-Nalini Elumalai, Executive Director, Suaram. December 10, 2012.

Prime Minister Najib had a year to deliver on his promises of reform before the impending 13th general elections but the human rights situation in Malaysia for 2012 has not improved.

The concerted harassment of SUARAM throughout the second half of this year demonstrates the government’s flagrant flouting of human rights and its habit of vindictive persecution of human rights defenders.

Detention without trial and incommunicado detention remains on the statute books as the Internal Security Act 1960 was replaced by the Security Offences (Special Measures) Act 2012. The freedom of assembly is now governed by a restrictive legislation; the freedom of expression has been restricted by the introduction of S114A Evidence Act 1950; a program that was supposed to regulate non-citizens was abused by government cronies through fraudulent employment agencies.

Continuing detention without trial

The Security Offences (Special Measures) Act 2012 (“SOSMA 2012”) received the Royal Assent from the Yang Dipertuan Agong on 18/6/2012 and was set to commence on 31/7/2012 to replace the Internal Security Act 1960 (“ISA 1960”). However, critics propounded that the SOSMA is in fact, “old wine in a new bottle” since it still allowed detention without trial and incommunicado detention.

Throughout the year, the Home Minister made several releases notably after a series of hunger strikes. Documentation and monitoring by SUARAM and Abolish ISA Movement show that there are currently 27 detainees comprising of 10 Malaysians, 6 Sri Lankans, 2 Indians, 2 Iraqis, 2 Indonesians, 1 Bangladeshi, 1 Pakistani and 3 Filipino. A total of 18 out of 45 remaining detainees were released throughout the year, compared to 20 releases in 2011. No arrest was made under the SOSMA 2012 as of December 2012 compared to 27 arrests made under the ISA 1960 in 2011.

More deaths in custody and police shootings

In 2012, deaths in custody, fatal police shootings and violence against suspects have continued unabated. Official statistics for deaths in custody stood at 209 from 2000 to September 2012. Home Minister Hishammuddin Hussein disclosed in Parliament that a total of 298 individuals were shot dead from 2007 to August 2012. Thirty seven deaths were recorded for 2012 compared to 30 in 2011.

Despite repeated calls by human rights defenders and victims of police brutality for the setting up of the Independent Police Complaints and Misconduct Commission (“IPCMC”), the government remained adamant that IPCMC is not necessary. Instead, the Enforcement Agencies Integrity Commission (“EAIC”) was introduced which lacked the independence and capacity of the IPCMC.

Questionable integrity and impartiality of the police

The police’s integrity and impartiality were questioned following damning exposes made by former Inspector-General of Police, Musa Hassan which revealed the rampant political influences in the police force, including taking orders from politicians or ‘top people’ to release certain individuals in certain cases. A statutory declaration made in 2009 surfaced amidst the revelations which further casted doubts on the police force. Former aide de camp for Musa, Noor Azizul Rahin Taharim’s deposition accused Musa of wrongdoings during his tenure and exposed how he had silenced critics within the force with manipulation of promotions, ranks and postings in the force.

Injustices to Migrants

Malaysia has yet to ratify the 1951 Convention relating to the Status of Refugee and its 1967 protocol despite repeated calls from local, regional and international human rights defenders. The Immigration Act 1959/63 performed a perfunctory role in detaining, whipping and deporting non-citizens throughout 2012.

Government statistics reveal that a total of 35,000 non-citizens were whipped under S6(1) of the Immigration Act 1959/63 from 2005 to 2012. A total of 32,664 (93.3%) were found to have violated the Immigration Act 1959/63 while the remaining 2,336 (6.7%) were found guilty under the Penal Code, Dangerous Drugs Act 1952 and Drug Dependants (Treatment and Rehabilitation) Act 1983.

The 6P Program relating to undocumented migrants had to cease operation on 10/4/2012 after allegations of corruption and other injustices. It was revealed that former Home Minister and current MP for Kangar, Mohd Radzi Sheikh Ahmad is the director of SNT Universal Corporation Sdn Bhd, an agent appointed by the government in the 6P Amnesty program. SNT had committed several offences including collecting fees from non-citizens and falsely representing to the non-citizens that it is able to register and obtain work permits for them from a number of bogus employment agencies.

Suppression of freedom of expression and information

The government continued to curtail the legitimate exercise of freedom of expression throughout 2012. In May 2012, about 30 officers from the Federal Territory Islamic Religious Department (“JAWI”) confiscated copies of Irshad Manji’s ‘Allah Liberty & Love – Courage to Reconcile Faith & Freedom’ from Borders bookstore as the content was deemed to be contrary to Islamic teachings.

The publisher, Ezra Zaid of ZI Publications was taken to Jabatan Agama Islam Selangor headquarters for questioning under S47(1) of the Selangor Syariah Criminal Offences Enactment 2003. Borders store manager, Nik Raina Nik Abdul Aziz was charged under S13 of the Federal Territory Syariah Offences Act 1997 for distributing Manji’s books.

Mkini Dotcom’s application to quash the Home Ministry’s decision to reject a publishing permit of Malaysiakini was allowed by the Kuala Lumpur High Court on 1/10/2012. Justice Abang Iskandar Abang Hashim in an oral decision stated that “…the decision affects the right of the applicant to the right of freedom of expression, which also includes the right to apply for a permit. It is a fundamental liberty enshrined in the constitution…” However, the Attorney General’s Chambers and the Home Ministry have filed a notice of appeal against Justice Abang’s decision.

Selective prosecution under the Peaceful Assembly Act 2012

The real function of the new Peaceful Assembly Act 2012 was demonstrated in the government’s handling of the BERSIH 3.0 rally on 28/4/2012. A total number of 909 tear smoke shells were used in BERSIH 3.0 as compared to 262 at BERSIH 2.0. There were around 300,000 participants in the rally and a total number of 572 were arrested on the day of rally. The government, in an unusual move filed two civil suits against BERSIH Steering Committee members for causing damage to public properties.

The speedily passed Peaceful Assembly Act 2012 (“PAA 2012”) received its Royal Assent on 30/1/2012 and was set to commence on 23/4/2012, just in time for the BERSIH 3.0 rally on 28/4/2012. Participants, Anwar Ibrahim, Azmin Ali and Badrul Hisham Shaharin were charged under S4(2)(c) of the PAA 2012 for violating a Magistrate’s Order by taking part in BERSIH 3.0 rally. The three were also alleged to have conspired with R. Tangam, G. Rajesh Kumar and Farhan Ibrahim for incitement to breach the barricades set up at Dataran Merdeka.

Student groups made a significant impact in 2012. On 14th April 2012, about 500 members of Malaysia Bangkit, Gabungan Mahasiswa Islam Malaysia, Kelab Mangsa PTPTN and Malaysia Student Democratic Movement took to the streets to demand the abolition of PTPTN and called for free education. Violence against the students escalated when a group of about 50 to 70 thugs attacked the students and destroyed their tents at Dataran Merdeka, with one student having to be rushed to the hospital. About a dozen of police officers stood by and watched the entire incident without intervening.

Environmental groups made headlines with a series of rallies. Himpunan Hijau began an epic 300 kilometre walk from Kuantan to Kuala Lumpur. From a mere 70 participants in Kuantan, the crowd along the way gathered to a massive 20,000 participants at Dataran Merdeka in Kuala Lumpur to protest against several environmental issues namely, the Lynas Corporation’s rare earth refinery in Gebeng; the use of cyanide by Raub Australia Gold Mining Sdn Bhd; the RM60 billion Petronas Refinery and Petrochemical Integrated Development project at Pengerang and the building of more mega dams in Sarawak. At the end of the rally, the police announced to the participants that the organisers would be investigated under the PAA 2012.

Vindictive harassment of human rights defenders

SUARAM began to face an unprecedented barrage of intimidation and harassment from the government and its agencies as a result of the Scorpene public inquiry arising from SUARAM’s complaint in Paris. On 1/7/2012, President of Jaringan Melayu Malaysia (“JMM”), Azwanddin Hamzah urged SUARAM to clarify its status as an NGO and to reveal its sources of funds locally and internationally. Two days later, on 3/7/2012, Companies Commission of Malaysia (“CCM”) arrived at SUARAM’s doorsteps for a ‘routine’ inspection.

The government-controlled mainstream newspapers, News Straits Times, Berita Harian and Utusan Malaysia joined in this government chorus, accusing SUARAM and other organisations including BERSIH 2.0, Malaysiakini and Centre for Independent Journalism of being involved in a “Zionist plot to destabilise the government”.

That first visit was the beginning of an interminable series of investigations of SUARAM and other individuals deemed to be related to SUARAM by a government orchestrated task force consisting of the Companies Commission Malaysia, Malaysian Communication and Multimedia Commission, Bank Negara, Registrar of Societies, the Royal Malaysian Police and the Home Ministry. This harassment has not ceased as at December 2012.

Hopeful developments in the judiciary, negative developments in the law

On 2/10/2012, five former ISA detainees namely Hishamuddin Rais, MP Chua Tian Chang, Badrulamin Bahrom, Saari Sungib and Badaruddin Ismail were awarded RM15,000.00 each for each day of their detention and RM30,000 each as aggravated damages by Kuala Lumpur High Court Judge Lau Bee Lan. Justice Lau further awarded RM60,000.00 in general damages and RM40,000.00 for aggravated and exemplary damages to the plaintiffs in a defamation suit brought by all five of them except Badaruddin Ismail. In her decision, Justice Lau found that the plaintiffs were detained unlawfully and in bad faith, and had been subjected to cruel treatment during their detention.

In May 2012, an amendment to the Evidence Act 1950 was passed in the Parliament. S114A of the Act provides punishment to internet users for any content posted through their registered networks or data processing device. The amendment has reversed the burden of proof to the accused person, failing which an author is liable whenever unlawful materials are published in the author’s name, blog or website or even transmitted from any individual’s computer. The burden to prove otherwise now rests squarely on the accused person. The amendment could be open to abuse by the investigators and force an innocent party to rebut the presumption of guilt at serious risk of wrongful prosecution and injustice.

In October 2012, de facto Law Minister, Nazri Aziz announced that the government may replace the death penalty for drug offenders with a prison term, whilst acknowledging that the law only punishes drug mules and not the baron themselves. This would in effect entail reprieves for about 900 offenders on death row. He was, however quick to exclude murder cases from this reprieve from the death penalty saying that there are many differing opinions that are inclined towards the eye for an eye sentencing policy.

Plight of Stateless People in Malaysia

Cases of stateless people in Malaysia have escalated at a worrying degree. In June 2012, Pertubuhan Kebajikan dan Sosial Malaysia claimed that the Social Welfare Department had failed to issue birth certificates to about 1,758 Malaysian orphans.
Laudable actions by SUHAKAM

On 21/5/2012, SUHAKAM announced that it has decided to hold a public inquiry into unnecessary use of force by the police during BERSIH 3.0 rally on 28/4/2012. SUHAKAM demonstrated a sense of urgency on the necessity of the inquiry coupled with the obligation to carry out its own inquiry pursuant to its mandate as provided under the Human Rights Commission of Malaysia Act 1999.
In the on-going harassment of SUARAM, SUHAKAM released a statement in October saying that freedom of expression and association are central and guaranteed under the Federal Constitution of Malaysia and in the Universal Declaration of Human Rights. SUHAKAM also pointed out that the Universal Declaration on Human Rights Defenders recognises human rights defenders and their legitimate activities to promote and protect human rights including the receipt foreign funds. The commission added that human rights defenders should be allowed to function freely, operate in an enabling and safe environment, and have the freedom to determine their status, structure and activities.
The fundamental liberties of Malaysians remain restricted, with continuing detention without trial, more deaths in police custody and police shootings, gross injustices to migrants, suppression of the freedom of expression and information and selective prosecution under the new Peaceful Assembly Act 2012. On this note, SUARAM pledges to continue the struggle to promote, uphold and protect the fundamental freedoms of the people for generations to come.