United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1995 - Malaysia, 30 January 1996, available at: http://www.refworld.org/docid/3ae6aa844.html [accessed 21 October 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 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. The ruling coalition increased its majority in a general election held this year. Opposition parties actively contest elections, although they now hold only 18 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 bin Mohamad 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 and to impose long-term restrictions on movement without due process hearings. The Government also limits judicial independence and effectively restricts freedom of assembly and association and of speech and the press. These restrictions make it very difficult for opposition parties to compete on equal terms with the long-ruling governing coalition. Religious minorities are subject to some restrictions. Public awareness of serious problems such as domestic violence against women and child abuse is increasing and the Government is taking concrete steps to address them.
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 killings. At least one person died while being investigated in police custody during 1995. The deceased, who was a suspect in a burglary case, died from injuries while in police detention. Although an official autopsy report was not released, the suspect's death certificate listed the cause of death as "hemorrhage caused by blunt trauma in most parts of his body," raising suspicions of police brutality. The police Inspector General ordered a full investigation of the case and promised to punish those responsible for the death. He said he would take appropriate measures even if the culprits were police officers. However, any action that may have been taken was not made known to the public. The Attorney General rejected the findings of the police investigation and ordered a judicial inquiry. While human rights groups applauded the Attorney General's decision as a positive step in combating a possible police coverup, the deceased's attorney questioned the effectiveness of a magistrate's inquiry which must to a large extent depend on the findings of the police investigation. The judicial inquiry found 11 police officers "criminally involved" in the death of the detainee. The Attorney General is currently reviewing the findings of the inquiry to determine whether there is sufficient evidence to bring criminal charges against the officers. Approximately 50 illegal aliens died from malnutrition and illness in government detention centers during the year. The Government denies that they were tortured, denied medical treatment, or held in inhumane conditions (see Sections 1.c., 1.d. and 1.e.). The Government is investigating these deaths.
There were no reports of politically motivated disappearances.
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 1995 (or in recent years) of police officials being tried, convicted, and sentenced for abuse of prisoners. The Government is investigating the 1995 death in custody of a person who died due to "blunt trauma in most parts of his body," which caused suspicions of police abuse (see Section 1.a.). A number of law enforcement officials were arrested on narcotics related charges. The Prisons Department revealed in the fall that at least 29 prisons officers were arrested for drug related activities during 1995. Most recently, two officers were arrested in September for supplying narcotics to inmates. The suspects are detained under the special preventive measures section of the Dangerous Drugs Act and will be "banished" for 2 years (see Section 1.d). Malaysian criminal law prescribes caning as an additional punishment to imprisonment for those convicted of crimes such as narcotics possession as well as some nonviolent crimes such as criminal breach of trust. Judges routinely include caning in sentencing those convicted of such crimes as kidnapping, rape, and robbery. The caning, which is normally carried out with a 1/2-inch thick wooden cane, commonly causes welts and sometimes scarring. Prison conditions generally meet international standards. Basic human needs, including medical care, sanitation, nutrition, and family access, are met. Overcrowding is a problem in some of the large prisons, especially the Pudu prison in Kuala Lumpur. One large prison is under construction in Kuala Lumpur, and additional prisons are contemplated for other parts of the country. Prison guards have been accused and convicted of criminal wrongdoing, mostly in nonviolent narcotics related cases. However, there were no allegations of physical mistreatment of prisoners by prison guards. "Security" prisoners (detainees under the ISA) are detained in a separate detention center. Conditions there are not significantly different from those of the regular prison population. The Government does not permit visits by human rights monitors. Approximately 50 illegal aliens died from malnutrition and illness in government detention centers during the year. The Government denies that they are kept in inhumane conditions (see Sections 1.a., 1.d., and 1.e.).
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, there are currently 2,291 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. According to the Home Affairs Ministry, most of the detainees currently in custody under the ISA are forgers. In 1995, 35 suspects, including three members of the UMNO and two civil servants, were arrested under the ISA for allegedly issuing Malaysian identity cards to illegal immigrants. Ten of the 35 suspects have been placed in detention under the ISA. Others are still under investigation. 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. According to the Home Affairs Ministry, there were 34 ISA detainees at year's end, up from 27 as of December 1994. Those released are 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. Amendments to the ISA severely limit judicial review of detentions, contravening international standards of due process. Opposition leaders and human rights organizations continued to call on the Government to repeal the ISA and other legislation that deprive people of the right to defend themselves in court. Some officials suggested last year that the Government was studying possibilities of making the ISA "less ominous." The Deputy Home Minister announced in August 1995 that the Government would examine the possibility of reducing the minimum detention period to between 6 months and a year. However, the ISA remains intact to date. Senior government officials continue to 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. 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." According to the Home Affairs Ministry in September, there were 447 people in detention under the Emergency Ordinance, up from 200 people in 1994. 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, 1,810 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. Immigration laws are used to detain possible illegal aliens without trial or hearing. A large number of migrant workers who were unable to prove their legal status have been placed in temporary detention under immigration laws. The detainees are not accorded any administrative or legal hearings and are released only after their employers prove their legal status. Those who cannot prove their legal status are subject to deportation. Approximately 50 detainees have died from malnutrition and illnesses in the detention centers this year. Illegal aliens are kept in detention centers which are different from prisons. Human rights organizations and opposition leaders accused the authorities of mistreatment and corruption and called for a thorough investigation. The Government initially denied any wrongdoing and defended the need to control the flow of illegal migrant workers. In response to wide public criticism, however, the authorities agreed to conduct a thorough investigation into the allegations as well as a defamation suit filed by a local police chief against the nongovernmental organization (NGO) that first exposed the problem. In the course of its investigation, the Royal Malaysian Police "interrogated" and "harassed" the head of the NGO, but there has been no movement in the defamation suit. The Government also established an independent board to advise the Home Affairs Ministry on issues related to migrant workers. NGO's report that conditions in detention centers have marginally improved since the allegations surfaced. Law enforcement authorities also continued to utilize the Restricted Residence Act to restrict movements of criminal suspects for an extended period. The Act allows the Home Affairs Ministry to place criminal suspects under restricted residence in a remote district away from home for a period of 2 years. The Ministry is authorized to issue the "banishment" orders without any judicial or administrative hearings. In March several professional soccer players and coaches allegedly involved in match fixing and bribery were "banished" under the Act. The restricted residence practice violates due process and is viewed in the same light as detention without trial. Human rights activists have questioned the need for a law that was passed 60 years ago to deal with gambling under very different circumstances and have called for its repeal. In imposing the Act on the sports figures, however, the Government justified the Act as an important and still necessary tool in dealing with vice and gambling activities. 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. The Government has rejected an unknown number of applications by former CPM members to return to Malaysia. The Inspector General of the Police announced in October that over 400 former communists have been "rehabilitated" by the Malaysian security authorities and resettled in Malaysia since December 1989. 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. Denial of Fair Public Trial Malaysia's legal system is based on English common law. High Courts have original jurisdiction over all criminal cases involving serious crimes and most civil cases. Civil suits involving car accidents and landlord-tenant disputes are heard by Sessions courts. Magistrate's courts hear criminal cases in which the maximum term of sentence does not exceed 12 months. The Court of Appeal has appellate jurisdiction over High court and Session court decisions. The Federal Court hears appeals of Court of Appeal decisions. Islamic religious laws administered by state authorities through Islamic courts bind ethnic Malays in some civil matters, such as family relations and diet. The Malaysian judiciary has traditionally been regarded by the public and the legal community as committed to the rule of law, and it 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. With the appointment of a new Chief Justice last year, the relations between the judiciary and the bar appeared headed for a more cordial and effective partnership. However, following a series of questionable election-related decisions and the controversial handling of a celebrated commercial case this year, impartiality and independence of the judiciary were again in the spotlight. The Bar Council issued strong condemnations of the judiciary and of the Chief Justice. The press gave wide and fair coverage to the debate. As the public debate escalated, the Prime Minister advised the Bar Council and the judiciary to work out the problems quietly and avoid press battles. The Bar Council has vowed to stand firm in its push for an independent and impartial judiciary. 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 10 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 in 1994 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. There were no cases involving this restriction in 1995. There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law provides for these rights and the government generally respects them. 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 the 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. Shortly before the general election, opposition member of the Parliament Lim Guan Eng was charged with sedition and violation of the Publications Act for making statements and distributing pamphlets regarding a rape case in which the former Chief Minister of Malacca was a suspect. The case against Lim is still pending, and the hearing is scheduled for next year. Lim, who retained his seat in the general election, has argued that the case against him is politically motivated. 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. 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 reports 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. Although there were no cases of denial of renewal requests this year, the Government has in the past used this requirement to place limitations on opposition and other publications critical of the Government. The government ruling coalition's firm control of the press was clearly evident during the general election. As opposition candidates struggled to receive any coverage, the ruling coalition was lauded in front page stories for the duration of the campaign period. The Official Secrets Act is also sometimes used to restrict freedom of the press. In April the police arrested two reporters for violation of the Act for writing articles related to an ongoing investigation of a criminal case. While the Government emphasized the importance of journalists acting "within the law," the National Union of Journalists criticized the arrest as a threat to freedom of the press. Pointing out the dangers of abuse of the Act to restrict press freedom, the Bar Council called for a review of certain provisions of the Act which grant too much discretion to the authorities in classifying documents and deny the judiciary power to review the classifications. The reporters were released after a short period of detention. In a positive development, authorities showed tolerance for television and radio talk shows which air views critical of the Government. One particular live television show in which panelists had expressed frank views on various sensitive topics was allowed to remain on the air after a contentious public debate. Government leaders agreed with the press that exchanges of ideas should be encouraged and available to the public. 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. The Government generally respects academic freedom in the areas of teaching and publication. Malaysian academics are often publicly critical of the Government. However, there is a degree of self-censorship among public university academics whose career advancement and funding are prerogatives of the Government. Private institution academics also practice a limited degree of self-censorship for fear that the Government may revoke licenses for their institutions.
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 continued the policy during the general election of 1995. However, both government and opposition parties held large indoor political gatherings dubbed "discussion sessions" during the campaign period. The ruling coalition also held several large scale events which very much resembled political rallies but were called something else and allowed. 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. These restrictions and the ban on political rallies handicap the opposition's ability to campaign effectively. 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. In 1994, 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 were arrested for being associated with the organization. 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. Human rights organizations have called for a repeal of the Act on the grounds that it inhibits free flow of ideas and exchange of views.
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. Although there were no incidents of restrictions on religious sects in 1995, government authorities continued to emphasize the importance of controlling "deviationist" groups. They warned that these groups will not be allowed to take advantage of freedom of religion to spread discord among the Malaysian people. Although there were no reports of specific incidents in 1995, allegations that some state governments are slow in approving building permits for non-Muslim places of worship or land for cemeteries for non-Muslims persisted. 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
Citizens 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; citizens 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 also uses the Restricted Residence Act to limit movements of those suspected of gambling or vice activities (see Section 1.e.). The Government generally does not restrict emigration. Citizens 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 last year, 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. Citizens are not permitted to travel to Israel, and in 1994, following a public outcry, the Government revoked the passport of Tunku Abdullah, a member of the royal family, after Abdullah made what was described as a "private business trip" to Israel. Recently, however, the Government has loosened travel restrictions. Citizens are now permitted to travel to Jerusalem for religious purposes. 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 over 1 million foreign workers in Malaysia, many illegally, who work in low-skill jobs in the plantation, construction, and service sectors of the economy. The Human Resources Ministry reports that as many as 1.3 million foreign workers, both legal and illegal, are in the country. It acknowledges that as many as 500,000 of those are here illegally. 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, 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. Following a report of numerous deaths in the detention centers, human rights groups and opposition politicians accused the authorities of mistreatment and corruption and called for an independent investigation (see Section 1.d.). In 1991 and 1992 over 300 asylum seekers from the Indonesian province of Aceh arrived in Malaysia, allegedly fleeing violence stemming from a separatist rebellion in northern Sumatra. The Government refused to recognize the Acehnese as political refugees. By mid-1993 approximately 163 Acehnese had returned voluntarily to Sumatra. In early 1994 the Government offered to release those in detention, to provide all of the Acehnese with work permits and to give them jobs on plantations. The Acehnese rejected the Government's offer, contending they were not economic migrants. Nevertheless, in mid-1995 the 131 Acehnese in detention and the 51 who had obtained refuge in the compound of the U.N. High Commissioner for Refugees (UNHCR) agreed to resolve the impasse by accepting the Government's offer of work permits renewable on a yearly basis along with the freedom to work in any sector. Having provided first asylum to more than 254,000 Vietnamese boat refugees since 1975, the Government began in May 1989 to deny, in contravention of its commitments under the Comprehensive Plan of Action (CPA), first asylum to virtually all arriving Vietnamese. Between May 1989 and November 1993 Malaysia denied first asylum to over 10,000 Vietnamese. However, in late 1993 the Government reversed its policy, and throughout 1994 and 1995 it fully complied with the CPA's first asylum provisions. Military officers conducted the screening of the applicants for refugee status, with legal consultants from the UNHCR present during each interview. Final appeals were reviewed in late 1994. Between March 1989 and December 4, 1995, 9,635 Vietnamese were granted refugee status to settle in the United States. During the same period, 4,747 returned voluntarily to Vietnam, including 626 in 1995. Voluntary returns to Vietnam slowed to a trickle in the second half of 1995. The Government declared that Malaysia would use its bilateral orderly return program with Vietnam to repatriate all the remaining Vietnamese asylum seekers by December 31, 1995. However, the Government was not able to persuade the Vietnamese Government to accept large numbers of screened out asylum seekers. As of December 4, 1995, 4,406 Vietnamese asylum seekers remained in the camps, of whom 94 have been approved for resettlement in a third country; another 39 Khmers also remained.
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. Nevertheless, opposition candidates campaign actively and admit that the voting and counting of votes are relatively free. Following the 1995 general election, courts issued several controversial decisions on election-related disputes which the opposition argued were motivated by "political" mandates of the ruling coalition. In one instance, the court overturned an election result and awarded the seat to the ruling party candidate, who had lost the election to an opposition incumbent. In doing so, the court overturned an election commission decision that the opposition candidate was qualified to run despite a judgment against him in an unrelated case. The opposition argued that since the election itself was conducted without fraud, a new election should be called. However, the court ruled that the seat belonged to the losing candidate because the winner should not have been allowed to run in the first place. The decision awards to the ruling party a seat that has been traditionally held by the opposition, and the ruling has been criticized as an unfair political judgment. 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. A general election was held this year in accordance with the 5-year rule. The ruling coalition won an overwhelming victory, increasing its majority in the Parliament to 82 percent. 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. The Parliament passed amendments to its rules in October which strengthen the power of the speaker and which curb parliamentary procedures heavily used by the opposition. The amendments empower the speaker to ban obstreperous opposition Members of Parliament (M.P.'s) for up to 10 days, imposed limits on the ability of M.P.'s to pose supplementary questions and revisit nongermane issues, and establish restrictions on the tabling of questions of public importance. The amendments reduce substantially the opposition's scope to criticize the Government in Parliament. A new cabinet position was created after the election, and non-Malays now fill 7 of the 26 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 7.8 percent (holding 15 seats out of 192) of the elected lower house of Parliament and approximately 19 percent (13 seats out of 69) 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. 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 rejection of its application under the Societies Act. In 1993 the Government rejected the appeal. NGO's are becoming increasingly active and critical of the Government. Although the Government did not place any restrictions on their activities in 1995, government authorities highlighted allegations of abuses by NGO's and hinted that they may need to be more closely monitored. 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. 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 Federal Constitution of Malaysia provides for equal protection of the law and prohibits discrimination against citizens on the basis of religion, race, descent or place of birth. Although neither the constitution nor laws explicitly prohibit discrimination on the basis of sex or disabilities, the government has made efforts to eliminate discrimination against women and the disabled. Despite the constitutional prohibition against discrimination on the basis of religion or race, government policies include affirmative action programs for bumiputras (i.e., Malays and Muslims).
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 1994 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 1995. 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. 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 1993 women still occupied only about 1 percent of administrative and managerial positions. 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 half of the student population in 1995. The participation of women in the labor force increased from 37 percent in 1970 to 48 percent in 1994, 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. A court decision applies only to the facts of the particular case. However, it is conceivable that if someone were to challenge Kelantan's restrictions in court, the court might use the same line of reasoning to deal with the restrictions.
The Government is committed to childrens' 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, 1,075 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 1995 the Law Minister announced that the Government was considering imposing a mandatory death sentence for those found guilty of child abuse which resulted in death. Public and government awareness of child abuse and children's rights continued to increase as the press and NGO's devoted more attention to the issue. 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.
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. The Government, however, appears to be becoming more sensitive to the needs of physically disabled. In August the Transportation Minister announced that new commuter trains will be made wheelchair accessible. The Government also provides incentives for employers to offer employment opportunities for the disabled. Disabled persons work in all sectors of the economy, but the prevalent feeling in society remains that disabled people cannot work. In 1994 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 as of June, 1995, has registered 55,673 persons with disabilities in peninsular Malaysia. NGO's estimate that there are at least 200,000 persons with disabilities in Malaysia.
Indigenous groups and persons enjoy 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. Although not publicized widely, the problem of land disputes between Orang Asli and others persist. 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 continued to protest the alleged encroachment by the State or private logging companies onto land that they consider theirs by virtue of customary rights. Revival of a large dam project (Bakun Dam) in Sarawak, which will involve resettlement of a large number of residents in the area, has raised several controversial questions regarding land disputes as well as potential environmental problems. 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 less than 40 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 to ensure the generally strife-free ethnic balance.
Section 6 Worker Rights
a. The Right of Association
By law most workers have the right to engage in trade union activity, and approximately 10 percent of the work force are members of trade unions. Exceptions include certain limited categories of workers labeled "confidential" and "managerial and executives," 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 fund 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; the Government 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. On August 8, the High Court reversed the decision of the industrial court and ordered a new hearing in the lower court. Restrictions on freedom of association in the electronics industry have been the subject of complaints to the ILO. In July 1995, in a case involving the Metal Industry Workers Union, the Ministry of Human Resources went to court to force an employer to disclose information necessary to resolve a claim of recognition--the first action of its kind. 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. Trade unions are free to associate with national labor societies that exercise many of the responsibilities of national labor unions, although they cannot bargain for local unions. Enterprise unions also can associate with international labor bodies and actively do so. Relations between the Government and the Malaysian Trade Union Congress (MTUC), the leading labor center, have never been warm, but there have been periods of closer cooperation and less overt antagonism. Relations reached a low point when MTUC President Zainal Rampak and former MTUC Secretary General Dr. V. David were arrested and charged in October 1994 with criminal breach of trust along with two other union leaders. Some groups claimed that the fact of the arrests (based on events in the 1980s) and the high bail amount (close to $200,000 for a violation involving some $4,000) were an attempt to keep Rampak from attending and raising controversial issues in international labor forums, such as the International Labor Organization (ILO). This concern was allayed when Rampak, whose passport had been seized by the authorities, was given permission to travel to Geneva. The trial, which was set for May 1995, was postponed to November when David was unable to make a court appearance due to illness. They appeared in the Sessions court on November 21 and pled not guilty to the original charges as well as additional charges of criminal breach of trust involving over $30,000. Next hearings are set for May 1996. MTUC and international observers continue to be concerned about the outcome of this trial. Although strikes are legal, the right to strike is severely restricted. The 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 15 strikes in 1994 resulting in a loss of 5,675 man-days. A majority of the strikes (7) were in the plantation sector. Six strikes took place in the manufacturing sector, double the number for previous year. 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. Figures for 1995 were not available. 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. Although some trade unions question their effectiveness, it is not possible to assess fully whether these provisions are being effectively enforced, given the limited number of cases of alleged retribution. 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
Workers have the legal right to organize and bargain collectively, and collective bargaining is widespread in those sectors where labor is organized. The law prohibits antiunion discrimination by employers against union members and organizers. In one case, the industrial court ordered a Japanese maker of electronic watch components to reinstate an employee who had been unfairly dismissed for his involvement in trade union activities. To date, the company has failed to implement the order, leading some union leaders to say that 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." Legislation to address this issue was introduced and subsequently withdrawn in late 1994 by the Ministry of Human Resources to take into account other developments in the labor sector. Government plans to reintroduce such legislation in 1995 did not materialize. 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 the Labor Law in 1980, designed to curb strikes, as an erosion of basic worker rights. The labor critics contend that these changes do not conform to ILO standards.
c. Prohibition of Forced or Compulsory Labor
There is no evidence that forced or compulsory labor occurs. In theory, certain 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 1994, a Japanese electronics firm was fined $5,400 for violating the Children and Young Persons Act. This was the first time that a large firm has been fined under the Act. According to credible reports, child labor is still prevalent in certain sectors of the country. 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. However, government officials maintain that the figure is outdated as it was based on a nationwide survey of child labor undertaken in 1980, which 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 do not deny the existence of child labor but maintain that child laborers have largely been replaced by foreign guest workers and that the Government vigorously enforces child labor provisions.
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 that 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 48 hours per workweek of 6 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. Trade unions maintain that relatively few committees have been established and even in cases where they exist that they meet infrequently and are generally ineffective. There are currently no specific statutory or regulatory provisions which create a positive right for workers to remove themselves 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 and in other sectors. Working conditions on plantations 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 they are illegal entrants, generally do 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. In August the Federal Government banned employment agencies from recruiting foreign workers in certain sectors and froze the entry of workers from Bangladesh. These actions were taken in response to allegations of abuse and exploitation of foreign workers by employees, agencies, and by police officers at the various detention centers around the country. The Government has admitted that approximately 50 foreign workers have died while in detention but vigorously denies allegations by NGO's that detainees are tortured, are living in inhumane conditions and are not given proper medical care. The Government is investigating these allegations and has issued new guidelines on foreign worker recruitment. The Government has taken action against labor contractors who violate the law, 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.