REPORT ON HUMAN RIGHTS IN MALAYSIA

(Prepared by Prof Johan Saravanamuttu)

OVERVIEW

Human Rights Practice -- Regression rather than Progression

Malaysia's human rights practice, by way of national laws and legal instruments, has steadily slid downhill since independence in 1957. This is due to several major political developments since independence and particularly because of the actions of the government led by Dr. Mahathir Mohamad since 1981. The only positive actions on the part of the state in recent years has been the endorsement of several international human rights conventions and the setting up of a national commission on human rights. These developments are summarized below.

The actions on the part of the state in weakening human rights practice in the country can be stated as follows:

  1. The steady erosion of constitutional provisions for human rights and fundamental liberties such as the right to life and liberty of the person, protection against slavery forced labor, equality before the law, freedom of movement, speech, expression, assembly and association, including the right to strike and take industrial action (Articles 5, 6, 8, 9, 10(1)(a) (b) (c), freedom of religion, right to education and property (Articles 11, 12, 13). The most cynical developments occurred in the Mahathir period when the principle of judicial review (Article 121) was virtually debunked after the sacking of the Lord President and two Supreme Court judges in 1988 (See box).


  2. Elimination of the right to seek the writ of habeas corpus, whereby preventive detention cannot be challenged in court, since the 1988/89 amendments to the Internal Security Act (1960).


  3. The increasing centralization of the powers of government in the hands of the executive branch and the steady debunking of the principle of the separation of powers of the legislature and judiciary as provided for in the 1957 Constitution. This was accomplished along with the steady removal of checks and balances in the system via various constitutional procedures and amendments aimed at reducing local state power, abolition of elected local governments and eroding of the symbolic as well as the legal role of the Rulers. (Lee, 1995)

Table 1: Legal Restrictions on Human Liberties and Freedom

Constitutional Provision

Right of Freedom

Legislative Restriction

Article 5

Liberty of the person

Internal Security Act, 1960: Restricted Residence Enactment (CAP. 39); Sec. 117, Criminal Procedure Code (CAP. 6)

Article 6

Protection against slavery and forced labor

Essential (Self-Reliance) Regulations, 1975; National Service Ordinance

Article 9

Protection against banishment; freedom of movement

ISA 1960; Banishment Act, 1948; Immigration acts, 1959 and 1963

Article 10(1)(a)

Freedom of speech and expression

Sedition Act, 1948 (and Amendments, 1971); Official Secrets Act, 1972 (and Amendments, 1986); Printing Presses and Publishing Act, 1948 (Amendment 1988); Control of Imported Publications Act, 1959

Article 10(1)(b)

Freedom of peaceful assembly

Public Order (Preservation) Ordinance, 1958; Police Act, 1967 (and Amendments, 1988)

Article 10(1)(c)

Freedom of association

Trade Unions Act, 1959 (and 1980 and 1989 Amendments); Societies Act, 1966 (and 1981 Amendments); University and University Colleges Act, 1971 (and 1975 Amendments) - discipline of Student Rules and Discipline of Staff Rules

Article 10(1)(c)

Freedom of association and right to industrial action, including strike

Essential (Prohibition of Strikes and Prescribed Industrial Actions) Regulations, 1965; Industrial Relations Act, 1967, Amendment, 1971 and 1975

Article 121

Principle of judicial review

Amendments to Article 121, 1988; Amendments to ISA, 1988; Amendments to ISA, 1989

Source: ARENA, 1992: 23

National laws and legal instruments pertaining to human rights are as follows:

Views of Two Former Prime Ministers on the ISA

"The ISA introduced in 1960 was designed and meant to be used solely against the communists...My Cabinet colleagues and I gave a solemn promise to Parliament and the nation that the immense powers given to the government under the ISA would never be used to stifle legitimate opposition and silence lawful dissent",
Tunku Abdul Rahman, First Prime Minister.

"The ISA is a measure aimed at preventing the resurgence of the earlier communist threat to the nation... During my term of office as Prime Minister, I made every effort to ensure that pledges of my predecessors, that powers under the ISA would not be misused to curb lawful political opposition and democratic citizen activity, were respected."
Tun Hussein Onn, Third Prime Minister.

These statements were made in affidavits at the habeas corpus hearing of Dr. Chandra Muzaffar, in 1987.

  1. National laws and national legal instruments: constitutional guarantees cited above and legal restrictions on them include the following: Banishment Act (1948), Immigration Acts (1959, 1963), Sedition Act (1948, 1971), Internal Security Act (1960, 1988, 1989), Public Order (Preservation) Ordinance (1958), Police Act (1967, 1988), Official Secrets Act (1972, 1986), Essential (Security Cases) Amendments Regulations (1975), Trade Unions Act (1959, 1980, 1989), Societies Act (1966, 1981) University and University Colleges Act (1971, 1975), Essential (Strikes and Industrial Actions) Regulations (1967, 1971, 1975), Amendments to Article 121 (1988) Thus, over the years, the existing provisions for human rights have been progressively whittled down by a battery of acts and amendments (See Table 1).
  1. Ratification of international human rights instruments: Among the major international instruments for human rights, Malaysia has only ratified two major ones as follows: International Covenant for Civil and Political Rights - ICCPR (no) International Covenant for Economic, Social and Cultural Rights -ICESCR (no) Convention for the Elimination of All Forms of Discrimination Against Women - CEDAW (yes), Convention for the Elimination of All Forms of Racial Discrimination - CERD (no) Convention on the Rights of the Child - CHILD (yes), Convention against Torture and other Cruel Inhumane or Degrading Treatment or Punishment - CAT (no). This record compares rather poorly with other Southeast Asian states, which admittedly are all generally laggard in acceding to human rights covenants and conventions.
  2. The setting up of a National Commission of Human Rights through an act passed by parliament, 1999: While the government has gone ahead with the setting of the human rights commission, this move has occurred amidst the demands of 34 NGOs for public consultation on the draft bill and assurance of the transparency, independence and the proper implementation of its mandate. (See pp. 29-31 below).

 

On the positive side of developments, there has been important progress made on human rights practice by the non-state sector of Malaysia. A significant event was the coming together of some 50 NGOs in 1993, representing human rights organizations, trade unions, consumer associations, women's groups, environmental organizations, academic bodies and organizations of people with disabilities, to endorse a Malaysian Human Rights Charter (See Appendix 2). Below are some of the most important milestones relating to the progress of human rights practice based on initiatives in the non-state sector:

  • ALIRAN, a "reform movement dedicated to justice, freedom and solidarity" is formed in Penang in 1977.
  • Malaysian Bar Council establishes a Human Rights Committee, 1970s.
  • Democratic Action Party Convention on Human Rights is opened by Malaysia's first Prime Minister, Tunku Abdul Rahman, 1985.
  • SUARAM, first national-level human rights organization is formed in 1989.
  • HAKAM, Malaysian national human rights organization is formed in 1991.
  • Adoption of "The Malaysian Human Rights Charter" by some 50 NGOS in 1993.
  • BUDI, the first national-level election watch organization is formed in 1999.
  • HAKAM, SUARAM and ERA Consumer and Working Group for an ASEAN Human Rights Mechanism, sponsors a Forum on the National Human Rights Commission, 3-4 July 1999.

 

We may conclude this overview by referring to SUARAM's 1999 report on human rights practice in Malaysia: According to the human rights organization, to date, Malaysia has yet to ratify arguably the three most significant human rights instruments on civil and political rights pertaining to civil and political rights (ICCPR), economic, social and cultural rights (ICESCR), racial discrimination (CERD) and torture, cruel and inhuman treatment (CAT). The government has instead lamely advanced the so-called "Asian values" position on human rights by arguing that it considers many of the current declarations, covenants and convention on human rights to be of Western origin.

Detention without Trial under the Internal Security Act

The ISA was enacted under Article 149 of the Malaysian Constitution, which allows for a law so enacted to be legal even if it contravenes various other constitutional provisions, which guarantee liberty of the subject under Article 5. Under Section 73 of the ISA, the police may detain anyone for interrogation for 60 days on the suspicion that "he or she acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof."

It has become part of activist folklore that the 60 days could be the worst days on one's life. Treatment could vary from actual physical torture to psychological humiliation and the denial of reading materials. At the end of the 60 days, further detention of extendable two-year terms have to be authorized by the Minister of Home Affairs, as provide for in Section 8 of the Act. The charges against the detainee are then specified in a Detention Order (DO). Even if detainee takes no legal recourse, he or she comes up for review every six months by an Advisory Board to the Home Minster.

In practice the work of the Board has become farcical and the experience of ex-detainees shows a reversing of the legal process whereby a political decision usually determines a release, which is then rubber stamped by the Board. The Board may also recommend unconditional or conditional releases. Conditional releases can come in the form of a Restricted Order (RO) which severely restricts freedom of movement, including reporting one's activities and movements to the police on a monthly basis.

The ISA has been amended 18 times, giving it more bite each time. In theory, ISA detention orders could be challenged in court through habeas corpus proceedings and several such cases have been heard but such action has virtually become an exercise in futility after the 1988 and 1989 amendments which make it incumbent on judges to accept the absolute discretion of the Home Minister in determining who is a security threat.

ARENA, 1992: 21-22.

On the positive side the Malaysian government is currently party to six instruments, five of which it has ratified, some with reservations as follows:

  1. Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery. Adopted in Geneva on September 7, 1956, ratified on November 18, 1957.
  2. Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by the General Assembly of the United Nations on December 9, 1948, ratified on December 20, 1994.
  3. Convention on the Elimination of all Forms of Discrimination against Women (with reservations). Adopted by the General Assembly of the United Nations on December 18, 1979, ratified on July 5, 1995.
  4. Convention on the Rights of the Child (with several reservations, in particular to Article 13 which provides the right to freedom of expression). Adopted by the General Assembly of the United Nations on November 20, 1989, ratified on February 17, 1995.
  5. Convention on the Nationality of Married Women (with reservations). Adopted at New York on February 1957, ratified on February 1959.

(Rachagan and Tikamdas, 1999 and Report of UN Special Rapporteur, 1998).

Malaysia's reservations with respect to CEDAW revolved around the practice of Syariah law as practiced in the country, for example with respect to the division of inherited property and the appointment of clerics as Syariah court judges. It withdrew some earlier objection on January 28, 1998. Reservations on CHILD pertain to conformity with national laws and policies of the government.

Ratification of these conventions marks an explicit acceptance by Malaysia that it does share with the global community common standards and values on human rights regardless of cultural and geographical origins. Furthermore, following upon the 1993 Vienna Conference on Human Rights, Malaysia advanced the principle of the indivisibility and interdependence of all human rights thereby also purportedly supported the Vienna declaration that:

"All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis."

On the negative side, the Malaysian government has shown little evidence of honoring this principle of indivisibility. It continues the use emergency laws in non-emergency conditions, the practice of detention without trial, perpetrating deaths and abuses in custody, condoning police violence and abuse; it implements the death penalty, continues to violate the basic freedoms of expression, association and peaceful assembly, condoning an unfair and unfree electoral process, and government policies and actions continue to reinforce an extreme form of dominance of the executive over the legislature and the judiciary.