PAC: Discrepancies & inconsistencies, Proham - Calls for withdrawal of bill from Parliament

Proham identifies discrepancies & inconsistencies between what is verbal said and what is written in the proposed amendments to the Prevention of Crime Act (PCA) and calls on the Federal Government to withdraw the bill from Parliament for further consultation & redrafting

Proham hosted a discussion on the proposed amendments to the PCA on Sept 30, 2013. The review was undertaken by Datuk Kuthbul Zaman Bukhari who led the discussion –paragraph by paragraph.

We identified a number of major concerns and acknowledge that this proposed piece of legislation is a clear backward step away from human rights compliance. We are of the opinion that this is a major assault on human rights since Dato Seri Najib Tun Razak took office as Prime Minister. We also note that this is inconsistent with the promises he made when he took office as the Prime Minister and in the promises for democratic reform made during GE 13.

We also note that there are major discrepancies and inconsistences between the verbal statements and assurance made by the Prime Minister, Home Affairs Minister and other ministers and the actual text of the proposed amendments to the PCA. We are told verbally that this new legislation is not a return of the ISA, that this is focused only on criminal-violent gangs and that the decisions will be made by a Judge

Scope of the proposed legislation widened

However in reading the proposed legislation one is shocked by the blatant disregard to human rights and widening the scope of the proposed legislation. The proposed bill before Parliament which seeks to amend the PCA (1959) has a new preamble which enlargers the scope of the legislation from the original which is a specifically focused only on the “control of criminals, members of secret societies and other undesirable persons”. The new preamble widens this to add “…to cause a substantial number of citizens to fear, organised violence against persons or property”

Pursuant to Article 149 of the Federal Constitution

What is even more of major concern is that this proposed PCA is now being legislated “…in pursuant to Article 149 of the Federal Constitution”. The explanatory statement in point 3 states clearly “in order to allow the introduction of detention without criminal charge or trial as previously provided in the repealed Emergency (Public Order and Prevention of Crime) Ordinance 1969 …and the Internal Security Act 1960 (Act 82), Act 297 is to be changed to a law made pursuant to Article 149 of the Federal Constitution”. As this proposed bill is made in pursuant of Article 149, the provisions therein are inconsistent with all the basic and fundamental human rights guaranteed in the Federal Constitution.

It must be noted that the original PCA (1959) which the Police Commission did not call for its repeal when it did the EO, is just an act of parliament which focuses on crime control, with some consistency to fundamental liberties and with judicial review.

No Judicial Review

Proham is also concerned that the proposed bill removes judicial review as per the introduction of a new section 15 A which states “there shall be no judicial review in any court”. Further the new section 7B provides for too many options for who can be the chairman of the Prevention of Crime Board. It does not just qualify the chairman as a current siting judge but indicates that the chairman could be appointed from a range of options namely “… who shall be or have been or be qualified to be, a judge”. The options are too wide and there is a major difference if the chairman is a current sitting judge. There are no qualifications of the two other members and this is not good.

Detention without trial

Proham is concern that the proposed legislation allows for indefinite period of detention in the new part IV A, 19A (1) “… for a period not exceeding two years… for a further period not exceeding two years at a time…”

Access to Legal Counsel & protection denied

Proham is also concerned that legal access to counsel is denied as the provisions by the amendments of section 9 (d) a new (5) also in the new section 9A (2).

Proham is concern with new section 9A (2) that there is no review of witness statements in order to check the reliability or cross examination of any person giving evidence on the case as this can be easily abused.

Proham is concern over the double jeopardy issues as per the new section 7c “… two or more serious offences, whether or not he is convicted thereof…”

Proham input to Home Ministry Neglected

Proham participated in two dialogues with the Home Affairs Ministry (August 24 & 28, 2013) on matters pertaining to serious crime especially gangs and violence. In both the gathering, Proham highlighted the findings and recommendations of the Police Commission Report (2005) to strengthen investigative Police and use the Prevention of Crime Act (1959).

We affirmed that detention without trial, removing judicial review and denial of access to legal counsel is not the most effective way of crime prevention. We noted that the Police Commission report documents major abuses of power when human rights is side-lined

Malaysia’s position compromised for UPR Review at the UN

These proposed amendments to PCA and the curtailment of fundamental liberties will adversely affect Malaysian’s standing at Universal Periodical Review process at the UN Human Rights Council during the (17^th session) on Oct 24, 2013 from 2.30pm to 6pm in Geneva. (http://www.ohchr.org/EN/HRBodies/UPR/Pages/MYSession17.aspx)

At the last UPR review process held on Feb 11, 2009 Malaysia gave a number of assurances to the global community that it will strengthen human rights compliance in Malaysia. Furthermore Malaysia is currently a member of the Human Rights Council and the proposed PCA amendments are inconsistent with Malaysia’s global position as a promoter of human rights and moderation.

Proham Recommendations on PCA

Therefore, Proham calls of the Federal Government :-

Firstly, to withdraw the current proposed amendments to the PCA

Secondly, to further engage with stakeholders like Suhakam and Bar Council

Thirdly, to propose new amendments which is closer to the original PCA:-

·         Keep the PCA specific for the “control of criminals, members of secret societies”

·         Enlarging its coverage to the whole of Malaysia,

·         Introduce electronic monitoring,

·         Remove the role of the Minister and replace it with the Prevention of Crime Board for purposes of registration for police supervision and electronic monitoring.

Fourthly, Proham is not supportive of Federal Government reintroducing detention without trial nor restricting judicial review or denying suspects access to legal counsel.

Fifthly, Proham really hopes that the Federal Government will empower and enable the Police to undertake their work of crime control in compliance with human rights standards and undertake world class policing in modern-democratic Malaysia.

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Issued on behalf of Proham by Datuk Kuthbul Zaman Bukhari (Proham Exco) and Dr Denison Jayasooria (Proham Secretary-General)

Oct 1, 2013

PROHAM DISCUSSION ON AMENDMENTS TO THE PREVENTION OF CRIME ACT

Date:               Sept 30, 2013 (Mon)

Time:              8 to 10pm

Venue :          Dignity International meeting room –

A-2-7 Pusat Perdagangan Seksyen 8

Jalan Sg Jernih 8/1, 46050 Petaling Jaya

The Federal government has introduced major changes to the PCA which has tremendous implications for human rights. Let us review the changes and take a position in the interest of human rights being mindful that we want to effectively address serious crime in Malaysian society

PROGRAM

Word of Welcome

Review of PCA: New Amendments & implications for Human Rights

By Datuk Kuthbul Zaman Bukhari (Proham Exco)

 

Open Discussion & Comments

Concluding Comments

Discussion Moderator by Datuk Dr Denison Jayasooria (Proham Secretary-General)

For participation - please register sms 019 381 0914 or email denisonproham@gmail.com

BRIEF COMMENTARY ON THE AMENDMENTS TO THE PREVENTION OF CRIME ACT 1959

By Datuk Kuthubul Zaman Bukhari (Proham Exco)

Section 3 – New Preamble

The principal act which provides a preamble for effectual prevention of crime and control of criminals, members of secret society and other undesirable persons has now been amended to provide for the introduction of detention without trial as previously provided in the repealed Emergency Ordinance 1969 and the repealed Internal Security Act 1969. This is by virtue of inserting Article 149.
Article 149 of the Federal Constitution Legislation against subversion, action prejudicial to public order, etc. If an Act of Parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation...any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of Parliament...

The Explanatory Statement to the Amendments also specifically mentions the introduction of detention without trial as previously provided in the repealed EO and ISA.

Section 4

This section amends the principal act by substituting ‘Peninsular Malaysia only’ to ‘throughout Malaysia’. As the principal act was passed in 1959 when Sabah and Sarawak were not part of Malaysia, it is not applicable to both these states. Hence, this amendment is a positive development and should be supported.

Section 5

This amendment introduces the definition of the Prevention of Crime Board which is established under Section 7B. The Prevention of Crime Board takes over some of the role of the Minister.

Section 6

Previously, only the magistrate has jurisdiction and now apart from the magistrate, the Sessions Court Judge also has a role to play. This section also introduces the provision of Section 117 of the CPC. Hence, the person detained initially is subjected to the remand proceedings. This section also introduces Section 28A of the CPC which gives rights to the detained to communicate with his relative and/or counsel upon arrest only.

Section 7

This section totally deletes Section 5 of the principal act. Under the deleted Section 5, any delay in the proceedings entitled the detained person to be released. This right has been removed.

Section 9

This amendment introduces tagging the person with an electronic monitoring device.

Section 10

A new Section 7A is introduced which provides for special procedures relating to electronic monitoring device. The Public Prosecutor has the right to apply to the Sessions Court Judge for an Order to tag the person with the electronic monitoring device. A breach of this provision will cause the person to be sentenced to an imprisonment term not exceeding 3 years.

Section 11

Section 11 introduces new Section 7B and new Section 7C.

Section 11 – Introduction of Section 7B

Section 7B provides for establishment of a Prevention of Crime Board. The Prevention of Crime Board consists of a Chairman who is a judge of the Federal Court/ Court of Appeal/High Court and two other members. They shall hold office not exceeding two years and are eligible for reappointment for another term.

Section 11 – Introduction of Section 7C Section 7C provides the Powers of the Board. The Board has right to issue a Detention Order or a Supervision Order. In relation to Detention Order, it has powers to order detention despite non-conviction.

Section 12

This section provides for substituting the word ‘Minister’ in Section 9 of the principal act to ‘the Board’ whereby the Board takes over the role of the Minister. A new subsection is introduced whereby a person detained or a witness in an inquiry cannot be represented by an advocate or solicitor. This provision is repugnant to the Rule of Law and removes the basic human right namely the right of the person to a counsel of his choice.

Section 13

This section introduces a new Section 9A whereby the inquiry officer has access to other detainees or prisoners to obtain evidence against the person detained. During this inquiry with other detainees and prisoners, the person subject to the inquiry or his solicitor is not allowed to be present.

Section 14

This section amends Section 10 of the principal act to give power to the Board to release the detained person if the inquiry officer is satisfied that there are no sufficient grounds for believing that he is a member of a registrable category and only upon receiving such a report from the inquiry officer.

Section 19

This section introduces a new Section 15A which provides that there shall be no judicial review of the finding or decision of the Board except in cases of non-compliance with procedure. This is a removal of a basic right – access to justice and this provision is similar to the repealed ISA.

Section 20

This section amends Section 16 to enhance term of imprisonment from 1 year to 5 years if a registered person consorts with another registered person.

Section 23

This section provides a new Part IVA which creates a new Section 19A, Section 19B, Section 19C and Section 19D

Section 23 – Introduction of Section

19A

Section 19A is in respect of Detention Orders whereby the Board can issue a Detention Order for a period not exceeding 2 years which can be renewed for another 2 years

Section 23 – Introduction of Section

19B

Section 19B touches on validity of Detention Orders and the procedure on the serving of the order.

Section 23 – Introduction of Section

19C

Section 19C provides for the suspension of Detention Orders. It gives power to suspend the order on condition that the person enters into a bond and imposed restrictions and conditions. Non-compliance of the restrictions and conditions gives the Board the power to revoke the suspension.

Section 23 – Introduction of Section

19D

Section 19D is in respect of serving imprisonment term. With these amendments, the Prevention of Crime Act 1959 has now metamorphosed to a draconian piece of legislation which has removed all the basic and fundamental rights provided under the Federal Constitution.

Proham opposes the PCA amendments and calls on the Federal government to uphold Human Rights

Proham does not support any move by the Federal Government to re- introduce detention without trial and restrict judicial review. Such a move takes Malaysia backward and is a violation to Universal Declaration of Human Rights.

Proham is also concerned with some of the provisions in the Amendment Bill before Parliament in particular sections 7(c) where detention can be made despite no convictions in a court of law, section 12(d) where access to a legal counsel is denied and also section 19 where there is no judicial review except on procedural matter. These provisions are against basic fundamental human rights.

Proham like to remind Malaysians of the Recommendations of "the Royal Commission to enhance the Operation and Management of the Royal Malaysia Police"  concerning 10 strategic thrusts to make our Police Force a world class.

Apart from providing better police premises and housing, upgrading equipment and logistics. enhance human resources management, improve the establishment, remuneration and scheme of services the Commission also recommended compliance with prescribed laws and human rights obligations as well as ENHANCE INVESTIGATIVE POLICING.

 On enhancing investigative policing the Commission made 28 recommendations. These includes improving supervision and monitoring crimes, proactive investigations, standard of investigation, improve training, greater use of scientific and technical aids in investigation AND to establish multi-disciplinary and multi-agency investigation team.

The Commissions view is that the Police role is also to protect the human rights of individual whilst maintaining law and order.

Therefore there must be a balance in the character of policing from one that is too easily persuaded to seek recourse in detention without trial at the  expense of the rights of the suspect.

Proham had a round table discussion on these issues on 25th July in the University of Malaya and the consensus view is that the police needs support, encouragement and  appreciation in undertaking difficult tasks in crime prevention. A critical view does not mean disrespect or disregard of the Police Force.

We also noted that crime in Malaysia is at a serious level in particular organised crime.

Hence those advocating a position against detention without trial are not pro criminals nor soft on crime but on the contrary we also feel that we must be tough on crime and the best way is bringing them to courts and having open trial.

We recommended that the Prevention of Crime Act and other Acts be used instead of new detention without trial laws be introduced.

We also recommended to amend The Crime Prevention Act 1959 to be amended to include Sabah and Sarawak as the Act is only enforceable in Peninsula Malaysia and to include organised crimes and others.

But our recommendation is not to the extend of bringing in detention without trial. We believe that there are better methods of addressing serious crime and these includes educating the young so as not to allow them to be recruited into gangs, the root cause must be looked into and must be addressed as this involves socio economic issues namely urban poverty, lack of adequate affordable housing, providing equal opportunities in education and employment.

There must also be a close partnership between PDRM and civil society, grass roots communities and private sector.

Issued on behalf of Proham by Datuk Kuthbul Zaman Bukhari  and Datuk Dr Denison Jayasooria
Sept 29,2013

Proham Discussion on Amendments to the Prevention of Crime Act

INVITATION

The Federal government has introduced major changes to the PCA which has tremendous implications for human rights. Let us take time to review the proposals and take a position in the interest of human rights being mindful that we want to effectively address serious crime in Malaysian society.

Datuk Kuthbul Zaman Bukhari (Proham exco) will provide a review of the proposed amendments from a human rights perspective. 

The discussion will be moderated by Proham secretary general, Datuk Dr Denison Jayasooria

Date:        Sept 30, 2013 (mon)

Time:        8 to 10.00 pm

Venue :     Dignity International Meeting room - 

                A-2-7 Pusat Perdagangan Seksyen 8 Jalan Sg Jernih 8/1, 

                46050 Petaling Jaya Selangor,Malaysia

                Tel/Fax  : +603 7931 0741

You are welcomed to participate. Please register by email: denisonproham@gmail.com 

An opportunity for you to share you views and participate in public policy discussion.

 

Proham Calls on KDN & AG to review its action against KOMAS Human Rights Defenders

Proham calls on the Ministry of Home Affairs and the Attorney-General Chambers to review its position on Komas staff on the screening of the documentary “No Fire Zone, the Killing Fields of Sri Lanka” on July 3, 2013.

Proham is of the opinion that KDN is being misled by the Sri Lanka embassy representatives in Malaysia.

This investigatory documentary which was produced by an award-winning film maker, Callum Macrae was screened in March 2013 at the 22^nd session of the United Nations Human Rights Council in Geneva. Furthermore it was also screened at the committee room in the Australian Parliament on June 24, 2013. It is a well-researched documentary  

The Malaysian officials must be reminded that on March 21, 2013 the UN Human Rights Council took a vote calling the Sri Lanka government to conduct an independent and credible investigation into allegations of violations of international human rights.  25 countries supported the resolution, 13 were against and 8 absented including Malaysia.

Earlier on March 31, 2011,  in the report of the “UN Secretary General Panel of Experts on accountability in Sri Lanka”, indicated that “the Panel found credible allegations, which if proven indicates that a wide range of serious violations of international humanitarian law and international human rights law as committed both by the Government of Sri Lanka and the LTTE”

Furthermore the theme of Callum Macrae documentary is consistent with the 2011 Jon Snow’s Channel 4 documentary entitled “Sri Lanka killing fields”

Therefore, Proham views this action by the Malaysian Government of charging the Komas staff as restricting the democratic space for reasonable public discussion a matter of great international concern and which has already secured the support of a majority of the Human Rights Council members which  the Sri Lanka government  is not complying with. 

The action by the Malaysian authorities seems irreverent as these documentaries, materials and discussions are now available on the social media and you-tube. The initiative by the Komas team is consistent with creating public awareness on international human rights violations and therefore a legitimate human rights activity, a theme that the Human Rights Council has openly discussed, decided upon and is well documented on its official website -
(http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=13167&LangID=E)

The Home Affairs Ministry must review its position as it is in danger of taking a position contrary to Malaysia’s abstinence during the Geneva Human Rights Council meeting. It might also be found supporting a country which in the eyes of the Human Rights Commissioner and a majority of the Human Rights Council members might have committed major human rights violations on ordinary Sri Lankan citizens of Tamil ethnic origin.

Proham is of the view that the Home Ministry's   stand on Komas and the Sri Lankan ethnic conflicts   will   cause more   serious  domestic and especially  international  doubts  on Malaysia's claim to be  moderate  country  that is supportive  of  Human Rights.

Released on behalf of Proham by Datuk Dr Denison Jayasooria (Proham Secretary General), Datuk Kuthbul Zaman Bukhari (Proham Exco) and Tan Sri Ramon Navaratnam (Proham member)

Sept 19, 2013

FIVE WISHES FROM PROHAM ON MALAYSIA DAY 2013

Proham Press Release

The Panel of Speakers (Denison, Jacqueline, Simon, Hamdan & Suzalie)

“Malaysia 50 years since formation” was the theme of a panel discussion held on Saturday Sept 14, 2013 at University Malaysia Sabah (UMS). This discussion was hosted by Proham in partnership with the International Relations Program and the Kadazan-Dusun Chair. About 50 people participated and a majority of them were students from the UMS International relations program.

The panel comprised of four speakers namely Tan Sri Simon Sipaun (Proham Chairman), Prof Dr Jacqueline Pugh-Kitingan (Kadazan- Dusun Chair), Mr Suzalie Mohamad (Head of the International relations program and Prof Dato Dr Hj Mohd Hamdan Hj Adnam, (Dean of the School of Social Science, UMS and also deputy chair of Proham). The panel was moderated by Datuk Dr Denison Jayasooria (Secretary-General, Proham & Fellow, Institute of Ethnic Studies, UKM).

Tan Sri Simon Sipaun provided a comprehensive reflection of the various issues over the past 50 years pertaining to inclusive development, nation building and human rights. He emphasized that no nation which builds its self on race based policies would survive over time and therefore emphasized the need for inclusive development policies irrespective of race for the common good based on principles of good governance. 

Prof Jacqueline focused attention on the issues related to illegal immigrants especially those who are stateless over two to three generations. In addition customary land rights and ownership requires speedy resolution. These issues impact tremendous the indigenous people of Sabah.

In addition Prof Jacqueline also highlighted the importance of mother tongue education in the formative years and the need to promote sub ethnic languages of Sabah as part of the community rights. This needs to be fostered along with the national language, Bahasa Melayu and English.

Mr Suzalie highlighted the need to be sensitive to religious and cultural feelings of others especially in adopting a moderate position. He recognized that the Happiness Index is a useful indicator to view ethnic relations over the past 50 years which has revealed process among all the various communities. He noted that compliance or non compliance to human rights standards have implications for international relations.

Prof Hamdan challenged the notion that some things were too sensitive to be discussed and called for greater openness in discussions without labeling any one as pro administration or anti. Open reviews and discussions are an important dimension of democratic freedoms. He noted that in the past 50 years the states have developed together, however the states of both Sabah and Sarawak which are rich in natural resources are but poor states in reality

The participants including lecturers and students raised some interesting comments and questions. There were thoughts pertaining to understanding and interpretation of history especially in the formation of Malaysia, the expectation then and fulfillments now over the past 50 years.

In the context of the 50th Malaysia Day, Proham has five wishes:-

Wish One: For Federal Government to formulate Inclusive socio-economic development policies, programmes and delivery institutions that are based on meeting human needs irrespective of ethnic, gender, geographical or religious differences and which is firmly rooted in human rights. This will ensure that the needy within all the communities will benefit from the initiatives and this will also prevent abuses and leakages.

Wish Two, For Federal Government to ratify all the core UN human rights conventions such as Convention on economic, social and cultural rights; Convention on civil and political rights; Convention of the elimination of all forms of discrimination & the Convention against Torture. This institutional committed to global and universal benchmarks are essential for Malaysia as we move into our next 50 years journey.

Wish Three, For the Federal Government to take specific steps to strengthen the independence of Suhakam and by ensuring greater public sector accountability and compliance to human rights by amending the Suhakam Act to make it mandatory for Parliament to debate its Annual Report and other inquiry reports.

Wish Four, For the Federal Government to accept the Suhakam findings on the Land Rights of Indigenous Peoples and take the appropriate steps in implementing the recommendations. Restudying and reviewing the findings of an independent commission of inquiry which is mandated an Act of parliament is unnecessary and could lead to undermining the findings of an independent panel.

The Indigenous People of Sabah, Sarawak and the Orang Asli’s participated in large numbers at the Suhakam’s National Inquiry. This issue of land ownership is a major area of concern and therefore must be treated with a great sense of urgency especially the establishment of an Indigenous Land Tribunal or Commission which is empowered to decide on these complaints and issues, including settlement or redress related to a case”

Wish five, For the Federal Government to transform Biro Tata Negara of the Prime Minister’s Department into a department which promotes inclusive understanding of Malaysian history and strengthen nation building from a clear framework of a diverse ethnic, religious, socio-economic Malaysia taking all the different segments of Malaysian society including undergirded by human rights and constitutional balance.

Released on behalf of Proham by Tan Sri Simon Sipaun (Proham Chairman), Prof Dato Hamdan Adnan (Deputy Chairman) & Datuk Dr Denison Jayasooria (Proham Secretary-General)

Kota Kinabalu, Sept 15, 2013

MALAYSIA AT 50 : INCLUSIVE DEVELOPMENT, NATION BUILDING AND HUMAN RIGHTS By Tan Sri Simon Sipaun (Proham Chairman)

Children of sea bajau row their boat at a village on the island of Borneo, 
not far from the town of Semporna in the Malaysian state of Sabah. 
The Malaysian Insider pic by Zainal Abd Halimion

In two days time on 16^th September, 2013 Malaysia will turn 50 years old. For a country, 50 years of age is very young, although it is old for a human being. It does make me feel my age to realize that I am 25 years older than Malaysia. I have reached the age described by George Burns as the time ‘where everything hurts, what does not hurt does not work.’ The reality is ‘today is the oldest we have ever been, yet the youngest we will ever be.’ 

The theme of this RTD is ‘Malaysia 50 years since formation: inclusive development, nation building and human rights.’ Indeed it is a very wide subject. It is 3 in 1. The 3 are closely inter-related.

Recognising Malaysia Day

In 2007, I used to see billboards at the Kota Kinabalu International Airport with the slogan ‘celebrating 50 years of nationhood’ written on them. Of course the truth is in 2007, Malaysia was only 44 years old. This is a classic case in which history is the distortion of facts by people in power. I used to point this out at the slightest opportunity in the past but it felt like it was just a voice in the wilderness. I had the impression that the federal government was trying to make the people, especially Malaysians living in Sabah, believe that the formation of Malaysia was on 31^st August, 1957. 

This probably explains the fact that it took the federal government 46 long years just to accept and acknowledge 16^th September as Malaysia Day. For 46 years 16^th September passed by as just like any other day although in Sabah it was a public holiday to mark the birthday of the TYT. The focus of national attention was 31^st August, the Independence Day of Malaya.

Last year, 2012, was only the third time in 49 years that Malaysia Day was being observed. Following it, some reporters asked me if I was satisfied. My response was, it was 46 years too late, but under the circumstances it was better late than never. I believe this is the wrong way forward, not in line with the spirit and intention of inclusive development, nation building and human rights.

Recently I received an e-mail inviting me to purchase a T-shirt to make people aware that Malaysia Day which falls on 16^th September is in fact ‘Occupation Day.’ Inscribed on the T-shirt are slogans stating ‘oil and gas stolen, native rights trampled, civil service Malaynized, 20-points violated, Labuan taken over, cabotage policy and projek ic.’ This is an indication of how some Sabahans feel about Malaysia today. It is one of disappointment. It is not the Malaysia they expected 50 years later.

Inclusive Development & Malaysia Day

Tan Sri Simon speaking. In panel - Prof Jacqueline, Datuk Denison, Prof Hamdan & Mr Suzalie

Inclusiveness implies the treatment of every citizen equally and without exception. It is the right way to move forward. It is even more relevant to a country like Malaysia because it has many potentially divisive factors including geography, race, religion, language, history, tradition, culture and so on. Malaysia is a plural society not homogenous. Inclusive development makes the citizens feel that the government cares for them.

However, the question is - do the citizens feel that the government of the day really cares for them? One good indicator is the result of the 13^th general elections held on 5^th May this year (2013). The combined votes who wanted a change of government amounted to 5.82 million compared with 5.24 million who preferred the status quo. Under the present electoral boundaries the 5.24 million who voted for the government were rewarded with 133 parliamentary seats whereas the 5.82 million who voted for change were rewarded with only 89 parliamentary seats. Thus, a  government representing the minority was formed. A democratic system of government is usually associated with a government representing the majority.  

I notice that inclusive development is being talked about and indeed intended, but what is being practised is anything but inclusiveness. For example, the Orang Asli in Semenanjung are subjected to a system akin to the apartheid system of South Africa, namely separate development. Why do we have a separate law to control the community? There is a separate department to control the Orang Asli. But the department has never been headed, managed and administered by the Orang Asli themselves. The Orang Asli Act has been in existence since 1954 meaning it is 59 years old this year (2013).

But look at the sad and pathetic state of affairs of the Orang Asli today! If the law was intended to benefit the Orang Asli, it has not achieved the desired objectives. The law should be repealed and the federal constitution amended to place the Orang Asli in the same category as the Malays. The Orang Asli are more deserving of the so called affirmative action policies meant for the Malays. In the name of inclusiveness the Orang Asli should be represented in government. 

However their representative must be elected by the Orang Asli themselves and not appointed by the government. The government should also seriously consider Suhakam’s recommendations contained in its national land inquiry report.

Nation Building & Malaysia Day

Inclusive development represents a very important component in the nation building process. Let me make some suggestions in respect of nation building.

The process of unifying and integrating should be based on justice, equal rights and respect. Article 1 of the Universal Declaration of Human Rights (UDHR) provides that all humans are born free and equal in dignity and right.  

No nation which embraced race-based politics and one community claiming superiority over others survived. 

Nazi Germany and Apartheid South Africa are cases in mind. The time to discard politics based on race and religion is long overdue. We should move forward as Malaysians. Let us focus on things that bind us as human beings and Malaysians rather than on what divides us. For example, there should be only one box in all government forms and not 1 for Malays, 1 for Chinese, 1 for Indians and 1 for others.

Corruption which is very costly should be eliminated or at least minimized for a start. The commissioners in MACC should be independent commissioners similar to Suhakam and not civil servants. There should be a separate independent prosecutorial agency to handle corruption cases and not the attorney-general.

We should concentrate on enlarging the size of the economic cake rather than spending too much effort and time how to share it. The process of development should be based on need and not on race and religion.

We should have a sound education system at par with the best in the world and all Malaysians should be subject to the same system.

Good governance is described as participatory, transparent, accountable and efficient. It promotes the rule of law and equal justice under the law. Good governance should be the order of the day.

No Malaysian or community should feel deprived or marginalized. Everyone should be treated equally and fairly. There should be no selective prosecution or application of the law.

All laws which empower the government to arrest without trial should be repealed. Article 10 of the UDHR provides that everyone has the right to a fair and public hearing by an independent and impartial legal body. Article 11 provides that everyone has the right to be treated as innocent until proven guilty by a court of law.

The provisions of the Treasury Instructions should be strictly complied with. Negotiated tenders should be stopped. It is like a one-horse race. It wins without moving. The real value of the ringgit is not realized. The government must bear in mind that it is just the trustee of the people to take good care of public fund and assets on their behalf.

The illegal immigrants in Sabah should be equally shared among all the states in Malaysia. After all it is a national problem and it is unfair that Malaysians living in Sabah should be shouldering the entire burden. It is also alleged that this is government self-created problem.

Sabah deserves better treatment by the federal government in terms of more equitable distribution of opportunities, development funds and projects.

I understand that the national service training programme was introduced in 2003. The training course only lasts for 3 months for 18-year old youths. I also understand that between 2004 and 2007 2.37 billion ringgit had been spent. During the same period 16 deaths have been recorded. There were also reports of sexual assaults, rapes, lost in the jungle, food poisoning, fever, vomiting, racial brawl and so on. I am not convinced that it is possible during a period of 3 months to instill the feeling of genuine patriotism among 18-year old youths. Neither can you turn them into soldiers in 3 months. It is high time that such courses should be reviewed in terms of cost benefit.

From what I have heard and read the training programme called Biro Tata Negara is more designed to promote ketuanan Melayu and to create unnecessary animosity towards the non-Malays and distort the true facts of history. If that is the case such programme appears to be the opposite of inclusiveness, nation building and human rights and should have no place in this country.

To minimize, if not eliminate, polarization the composition of the civil service and other government agencies should be more reflective of the racial make-up of the Malaysian society.

Meritocracy should be observed and practised, otherwise Malaysia will be left behind in a highly competitive and globalized world.

Petronas Accounts should be made available to the public. Oil and gas is God given and the people have the right to know how the revenue derived from the natural resources is utilized by the government. There is no reason why the accounts should be shrouded in secrecy if the government has nothing to hide.

Human Rights & Malaysia Day

Finally some suggestions associated with human rights. Human rights are our rights as human beings. They have not been conferred on us by any authority. They should therefore not be taken away from us by any authority. However human rights must be accompanied by responsibility. In exercising our human rights we must not, in the process, violate the rights of others.

To date, none of Suhakam’s annual reports has ever been debated in Parliament. Suhakam has been preparing annual reports since the year 2000. It is suggested that the Suhakam Act be amended to make it mandatory for Parliament to debate its annual report. It is also proposed for Suhakam Commissioners to be appointed only once but on a 7-year term to make the national human rights institution truly independent.

The government should no longer delay the implementation of the Independent Police Complaints and Misconduct Commission. A police force which is very professional and disciplined should welcome the establishment of such commission.

Suhakam’s report on the recently concluded national land inquiry which incorporates its recommendations should be seriously and favourably considered by government.

To date, Malaysia has not signed and ratified the core international human rights instruments including the International Covenant on Civil and Political Rights, the International Covenant on Social, Economic and Cultural Rights, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the International Convention on the Elimination of All Forms of Racial Discrimination. Malaysia should not delay any longer from signing and ratifying them to prove that it is sincere and committed to the promotion and protection of human rights in the country.

The necessary follow-up actions associated with the implementation of the National Human Rights Action Plan (NHRAP) should be expedited in earnest. Suhakam had recommended to the government the development of the NHRAP as early as in 2001, one year after its inception. A NHRAP will help improve the promotion and protection of human rights in Malaysia by placing human rights improvements in the context of public policy.

The existence of the internet and the alternative media makes it more and more difficult for the government to hide the truth from the people. The public’s expectation is also getting higher and higher and if the government does not response to their legitimate demand an Arab spring type of situation could develop.

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Text of Tan Sri Simon’s speech presented at the PROHAM Malaysia Day RTD held on Saturday 14 September, 2013 from 2.30pm to 5pm at Universiti Malaysia Sabah (UMS).