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Saturday, 26 November 2016



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.


    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.
    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.

    Wednesday, 23 November 2016

    Free Maria Chin, Abolish SOSMA!

    Press Conference on Free Maria. Abolish SOSMA!

    24 November 2016 (Thursday)
    1st Floor Meeting Room. KL Selangor Chinese Assembly Hall

    We, the undersigned civil society organizations, strongly condemn the detention of the chairperson of Bersih 2.0, Maria Chin Abdullah, on 18 November 2016 for 28 days under the new Internal Security Act (ISA) – the draconian Security Offence (Special Measures) Act 2012 (SOSMA). 

    We reiterate that the right to freedom of peaceful assembly and freedom of expression of the people are guaranteed by the Federal Constitution. The Bersih 5 rally had been very peaceful and conducted without any untoward incidents despite repeated violence and provocation from the red shirts before the rally. The act of the police in arresting leaders of civil society movements and opposition parties before they could exercise their constitutional rights is not only mala-fide, but also a blatant abuse of powers in violation of the Federal Constitution. 

    We are further outraged with the use of the draconian SOSMA against Maria Chin Adullah. When SOSMA was legislated in 2012 to replace the infamous ISA which was abolished after widespread opposition from the people, the government assured the public that the new legislation that gave extensive powers to the police would only be used against terrorists and that “no person shall be arrested and detained for his or her political beliefs and activities.” Those members of parliament that ignored the criticism of the civil society and passed the law should now be held accountable. 

    Clearly, Maria Chin Abdullah is no terrorist. The use of SOSMA against Maria Chin Abdullah to stop her from leading the Bersih 5 rally, and previously against Khairuddin Abu Hassan and Matthias Chang to stop them from lodging complaints of corruption in 1MDB overseas, have proven that when such a powerful legislation is given to the government, it will not hesitate to use it to cover-up the abuse of powers and corruption in the government. 

    We reiterate our concerns that the prolonged 28 days of detention under the SOSMA with limited access to legal representation and family is a blatant violation of international human rights laws. The International Covenant on Civil and Political Rights provides that no one should be subject to arbitrary arrest and detention and that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released.

    The 28 days of prolonged detention without judicial oversights such as disallowing the detainees to have access to lawyers and family members will only facilitate the practice of torture, either mental or physical or both. 

    We condemn the use of a secret detention place by the police in detaining Maria Chin. The use of secret detention center is totally unacceptable in a civilized society. All detention centers must be made public and subject to public scrutiny to ensure that they are operated in accordance to the law and the rights of the detainees. 

    We are therefore extremely concerned with the mental and physical wellbeing of Maria Chin Abdullah who is being held in solitary confinement in a cell with no windows and where the lights are kept on for 24 hours. Such detention environment is inhumane and constitutes a form of torture under international human rights laws. 

    We demand the release of Maria Chin Abdullah immediately and unconditionally. 

    We demand that Maria Chin Abdullah have unlimited access to lawyers and her family members whilst she is still under detention

    We demand that the authorities preserve and ensure the mental and physical wellbeing of Maria Chin Abdullah while in detention and that she is accorded prompt medical treatment when required.

    We call on the National Human Rights Commission to visit Maria Chin Abdullah regularly at the secret detention place to ensure her rights and wellbeing.

    We call upon the Inspector General of Police to be more professional and transparent to uphold the law and demand the government to abolish the draconian SOSMA.

    1.      Akademi Belia
    2.      All Women’s Action Society (AWAM)
    3.      Anak Muda Sarawak (AMS)
    4.      Angkatan Warga Aman Malaysia (WargaAMAN)
    5.      Article 19, London, United Kingdom
    6.      Association of Women Lawyers (AWL) 
    7.      Baramkini
    8.      Bersih Sibu
    9.      Center for Orang Asli Concerns (COAC)
    10.  The Centre to Combat Corruption & Cronyism (C4)
    11.  Council of Churches of Malaysia (CCM)
    12.  ENGAGE
    13.  G25
    14.  Greenfriends Sabah
    15.  Institut Kajian Dasar (IKD)
    16.  Islamic Renaissance Front (IRF)
    17.  Japan Graduates Association,Malaysia (JAGAM)
    18.  Jaringan Orang Asal SeMalaysia (JOAS)
    19.  Jaringan Rakyat Tertindas (JERIT)
    20.  Jawatankuasa Bertindak Kuala Lumpur Tak Nak Insinerator
    21.  Jihad for Justice
    22.  Johor Yellow Flame (JYF)
    23.  Kuala Lumpur and Selangor Chinese Assembly Hall (KLSCAH)
    24.  Kuen Cheng Alumni Association 
    25.  Kumpulan Aktivis Mahasiswa Independen (KAMI) 
    26.  LLG Cultural Development Centre (LLG)
    27.  Malaysians Against Death Penalty and Torture MADPET
    28.  Malaysian Indians Progressive Association (MIPAS)
    29.  Malaysian Indians Transformation Action Team (MITRA)
    30.  Malaysian Network of Engaged Buddhists
    31.  Malaysian Physicians for Social Responsibility (MPSR)
    32.  Malaysia Youth & Students Democratic Movement (DEMA)
    33.  Malaysian Youth Care Association (PRIHATIN)
    34.  Mama Bersih 
    35.  Muslim Professionals Forum (MPF)
    36.  National Indian Rights Action Team (NIAT)
    37.  Negeri Sembilan Chinese Assembly Hall (NSCAH)
    38.  One Race – Human Race
    39.  Oriental Hearts and Mind Study Institute (OHMSI)
    40.  Partners of Community Organizations in Sabah (PACOS Trust)
    41.  Pemuda Sosialis 
    42.  People Welfare And Rights Organisation (POWER)
    43.  Perak Women for Women Society (PWW)
    44.  Persatuan Aliran Kesedaran Negara (Aliran)
    45.  Persatuan Alumni PBTUSM Bahagian Utara
    46.  Persatuan Alumni PBTUSM Kuala Lumpur dan Selangor 
    47.  Persatuan Bekas Siswazah Universiti dan Kolej di China, Malaysia(LiuHua)
    48.  Persatuan Kesedaran Komuniti Selangor (EMPOWER)
    49.  Persatuan Masyarakat Sel dan Wilayah Persekutuan (PERMAS)
    50.  Persatuan Meditasi Prajna Kuala Lumpur & Selangor 
    51.  Persatuan Penganut Buddha Bodhi Kuala Lumpur (PPBBKL)
    52.  Persatuan Rapat Malaysia (RAPAT)
    53.  Persatuan Sahabat Wanita, Selangor (PSWS)
    54.  Pertubuhan IKRAM Malaysia (IKRAM)
    55.  Pertubuhan Pembangunan Kebajikan Dan Persekitaran Positif Malaysia (SEED)
    56.  Projek Dialog
    57.  Pusat KOMAS
    58.  Raub Ban Cyanide Action Committee (BCAC)
    59.  Sabah Women's Action Resource Group (SAWO)
    60.  Sahabat Rakyat
    61.  Sarawak Access (SACCESS)
    62.  Save Open Space, Kota Kinabalu, Sabah
    63.  Saya Anak Bangsa Malaysia (SABM)
    64.  The Society for the Promotion of Human Rights (PROHAM)
    65.  Student Progressive Front USM
    66.  Student Progressive Front UUM
    67.  Sunflower Electoral Education Movement (SEED)
    68.  Sisters in Islam (SIS)
    69.  SUARAM Malaysia
    70.  Tenaganita
    71.  Teoh Beng Hock Trust for Democracy
    72.  Tindak Malaysia (TM)
    73.  USM Tionghua Language Society
    74.  We Are Malaysians
    75.  Women’s Aid Organisation (WAO)
    76.  Women’s Centre for Change (WCC)
    77.  Women Development Organisation of Malaysia PJ branch
    78.  Writer Alliance for Media Independence (WAMI)
    79.  Vajrayana Buddhist Council of Malaysia 
    80.  Young Buddhist Association of Malaysia (YBAM)