By DATUK KUTHUBUL ZAMAN BUKHARI (Chairman, PROHAM)
1.
The Federal Constitution of
Malaysia provides guarantees and safeguards of the various fundamental rights
and liberties of its citizens and people. These fundamental rights and
liberties cane be fund in Articles 5 to 13 of the Federal Constitution. Though
these rights are clearly enshrined in our Constitution, of late, there has been
a total breakdown in the rule of law and these rights have openly been trampled
by those in power.
2.
In a year where a major
corruption scandal came to light and the persecution of opposition leaders and
activists, 2015 saw a steep plummet in the Malaysian Government’s respect for
Human Rights. In an effort to hush up any criticisms, the powers that be have
intensified their crackdown on the freedoms of the Malaysian people.
3.
Article 8 (1) of the Federal
Constitution provides that all persons are equal before the law and are
entitled to its equal protection. However, are the laws applied equally to
everyone in Malaysia?? It comes to no surprise that the answer to that question
is a resounding “NO”. Recent events have thrown into sharp relief that Malaysia
is no different to George Orwell’s Animal Farm where, “All animals are equal but some
animals are more equal than others”. The recent exoneration of the
Prime Minister by the Attorney General in respect of the 3 investigation papers
submitted by the Malaysian Anti Corruption Commission is now a subject matter
of a judicial review application in the High Court led by the Malaysian Bar
Council.
4.
Steven Thiru, the current
president of the Malaysian Bar in a statement issued on the 15th of
March 2016 had this to say:-
“There
should be no usurpation of the judicial powers of the courts, as it is for the
courts — and not the Attorney General — to decide on the innocence or guilt of
a suspect in respect of any alleged crime. The independence of the MACC,
in discharging its statutory duties under the MACC Act 2009 as an investigative
and enforcement agency, must be protected, and any impediment to the
performance of these duties must be prevented. This matter involves
serious allegations of financial impropriety, including allegations of loss of
public funds, and has dire implications on the administration of justice. It
must therefore be resolved in a manner consistent with the principles of the
rule of law.”
5.
In the year 2015/2016, we were
also confronted with the passing of some offensive laws that violate the rule
of law and fundamental human rights.
i.
PREVENTION OF TERRORISM ACT
2015
This
act actually resurrects some of the provisions of the now repealed Internal
Security Act. It allows detention without trial for up to 2 years with a
possibility for further extension. Additionally, this act even precludes
Judicial Review.
In
fact, many, including myself do not see the necessity of this Act in order to
prevent terrorism. The then current laws in place sufficed to combat the threat
of terrorism. Part VI and VI(A) of the Penal Code has sufficient provisions to
tackle the threat of terrorism. Further, there are ample provisions in the
Security Offences (Special Measures) Act 2012 to combat the threats of
terrorism.
ii.
AMENDMENTS TO THE SEDITION ACT
1948
The
Prime Minister in 2012 announced that the outdated Sedition Act of 1948 passed
by our colonial masters will be repealed and to be replaced by national harmony
laws. However, to our dismay, the government not only turned back on its
promise to repeal the law, it amended the Sedition Act to further restrict the
freedom of thought, speech and expression:-
-
Sentences of fine have been
removed and replaced with imprisonment of a minimum of 3 years up to a maximum
of 20 years.
-
The amendment introduced a new
offence of aggravated sedition.
-
Judicial discretion in
sentencing has been removed.
iii.
THE NATIONAL SECURITY COUNCIL
ACT 2015
This
act was pushed through Parliament in haste without giving ample opportunity for
the Parliamentarians to grasp and understand its consequence. This statute
creates a new entity called the National Security Council and this entity is
given enormous powers with the right to declare “Emergency”. The council operates above the Cabinet and
there are no checks and balances. This appears to subvert the constitutional
role of the Yang Di Pertuan Agong in “Emergency” matters; where the fundamental
rights of individuals may be affected and/or worse, suspended in any area
declared as a Security under the Act.
We
are indeed fortunate that the Conference of Rulers has directed the government
to relook at this act. Indeed Proham
has urged the government to abandon this act.
6.
In May 2015, Malaysians were
shocked when the authorities discovered 139 grave sites and 28 death camps in
the State of Perlis near the border of Thailand; suspected to a result of Human
Trafficking. Human Trafficking is a tragedy and must be totally eliminated.
These grave sites and death camps are symbols of total violation of fundamental
human rights. As of today, we do not know whether the authorities have
completed their investigations as no culprits have been brought to justice.
7.
The year 2015/2016 also
witnessed a large number of persons charged under the Sedition Act 1948. As of
April 2015, in a press release by ICJ, 36 people including academicians,
lawyers, politicians, students and activists have been charged. Though the AG
has withdrawn charges against Prof Azmi Shahrom and Teresa Kok, PROHAM urges
the AG to drop all charges against those persons charged under the Sedition Act
and the Government to keep to their promise of repealing the act.
8.
After what seemed to be a
worrying trend of the Government’s elimination of peaceful dissenting voices,
the Human Rights Watch released a 143-page report, titled “Creating a Culture of Fear: The
Criminalization of Peaceful Expression in Malaysia,” which documents the government’s
use and abuse of a range of broad and vaguely worded laws to criminalize
peaceful expression, including debates on matters of public interest. The
report also spotlights a disturbing trend of abuse of the legal process,
including late night arrests and unjustifiable remands, and a pattern of
selective prosecution. I strongly recommend a reading of this report.
9.
Additionally, we have all
witnessed the rather unfortunate and indeed sad shutting down of the Malaysian
Insider. The editor of the Malaysian Insider, Jahabar Saadiq, was quoted in the
Guardian on 16/03/2016 as having said:-
“We
were becoming too free, as the government side of the news became the object of
derision and ridicule. Ministers and the police warned against distributing
news or cartoons that mocked the issue, saying it was seditious and unverified
news.
Press
freedom remains, but the threat of being accused of sedition and
possible jail time has imprisoned us within our minds as Malaysians. People are
shutting up and we have shut down.”
10.
PROHAM, in refusing to shut up
or shut down, urges the Government to stop blocking websites and arresting
people who voice out dissents, and instead to engage with the criticism and
come to proof that these websites and their dissenters are wrong.
11.
Phil Robertson, the Deputy
Director of the Asian Division of the Human Rights Watch was quoted to have
said:-
“The government’s intolerance of critical
speech and its ongoing campaign of arrests and prosecutions belie any claim
that Malaysia is a rights-respecting democracy,”
12.
Moving forward, the Malaysian
Government must improve in its records on Human Rights. The Government must
respect the fundamental rights enshrined in the Federal Constitution and not
make a mockery of the claim that Malaysia is a rights-respecting democracy.
Furthermore citizen’s movements for democracy and good governance must be
encouraged and nurtured. In addition instituting institutional and structural
reforms for democracy, human rights and sustainable development is our urgent
collective agenda.
Thank
you.
Reflections shared at the PROHAM AGM (March 18, 2016)
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