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Sunday, 18 December 2016

Civil society demands that the government stops harassing and stigmatising NGOs ― Hakam & civil society NGOs

DECEMBER 15 ― 1. We, members of Civil society (represented by the organisations listed below) are greatly concerned by the recent developments pertaining to the arrest of Puan Maria Chin Abdullah under the Security Offences (Special Measures) Act 2012, the summoning of activists from Suaram, Lawyers for Liberty and Empower for investigations, the police raid and seizure of the offices of Bersih and Empower and the numerous news reports making allegations against various organisations in respect of the foreign funding, including the Malaysian Bar Council.
2. We are also perturbed by news reports of the Home Minister Datuk Seri Ahmad Zahid Hamidi announcing the formation of a task force to probe into NGO funding and accusing them of enticing revolutions to topple the present government and news reports of Deputy Home Minister Datuk Nur Jazlan’s reply to the numerous concerns regarding local human rights issues raised by Maina Kiai the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association in his recent visit to Malaysia.
3. The recent events and published news reports give the impression that the authorities are out to discredit and demonise human rights activists and civil society organisations who have voiced criticisms and dissent against the government.  
4. Of particular concern is the stigmatisation of the receipt of foreign funding by civil society organisations, stating that this is tantamount to “treason” and/or “interference of foreign bodies” which threatens the nation. Allegations that such funding are used to topple the government are preposterous. Funding of civil society activities in areas of education, advocacy, monitoring and campaigning for strengthening of our democratic process are legitimate activities.
5. Civil society in Malaysia who voice criticism of public affairs often face difficulties in raising funds locally, as donors (both individuals and body corporates) are fearful of repercussions. Statements discouraging support have been made by the authorities from time to time. Government funding is rarely available to NGOs that have openly voiced criticism of the government and its work.
6. Civil society has a vital part to play in democratic and developmental processes in Malaysia, alongside government agencies and business corporations.  The role of activists in promoting the common good has been duly recognised by the Court of Appeal recently. The existence of civil society and the work of activists should not be threatened by limitations and restrictions on funding.
7. Freedom of association is guaranteed under the Federal Constitution (See: Article 10). The freedom of association encompasses not only the right to form and join any associations but also to seek, receive and use resources ― human, material and financial ― from domestic, foreign, and international sources for activities of the associations (See: Article 13, Declaration of Human Rights Defenders adopted by the United Nations General Assembly, A/RES/53/1999).
8. We wish to state categorically that as members of civil society, which may from time to time voice our concerns about public affairs, we are not “traitors” to the nation. Dissenters ought not be treated as enemies of the state. For a true parliamentary democracy to exist, we must be free to voice our concerns.
9. As civil society groups which advocate for transparency and accountability, we remind the government that our accounts are made available through the filing of yearly returns.
10. We urge the government to respect the role that civil society plays in our country’s democracy and in nation building.  We also urge the government to stop the harassment of activists and NGOs through threats of arrests, raids and seizures. NGOs have the same rights as businesses and government to receive foreign funding, and should not be stigmatised for it.
This memorandum was submitted by (in alphabetical order):
1. Aliran
2. Amnesty International - Malaysia
3. Anak Muda Sarawak
4. Angkatan Belia Islam Malaysia (ABIM)
5. Angkatan Warga Aman Malaysia (Wargaaman)
6. Association of Women Lawyers
7. Malaysia Centre for Independent Journalism (CIJ)
8. Centre to Combat Corruption & Cronyism (C4)
9. Community Action Network (CAN)
10. EMPOWER
11. ENGAGE
12. Himpunan Hijau
13. IKRAM
14. Islamic Renaissance Front (IRF)
15. Jaringan Orang Asal SeMalaysia (JOAS)
16. Jaringan Rakyat Tertindas (JERIT)
17. Kesatuan Mahasiswa Malaysia (KMM)
18. Lawyers for Liberty (LFL)
19. LENSA
20. Malaysia Youth and Students Democratic Movement (DEMA)
21. Malaysian Indians Progressive Association (MIPAS)
22. Malaysian Indians Transformation Action Team (MITRA)
23. Malaysian Physicians for Social Responsibility
24. Malaysian Youth Care Association (PRIHATIN)
25. Movement for Change Sarawak (MoCS)
26. Oriental Hearts and Minds Study Institute (OHMSI)
27. Partners of Community Organisation (PACOS)
28. Penang Indepedent Schools Education Society
29. People Welfare and Rights Organisation (Power)
30. Permas
31. Persatuan Hak Asasi Manusia (HAKAM)
32. Persatuan Pengguna Klang
33. Persatuan Rapat Malaysia (RAPAT)
34. Persatuan Sahabat Wanita
35. Selangor Pusat Komas
36. Research for Social Advancement (REFSA)
37. Rise of Sarawak Efforts (ROSE)
38. Sisters in Islam
39. Suara Rakyat Malaysia (Suaram)
40. Tenaganita
41. Tindak Malaysia
42. Tobpinai Ningkokoton Koburuan Kampung (TONIBUNG)
43. University of Malaya Association of New Youth (UMANY)
44. Women’s Aid Organization
- See more at: http://www.themalaymailonline.com/what-you-think/article/civil-society-demands-that-the-government-stops-harassing-and-stigmatising#sthash.xuNdTj4s.dpuf

Sunday, 11 December 2016

What do Malay youth in KL low cost flats think about SDG and Malaysia?


By Rama Ramanathan (Proham Secretariat) 

When you ask youth, aged 15-25 years, from the Malay community, what they think of Malaysia, what answers do you expect? When you ask them what they don’t like? When you ask them what they would like to see changed?

Today I had the opportunity to listen to the responses of 5 girls and 6 boys to those questions.
The questions were posed to them after they had been introduced to the Sustainable Development Goals (SDG) of the United Nations. These are the goals which UN member states, including Malaysia, have decided to focus on until 2030.

It is a misnomer to say they were introduced to the goals, because the youth were not told any numerical goals, e.g. “reduce poverty to 0.1% by 2030.” It is more accurate to say they were introduced to a checklist of things which must be protected or enhanced to improve global well-being.

The session began with an icebreaker. The youth were made to stand in a circle, with hands outstretched. A facilitator bound all their hands together, running a ball of string around the wrists of one then doing the same to a person diametrically opposite and again to his or her neighbour, over and over.

When everyone had been bound, one person was asked to step backwards. The result was that the all who were bound in the circle were pulled towards that person.

The point was proven: what one person (or nation) does or what is done to one person (or nation) affects all the others.

In the next exercise the youth wrote, on strips of paper, what they felt the needs were in their community, which comprises about 1,600 households living in five blocks of flats. Their responses were collected for use later in the morning.

Next, the youth were introduced to the 17 items in the SDG checklist:

No electronic technology was used. An instructor used a bunting very like the picture above, but with the text in Malay. He took less than one minute to explain each item. The youth had little trouble grasping why each item was in the SDG checklist.

Their understanding was reinforced when the facilitators read out a selection of the needs they had earlier submitted in writing. Each of the needs was associated to an item in the SDG checklist by sticking its slip onto an item.

One memorable need was “I wish my shoes wouldn’t be stolen.” There was some discussion about which item this need belonged to. Did it belong to 16: Peace and Justice? Or to 10: Reduced Inequalities? Or to 1: No Poverty? They decided on “1.”

A second memorable need was the strong agreement amongst all the youth that the school system tells and directs pupils instead of seeking out and responding to their desires.

The exercise admirably demonstrated to everyone that the checklist, though generated by “big shots” from all over the world, was directly relevant to this community in Kuala Lumpur. The youth were impressed that the government of Malaysia has committed to pursue goals for each item in the checklist.

After the relevance of the list had been demonstrated and the commitment of the government had been announced, the next exercise was introduced. The youth were asked to answer the 3 questions posed at the beginning of this article.

The youth were in broad agreement that there are many good things in Malaysia. Poverty isn’t as bad as it is in other nations, the weather is good, the food is good and the music is good.

The used the word “government” often when they listed what they don’t like about Malaysia.
The cost of living has risen faster than incomes, as a result of which their parents struggle to make ends meet; public transport hasn’t been developed sufficiently, as a result of which people spend much time in traffic jams; there aren’t enough jobs, as a result of which there is much unemployment; the population density is too high.

There was little time to discuss what they’d most like to see improved, but one matter did emerge. They felt assessing pupils through field work rather than exams is an ill-conceived decision implemented by educators. They said it’s hard for their parents to fund their field work, because they already can’t make ends meet.

This was a vibrant sample of youths. They were quick to grasp concepts and eager to share their thoughts about how things are going both in their own community and in the nation in general.


This day generated proof that it is relatively easy to explain the sustainable development goals. It showed we can easily adopt a common, global framework for addressing needs collaboratively. The United Nations and Malaysia have chosen well in rolling out the SDG.

------------------------------------

The SDG awareness program among urban neighbourhood was held on Dec 11, 2016 (sun) at the PPR Seri Semarak flats at Air Panas, Kuala Lumpur


Friday, 9 December 2016

Johor Bahru Public Forum on The State of Human Rights in Malaysia Today

Rama Ramanathan (Proham Secretariat) speaking at the forum

The Johor Bar Committee invited Proham to speak at a public forum titled “The State of Human Rights in Malaysia,” on 8 December. Proham was represented by Rama Ramanathan (Proham Secretariat).

Other panelists were Tommy Thomas (eminent lawyer and author), YB Khalid Samad (Amanah MP for Shah Alam) and YB Rafizi Ramli (PKR MP for Pandan). The moderator was Datuk Yeo Yang Poh (President of the Malaysian Bar, 2005-2007).

In a presentation titled “The State of Demonstrations in Malaysia,” Rama built on the learnings from the Proham/KLSCAH post-Bersih 5 roundtable “Lessons in Citizen’s Mobilization for Institutional Democratic Reform in Malaysia" (19 Nov 2016).

Rama began by showing the difference between the police approach to assemblies in Kuala Lumpur and in London. He did this by reading extracts from Malaysia’s Public Assembly Act 2012 (PAA) and from guidance provided by London’s Metropolitan police to organisers of public assemblies.
Rama showed that the guidance provided by the Malaysian police amounts to “avoid demonstrations” or “if you must demonstrate, use a stadium,” while the guidance provided by the London police amounts to facilitation of assemblies.

Rama posed the question “In London, on the day of the assembly, what are the organizers responsible for?”

He said the London police accept responsibility, including during assemblies, for (1) protecting life and property, (2) preserving order, (3) preventing the commission of offences and (4) any duty or responsibility arising from common or statute law. He said Malaysians expect their police to accept the same responsibility. He then noted the decision of the Malaysian police to cordon themselves off from the Bersih 4 and 5 assemblies, and argued that by doing so the Malaysian police were derelict in their duty.

Rama also posed the question “In London, on the day of the assembly, what are the organizers responsible for?”

He said the London police provide explicit guidance, in a four page, 38 paragraph document which includes the following references to “stewards”:

1.    There should be enough stewards [1:50] to express the organisers’ wishes to all the participants.
2.    Stewards must be briefed so that they know the organisers’ intentions and directions.

3.    Stewards should be fitted, both physically and temperamentally, to carry out the organisers’ wishes and to ensure that the participants comply with them. It is advised that stewards should be over 18 years of age.

4.    Stewards should be easily identifiable so that participants and others know that they represent the organisers.

5.    Stewards should be in communication with the organisers throughout the event.
6.    Stewards must immediately inform police if any matter requires police attention.
7.    Stewards must not carry or have near them any weapon.

Rama added that, in KL, the police and government discourage the public from exercising the freedom of speech, assembly and association enshrined in Article 10 of the Federal Constitution.
Whereas, in London, the police and government facilitate the public exercise of these freedoms, to the extent of including in their guidance “If banners are to be used it is essential that they are designed with a hole to reduce the risk of danger when they are used in high winds.”

Rama urged the audience of about 150 persons to accept “Fact #1: In Malaysia, the police are at best reluctant facilitators of public assemblies.”

By similarly arguing from evidence, Rama urged the audience to accept that there are four other indisputable facts about the state of assemblies in Malaysia.

This is the list he provided:

Fact #1: In Malaysia, the police are at best reluctant facilitators of public assemblies.

Fact #2: On 19 November, the CPO of Kuala Lumpur allowed a counter assembly instead of exercising his right under section 18 of the PAA to order the counter assembly to be held at a different place or time.

Fact #3: The Malaysian police meted out extra-judicial punishment when they detained leaders of Bersih 5 on the eve of the assembly. By doing so the police massively increased the burden on the rally organisers to discharge their responsibilities under the PAA, and potentially threatened the safety of protesters.

Fact #4: The police wrongfully equated the peaceful yellows – with a track record of peaceful assembly vouched for by Suhakam and court inquiries – with the violent reds who had to be restrained by water cannons in KL in September 2015 and who had wreaked havoc in the 50 days of convoys prior to 19 November.

Fact #5: The police facilitated the red shirts, who assembled in the shadow of the Umno building in KL, were led by a well-known Umno leader, wore masks and proclaimed their only goal was to disrupt Bersih 5 protesters.

Tommy Thomas focused on 1MDB, which he said is clearly a case of wrongdoing, defence of wrongdoing and cover up of wrongdoing by the government of the day. He said the right to be ruled by upright persons is denied when the perpetrators of the offences committed by 1MDB remain unprosecuted.

Khalid Samad lamented that the Umno-led ruling coalition stresses the Islamic teachings on obedience to authority and ignores the equally Islamic teachings that oppressors must be resisted.

Rafizi Ramli asked those present to be more attentive to prosecutions under SOSMA (Security Offences (Special Measures) Act), POTA (Prevention of Terrorism Act) and POCA (Prevention of Crime Act). He said he knew of many cases of unrepresented persons, including youths, who have been ordered to be detained for years for offences such as downloading videos which promote groups such as the so-called Islamic State.

Rama Ramanathan, Datuk Yeo Yang Poh, Tommy Thomas, S Gunasegaran
(Chairman, Johor Bar Committee), YB Rafizi Ramli, YB Khalid Samad






Public Forum to Commemorate the 50th Anniversary of the Adoption of ICCPR and ICESCR by UNGA




Time:2:30 pm to 6:00 pm
Date:16 Dec 2016 (Friday)
Venue:Raja Aziz Addruse Auditorium, Bar Council, Second Floor, Straits Trading Building, Leboh Pasar Besar, 50050 Kuala Lumpur


Fifty years ago, on 16 Dec 1966, the United Nations General Assembly (“UNGA”) adopted two very important covenants: the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”).

On that day, the UNGA turned its attention to the world of men and women, along with the sum of those realities in the midst of which they live, declaring that men and women equally must enjoy their civil and political rights, as well as their economic, social and cultural rights, free from fear and want.  With the current political climate of our country and the world at large, these documents indeed remain salient to us today.

The Bar Council Human Rights Committee (“HRC”) therefore finds it especially crucial this year to examine with care and in depth the affirmation of rights made in both the ICCPR and the ICESCR, and to discuss beyond fair-sounding phrases particularly on the obligation of States to promote universal respect for human rights and freedoms.

The HRC is thus organising a public forum — with support from the British High Commission, Kuala Lumpur — to commemorate the golden anniversary of the ratification of both these covenants.


 
About the Speakers

Edmund Bon Tai Soon is Malaysia’s representative to the ASEAN Intergovernmental Commission on Human Rights (“AICHR”) for the 2016-2018 term
.
Cynthia Gabriel is a prominent activist and anti-corruption warrior.  She is the Founding Director of the Centre to Combat Corruption and Cronyism, otherwise known as “C4”.  She will address the issue of civil and political rights, and issues of governance and integrity, transparency and accountability
.
Datuk Denison Jayasooria is the Secretary-General of the Society for the Promotion of Human Rights (“PROHAM”).  He will address the issue of economic, social and cultural rights, and the Sustainable Development Goals.

The Deputy High Commissioner of the United Kingdom to Malaysia, Paul Rennie OBE, will deliver the opening remarks.

The forum will be moderated by Firdaus Husni, Co-Chairperson of the HRC.

University and university college students are especially encouraged to attend.  Tokens of appreciation will be awarded for the best and most interesting topical questions posed to the panellists during the question-and-answer session.

This forum is open to the public, and admission is free of charge.

To register for the public forum, please complete and submit the attached registration form by email to satha@malaysianbar.org.my; or by fax to 03-2031 6640.

Should you have any enquiries, kindly contact Satha Selvan, Senior Administrative Assistant (03-2050 2092; satha@malaysianbar.org.my) or Sumitha Shaanthinni Kishna, Assistant Director (03-2050 2090; sumitha@malaysianbar.org.my).

Thank you.

Andrew Khoo Chin Hock and Firdaus Husni 
Co-Chairpersons, Bar Council Human Rights Committee

Circular No 276/2016 : Dated 9 Dec 2016




Saturday, 26 November 2016

BERSIH 5: LESSONS IN CITIZEN’S MOBILIZATION FOR INSTITUTIONAL DEMOCRATIC REFORM IN MALAYSIA


BERSIH 5: LESSONS IN CITIZEN’S MOBILIZATION
FOR INSTITUTIONAL DEMOCRATIC REFORM IN MALAYSIA

PROHAM hosted a post Bersih5 discussion on Friday Nov 25, 2016 to draw lessons from the Nov 19, 2016 mass citizen’s movement for institutional reform. Prior to Bersih5 PROHAM on Nov 17, 2016 did also host a pre Bersih event discussion and had issued a statement of the findings entitled “Fostering a better Malaysia through peaceful citizen’s action”

The objective of the post Bersih5 event panel discussion was to draw lessons. The objective was to take a step back and reflect on the events and happening of Nov 19, 2016, draw some reflections and policy implications for citizen’s action. It is hoped that this exercise will further empower citizen’s action for institutional reform, good governance and enhance parliamentary democracy in Malaysian society.

This discussion among stakeholders is based on the premise of fundamental liberties as enshrined in the Federal Constitution (Article 10) and the Universal Declaration of Human Rights (Article 20).
The panel speakers were Datuk Kuthubul (PROHAM Chair), Ms Firdaus Husni,(Bar Council), Mr Rama Ramanthan (Bersih Representative) & Dr Khor Ying Hooi (University Malaya/ Proham volunteer). The panel was moderated by Datuk Dr Denison Jayasooria (Proham Secretary General).

Arising out of the presentations and discussions are ten key discussion pointers which is documented below for further study and deliberations:-

1          Bersih enlarged its outreach from urban to include the rural & global dimension.

It was noted that Bersih5 launched its biggest simultaneous nationwide roadshow called “The BERSIH 5 Convoy” which took place over seven weeks and converged to  Kuala Lumpur, Kuching and Kota Kinabalu for the rally on 19th November. The objective of the BERSIH 5 Convoy was to undertake a national conversation and awareness raising on BERSIH 5’s demands for institutional reforms and the severity of the 1MDB crisis. The Convoy was estimated to cover 246 cities, towns, and villages across Peninsular Malaysia, Sabah, and Sarawak. It was also noted that Bersih5 has a strong global dimension as events were held in 57 countries.

Locally in Malaysia, Bersih5 is stilled viewed as an urban concern and not really impacting rural people and voters. The urban concerns for good governances is contrasted with the rural and semi-rural concerns for socio-economic development. This could continue to be a major hurdle to reach the rural base and therefore Bersih must strive to address these concerns too.

2          Police role – Mixed citizen reactions: Professional but high handed  

It was also noted that ground level Police acted very professional in relating to the peaceful demonstrators both during the Bersih5 nationwide convoy as well as in their role on Nov 19, 2016. A number of stories were told of conversations with Policemen on the ground. However there was much criticism on high level Police in the way they handled Bersih5 and constant reference to Bersih5 as an illegal gathering, inability to distinguish peaceful protest movement and that of the counter Bersih5 movement which used threats, hate speech and intimidation.

The pre Bersih5 warnings, the massive road closures and barricades on the actual day of march can be constructed as preventing peaceful demonstrators from undertaking a peaceful march. While Police justified the barricades as a safety measure and preventing the yellow shirts from the red shirts, such action prevented peaceful march from the designated locations towards city centre.
It was also felt that the Police should have used Public Assembly Act (2012), Section 18 to ensure that the counter Bersih5 group hold their rally on another day rather than also be allowed on the same day and time. These actions were not in the spirit of fundamental liberties of the citizens’ right to peaceful assembly.

3          Police crackdown, raid & arrest.

The Police justification for pre Bersih raid of the office and confiscation of computers and equipments was on the grounds to facilitate further investigation. Doing this at the eve of the Bersih5 rally is viewed negatively as seeking to curtail and paralyse operations. Furthermore it was expressed that such actions by the authorities impact organisers negatively in managing the actual event peacefully.

It was felt the arrest of many politicians had no direct relevance to Bersih5, as the movement was primarily a civil society action. Such arrest were viewed as strategies to instil fear and give a psychological perception that a massive crack down could take place on Nov 19, 2016

4          Arrest of Ms Maria Chin under SOSMA and the link to CIA

It was strongly felt that the detention of the Bersih Chairperson under the SOSMA provisions (Security Offences-Special measures Act 2012) was totally unjustified. Ms Maria Chin and the Bersih team have consistently expounded a peaceful demonstration as citizen’s action for institutional reform. The accusation that she was part of a terrorist movement to undermine parliamentary democracy was felt to be unjustifiable and the use of SOMSA was an abuse by powers of the special provisions. It was also felt that the authorities had deviated from the promises made that this law will not be abused. Furthermore SOSMA clearly states in clause 4 (3) “No person shall be arrested and detained under this section solely for his political belief or political activity”.

The arrest of Maria has now prolonged citizen’s action with daily vigils and ongoing daily ‘sit- in’ by citizens groups calling to free Maria and abolish SOSMA campaign. There is also an online petition initiative by five regional and international CSOs in freeing Maria.

Some felt that the Habeas Corpus date by the courts should be sooner rather than later, however next Tuesday in court would be the focus of attention since the arrest of Maria

5          Receiving foreign funding for CSO activities

It was also expressed that receiving funding from any source is not unlawful. CSOs have been receiving grants for specific purposes from both local and foreign funders which were used for research, awareness campaigns, capacity building and socio-economic activities. Therefore a detained review of accounts and how funds have been utilised is necessary before any public statements made inferring wrong doing or implied funding for unlawful political activities. Such statements by authorities and government officials gives a misguided public information with negative impacts of the worthy objective of the movement.

6          Bersih 5 Security Team

The security team or the purple team of about 1,200 volunteers was commended for their dedication and hard work in playing a major role in crowd control as well as ensuring none of the Bersih5 demonstrators broke the barricades. They played an effective complementary role in marshalling the peaceful protestors and also keep an eye on potential ‘agent provocateurs’. On the whole, the Nov19, 2016 event shows that Malaysians are now ready for peaceful assemblies. It was noted that Police could play an effective role in training this voluntary group to ensure safety during peaceful rallies.

7          Size of the Bersih5 crowds

There are different estimates from 10,000 to 15,500 to 40,000. Some have indicated that the smaller size indicates a failure of Bersih5. However it was felt that the Police action had affected it especially the early warning including the prohibition of civil servants and university students from participating. The final meeting point location was a definite issue. The original location was Dataran Merdeka but due to the heavy blockades and road closure, the Bersih5 finally gathered at. KLCC location. It was however pointed out that compared to Bersih4, the Nov 19, 2016 event was very multi-racial. This is a very positive development.

There were comments by certain individuals that Bersih5 saw the mobilization of Chinese evangelical Christians to the streets. Church officials had issued statements that it was unfair to single out one religious groups as Malaysians of all religious communities participated as Malaysian citizens.

8          Politicians, political parties & Bersih5

The visible presence of opposition politicians at this and previous Bersih is a reality. Bersih confirmed that they are Apolitical and invite all politicians sharing their campaign goals to join them. Therefore opposition led leaders are open to participate as compared to government related parties.

A lasting memory and picture image of Bersih5 is Tun Dr Mahathir Mohammad. To see him in a yellow t-shirt and also sitting by the road is an unforgettable picture. The changing political landscape and the presence of key former UMNO leaders in Bersih5 is one major scene of Bersih5. Questions are raised over the impartiality of Bersih and the influence of certain political parties or their exploitation of the open space.

9          Electoral reform agenda

A question was raised on Bersih’s original objective of establishing a free & fair electoral system and if the campaign had deviated from its original objectives. It was noted the inter-related nature of the governance concerns based on the five Bersih5 demands. It was noted that an independent Election Commission including the appointments by an independent and impartial panel was of utmost importance. This is an ongoing reform agenda

10        Citizen’s action & rise of authoritarian state

Questions were raised over what have been achieved over the five Bersih street demonstrations, if it was an effective method and if other options should be the focus of future Besih actions. It was affirmed that peaceful assemblies are a legitimate civil action and a fundamental right. That the Police need to respect and facilitate this rather than place obstacles. Concerns were raised on the rise of state action in Malaysia in curtailing fundamental liberties in the pretext of public security and safety. 

In this context it was reiterated that citizen’s action has enlarged the space for citizen’s advocacy for good governance. It has also impacted and changed Police action over the five Bersih events from excessive use of force to road blocks and blockades in restricting citizen’s peaceful movements. Although it is not an ideal democratic environment nonetheless citizen’s action must push the envelope towards greater compliance to the Federal Constitution (article 10) and UDHR (article 20).

Issued on behalf of PROHAM by Datuk Dr Denison Jayasooria (PROHAM Secretary-General).

'
Nov 27, 2016

Thursday, 24 November 2016

SOSMA Must Not be Abused to Quell Dissent

By Steven Thiru,President, Malaysian Bar

The Malaysian Bar condemns the arrest and detention of Maria Chin Abdullah, the Chairperson of BERSIH 2.0, under Section 124C of the Penal Code — for the offence of attempting to commit activity detrimental to parliamentary democracy — because BERSIH 2.0 allegedly received funds from the Open Society Foundation (“OSF”).  The arrest was made, and she was detained, on 18 November 2016, which was the eve of the BERSIH 5 rally in Kuala Lumpur.
Subsequently, on 19 November 2016 Maria Chin Abdullah was detained under the Security Offences (Special Measures) Act 2012 (“SOSMA”), which allows for preventive detention of up to 28 days for “security offences”.  Section 3 of SOSMA defines “security offences” to include Part VI of the Penal Code, under which Section 124C falls.
It is startling that the authorities have invoked SOSMA against Maria Chin Abdullah in respect of the purported receipt of the OSF funds.  This is because on 12 November 2016 the Deputy Minister for Home Affairs I, Datuk Nur Jazlan Mohamed, had reportedly said that “OSF has been providing funds for the past 10 years and the government has been monitoring such activities but there are no concrete evidence that NGOs in the country are involved in activities that can disrupt the peace of the country by using the funds”, and that “the matter is still being investigated”.[1]
The Malaysian Bar notes that OSF is not an “unlawful society” under the Prevention of Crime Act 1959 or Societies Act 1966, or a “listed terrorist organisation” under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.

Moreover, it is rather incredible for the authorities to suspect that OSF funds were allegedly used by Maria Chin Abdullah to commit an offence under Section 124C of the Penal Code.  The offence of “activity detrimental to parliamentary democracy” is defined in Section 130A of the Penal Code as “an activity carried out by a person or a group of persons designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means” (emphasis added).  The definition of the offence is imprecise, but SOSMA has been represented by the Government as a law to deal with terrorism.[2]  It was therefore never intended to restrict or prohibit any form of peaceful and legitimate democratic activity.
It is also noteworthy that when Section 124B — for the main offence of activity detrimental to parliamentary democracy — was tabled in Parliament as an amendment to the Penal Code, the Government declared that it was not to inhibit political dissent or peaceful assembly.  Indeed, a Member of Parliament observed, “Kalau nak buat perhimpunan aman atau bersih pun, itu tidak detrimental to Parliamentary Democracy.”[3]  (“Even if [they] want to hold a peaceful assembly or BERSIH, that is not detrimental to parliamentary democracy.”)

Tan Sri Abdul Gani Patail — the Attorney General when SOSMA was passed in Parliament — himself has stated that SOSMA was “not intended to guillotine parliamentary democracy or suppress political freedom”.[4]  In this regard, Section 4(3) of SOSMA specifically carves out the defence of “political belief or political activity”, which the Government also guaranteed when the legislation was tabled in Parliament.[5]  Thus, no one is to be held liable “solely for his political belief or political activity”.

In light of the above, the allegations of an offence under Section 124C levelled against Maria Chin Abdullah appear to be baseless, and her detention under SOSMA cannot be justified.  The arrest and detention of Maria Chin Abdullah is widely perceived to have been intended to victimise and prevent her from leading the BERSIH 5 rally on the day following her arrest.  Any misuse of laws for ulterior or colourable purposes by the authorities cannot be condoned, as it would be tantamount to abuse of power.  

It has also been reported that Maria Chin Abdullah is being detained in an unknown location, in solitary confinement in a windowless cell measuring 15 feet by 8 feet, forced to sleep on a slab of wood on the cement floor, and with lights kept permanently on, which could lead to disorientation, sleep deprivation and, consequently, serious medical complications.  These are oppressive, inhumane and degrading conditions of detention.  It would appear that Maria Chin Abdullah is being subjected to the deplorable Internal Security Act 1960 (“ISA”)-type detention conditions, prior to the repeal of that law in 2012, which cannot be tolerated.  It would thus seem that there has been a flagrant breach of the Lock-Up Rules 1953, which provide for conditions of detention and apply even for detentions under SOSMA. 

The United Nations Security Council Resolution 2178 (2014), unanimously adopted on 24 September 2014, provides that “Member States must ensure that any measures taken to counter terrorism comply with all their obligations under international law, in particular international human rights law…, underscoring that respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures”.  In this regard, the conditions of detention faced by Maria Chin Abdullah appear to be in non-compliance with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), which stipulate, inter alia:


  •  “All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.”[6] 


  •  “In all places where prisoners are required to live or work: 
  • (a) The windows shall be large enough to enable the prisoners to read or work by natural light and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;”[7] and


  •  “Every prisoner shall, in accordance with local or national standards, be provided with a separate bed and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.”[8] 

  • Peaceful demands or activities by citizens are part and parcel of the process of parliamentary democracy.  It is the criminalisation of these acts that is detrimental to parliamentary democracy, and must be rejected.  The abuse of SOSMA, and criminal procedures for the purposes of alleged Penal Code offences, particularly in a case that does not concern “security offences”, is abhorrent and repugnant to the rule of law.

    The Malaysian Bar demands that Maria Chin Abdullah be released immediately and unconditionally. 



    22 November 2016


    [2] “Nazri: Only one ISA replacement law”, Free Malaysia Today, 11 April 2012.
    [3] Penyata Rasmi Parlimen Dewan Rakyat (Hansard), 17 April 2012, page 120, quoting the Member of Parliament for Rembau, Tuan Khairy Jamaluddin.
    [4] “Gani Patail: Sosma introduced to deal with terrorism”, The Star Online, 4 November 2015.
    [5] Penyata Rasmi Parlimen Dewan Rakyat (Hansard), 16 April 2012, page 6,  quoting the Prime Minister, Dato’ Sri Mohd Najib Tun Abdul Razak.
    [6] Rule 13, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) (“Mandela Rules”).
    [7] Rule 14(a), Mandela Rules.
    [8] Rule 21, Mandela Rules.



    Source: http://www.malaysianbar.org.my/press_statements/press_release_%7C_sosma_must_not_be_abused_to_quell_dissent.html



    Comment by Prof Shad Faruqi on Bersih5 & Use of SOSMA

    Bersih 5: 
    The Bersih 5 rally triggered a debate about citizens’ rights and police powers under the Peaceful Assembly Act 2012. The rally aroused grave fears of strife in the streets.
    Fortunately, the demonstrators acted with restraint. The Kuala Lumpur police force conducted itself with professionalism and kept the antagonists apart. Our system of democracy and our political maturity were tested. We scored well and the nation is better for it.
    However, the initial police description of the Bersih 5 rally as illegal has important implications for the right to assembly as enshrined in Article 10 and the Peaceful Assembly Act. Likewise, the attempt by some private groups to obtain an injunction against the rally organisers is constitutionally significant.
    Justice Nanthan Bala held that the police are legally bound by Section 18 of the Peaceful Assembly Act to redirect any counter-rallies if they know that clashes are imminent.
    He also ruled that no private citizen or groups should use the court to prevent any organisations from exercising their constitutional right to assemble. These are useful guidelines for the future.
    Sosma:
    Grave reservations have been raised about the use of the Security Offences (Special Measures) Act 2012 against Maria Chin Abdullah, the Bersih organiser who has been detained for 28 days. Her habeas corpus application to challenge the validity of her detention is pending in the courts.
    Source: http://www.thestar.com.my/opinion/columnists/reflecting-on-the-law/2016/11/24/testing-time-for-the-constitution-two-bills-and-several-recent-developments-are-giving-legal-experts/