Dato' Sri Mohd Najib Bin Haji Tun Abdul Razak
Pejabat Perdana Menteri
Bangunan Perdana Putra
Pusat Pentadbiran Kerajaan Persekutuan 62502 Putrajaya
Re: Human Rights in Malaysia
Dear Prime Minister,
Congratulations on your April 3, 2009, appointment as Malaysia's sixth prime minister. As you know, Human Rights Watch, a nongovernmental human rights organization that monitors human rights in more than 70 countries around the world, has long raised human rights concerns in Malaysia with your predecessors.
We especially welcome your expressed "intention to uphold civil liberties" and your "regard for the fundamental rights of the people of Malaysia." To that end, we urge your government to take specific measures to bring Malaysian law, policy, and practice into line with international human rights standards.
We urge that your government promptly ratifies core international human rights treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and begin the process of bringing domestic law into conformity with these international instruments.
We further urge that you and your government give priority to the issues of arbitrary and preventive detention, freedom of expression, protection of migrants, refugees, and asylum seekers, and ending impunity for security forces. In the pages that follow, we discuss these issues in detail and offer specific recommendations.
The state of emergency in effect in Malaysia since the 1960s has been used by previous governments to violate fundamental human rights. Under the emergency, the Malaysian government enacted emergency ordinances permitting the government to pass broad and ambiguous laws that bypass judicial processes and review and effectively permit indefinite preventive detention. The Internal Security Act (ISA) is the most notorious of such laws and violates a number of international human rights standards, including the right to be free from arbitrary detention, the right to due process and to a fair trial, the presumption of innocence, as well as rights to freedom of expression and association.
Previous governments have justified use of the ISA by referring to multi-ethnic tensions. While Human Rights Watch recognizes that multi-ethnic tensions are a legitimate concern of any government, 51 years after independence, the government should not lose sight of the fact that Malaysia has a well-developed criminal justice system fully capable of dealing with multi-ethnic tensions, threats to its security, and other ill-defined activities without recourse to the extra-judicial ISA.
The official position that detention under the ISA is preventive, acknowledges that the government cannot, or has chosen not to, prosecute detainees for alleged crimes but rather extends executive power at the expense of the judiciary.
Throughout its long history, the ISA has been used to punish and silence peaceful political opponents and government critics. It has become an unfortunate and deeply embedded feature of a Malaysian political climate that stifles free expression, association, and peaceful assembly. Recent ISA political detainees include Raja Petra Kamaruddin, founder and editor of Malaysia's most popular website; Teresa Kok, an opposition Democratic Action Party parliamentarian; and the Hindraf 5. Three of the five Hindu activists remain in detention. Others once held under the ISA include prominent political leaders such as Anwar Ibrahim, former deputy prime minister and current head of the political opposition coalition; and Lim Kit Siang, Karpal Singh, and Lim Guan Eng.
While Human Rights Watch welcomes the release of 13 ISA detainees, we are concerned that the promised government review will rebuff efforts at repeal. We are further concerned that in March and April 2009 there were three new ISA arrests and that such arrests were not formally announced, but only confirmed after reported by a civil society group. We urge that you heed the 2003 recommendation of Suhakam (Human Rights Commission of Malaysia), and promptly rescind the ISA and all other criminal preventive detention measures.
Human Rights Watch urges the Malaysian government to:
- Immediately and unconditionally revoke all emergency proclamations and ordinances that violate internationally protected human rights, including the Emergency (Public Order and Crime Prevention) Ordinance 1969.
- Abolish the Internal Security Act. Malaysia's penal code and criminal justice system are fully capable of addressing situations of internal security.
- Immediately charge or release all individuals currently held under the Internal Security Act. Assure that those charged have prompt access to legal counsel and family members and are tried in conformity with international fair trial standards.
Freedom of Expression and Assembly
Human Rights Watch welcomes your lifting of the March 23, 2009, ban against two opposition party newspapers, Suara Keadilan, published by Parti Keadilan Rakyat (PKR), and Harakah, published by Parti Islam Se-Malaysia (PAS), and your follow-up statement that Malaysia's media outlets should not fear the consequences of responsible reporting.
However, less than a week later, your government refused to admit a reporter and photographer from Merdeka Review, an internet news website, to the press conference announcing your new cabinet. On April 14, Information, Communication, and Culture Minister Rais Yatim warned bloggers that the law would be invoked against bloggers who make unfounded allegations, and on April 19 he indicated displeasure and a review of "the role of [private] television and radio stations in nation-building."
Until legislation such as the draconian Printing Presses and Publications Act, which requires annual licensing, is dismantled and the scope of the Sedition Act is narrowed, arbitrary threats to free speech and political activity in the name of national unity will remain. In September 2008, for example, Sin Chew Jit Poh, a Chinese language newspaper, and The Sun were warned about their reporting on "sensitive" inter-ethnic issues.
Provisions of the Police Act further compromise the ability of Malaysian citizens to peacefully assemble and advocate on critical issues. License requirements for any gathering of more than three persons have been used to block rallies, large and small, whose message the government disapproves of. Peaceful "unlawful" demonstrations have been swiftly repressed through use of water cannons, tear gas, arbitrary arrests, and politically motivated trials. In 2008-09, a series of small candlelight vigils calling for an end to ISA detention were summarily dispersed. In one, on November 9, 2008, a Malaysikini videographer on assignment was roughed up and had his camera confiscated. While eight people, among them five lawyers, have recently been acquitted of charges relating to their participation in a peaceful march on December 10, 2007, International Human Rights Day, the eight should never have been charged, nor is an appeal of their acquittal by the government warranted.
Human Rights Watch urges the Malaysian government to:
- Rescind the Printing Presses and Publications Act.
- Amend the Police Act to ensure it respects the right to peaceful assembly by revoking the unlimited power of a police district's officer in charge to refuse to license or determine the conditions under which assemblies, meetings, and processions are licensed. Substitute regulations that set out reasonable and negotiated conditions for assembly and an appeal process that eliminates political grounds on which decisions to withhold permission are too often made.
- Narrow the overbroad definitions of "sedition" and "seditious tendency" employed in the Sedition Act and refrain from using the act to censor expression or to jail political opponents or critics.
Security Force Malfeasance
A culture of impunity pervades routine law enforcement by police and immigration officers in Malaysia. Recent unresolved incidents in police lockups highlight the problems of injuries and deaths in custody. Police report that there were 85 deaths in police custody during 2003-07, many of them still unresolved.
The United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions call upon governments to conduct "thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death." Ensuring that the police and other security officers are held fully accountable for any crimes that they commit is necessary for respect of human rights as well as for the maintenance of professionalism in the security forces.
In Malaysia, inquests move slowly-some are postponed for years-and family members are often not aware they are occurring. Common police explanations for these custodial deaths include hanging (i.e. suicide), falling while trying to escape, and natural causes. In one case, a detainee was reported to have died of "sudden fatty liver" within days of his detention. In addition to injuries that resulted in deaths, numerous other cases of physical abuse occur in conjunction with investigations of alleged crimes.
The death of 22-year-old Kugan Ananthan in January 2009 is one of a number of recent cases that point to the need for an Independent Police Complaints and Misconduct Commission (IPCMC) as recommended in April 2005 in the Report of the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police. Although the attorney general originally classified the case as murder, no one has been arrested and the case appears stalled. The subsequent public outcry has no doubt pointed to the lack of confidence in the ability of the police, the hospitals, and the Attorney General's Chambers to investigate swiftly and impartially deaths in custody.
Substitution of the pending Enforcement Agency Integrity Commission bill (EAIC) for the IPCMC is unacceptable. The EAIC, which covers 21 government agencies, is a much-watered down version of the commission's recommendations. Among other defects, the revised bill eliminates the commission's power to initiate its own investigations even if no complaint had been received, and should it find a complaint has merit, choose the appropriate course of action. It also fails to eliminate as commissioners those with vested interest in outcomes.
In addition, the Malaysian government should:
- Implement the original Independent Police Complaint and Misconduct Commission proposal recommended by the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police.
- Discipline or prosecute as appropriate all security force officers involved in incidents of abuse, including those with command responsibility.
Migrants, Refugees, and Asylum Seekers
Malaysia's immigration policy makes no legal distinction between undocumented migrants, refugees, and asylum seekers. Only those with proper documentation, including work permits, may legally enter or reside in Malaysia. All others are without protection and vulnerable to arrest, detention and deportation. The government does no screening to ascertain whether deportation poses a threat to a person's life or freedom "on account of his race, religion, nationality, membership of a particular social group or political opinion."
Malaysia's current policy demands that asylum seekers register with the Malaysian offices of the United Nations High Commissioner for Refugees (UNHCR). However, impediments to effective access deny asylum seekers "the right to seek and enjoy in other countries asylum from persecution" as guaranteed in article 14 of the Universal Declaration of Human Rights. Of particular note, the government refuses to allow UNHCR unrestricted access to migrants awaiting deportation in immigration detention centers, some of whom may be refugees in need of protection who have not had the opportunity to seek asylum.
In the context of the global economic downturn, Malaysia has halted new foreign hires and instituted a "foreign workers first out" policy that requires employers making staff cuts to terminate migrants first. Migrant workers carry large recruitment debts that they pay back over extended periods of time. Their employers should not be encouraged to prematurely terminate employment on the basis of national origin.
RELA (Ikatan Relawan Rakyat or People's Voluntary Corps) is a government-backed untrained paramilitary force whose members, in conjunction with immigration and police officers, routinely round up suspected undocumented migrants. In May and June 2008, asylum seekers, refugees, and migrants told Human Rights Watch researchers of abuses perpetrated by RELA members and immigration officers during the arrest process and in the immigration detention centers. Such abuses included physical assault, intimidation, threats, humiliating treatment, forced entry into living quarters, extortion, theft, restricted communications with friends or family, and disregard and destruction of identity or residency papers. Several Malaysian officials have excused the abuses suggesting that the number of abusers is insignificant and that reasonable force is sometimes justified. However, credible accounts from migrants indicate that force is ubiquitous and gratuitous.
Migrant workers in Malaysia include over 300,000 domestic workers, primarily from Indonesia. Excluded from key provisions in Malaysia's labor laws and subject to onerous placement fees by recruitment agents, many of these workers confront a wide range of human rights abuses, including labor rights violations such as excessively long working hours, lack of rest days, and unpaid wages; violations of freedom of movement and freedom of association; and physical and sexual abuse. In some cases these situations amount to forced labor, trafficking, or servitude.
Human Rights Watch welcomes recent prosecutions and convictions of abusive employers, but few domestic workers receive any redress. In recent years, nongovernmental organizations in Indonesia and Malaysia and the Indonesian embassy in Malaysia have received thousands of complaints from or on behalf of domestic workers. Many more cases are likely unreported given domestic workers' isolation in private homes, employers' ability to have workers summarily deported, and migrants' lack of information about their rights.
Human Rights Watch urges the Malaysian government to:
- Ratify without reservations the 1951 UN Convention Relating to the Status of Refugees, its 1967 protocol, and the 2003 Convention on the Protection of the Rights of All Migrant Workers and Members of their Families and bring domestic law and practice into conformity with the documents.
- Ensure asylum seekers, refugees, trafficked persons, and abused workers are not subject to penalties imposed under the Immigration Act 1959/63.
- Allow asylum seekers the right to residence, documentation, work, and education while their claims are pending and give recognized refugees the opportunity to regularize their status.
- Facilitate UNHCR's ability to determine refugee status by allowing the agency unhindered access to detention facilities. Ensure that all detained asylum seekers and refugees are able to contact UNHCR regularly.
- Abolish RELA, and repeal all regulations under which RELA was established and its powers expanded. Until such time, RELA should be restructured as a volunteer agency with no enforcement powers and with no role in either apprehension of irregular migrants or maintenance of security in the immigration detention centers.
- Undertake independent investigations into allegations of abuse by RELA members, immigration officers, and police officers. Hold accountable the perpetrators of such abuses, including those with command responsibility.
- Extend equal protection of the 1955 Employment Act and the 1952 Workman's Compensation Act to domestic workers and create mechanisms for enforcement.
- Strengthen regulations governing recruitment agencies and include clear mechanisms to monitor and enforce standards concerning migrant workers. Oversight bodies to protect domestic workers from abuse should enjoy the power to conduct unannounced inspections of recruitment agencies and to impose substantial penalties on agencies that abuse workers or otherwise violate standards.
- Ensure employers fulfill their contractual obligations to migrant workers or pay adequate compensation.
Thank you for your consideration. We would appreciate the opportunity to discuss these and other human rights issues with you and with members of your administration.
Deputy Prime Minister Tan Sri Dato' Haji bin Muhyiddin Yassin
Minister of Foreign Affairs Datuk Anifah bin Haji Aman
Minister of Home Affairs Dato' Seri Hishammuddin bin Tun Hussein
Minister of Information, Communication, and Culture Dato' Seri Utama Dr. Rais Yatim
Deputy Chief of Mission to the US Ilango Karuppannan
Ambassador to the UN Datuk Hamidon bin Ali