October 28, 2003
Dear Deputy Prime Minister Badawi:
We urge you to ensure respect for human rights in Malaysia as you take office as the first new prime minister in over twenty years. As Prime Minister, you can improve Malaysia's stance on human rights, including freedom of expression, association, and assembly, women's rights, the prohibition of arbitrary detention, and judicial independence.
You will assume responsibility for a government with a mixed legacy of respect for human rights. The Malaysian government has accomplished much in raising living standards for many Malaysians. But the government also repeatedly restricted basic rights through a variety of means, including intimidation and even outright imprisonment of political opponents. Despite improvements in legal protections for women, further reform is critical, and implementation remains a significant challenge. As you come into power, you have the opportunity to foster a vibrant civil society and political culture commensurate with Malaysia's status as a leading developing nation.
We urge you to focus on rebuilding the institutional and legal mechanisms necessary for protecting human rights in Malaysia. The executive branch must cease interfering in the work of Malaysia's judiciary so that independent jurists can protect individual rights and due process of law. Similarly, the members of the legislative branch, as the representatives of the Malaysian people, must be able to speak out vocally and critically on all issues of concern. It is vital that your government show an appreciation for the values of pluralism and freedom of expression, which are particularly important in a society as diverse as Malaysia.
We urge you to address the following ten issues as matters of priority:
Repeal the Internal Security Act (ISA). Any significant improvement in respecting civil and political rights must begin with the repeal of the ISA. Since its passage in 1960, the Malaysian government has wielded the ISA as a club against dissent. The Act allows the government to detain individuals indefinitely without adequate procedural safeguards. It also enables the government to stop any speech that it deems subversive.
States must respond to all national security concerns, including threats posed by domestic and international terrorism, in a way consistent with international human rights law. Although the ISA was originally passed to deal with the remnants of a communist insurgency, it has been used in recent years to detain without trial alleged Islamic militants. We particularly urge you to take note of United Nations Security Council Resolution 1456, adopted in January 2003, which urges member states to "ensure that any measure taken to combat terrorism comply with all their obligations under international law… in particular international human rights, refugee, and humanitarian law."
Charge or release those still detained under the ISA, and guarantee all detainees access to legal counsel. According to government sources, nearly one hundred people are detained under the ISA. Your government should ensure a fair and open trial for those against whom there is sufficient evidence to prosecute, and release all others. Those held under other laws that permit administrative detention without trial, including the Emergency (Public Order and Prevention of Crime) Ordinance and the Dangerous Drugs (Special Prevention Measures) Act, should also have their cases reviewed under the same criteria immediately.
Ensure the independence of the judiciary. Malaysia's judiciary, long considered one of the strongest in Asia, has not recovered from the damage done to its independence during the crisis following the Operation Lalang cases in 1987-88, in which severe pressure was put on the judiciary by the executive, and a number of senior judges were dismissed. Since then, the government has limited the judiciary's ability to carry out its core function of acting as a check on the exercise of power by the executive branch, both by rewriting laws to prohibit judicial review and by intimidating judges who rule against the government. Your government should make a public commitment to judicial independence and ensure that no government officials attempt to improperly influence the judiciary.
End media censorship. You should reform Malaysia's restrictive Printing Presses and Publications Act, under which the government can shut down any publication for publishing material deemed "subversive," and all publications must register with the government annually. But the controls on the media extend well beyond the law: Ownership of much of the media by large corporations affiliated with your ruling United Malay National Organization (UMNO) party and pressure from the government on politically sensitive issues mean that much of the news that Malaysians receive is slanted toward the government's point of view.
The government has also resorted on occasion to open intimidation of journalists. In January of this year, police raided the offices of Malaysiakini.com, one of Malaysia's leading independent news sources. The raid undercut the Malaysian government's promise to keep the internet free from censorship. In order to foster free expression in the Malaysian media, your government should discard both formal and informal systems of press censorship.
Ensure the protection of other basic rights, including the rights of free association and free assembly. Under Malaysian law, the formation of opposition political parties and non-governmental organizations (NGOs) takes place only with government permission, and public rallies are illegal without prior approval. This approval is often withheld if the would-be political party or rally is perceived to be against UMNO's interests. Individuals who break these rules face serious consequences. In the lead-up to protests over the continued detention of Anwar Ibrahim in April 2001, a number of Reformasi leaders were jailed under the ISA, allegedly as threats to national security. It was clear, however, that they were imprisoned in order to keep both the protests and their political organizing from moving forward. Your administration must ensure the right to freedom of association and peaceful assembly.
Promote women's rights through legislative reform, allocation of resources for support services, and training programs. In keeping with Malaysia's obligations under the Convention on the Elimination of All Forms of Discrimination against Women, your government should build on recent legal advancements protecting women's rights by criminalizing marital rape, ensuring that all women, including women subject to Islamic law, can exercise the right to be free from gender discrimination, and strengthening domestic violence legislation. Training for police and immigration officials is critical to effectively respond to domestic violence cases and to identify trafficking victims who are often detained and summarily deported as "illegal migrants."
Introduce reforms to protect migrant workers' rights. As one of the primary destinations for migrant workers in Asia, Malaysia should ratify and abide by the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. We urge you to amend immigration laws correspondingly, reduce corruption by streamlining and lowering the expense of sponsoring migrant workers legally, and provide accessible and safe mechanisms for bringing complaints against abusive employers. Your administration should permit independent investigations of the conditions in detention centers for migrant workers.
Protect the rights of refugees in Malaysia. As a frequent transit point for refugees from across Asia, Malaysia has a crucial role to play in providing sanctuary for refugee. Unfortunately, this role has often been left unfulfilled, as the government has regularly engaged in forced repatriation and refoulement. Most recently, the government has expelled refugees from the war-torn Indonesian province of Aceh, once again failing to live up to its responsibility to those at risk. Your government has an obligation under international customary law to guarantee the safety of refugees and migrants and to avoid refoulement, and should allow the United Nations High Commissioner for Refugees to process the cases of all those who seek their assistance.
Support Irene Fernandez's right to free expression. Irene Fernandez endured the longest trial in Malaysian history before being found guilty of "maliciously publishing false information" on October 16, 2003. She was put on trial under the restrictive Printing Presses and Publications Act after publishing a report documenting the abuse of economic migrants in Malaysian immigration detention camps. Her report has subsequently been substantiated by a variety of sources. Her conviction, stayed pending appeal, violates international standards on free expression and should not be allowed to stand. Your government should instruct the prosecutor to tell the High Court that the government believes that the case should be dismissed.
Release former Deputy Prime Minister Anwar Ibrahim. The Malaysian government arrested Anwar under the ISA in September 1999, and subsequently sentenced him to jail for fifteen years on corruption and sodomy charges. His trial was marred by coerced confessions by key witnesses and the beating of Anwar himself while in custody. Anwar's continued imprisonment is a stark reminder of the lack of human rights protections in the Malaysian legal system. His early release would serve as a clear and welcome signal that times have changed.
Thank you for your consideration. We look forward to a fruitful dialogue with you and your government on these and other matters.
Executive Director, Asia Division
Executive Director, Women's Rights Division
Cc: Dato Seri Dr Mahathir Mohamad