BY KUTHUBUL ZAMAN BUKHARI
The federal constitution of Malaysia provides guarantees and safeguards of the various fundamental rights and liberties of its citizens and people. These fundamental rights and liberties can be found in Articles 5 to 13 of the federal constitution. Though these rights are clearly enshrined in our constitution, of late, there has been a total breakdown in the rule of law and these rights have openly been trampled by those in power.
In a year where a major corruption scandal came to light and the persecution of opposition leaders and activists, 2015 saw a steep plummet in the Malaysian government’s respect for human rights. In an effort to hush up any criticisms, the powers that be have intensified their crackdown on the freedoms of the Malaysian people.
Article 8 (1) of the federal constitution provides that all persons are equal before the law and are entitled to its equal protection. However, are the laws applied equally to everyone in Malaysia?? It comes to no surprise that the answer to that question is a resounding “No”.
Recent events have thrown into sharp relief that Malaysia is no different to George Orwell’s Animal Farm where, ‘All animals are equal but some animals are more equal than others’.
The recent exoneration of the prime minister by the attorney-general in respect of the three investigation papers submitted by the Malaysian Anti-Corruption Commission (MACC) is now a subject matter of a judicial review application in the High Court led by the Malaysian Bar Council.
Steven Thiru, the current president of the Malaysian Bar, in a statement issued on March 15, 2016 had this to say:
“There should be no usurpation of the judicial powers of the courts, as it is for the courts – and not the attorney-general – to decide on the innocence or guilt of a suspect in respect of any alleged crime. The independence of the MACC, in discharging its statutory duties under the MACC Act 2009 as an investigative and enforcement agency, must be protected, and any impediment to the performance of these duties must be prevented.
“This matter involves serious allegations of financial impropriety, including allegations of loss of public funds, and has dire implications on the administration of justice. It must therefore be resolved in a manner consistent with the principles of the rule of law.”
In the year 2015/2016, we were also confronted with the passing of some offensive laws that violate the rule of law and fundamental human rights.
i. Prevention of Terrorism Act 2015
This Act actually resurrects some of the provisions of the now repealed Internal Security Act. It allows detention without trial for up to two years with a possibility for further extension. Additionally, this act even precludes judicial review.
In fact, many, including myself do not see the necessity of this Act in order to prevent terrorism. The then current laws in place sufficed to combat the threat of terrorism. Part VI and VI(A) of the Penal Code has sufficient provisions to tackle the threat of terrorism. Further, there are ample provisions in the Security Offences (Special Measures) Act 2012 to combat the threats of terrorism.
ii. Amendments to the Sedition Act 1948
The prime minister in 2012 announced that the outdated Sedition Act of 1948 passed by our colonial masters will be repealed and to be replaced by national harmony laws. However, to our dismay, the government not only turned back on its promise to repeal the law, it amended the Sedition Act to further restrict the freedom of thought, speech and expression:
- Sentences of fine have been removed and replaced with imprisonment of a minimum of three years up to a maximum of 20 years.
- The amendment introduced a new offence of aggravated sedition.
- Judicial discretion in sentencing has been removed.
iii. The National Security Council Act 2015
This Act was pushed through Parliament in haste without giving ample opportunity for the Parliamentarians to grasp and understand its consequence. This statute creates a new entity called the National Security Council and this entity is given enormous powers with the right to declare ‘Emergency’.
The council operates above the cabinet and there are no checks and balances. This appears to subvert the constitutional role of the Yang di-Pertuan Agong in ‘Emergency’ matters; where the fundamental rights of individuals may be affected and/or worse, suspended in any area declared as a security area under the Act.
We are indeed fortunate that the Conference of Rulers has directed the government to relook at this act. Indeed Proham has urged the government to abandon this act.
In May 2015, Malaysians were shocked when the authorities discovered 139 grave sites and 28 death camps in the state of Perlis near the border of Thailand; suspected to a result of human trafficking. Human trafficking is a tragedy and must be totally eliminated. These grave sites and death camps are symbols of total violation of fundamental human rights.
As of today, we do not know whether the authorities have completed their investigations as no culprits have been brought to justice.
The year 2015/2016 also witnessed a large number of persons charged under the Sedition Act 1948. As of April 2015, in a press release by ICJ, 36 people including academicians, lawyers, politicians, students and activists have been charged.
Though the AG has withdrawn charges against Prof Azmi Sharom and Teresa Kok, Proham urges the AG to drop all charges against those persons charged under the Sedition Act and the government to keep to their promise of repealing the Act.
After what seemed to be a worrying trend of the government’s elimination of peaceful dissenting voices, the Human Rights Watch released a 143-page report, titled ‘Creating a Culture of Fear: The Criminalisation of Peaceful Expression in Malaysia’, which documents the government’s use and abuse of a range of broad and vaguely worded laws to criminalise peaceful expression, including debates on matters of public interest.
The report also spotlights a disturbing trend of abuse of the legal process, including late night arrests and unjustifiable remands, and a pattern of selective prosecution. I strongly recommend a reading of this report.
Additionally, we have all witnessed the rather unfortunate and indeed sad shutting down of The Malaysian Insider. The editor of The Malaysian Insider, Jahabar Sadiq, was quoted in the Guardian on March 16, 2016 as having said:
“We were becoming too free, as the government side of the news became the object of derision and ridicule. Ministers and the police warned against distributing news or cartoons that mocked the issue, saying it was seditious and unverified news.
“Press freedom remains, but the threat of being accused of sedition and possible jail time has imprisoned us within our minds as Malaysians. People are shutting up and we have shut down.”
Proham, in refusing to shut up or shut down, urges the government to stop blocking websites and arresting people who voice out dissents, and instead to engage with the criticism and come to proof that these websites and their dissenters are wrong.
Phil Robertson, the deputy director of the Asian Division of the Human Rights Watch, was quoted to have said:
“The government’s intolerance of critical speech and its ongoing campaign of arrests and prosecutions belie any claim that Malaysia is a rights-respecting democracy,”
Moving forward, the Malaysian government must improve in its records on human rights. The government must respect the fundamental rights enshrined in the federal constitution and not make a mockery of the claim that Malaysia is a rights-respecting democracy. Furthermore citizen’s movements for democracy and good governance must be encouraged and nurtured.
In addition, instituting institutional and structural reforms for democracy, human rights and sustainable development is our urgent collective agenda.
KUTHUBUL ZAMAN BUKHARI is chairperson of the Society for the Promotion of Human Rights, Malaysia (Proham).