Observatory for the Protection of Human Rights Defenders Annual Report 2002 - Malaysia

Human rights defenders under surveillance³¹

Due to continuing harassment of human rights defenders and impediments to their activities, the Observatory sent an international fact-finding mission to Malaysia in March 2002. The mission submitted its preliminary report during the 58th session of the United Nations Commission on Human Rights in Geneva. Amongst the most alarming discoveries made by the mission are arrests under the Internal Security Act (ISA), other pieces of legislation which make provisions for prolonged detention without trial, restrictions to the freedom of association, freedom of the press, freedom to demonstrate and the right to public meeting.

Arrests under the ISA

The ISA provides that any individual may be detained for up to 60 days without charge or trial if they are accused of acts which may undermine the security of the state. After 60 days, the defendant may be detained for another two years, a period which may be renewed with the Interior Minister's consent. The ISA is in complete breach of the right to a fair trial and the right to legal counsel and visits. The ISA is often used to limit the freedom of speech and the freedom to demonstrate. According to reports, detainees under the ISA routinely suffer from acts of torture and physical violence, deprivation of sleep and protracted questioning; threats are issued against their relatives and children, with the aim of obtaining a confession.

In June 2001, the ISA was systematically used to stamp out any opposition to the regime. The number of detainees under the Act arrested for their political and religious beliefs increased from 4 to 25 in 2001, and hundreds were arrested for taking part in peaceful demonstrations.

In April 2001, a few days before the anniversary of the conviction of former Vice-Prime Minister Anwar Ibrahim (sentenced on 14th April 1999), several key leaders of the National Justice Party (Parti Keadilan Nasional) and the Reformasi movement were jailed. They allegedly attempted to overthrow the government through "street demonstrations and activism". Six people were transferred to the Kamunting detention camp: Mr. Mohamad Ezam Mohd Nor, the leader of the youth branch of the Keadilan Party, Mr. Hishammudin Rais, a film-maker, Mr. Tian Chua, the vice-president of the Keadilan Party, Mr. Lokman Nor Adam, Dr. Badrulamin Bahron and Mr. Hj. Saari Sungib, the leader of the party. In May 2001, the authorities used the ISA again to imprison two leaders of the student movement, who were fighting the ISA. They were released before the 60-day period came to an end.

On 10th April 2002, the six detainees went on a hunger strike to call for their immediate and unconditional release from jail. On 6th September 2002, following an application for a writ of habeas corpus introduced by their lawyers, the Federal Court ruled that the first 60 days of detention were illegal in the cases of Mr Tian Chua, Mr Mohamad Ezam Mohd Nor, Mr Hishamuddin Rais, Mr Saari Sungib and Mr Raja Petra (also jailed on 10th April 2001 and released on 2nd June). The judges also ruled that the detentions were made in "bad faith". However, the Federal Court limited the scope of its decision to the initial period of detention; therefore, it does not affect the present detention at the Kamunting camp, which was decided by the Interior Minister on grounds of national security. On 6th September 2002, a demonstration was staged to protest against the ruling and was violently dispersed by the police.

Other proceedings are pending in these cases, notably on a charge of illegal rally for demonstrating in support of former Vice-Prime Minister Anwar Ibrahim.

Arrests under other laws which provide for preventive detention

On 23rd July 2002, five leaders of the Democratic Action Party (DAP), including Director Lim Kit Siang, were arrested for distributing pamphlets containing seditious statements related to a Prime Minister's speech saying Malaysia was an Islamic state. The law on sedition had already been used against another DAP leader, Mr. Lim Guan Eng, in a well known 1995 case; and against Anwar Ibrahim for making a public statement on the existence of a political conspiracy against him.

On 7th October 2002, Mr. Mohamad Ezam Mohd Nor, one of the detainees under the ISA, was sentenced to two years' imprisonment for breaching the law on official secrets: during a 1999 press conference, he had disclosed information contained in files sent by the Agency Against Corruption (ACA) to the Prosecutor General. Those documents set out allegations that Mr. Rafidah Aziz, Minister for Trade, and Mr. Abdul Rahim Thamby Chik, former Minister of Malacca, were corrupt. Mr. Mohamad Ezam Mohd Nor Ezam has been transferred from the Kamunting Detention Centre to the Prison of Kajang.

Ms. Irene Fernandez, the leader of Tenaganita, an NGO working with migrant women, has been charged with "publishing false information with malevolent intentions", under Section 8A of the PPPA (Printing, Presses and Publications Act). In 1995, she had published a report entitled "Memorandum on abuses, acts of torture and inhuman treatment towards migrant workers in detention camps", which contained allegations of ill treatment of migrant populations. She had based her work on interviews with over 300 migrant workers. Ms. Fernandez's trial has been the longest so far in the history of Malaysia. It started at the Court of Magistrates in Kuala Lumpur in June 1996 and is still pending.

Freedom of the press

The Printing, Press and Publications Act (1994) requires the media to ask for renewal of their licence every year. The authorities are thus in a position to control the media which have to live with the constant threat of seeing their operation closed. The Interior Minister has authority to suspend or withdraw licenses, with no legal way of appeal for the media, which undermines their exercise of free and critical journalism.

The ruling political parties control the main newspapers. The company New Straits Times Press Bhd., which publishes New Straits Times, Berita Hariam and several tabloid newspapers, is controlled by the UMNO party (the leading party in the ruling coalition government) through its stake in the Fleet Holdings group. The Star, a popular English-language newspaper, is controlled by Star Publications Bhd., owned indirectly by the MCA party (a member of the ruling coalition). The Chinese-language press which traditionally enjoyed more freedom than the media in other languages, is now losing its independence. The MCA Party has bought out two Chinese-language newspapers, Nanyang Siang Pau and Nanyang Press. The UMNO Party has a majority stake in Utusan Melayu Bhd., a company which controls the Malay newspaper with the largest circulation, Utusan Malaysi.

Extremely stringent administrative regulation controls the operations of foreign media in the country. For instance, a foreign correspondent must renew his permit every 14 days.

Freedom of association

The freedom of association is ruled by the Societies Act of 1966, the Trade Unions Act of 1957 and the Universities and Colleges Act of 1971, which regulate the rights of NGOs, trade unions and students to create associations.

NGO registration

The Companies Act requires any organisation, society, political party or association to apply for a permit. The government may turn down the application if it considers that the purpose of the organisation is unlawful or imperils "peace, security, social welfare, law and order or decency in Malaysia". In practice, many NGOs, such as the Malaysian section of Amnesty International, are faced with great obstacles in obtaining a permit. There is a pervasive climate of mistrust towards NGOs and their activities. To avoid such problems, several NGOs have registered as commercial companies.

On 25th July 2001, the Vice Interior Minister, Mr Chor Chee Heung, required associations to mention their sources of funding in their annual tax returns, including possible foreign funding. Associations with close links abroad seem to be under investigation. The mission of the Observatory was informed that a bill aimed at further limiting NGO activities was being drafted by the government.

Student associations

The Universities Act provides that students and university members cannot join or take part in the activities of any society, political party or other organisation, body or group, whether such organisation is registered in law or not, whether it is based in Malaysia or abroad, unless provided otherwise by the Constitution or unless the Chancellor of the University gives prior consent.

Students who take part in political activity are faced with various obstacles. In July 2001, two students were arrested under the ISA. Others were excluded, expelled or otherwise penalised; they were charged with unlawful reunion, contacts with the media, with staging demonstrations on the campus, selling anti-ISA badges, opposing the "Vision" school proposed by the government and participating in the website of an illegal student organisation.

The case of University Bangsar Utama (UBU), an organisation set up in 1999 following social unrest after Mr. Anwar Ibrahim's arrest, is typical of the climate of repression prevailing in Malaysia. UBU is deemed illegal and in breach of the Universities Act. One of its leaders, Jona, was arrested in June 2001 under the ISA. In April 2002, he was not allowed to travel abroad to go to the session of the UN Commission on Human Rights under the pretext of having undermined Malaysia's image on various occasions. Unveiled threats were made: he would not obtain his degree if he went to Geneva.

The mission of the Observatory was also informed of another event: the University of Sciences of Malaysia (USM) prevented the Chinese Language Society from organising its annual meeting. Members of the Society were accused of giving interviews to the press, issuing press releases without the prior consent of USM officials, libelling the university, distributing pamphlets and attending illegal meetings. The Chinese Language Society is one the most active and most critical of the USM. When answering a question put by an opposition politician, the Minister for Education claimed that the Society would be allowed to hold its meeting at the beginning of the academic year. However, on 9th April 2002, university authorities laid down ten conditions for issuing the authorisation. The Society refused to comply with those conditions. Therefore, its activities on the campus have been banned.

In December 2000, the parliamentary secretary of the Prime Minister's office, Mr. Noh Omar, recommended that civil servants supporting the opposition resign because they were deemed to be traitors to the government. All Malaysian civil servants are bound to sign a "Civil Servant Oath", by which they commit themselves to support the government and "to remain loyal to the King, the Nation and the Government". This has become a particularly thorny issue since the government put forward a draft school reform designed to integrate every school and school committee in the country on the basis of the same model. University professors have been warned that any action against the government initiative would lead to serious sanctions.

Trade unions

Malaysia has not ratified Convention 87 of the ILO on the freedom of association and protection of the right to organise, and the right to strike has been substantially curtailed. Thus, the trade union movement is very weak in Malaysia. The Malaysian Trade Union Confederation (MTUC) has demonstrated in favour of the ratification of the treaty, to no avail. Less than 20% of Malaysian workers are unionised and trade unions are fragmented – there are over 400 different organisations.

Cultural associations

Cultural rights movements are targeted for control by the government or non-state bodies. Cultural events that may call into question the cultural and religious norms of Malaysia or Muslim authorities are under pressure and their organisation is usually thwarted.

Freedom of assembly

In Malaysia, freedom of peaceful assembly is enshrined in the Federal Constitution (Article 10 (1) b) and is limited by legislation on national security and law and order (Article 10 (2) b). In fact, it is regulated by the Police Act of 1967 and the Law and Order Act of 1958.

Rallies and public meetings take place under police control. Any individual wishing to hold a meeting must ask for a permit with 14 days' notice. The permit is granted if the meeting does not jeopardise national security or lead to unrest. According to Section 141 of the Criminal Code, any rally of over four people that takes place without a permit is illegal. And Section 27D provides that the permit is only granted to groups recognised by the authorities or in law. Therefore, an association that is not registered is not allowed to hold public meetings. In principle, private activities do not need to obtain a permit. But the police may intervene when a meeting taking place on private property gathers more than 20 people.

The government authorities consider that public meetings pose a threat to national security and law and order. In July 2001, they ordered the suspension of permits for political rallies. On 9th September 2001, they reminded the population that they would not allow public meetings without a police permit, in the interest of national security. In the wake of the mobilisation of part of civil society against the government's decision, the National Human Rights Commission, Suhakam, issued a statement claiming that a general ban on rallies was a human rights violation.

[Refworld note: This report as posted on the FIDH website (www.fidh.org) was in pdf format with country chapters run together by region. Footnote numbers have been retained here, so do not necessarily begin at 1.]

31. See the Report of the mission of the Observatory, Malaysia: Human Rights Defenders Under Close Surveillance.