://www.nst.
com.my/top-news/plot-to-destabilisegovt-1.146549 (last accessed:
28/11/2012)
8
SUARAM’s documentation and
monitoring
9
Section 2 of the Societies Act 1966, Act
335
10 SUARAM terima RM100 juta dana asing?,
Utusan Malaysia, 5/10/2012, http://
www.utusan.com.my/utusan/Dalam_
Negeri/20121005/dn_02/Suaram-terimaRM100-juta-dana-asing (last accessed:
28/11/2012); see also Group to reveal
bribe takers, JMM will also send letters
to ministry and department heads, with
copies to MACC, Malay Mail, 5/10/2012,
http://www.mmail.com.my/story/groupreveal-bribe-takers-32356 (last accessed:
28/11/2012)
16 CCM failed to nab errant directors of
companies’, Malaysiakini, 16/10/2012,
17 CCM, why no action against NFC’s
companies?’, Malaysiakini, 6/9/2012,
18 Tony Pua reveals another Companies Act
breach, Malaysiakini, 1/10/2012, http://
accessed: 28/11/2012)
category/nation/2012/04/03/homeministry-rejects-hrps-registration/ (Home
Ministry Rejects HRP’s registration)
20 http://www.humanrightspartymalaysia.
com/2012/06/19/the-judge-agrees-withros-that-the-partys-application-was-notin-order-see-fmt/ (Judge agrees with RoS
that application was not in order)
124
9/18/13 3:49 PM
21 http://www.keadilandaily.com/daftarpakatan-rakyat-tunggu-penjelasanros-saifuddin/ (Pakatan Rakyat tunggu
penjelasan ROS)
22 Hisham declares BERSIH an outlaw
organisation, Malaysiakini, 2/7/2011,
34 Ibid. (para. 87, p. 27).
35 http://www.ohchr.org/Documents/
HRBodies/HRCouncil/RegularSession/
Session20/A-HRC-20-27_en.pdf
23 Home Minister gives nod to BERSIH 3.0
but…, Malaysiakini, 10/4/2012, http://
accessed: 28/11/2012)
24 BERSIH not ‘unlawful organisation’, rules
court, Malaysiakini, 24/7/2012, http://
accessed: 28/11/2012)
25 Section 2, Trade Unions Act 1959.
26 Ibid.
27 Section 27, Trade Unions Act 1959.
28 “Undergrads to sign good-conduct
pledge,” New Straits Times, 25 January
2002.
Nation/2012/04/19/UUCA-amendmentBill-passed.aspx
30 www.malaysiakini.com/news/194888
category/nation/2012/04/09/uucachanges-insulting-say-students/
32 http://www.nst.com.my/latest/section15-5-a-uuca-federal-court-dismissesappeal-1.175136
33 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).
125
9/18/13 3:49 PM
9/18/13 3:49 PM
CHAPTER 6:
FREEDOM OF
RELIGION
9/18/13 3:49 PM
Article 2 UDHR
Article 160 (2) FC – Interpretation
Everyone is entitled to all the rights and
freedoms set forth in this Declaration,
without distinction of any kind, such as
race, colour, sex, language, religion,
political or other opinion, national or
social origin, property, birth or other
status. Furthermore, no distinction shall
be made on the basis of the political,
jurisdictional or international status of
the country or territory to which a person
belongs, whether it be independent,
trust, non-self-governing or under any
other limitation of sovereignty.
“Malay” means a person who professes
the religion of Islam,
habitually speaks the Malay language,
conforms to Malay custom
and —
Article 18 UDHR
Everyone has the right to freedom of
thought, conscience and religion; this
right includes freedom to change his
religion or belief, and freedom, either
alone or in community with others and in
public or private, to manifest his religion
or belief in teaching, practice, worship
and observance.
Article 3 Federal Constitution
Religion of the Federation
(a) was before Merdeka Day born in the
Federation or in Singapore or born of
parents one of whom was born in the
Federation or in Singapore, or is on
that day domiciled in the Federation
or in Singapore; or
(b) is the issue of such a person.
Malaysia being a member of
the United Nation [UN] ought
to implement the convention of
Universal Declaration of Human
Rights [hereinafter abbreviated as
UDHR]. As we know a convention does
not have a legally binding effect until
it is given its legitimacy by an Act of
Parliament [AOP] in Malaysia. UDHR
certainly imposes a moral obligation
to Member States to uphold the
principles enshrined. Although a
Member State of the UN, Malaysia
has yet to ratify the International
Covenant on Civil & Political Rights
and the International Covenant on
Economic, Social & Cultural Rights.
To do so would oblige the Malaysian
government to enact national laws
which are consistent with these
UN conventions and subject the
country to UN periodic appraisal for
consistency or otherwise.
The Malaysian Federal Constitution
provides for freedom of religion to all
Malaysians. However, there are parts
of the Constitution that also limit,
control or take away those rights.
Evidentially, Article 3 (1) provides
that Islam is the official religion of
the Federation (Malaysia) and that
other religions may be practiced in
-
(1) Islam is the religion of the Federation;
but other religions may be practised in
peace and harmony in any part of the
Federation.
(4) Nothing in this Article derogates from
any other provision of this Constitution.
Article 11 FC – Freedom of Religion
(1) Every person has the right to profess
and practice his religion and, subject to
Clause (4), to propagate it.
(4) State law and in respect of the
Federal territories of Kuala Lumpur,
Labuan and Putrajaya, federal law may
control or restrict the propagation of
any religious doctrine or belief among
persons professing the religion of Islam.
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Freedom Of Religion
peace and harmony. This is further
emphasized in Article 11 (1) which
gives the right to anyone to profess
and practice his/her religion but
sub-article (4) limits such freedom
of religion in that State, Federal
Territory and Federal laws may
control or restrict the propagation
of any religious doctrine or belief
among persons professing the
religion of Islam.
Christian Proselytisers
Under Article 160 (2), a Malay is defined
as a person who professes the religion of
Islam, befuddling a distinction between
ethnicity and religion, with unfortunate
consequences for human rights in the
country. These matters will be discussed
and explained in 3 separate parts,
namely,
• Christian proselytisers
• Forum on “Islamic State : Which
Version? Whose responsibility?
• Orang Asli / Asal [The Aborigines] &
the Islamic prayers [doa]
(Hunt for Christian proselytizers, Penang. Photo courtesy of
Malaysiakini)
129
9/18/13 3:49 PM
In August 2012, there were reports that
Penang was on the hunt for Christian
proselytizers. Apparently, an NGO called
Pertubuhan Aktivis Pengupayaan Insan
(API) had claimed that there were efforts
by two foreigners to convert Muslims in
Penang, especially among the homeless
and the trishaw riders 1 . API’s avowed
aim is to empower young Muslims in
Malaysia to carry out missionary work
through various field organizations.
Subsequently, the Islamic authorities in
Penang began probing this claim that
there was an effort by Christians to
proselytize among Muslims in the state.
The Penang State Executive Councillor,
Abdul Malik Abul Kassim said the Penang
Islamic Affairs Department (JAIPP) has
yet to identify those concerned:
“We have not taken the initiative to
investigate this issue. We still cannot
identify (those who are responsible)...”
API alleged that two Caucasian men,
who appeared to be tourists, had
approached these target groups and
asked them about tourist attractions
around the city. They had then used cash
and basic necessities as bait to attract
people during Ramadan, according to
the group. API deputy chairperson Asti
Toba said:
“A trishaw rider admitted to having
received RM50 and said he was
promised basic necessities. He even
said the 2 men would return tomorrow
to convert him…”
API further alleged that “…the Christian
movement had approached a few Muslim
teenagers who were breaking their fast
at a fast-food restaurant in Gurney Drive
last Thursday, and asked them some
confusing questions about Islam.”
API said that they would submit
evidence of foreigners proselytizing
among Muslims in Penang in the form of
pictures and video recordings to Penang
Islamic Affairs Council (MAIPP) 2 . To back
their claim, API uploaded footage on its
blog showing an elderly man, who had
purportedly been approached by the
duo, recalling the conversation between
them 3 . It was mentioned that the duo
spoke of Christianity and wanted to give
the elderly man “mandi air” (likely to
mean baptize).
The chairperson of API Nur Fitri Amir
Muhammad said that the issue would
not be politicized as API is a nonpartisan organization. “We are not with
the government or the opposition…We
are an organization which gives aid to
homeless people and we came across
this issue by chance when we were
collecting data,” he added.
Thus, in Malaysia, a person who is
Malay Muslim does not enjoy the
freedom of religion under the FC and
must never renounce and/or convert
out of Islam. Furthermore, the practice
and propagation of Islam among nonMuslims is legalised by the FC while it is
illegal for members of other religions to
proselytize among Muslims.
Orang Asli forced to recite Islamic
prayers
In late October 2012, a group of parents
lodged police reports against teachers at
SK Bihai in Pos Bihai, near Gua Musang
in Kelantan, for slapping their children
because they did not recite the doa
(Islamic prayer) after having their lunch 4 .
According to SK Bihai Parent-Teacher
Association [PTA] deputy chairperson
Arom Asir, the children’s faces were
bruised after they had been slapped by
the male teacher. The school has at least
100 children, all of whom are Orang
Asli, and the children were eating lunch
together after sports:
“They were made to recite prayers the
Muslim way before and after meals but
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Freedom Of Religion
they didn’t know how to, so they kept
quiet. Then the teacher picked out
the older children and slapped them
for being quiet,” he said. Arom added
that the parents did not know that their
children were being taught Islamic
studies at the school or being made to
recite Islamic prayers until earlier this
week.
They then made a complaint on this issue
to a Human Rights Commission (Suhakam)
representative who visited them on 23
October 2012. The community arranged
to hold a dialogue between the parents,
the Education Department, Orang Asli
Development Department [Jakoa] and
Suhakam on 30 October 2012. They felt
that parents should have been consulted
if their children are to be imparted with
Islamic teachings. Meanwhile, Jaringan
Kampung Orang Asli Semenanjung
Malaysia [JKOASM] in a press statement
called on the relevant agencies to
take stern action on the assault of the
children. They added that the relevant
agencies should also investigate the
claim that Orang Asli children are made
to study a religion that is not their faith.
A prominent lawyer in Malaysia, Gobind
Singh Deo, pointed out that a teacher
has no right, and it is also against the
law to slap students. Slapping a person
amounts to an assault, an offence
punishable under Section 323 of the
Penal Code, which carries a punishment
of imprisonment for a term which may
extend to one year, or with a fine of up
to RM2000 or both.
In Malaysia, under Section 17 of the
Aboriginal Peoples Act 1954, no Orang
Asli child shall be obliged to receive
religious teachings, without prior consent
from the parents. Section 17 (3) of the
Act states that any person who acts in
contravention of this shall, on conviction,
be liable to a fine not exceeding RM500.
This section states that there shall be
strict application of the law to ensure
that no person is forced to perform any
religious obligation which is different to
that person’s religious belief.
The Rural and Regional Minister Shafie
Apdal was asked to explain why he
had denied that the children had been
slapped when he was clearly wrong to
have jumped to such a conclusion, which
pointed to a cover up by the government
in the investigation of this case.
Later, the Education Department and
Jakoa apologized for the incident. But
the parents asked for the apology to be
made in writing and publicized through
the media to ensure that it did not
happen again 5 . The school tried to claim
that “the children were encouraged to
say a prayer but not necessarily in the
Islamic way…” Nevertheless, the families
did not agree with this explanation
provided.
A few days later, circa 7 November
2012, the family of Hassan Achoi was
approached and offered RM300 to
retract the police report. 6 This offer was
made for each of the students slapped
and decided after the PTA meeting on
the same date. However, the PTA deputy
chairman Arom said the police report
would not be retracted, especially since
they had already consulted a lawyer
to see what they could do if no action
was taken. He added, “It is about our
dignity.”
The Deputy Education Minister Wee Ka
Siong confirmed in Parliament that the
incident did take place and said that
disciplinary action against the teacher
was “under way”. However, he said, it
was up to the police to investigate any
criminal offence which the teacher may
have committed.
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9/18/13 3:49 PM
Freedom of Malays to choose their
religion
In November 2012, another issue
regarding the freedom of religion
arose through a forum that was held in
Subang Jaya for 8 November, organized
by the Oriental Hearts and Minds
Study Institute and Islamic Renaissance
Front. One of the speakers was Nurul
Izzah Anwar, Members of Parliament of
Lembah Pantai as well as the daughter
of Opposition leader Anwar Ibrahim.
The next day, the UMNO-owned
newspaper “Utusan Malaysia” launched
an attack against her for allegedly
questioning the religion of the Malays:
“Melayu perlu bebas pilih agama?”
[Should Malays have the freedom to
choose religion?]. Subsequently, she was
accused of advocating apostasy among
Muslims – a claim she has vehemently
denied and has since threatened law
suits against both Utusan Malaysia and
Berita Harian. Deputy Prime Minister
Muhyiddin Yassin stepped into the row
by questioning why she was suing the
two dailies but not Malaysiakini.
Nurul Izzah had quoted a verse from
the Quran that there is no compulsion
in Islam. This was substantiated by the
fact that Dr Ahmad Farouk Musa had
also quoted the same verse from the
Quran. She added there is no specific
term for the Malays in the Quran and
that she is tied to the prevailing views
of the country she belongs to and the
prevailing laws of the country.
On 7 November, a popular Islamic
scholar Datuk Dr Mohd Asri Zainul
Abidini defended her and pointed out
that her remarks about Malays having
the freedom of religion meant there was
no compulsion in Islam. He added that
she had been misconstrued because
her views were not explained in detail.
Hence, Utusan Malaysia and Berita
Harian had published their defamatory
statements against her upon a wrongful
interpretation of her speech 8 .
Unfortunately, there were allegations
made against her based on Utusan
Malaysia and Berita Harian’s biased
report on what she had said. On 6
November, even the Sultan of Selangor
expressed regret and surprise at Nurul
Izzah’s alleged statement that Muslim
Malays should be free to choose their
religion. 9 Subsequently, the chairman of
the Selangor Islamic Religious Council
(MAIS) said his Highness totally rejected
any view that Malay Muslims are free
to choose other religions or renounce
Islam.
On 8 November, it was reported that
Nurul Izzah would lodge a complaint
against Utusan Malaysia with the
Selangor Islamic Religious Department
(JAIS) the next day 10 .
( Utusan Malaysia launched an attack against Nurul Izzah for
allegedly questioning the religion of the Malays, Photo courtesy
of Malaysiakini)
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9/18/13 3:49 PM
Freedom Of Religion
End notes
1
http://www.malaysiakini.com
news/205669 http://www.malaysiakini.
com/news/205704
2
http://apipenang.blogspot.
com/2012/08/video-pengaduan-dan
pengakuan-pakcik.html
3
http://www.malaysiakini.com
news/212654
4
news/213241
5
news/214496
6
http://www.malaysia-today.net/
mtcolumns/newscommentaries/52635nurul-izzah-to-tell-jais-apostasy-row-isutusans-fault
7
“Melayu bebas pilih agama?” frontpage
Utusan Malaysia, 5/11/2012
***Broken Link*** http://www.utusan.
com.my/utusan/Politik/20121105/po_05/
Melayu-perlu-bebas-pilih-agama?
8
***Retrieved from*** http://www.
malaysiandigest.com/bahasa
melayu/157871-melayu-perlu-bebas
pilih-agama.html
9
malaysia/article/mais-sultan-of-selangorregrets-statement-by-nurul-izzah
10 http://www.malaysiakini.com
133
9/18/13 3:49 PM
134
9/18/13 3:49 PM
CHAPTER 7:
REFUGEES
AND ASYLUM
SEEKERS IN
MALAYSIA
9/18/13 3:49 PM
I
n 2012, Malaysia had still to ratify
the 1951 UN Convention relating to
the Status of Refugees 1 and its 1967
Protocol and recognise refugees and
asylum seekers as a special category
of people who need international
protection under domestic laws. This
was despite recommendations to do so
by UN member states when Malaysia’s
human rights record was reviewed by
the UN Human Rights Council under the
Universal Periodic Review in February
2009.
Thus,
the
Malaysian
government
maintains its policy that blankets all
undocumented
migrants,
including
refugees and asylum seekers, as “illegal
migrants”. All persons found to be
undocumented, regardless of their
circumstances and how they become
undocumented, are subject to the
harsh stipulations of the Immigration
Act 1959/1963. 2 This Act provides
the Malaysian police and immigration
authorities
widespread
powers
to
arrest, detain, and eventually deport
undocumented persons.
UNHCR, Government Policies and the
Status of Refugees in Malaysia
As the “refugee” status is not officially
recognised in Malaysian law, recognition
by the United Nations High Commissioner
for Refugees (UNHCR) in itself generally
does not provide any special rights
under the immigration laws.
During the Universal Periodic Review of
Malaysia at the UN Human Rights Council
in February 2009, the United Kingdom
recommended that Malaysia “takes
further steps towards protecting human
rights of migrant workers, refugees and
their dependents, including through
the signature and ratification of the
1951 Convention relating to the status
of Refugees”, 3 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”. 4
However, the Malaysian government
did not accept these recommendations
and thus maintained its position of
non-recognition
of
refugees
and
asylum seekers. In its response to
these recommendations, the Malaysian
government
unambiguously
stated
that it “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”. 5
The Malaysian government, however,
asserted
that
it
“has
instituted
administrative arrangements to provide
assistance and protection to persons
claiming refugee status and/or asylum
seekers in possession of identification
documents issued by UNHCR, based on
humanitarian grounds on a case-by-case
basis”. 6
It further claimed that it is “improving
its legislative framework to establish
an appropriate mechanism for the
treatment of such persons”.3 The
government, however, did not elaborate
on this assertion.
Notwithstanding
this
claim,
law
enforcement authorities continue to
arrest and detain refugees and asylum
seekers due to their undocumented
status under the immigration laws.
As the government uses its nonratification of the Refugee Convention
as the basis for not protecting refugees,
UNHCR only acts in a “semi-official”
capacity in the protection of refugees
in the country. In practice, UNHCR
generally works on the basis of some adhoc understanding with officials at the
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9/18/13 3:49 PM
Refugees And Asylum Seekers In Malaysia
Immigration Department and police. As
a result, its ability to provide protection
to refugees and asylum seekers is
restricted.
Refugees and
Malaysia, 2012
Asylum
Seekers
in
Malaysia has hosted to a significant
refugee population since the Vietnamese
boat arrivals in 1975. According to
the Office of the United Nations High
Commissioner for Refugees in Malaysia
(UNHCR Malaysia), as at end May
2013 there were 104,070 refugees
and asylum-seekers registered with
them. 94,760 persons (91%) originated
from Myanmar (32,540 Chins, 28,560
Rohingyas, 10,550 Myanmar Muslims,
7,510 Rakhine, 3,390 Mon, and other
ethnicities from Myanmar) while persons
from countries such as Sri Lanka,
Somalia, Iraq and Afghanistan made
up the majority of the remaining 9%. 8
Approximately 70% of refugees and
asylum-seekers are men, while 30% are
women. 9 There are also some 23, 510
children below the age of 18. UNHCR
Malaysia also estimates that there are
a further 49,000 unregistered asylum
seekers in Malaysia. 10
On 1 November 2012, Home Minister,
Hishammuddin Hussein disclosed that
35,000 non-citizens were whipped under
S6(1) of the Immigration Act 1959/63
from 2005 to 2012. A total of 32,664
(93.3%) were found to have violated
the Immigration Act 1959/63 while the
remaining 2,336 (6.7%) were found
guilty under the Penal Code, Dangerous
Drugs Act 1952 and Drug Dependants
(Treatment and Rehabilitation) Act
1983. 11
Despite being the second largest refugee
hosting country in the region after
Thailand, Malaysia remains adamant
in not ratifying the 1951 Refugee
Convention and the 1967 Protocol
Relating to the Status of Refugees, often
citing unfounded fears that ratification
would cause more asylum seekers to
flock to Malaysia. Nevertheless, the
Malaysian government continues to
cooperate with UNHCR Malaysia on
humanitarian grounds.
The absence of a legislative or
administrative framework to deal with
the refugee population in Malaysia
has resulted in UNHCR conducting its
operations on a relatively small scale
and in a shadowy manner, often plagued
with tight budgets and work overload.
UNHCR provides support to asylum
seekers and refugees with the assistance
of NGO partners and faith based
organisations. As the number of refugee
population increases, this trend is set
to worsen in coming years unless the
Malaysian government takes concerted
efforts to address the refugee problem.
Refugee Boat Arrivals from Rakhine
State, Myanmar to Malaysia
The 2012 Rakhine State riots were a
series of ongoing conflicts primarily
between ethnic Rakhine Buddhists and
Rohingya Muslims in northern Rakhine
State. The 2012 riots were triggered
by two incidents that affected peace
and security in Rakhine State. Firstly
the alleged rape, robbery and killing
of a young woman by three youths in
Yanbye township on 28 May 2012 and
the subsequent killing of ten persons
(allegedly Rohingyas) in a passenger bus
in Taungup township on 3 June 2012.
In the two cases, the first victim was
a Rakhine Buddhist female and the
latter case, victims were Muslim males.
Following the two incidents, riots broke
out in Sittwe, Maungdaw and Buthidaung
townships where rioters torched and
destroyed houses, shops and guest
houses and committed atrocities. Border
security force Nasaka, supported by the
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Burmese government was implicated
in shooting to death many Rohingyas.
Since the riots, there has been a steady
stream of boat arrivals from Rakhine
State.
On 18 Dec 2012, Malaysia had allowed
40 persons, believed to be from Rakhine
State, from the MV Nosco Victory
to disembark on Malaysian shores.
The 40 persons were rescued in the
Bay of Bengal by MV Nosco Victory;
a Vietnamese cargo ship after their
overcrowded boat sank. The MV Nosco
Victory was not given permission for
entry by Singapore’s Maritime and Port
Authorities before it entered Malaysian
territorial waters. The boat was initially
carrying 220 persons on board and
many had perished along the way. 12
However, until today UNHCR Malaysia
has no access to the 40 persons and the
whereabouts of this group is unknown. It
is further noted that a second ship which
rescued more survivors from the boat
that sank was not allowed to disembark
in Malaysian waters and was believed to
have proceeded to Indonesia.
As at 11 March 2013, UNHCR recorded
11 boats, making the treacherous journey
across the Indian Ocean, carrying some
2500 person, believed to be mostly
Rohingyas from Myanmar arriving on
Malaysian shores. UNHCR also recorded
500 deaths at sea in 2012. 13
http://www.nst.com.my/latest/unhcrcard-in-malaysia-will-be-upgradedahmad-zahid-1.317568
From news reports, it would appear
that the authorities, including the Home
Ministry and local population do not
seem to know the difference between
migrants and refugees and seem to
refer to them in the same breath. Even
journalists (online and print) often do
not verify claims and categorise migrants
and refugees in the same category. Thus,
a clash between segments of the migrant
population would result in policies
affecting the refugee population as
well. We require greater awareness and
media sensitivity toward refugee issues
in Malaysia.
The impact of the clashes in Myanmar
put the spot light on the Rohingya
population in Malaysia with the former
ex-PM, Tun Mahathir championing the
cause of Rohingya through the Perdana
Global Peace Foundation of which he is
the President.
On 24 June 2012, the Foundation issued
a press release “Persecution of the
Rohingya”.
http://www.perdana4peace.org/2012/
press-release-persecution-of-therohingya/
The Foundation also organised a
conference on the “Plight of Rohingya:
Solutions?” on Sept 2012. In his keynote
address, Tun Mahathir called upon the
Myanmar government to recognise
Rohingya as Myanmar nationals.
http://www.perdana4peace.org/2012/
tun-dr-mahathir-speech-at-plight-ofrohingya-solutions/
h t t p : / / w w w. p e rd a n a 4 p e a c e .
org/2012/press-release-internationalconference-on-plight-of-the-rohingyasolutions/
h t t p : / / w w w. n s t . c o m . m y / n a t i o n /
general/recognise-rohingya-ascitizens-dr-m-tells-myanmar-1.145075
138
9/18/13 3:50 PM
While Tun Mahathir’s move to support
refugee groups is most welcomed,
prominent personalities such as Tun
Mahathir should be cautioned that
the refugee issue should be seen as a
refugee issue and not a Muslim or any
ethnic issue. Highlighting the plight
of refugees as a Muslim issue will only
further pit one refugee population
against another which may result in
clashes among these migrant/refugee
communities in Malaysia.
Children
of all refugee groups in Malaysia are
in desperate need of education and
Malaysians should be encouraged to
support all refugee groups regardless of
their origins.
In June 2012, more than 3,000 Muslim
Rohingyas
protested
outside
the
Burmese Embassy demanding urgent
international intervention to stop the
killings and violence against Muslim
Rohingyas.
Clashes
between
the
Buddhist Rakhines and minority Muslim
Rohingyas had left dozens dead and
more than 30,000 displaced. 14
In August 2012, the Young Buddhist
Association of Malaysia called for an
immediate end of all violence and
bloodshed in Arakan against minority
Muslim Rohingyas. Official statistics
from the Burma’s National Human
Rights Commission showed that at least
78 people were killed whilst Amnesty
International recorded about 90,000
were displaced. 15
In November 2012, Parti Keadilan Rakyat
MP for Lembah Pantai, Nurul Izzah Anwar
filed a motion to the Dewan Rakyat to
debate the bloody ethnic riots between
the Rohingyas and Rakhines which has
now caused about 200 lives and nearly
30,000 people displaced but it was
rejected by the Dewan Rakyat Speaker.
It was reported that the motion was
rejected because the Foreign Ministry
had already addressed the matter
through various public statements
expressing concerns and intention to
provide aid to Burma. 16
Arrival of Syrian Refugees in Malaysia
According to UN estimates, the Syrian
conflict has resulted in more than
60,000 deaths and more than 1.9 million
Syrian refugees fleeing to neighbouring
countries. Women and children make
up three-quarters of this number. If
the trend continues, UN estimates that
there would be three million Syrian
refugees by end of 2013. 17 Although
the exact number of Syrian asylum
seekers in Malaysia remains unknown,
Sahabat Support Centre (SSC), a project
of Malaysian Social Research Institute
(MSRI) registered 60 families in Malaysia.
The Syrian asylum seekers will join the
rest of the asylum seekers in Malaysia in
its long wait to receive its refugee status
with first interviews likely to happen only
in 2014. 18
6P Program
Almost a year after the introduction
of the 6P Program, Home Minister
Hishammuddin Hussein had on 5/4/2012
announced that the 6P Program will
cease operation when it expires on
10/4/2012, citing that information
obtained from the program is sufficient
for all interested parties. 19 Earlier, Kajian
Politik Untuk Perubahan (“KPRU”)
has pointed out that 6P has failed in
several ways and that the focus should
be put on resolving corruption, noncitizen oriented economy structure and
implementation of policies in relation
to non-citizens. Lashing out at 6P, KPRU
has claimed that the 6P was used to fund
the expenses of 13th General Election.
20
It is also revealed that former Home
Minister and current MP for Kangar,
Mohd Radzi Sheikh Ahmad is a director
of SNT Universal Corporation Sdn Bhd,
an agent appointed by the government
139
9/18/13 3:50 PM
in the 6P Amnesty program. Other
directors include former president of
Jasin City Council, Mustadza Abu Bakar
and Malacca Puteri UMNO leader,
Rozilahwati Kalil.
status and hence denied education and
employment opportunities. Being noncitizens, they are not covered under
the Social Security Organisation or
Employee Provident Fund schemes. 27
Police
investigation
revealed
that
SNT had committed several offences
including falsely representing itself to
non-citizens that it is able to register
non-citizens under the 6P program, able
to obtain work permits for them and
setting up dozens of bogus employment
agencies. 21 Selangor Council Against
Human Trafficking (“MAPMAS”) also
released a CCTV recording of violent
assaults of job-seeking non-citizens by
the bogus employment agencies. 22
Violation
of
refoulement
Statelessness issue
Stateless cases in Malaysia escalated
at a worrying degree. In June 2012,
Pertubuhan
Kebajikan
dan
Sosial
Malaysia claimed that the Social Welfare
Department had failed to issue birth
certificates to Malaysian orphans. The
Home Ministry has since been asked why
1,758 people who had been under the
care of government-operated welfare
homes have grown up to be stateless. 23
PKR vice-president, N. Surendran had
earlier claimed that about 300,000 24
Indian Malaysians are either without
blue identity cards, birth certificates or
both. Citing examples from previous
rejected applications under Article 16
(meant for foreigners) instead of Art 14 25
of the Federal Constitution, the lawyer
challenged the cabinet to resolve the
long-standing issue within a week as it is
duty-bound to guarantee the livelihood
of its citizens.
He had also highlighted the plight of
many facing difficulties to sit for Sijil
Pelajaran Malaysia (“SPM”) examinations
as the main requirement to sit for the
examinations is an identity card.8
Many are still on permanent resident
Principle
of
Non-
In a parliamentary session on 18 Oct
2012, YB Dato’ Seri Mohamed Nazri
Abdul Aziz, then Minister in the Prime
Minister’s Department replied that
the Malaysian government on its own
accord and bilaterally was working with
international organisations to solve
the refugee problem. The Minister
also stated that the government’s
National Security Council had formed
a “Mekanisme Pengurusan PATI” (PATI
Management Mechanism) since 2009
comprising of relevant ministries and
agencies. A committee was formed
under the management to study,
discuss and find solutions for UNHCR
card holders. He goes on to state that
Malaysia allows UNHCR card holders to
remain in the country on a temporary
basis pending repatriation to country of
origin or resettlement to third countries.
However Malaysia’s deportation record
paints a different picture.
On 5 Sept 2003, Malaysia deported
seven asylum seekers to then strife-torn
Indonesian province of Aceh, despite
concerns raised by UNHCR Malaysia. 28
In March 2005, following raids to detain
illegal immigrants, it was reported
that then Deputy Prime Minister had
threatened to deport refugees with
UNHCR cards. 29
On 10 Jan 2011, International Campaign
for Human Rights in Iran reported that
Malaysia had threatened to deport
UNHCR refugee card holder and activist
journalist Ali Hosseinpoor Jamshidi,
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9/18/13 3:50 PM
a host on the satellite station Rasa TV,
back to Iran. 30
Human Rights Watch (HRW) questioned
Malaysia on the whereabouts of five
Uighurs, including a Uighur man married
to a Malaysian citizen, arrested in raids
on 6 Aug 2011. HRW believed that the
five could have been deported to China
following similar spates of deportations
in neighbouring countries of Thailand,
Cambodia and Pakistan. 31
On 12 February 2012, the Malaysian
government deported Hamza Kashgari
Mohamad Najeeb, a Saudi poet and a
former columnist for the Saudi daily
newspaper al-Bilad to Saudi Arabia,
where he risked being sentenced to death
on charges of apostasy after he tweeted
about the prophet Mohammed. 32 Several
international NGOs including Amnesty
International and Human Rights Watch
had called on the Malaysian government
not to extradite Kashgari after his arrest
at the KL International Airport on 9 Feb
2012 on his way to New Zealand to
seek political asylum. Malaysia claimed
that Kashgari was detained “following
a request made to us by Interpol”, a
claim they later withdrew when Interpol
denied any involvement. 33
In an unusual court sitting on a Sunday,
human rights lawyers, N. Surendran
together with Fadiah Nadwa Fikri
had successfully secured an interim
injunction to stop Kashgari’s deportation
but upon rushing to the airport, Fadiah
was informed by the Immigration that
Kashgari had already been deported.
Outraged by the foul play, N. Surendran
stated that the Home Ministry and police
have withheld crucial information as to
Kashgari’s whereabouts and that the
deportation plans were deliberate and
unlawfully withheld from the lawyers. 34
Senior Middle East researcher of
Human Rights Watch, Christoph Wilcke
(Hamza Kashgari)
had earlier called on the Malaysian
government not to be “…complicit in
sealing Kashgari’s fate by sending him
back…” 35 Equally outraged, President
of the Malaysian Bar, Lim Chee Wee
stated that “…it would appear that the
Malaysian government has sacrificed
Hamza Kashgari’s liberty and life for
the sake of diplomatic expediency. This
must not be repeated…”
Kashgari was reportedly to have
repented before a syariah court in
Riyadh in the presence of his family and
that it is likely that he will face a lighter
sentence. However, mounting pressures
to execute Kashgari is rising by the day
with scholars saying that anyone who
insults the Prophet should be killed. 36
On 31 December 2012, the Malaysian
government deported six Uighurs to
China. The six were detained earlier for
attempting to leave Malaysia on false
passports. UNHCR were processing
their refugee claims when the Malaysian
authorities handed them into the custody
of Chinese authorities, who escorted
them back to China on a chartered
flight. 37
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9/18/13 3:50 PM
UNHCR Malaysia’s role in determining
the status of an asylum seeker allows it
to extend its protection to them so that
Malaysia, as a host country, adheres to
the international law principle of nonrefoulement (non-forcible return). While
Malaysia is a member of United Nations
Human Rights Council, it continues to
violate this key facet of refugee law.
Questionable future in Malaysia
Refugees and asylum seekers (unlike
economic migrants) are victims of
persecution by their government or
fellow citizens in their land of origin.
They have been compelled to abandon
everything at home, fleeing to a foreign
shore to seek safety and refuge. They
have arrived through land or battled
rough oceans in boats only to face a
bleaker future in Malaysia.
Malaysian law does not expressly
recognise the concept of refugees or
asylum seekers. They are treated under
Malaysian laws as “illegal immigrants”,
and are thus vulnerable to arrest,
detention, imprisonment, whipping and
deportation. They are also confronted
with the workings of a legal system that
is not properly geared to accord them
due process, care and protection.
Refugees and asylum seekers do not
receive any form of funding or assistance
from
the
Malaysian
government.
Through the efforts of UNHCR Malaysia
and NGOs, refugees and asylum seekers
registered with UNHCR have access
to government health care clinics but
are still required to pay half the rate
charged to foreigners. They face a daily
battle to find financial means to pay for
schooling, health care, shelter, food and
basic essentials for themselves and their
families. The hardship is perpetuated
by the fact that Malaysia does not allow
them to seek lawful employment. Many
are forced to work in informal sectors
and are subjected to exploitation by
certain employers in the form of nonpayment of wages, long working hours
and dangerous working conditions.
Despite having UNHCR cards, they still
face constant harassment, extortion,
abuse and ill-treatment by enforcement
officer and members of the public. This
climate of fear and security prevents
many from travelling out to work, restricts
movements of women to contribute to
the family income and deters children
from going to schools set up by the
communities or NGOs.
In Feb 2010, the then Home Ministry
Secretary General YB Datuk Seri
Mahmood Adam announced that the
government was in the final stages
of initiating an ID card for refugees
to enable them to stay in the country
without fearing arrest. He stated that
refugees cannot work but can do odd
jobs. No interpretation on the meaning
of odd jobs was offered.
Whether the rhetoric will be transformed
into action is left to be seen.
Conclusion
In 2012, despite recommendations
by several UN member states, the
Malaysian government unambiguously
stated its refusal to ratify the 1951
Convention relating to the Status of
Refugees. Thus, gross violations of the
rights of refugees and asylum seekers
continued, as was seen in the mass
arrests of undocumented migrants and
even UNHCR-recognised refugees.
We recommend
Government:
that
the
Malaysian
1. Ratifies the 1951 Refugee Convention
and the 1967 Protocol Relating
to the Status of Refugees, both of
which are instruments encapsulating
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9/18/13 3:50 PM
customary international law in
relation to the recognition of the
socio-economic rights of refugees
and the provision of humanitarian
assistance and social integration for
them.
2. Looks at the very detailed proposals
that were jointly submitted to it by
UNHCR Malaysia and the Malaysian
Bar under the heading “Developing
a Comprehensive Policy Framework
for Refugees and Asylum Seekers”
which maps out short-term, mediumterm and long-term measures
needed to address the issue of
refugees and asylum seekers.
3. As a current member of the United
Nations Human Rights Council,
should reflect the highest standards
and norms of international human
rights in the treatment of refugees
and asylum seekers in Malaysia.
4. Works closely with stakeholders such
as UNHCR Malaysia, civil society
organisations and the Bar to put
in place an appropriate legal and
administrative framework for dealing
with refugees and asylum-seekers in
a more humane and appropriate,
and less arbitrary manner.
5. Respects and adheres to the
principle of non-refoulement, which
is part of customary international
law;
6. Persuades the governments of
refugee-producing
countries
to
recognise that it is governmental
policy or action which is causing
refugees and asylum-seekers to
leave their country of origin.
7. Stops
arresting
refugees
and
asylum-seekers who are already
in Malaysia for not possessing
the documentation required by
Section 6 of the Immigration Act.
Alternatively, invoke the power of
exemption provided by Section 55
of the Immigration Act.
8. Put into place a moratorium on
whipping as a sentence for breaches
of the Immigration Act, and
expedite the training of judicial and
legal service officers in international
human rights norms (particularly the
non-acceptability of whipping);
9. Allow refugees to register their
marriages with the Civil Registry
using their UNHCR identity cards as
a recognised and acceptable form
of identification;
10. Allow Muslim refugees and asylumseekers to access the Syariah court
system whereby various family
disputes
including
marriage,
divorce, maintenance and custody
can be adjudicated upon;
11. Allow, assist and support access
to vocational schools, technical
education and vocational training
centres for “out-of-school” refugee
and asylum-seeking youth under
the age of 18 years, and to tertiary
education and public colleges and
universities for qualified refugee
and asylum-seeker youth;
12. Ensure better access to health care
services for refugees and asylumseekers and to apply rates paid by
Malaysians for public health services
to refugees and asylum-seekers;
13. Allow refugees and asylum seekers
to access lawful employment as
announced recently. The Malaysian
Government should ensure that a
proper recruitment and monitoring
system under the Ministry of Human
Resources is put in place to move
this forward. The Ministry has the
143
9/18/13 3:50 PM
necessary personnel and expertise
to ensure that refugees and asylum
seekers are accorded the basic
labour rights of a decent wage, fair
working hours, off-days, medical
benefits and workplace health
and safety protection, and are not
exploited or trafficked in anyway.
144
9/18/13 3:50 PM
End notes
1
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.
2
Act 155, as amended by Immigration
Regulations 1963 (Act A719).
3
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.
4
Ibid.
5
Ibid.
6
Ibid.
7
[7] Ibid.
8
Sourced from UNHCR Malaysia website
- http://www.unhcr.org.my/About_Us-@Figures_At_A_Glance.aspx
9
Sourced from UNHCR Malaysia website
10 Sourced from UNHCR Malaysia website
11 35,000 foreigners whipped since 2005,
freemalaysiatoday, 1/1/2012, http://
www.freemalaysiatoday.com/category/
nation/2012/11/01/35000-foreignerswhipped-since-2005/ (last accessed:
24/11/2012)
12 http://www.unhcr.org.my/News_Views-@PressReleaseMVNoscoVictory.aspx)
13 Rescued Rohingya refugees remanded
http://thestar.com.my/news/
story.asp?file=/2013/3/12/nation/
12823665&sec=nation
14 http://www.unhcr.org.my/News_Views-@PressReleaseMSRescueSinkingBoat.aspx
15 http://data.unhcr.org/syrianrefugees/
regional.php
16 Rohingyas in Malaysia protest violence,
accessed: 24/11/2012)
17 Burmese gov’t must end Rohingya
massacre, Malaysiakini, 16/8/2012,
letters/206501 (last accessed:
26/11/2012)
18 Debate over Myanmar violence
rejected, freemalaysiatoday, 8/11/2012,
category/nation/2012/11/08/debateover-myanmar-violence-rejected/ (last
accessed: 24/11/2012)
19 Program 6P tidak akan lanjut,
Utusan Malaysia, 5/4/2012, http://
www.utusan.com.my/utusan/info.
asp?y=2012&dt=0405&pub=Utusan_
Malaysia&sec=Terkini&pg=bt_09.htm
(last accessed: 26/11/2012)
20 Program 6P dijangka gagal,
nation/2012/03/02/program-6p-dijangkagagal/ (last accessed: 26/11/2012)
21 Ex-Minister Radzi a boss in rogue 6P firm,
nation/2012/11/23/ex-minister-radzi-aboss-in-%E2%80%98rogue%E2%80%996p-firm/ (last accessed: 26/11/2012)
145
9/18/13 3:50 PM
22 CCTV exposes 6P agents abusing foreign
workers, freemalaysiatoday, 5/11/2012,
category/nation/2012/11/05/caughton-cctv-%E2%80%93-6p-agentsabusing-foreign-workers/ (last accessed:
26/11/2012)
23 No birth certs for orphans in gov’t
welfare homes, Malaysiakini, 4/6/2012,
24 Approximation based on Parti Keadilan
Rakyat’s ground data and population
study
25 citizenship is by operation of law for
persons born before or after Malaysia
Day in 1963; while Article 16 states
that the federal government may,
upon application made by any person
of or over the age of 21 years who
is not a citizen, grant a certificate of
naturalisation to that person if satisfied
26 Gov’t classifying stateless Indians as
foreigners, Malaysiakini, 25/4/2012,
31 http://www.hrw.org/news/2011/08/22/
malaysiachina-prevent-forced-returnuighurs
32 Article 19 (2012) Saudi Arabia and
Malaysia violate rights of Saudi tweeter,
22 February, available at: http://www.
unhcr.org/refworld/docid/4f4b66d02.
html, accessed 11 March 2013.
33 http://www.theguardian.com/
world/2012/feb/10/interpol-journalistarrested-muhammad-tweet
34 http://www.hrw.org/news/2013/02/03/
malaysia-stop-forced-returns-china
35 M’sia deports Saudi journalist Kashgari,
accessed: 26/11/2012)
36 ibid
37 Apostate Saudi writer repents at
court, Emirates 24/7, 8/3/2012,
http://www.emirates247.com/crime/
region/apostate-saudi-writer-repentsat-court-2012-03-08-1.447298 (last
accessed: 26/11/2012)
27 Stateless Indians want PM to end lifelong
agony, Malaysiakini, 16/4/2012, http://
www.malaysiakini.com/news/195148
28 http://www.unhcr.org.my/News_Views@-Malaysia_deports_asylum_seekers_to_
Aceh_despite_UNHCR_appeal__.aspx
29 http://www.refworld.org/
docid/42c928925.html / http://www.
unhcr.org.my/News_Views-@-UNHCR_
urges_Malaysia_to_protect_refugees_
during_crackdown.aspx
30 http://www.iranhumanrights.
org/2012/01/ali-jamshidi/
146
9/18/13 3:50 PM
CHAPTER 8:
DEATH
PENALTY IN
MALAYSIA
9/18/13 3:50 PM
M
alaysia still retains the death
penalty, having also in its laws
the mandatory death penalty
for certain crimes such as murder and
drug trafficking. Globally, the majority
of nation states have abolished death
penalty; some are abolitionist de jure
(abolitionist in law) while others are
abolitionist de facto (abolitionist in
practice). Abolitionist de facto refers to
countries that have the death penalty in
their laws but for the past ten years or
so have not carried out any execution.
Today, there are 140 countries that are
total abolitionist in law or practice,
while 58 countries still retain the death
penalty.
In Malaysia, some offences like murder
and drug trafficking carry the mandatory
death penalty 2 , whereby on conviction
judges have no choice but to sentence
the person to death by hanging. For
drug trafficking, this law also provides
for legal presumptions, whereby on
showing custody of a certain defined
quantity of drugs, the burden shifts to
the accused to prove that it was not
his/her possession or that he/she did
not know the existence of the drugs
and/or also that he/she is not a drug
trafficker. These are near impossible
to prove, more so since most accused
persons would not have the resources
and capacity to do so. This shifting of
burden on proof also goes against the
norm whereby it is the prosecution and
not the accused person, who bears the
burden of proving the commission of the
crime beyond reasonable doubt. Drug
traffickers make up the largest number
of persons hanged, and also form the
majority on death row. 3
With regard to executions, the last
media reported execution was on
19/12/2008, one Hanafi Mat Hassan,
who was convicted of the murder and
rape of computer engineer Noor Suzaily
Mukhtar 4 . Before this, in July/August
2006, 4 persons were reported hanged
to death. Mohamed Amin Mohamed
Razali, the leader of the militant AlMau’nah group convicted for waging
war against the Yang di-Pertuan Agong,
was hanged in August, whilst Zahid
Muslim, Jemari Jusoh and Jamaludin
Darus were hanged earlier in July. 5 Were
there any other executions during that
period, or after 2008? Unfortunately
in Malaysia, obtaining this information
is most difficult. However, in a draft of
the Malaysian government’s submission
for the upcoming Universal Periodic
Review(UPR) scheduled
for later in
2013 (the last UPR being in 2009), it
was reported to have been 4 executions
since the last review. 6
From the limited data obtained, usually
through
answers
to
Parliamentary
questions, we do know that between
1960 and March 2010, 441 persons had
been hanged to death. As of July 2013,
there are 964 persons on death row. 7
Malaysian Death Penalty (1960 – March
2011) 8
Drug
Trafficking
Executed
Death Row
228 [52%]
479 [69%]
Firearms
130 [29%]
13 [2%]
Murder
78 [18%]
204 [29%]
Others
5 [1%]
TOTAL
441
696
Malaysia – Against the Global Trend and
a non-adherent of UN General Assembly
Resolutions
The global trend is for the abolition
of the death penalty, reflected in the
ever increasing votes cast in favour of
abolition at the United Nations General
Assembly. On 18 December 2007,
the UN General Assembly endorsed a
resolution (Resolution 62/149) calling
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9/18/13 3:50 PM
Death Penalty In Malaysia
for “a moratorium on executions” by
an overwhelming majority: 104 votes in
favour, 54 against and 29 abstentions.
In 2008, 106 countries voted in favour
of the resolution, 46 voted against and
34 abstained. In 2010, 108 countries
voted in favour, with 41 against and 36
abstentions. On 20/12/2012, UN General
Assembly’s 4th Resolution, 111 voted
in favor, 41 against, 34 abstentions.
Malaysia sadly, voted against in all these
resolutions, and has also been seen as
not complying with these democratically
passed resolutions of the UN General
Assembly.
Increasing support for abolition of the Death Penalty in Malaysia
(Campaign to save life of Vui Kong, Photo courtesy of Malaysiakini)
The cases of Umi Azlim Mohamad Lazim 9 ,
Yong Vui Kong 10 , Ong Kim Fatt and others
have significantly affected Malaysians,
who have started to look again at the
death penalty, especially with regard to
drug offences. These cases helped to
humanize the often invisible victims who
are executed by the State. Malaysians,
including political parties both in
government and in the opposition, have
come out to support persons facing the
death penalty in foreign countries, 11
calling also for their death sentence to
be commuted to imprisonment. In the
case of Umi Azlim, this was successful.
An obvious contradiction emerged given
that Malaysia also has the death penalty
for drug trafficking.
In 2006, the Malaysian Bar, then
representing about 12,000 lawyers
in Peninsular Malaysia, adopted a
resolution by majority calling for the
abolition of the death penalty. In March
2012, a similar resolution was passed,
this time unanimously, and this is
149
9/18/13 3:50 PM
significant given the multi-ethnic and
multi-religious membership reflective of
the Malaysian population.
In October 2012, the Malaysian Human
Rights Commission (SUHAKAM) 12 also
publicly called upon the Government
“…to
review
the
relevance
and
effectiveness of capital punishment
and to join the other 140 UN member
states to completely abolish the death
penalty.”
Then in early November, 79 groups 13
including SUARAM, ALIRAN, Jaringan
Rakyat Tertindas (JERIT), Kesatuan
Pekerja Pekerja Polyplastics Asia Pacific
(KPPAP) and Parti Rakyat Malaysia,
publicly called for the abolition of
the death penalty in Malaysia. The
Association for the Promotion of Human
Rights (PROHAM) also made a similar
call.
A study by the Death Penalty Project 14
in collaboration with the Malaysian Bar
Council was conducted at the end of
2012. This involved a major public opinion
survey of the views of a representative
sample of 1,535 Malaysian citizens on
this issue. It revealed that while in theory
many supported the death penalty, when
confronted with specific scenarios, the
majority was in favour of abolishing
the death penalty, most certainly the
mandatory death penalty.
The Malaysian Catholic Church during
their recent 40-day 2013 Lenten
Campaign also made the abolition of
the death penalty a priority, whereby
not just many awareness sessions were
conducted but also a signature petition
was carried out. This was also carried out
online. It was significant, being the first
time Malaysian Christians had done so
with regard to the issue of death penalty.
The problem in Malaysia is that many
people are still not aware of the
arguments for or against the death
penalty. Their only exposure has been
what the government wishes them to
know, and the perception generated
is that the death penalty is needed to
deter crime.
Malaysia admits that Death Penalty
fails to act as a Deterrent
In March 2012, in Parliament the
admitted that the mandatory death
penalty has been shown to have failed
to act as a deterrent 15 . Police statistics
for the arrests of drug dealers under
Section 39B of the Dangerous Drugs
Act 1952, which carries the mandatory
death penalty, for the past three years
(2009 to 2011) had shown an increase. In
2009, there were 2,955 arrested under
this section. In 2010, 3,700 people
were arrested, whilst in 2011, there were
3,845 arrested.
Malaysia is looking into abolishing the
death penalty
The Malaysian government has been
looking into the abolition of the
mandatory death penalty, if not the death
penalty. In particular, the death penalty
for drug offences has been shown to be
problematic when it is realised that many
of those who have been executed and/
or are currently in death row are merely
mules 16 and not the kingpins in the drug
trade, hence they do not deserve the
death penalty.
“No executions will be carried out on
drug mules and traffickers imprisoned
here until the government finishes a
study on abolishing the death penalty
applicable to the Dangerous Drugs Act
1952 ,” was the assurance given by then
de facto Law Minister, Nazri Abdul Aziz
in late 2012.
17
150
9/18/13 3:50 PM
Singapore
recently
made
some
amendments to the law with regard to
murder and drug trafficking, giving the
judge discretion to impose a sentence
other than death penalty in certain cases.
In drug trafficking cases, the power rests
with the prosecution who, if they provide
a certificate stating that the convicted
person
has
provided
“substantive
assistance” to the authorities 18 , then
judges can impose a penalty other
than death. The power hence rests with
the prosecutor and not the judge, and
this goes against the rules of justice sentencing discretion should always be
the prerogative of the judiciary, never
with the prosecutor.
Malaysia needs to abolish the death
penalty, now present not in the Syariah/
Islamic law but in its ordinary criminal
laws.
151
9/18/13 3:50 PM
End notes
1
This chapter is written by Charles Hector,
Coordinator of Malaysians Against Death
Penalty & Torture (MADPET)
2
Murder (sec. 302, Penal Code), drug
trafficking (sec. 39B Dangerous Drugs
Act 1952), the discharging of a firearm
with intent to cause death or hurt to any
person, shall, notwithstanding that no
hurt is caused (sec. 3 Firearms (Increased
Penalties) Act 1971) while committing
the any of the following offences,
being (a) Extortion, (b) Robbery, (c)
preventing or resisting by any person,
of his own arrest or the arrest of another
by a police officer or any other person
lawfully empowered to make the arrest,
(d)Escaping from lawful custody, (e)
Abduction or kidnapping under sections
363 to 367 of the Penal Code and
section 3 of the Kidnapping Act 1961,
or (f) House-breaking or house-trespass
under sections 454 to 460 of the Penal
Code … ,waging war against the King
are some of the mandatory death penalty
offences.
3
Since 1960, 52% or 228 human beings
in Malaysia who were hanged to death
were for drug trafficking, and 479 or 69%
of those currently in death row are there
for this offence.
for what offences they were hanged. The
language used is also vague.
7
Malaysiakini, 9/7/2013, Kluang MP: High
time to end mandatory death penalty –
information from reply to a Parliamentary
question
8
Home Minister Hishammuddin Hussein’s
reply to Bukit Bendera MP Liew
Chin Tong’s question last Thursday
(31/3/2011) in Parliament - Free Malaysia
Today, 3/4/2011, Time to abolish death
sentence.
9
Umi Azlim Mohamad Lazim, 24, a
university science graduate from a poor
Malay family of rice farmers, admitted
to having 2.9 kilograms in her luggage
when she was arrested at Shantou
airport, and she was sentenced to death
in China. Her sentence was commuted to
imprisonment.
10 Yong Vui Kong, a Malaysian from Sabah,
was 19 when he was sentenced to hang
in 2008 for smuggling 47 grams (1.65
ounces) of heroin into Singapore. He was
18 when he committed the offence. He
still faces the death penalty.
11 In 2009, there were about 30 Malaysians
on death row overseas, today it is
estimated that there are about 250.
4
New Straits Times, 20/12/2008 - Noor
Suzaily murder case: Long eight-year wait
for justice - Malaysiakini, 19/12/2008
Noor Suzaily’s killer hanged
12 Media Statement by Tan Sri Hasmy
Agam Chairman ,The Human Rights
Commission of Malaysia (SUHAKAM) 22
October 2012
5
Bernama, August 04, 2006 Militant
Group Al-Mau’nah Leader Hanged
Star, August 5, 2006 Al-Ma’unah leader
Mohd Amin hanged
6
This draft was submitted to civil society
groups in preparation of a meeting
between government and civil society in
preparation for the upcoming UPR, but
there are no specifics as to who, when or
13 ALIRAN (Aliran Kesedaran Negara),
Malaysia * Amnesty International
Malaysia * Catholic Lawyers Society,
Malaysia * Civil Rights Committee
KLSCAH (KL & Selangor Chinese
Assembly Hall), Malaysia * Civil
Society Committee of LLG Cultural
Development Centre, Malaysia*
Community Action Network (CAN),
Malaysia * Jaringan Rakyat Tertindas
152
9/18/13 3:50 PM
(JERIT), Malaysia *Kesatuan Pekerja
Pekerja Polyplastics Asia Pacific (KPPAP),
Malaysia* Lawyers for Liberty, Malaysia
* MADPET (Malaysians Against Death
Penalty and Torture) * Malaysians for
Beng Hock* Migrant CARE – Malaysia *
NAMM (Network of Action for Migrants
in Malaysia)* National League for
Democracy (Liberated Area) Malaysia
* Parti Rakyat Malaysia (PRM) *
Persatuan Kesedaran Komuniti Selangor
(EMPOWER) * Persatuan Masyarakat
Selangor dan Wilayah Persekutuan
(PERMAS), Malaysia * Persatuan Sahabat
Wanita Selangor (PSWS), Malaysia *
Pusat Komunikasi Masyarakat (Komas),
Malaysia * Save Vui Kong Campaign,
Malaysia * Saya Anak Bangsa Malaysia
[SABM]* Seksualiti Merdeka, Malaysia *
SUARAM, Malaysia* Tenaganita, Malaysia
* WH4C (Workers Hub For Change) *
Women’s Aid Organisation (WAO) *
Writers Alliance for Media Independence
(WAMI), Malaysia * Women’s Centre for
Change, Malaysia * Malaysian Physicians
for Social Responsibility(MPSR) = 29
Malaysian Groups – including 1 Trade
Union, and 1 Political Party which
came with a Joint Statement ‘Call for
the Abolition of the Death Penalty in
Malaysia’ dated 3/11/2012.
18 Wall Street Journal, 11/4/2013,
Singapore Drug Courier Dodges Death
Penalty Under New Rule - Here one
didn’t meet the criteria for a discretionary
penalty, according to a statement by
the Attorney-General’s Chambers, the
agency in charge of public prosecution,
and was sentenced to death, whilst the
another satisfied the requirement of
providing “substantive assistance” was
not sentenced to death.
14 http://www.deathpenaltyproject.org/
news/1532/dpp-launches-report-on-thepublic-opinion-survey-on-the-mandatorydeath-penalty-in-malaysia/
15 Free Malaysia Today News, 19/3/2012,
Death penalty not deterring drug trade
16 “…Malaysian lasses are an easy lot to
charm. They are easily smitten by sweet
words and gifts, making them an easy
target for drug-trafficking syndicates
looking for mules…’ (Star, 1/11/2009,
Malaysian girls easily duped)
17 FMT News, 24/10/2012, Drug-related
executions on hold
153
9/18/13 3:50 PM
154
9/18/13 3:50 PM
CHAPTER 9:
FREE AND FAIR
1
ELECTIONS
9/18/13 3:50 PM
A
s the 13th General Elections
(GE13)
loomed
large,
2012 was important in the
struggle for electoral reform with a
parliamentary panel set up in 2011,
whose recommendations led to some
limited reforms and whose failure led
to the Bersih 3.0 rally which reportedly
attracted some 250,000 participants on
April 28. The BN government’s heavyhanded crackdown of the Bersih 3.0 rally
in central Kuala Lumpur – when similar
rallies were peacefully held in more than
80 cities and towns across the nation
and elsewhere round the globe – had
caused politics in 2012 to be defined by
the cause of electoral reform. Thanks to
these developments, many Malaysians,
including tens of thousands who worked
or resided overseas for years found their
passion for democracy ignited, which
would eventually lead to a record voter
turnout of 85% in May 2013.
This chapter will focus on the advocacy
and implementation of electoral reforms
in 2012 especially the recommendations
proposed by a bipartisan Parliamentary
Select Committee (PSC) on Electoral
Reform, officially appointed by the
Lower House on October 3. The PSC was
part of the political reforms dished out
by the embattled Prime Minister Najib
Razak after his disastrous crackdown
of the Bersih 2.0 Rally on July 9, 2011
which attracted some 50,000 protesters
despite police arrests and the threat of
violence by ultra-right groups.
The PSC consisted of nine members
– five from the ruling coalition Barisan
Nasional: Maximus Johnity Ongkili
(PBS, Minister of Science, Technology
and Innovation, and the PSC chairman),
Mohd Radzi bin Sheikh Ahmad (UMNO),
Fong Chan Onn (MCA), Alexander
Nanta Linggi (PBB) and Kamalanathan
Bersih electoral reform campaign 2012, Photo courtesy of Malaysiakini)
156
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Free and Fair Elections
a/l Panchanathan (MIC); three from the
opposition coalition Pakatan Rakyat:
Azmin bin Ali (PKR), Loke Siew Fook
(Rasah), Mohd Hatta bin Md. Raml (PAS)
and a pro-BN independent member Wee
Choo Keong. The panel was given six
months to complete their task of studying
the election laws and regulations; to
review the electoral process; to improve
the electoral rolls; to strengthen the
Election Commission (EC) and to study
alternative electoral systems. The PSC
issued their interim report on December
1, 2011 and concluded its inquiry on
April 3, 2012.
To see why the PSC failed to meet
public expectation, especially when new
allegations of fraud and irregularities
had surfaced, which led to the Coalition
for Clean and Fair Elections 2.0 (Bersih
2.0) - an umbrella organisation for over
80 NGOs led by former Bar Council
President Ambiga Sreenevasan and later
also national laureate A. Samad Said - to
call for the Bersih 3.0 rally 2 , this chapter
will provide an item-by-item analysis of
the recommendations by the PSC. The
PSC proposed 10 recommendations in
its interim report and 22 more in its final
report but after excluding the redundant
parts, a total of 28 items. As the PSC was
set-up in response to the Bersih 2.0’s
eight basic demands of electoral reforms
before GE13, the analysis will be broken
into three groups: the eight demands
(23 recommendations), constituency
redelineation and electoral system (3),
and the voting and counting process (2).
The background discussion presented
here is however not limited to materials
submitted by the Bersih 2.0 coalition to
the PSC.
report was passed without debate. This
will be touched on in the penultimate
section. 4
A The Eight Basic Demands of Bersih
2.0
I
Clean up the electoral rolls
In April 2012, the EC Chairperson Abdul
Aziz claimed that Malaysia had the
cleanest electoral rolls in the world 5
as the problematic registrations only
amounted to 42,051 names or some
0.03% of the 12 million registered
voters. However this amount could have
great significance thanks to rampant
gerrymandering. In 2008, in the best
scenario, the Opposition could have
won 25 more seats with just 41,653 more
votes, namely only five seats away from
unseating the BN. In reality, the 42,501
was likely a great underestimation of the
actual problem. Based on findings from
his Malaysian Electoral Roll Analysis
The three opposition members of the
PSC issued a minority report separately
after their failure to have it included in
the final report. 3 The minority report
was then made the excuse by the PSC
chairman Maximus Ongkili that the PSC
157
9/18/13 3:50 PM
Project (MERAP), political scientist Ong
Kian Meng 6 claimed 106,743 names
were deleted without any explanation
between the 4th Quarter of 2010 (2010Q4) and the 3rd Quarter of 2011 (2011Q3). Besides this, there were also names
mysterious added, names involuntarily
transferred, names of the deceased
remaining on electoral rolls, and invalid
registrations with invalid names such as
names of a village or a police station, or
non-existent addresses. 7
This issue is most critical in Sabah where
the “Project IC” [Identity Card] took
place. The Barisan Nasional Federal
Government under former Prime Minister
Mahathir Muhamad allegedly registered
en mass Muslim foreigners - mostly
from the Philippines and Indonesia – as
citizens and voters in order to topple the
Catholic-led Parti Bersatu Sabah (PBS)
State Government which ruled the state
from 1985 to 1994. The electorate of
Sabah jumped from 358,809 in 1982 to
646,719 in 1994, an increase of 80.24%
in mere 12 years. 8
The opposition and civil society have
long been demanding a thorough cleanup of the electoral rolls. It has been the
No. 1 demand of the Bersih 1.0 (20062009) and Bersih 2.0 (2010-) movements.
Under the on-going system, voters
need to take the initiative to apply to
be registered as voters and many have
complained that their applications take
much longer than the three months –
the length of a registration cycle – to
be processed. At the same time, many
have also alleged that their names were
not found on the electoral rolls despite
having registered and even having voted
previously. As of June 2012, despite the
entry of nearly three million new voters
since 2008 9 , out of Malaysia’s 16.5
million eligible citizens, 3.65 million
remained unregistered. 10
A thorough electoral clean-up implies
three things: (a) an audit and clean-up
of the current rolls; (b) automatic voter
registration to avoid intentional or
unintentional disenfranchisement; and
(c) a reform of the registration (and deregistration) process to minimise errors
and expedite correction.
Looking at this from the other side of
the coin, the accumulation of fraudulent
and flawed registrations is very much the
outcome of an ineffective and vulnerable
registration
(and
de-registration)
process,
which
places
deliberate
obstacles in the way of ensuring the
integrity of the electoral rolls.
Firstly, while public inspection is
allowed for new additions to the rolls –
either as new voters or as the result of
constituency transfer, Regulation 15 of
the Elections (Registration of Electors)
Regulations 2002 places two ridiculous
hurdles: a voter can only protest against
the inclusion of up to ten names in her
constituency; and she must pay a fee of
RM 10 (about USD 3) for every name she
questions.
Secondly, there is no legal provision
for public inspection and for protesting
against any deletion of names , which
may take place on the grounds of
death, deprivation and renunciation
of citizenship, insanity, or convictions
of certain nature and gravity, as
stipulated by Article 119 of the Federal
Constitution.
Thirdly, Regulation 25 of the Elections
(Registration of Electors) Regulations
2002 gives inordinate power to the Chief
Registrar of Electors to restore any names
wrongfully omitted or removed from the
electoral roll, to correct any erroneous
particulars or insert any new particulars of
any registered names, to strike out “any
superfluous entry”, to delete the names
of former citizens, and to “[strike] out
any person, in the opinion of the Chief
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Registrar, is not entitled, for any reason,
to remain or be in the principal electoral
roll or the supplementary electoral roll”.
The last is simply a blank cheque for
the Chief Registrar to tamper with the
electoral roll as he wishes, as there is
no mechanism for public inspection or
protest against this exercise of his power
under Regulation 25.
Fourthly and most importantly, Section
9A of the Elections Act prohibits any
certified or re-certified electoral roll to
be challenged in court. This section was
added in 2002 after the Kota Kinabalu
High Court’s judgement in 2001 that
the 1999 by-election of the Likas state
constituency was null and void because
the roll contained phantom voters. The
by-election was unsurprisingly won
by Yong Teck Lee, a former BN Chief
Minister of Sabah.
Nine out of the PSC’s 28 recommendations
concerned the electoral rolls and
registration process but none of them
touched on the crucial Section 9A of
the Elections Act or Regulation 25 of
Regulations
2002.
The
greatest
achievement stemming from these
proposals is the establishment of a
Royal Commission of Inquiry (RCI) on the
Project IC in Sabah.
no KP12 numbers, the PSC called for
the Police and the Military to take
commensurate actions within the first
60 days. Most interestingly, the PSC
called for another PSC to supervise
and study all the efforts in cleaning
the electoral rolls.
In its Interim Report tabled on
December 1 2011, the PSC suggested
a recertification of all voters in Sabah
and a RCI to investigate the Project
IC. This suggestion was taken up by
the Government. On August 11, Prime
Minister Najib Razak announced a sixmember RCI headed by Steven Sim,
former Chief Judge of Sabah and
Sarawak. The RCI started its public
hearings on January 14, 2013 and many
shocking facts were revealed. 12
2 Less Restriction
Challenge
of
Electoral Roll
1 On-going verifications of electoral
rolls including an RCI on Sabah
illegal voters
The PSC had called for an independent
and competent body like MIMOS
(the national R&D centre in ICT) to
continuously verify the electoral
rolls. It accepted MIMOS’ earlier
finding that showed no duplicate
registration for the 12-digit National
Registration (KP12) numbers issued
by NRD. Acknowledging that some
1,100 members of the police force
and the military nevertheless have
on Display and
Supplementary
The PSC in its interim report called
for the EC to make the display and
challenge of the supplementary
electoral rolls – the rolls with new
additions – less restrictive. It called
for the display period 13 to be
extended from 7 days to 14 days
and for both the fee of RM 10 per
name objected and the limit of 10
names objected by an objector to be
abolished. This was the most relevant
recommendation by the PSC to reform
the registration process. However, the
EC only accepted part of it nominally
by extending the limit of names that
can be challenged from 10 to 20 per
objector.
3 Legal change to allow the EC to
delete or transfer names
In apparent ignorance of Regulation
25 of the Elections (Registration
of Electors) Regulations 2002 and
the problems of unlawful deletions
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9/18/13 3:50 PM
and involuntary transfers, the PSC
recommended a legal change to grant
the EC “the power to remove certified
names in the principal electoral
rolls or to transfer voters from one
constituency to another based on the
complaints made by the public based
on legitimate evidence.”
4 Studying
registration
automatic
voter
Acknowledging
the
merit
of
automatic voter registration, the
PSC did not recommend it but
merely recommended “study on the
matter and actions to be taken by
the EC within 12 months to enable
its implementation in the future”. It
took the position that automatic voter
recommendation requires amendment
to Article 119 of the Federal
Constitution, contrary to the belief of
many that only changes of law or bylaw would suffice. It also claimed that
automatic voter registration should
take place only after the electoral rolls
have been cleaned up. There was no
report in 2012 of the EC taking up this
recommendation to study automatic
voter registration with a view to its
adoption.
5 Studying pre-registration at age 20
6 Law enforcement on election offence
of false information in registration
While taking a rather conservative
stand on automatic voter registration,
the PSC took a positive stand on
the suggestion to allow eligible
citizens to be registered as voters
at the age of 20 such that s/he can
vote upon attaining the age of 21.
This would avoid disenfranchisement
of voters who attain the age of 21
but are not registered in time when
elections are called. The PSC wanted
the EC to study this so that it could
be implemented in time for the 13th
General Election. Unfortunately, this
recommendation was not heeded by
the EC.
The PSC called for the establishment
of a special enforcement team under
the EC to enforce the laws within the
EC’s jurisdiction without referring to
other parties. The PSC acknowledged
that false information may be given in
the change of residential address at
the National Registration Department
(NRD) or the change of registration
address at the EC. Both constitute
offences under the Election Offences
Act, and this the PSC seemed to imply
is sufficient. The ambiguous wording
of “enforcement” seems to suggest
that prosecutorial powers be given to
the EC. While the merits and demerits
of such suggestion may be open for
debate, this suggestion did not get
implemented.
7 Statutory declaration for address
change
In its interim report in December
2011,
the
PSC
recommended
the
requirement
of
statutory
declaration in applications to change
voter registration address. This
recommendation was neither affirmed
in the final report nor adopted by the
EC.
8 Studying the possibility of using
diverse addresses for electoral
registration
The PSC rejected suggestion for
addresses other than that on the
National
Registration
Identity
Card (NRIC) to be used for voter
registration on the grounds that this
may be vulnerable to abuses and
technicalities: the alternative address
may not be proven by any legal
document; registration may be made
by voters in a constituency they don’t
reside; and, the complaint of non-
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resident voters may arise. Currently,
there are many cases of voters’
addresses on the NRIC differing
from their electoral addresses. To
overcome this problem, the PSC
asked voters to update their electoral
registration addresses based on their
NRIC addresses. The PSC also called
upon party workers to advice voters
to do so. The PSC’s most progressive
recommendation was for the EC to
study practices in other countries
that enable voters to register to vote
by either their residential address or
their place of employment.
The PSC implied that this phenomenon
of
mismatched
addresses
was
likely due to the high number of
rural youth in Sabah and Sarawak
working in the Peninsula but this is a
misrepresentation of the real issue.
Few Sabah and Sarawak workers in
Peninsular Malaysia have changed
their NRIC addresses but not their
electoral
registration
addresses
to cause such mismatch. Most of
them tend to keep their home town
addresses on their NRIC and their
problem is that they cannot vote in
the Peninsula due to eligibility or go
back to their home constituencies to
vote due to affordability. The solution
lies in flexible voting arrangements
for domestic non-residential voters.
9 Inspection of the electoral roll
for addresses with more than 50
electors
The PSC recommended that SPR
displayed all voters’ names which were
found on premises with more than 50
voters for 45 days. Earlier analysis
by MIMOS found 324 addresses
with more than 100 voters and 938
addresses with voters ranging from
51 to 100, i.e. at least 80,238 names
had been registered suspiciously. No
report was found that the EC carried
out this recommendation of the PSC.
II Reform Postal Ballot
Until 2012, postal voting was compulsory
for military and police voters and
optional for the spouses of military
voters, civil servants and tertiary students
serving outside of the Peninsula, Sabah
or Sarawak, and their accompanying
spouses. Other Malaysians residing
overseas or domestic absentee voters
are completely denied this postal voting
facility. This had led six Malaysians
residing in the UK to take up a lawsuit
against the EC but they lost the suit in
the High Court in January 2012. 14 The
right to temporary postal voting was
limited to the EC members and election
workers.
The postal voting arrangement is
problematic on both systemic and
procedural grounds. By making it
mandatory to some but not available for
all who want to vote in this way allows
a special group of voters whose voting
behaviour can be monitored and policed
easily. In Malaysia, the postal ballots
are seen as the preserve of military and
police voters, who are institutionally
controlled by the Government. The nontransparent nature of postal balloting –
whereby the postal voters can cast their
votes anytime they please – makes it
impossible for party agents to monitor
and thus vulnerable to vote selling or
proxy voting. In 2011, some ex-soldiers
alleged that they had been forced by
their superiors to cast postal ballots in
exchange for monetary incentives in
past elections. 15
The postal voting system thus not
only disenfranchise those in need of
absentee voting facilities, but it also
disenfranchises the bulk of voters in the
services who come under the system
by rigging their votes. The Bersih 2.0
coalition hence asked for the most
fundamental reform, to abolish the
distinction between ordinary voters and
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postal voters and allowing everyone who
want absentee voting facility to do so on
a one-off application once the election
dates are confirmed. The PSC responded
with four recommendations in partial
response to this Bersih 2.0 demand.
1 Advance voting for military and
police personnel
The
PSC
in
its
interim
report
recommended that the military and
police personnel be allowed to vote in
advance except for those on duty who
may vote by postal ballots. Advance
voting right is also recommended for
election workers, the EC members,
doctors, nurses and journalists. The
first part of the recommendation
was taken up while the second part
was changed later in its final report
whereby election workers and media
workers are to vote by postal ballots.
2 Postal
voting
for
overseas
Malaysians
Following up on its interim report
which called for the expansion of
overseas postal voters to all who
qualify, the PSC only recommended
in its final report for the SPR to study
methods to deliver postal ballots
to overseas voters. It evaded the
question of which other overseas
Malaysians should be enfranchised but
it called upon the EC to act in three
months to discuss with concerned
parties and initiate legal changes
to allow overseas voting based on
conditions the EC proposed, namely:
(a) having registered as voters; (b)
having returned to Malaysia at least
once in the five years before the
application date for postal vote. It
also acknowledged the objection by
the EC and the Ministry of Foreign
Affairs to the idea of having polling
stations in Malaysian missions on the
ground of logistic difficulties.
Postal voting was eventually expanded
to overseas Malaysians beyond the
civil servant and student community
but there were still restrictions which
are unconstitutional. Not only does
one need to return to Malaysia once in
five years to qualify for postal voting,
Malaysians who live in Singapore,
Brunei, Kalimantan and five Southern
Thai provinces: Narathiwat, Pattani,
Yala, Songkhla and Satun, are
completely excluded. Article 119 of
the Federal Constitution makes no
association between the franchise and
one’s physical presence in Malaysia or
abroad. 16
3 Postal voting for media practitioners
The PSC recommended postal voting
for media practitioners who are on
duty on polling day and are too far
to return to their constituencies,
under the Elections (Postal Voting)
regulations 2003. As it stood, election
workers were already entitled to vote
through postal ballots.
Postal voting facilities for media
practitioners and election workers
was viewed sceptically by civil society
as it might be abused to create a
large number of postal votes, hence
off-setting the effect of taking most
military and police voters out from
postal voter lists.
4 Studying methods for advance
voting for domestic absentee voters
in the future
The PSC in its interim report called
upon the EC to provide voting
facilities for domestic absentee
voters, especially for those who
cross the South China Sea for work.
In the final report, however, the PSC
changed its stand by merely calling
on the EC to study the best voting
method for domestic absentee voters.
The PSC acknowledged only the view
of the EC that this proposed practice
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requires amendment to Article 119
of the Federal Constitution which
makes residence a criterion for voter
registration. It did not acknowledge
the alternative views that Article 119
can be interpreted differently or that
constitutional amendment is not an
obstacle.
III Indelible Ink
The use of indelible ink had been top
of the agenda for electoral reform since
2006 when the Bersih 1.0 coalition
was founded. It is intended to prevent
multiple voting through impersonation,
or what is popularly known as “phantom
voters” when individuals who are not
the actual residents of a neighbourhood
show up to vote on the behalf of some
deceased whose names remain on
the list, or some genuine voters who
habitually do not vote or some names
which are simply transferred into the
constituencies. Indelible ink cannot stop
impersonation but it can prevent the
recycling of “phantom voters”, hence
making it a challenge for the fraudsters
to find so many impersonators to vote.
Indelible ink can also stop multiple voting
for some military and police voters who
are registered on both electoral rolls of
ordinary voters and postal voters.
The EC agreed to implement indelible
ink in 2008 but cancelled it just before
polling day on the ground of preventing
sabotage,
which
led
Opposition
leader Anwar Ibrahim to claim that the
cancellation of indelible ink had cost
the opposition 15 out of 222 seats in
the Parliament. 17 The EC talked about
biometric verification – as a substitute to
indelible ink - to prevent impersonation
but eventually dropped the idea. The
PSC took a clear stand in support of
the use of indelible ink, the only one of
Bersih 2.0’s eight demands that got the
full endorsement from the PSC.
In its interim report in December 2011,
the PSC recommended that indelible
ink be used for the 13th General
Elections. It stated clearly its position
that this only needed a change in the
election regulations (by-law) and not
any amendment to the Constitution as
some had claimed. The PSC however
left it to the EC to decide on the
details. The EC was not tasked to ensure
transparency in its implementation such
as demonstrating the effective use of
indelible ink. Such misplaced trust on
the EC turned out to be unfortunate
when the supposedly indelible ink
turned out to be both delible and edible
in May 2013. 18
IV A minimum campaign period of 21
days
The campaign period was as long as six
weeks in Malaya’s first national election
in 1955 and it stayed at five weeks for the
first three elections after independence.
This was dramatically reduced to around
two weeks after the May 13 riots in 1969
and reached its lowest point at eight
days in 2004. Bersih 1.0 and later Bersih
2.0 called for a minimum campaign
period of 21 days, which is half of
that allowed under the British colonial
government in 1955. Short campaign
periods are undemocratic especially for
voters in remote constituencies such
as inland Sarawak. While the ruling
coalition’s candidates can travel easily to
the most remote villages by government
trucks, boats or even helicopters,
the lack of transportation and means
of communication poses a serious
challenge to effective campaigning by
the opposition. The second argument for
a longer campaign period is to deprive
the ruling coalition of the full benefit of
calling elections at unexpected times
to catch the opposition off-guard.
The PSC’s recommendations failed to
address these concerns adequately.
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1 Dissolution of parliament only after
four years
The
PSC
recommended
legal
restriction to allow Parliamentary
dissolution only after serving four out
of five years. This would come close to
a fixed-term parliament arrangement
which could reduce speculation in
politics over the timing of elections.
The recommendation was however
not taken up.
2 Extending the minimum campaign
period to 10 days
The PSC proposed that the legal
minimum campaign period, informed
by sub-regulation 3(1) of the Elections
(Conduct of Elections) Regulations
1981 to be extended from seven
days to 10 days. This only met 21%
of Bersih 2.0’s demand, namely an
extension to 21 days by 14 days.
The EC eventually showed a greater
degree of generosity than the PSC by
extending it to 11 days.
V Free and Fair Access to Media
Thanks to restrictive media laws which
govern both the contents (such as the
Sedition Act and the Official Secrets Act)
and market entry (such as the Printing
Presses and Publications Act and the
Communications and Multimedia Act),
Malaysian print and broadcast media
have been controlled tightly by the
ruling coalition, with a few opposition
party
organs
providing
peripheral
competition. Internet is the only media
where alternative news and views
prevail. The opposition has suffered in
every election through media blackout
and slander by the ruling coalition.
Free and fair elections would require the
lifting of these restrictive media laws,
but even if it comes short of that, other
reforms can still be effected. The Bersih
2.0 Coalition had called for three basic
reforms: fair access to state media; free
access to private media and the right
to reply for any contestant negatively
portrayed during elections. Fair access
to state media is especially important as
it would allow the opposition parties to
offer their programmes without spending
excessively on advertisement. However,
the last time the opposition enjoyed any
airtime (very limited time on radio) was
in 1990.
While the EC likes to claim that they
have no power to compel other state
agencies, Bersih 2.0 has always reminded
them of their potential power stipulated
by Article 115(2) of the Federal
Constitution: “All public authorities
shall on the request of the Election
Commission give the Commission such
assistance in the discharge of its duties
as may be practicable…” Beyond that,
the EC can also propose amendments
to the Elections Act or the Election
Offences Act to pave the way for free
and fair media access, for example
through election broadcasts on the
electronic media or through criminalising
deliberate attempts to tarnish another
candidate’s chance without the right of
reply. The PSC made a limited response
to these suggestions.
The PSC called on the EC to study the
provision of Article 115(2) of the Federal
Constitution to ask public authorities
to give whatever assistance to the EC
in fulfilling its functions, including free
and fair media access for all parties and
candidates. The PSC report however did
not touch on free access to privatelyowned media and the right of reply.
Unfortunately, the EC did not adopt any
action on this recommendation.
VI Strengthen public institutions
Bersih 2.0’s sixth demand is to strengthen
public institutions and protect them
from being abused as partisan tools in
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elections. When even “by-elections”
have been ridiculed as “buy-elections”
in Malaysia, one can imagine the
money and resources poured into the
general campaigns by party proxies
or crony businesses. Abuse of power
may also take the form of selective law
enforcement and denial of access to
government premises for opposition
parties or candidates. The PSC proposed
five recommendations on this, including
suggestions to restructure the EC.
1 Code of conduct for caretaker
government
The PSC recommended that the EC
tabled a code of conduct, within
three months after the release of the
report, for caretaker governments at
both federal and state levels. This
recommendation was however, not
taken up by the EC.
2 Making the EC an institution
accountable to Parliament and with
its own bureaucratic service
The PSC made three suggestions
to strengthen the standing of the
EC in the eyes of the public, which
have questioned the Commission’s
independence. The first suggestion
was for the EC members to be
appointed, much like the judges
of the Federal Court, the Court
of Appeal and the High Courts.
The second suggestion was for
the EC to have its own budget and
placed under and be answerable to
Parliament. The third suggestion was
the creation of a special bureaucratic
service for the EC staff with a special
Service Commission to deal with the
recruitment of the EC staff. In other
words, the PSC wanted the EC staff
to be separate from the general civil
service and to prevent any political
control. This reasonable suggestion
was unfortunately not taken up by the
EC or the Executive.
3 Restructuring and empowering the
EC
be restructured with commensurate
power to ensure the enforcement
of law by its law enforcement team
and to prevent any dependence on
other parties. It did not state clearly
if by this it meant persecutory power
for there seems to be no other
alternatives. Complementary to the
last suggestion, the PSC also called
for the increase in the staff and budget
of the EC to be commensurate “with
its roles, responsibilities, burdens and
current challenges”.
The EC was not given any law
enforcement power. As for increase
in staff and budget, it is difficult to
assess this PSC recommendation
since it did not give any details on the
scope or scale of the increase.
4 Breaking
the
EC
into
three
independent bodies in the long run
The
PSC
made
a
visionary
recommendation for the EC to be
broken up into three independent
bodies to take up each of its main
functions: conduct of elections,
registration
of
electors
and
constituency delineation. The PSC
however did not recommend any
time lines and naturally, there was no
follow-up on this recommendation.
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5 Expand the Academy of Elections
The PSC also recommended that the
Government increased the human
resources, financial allocations and
facilities of the Academy of Elections,
set up in 2007, to ensure that the
Academy can carry out its functions
in voters’ education and training of
election workers.
The Academy of Elections is hardly
known among Malaysians and it will
remain unknown unless the Academy
is granted more resources to carry out
any meaningful work.
VII End dirty politics
The seventh demand of the Bersih 2.0
coalition was raised as for years, Malaysian
politics has been characterised by mudslinging – often with doubtful evidence
- amongst politicians. Criminalising
deliberate election slandering which
denies the slandered party a right of
reply would send the right signal to the
politicians and their propagandists.
VIII End corruption
Corruption during election campaign
is so rampant that in some rural areas,
votes become a commodity that can
be exchanged for bank notes offered
by certain candidates or development
promises by some government agencies.
In 2010, Prime Minister Najib Razak
made an infamous “you help me, I help
you” offer to a neighbourhood in Sibu,
Sarawak that was suffering from annual
floods.
Malaysia already has laws to deal with
electoral
corruption.
The
Election
Offences Act 1959 criminalises corrupt
practices such as bribing, giving treats
and intimidating. The real problem
lies in the non-enforcement of the law
and the failure to prosecute offenders.
Nevertheless, the Election Offences Act
has its own loopholes, resulting in its
failure to cap election expenses at RM
200,000 for a parliamentary contest and
RM 100,000 for a state contest. For one,
candidates are the only accounting unit.
Hence, a party can spend millions of
ringgits on advertisements, for example,
and all its candidates who stand to gain
from the advertisement do not have to
report even one ringgit on that.
The PSC has ignored these issues but it
has nevertheless proposed a progressive
recommendation on public finance.
1 Public Funding for Political Parties
The PSC recommended that parties
be publicly funded. Going by
its suggestion, the Government
would provide funds to the winning
parties and candidates based on an
appropriate formula whereby 50%
of the allocation goes by seat share
and another 50% goes by vote share.
Unfortunately, the recommendation
was intended for the long run and
would have no bearing on the GE13,
even though it was feasible for such
a programme to be initiated at any
time, even if it was on a modest scale
to start with.
B Constituency
Delineation
Electoral System
and
Malaysia’s
constituency
delineation
is
deeply
flawed,
characterised
by
both
mal-apportionment 19
and
gerrymandering, 20
resulting
in
severe
vote-seat
disproportionality.
In 2004, when the BN under Prime
Minister Abdullah Badawi won 91% of
parliamentary seats with only 65% of
votes, while the Anwar-led opposition
PKR won 0.05% of parliamentary seats
with more than 8% of votes, a vote for
the BN is worth 26 times that of a vote
for PKR. 21
As the Federal Constitution has only
a little general advice on preserving
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local ties besides demanding the
constituencies to not cross the state
boundaries 22 , gerrymandering was done
with little regard for public opinion,
which until 2006, had little appetite for
electoral reform. In Selangor, an urban
enclave was lumped together with a few
non-adjacent islands to form the state
constituency of Selat Klang. It is also
commonplace for constituencies to cut
across municipal boundaries in Selangor
and to partition local neighbourhoods,
in complete disregard for “local ties” as
stipulated in the Federal Constitution.
As mal-apportionment is defined as
deviation from the average size, its
severity is much easier to identify.
Mal-apportionment of constituencies
in Malaysia can be separated into two
parts: inter-state and intra-state.
Inter-state mal-apportionment began in
1963 when it was decided that Sabah and
Sarawak voters would be deliberately
over-represented
while
Singapore
deliberately under-represented in the
new Federation of Malaysia. In 1955
when constituencies in Malaya were first
delineated, seats were mathematically
allocated to the states based on their
ratio of population. By 1974, the number
of parliamentary seats allocated to every
state was determined by Article 46 of
the Federal Constitution, leaving the
question of fairness entirely in the hands
of politicians.
Intra-state
mal-apportionment
was
originally capped at +- 50% from the
average constituency in the state,
with
allowance
for
making
rural
constituencies bigger on the grounds
that rural constituent face difficulties
with transportation and communication.
By 1974, the 50% cap was removed
completely. 23 The Election Commission
has capitalised on this, treating it
as a rule rather than an exception
to justify the mal-apportionment of
constituencies. It even unconstitutionally
formulated a three-class scheme to
divide constituencies into urban, semiurban and rural with different ranges of
electorate size.
At even more outrageous anomaly
was seen for example, during the redelineation in 2003 when the rural and
hilly Baling parliamentary constituency
had a huge electorate of 74,698 voters,
or 30% larger than the 57,313 voters
in the parliamentary constituency of
Alor Setar, the state capital. In other
words, the mal-apportionment was not
only excessive but it also contradicted
the official justification, i.e. it was antirural rather than pro-rural, only because
Baling was more pro-opposition. 24
In 2004, the two state constituencies
that constituted the highly urbanised
Puchong parliamentary constituency had
very stark contrasts in electorate size.
The 59% Malay state constituency of
Sri Serdang (39, 688 voters, the largest
state seat in Selangor) was twice as
large as its 61% Chinese counterpart
of Kinrara (20,006 voters). Apparently
UMNO could not be assured of enough
Malay supporters in urban areas without
drawing a huge constituency – In
2008, UMNO kept that largest state
constituency of Selangor with only
45 votes in a contest for 37,819 valid
votes. 25
In 2004, Alor Star had 57,313 voters
and was “semi-urban” by the EC’s
classification. In contrast, Baling had
74,698 voters and was “urban” under
the EC’s formula. (See Chart 1)
The PSC made three recommendations
regarding constituency delineation and
electoral system, but none of them
addressed the real problem as analysed
above.
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1 Study the Allocation of Parliamentary
Seats for Sabah and Sarawak
The PSC acknowledged the argument
that
the
Sabah,
Sarawak
and
Singapore were to be given 34% of
parliamentary seats as stipulated by
the Inter-Government Committee
(IGC) documents, implying that
Sabah and Sarawak should absorb
the share left behind by Singapore
and be granted just more than one
third of the House of Representatives
(Dewan Rakyat) seats, hence holding
a veto power to any constitutional
amendment. The PSC acknowledged
the argument that such power would
then ensure a balance of power and
enable Sabah and Sarawak to protect
their interests. Not unsurprisingly, the
PSC did not take a stand as to whether
or not it agreed with the arguments but
it merely recommended a study of the
matter and for the suggestion to be
carried out in line with the principles
in the formation of Malaysia.
2 Balanced
apportionment
of
constituencies
Acknowledging
both
the
“rural
weightage” and the principle of
“one person, one vote”, the PSC
recommended that the EC reviews
the 13th Schedule of the Federal
Constitution to give a true meaning to
both considerations. It recommended
for the EC to set “a just and fair
formula based on a fixed principle
to ensure that the electorate sizes of
constituencies within the same state
did not differ too extremely.
This recommendation was lame
considering the record of the EC in
violating the Constitutional provision
at will. Demonstrating a lack of
knowledge, courage or both, the PSC
completely ignored the fact that malapportionment had not even been
consistent with the pro-rural slant as
stipulated.
3 Studying Options for New Electoral
System
studied suggestions to reform the
electoral system, either to improve
the First-Past-The-Post (FPTP) system
or to switch to the Proportional
Representation (PR) system or a mixed
system having both the FPTP and PR
elements. The PSC wanted the EC to
study its policy implication and report
to the new PSC proposed.
C Polling, Counting and Tabulation
Polling, counting and tabulation were
another problematic area in which
opposition parties had to fight off
attempts at vote rigging with welltrained polling and counting agents. The
PSC made two sets of recommendations
to improve this and some were adopted.
However, these small improvements
may not count much insofar as the EC
bureaucracy fails to act professionally
and impartially, but the PSC failed to
demand that this reform be implemented
before the GE13 in uncompromising
terms.
1 Increasing the transparency of
voting
The PSC in its interim report of
December 2011 called for the EC
to increase the transparency in the
voting process through these few
steps.
The first is for the serial number
on the ballot to be removed and is
maintained only on the counterfoil to
maintain the secrecy of voting. This
suggestion was not carried out and
arguably rightly so, for removing the
serial number on the ballot would
disallow identification of ballots in
any sense in the case of crowding.
Voting would then be vulnerable
to ballot stuffing. Increasing voting
secrecy and voters’ confidence should
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9/18/13 3:50 PM
be done by assuring the neutrality of
election administration in other ways.
The second is to arrange the setting
in the polling stations so that polling
agents can identify the voters who
turn up with greater clarity. This
was implemented but this cannot
ultimately prevent fraud because the
polling agents will not be able to see
the NRIC handed over to election
workers, who may collude with a
fraudulent voter by reading the right
NRIC number even though if the
voter carries a different NRIC. The
ultimate solution would have to lie in
the impartiality of election workers. In
some countries like Poland, agents of
different parties are placed together
in issuing ballots to check fraud by
any party.
The third is to allow the disabled to
be assisted by the person chosen by
them, and not an election worker, as
is usually the current practice. Then
Sub-regulation 19(7) of the Elections
(Conduct of Elections) 1981 allowed
only a close family member to assist
the disabled. This recommendation is
implemented through Sub-regulation
19(10).
The fourth is to allow recounting at
the constituency level should the
difference be 2% or less. Under Subregulation 25(13) of the Elections
(Conduct of Elections) Regulations
1981, recounting can take place
only when there is a difference of
4% or less at the polling station
level. Allowing recounting at the
constituency level allows possible
errors accumulated at the polling
station level to be corrected. This is
however not implemented.
The fifth is for the EC to accept as
a valid ballot only when it is marked
with a “X” sign on the right hand
column of the ballot paper next to the
column with the name of a candidate.
This
recommendation
was
not
accepted by the EC and it might be
rightly so as there might be too many
spoiled votes otherwise. To prevent
fraud in the counting of spoiled votes
ultimately requires impartial election
workers and well-trained counting
agents besides voter education.
2 No objection or withdrawal of
nomination
The PSC recommended that both
the process of objection against
a nomination and the option of
withdrawal by a candidate within
three days after nomination to be
abolished. In the past, candidates
had been controversially struck
out because of objections where
the criteria of rejection were not
uniformly
applied,
leading
to
accusation of partisan technical
knock-out. Meanwhile, the withdrawal
option offered since 2004 has led to
allegation of candidates being bought
off by their opponents to withdraw.
These two recommendations were
fully implemented.
D Overall Evaluation of the PSC Report
and Electoral Reform in General
Despite having met 13 times from
October 2011 to March 2012, having five
sub-committees, holding public hearings
in six cities, and receiving inputs from
106 groups and individuals 26 , the PSC
has generally failed to address the main
concerns of the electoral system and
process.
There was no political will on the part
of the PSC to pursue true reforms,
hence making suggestions for the EC to
conduct more studies rather than putting
down in categorical terms what needs to
be done. This panel headed by Maximus
Ongkili went to the extent of suggesting
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9/18/13 3:50 PM
the setting up of another PSC (an ad hoc
body by definition) to further oversee
electoral reforms, instead of proposing
long-lasting mechanisms and measures.
The failure to recommend the abolition
of Section 9A of the Elections Act and
the recommendation to give the EC the
power to remove names in apparent
ignorance of Regulation 25 of the
Elections (Registration of Electors)
Regulations exposes the competency of
the panel itself.
The Pakatan Rakyat representatives
in the PSC were not happy with the
main report and chose to present their
own minority report to the public,
highlighting five issues on electoral roll
and what might constitute “unlawful
constituency delineation”. 27
It is therefore not surprising that most
of the problems remained after the
PSC had completed its work although
credit should be given to the PSC for
suggesting the RCI on Sabah’s illegal
immigrant problem.
E Recommendations
• Re-registration of all voters with
automatic voter registration based on
the latest NRIC address.
• A minimum campaign period of 21
days.
• Media law reform, with specific
arrangements to ensure free access
(airtime and prime-ministerial debate)
for public media, fair access to
private media and a right of reply for
all contestants and involved parties
negatively reported during elections.
• An enforceable code of conduct for all
government leaders and agencies in
general elections, state elections, byelections and in future, local elections.
• Promoting
healthy
competition
through public debates and Q&A
sessions by voters.
• Public finance for political parties
and effective policing of election
expenditures.
• Reforming the electoral system to
ensure greater fairness and reduce
the incentives for fraud 28 , changing it
from the First-Past-the-Post system to
perhaps Mixed Members Proportional
or Mixed Members Majoritarian
system.
• Reforming the display and correction
process so that errors can be
continuously identified and corrected.
• Abolishing the distinction between
ordinary voters, advance voters and
postal voters, by offering all absentee
voters the appropriate facilities to
cast their ballots based on one-off
application after the election date has
been fixed.
• Implementing indelible ink in a
transparent manner, with participation
of political parties and civil society
groups.
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9/18/13 3:50 PM
End notes
1
2
3
4
This chapter is written by Dr Wong Chin
Huat. A political scientist by training,
he is a fellow at the Penang Institute, a
think tank funded by the Penang State
Government. He is also a founding
steering committee member of the
Coalition for Clean and Fair Elections
(Bersih, 2006-2009) and its successor the
Coalition for Clean and Fair Elections 2.0
(Bersih 2.0, 2010-).
Clara Chooi, 2012, “Bersih claims voter
roll manipulated even during PSC
probe”, The Malaysian Insider, URL:
malaysia/article/bersih-claims-voter-rollmanipulated-even-during-psc-probe, as
accessed on August 20, 2013.
S. Pathmawathy, 2012, “Poll reform PSC:
Pakatan reps want minority report”,
Malaysiakini, April 2, 2012, URL: http://
www.malaysiakini.com/news/193874, as
Borneo Post, 2012, “PSC chairman
sad final report not debated at Dewan
Rakyat”, the Borneo Post, URL:http://
www.theborneopost.com/2012/04/04/
psc-chairman-sad-final-report-notdebated-at-dewan-rakyat/ as accessed
on August 20, 2013.
5
See Malaysiakini. “EC: Our electoral roll
is cleanest in the world”. Malaysiakini.
April 21, 2012. URL at http://www.
malaysiakini.com/news/195610, as
accessed on May 25, 2010.
6
Presentation at the press conference
held by the Coalition for Clean and Fair
Elections 2.0 (BERSIH 2.0), themed “Data
Integrity and Transparency, Election
Commission”at the Kuala Lumpur
and Selangor Chinese Assembly Hall,
(KLSCAH) on April 23, 2012.
7
Wong Chin Huat, 2012, “The “Cleanest”
Electoral Rolls in the world”, in Wong
Chin Huat and Soon Li Tsin (eds)
Democracy at Stake? : Examining 16
by-Elections in Malaysia, 2008-2011. pp
215-239.
8
Boo Su-Lyn, 2013, “Big spike in new
voters before key 1994 Sabah polls,
EC tells RCI,” The Malaysian Insider,
May 28, 2013. URL: http://www.
themalaysianinsider.com/malaysia/article/
big-spike-in-new-voters-before-key-1994sabah-polls-ec-tells-rci, accessed on
August 4, 2013.
9
Razak Ahmad, 2012, “Record number
of new voters to impact upcoming
elections” The Star, September 24, 2012.
URL: http://www.thestar.com.my/News/
Nation/2012/09/24/Record-numberof-new-voters-to-impact-upcomingelections.aspx, accessed August 4, 2013.
10 The Malaysian Insider, 2012, “Selangor
tops unregistered voters list”, The
Malaysian Insider, June 4, 2012. URL:
http://www.themalaysianinsider.
com/malaysia/article/selangor-topsunregistered-voters-list, accessed August
4, 2013.
11 This includes names transferred to other
constituencies. While in theory transfer
can only be done upon the application
of the voters involved, hence giving
no ground for others to inspect and
protest, in reality, in every election, many
complain that they have been transferred
to other constituencies, sometimes in a
faraway state, completely without their
knowlegde.
12 Clara Chooi, 2012, “IC-for-votes
claim focus of Sabah RCI”, The
Malaysian Insider, URL: http://www.
themalaysianinsider.com/malaysia/article/
ic-for-votes-claim-focus-of-sabah-rci/, as
171
9/18/13 3:50 PM
13 To be accurate, the period is for
objection against new entries after the
public display and any claim of inclusion.
The display period is not defined. See
Sub-regulations 13(5), 14(3) and 15(2A)
of Elections (Registration of Electors)
Regulations 2002.
14 BBC, 2012, “Malaysian court rejects
overseas voting right case”, BBC,
January 6, 2012, URL: http://www.bbc.
co.uk/news/world-asia-16437516, as
15 Joseph Sipalan, 2011, “Four more exsoldiers admit to postal vote fraud”,
Malaysiakini, URL: http://blog.limkitsiang.
com/2011/08/18/four-more-ex-soldiersadmit-to-postal-vote-fraud/, as accessed
on August 20, 2013.
16 Bernama, 2012, “EC: No postal votes for
Malaysians in Neighbouring countries”,
The Malaysian Insider, January 21, 2013,
URL: http://www.themalaysianinsider.
com/malaysia/article/ec-no-postal-votesfor-malaysians-in-neighbouring-countries,
as accessed on August 20, 2013.
17 The Edge, 2008, “Cancellation of
indelible ink “costs 15 seats”, The Edge,
achieved by Malaysia-Today on May
22, 2008, URL: http://www.malaysiatoday.net/archives/archives-2008/7770cancellation-of-indelible-ink-acosts-15seatsa-, as accessed on August 20, 2013.
18 Md Izwan, 2013, “Indelible ink was
actually food colouring, Shahidan
tells MPs”, The Malaysian Insider,
June 26, 2013, URL:http://www.
themalaysianinsider.com/mobile/
malaysia/article/indelible-ink-not-whatit-was-made-out-to-be-ec-admits-inparliament/, as accessed on August 20,
2013.
19 Mal-apportionment of constituencies
refers to disparity of electorate size
across constituencies, which may
be the outcome of following certain
administrative, socio-cultural, economic
or other ‘natural’ boundaries, or simply
due to deliberate manipulation.
20 Unlike mal-apportionment,
gerrymandering occurs when
constituencies are deliberately drawn
in a partisan manner to result in
certain compositions of the electorate
that would benefit some parties and
disadvantage others.
22 See the Federal Constitution, Section
2(a) and (d), Part 1 of the 13th Schedule.
21 Wong Chin Huat. 2013. “Systemic Losers
of the First Past the Post System” in
FZ.com, June 24, 2013, URL: http://www.
fz.com/content/systemic-losers-first-pastpost-system, as accessed on August 20,
2013.
2(a) and (d), Part 1 of the 13th Schedule.
2(c), Part 1 of the 13th Schedule.
25 Wong Chin Huat, 2013. “Is Baling more
urban than Alor Setar?”, FZ.com, June
17, 2013, URL: http://www.fz.com/
content/baling-more-urban-alor-setar, as
26 Wong Chin Huat, 2013,
“Malapportionment, pro-rural, proMalay or pro-UMNO?”, Fz.com, June
19, 2013, http://www.fz.com/content/
mal-apportionment-pro-rural-pro-malayor-pro-umno, as accessed on August 20,
2013.
27 Martin Carvalho, Yuen Meikeng and
Rahimy Rahim, 2012. “Report by
PSC on Electoral Reform passed in
Parliament” The Star, April 3, 2012.
URL: http://www.thestar.com.my/News/
Nation/2012/04/03/Report-by-PSC-onElectoral-Reform-passed-in-ParliamentUpdate.aspx, as accessed on August 20,
2013.
172
9/18/13 3:50 PM
28 Free Malaysia Today, 2012. “Penyata
Minoriti Jawatankuasa Pilihan Khas PSC”,
Free Malaysia Today, April 3, 2012. URL:
category/nation/2012/04/03/penyataminoriti-jawatankuasa-pilihan-khas-psc/,
as accessed on August 20, 2013.
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174
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CHAPTER 10:
CORRUPTION &
ACCOUNTABILITY
9/18/13 3:50 PM
U
pon becoming prime minister
in 2009, Datuk Seri Najib Razak
vowed to take a firm stand against
corruption and to improve competency,
transparency, and accountability.
To
achieve
these
goals,
Najib
introduced a slew of reform-oriented
initiatives such as the Government
Transformation Programme (GTP) and
Economic Transformation Programme
(ETP).
Furthermore,
National
Key
Result Areas (NKRA), Ministerial Key
Result Areas (MKRA), and National
Key Economic Areas (NKEA) were
identified and these were monitored
with Key Performance Indicators (KPI).
The Performance Management and
Delivery Unit (PEMANDU), a department
that falls under the jurisdiction of the
Prime Minister’s Office, was also set
up specifically to implement these
initiatives.
More than three years have passed since
then and the results of the initiatives
are mediocre at best. This is due to the
fact that these policies are piecemeal
solutions which fail to address the
fundamental cause of the problems.
Laws such as the Official Secrets
Act (OSA) allow the government to
arbitrarily declare certain information
off limits, even if such information could
be of public interest. The Publications
and Printing Presses Act (PPPA) further
restricts
freedom
of
information,
depriving
citizens
of
a
precious
mechanism of check and balance.
As a result, the lack of transparency
leads to the government and the civil
service not being held accountable for
their actions and this in turn breeds
incompetence.
Transparency and corruption
The government tends to adopt a
culture of silence whenever spending
on government projects, policies, and
procurements are questioned. This
inevitably makes government deals
open to abuse and corruption, and this
problem is best illustrated by questions
surrounding procurements in the Ministry
of Defence (MinDef).
D- for graft risk in defence expenditure
Global graft watchdog Transparency
International (TI) placed Malaysia in
group D-, which means very high risk of
corrupt practices, in their ‘Government
Defence Anti-Corruption Index’ along
with
Bangladesh,
China,
Pakistan,
Palestine, Russia, Rwanda, Tanzania, and
Turkey.
Under the index, 82 countries that
makes up 94% of the world’s defence
expenditure were ranked from A for the
least, and F for the most susceptible
to graft in defence expenditure. The
assessment was conducted by defence
and corruption experts along with a
sample pool that included about 37% of
military personnel and ministry officials,
both past and present.
The research was conducted between
July 2011 to October 2012 and scores
were given based on detailed assessment
across 77 indicators covering five key
areas of politics, finance, personnel,
operations, and procurement.
The index report on Malaysia noted weak
auditing of defence auditing of defence
and security expenditure as well as the
restriction of transparency under the
OSA. It also highlighted the unknown
percentage of budget allocation to the
purchase of secret items and the legal
permit of off-budget spending that is
overseen by a division in the Ministry of
Finance. 1
During the unveiling of the index’s
Malaysian chapter by TI-Malaysia (TI-M),
Colonel (R) Kamal Omar, who served 34
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Corruption And Accountability
years in the army, and Major (R) Roznie
Hashim, who served in the 1970’s, both
said the opaque nature of defence
purchases and deals makes it difficult to
assess spending.
“What are the threats that we are facing
and what is the budget we are spending?
But whatever I say, even though I am no
longer in the service, I can be hauled up
under the OSA,” said Kamal. 3
Kamal, who is a former director of the
army’s armoured corps, said troops
are often stuck with equipment that
they don’t need or aren’t suited to
their needs. When questioned on the
purchases, higher ranking officials would
invoke the OSA and soldiers would be
left none the wiser. This ultimately affects
the effectiveness of Malaysia’s armed
forces as soldiers are stuck maintaining
and operating second-best equipment,
which also often comes with an inflated
price-tag.
The government, in particular then
Defence Minister Datuk Seri Ahmad
Zahid Hamidi, accused TI-UK, who
produced the report, of bias and
attributed the low score to a question
of perception. He claimed the methods
of research varied according to different
countries but this was refuted by TI-M as
baseless criticism. 4
“When we (soldiers) received new
equipment, I asked the higher-ups what
threats were we facing that justified such
equipment. They told us it was classified
and we could not talk about it again…
“When I joined MinDef in 1972, this
(lack of transparency) was obvious; we
needed a replacement for our rifles at
the time and there was a tender for it.
The British rifles were too heavy for us,
so we rejected it and recommended
some other make but in the end we got
something entirely different from what
we asked for,” said Kamal during the
press conference. 2
He also questioned the rationale of
having an unusually large standing army
for a maritime country. Due to the long
coast lines of Malaysia, it would be more
practical for the MinDef to invest in the
navy and the air force instead.
Roznie, who is also TI-M executive
committee member, concurred with
Kamal that there was too much spending
on defence when Malaysia is not under
any immediate threats because of the
various peace treaties signed with other
south-east-Asian countries.
Malaysia tops bribe payers survey
Meanwhile, the private sector was not
spared allegation of graft as Malaysia
came up tops in TI’s 2012 Bribe Payers
Survey, with 50% of respondents saying
they had lost contracts or business
prospects in the year because their
competitor had paid a bribe.
Mexico followed suit with 48%, while
Indonesia scored with 47%. Malaysia’s
closest neighbour, Singapore, however,
is positioned number 2 in the list of 30
countries which were surveyed with only
9% of respondents claiming graft had
cost them business.
The survey, which had a sample size
of 3,000 corporate executives from
countries with high level of international
trade and investments, asked two other
questions below:
1. How common is it for public officials
to demand or accept bribes?
2. How common is the misuse of public
funds by high-ranking public officials
and politicians?
Malaysia scored extremely low on both
questions, with a rating of 4.1 out of 5
for the first question and 4.3 out of 5 for
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9/18/13 3:50 PM
the second, on a scale of 1 indicating
‘never’ while 5 denotes ‘very common’. 5
the Philippines, and Indonesia, with the
exception of Singapore and Brunei.
The Corruption Perception Index 2012
(CPI) released by TI-M also ranked
Malaysia as the 54th least corrupt
country out of 176 and scored 49 out
of 100 points. Other countries with the
same score are the Czech Republic,
Latvia, and Turkey.
The agency also pointed out that the
Doing Business Report published by the
World Bank gave Malaysia a score of
12th out of 185 economies in the Ease
Of Doing Business Ranking. PEMANDU
said World Economic Forum’s (WEF)
Global Competitiveness Report also
placed Malaysia within the top 20% of
144 competitive countries in the world.
The government had initially set a bench
mark of scoring 4.9 in the CPI, but fell
short of the target with a score of 4.4
in 2010, and 4.3 in 2011. It should be
noted that TI revamped the CPI’s rating
system, which made a comparison to CPI
2012 difficult. 6
Commenting on the results, then TI-M
president Datuk Paul Low said Malaysia
would have to deal with systemic and
institutionalised corruption to improve
standards of living for the people. He
commented that 75% of the people
think the government’s efforts to combat
corruption were ineffective while only
6% said it was effective.
Low said this has caused Malaysia to
lag behind in economic growth among
ASEAN countries as foreign businesses
tend to use their perception of the
corruption level in a country to decide
whether they would invest in that
country.
“No matter what you say about
perception, whether they perceive it
rightly or wrongly, it doesn’t matter
because ultimately...this is how they
decide if they are going to invest in the
country,” said Low.
Meanwhile, PEMANDU rebutted the
survey by saying that credit should be
given to Malaysia since we actually
showed a slight improvement in the
CPI and we are performing much better
compared to regional partners Thailand,
“In the WEF’s assessment, the most
notable advantages are found in
Malaysia’s efficient and competitive
market for goods and services and
its remarkable supportive financial
sector, as well as its business-friendly
institutional framework. The report
also comments that in a region where
many economies suffer from a lack of
transparency and the presence of red
tape, Malaysia stands out as particularly
successful in tackling these issues,” said
PEMANDU in a press release.
Finally, the agency noted that an
unprecedented rise in private investment
in the past two years indicate that
investor confidence is increasing and
Malaysia’s decade-long low private
investment level is ending. 7
Second highest illicit outflow among
developing countries
Despite the rebuttal by PEMANDU,
a report regarding capital flight in
developing countries published by
Washington-based financial watchdog
Global Financial Integrity (GFI) showed
that Malaysia experienced the highest
amount of capital flight in 10 years
with RM196.8 billion lost through illicit
financial outflow in 2010, nearly double
the previous year’s amount. China is the
only country that surpasses Malaysia in
capital flight for 2010.
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This is despite the GFI having changed
their methodology in estimating illicit
outflow to a more conservative one;
a report released in 2011 showed that
RM143.3 billion had been lost in 2009,
while the revised figure in the 2012
report showed RM93 billion instead.
The total amount of capital flight in 10
years is estimated to be RM285 billion,
just behind Mexico’s RM476 billion while
China tops the list at RM2,740 billion.
The prime minister Najib Razak has
disputed the figures and gave a much
lower figure of RM135.3 billion for
capital illicit outflows in Parliament
in 2011, even though the GFI figures
were backed by London-based NGO
Tax Justice Network, which also found
Malaysia to be among the top countries
for capital flight.
GFI said that trade mispricing (the
practice of shifting profits overseas by
over or under invoicing intra-company
transactions) accounts for an average
of 80.1% of illicit financial outflow from
developing countries while the rest
involves corruption.
This would mean that RM56.7 billion
was lost through corruption in Malaysia
within the last 10 years.
GFI cautioned that their estimates
of global dirty money are extremely
conservative as the report does not take
into account trade mispricing in services,
same-invoice trade mispricing, hawala
transactions, and dealings conducted in
bulk cash.
“This means that much of the proceeds
of drug trafficking, human smuggling,
and other criminal activities, which are
often settled in cash, are not included in
these estimates,” said GFI.
Following the 2011 GFI Illicit financial
outflow report, Najib, who is also
Finance Minister, passed the buck to
Bank Negara to provide an explanation
on the findings. Then Deputy Finance
Minister Datuk Donald Lim announced
that Bank Negara has launched a probe
to explain the massive capital flight, but
the results of the investigation had yet
to be made known at the end of 2012. 8
Competency and Accountability
The police force has now been forced
to be more accountable ever since
the power of arbitrary arrest was
removed when Parliament repealed
the Emergency Ordinance (EO) in late
2011. However, around the same time,
a string of highly-publicised violent
crimes were reported in the Klang
Valley. This included the kidnapping
of Dutch expatriate Nayati Shamelin
Moodliar; an attempted kidnap and rape
of Chin Xin-Ci in the Curve shopping
mall; a robbery involving RM80,000 in
the Curve; a violent robbery in the Mid
Valley Megamall car park, and a robbery
that was foiled by 1 Utama shopping
mall security guards. 9 10 11 12 13 ? At the
same time, unconfirmed reports of crime
rapidly spread through the social media,
which created a climate of fear among
the public.
Instead of tackling the issue headon, then Home Minister Datuk Seri
Hishammuddin Hussein denied there
was an increase in violent crime and said
that it was simply a matter of perception
that crime was on the rise. 14
Hishammuddin’s claim was supported by
then Inspector General of Police Tan Sri
Ismail Omar who said the police force
would focus on reducing the perception
of violent crime. 15
This drew brickbats from the opposition,
civil society, and also some politicians
from the ruling coalition, who maintained
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that the rise in crime was real, asked
that the police do more to address the
problem, and also questioned their
competency.
Among the issues raised was the police
partiality in harassing and charging
political dissidents, and also clamping
down on popular movements critical of
the ruling party as illustrated in previous
chapters.
Restructure the Police Force
There are currently one police officer for
every 270 citizen, not far from the one to
250 ratio recommended by Interpol and
the total number of police personnel is
106,079 strong.
However,
according
to
a
report
published in 2011 by NGO and research
institute REFSA, as much as 40.7% or
43,126 of the force are in management
or administration, while only 8.8% or
9,335 of the force are in the Criminal
Investigations Department (CID), the
department that is responsible for
fighting crime.
Other departments that make up the
statistics are the Internal Security and
Public Order department at 17.2% or
18,264; the General Operations Force
(GOF), which was formed to fight
communists during the insurgency,
which stood at 13.7% or 14,551; logistics
at 9.5% or 10,097; the Special Branch
(SB) at 4.8% or 5,102; the Narcotics
Department at 3.8% or 4,014, and the
Commercial Crimes Department at 1.3%
or 1,420 officers.
The report suggested that the police
force should be restructured in order to
have more police officers fighting crime.
This can be achieved by redeploying the
SB from petty spying on dissidents and
reassigning officers from the GOF. 16
Several quarters also began attributing
the rise in violent crime to the repeal of
EO. This was, however, disputed by then
Home Minister Hishammuddin, who said
there are no links between the increase
in crime and released EO detainees. 17
The police force then released crime
statistics which showed a drop in the
crime rate in Parliament to address
such fears, but this was disputed by
the opposition, who claimed that the
statistics were manipulated to show a
drop in crime rates. This was done by
reclassifying some index crimes such as
robbery into non-index crimes.
This claim was backed up by a rise in
non-index crimes which coincided with
the drop in index crime. According to
opposition MP Tony Pua, non-index
crime has increased by 16.9% in 2007,
21.9% in 2008, 22.8% in 2009, 29.8% in
2010, 31.4% in 2011. This would mean
a 68.7% total increase from 2007 to
2011. 18
The police denied the charge and said
such criticisms were inaccurate and
exaggerated. 19
Set up the IPCMC now!
As mentioned in earlier chapters, the
reluctance of the police force to set up
the IPCMC as recommended by the Royal
Police Commission Report 2005 further
undermines accountability as currently,
crimes committed by the police force
is investigated within the force rather
than a separate, independent body
which would ensure a just and impartial
investigation.
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Conclusion
The reforms touted by Prime Minister
Najib did not go far enough for any
real progress in improving transparency,
accountability and competency. The
culture of silence, corruption, abuse of
power, and incompetence remains while
retrogressive laws such as the OSA and
the PPPA remain on the statute books.
Political will is lacking in addressing the
root causes of the problems, such as
improving transparency by enacting a
Freedom of Information Act as has been
implemented in Selangor and Penang;
setting up the IPCMC and redeploying
police personnel.
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End notes
1
http://www.fz.com/content/ti-ourdefence-report-expert-assessment (TI:
Our defence report expert assessment)To
be accurate, the period is for objection
against new entries after the public
display and any claim of inclusion.
The display period is not defined. See
Sub-regulations 13(5), 14(3) and 15(2A)
of Elections (Registration of Electors)
Regulations 2002.
2
http://selangortimes.com/index.php?sect
ion=news&permalink=20130207180252mindef-spending-raises-eyebrows
(Mindef spending raises eyebrows)
3
news/220831 (Secrecy makes it difficult
to assess defence spending)
4
5
6
7
http://www.theedgemalaysia.com/
political-news/230388-zahids-criticismbaseless-says-ti-m.html (Zahid’s criticism
baseless)
malaysia/article/malaysian-firms-losedeals-due-to-bribery-ti-survey-shows
(Malaysian firms lose deals due to
bribery, TI survey shows)
http://blogs.wsj.com/
searealtime/2012/12/11/malaysia-topsbribery-table/ (Malaysia Tops Bribery
Table)
sideviews/article/response-to-themalaysian-insider-artcile-on-briberypemandu (Response to the Malaysian
Insider article on Bribery)
8
news/216889 (M’sia is world number 2 in
illegal capital flight)
9
sideviews/article/how-i-escaped-an-
attempted-kidnapping-chin-xin-ci (3
Charged with Nayati’s kidnapping)
sideviews/article/how-i-escaped-anattempted-kidnapping-chin-xin-ci (How I
escaped an attempted kidnapping)
Nation/2012/05/31/Curry-powderrobbers-escape-with-RM80000.aspx
(curry power robbers escape with
RM80,000)
12 http://www.starproperty.my/index.php/
articles/property-news/security-guardsstop-fleeing-robbery-suspects-at-1utamashopping-centre/ (Security guards stop
fleeing robbery suspects)
13 http://www.nst.com.my/nation/
general/woman-slashed-robbed-atcar-park-1.97436 (woman slashed and
robbed at car park)
Nation/2012/10/02/Hisham-Focus-nowon-managing-public-perception-ofcrime.aspx (Focus on managing public
perception of crime)
category/nation/2012/09/13/igp-risingcrime-just-a-perception/ (IGP: Rising
Crime just a perception)
16 http://refsa.org/wp/wp-content/
uploads/2011/08/Police-paperREFSA-20110826.pdf (REFSA’s police
paper)
Nation/2012/07/19/Home-MinistryIncreased-crime-not-due-to-release-ofinmates.aspx (Home Ministry: Increased
Crime not due to release of inmates)
category/opinion/2012/08/29/crimeindex-misleading-reply-from-pdrm/
182
9/18/13 3:50 PM
(crime index misleading reply from
PDRM)
category/opinion/2012/08/28/crimestats-bukit-aman-provides-its-version/
(crime stats, bukit aman provides its
version)
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9/18/13 3:50 PM
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9/18/13 3:50 PM
CHAPTER 11:
LAW AND THE
1
JUDICIARY
9/18/13 3:50 PM
“Judges being human are liable to
make erroneous decisions. That is
acceptable provided the decision is not
tainted with bias or prejudice and is free
from any interference. As Judges, we
are accountable to no one but the law
which must be administered without
fear or favour, affection or ill will.”2
Chief Justice of the Federal Court of
Malaysia Arifin bin Zakaria,
Speech at the Opening of the Legal Year
2012, Putrajaya
“[T]here has to exist a clear separation
of powers between the Judiciary and
the other two arms of the government
in order to uphold the rule of law….[T]
he rule of law is essential in upholding
the democratic system of government.
However the rule of law must be
supported by a judicial system which
is independent from any extraneous
interference thus, emphasising the
significance of the doctrine of separation
of powers. In recent years, positive
measures have been taken by the
government to advance the rule of law
and the independence of the judiciary
through the setting up of the [Judicial
Appointments Commission] and the
repeal of the infamous preventive laws.
Needless to say, the independence of
the judiciary has also to be reinforced
from within the judiciary itself. This
can only be achieved through such
measures as proper selection of judges,
judicial training and strict adherence to
the code of ethics.”3
Chief Justice of the Federal Court of
Malaysia Arifin bin Zakaria,
Integrity 2012 Speech entitled “Rule of
Law and Judicial System
One of the continuing challenges to the
judiciary in 2012 remained whether the
courts were prepared to uphold laws
contrary to the concept of internationally-
recognised human rights. The experience
in 2012 showed a positive trend, with
some good decisions which advanced
the promotion and protection of human
rights. However, this was mixed with the
introduction of new laws, or amendments
to existing laws that weakened or
removed recognition of human rights.
1. Judges and the Administration of
Justice
1.1 Focus of the judiciary
2012 began with the Chief Justice
of the Federal Court of Malaysia
announcing, in his Opening of Legal
Year Speech on 14 January 2012,
that with effect from January 2012,
both civil and criminal appeals in the
Federal Court would be heard by
a quorum of five judges, instead of
the previous three. This would, he
hoped, “help to improve the quality
of our judgments and decisions.”4
In the same speech, he announced a
greater focus on environmental law. He
identified the disparity of sentencing
in two cases: one, in Tumpat in 2005,
where a man was fined RM7,000 for
being in illegal possession of a dead
tiger, and the other, a case in 2010,
where a man was sentenced to five
years in prison for stealing 11 cans of
“Tiger” beer and “Guinness” stout
worth RM70. More judicial training in
environmental law would be carried
out and, if needed, a specialised court
to handle environmental cases could
be set up.
The Chief Justice reaffirmed the
commitment of the judiciary to
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Law & Judiciary
integrity and judicial independence.
He quoted Chief Justice Murray
Gleeson, a former Chief Justice of
Australia:
“Confidence in the Judiciary does not
require a belief that all judicial decisions
are wise, or all judicial behaviour
impeccable, any more than confidence
in representative democracy requires a
belief that all politicians are enlightened
and concerned for the public welfare.
What it requires, however, is a satisfaction
that the justice system is based upon
values of independence, impartiality,
integrity and professionalism, and that,
within the limits of ordinary human
frailty, the system pursues those values
faithfully.
“Courts and judges have a primary
responsibility to conduct themselves in
a manner that fosters that satisfaction.
That is why judges place such emphasis
upon maintaining both the reality and
the appearance of independence and
impartiality.
In addition, built into
the infrastructure of our institutional
arrangements, there are rules and
conventions designed to secure and
maintain the same confidence.”5
1.2 Improvements
in
administration of justice
the
Later in the year, at the closing of the
Malaysian Bar’s International Malaysia
Law Conference, the Chief Justice
of the Federal Court of Malaysia
pointed to specific reform measures
that had been introduced to improve
and increase the efficiency of the
judicial system: the establishment of
specialised courts, use of electronic
systems, expedited appeals through
special panels, the introduction of
mediation as a cheaper and quicker
alternative, appointment of new lower
court registrars and of course, the
establishment of the combined rules,
the Rules of Court 2012. In the area of
criminal law, criminal cases were also
being cleared more speedily with the
introduction of witness statements,
case management and amendments
to the Criminal Procedure Code with
plea bargaining. He highlighted the fact that “the
strides made were evident when
Malaysia rose to the 31st position in
2012, from 60th in 2009, in its ranking
under the World Bank Doing Business
Report for “Enforcing Contracts”.
The World Bank even remarked
that Malaysia had set a world-class
example in judicial reform. These
changes were necessary as the
judiciary needed to be able to change
to adapt to the needs of the business
community.”6
1.3 Repeal of the Internal Security
Act 1969 and the Emergency (Public
Order and Prevention of Crime)
Ordinance 1969
2012 will be remembered for the
abolition of the Internal Security Act
1969 (ISA 1969), which provided for
preventive detention without trial.
It was repealed on 31 July 2012, 43
years after it came into force on 1
August 1969. The Prime Minister
had announced on 15 September
2011 that the ISA 1969, together with
several other out-dated legislation
and the three declarations of
emergency, would be abolished and/
or withdrawn. Some other laws will
be amended in compliance to Human
Rights Principles.7
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Notwithstanding
this
abolition,
the High Court at Kuala Lumpur in
February began hearing an application
by five plaintiffs in a civil suit against
the government of Malaysia seeking
compensation for unlawful detention
under the ISA 1969. On 2 October
2012, the court ruled in their favour
and awarded the five plaintiffs
damages in excess of RM4 million.8
defend parliamentary democracy, but
at the same time, to protect human
rights and freedom of its citizens….
On the part of the judiciary, in order to
ensure that cases under this new law are
expeditiously disposed of, a number
of judges have been assigned to hear
these cases. They were selected from
among experienced judges and will
be given training in security laws and
human rights issues.”9
The much-abused “EO”, as this
legislation is popularly referred to,
cease to take effect in June 2012, six
months after three declarations of
emergency promulgated in the 1960s
and 1970s were finally annulled by the
Malaysian Parliament in December
2011.
As a result, preventive
detention without trial for public order
and prevention of crime incidents is
no longer possible, and these issues
would no longer be brought before
the courts. The police will have to rely
on non-emergency legislation, such
as the Penal Code, to address these
issues.
The amendments introduce new
provisions that shift the burden
of proof in certain cases to the
accused rather than remaining with
the prosecution. In particular, the
newly-introduced Section 114A of
the Evidence Act 1950 provides that
any content posted on the internet
through registered networks or data
processing device will be deemed to
have been uploaded by the registered
user.
The registered user would
therefore be presumed to be the
author of any unlawful material that
was published on a blog, website,
or transmitted from the registered
user’s computer. They also provide
for electronic monitoring of accused
persons and either the continued
electronic monitoring or remand of
accused persons who have been
found not guilty, pending appeal
by the government against their
acquittal.
1.4 New laws
Having said that, the government also
introduced amendments to the Penal
Code, Criminal Procedure Code, and
Evidence Act 1950 and introduced
the Security Offences (Special
Measures) Act 2012 (SOSMA 2012) in
order to compensate for the end to
the EO. Referring to SOSMA 2012,
the Chief Justice of the Federal Court
of Malaysia had this to say:
“[The new law] provides the authorities
with adequate legal weaponry not
only to combat global terrorism and
A further new piece of legislation
is the Peaceful Assembly Act 2012
(PAA 2012), came into force on 23
April 2012. It should be noted that
this new law was brought into force 5
days before the BERSIH 3.0 peaceful
assembly on 28 April 2012, which is
referred to elsewhere in this Report.10
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Law & Judiciary
The PAA 2012 outlaws “street
demonstrations”, prohibits assemblies
from taking place within 50 metres of
certain designated places, prohibits
children below the age of 15 from
participating in assemblies, prohibits
children below the age of 18 from
organising assemblies, mandates a
10-day notification period prior to
the holding of any assembly, and
allows the police to impose terms and
conditions in relation to the holding
of any assembly. A failure to comply
with any of these provisions will result,
upon conviction, to a fine.
Clearly, these changes do not accord
with international human rights
principles.
Arising out of this new law, on 15 May
2012 the government of Malaysia filed
a civil suit against 10 members of the
BERSIH 2.0 Steering Committee for
compensation upon damage inflicted
on government’s property during the
BERSIH 3.0 assembly which took place
on 28 April 2013. The government of
Malaysia contends that under the PAA
2012, the organisers of an assembly
are responsible for any loss or damage
suffered as a result of the assembly. In
response, the Co-Chair of the BERSIH
2.0 Steering Committee stated that
the defendants were prepared to
challenge the constitutionality of the
PAA 2012.11 As at the end of 2012,
the case had yet to be fixed for trial.
In addition, the government of
Malaysia on 22 May 2012 charged
the leader of the Federal opposition
in Parliament and leader of the
National Justice Party, Datuk Seri
Anwar Ibrahim, the deputy president
of the National Justice Party Azmin
Ali, and Badrul Hisham Shaharin, with
participating a street protest contrary
to Section 4(2)(c) of the PAA 2012.
These were the first prosecutions
under the PAA 2012. Subsequently,
on 2 July 2012, the same three
individuals were additionally charged
for abetting three other people in
the breaking of barricades set up in
response to the BERSIH 3.0 assembly,
which had been erected pursuant to
a magistrate’s order prohibiting the
entry into Merdeka Square in Kuala
Lumpur for four days beginning the
day of the assembly. In November
2012 the High Court at Kuala Lumpur
began hearing the application by the
three to have the charges struck out.
1.5 Death penalty
In March 2012 in reply to a question
raised in Parliament, the Minister
of Home Affairs stated that 3,845
people had been arrested for drug
dealing in 2011, and that arrests
under Section 39B of the Dangerous
Drugs Act 1952 (DDA 1952) (which
carries a mandatory death sentence
upon conviction) had increased
between 2009-2011. The figure for
2009 was 2,955 and 2010 was 3,700.
This has led to the observation that
the death penalty was not proving
to be a deterrent effort to stop drug
trafficking in Malaysia.12
This has led the Minister in the Prime
Minister’s Department in charge of
Law and Parliamentary Affairs to state
that the government is undertaking a
study on the possibility of abolishing
the death penalty under the DDA
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9/18/13 3:50 PM
1952. He indicated that he would
ask the Cabinet for a moratorium
on capital punishments until the
government had completed the
study.13
Notwithstanding these developments,
in the course of 2012, the courts
continued to hand down mandatory
death sentence on those convicted of
drugs trafficking. On 28 September
2012, the High Court at Penang
sentenced
an
Indonesian
Ani
Anggraeni, a domestic worker, to
hang for trafficking nearly 4 kgs of
methamphetamine.
Marivelle Gonzales, a Filipino national,
was sentenced to hang for trafficking
1 kg of mainly heroin by the High
Court at Shah Alam.14
1.6 Statutory Rape
On 8 August 2012 the Court of
Appeal set aside a five-year jail term
for statutory rape handed down to a
21-year-old Malaysian national bowler,
declaring that public interest would
not be served by such a sentence
as the bowler had a bright future.15
The bowler had been convicted by
the Sessions Court in Malacca for
having sexual intercourse with a 13year old girl in 2011, and had bound
him over on a good behaviour bond
of RM25,000 for five years. The
Sessions Court took into account that
the relationship was consensual. The
prosecution appealed the sentence,
and the Malacca High Court enhanced
the sentence to five years in jail. The
Court of Appeal restored the original
sentence.
(Photo courtesy of Azlan Zamhari, Malaysiakini)
This was followed by a second case
on 29 August 2012, where a 22-yearold man was also bound on a good
behaviour bond of RM25,000 for three
years for having sexual intercourse
with a 12-year-old girl whom he had
‘dated’ on two occasions.2
Both cases attracted public attention,
given the light punishment. This led
to calls for mandatory jail sentence for
statutory rape. In the second case,
the light sentence was reversed on
appeal, and a jail sentence of fiveand-a-half-years was substituted.3
However the calls for a mandatory
sentence were countered by the fact
that the public also wanted the courts
to retain their discretionary powers
when it comes to sentencing. Instead,
a sentencing council was mooted
to issue guidelines on sentencing in
various circumstances.
2. Judges and Democracy
2.1 The right to vote
On 15 November 2011, the High
Court had granted leave to six
Malaysians living in United Kingdom
for judicial review of the decision by
the Election Commission (EC) not
to register them as absent voters
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Law & Judiciary
in the next general election.18 Teo
Hoon Seong, Paramjeet Singh, V.
Vinesh, Yolanda Sydney Augustin,
Sim Tze Wei and Leong See See
claimed that they applied to the EC
between January and March 2011 to
be registered as absent voters under
Regulations 2002. Instead, they were
registered as ordinary voters. Only
after they sought an explanation
from the EC, they were told that their
applications had been rejected on the
ground that they were not entitled to
be registered as absent voters.
The six wanted a declaration as
Malaysians staying abroad; they were
entitled to be registered as absent
voters and accordingly, sought a court
order directing the EC to register them
as such. Alternatively, they asked for
a court order directing the EC to make
regulations and take appropriate
action within 14 days from the court
ruling to allow them to be registered
as absent voters and/or postal voters
so that they could exercise their right
to vote by the next general election.
The application was heard on 3
January 2012.19 On 6 January 2012,
the High Court at Kuala Lumpur
dismissed the applications by the six.
It held that the EC had acted rightly in
not registering them as absent voters
as the six did not come under the
category of ‘absent voters’.20
The six have appealed against the
decision, but have been granted a
postponement of the hearing of their
appeal by the Court of Appeal pending
the EC’s proposed amendment to
the election regulations pertaining
to overseas voters.21 As at the end
of 2012, the EC had yet to table the
proposed amendments.
2.2 BERSIH 2.0
On 29 March 2012 the High Court
at Kuala Lumpur began hearing
the application by members of the
Steering Committee of the Coalition
for Clean and Fair Elections, better
known as BERSIH 2.0, for judicial
review of an order dated 1 July 2011
made by the Minister of Home Affairs
under the Section 5 of the Societies
Act 1966 that declared BERSIH to be
an unlawful society. In the course of
the hearing, the High Court ordered
the Minister of Home Affairs to file an
affidavit to clarify the ban on BERSIH
2.0, given his statements in relation
to the organising of the BERSIH 3.0
peaceful assembly that it was not a
security threat.22 On 15 May 2012 the
High Court rejected an application by
the Steering Committee of BERSIH
2.0 to cross-examine the Minister
of Home Affairs and the Inspector
General of Police for having declared
BERSIH 2.0 as an illegal movement.
The High Court ruled that the
affidavits were sufficient and that no
cross-examination was necessary.23 In
a hearing on 26 June 2012, the High
Court queried why the Minister of
Home Affairs had declared BERSIH to
be an illegal society on 1 July 2011,
but then subsequently allowed the
BERSIH 3.0 peaceful assembly to take
place on 28 April 2012.24
On 24 July 2012, the High Court ruled
that BERSIH 2.0 was not an unlawful
organisation. 25 The Court found that
the Minister of Home Affairs’ order
was ‘tainted with irrationality’.
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On I March 2012, the High Court at
Kuala Lumpur allowed an appeal by
the prosecution against the acquittal
of 17 persons arrested for taking part
in the BERSIH illegal assembly in
November 2007. The 17 had been
acquitted by the Sessions Court
on 19 November 2010. Amongst
those acquitted were Members of
Parliament Tian Chua, Mohamad Sabu
and N. Gobalakrishnan.26 The 17 were
ordered to enter their defence.
3.2 Police misconduct
3. Holding the Government to account
3.1 Questioning
government’s
decision on allocation to Members
of Parliament
The saga of challenging whether
the government was right not to
distribute constituency development
allocations to opposition Members of
Parliament continued its way through
the courts in 2012. In October 2011,
the Court of Appeal had unanimously
allowed the federal government’s
appeal against the decision of the
High Court to grant leave to appeal,
and dismissed the application by
Jeyakumar Devaraj MP on the ground
that disbursement of the allocation
was at the discretion of the executive
branch of government. On 8 March
2012 the Federal Court overturned
the decision of the Court of Appeal
and granted leave to apply for judicial
review.27 On 14 August 2012 the
Federal Court concluded hearing the
appeal and reserved its judgment.28
On 5 December 2012, police
Corporal Jenain Subi, was acquitted
on the charge of shooting a 15-yearold Aminulrasyid Amzah to death
on 26 April 2010. Jenain Subi was
initially found guilty and sentenced on
15 September 2011 to five years’ jail
by the Sessions Court at Shah Alam.
However, on appeal, the High Court
at Shah Alam acquitted him. High
Court judge Abdul Rahman Sebli in his
judgement stated that he was satisfied
that Jenain Subi had no intention of
killing Aminulrasyid Amzah, and that
he had fired the shots in order to stop
the car in which Aminulrasyid Amzah
was joyriding.29
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Law & Judiciary
At the end of December 2012, a civil
suit was brought by the mother of
death-in-custody victim A Kugan. N
Indra was suing police constable V.
Navindran, the Subang Jaya police
district chief Zainal Rashid Abu Bakar
(who is now deceased), the then
Chief Police Officer of Selangor Tan
Sri Khalid Abu Bakar, the Inspector
General of the Royal Malaysian Police
and the government of Malaysia for
negligence in the death of her son.30
V. Navindran was found guilty by the
Shah Alam Sessions Court on 11 June
2012 of causing hurt to A Kugan on
16 January 2009, leading to his death,
and was sentenced to three years in
jail.31 He had earlier been acquitted,
but on appeal the High Court ordered
that he enter his defence.
4. High profile trials
4.1 Anwar Ibrahim
As an immediate reaction to the
decision of the court, then Minister
of Information, Communications
and Culture said that the verdict
showed that the country’s judiciary is
independent.33
4.2 Ling Liong Sik
The trial of Tun Dr Ling Liong Sik, the
former Federal transport minister and
former president of the Malaysian
Chinese Association, for corruption,
continued.
4.3 Chan Kong Choy
The trial of another former Federal
transport minister, Datuk Chan
Kong Choy, also from the Malaysian
Chinese Association, on three counts
of cheating pursuant to Section 417 of
the Penal Code, was also on-going.
4.4 Mohamad Khir Toyo
9 January 2012 saw former Deputy
Prime Minister Dato’ Seri Anwar
Ibrahim acquitted on charges of
sodomy.
According to a media
report, Justice Mohamad Zabidin
Mohd Diah said that, “After going
through the evidence I cannot be 100
per cent certain that the evidence
can be accepted, as there could
have been tampering. Hence, the
court is reluctant to convict on such
corroboration of evidence from [the
complainant, Saiful Bukhari Azlan] and
the accused is acquitted.”32
Dato’ Seri Anwar Ibrahim had been
charged in 2011 with sodomising
his aide Saiful Bukhari Azlan. The
prosecution has since given notice
that it intends to appeal the decision.
The former Mentri Besar of Selangor,
Mohamad Khir Toyo had been found
guilty on 23 December 2011 of
abusing his influence to buy a luxury
home and land at a discount of up to
RM3 million, and was sentenced to 12
months’ imprisonment. His appeal
against his conviction was heard in
2012 and is on-going.
5. Looking forward
Writing about law and the judiciary in
Malaysia involves the delicate art of
balancing aspiration with reality, and
standing between the “now” and the
“not yet”. The aspiration is perhaps
best enunciated by the Chief Justice
of the Federal Court of Malaysia, in
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speaking about the new laws and the
new amendments to existing laws
which were introduced in the course
of 2012:
“….to create a Nation where the Federal
Constitution and the rule of law as the
guardian of the people will protect each
individual so that he is free to voice
out his opinion and be free to support
any body or organization. In short, no
one will be punished in exercising his
rights as guaranteed by the Federal
Constitution and there shall be strict
adherence to the rule of law.”34
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Law & Judiciary
End notes
1
This chapter is written by Andrew Khoo,
an Advocate and Solicitor of the High
Court of Malaya in Malaysia. He is also
known as ‘Defendant No. 10’ (in the
government of Malaysia’s lawsuit against
the Bersih 2.0 Steering Committee).
2
www.kehakiman.gov.my/sites/default/
files/document3/Penerbitan Kehakiman/
KetuaHakim.pdf, Accessed: 22 July 2013.
3
Integrity 2012 Prime Lecture entitled
“Rule of Law and Judicial System”,
delivered on 19 November 2012, http://
files/document3/Teks Ucapan/CJ Integrity Speech (NEW).pdf, Accessed:
26 July 2013.
8
“GMI: Pak Lah and ex-IGP Norian should
apologise”, Malaysiakini, 3 October
2012, http://www.malaysiakini.com/
news/210663, Accessed: 26 July 2013.
9
Integrity 2012 Prime Lecture entitled
26 July 2013.
view&gid=4064
11 “Bersih to test assembly law for
constitutionality”, Malaysiakini, 13 June
4
5
12 “Death penalty not deterring drug
trade”, Free Malaysia Today, 19 March
2012, http://www.freemalaysiatoday.
com/category/nation/2012/03/19/
death-penalty-not-deterring-drug-trade/,
Accessed: 27 July 2013.
6
http://www.malaysianbar.org.my/
speeches/closing_remarks_by_yaa_
tun_arifin_bin_zakaria_chief_justice_of_
malaysia_at_the_international_malaysia_
law_conference__2012_klcc_28_
sept_2012.html, Accessed: 22 July 2013.
13 “Drug-related executions on hold”, Free
Malaysia Today, 24 October 2012, http://
nation/2012/10/24/drug-relatedexecutions-on-hold/, Accessed: 27 July
2013.
7
The laws to be abolished were the
Restricted Residence Act 1933 and
Banishment Act 1959. The laws to
be amended were the Universities
and University Colleges Act 1971 and
the Printing Presses and Publications
Act 1984. The main amendment to
the former was to allow students of
universities and university colleges to
participate in political activity, while that
of the latter was to end the requirement
of annual printing and publication
licences and allow for judicial review of
decisions by the Minister.
14 ‘Two foreign women sentenced to death
for drugs’, Malaysiakini, 29 September
15 ‘National bowler escapes jail over
statutory rape’, Malaysiakini, 8 August
16 ‘Man spared jail for statutory rape of
12-year-old’, Malaysiakini, 29 August
195
9/18/13 3:50 PM
17 ‘Electrician now gets jail for sex with
minor after uproar’, Malaysiakini,
19 November 2012, http://www.
malaysiakini.com/news/214532,
18 The High Court had set 13 December
2011 for case management and 3
January 2012 for the start of the hearing.
19 “Absent voters’ case: Decision
on Friday”, Malaysiakini, 13 June
20 ’Six overseas M’sians lose bid to be
‘absent voters’’, Malaysiakini, 6 January
21 ‘Absent voters’ appeal postponed’,
Malaysiakini, 26 July 2012, http://
www.malaysiakini.com/news/204678,
22 ‘Judge wants Hisham to clarify Bersih 2.0
ban’, Malaysiakini, 25 April 2012, http://
23 ‘Court throws out Bersih bid to
question Hisham’, Malaysiakini, 15 May
24 ‘Judge queries Bersih ban, asks can CPM
apply to rally?’, Malaysiakini, 26 June
27 ‘MP funds: Jeyakumar wins leave to
appeal decision’, Malaysiakini, 8 March
29 ‘Judgment reserved in Jeyakumar’s ‘MP
funds’ suit’, Malaysiakini, 14 August
30 ‘Cpl Jenain acquitted on culpable
homicide charge’, Malaysiakini,
5 December 2012, <http://www.
malaysiakini.com/news/215938>,
31 ‘Cop in Kugan case tells of meeting to
identify scapegoat’, Malaysiakini, 17
December 2012, http://ww.malaysiakini.
com/news/216835, Accessed: 26 July
2013.
32 ‘Kugan case: Constable gets 3 years
for ‘causing hurt’’, Malaysiakini, 11
June 2012, http://ww.malaysiakini.com/
33 “Sodomy II verdict: Anwar NOT guilty!”,
Malaysiakini, 9 January 2012, http://
34 Integrity 2012 Prime Lecture entitled
26 July 2013.
25 ‘Bersih not ‘unlawful organisation, rules
court’, Malaysiakini, 24 July 2012, http://
26 ‘Bersih 1: Mat Sabu, Tiuan Chua told
to enter defence’, Malaysia, 1 March
196
9/18/13 3:50 PM
SUARAM NEEDS
YOUR SUPPORT
9/18/13 3:50 PM
SUARAM’S 25 Years Defending Human
Rights
SUARAM NEEDS YOUR GENEROUS
SUPPORT
SUARAM (Suara Inisiatif Sdn Bhd
562530-P) was born in the shadow of the
ISA by several detainees of Operation
Lalang and their supporters in 1989. We
have since become the leading human
rights organization in Malaysia, actively
defending all aspects of human rights,
including the right to trial and justice;
freedom of expression and information;
freedom of assembly and association;
freedom of religion; rights of indigenous
peoples, minorities and refugees and
more.
SUARAM has achieved all of this because
of your support. SUARAM’s work is
guided by a policy-making secretariat
made up of voluntary professionals and
further supported by Friends of Suaram
volunteers. Your donations are needed
to sustain our committed team of fulltime human rights defenders. And here’s
how you can continue to invest in this
important civil society initiative:
(i) Sponsor a member of staff (RM30,
000 a year).
(ii) Be a RM500 sponsor of SUARAM
and receive complimentary copies
of Annual Human Rights Report and
all SUARAM publications;
(iii) Be a RM100 sponsor of SUARAM
and receive a complimentary Annual
Human Rights Report.
Malaysia would have never been the
same if SUARAM had not existed and
our achievements are listed below. The
challenges our country faces are still
considerable. Malaysia still has a long
way to go in meeting international
human rights standards. Until these are
met, Malaysians will continue to live in an
unjust and undemocratic society where
the government and the police can get
away with violations of basic human
rights with impunity.
The existence of two fronts in our political
system is a challenge for SUARAM to
play a non-partisan role in ensuring the
peoples’ interests are met no matter
which coalition is in power. Our efforts
to bring about elected local government
and a meaningful Freedom of Information
Act are examples of this crucial role.
With your generous support, SUARAM
can continue to play its critical role in
defending and promoting human rights in
Malaysia. Please make your contributions
payable to ‘Suara Inisiatif Sdn Bhd” or
you can transfer your funds directly to
our Hong Leong Bank account No: 03000065-200. We thank you in anticipation.
SUARAM’S ACHIEVEMENTS
SUARAM has been the human rights
centre for many victims of detention
without trial and police abuse in these 24
years;
• Abolishment of ISA, Emergency
Ordinance (EO), Release of ISA
detainees, EO detainees, and
providing support and urgent
arrest team for those who are being
arrested or detained.
• Our Annual Human Rights Report
for Malaysia since 1998 has become
198
9/18/13 3:50 PM
•
•
the authoritative and comprehensive
report eagerly awaited by domestic
and international watchers;
SUARAM has facilitated several
crucial coalitions of Malaysian civil
society that have contributed to the
political tsunami of 2008 and the clamour for reform, including, the
Anti-ISA Movement and Stop the
War Coalition since 1989; Malaysian
Charter on Human Rights, 1993;
Stop Bakun Dam campaign, 1995;
Peoples’ Tribunal against police
brutality and Asia-Pacific Conference
on East Timor, 1996; Peoples’
Democratic front and Asia-Pacific
Peoples’ Assembly, 1998; Save our
Sungai Selangor and People Before
Profits, 2000; Policing the Police,
2004; Report on the state of human
rights in Malaysia for the UN Human
Rights Council’s Universal Periodic
Review, 2009; Global Day of Action
against Military Spending, 2011;
SUARAM has nurtured many young
activists some of whom have
become members of federal and
state parliaments; CEOs of online
•
•
media and regional and international
NGOs;
SUARAM has provided invaluable
human rights training & education to
countless students, youth, lawyers,
journalists, urban settlers, workers,
indigenous peoples and community
groups;
SUARAM
has
developed
international network and solidarity
through our support for democracy
and human rights in SE Asia and the
rest of the world.
THE CHALLENGES WE FACE
Besides our human rights work, in the
years to come SUARAM will focus on
ensuring the government ratifies the
following international treaties:
• International Covenant on Civil and
Political Rights;
• International Covenant on Economic,
Social & Cultural Rights;
• The Convention on the Eradication
of Racial Discrimination;
• Convention against Torture;
• Convention on Refugees.
Your financial contribution can be made by banking in to:
Name of Account: SUARA INISIATIF SDN BHD
Name of Bank : Hong Leong Bank
Account No : 03000065200
We yearn for a just, fair and equitable society free of corruption and malpractices
in line with our fundamental liberties enshrined in the Federal Constitution and the
Universal Declaration of Human Rights.
Your support and donation means a lot to us.
For further information please visit www.suaram.net
9/18/13 3:50 PM
9/18/13 3:50 PM

2012 (download here)

Transcription

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