PROHAM DISCUSSION ON THE UNIVERSAL PERIODIC REVIEW & MALAYSIA'S HUMAN RIGHTS STATUS

Malaysia will be reviewed by the global community Oct 24, 2013 at 2.30pm to 6pm by the Human Rights Council in Geneva.

 

There are specific reports on Malaysia and its human rights position over the past years. Malaysia was last reviewed in 2009.

In this context Proham is hosting a discussion on this theme.

Date:                Oct 22, 2013 (Tuesday)

Time :               8pm to 10pm (latest 10.30pm)

Venue:              Bilik Bunga Mawar 1st Floor Bangunan Utama/HQ MBPJ,

                         Jalan Yong Shook Lin, Petaling Jaya

 

Objectives

To highlight the UPR process in enhancing human rights compliance

To highlight the summary & content of the three key reports on Malaysia  for the 2013 review

To discuss the current status of human rights in Malaysia

Panel Speakers

Tan Sri Simon Sipaun (Proham Chairman)

Ms Juanita Lourdes Joseph (UN Malaysia Special Coordinator)

Suhakam Commissioner (Invited)

Ms Ivy Josiah (Proham Member)

Datuk Saifuddin Abdullah (CEO, Global Movement of Moderates)

Panel moderated by Datuk Dr Denison Jayasooria (Proham Secretary General)

Please review three key documents on Malaysia for the UPR Review:-

·         Prepared by the Malaysian Government

·         Prepared by the UN office in Malaysia

·         Prepared by the NGOs in Malaysia

http://www.ohchr.org/EN/HRBodies/UPR/Pages/MYSession17.aspx

Please confirm participation by emailing: denisonproham@gmail.com

 What is the Universal Periodic Review?

The Universal Periodic Review "has great potential to promote and protect human rights in the darkest corners of the world.” – Ban Ki-moon, UN Secretary-General

The Universal Periodic Review (UPR) is a unique process which involves a review of the human rights records of all UN Member States. The UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations. As one of the main features of the Council, the UPR is designed to ensure equal treatment for every country when their human rights situations are assessed.

The UPR was created through the UN General Assembly on 15 March 2006 by resolution 60/251, which established the Human Rights Council itself. It is a cooperative process which, by October 2011, has reviewed the human rights records of all 193 UN Member States. Currently, no other universal mechanism of this kind exists. The UPR is one of the key elements of the Council which reminds States of their responsibility to fully respect and implement all human rights and fundamental freedoms. The ultimate aim of this mechanism is to improve the human rights situation in all countries and address human rights violations wherever they occur.

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.

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

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