Human Rights in 21st Century Malaysia
by Tommy Thomas
The Executive and the Legislature
It is convenient for three reasons to take the Executive and Legislative branches together. First, as Malaysia has adopted the Westminister model, members of the Executive branch are all members of Parliament. Secondly, all Acts of Parliament originally emerge as Bills presented by the Executive. Thus, the Executive, is for practical purposes, responsible for the drafting of all laws. Thirdly, because of the rigorous use of the whip system, the ruling party's overwhelming majority in Parliament ensures that all Bills presented by the Executive are passed by Parliament, often without adequate discussion and always without amendment.
Before one reviews normal law-making by the Malaysian Parliament in the past forty years, that is, the enactment of Acts of Parliament, two overriding criticisms must be made against the Executive and the Legislature. First, the effect of the amendments that these two branches of Government made to the Federal Constitution in the first two decades were such as to completely truncate the safeguards put in place in the original Constitution thereby calling into question the nature and efficacy of the entire amendment process. The Constitutional Amendments1 that were passed in 1960, 1962, 1964, 1971, 1973 and 1981 substantially altered the checks and balances firmly in favour of the Executive to the severe detriment of the citizen.
Secondly, the frequent reliance on Emergency powers. The first Emergency, which ended after the 12-year communist insurgency on 31 July 1960, was followed by the Second Emergency, which was declared on 3 September 1964 for the whole of Malaya by reason of Indonesian Confrontation. The Third Emergency, limited to the State of Sarawak, was declared on 14 September 1960 by reason of the events surrounding the dismissal from office of the Chief Minister, Stephen Kalong Ningkan. The 13 May 1969 riots led to the declaration of the Fourth Emergency for the whole nation on 15 May 1969. Finally, on 8 November 1977, the Fifth Emergency, limited to the State of Kelantan, was declared to deal with a political crisis there. The Second to Fifth Emergencies have yet to be revoked.
Thus, during 43 years of independence, there has only been one short spell of four years, between 15 August 1960 and 2 September 1964, when the country has not been subject to an Emergency. In fact, in all the states of Malaysia, except Sarawak and Kelantan, there are still in force two states of Emergency, while in those two states there are still in force three states of Emergency. The continuous use of Emergency power for 39 out of 43 years of the independent nation's life has for all practical purpose destroyed its credibility. Normalcy has long returned to the nation. Seven general elections and numerous state elections have been held since the last nationwide emergency was declared in May 1969. Thus, no objective grounds remains for this permanent state of emergency. It is thus not surprising that the authors of the "Justice in Jeopardy" published in April 2000 by a distinguished panel of Commonwealth judges and lawyers on behalf of four well-respected International Organisations for lawyers observed:-
" The continuation of Emergency after the need for it has passed can have an insidiously brutalizing effect upon the administration of justice in any country. We suggest that the Malaysian malaise may be due in no small measure to the gradual acceptance of a state of emergency as the norm of Government."
Turning to law making, of the 900 odd Acts of Parliament passed since Merdeka, there are at least 14 statutes (all presented by the Executive) which cause severe inroads, and, for practical purposes, abrogate constitutionally protected fundamental rights.
The most pernicious legislation is the Internal Security Act ("ISA") which gives sweeping powers to the Executive, (the police and the Minister of Home Affairs) to arrest and detain any person for a period of 60 days; thereafter the Minister can order that person to remain in detention for a further two years, which detention can be renewed indefinitely every two years. Preventive detention is terribly insidious because a person's liberty is deprived without trial. Other extraordinary powers extend to prohibiting meetings and banning publications, books and periodicals.
When presenting the Bill in Parliament on 21 June 1960, the then Deputy Prime Minister and Home Minister, Tun Razak stated that as there were still 583 armed terrorists in Northern Malaya there was still a need for the people "to be protected from communists subversion." He also gave the assurance that the ISA would be used with the utmost care so as to avoid the abuse. Despite that assurance, more than 20,000 people had been detained during the period 1960 to 1990 under the ISA for diverse reasons which have nothing to do with communist subversion. With the signing of a formal peace treaty with exiled remnants of the Communist Party of Malaysia in Thailand in 1989, reliance no longer seems to be placed by the Executive on communism as a ground for detention.
As with other restrictive laws in Malaysia, the ISA, already a powerful weapon in the armoury of the Executive, through a series of amendments, has incrementally extended executive powers, while stripping away the scant judicial safeguards designed to protect against their abuse. Now, the reality is that once a person is detained under the ISA, he or she has no effective recourse to legal protection nor any opportunity to establish his or her innocence of the accusations made against them. As such, the ISA is contrary to the Part II fundamental liberties and core principles of international law, including the right to liberty of the person, to freedom from arbitrary arrest, to be informed of the reason for arrest, to the presumption of innocence and to a fair and open trial in a court of law. In fact, it would be impossible to find any scholar of worth or independence prepared to argue the contrary.
Although protection from ill-treatment and torture of detainees is not expressly stated as a fundamental liberty under Part II of the Federal Constitution, it is still prohibited under the expression "life or personal liberty" in Article 5 and by various international conventions, including the Universal Declaration of Human Rights. It is axiomatic that the right to protection against torture and ill-treatment is a human right of the greatest importance. Details of personal experience of ex-detainees tell a harrowing story of mental and physical coercion. The recent case studies of Munawar Anees, Sukma Darmawan, S. Nallakaruppan and Anwar Ibrahim seem to suggest that old habits die hard.
Laws curbing freedom of movement include ESCAR. Provisions also appear in the Police Act and Immigration Act, curtailing freedom of movement. Thus, Malaysian citizens from Peninsular Malaysia do not have a right to travel to Sabah and Sarawak.
Three statutes seriously undermine freedom of speech and expression: The Sedition Act, The Official Secrets Act and the Printing Presses and Publications Act. Fan Yew Teng, Param Cumaraswamy, Lim Guan Eng and Karpal Singh were prosecuted under the Sedition Act, while Lim Kit Siang and journalists Sabry Sharif and James Clad were found guilty of offences under the Official Secrets Act. The Printing Presses and Publications Act contains numerous restrictions on the publication of newspapers and periodicals, including the requirement for an annual licence which may be revoked by the Minister at any time. During the political tension of 1987 in the wake of Operation Lalang, three major national newspapers, the Star, Sin Chew Jit Poh and Watan had their licenses revoked. Self-censorship among newspapers owners, who are anyway closely linked to the governing coalition, and their editors is a grave impediment to free expression in Malaysia. Publication of opposition parties are restricted to sale to party members only. Foreign newspapers and journals are periodically banned or delayed. The broadcast media is completely denied any alternative thinking. Thus, RTM and TV3 do not broadcast material from the opposition. The advent of the Internet has given an impetus to on-line reporting and sites like Malaysiakini have flourished – itself a commentary on the needs of the average news-starved Malaysian. Finally, the Printing Press Act contains penal provisions, as Irene Fernandez discovered when she was charged thereunder.
Freedom of association is restricted by provisions in the Societies Act, Trade Unions Act and Universities and University College Act. The Societies Act requires every club, organization, society or political party to secure a licence, thereby providing the executive with the means to block or impede the formation of any organization, which it considers undesirable. The Act has an intimidating effect, and together with the onerous bureaucratic requirements, which can result in prolong decision-making, have had a negative impact on the development of independent civil society. This has led to some NGOs registering as companies under the Companies Act, 1965 which itself has its own bureaucratic regime. The Trade Unions Act restricts the rights of some workers in a manner inconsistent with international norms. Strict control over a trade union's affairs is exercised by the relevant bureaucracy. The Act also does not permit large groups of trade unions covering workers in different fields. Thus, the MTUC is not registered under the Trade Union Act.
Perhaps the most retrograde legislation from a freedom of association perspective is the Universities and University College Act that severely impacts upon academic freedom and the autonomy of institutions of higher learning. The all-embracing nature of the Act is such that if university students wish to organize a disco or a debate, they can only do so after securing the prior consent of their Vice-Chancellor. The raison d'rtre of universities is to promote learning; intellectual freedom should be encouraged, nurtured and cultivated. If one does not allow university students the freedom to think, reflect and express themselves, what hope is there for a thinking and reflecting intelligensia. The Act extends to the academic staff; they are prohibited from making any public statement that may be perceived as being "political" – the absurd direction in 1997 that academics should not give negative public statements on the incidence and nature of the "haze" as it might deter tourism shows the length to which this power has been exercised.
Article 10 (1) (b) of the Federal Constitution provides that "all citizens have the right to assemble peacefully and without arms". Any restriction on this fundamental liberty by an Act of Parliament must be "necessary or expedient in the interest of security…or public order." The Police Act and the Penal Code contain provisions that severely impact upon this most important civil liberty that distinguishes a truly democratic society from an authoritarian one. The right to assemble is an intrinsic part of the right to freedom of expression; an assembly attempts to collectively express an opinion. The extent to which such laws have been applied include forum in hotels, whether by lawyers to discuss the Lim Guan Eng case or FOMCA to discuss the water shortage or reformasi meetings of any kind or the APCET closed-door forum to discuss the East Timor question.
"Justice in Jeopardy" described the cumulative effect of an Executive controlled Parliament in Malaysia since Merdeka as follows:-
"…we think needlessly repressive legislation has impacted crushingly upon the agencies of the law – the judiciary, the legal profession and the police. The true spirit of justice under the law has been weakened. In such a climate authoritarian personalities flourish; libertarians are frustrated, practitioners are reduced to increasingly frenzied posturing; and the police wield extensive and largely unchecked powers that, in Lord Acton's famous words 'tend to corrupt'…".