United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1994 - Malaysia, 30 January 1995, available at: http://www.refworld.org/docid/3ae6aa4618.html [accessed 14 March 2014]
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
Malaysia is a federation of 13 states with a parliamentary system of government based on periodic multiparty elections but in which the ruling National Front coalition has held power since 1957. Opposition parties actively contest elections, although they hold only 21 percent of the seats in the Federal Parliament; an opposition party currently controls one state government. There is political competition within the United Malays National Organization (UMNO), the major party in the coalition. The Government asserts that internal security laws allowing preventive detention (and arrests under such laws) are required owing to Malaysia's "sensitive social balance," the need to ensure that the peace and stability of the country are protected, and concern about endemic narcotics trafficking problems. However, the Government also has used these laws more broadly to detain persons when available evidence is insufficient to bring formal charges under the Criminal Code, as well as to detain political opponents. The existence of these laws serves to inhibit effective opposition to government policies. The Royal Malaysian Police has primary responsibility for internal security matters; it reports to the Minister of Home Affairs. Prime Minister Mahathir also holds the Home Affairs portfolio. There continued to be some credible reports of mistreatment of prisoners and detainees by the police and prison officials. Rapidly expanding exports of manufactured goods, especially in the electronics sector, account for much of the country's economic growth. Crude oil exports and traditional commodities (tropical timber, palm oil, rubber) add to Malaysia's trade revenues. Strong economic performance in recent years has led to significant reductions in poverty, improved standards of living, and more equal income distribution. While there is an efficient system of justice based on common law principles, the Government continues arbitrarily to arrest and detain citizens without trial. The Government also limits judicial independence and effectively restricts freedom of association and of the press. These restrictions make it very difficult for opposition parties to compete on equal terms with the long-ruling governing coalition. Domestic violence against women is a serious problem, which the Government is taking steps to address.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing
There were no reports of political or other extrajudicial killings by the Government or any other political organization.
There were no reports of disappearances attributable to the Government or any other political organization.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
There continue to be instances of police officers abusing criminal suspects during interrogation, including strong psychological pressure and sometimes physical abuse. In some cases, government authorities have investigated police officials for such abuses, but because they refuse to release information on the results of the investigations, it cannot be determined whether those responsible for such abuses are punished. There were no known instances in 1994 (or in recent years) of police officials being tried, convicted, and sentenced for abuse of prisoners. Malaysian criminal law prescribes caning as an additional punishment to imprisonment for those convicted of crimes such as narcotics possession. Judges routinely include caning in sentencing those convicted of such crimes as kidnaping, rape, and robbery. The caning, which is normally carried out with a 1/2-inch thick wooden cane, commonly causes welts and sometimes scarring.
d. Arbitrary Arrest, Detention, or Exile
Three laws permit the Government to detain suspects without judicial review or filing formal charges: the 1960 Internal Security Act (ISA), the Emergency (Public Order and Prevention of Crime) Ordinance of 1969, and the Dangerous Drugs Act of 1985. The Government continued to use long-term detentions without trial in cases alleged to involve national security, as well as in narcotics trafficking and other cases. According to the Home Affairs Ministry, as of December, there were 4,115 people being detained without trial; most of those detainees are being held under the Dangerous Drugs Act. Passed more than 30 years ago when there was an active Communist insurgency, the ISA empowers the police to hold any person who may act "in a manner prejudicial to the security of Malaysia" for up to 60 days. According to the Government, the goal of the ISA is to control internal subversion, although there is now no serious threat to national stability in Malaysia. The Government also uses the ISA against passport and identity card forgers, 20 of whom were being held as of December 20. Security authorities sometimes wait several days after a detention before informing the detainee's family. The Minister of Home Affairs may authorize, in writing, further indefinite detention for periods of up to 2 years. Even when there are no formal charges, the authorities must inform detainees of the accusations against them and permit them to appeal to an advisory board for review every 6 months. Advisory board decisions and recommendations, however, are not binding on the Home Affairs Minister, are not made public, and are often not shown to the detainee. A number of ISA detainees have refused to participate in the review process under these circumstances. The Home Affairs Ministry reported in December that there were 27 ISA detainees at that time, down from 51 as of July 1993. The Government released approximately 27 former detainees subject to "imposed restricted conditions," which will be in effect for the balance of their detention periods. These conditions limit their rights to freedom of speech, association, and travel outside the country. On September 2, the Government detained under the ISA nine members of the banned Al Arqam Islamic movement, including the Islamic sect's leader, Ashaari Muhammed. The Government said it took these actions on the grounds that Al Arqam posed a threat to national security, although it presented no credible evidence of this. On October 20, after 50 days in ISA detention by the Special Branch, Ashaari recanted his beliefs in a 2 1/2-hour government-televised discussion with Islamic leaders and confessed to propagating teachings and practices which deviated from true Islam. Since founding Al Arqam in 1968, Ashaari had been vigorously expounding these views for over 25 years at the time of his recantation. During the televised confession, Ashaari appeared to have lost weight, and his head and beard had been shaved. Ashaari and five of his followers were freed on October 28 and Ashaari visited the Al Arqam commune at Sungai Pencala the next day to meet with his followers. He told his followers that his October 20 confession had been "voluntary." Ashaari remains under restricted residence, and his movements are limited to Kuala Lumpur and the surrounding state of Selangor. In January the Government lifted restricted residence conditions for six persons, including the brother of the then chief minister of the east Malaysian state of Sabah, who had been detained under the ISA in 1990 and 1991 for alleged involvement in a secessionist plot. They had been released in 1993, but their movements were restricted. Amendments to the ISA severely limit judicial review of detentions, contravening international standards of due process. During 1994 opposition leaders and human rights organizations called on the Government to repeal the ISA and other legislation that deprive people of the right to defend themselves in court. Some officials also have suggested that amendments are warranted, but senior government officials insist that the ISA in its present form continues to be necessary to preserve peace and harmony in a multiracial society, without explaining convincingly why reliance on the criminal law and the courts would seriously impair peace and harmony. In May the Prime Minister, while not dismissing the possibility that some provisions of the ISA could be amended, said that the ISA could not be repealed as it was still needed under certain circumstances. The Emergency (Public Order and Prevention of Crime) Ordinance was instituted after intercommunal riots in 1969. Although Parliament regained its legislative power in 1971, the Government has never lifted the state of emergency declared at the time of the riots. The Home Affairs Minister can issue a detention order for up to 2 years against a person if he deems it necessary to protect public order or for the "suppression of violence or the prevention of crimes involving violence." The Home Affairs Ministry in December said there were 200 people in detention under the Emergency Ordinance, up from 93 people in 1993. Local human rights organizations accept this figure as accurate. Provisions of the 1985 amendments to the Dangerous Drugs Act give the Government specific power to detain suspected drug traffickers. The suspects may be held up to 39 days before the Home Affairs Minister must issue a detention order. Once the Ministry has issued an order, the detainee is entitled to a habeas corpus hearing before a court. In some instances, the judge may order the detainee's release. Suspects may be held without charge for successive 2-year intervals, with periodic review by an advisory board, whose opinion is binding on the Home Affairs Minister. However, the review process contains none of the due process rights that a defendant would have in a court proceeding. As of December 20, approximately 3,888 drug suspects remained under detention or under restrictions equivalent to house arrest under this statute. The police frequently rearrest suspected narcotics traffickers and firearms offenders under the preventive measures clauses of the Dangerous Drugs Act or the ISA after an acquittal in court on formal charges under separate provisions of those acts. A 1989 peace agreement allows members of the Communist Party of Malaya (CPM) to return to Malaysia. According to the Government, the agreement stipulates that they satisfy certain conditions, including taking a loyalty oath "to king and country" and renouncing the CPM in writing. Since 1989 more than 650 former CPM members have applied to return to Malaysia under the agreement. Sixty-six subsequently withdrew their applications because they objected to the conditions imposed by the Government on their repatriation. In 1994, 50 to 80 former CPM members returned to Malaysia, including a prominent member of the CPM's Central Committee who returned after spending 30 years in exile. The Government has rejected an unknown number of applications by former CPM members to return to Malaysia. Since December 1989, 338 former Communists and 50 dependents have been "rehabilitated" by the Malaysian security authorities and resettled in Malaysia. This rehabilitation consists of detention without trial under the ISA at the Kamunting Detention Center in Perak state. In addition, rehabilitated former CPM members who have reintegrated into Malaysian society are restricted to certain areas where security authorities watch them carefully for up to 6 years. These rehabilitated persons cannot resume full participation in Malaysia's political life until this period of surveillance demonstrates to the satisfaction of the police that they have abandoned their former ideology. In November former student leader Hishamuddin Rais ended 20 years of exile in England and returned to Malaysia. Hishamuddin was questioned by police for several days after his return to Malaysia and was released and issued a new identity card and passport. The former student activist did not discount the possibility of entering national politics.
e. Denial of Fair Public Trial
Most civil and criminal cases are fair and open. The accused must be brought before a judge within 24 hours of arrest, and charges must be levied within 14 days. Defendants have the right to counsel, bail is available, and strict rules of evidence apply in court. Defendants may appeal court decisions to higher courts and, in criminal cases, may also appeal for clemency to the King or local state rulers as appropriate. All criminal trials, including murder trials, are heard by a single judge. Parliament voted on December 21 to amend the Criminal Procedure Code by abolishing jury trials in death penalty cases. Human rights organizations and the Bar Council have complained that they were not consulted by the Government prior to tabling this amendment. The defense in both ordinary criminal cases and the special security cases described below is not entitled to a statement of evidence before the trial. The right to a fair trial is restricted in criminal cases in which the Attorney General invokes the Essential (Security Cases) Regulations of 1975. These regulations governing trial procedure normally apply only in firearms cases. In cases tried under these regulations, the standards for accepting self-incriminating statements by defendants as evidence are less stringent than in normal criminal cases. Also, the authorities may hold the accused for an unspecified period of time before making formal charges. The Attorney General has the authority to invoke these regulations in other criminal cases if the Government determines that the crime involves national security considerations, but such cases are rare. The Malaysian judiciary has traditionally been regarded by the public and the legal community as committed to the rule of law and has ruled against the Government in some politically sensitive cases. However, the Government's 1988 dismissal of the Supreme Court Lord President and two other justices, along with a constitutional amendment and legislation restricting judicial review, has undermined judicial independence and strengthened executive influence over the judiciary in politically sensitive cases. These developments created the possibility that Malaysians who might otherwise seek legal remedies against government actions would be reluctant to do so and have resulted in less willingness by the courts to challenge the Government's legal interpretations in politically sensitive cases.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
These rights are normally respected and protected by law. Provisions in the security legislation (see Section 1.d.), however, allow the police to enter and search without a warrant the homes of persons suspected of threatening national security. Police may also confiscate evidence under these acts. In some cases each year, police have used this legal authority to search homes and offices, seize books and papers, monitor conversations, and take people into custody without a warrant.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
Although the Constitution provides for freedom of speech and press, some important limitations exist, and over the years the Government has restricted freedom of expression of media organizations and individuals. The Constitution provides that freedom of speech may be restricted by legislation "in the interest of security...(or) public order." Thus, the Sedition Act Amendments of 1970 prohibit public comment on issues defined as sensitive, such as citizenship rights for non-Malays and the special position of Malays in society. The Government has not brought charges under the Sedition Act since 1986, when a trial court acquitted a former president of the Bar Council. The Printing Presses and Publications Act of 1984 contains important limitations on press freedom. Domestic and foreign publications must apply annually to the Government for a permit. The Act was amended in 1987 to make the publication of "malicious news" a punishable offense, expand the Government's power to ban or restrict publications, and prohibit court challenges to suspension or revocation of publication permits. In December the authorities detained six local leaders of the opposition Democratic Action Party under the Printing Presses Act for distributing pamphlets without permission. The banned pamphlets dealt with a local land deal and compensation payments to residents and businesses. Government policies create an atmosphere which inhibits independent journalism and result in self-censorship of issues government authorities might consider sensitive. Government displeasure with press reporting is often conveyed directly to the newspaper's board of directors. There have also been credible repors of efforts by the Government to stop reporters from pursuing stories on sensitive subjects. In practice, press freedom is also limited by the fact that leading political figures, or companies controlled by leading political figures in the ruling coalition, own all the major newspapers and all radio and television stations. These mass media provide generally laudatory, noncritical coverage of government officials and government policies, and give only limited and selective coverage to political views of the opposition or political rivals. Editorial opinion in these mass media frequently reflects government positions on domestic and international issues. Chinese-language newspapers are generally more free in reporting and commenting on sensitive political and social issues. Despite strong political influence on the editorial decisions of major publications, small-circulation publications of opposition parties, social action groups, unions, and other private groups actively cover opposition parties and frequently print views critical of government policies. The Government does retain significant influence over these publications by requiring annual renewal of publishing permits. In June the Home Affairs Ministry revoked the publishing license of a popular Tamil-language tabloid, Thoothan (The Messenger), after the paper published an article alleging corruption on the part of the Malaysian-Indian Minister of Energy, Telecommunications, and Posts. In May the Government threatened to review the publication permit of the opposition party PAS newsletter, Harakah, after it ran articles the Government claimed could disrupt national unity and harmony. Also in May, the Home Affairs Ministry directed newspapers not to publish information about a confrontation in Penang between police ad local Hindu worshipers who were celebrating a religious festival. Earlier, in March, the Home Affairs Ministry decided not to renew the work permit of a Filipino correspondent for the Manila-based Inter Press Service because of what it described as negative reports on Malaysia's treatment of foreign guest workers that purportedly posed a threat to national security and racial harmony. In August the Government seized books, publications, and other materials belonging to the banned Al Arqam religious sect and made it illegal to possess, sell, distribute, or display books, logos, and other printed materials prepared by the organization. In June 1990, Parliament enacted legislation making the government-controlled Malaysian news agency (Bernama) the sole distributor of foreign news in Malaysia, formalizing previous practice. The parliamentary opposition opposed the bill, arguing that it would increase government control over foreign news. Although the Government has not to date used this law to restrict foreign news coverage or availability, in the past the Government has banned under separate legislation individual editions of foreign publications. In 1994 the Government censored portions of photographs and text in issues of foreign newsmagazines and stopped airing the British Broadcasting Corporation (BBC) news programs, allegedly because the BBC's conditions for use would undermine Malaysia's dignity, according to a government spokesman.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for the rights of freedom of peaceful assembly and association, but there are significant restrictions. These rights may be limited in the interest of security and public order, and the 1967 Police Act requires police permits for all public assemblies with the exception of workers on picket lines. Spontaneous demonstrations occur periodically without permission, but they are limited in scope and generally occur with the tacit consent of the police. In the east Malaysian state of Sarawak, groups of indigenous people have held peaceful demonstrations to protest government policies and actions. In the aftermath of the intercommunal riots in 1969, the Government banned political rallies. The Government has announced that political rallies will continue to be banned during national elections likely to be held in early 1995. While the formal ban has not been rescinded, both government and opposition parties have held large indoor political gatherings dubbed "discussion sessions." Government and opposition candidates campaign actively. There are, however, some restrictions on freedom of assembly during campaigns. During the actual campaign period, political parties submit lists of times and places for their "discussion groups." Although theoretically no police permit is required, some opposition discussion group meetings in past campaigns have been canceled for lack of a police permit. Outside of the campaign period, a permit is required, with most applications routinely approved. Other statutes limit the right of association, such as the Societies Act of 1966, under which any association of seven or more members must register with the Government as a society. The Government may refuse to register a new society or may impose conditions when allowing a society to register. The Government also has the power to revoke the registration of an existing society for violations of the Act, a power it has selectively enforced against political opposition groups. On August 27, the Government declared the Al Arqam religious movement to be an illegal organization under the Societies Act and seized computers and other materials belonging to the organization. More than 300 members of the sect had been arrested as of September 22 for being associated with the organization (see also Section 1.d.). In 1993 the Registrar of Societies deregistered a political party of long standing in the east Malaysian state of Sabah when it formed a coalition with the ruling opposition party, and threatened to do te same to the national opposition party Semangat '46 if it continued to claim that it was the legitimate successor to the original UMNO party. The threat of possible deregistration inhibits political activism by public or special interest organizations. Another law affecting freedom of association is the Universities and University Colleges Act; it mandates government approval for student associations and prohibits student associations, as well as faculty members, from engaging in political activity. Campus demonstrations must be approved by a university vice chancellor.
c. Freedom of Religion
Islam is the official religion. Religious minorities, which include large Hindu, Buddhist, Sikh, and Christian communities, generally are permitted to worship freely but are subject to some restrictions. Islamic religious laws administered by state authorities through Islamic courts bind ethnic Malays in some civil matters, such as family relations and diet. Government funds support an Islamic religious establishment, and it is official policy to "infuse Islamic values" into the administration of Malaysia. At the same time, the Constitution provides for freedom of religion, and the Government has refused to accede to pressures to impose Islamic religious law beyond the Muslim community. The Government opposes what it considers extremist or deviant interpretations of Islam and in August banned the Al Arqam religious movement for what it termed "deviationist teachings." In the past, the Government has imposed restrictions on certain Islamic sects. It continues to monitor the activities of the Shi'ite minority. There are persistent allegations that some state governments are slow in approving building permits for non-Muslim places of worship and some non-Muslims allege difficulty in obtaining land for cemeteries. In one instance, a municipal council had approved the construction of a Catholic Church headquarters only to rescind its approval in August 1993, after a public outcry by the predominantly Muslim local community. A compromise was proposed which would have permitted the church to build a two-story structure but was rejected by church officials. The Government has limited the circulation of a popular Malay-language translation of the Bible, and some states restrict the use of religious terms by Christians in the Malay language. The Government permits but discourages conversion to religions other than Islam. Some states have long proscribed by law proselytizing of Muslims and other parts of the country strongly discourage it as well. In a March 1990 decision, the Supreme Court upheld the primacy of the Constitution over inconsistent state laws by ruling that parents have the right to determine the religion of their minor children under the age of 18. The decision eased fears of the non-Muslim community over state laws that in religious conversion cases set the age of majority at puberty based on Islamic law.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
Malaysians generally have the right to travel within the country and live and work where they please, but the Government restricts these rights in some circumstances. The states of Sabah and Sarawak have the independent right to control immigration into their territories; Malaysians from peninsular west Malaysia and foreigners are required to present passports or national identity cards for entry. The Government regulates the internal movement of provisionally released ISA detainees. It also limits the movement of some released ISA detainees to a designated city or state (see Section 1.e.). The Government generally does not restrict emigration. Malaysians are free to travel abroad, although in some cases the Government has refused to issue or has withheld passports on security grounds or in the belief that the trip will be detrimental to the country's image. Most government action is taken because of suspected drug trafficking offenses or other serious crimes. In an unprecedented move in August, the Government revoked the passport of Al Arqam leader Ashaari Muhammed and nine of his followers while Ashaari and his followers were still residing in Thailand. In July 1993, immigration authorities withdrew the passport of a poet allegedly to prevent him from reading his poems, which supported antilogging activities. Immigration authorities returned his passport in late August 1993. Also in August 1993, the Immigration Department in the east Malaysian state of Sarawak, on instructions from the Home Affairs Ministry, confiscated the passport of a Sarawak native who was on his way to an international conference of indigenous peoples. Two other Sarawak natives who planned to attend conferences had their passports confiscated in 1992; government authorities still have not returned their passports. Malaysians are not permitted to travel to Israel, and in June, following a public outcry, the Government revoked the passport of Tunku Abdullah, brother of the King of Malaysia, after Abdullah made what was described as a "private business trip" to Israel. Recently, however, the Government has loosened travel restrictions for Malaysian pilgrims to visit Jerusalem. According to a report by the Home Affairs Ministry, a total of 455,070 foreign workers were issued work permits as of June 1994. However, there may be up to 1 million foreign workers in Malaysia, many illegal, who work in low-skill jobs in the plantation and construction sectors of the economy. Although some illegal workers ultimately are able to regularize their immigration status, others depart voluntarily after a few months, while some are formally deported as illegal migrants. In 1992 the Government conducted a registration program designed to regularize the immigration status of illegal workers. After the registration program ended, however, the Government launched combined police and military operations to enforce immigration and passport laws. In 1994, more than 130,000 foreign workers were detained, of whom about 50,000 were deported. On March 27, Kuala Lumpur police conducted an immigration roundup of some 1,000 Filipino maids at a prominent Catholic cathedral just after mass. The roundup, whih included some persons producing valid residence and work permits, led to strong protests from the Philippine Embassy. In most cases the police released those detained within 24 hours. In 1991 and 1992, separate groups of asylum seekers (totaling approximately 300) from the Indonesian province of Aceh arrived in northwestern Malaysia, allegedly fleeing violence stemming from a separatist rebellion in Indonesia. These asylum seekers requested refugee status, and their plight has received attention by international and local human rights organizations. Although the Government has refused to recognize them as political refugees, in early 1994 it offered to regularize the status of Acehnese in Malaysia and release those being held in detention. The Government offer to those in immigration facilities and to the group residing at the U.N. High Commissioner for Refugees (UNHCR) compound included promises of jobs on plantations and the same residency permits enjoyed by other guest workers. The Acehnese rejected the Malaysian offer, contending they were political refugees, not economic migrants. As of December 20, 131 Acehnese were being held in immigration detention facilities, and 53 were resding at the UNHCR compound in Kuala Lumpur. The latter were part of a group of Acehnese who took refuge in the UNHCR compound in 1992 demanding refugee status. Members of this group come and go freely, although one has been detained. In 1994 there was no evidence of forced repatriation of Acehnese although the Government has offered to assist those who wish to return voluntarily. According to government sources, approximately 163 Acehnese asylum seekers had returned home voluntarily as of June 1993. Having provided first asylum to more than 254,000 Vietnamese boat refugees since 1975, the Government began to deny first asylum to virtually all arriving Vietnamese in May 1989, in contravention of its commitments under the Comprehensive Plan of Action (CPA) on Indochinese refugees adopted in 1989. From May 1989 to November 1993, Malaysia denied first asylum to 10,495 Vietnamese boat people, of whom all but 145 arrived in 1989-90. In late 1993 the Government reversed this policy and permitted a boat carrying three Vietnamese asylum seekers to land and be screened by the UNHCR for refugee status under provisions of the CPA. In addition, four Vietnamese who had arrived by land and were being held in immigration detention facilities were transferred to the Sungei Besi refugee camp and screened for refugee status. In 1994 the Government returned to full compliance with first asylum provisions of the CPA. In accordance with the CPA, Malaysia finished screening Vietnamese boat people in its first-asylum camps Final appeals were reviewed in September. Malaysian military officers do the screening, with legal consultants from the UNHCR present during each interview. As of December 20, about 5,464 Vietnamese remained in camps in Malaysia. The Government has reiterated that it will not forcibly return screened-out asylum seekers but will continue to urge voluntary repatriation. UNHCR officials have praised the Government's treatment of Vietnamese asylum seekers in Malaysia under provisions of the CPA.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
By law citizens have the right to change their government through periodic elections, which are procedurally free and fair, with votes recorded accurately. In practice, however, it is very difficult for opposition parties to compete on equal terms with the governing coalition (which has held power at the national level since 1957) because of some electoral irregularities and legal restrictions on campaigning, as well as restrictions on freedom of association and of the press. Malaysia has a Westminster-style parliamentary system of government. National elections, required at least every 5 years, have been held regularly since independence in 1957. Through the UMNO, Malays dominate the ruling national front coalition of ethnic-based parties that has controlled Parliament since independence. Within the UMNO there is active political debate. Non-Malays fill 8 of the 25 cabinet posts. The Government coalition currently controls 12 of 13 states. Ethnic Chinese leaders of a member party of the government coalition hold executive power in the state of Penang. An Islamic opposition party controls the northern state of Kelantan. Women face no legal limits on participation in government and politics, but there are practical impediments. Women are represented in senior leadership positions in the Government in small numbers, including two cabinet-level ministers. Women comprise approximately 6 percent (holding 11 seats out of 180) of the elected lower house of Parliament and approximately 19 percent (13 seats out of 68) of the appointed upper house. They also hold high-level judgeships.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
After a 2-year struggle for registration, the National Human Rights Association, a local human rights society of prominent Malaysians, began operating in 1991. This association publicly criticizes the Government, although it does not investigate the government except in response to individual complaints. It seeks repeal of the ISA and is reviewing Kelantan's efforts to impose Islamic restrictions in that state. A number of other organizations, including the Bar Council and public interest groups, devote attention to human rights activities. The Government tolerates their activities but rarely responds to their inquiries or occasional press statements. Malaysian officials criticize local groups for collaborating with international human rights organizations, representatives of which have visited and traveled in Malaysia but rarely have been given access to government officials. In 1992 a group seeking to form a local chapter of a prominent international human rights organization appealed a government rejction of their application under the Societies Act. In 1993 the Government rejected the appeal. The Government has not acceded to any of the major international treaties on human rights, generally maintaining that such issues are internal matters. It rejects criticism of its human rights record by international human rights organizations and foreign governments. However, during 1993 and 1994, the Prime Minister and other cabinet officials were vocal advocates of human rights with respect to Serbian atrocities in Bosnia and Herzegovina. Foreign government officials have discussed human rights with their Malaysian counterparts, and private groups occasionally have done so.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The cultural and religious traditions of Malaysia's major ethnic groups heavily influence the condition of women in Malaysian society. In family and religious matters, Muslim women are subject to Islamic law. Polygyny is allowed and practiced to a limited degree, and inheritance law favors male offspring and relatives. The Islamic Family Law was revised in 1989 to provide better protection for the property rights of married Muslim women and to make more equitable a Muslim woman's right to divorce. Non-Muslim women are subject to civil law. Changes in the Civil Marriage and Divorce Act in the early 1980's increased protection of married women's rights, especially those married under customary rites. Nongovernmental organizations (NGO's) concerned about women's issues push for legislative and social reforms to improve the status of women. These groups raise issues such as violence against women, trafficking in women and young girls, employment opportunities with equal pay, and greater participation by women in decisionmaking positions. Statistics on domestic violence are sketchy, but government leaders have identified domestic violence as a continuing social ill. The Government is taking steps to address the problem. In May Parliament passed the first domestic violence bill after 8 years of lobbying by women's groups. It offers a broad definition of domestic violence, gives powers to the courts to protect victims, and provides for compensation and counseling for victims. However, it fails to make an act of domestic violence a criminal offense, and women's groups have criticized it on those grounds. Those covered under the bill include a spouse, former spouse, a child, an incapacitated adult, or any other member of the family. Cases of wife beating or child abuse normally are tried under provisions of the Penal Code governing assault and battery, which carry penalties of 3 months to 1 year in prison and fines up to $300. Women's issues continued to receive prominent coverage in public seminars and the media in 1994. Government policy supports women's full and equal participation in education and the work force. Women are represented in growing numbers in the professions, although their participation as of 1990 in the administrative and managerial occupations was less than 1 percent, and they generally receive lower wages. In the scientific and medical fields, women now make up more than half of all university graduates and the total intake of women into universities increased from 29 percent in 1970 to 44 percent of the student population in 1990. The participation of women in the labor force increased from 37 percent in 1970 to 47 percent in 1990, including a tripling of the number of women involved in manufacturing. In the opposition-controlled state of Kelantan, the state government has imposed restrictions on all female workers, including non-Muslims. Female workers cannot work at night and are restricted in the dress they may wear in the workplace. The state government justifies these restrictions as reflecting Islamic values. Given Malaysia's federal structure of government, there are no legal means, short of amending the Constitution, by which the central Government can overturn such state laws.
The Government is committed to children's rights and welfare; it spends roughly 20 percent of its current budget on education. According to statistics publicized by the National Unity and Social Development Ministry, 1,064 cases of child abuse were reported in 1993. The Government has taken some steps to deal with the problem. Parliament passed the Children's Protection Act in 1991, effective in 1993. In 1994 public attention and debate on child abuse increased significantly as Malaysia hosted the worldwide conference of the International Society for the Prevention of Child Abuse and Neglect. In 1994 Malaysian news media featured regular reports, commentary, and graphic public service announcements on these social problems. Statistics on the extent of child prostitution are not available, but women's organizations have highlighted the problem of trafficking in underage girls. The Health Ministry announced that it would work closely with the police to stamp out child prostitution, and some brothel owners have been prosecuted.
Indigenous groups and persons are accorded the same constitutional rights as the rest of the population, along with the same limitations. In practice, federal laws pertaining to indigenous people vest almost total power in the Minister of National Unity and Social Development to protect, control, and otherwise decide issues concerning them. As a result, indigenous people have very little ability to participate in decisions. State governments make decisions affecting land rights in peninsular Malaysia. The law does not permit indigenous persons (known as Orang Asli) in west Malaysia, who have been granted land on a group basis, to own land on an individual basis. In some cases, groups of Orang Asli have applied for titles, but state authorities have not provided them. Land disputes between Orang Asli and others resulted in three people being killed in April 1993. In February 1994, Orang Asli from Perak complained to their member of Parliament about encroachment on their land. In east Malaysia, although state law recognizes indigenous people's right to land under "native customary rights," the definition and extent of these lands are in dispute. Indigenous people in the state of Sarawak continue to protest the alleged encroachment by the State or private logging companies onto land that they consider theirs by virtue of customary rights. In Sarawak in 1992 the Government arrested 95 indigenous people who protested these alleged encroachments. The protests and arrests continued in 1993, and, in January 1994, four persons were arrested in Sarawak for attempting to stop a logging company from operating within what they claimed was their native customary rights land area. According to government figures, the indigenous people in peninsular Malaysia, who number fewer than 100,000, are the poorest group in Malaysia. However, according to Malaysian government officials, Orang Asli are gradually catching up to other Malaysians in their standard of living, and the percentage of Orang Asli who were still leading a nomadic lifestyle has dropped to 49 percent.
Ethnic minorities are represented in cabinet-level positions in government, as well as in senior civil service positions. Nevertheless, the political dominance of the Malay majority means in practice that ethnic Malays hold the most powerful senior leadership positions in government. The Government implements extensive "affirmative action" programs designed to boost the economic position of the ethnic Malay majority, which remains poorer, on average, than the Chinese minority despite the former's political dominance. Such government affirmative action programs and policies do, however, limit opportunities for non-Malays in higher education, government employment, business permits and licenses, and ownership of newly developed agricultural lands. Indian Malaysians continue to lag behind in Malaysia's economic development, although the national economic policies target less advantaged populations regardless of ethnicity. These programs, which have operated since the 1969 riots, are widely credited with helping assure the generally strife-free ethnic balance.
People with Disabilities
While the Government does not discriminate against physically disabled persons in employment, education, and provision of other state services, budgetary allotments for people with disabilities are very small. Public transportation, public buildings, and other facilities are not adapted to the needs of the disabled, and the Government has not mandated accessibility for the disabled, through legislation or otherwise. Special education schools exist, but they are not sufficient to meet needs. Disabled persons work in all sectors of the economy, but the prevalent feeling in society remains that disabled people cannot work. In May the Government did take a major step to acknowledge the rights of those with disabilities when the Deputy Prime Minister signed the Economic and Social Commission for Asia and the Pacific (ESCAP) Proclamation on Full Participation and Equality of People with Disabilities in the Asia and Pacific region. By signing this agreement, the Government committed itself to implementing new policy initiatives and actions aimed at systematically improving the living conditions of people with disabilities. The Government has sought to register those with disabilities under four categories--blind, deaf, physical, mental--and by May had identified 60,632 persons with disabilities. It is estimated that there are 180,000 persons with disabilities in Malaysia.
Section 6 Worker Rights
a. The Right of Association
By law most workers have the right to engage in trade union activity, and 12 percent of the work force are members of trade unions. Exceptions include certain limited categories of workers labeled "confidential" and "superskilled," as well as defense and police officials. Within certain limitations, unions may organize workplaces, bargain collectively with employers, and associate with national federations. The Industrial Relations Act prohibits interfering with, restraining, or coercing a worker in the exercise of the right to form trade unions or in participating in lawful trade union activities. The Trade Unions Act, however, restricts a union to representing workers in a "particular establishment, trade, occupation, or industry or within any similar trades, occupations, or industries," contrary to International Labor Organization (ILO) guidelines. The Director General of Trade Unions (DGTU) may refuse to register a trade union and, in some circumstances, may also withdraw the registration of a trade union. When registration has been refused, withdrawn, or canceled, a trade union is considered an unlawful association. The Government justifies its overall labor policies by positing that a "social compact" exists wherein the Government, employer, and worker are part of an overall effort to create jobs, train workers, boost productivity and profitability, and ultimately provide the resources necessary to fud human resource development and a national social safety net. Trade unions from different industries may join together in national congresses, but must register as societies under the Societies Act. Government policy discourages the formation of national unions in the electronics sector; it believes enterprise-level unions are more appropriate for this sector. At year's end, there were six such enterprise-level unions registered in the electronics industry (it takes only seven workers to form a union) of which four were recognized through elections in which they represented 50 percent plus 1 of the workers, and two had collective bargaining agreements negotiated with their employers. In one case in 1990, a company dismissed all members of one of these unions. The union charged the company with union-busting and wrongful dismissal in industrial court. The case was filed in September 1990; the union appealed an industrial court decision of May 1994 (in favor of the company) to the High Court. The court has set a hearing date for February 21, 1995. Restrictions on feedom of association in the electronics industry have been the subject of complaints to the ILO. Unions maintain independence both from the Government and from the political parties, but individual union members may belong to political parties. Although union officers are forbidden to hold principal offices in political parties, individual trade union leaders have served in Parliament as opposition politicians. Malaysian trade unions are free to associate with national labor societies that exercise many of the responsibilities of national labor unions, though they cannot bargain for local unions. Enterprise unions also can associate with international labor bodies and actively do so. Although strikes are legal, the right to strike is severely restricted. Malaysian law contains a list of "essential services" in which unions must give advance notice of any industrial action. The list includes sectors not normally deemed "essential" under ILO definitions. There were 18 strikes in 1993 resulting in a loss of 7,162-man days. Most of the strikes (13) were in the plantation sector; only 3 strikes took place in the manufacturing sector. The Industrial Relations Act of 1967 requires the parties to notify the Ministry of Human Resources that a dispute exists before any industrial action (strike or lockout) may be taken. The Ministry's Industrial Relations Department may then become actively involved in conciliation efforts. If conciliation fails to achieve a settlement, the Minister has the power to refer the dispute to the Industrial Court. Strikes or lockouts are prohibited while the dispute is before the Industrial Court. According to 1994 data, the Industrial Court found for labor in 62 percent of its cases and for management in 14 percent. The remaining 24 percent were settled out of court. The Industrial Relations Act prohibits employers from taking retribution against a worker for participating in the lawful activities of a trade union. Where a strike is legal, these provisions would prohibit employer retribution against strikers and leaders. In the absence of any reports of employer retribution, it is not possible to assess wheher these provisions are effectively enforced. There are three national labor organizations currently registered: one for public servants, one for teachers, and one for employees of state-based textile and garment companies. Public servants have the right to organize at the level of ministries and departments. There are three national joint councils representing management and professional civil servants, technical employees, and nontechnical workers.
b. The Right to Organize and Bargain Collectively
Malaysian workers have the legal right to organize and bargain collectively, and collective bargaining is widespread in those sectors where labor is organized. Malaysian law prohibits antiunion discrimination by employers against union members and organizers, though some union leaders say the legal system is not capable of dealing promptly and fairly with their complaints. Charges of discrimination may be filed with the Ministry of Human Resources or the Industrial Court. When conciliation efforts by the Ministry of Human Resources fail, critics say the Industrial Court is slow in adjudicating worker complaints. Companies in free trade zones (FTZ's) must observe labor standards identical to those elsewhere in Malaysia. Many workers at FTZ companies are organized, especially in the textile and electrical products sectors. During 1993 the Government proposed amendments to the Industrial Relations Act to remove previous restrictions on concluding collective agreements about terms and conditions of service in "pioneer industries." Legislative concurrence, which had been expected by year's end, did not take place because of other pressing legislative initiatives. The Government took these measures in part to respond to ILO criticism of its previous policy with respect to pioneer industries. The ILO continues to object to other legal restrictions on collective bargaining. Some labor leaders criticized amendments to Malaysia's Labor Law in 1980, designed to curb strikes, as an erosion of basic worker rights. The labor critics contend that these changes do not confirm to ILO standards.
c. Prohibition of Forced or Compulsory Labor
There is no evidence that forced or compulsory labor occurs. In theory, certain Malaysian laws allow the use of imprisonment, with compulsory labor as a punishment for persons expressing views opposed to the established order or who participate in strikes. The Government maintains that the constitutional prohibition on forced or compulsory labor renders these laws without effect.
d. Minimum Age for Employment of Children
The Children and Young Persons (Employment) Act of 1966 prohibits the employment of children younger than the age of 14. The act permits some exceptions, such as light work in a family enterprise, work in public entertainment, work performed for the Government in a school or training institution, or work as an approved apprentice. In no case may children work more than 6 hours per day, more than 6 days per week, or at night. Ministry of Human Resources inspectors enforce these legal provisions. In December a Japanese electronics firm was fined $5,400 for violating the Children and Young Persons Act. This was the first time a large firm has been fined under the Act. According to credible reports, child labor is still prevalent in certain sectors of the country, but not those which export to the United States. A joint report by the International Confederation of Free Trade Unions and the Asian and Pacific Regional Organization put Malaysia's child work force at 75,000. In the last nationwide survey of child labor undertaken in 1980, it was estimated that more than 73,400 children between the ages of 10 to 14 were employed full-time. NGO surveys indicate that most child laborers are employed on agricultural estates but there are indications that some are being employed in small factories. Government officials deny the existence of child labor and maintain that child laborers have been replaced by foreign guest workers.
e. Acceptable Conditions of Work
Malaysia does not have a national minimum wage, but the Wage Councils Act provides for a minimum wage in those sectors or regions of the country where a need exists. Under the law, workers in an industry who believe they need the protection of a minimum wage may request that a "wage council" be established. About 140,000 workers, or 2 percent of the over 7-million-member labor force, are covered by minimum wages set by wage councils. Representatives from labor, management, and the Government sit on the wage councils. The minimum wages set by wage councils generally do not provide for an adequate standard of living for a worker and family. However, prevailing wages in Malaysia, even in the sectors covered by wage councils, are higher than the minimum wages set by the wage councils and do provide an adequate living. Under the Employment Act of 1955, working hours may not exceed 8 hours per day or 44 hours per workweek of 5 1/2 days. Each workweek must include one 24-hour rest period. The Act also sets overtime rates and mandates public holidays, annual leave, sick leave, and maternity allowances. The Labor Department of the Ministry of Human Resources enforces these standards, but a shortage of inspectors precludes strict enforcement. In October 1993, Parliament adopted a new Occupational Safety and Health Act (OSHA) which covers all sectors of the economy, except the maritime sector and the military. The Act established a National Occupational Safety and Health Council, composed of workers, employers, and government representatives, to set policy and coordinate occupational safety and health measures. It requires employers to identify risks and take precautions, including providing safety training to workers, and compels companies having more than 40 workers to establish joint management-employee safety committees The Act requires workers to use safety equipment and to cooperate with employers to create a safe, healthy workplace. There are currently no specific statutory or regulatory provisions which create a positive right for a worker to remove himself or herself from dangerous workplace conditions without arbitrary dismissal. Employers or employees violating the OSHA are subject to substantial fines or imprisonment for up to 5 years. Significant numbers of contract workers, including numerous illegal immigrants from Indonesia, work on plantations. Working conditions for these laborers compare poorly with those of direct hire plantation workers, many of whom belong to the National Union of Plantation Workers. Moreover, immigrant workers in the construction and other sectors, particularly if illegal entrants, may not have access to Malaysia's system of labor adjudication. Government investigations into this problem have resulted in a number of steps to eliminate the abuse of contract labor. For example, in addition to expanding programs to regularize the status of immigrant workers, the Government investigates complaints of abuses, endeavors to inform workers of their rights, encourages workers to come forward with their complaints, and warns employers to end abuses. Like other employers, labor contractors may be prosecuted for violating Malaysia's labor laws. The Government has taken action against labor contractors who violate the lw, and has assessed fines. The minimum fine currently assessed by law is $8,000. In principle, serious violators can be jailed, but, in practice, such punishments are rare.