Treat undocumented workers right – Statement dd 24 March 2020

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The statement by Senior Minister Datuk Seri Ismail Sabri Yaakob that undocumented migrants who attended the tabligh gathering in Sri Petaling will not be penalised if they come forward to be screened for Covid-19 – was assuring, although we wish it could have come much earlier.pdf

However there is a huge trust deficit between the government and these workers – because of how shoddily and uncaringly they have been treated in the past by the authorities.

To gain their confidence, the Minister must come out with a clear written public declaration which must also be addressed to all the relevant agencies – like the immigration and the police.

We must understand that all this while we, the Malaysian public, has enjoyed their services in restaurants, petrol stations, retail stores, markets, offices, and the like. They are at the bottom of the scale, have scant protection and get by on dismal wages. Living in sub-conditions and away from their distant families and friends. A kind of isolation that we are only now beginning to understand – and sometime even complain about. Read more

DEMOCRACY UNDER SIEGE with Emeritus Professor Shad Saleem Faruqi: An Overview

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This piece is written by HAKAM Youth, following a Facebook Live with Prof. Shad Saleem Faruqi on 4 March 2020

Democracy under Siege?
With the formation of a “backdoor government”, one tends to wonder: what of democracy, then? Democracy is more than the political executive; the government is under siege, indeed, but “democracy” is a broader, richer, more beautiful concept. Other institutions play a role, and they are playing it well—the judiciary is still in place, a civil service is still running, there are no riots involving tear gas… This sets Malaysia apart from the other nations.
In our country, democracy is alive. The fact that this forum took place indicates that it is. But, of course, there are many ways to fortify it.

Defining “Democracy” in Malaysia

There is no simple definition, for “democracy” consists of principles. Perhaps it is well to say that it cannot be defined—the way you cannot define “sunset” and “sunrise”—
but it can be described. Like how you would recognise “sunset” for the varying hues of the sky and the noise of night creatures coming to life each minute leading into nightfall, “democracy” is identifiable for its attributes. Most notably, the government must be answerable and accountable to the people, and the people should have the
right to change the government periodically.
Normally, “democracy” is associated with a decision-making process which requires prior discussion. Besides, this term is often associated with elections, an independent judiciary, and the recognition of human rights, especially the right to dissent.

The Right to Dissent

To what extent can the citizens demand for the enforcement of democracy? As a constitutional monarchy, there exists a glass ceiling above the rights given to the people in Malaysia. Take the right to assemble, for instance. On one hand, there is an argument that as a democratic country, the people have the inherent right to assemble and protest,
especially in light of the recent formation of the “backdoor government”. On the other hand, this right has limitations. One aspect not often borne in mind on the right to dissent is this: the right to demonstrate peacefully. To illustrate, an individual who is rich or resourceful may be able to find their platform through the media. However, the only way for the poor and the everyday worker to express their pain and sorrow is by going out to the street with placards. Dissent is a part of democracy. Discussion before decision. It is undeniable that in some respects, democracy is a chaotic form of living as compared with autocracy. Where the power to decide lies in the people, there will always be differences in opinion. These opinions are allowed to be expressed, and efforts are to be made to
reconcile them. In Malaysia, we have only had 14 general elections; in Malaysia, democracy is young, democracy is emerging. With changes in the law, there is hope.

On that note, Professor Shad mentioned that he was part of the team to assist the Attorney General in the repeal of Section 27(5) of the Police Act and the drafting of the Peaceful Assembly Act, and he noted how the Peaceful Assembly Act was not enforced in the spirit in which it was passed. Under the Act, there is no requirement of
prior permission, all that is required is a notice. The spirit is this: the police should be informed of an assembly, so as to manage, and not prohibit. If properly enforced, the police can therefore become the facilitator, instead of the prohibitor.

The law itself is taking the middle path — demonstrations are allowed, but only in ways which do not amount to a trespass.

Protests against the “Backdoor Government” Formation

The “backdoor government” referred to is the situation where the electorates in 2018 have chosen to reject a particular coalition to elect another. It is conceded that at some point in time, the government in power has lost track of its actual aims. Constitutionally speaking, where the government collapses for whatever reason, be it the death of the Prime Minister or his resignation, or the break-up of the coalition, the Yang Di-Pertuan Agong has to appoint someone in the Prime Minister’s stead. Ideally, the individual appointed should be required within a framework of time to prove to the Yang DiPertuan Agong that he holds the confidence of the majority. The method of proving need not be a vote on the floor of the House.
In this case, the Yang Di-Pertuan Agong adopted an unprecedented measure of interviewing all the Members of Parliament—a tremendously idealistic and conscientious effort on the part of the Yang Di-Pertuan Agong. However, the situation became unstuck because of the constant changing of the minds of the Members of Parliament.

The Right to Dissociate and Re-Associate

Article 10(1)(c) of the Federal Constitution includes the right to dissociate and reassociate. There is a right to diffract and cross the floor. However, Article 10(1)(c) is subject to Article 10(2)(c). Freedom to associate is subject to restriction, one of which is morality. Unfortunately, a narrow view is taken to interpret “morality”, and it does not
include political morality.

“More Likely to Command the Confidence of the Majority of the Members of that House”

Article 43(2)(a) of the Federal Constitution states that “the Yang Di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a  member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House”. It is wisely drafted because in order for an individual to command the confidence of the majority, there must be a
clear-cut majority of that house.

Interim Government

An interim government is not unconstitutional.

As there cannot be a political vacuum where the Prime Minister has resigned, the Yang Di-Pertuan Agong had to appoint an interim Prime Minister. Whether His Majesty should have appointed the Deputy Prime Minister as Acting Prime Minister or ask the resigning Prime Minister to act as interim Prime Minister, that is a matter for His Majesty. Article 43(2)(a) of the Federal Constitution provides that if during the dissolution, a Prime Minister is to be appointed, he must come from the previous government. As long as the government proves it holds the confidence of the majority as soon as possible, it is not unconstitutional. An interim Prime Minister must not make major decisions, for he is there to hold the fort. He should not appoint or dismiss judges, nor should he make new commitments in terms of economic policy. In Australia, there are clear cut conventional guidelines of what a caretaker Prime Minister can or cannot do, and perhaps it is time for us to evolve such guidelines. The law is silent, but ethics clearly demands that one who does not have the legitimacy of the floor of the house should only keep the day-to-day affairs moving.
Oddly enough, in our situation, Tun Mahathir as interim Prime Minister announced the package for the COVID-19 Outbreak. It can be seen as a non-controversial emergency, as he was dealing with a health emergency and he was in office for some time.
Generally speaking, however, an interim Prime Minsiter should not be making large and long-term commitments as such.

Unity Government

As the Malaysian system is partisan, the idea of a unity government is not contemplated by the Federal Constitution. In our system, there has to be debate, there has to be conflicted opinions, the majority must try to work out a middle path to reconcile conflicting interests. However, to clarify, Professor Shad is supportive of the idea of a government which is as inclusive as possible in terms of race, religion, region, and gender.

The Reliability of a Statutory Declaration

The issue of a statutory declaration lies in its unreliability. There is nothing illegal or invalid about proving the majority of the House through a statutory declaration. The most politically reliable way to determine the majority of the House is to appoint any interim Prime Minister, call an emergency session of the House of Representatives
within 7 to 10 days, and have the interim Prime Minister prove his support on the floor  of the House. However, this way may not be the most workable way if the interim is unable to get a majority.
There is a problem in our system, our structure. Article 43 of the Federal Constitution states that the Prime Minister must command the confidence of the majority of the members of the House, and if that majority shifts or changes, even a vote of confidence may no longer be reliable. Our system is adopted from the English Westminster system,
which presumes a certain amount of political maturity, political ethics and political stability. At this particular moment, Malaysia does not have those traits.

General Election or Minority Government?

To call for a general election is not economically, politically or security-wise desirable at this moment. Therefore, an alternative would be to form a minority government, which is a government that does not have a majority on the floor of the house, but is able to do the consensual tasks, such as passing the budget or other important
legislation. One has to remember that a minority government is implied to be weak, because the Prime Minister has to cobble together in majority to pass a motion and will have to rely on individual Members of Parliament to get that 51%.

Where there is a Successful Vote of No Confidence

Where there is a successful vote of no confidence in the new Prime Minister, but he refuses to resign, the Yang Di-Pertuan Agong may withdraw the appointment. The Federal Constitution does not provide the Yang Di-Pertuan Agong the power to dismiss
an appointed Prime Minister. However, His Majesty may withdraw his appointment and
appoint another individual.

“Royal Prerogative” is a Dangerous Word

Prerogatives are by definition inherent, non-statutory attributes of the monarchy. Generally, the power of the Yang Di-Pertuan Agong to appoint a Prime Minister or to dissolve Parliament is not a prerogative, but a constitutional power. A better suited term in the context of Malaysia is “reserved power”.

Dissolving the House of Representatives

The Yang Di-Pertuan Agong has a clear-cut discretion to refuse the advise of the Prime Minister to dissolve the House of Representatives under Article 40(2)(b) of the Federal Constitution. His Majesty is to use His Majesty’s wisdom and experience to look at the total security and economical system of the country.
However, the Yang Di-Pertuan Agong should not dissolve the House of Representatives on His Majesty’s own accord. This is because it would be bad for democracy and monarchy. Article 40(2)(b) of the Federal Constitution should them be interpreted narrowly to say that the Yang Di-Pertuan Agong has an undrafted discretion to consider several alternatives.

Declaration of Emergency under Article 150 of the Federal Constitution

The power under Article 150 of the Federal Constitution is subject to Article 40(1) of the same. Therefore, as with the power to dissolve the House of Representatives, the power to declare an emergency under Article 150 of the Federal Constitution is said to be exercised on advice and is not a reserved power of the Yang Di-Pertuan Agong.
Should the political climate continue or be at stake, is there a possibility of the Yang Di-Pertuan Agong declaring emergency? Arguably, yes. “Emergency” is defined to not only include war, but also the collapse of a civil government.

Postponement of Parliament Sitting

Memorandums can be submitted to urge the government to revise the postponement. However, ultimately, it is necessary for the Yang Di-Pertuan Agong to order the Speaker to issue a notification to all Members of Parliament to have an emergency session.

The Impact of the English Cherry v Miller Case

An unprecedented scan by the English judiciary, the decision is very significant. However, whether our court will say the same is anyone’s guess. In constitutional and administrative law, there exists the principle of non-justiciability, which means there are certain issues which are best to be resolved by political or other remedies.
These dangerous, difficult theories and political issues are best avoided by the courts. Courts are legal institutions, not political institutions. While there is already a legal challenge on the validity of the appointment of Tan Sri Muhyiddin as Malaysia’s new Prime Minister, it is for the good of the judiciary to reserve judicial independence.

Cleansing the Government of the 1MDB Cases

There is legitimate fear that the accomplishments of the previous government will be reversed or neutralised, and there is fear that the cases made against those accused to be discontinued However, Professor Shad hoped that the new government would ensure that his cabinet is inclusive, competent with technocrats and does not consist
of those prosecuted or has a case hanging over their head.

Two-Party System is the Root of our Problem?

In Malaysia, our Parliamentary system emphasises on political parties and loyalty of the floor. Whether there are two or twenty parties, coalitions are bound to form, and in Malaysia, they are formed based on race, religion and identity politics. Unfortunately, there is no workers’ party or green party.
Around the world, parliamentary democracies have attracted good reforms, but they do not last long. In England, legislation has been passed for there to be a fixed term parliament, where it is for five years, and the only way to overturn this is to have a twothird majority vote from the floor of the House. In Bangladesh, the system was reformed so that once the Prime Minister calls for a dissolution, he must step down, and the  President would appoint a caretaker government consisting of technocrats, retired judges and retired civil servants to steer the country impartially through the election period. Unfortunately, the present government amended to constitution to repeal the reforms in place. Known to have a very vibrant democracy, Nepal used to have a provision that a hung parliament would come into being where no individual could achieve a majority. The faction with the largest number of seats would then get the first bite of the cherry. Certainly, the reforms made by these nations can serve as a
constitutional guidance for Malaysia.
However, adopting such reforms into the Malaysian system will require drastic constitutional amendments, which would involve Federal and State Constitutions. It is possible, but such amendments may be a problem for the basic structure of the Federal Constitution. The judiciary would then be at risk of being accused for determining fundamental issues under political perspectives.

Recommendation of Constitutional Amendments

In order to prohibit the current political issue from emerging again, anti-defection law— anti-party hopping law—is necessary. Of course, there are cases where party hopping was not done out of selfish motives. For instance, where a Member of Parliament genuinely disagrees with their party’s abuse of preventive detention law and wishes to
leave the party. Changing of parties is allowed, but when this happens, such individuals should return to the electorate and be re-elected. If the hopping was done too close to the next election, the individual should vacate his seat and be prohibited from holding a position in the cabinet or any important position in the administration for two years.
This is to prove that the act of party hopping was out of ideology or conscience rather than for a clear political or monetary motive. Still, it would be difficult as such a reform would require a two-third majority to amend and insert an anti-party hopping clause into Article 10(1)(c). Perhaps an interparty majority may be able to achieve that.

Parting Words

The spirit of our constitution in 1957 and 1963 was one of moderation, accommodation, and tolerance to our sentimental product. Professor Shad believes that we have been fortunate; we may not love each other, but we do not hate each other. As mentioned earlier, if what had happened to Malaysia happened elsewhere in Asia or Africa, there
will be a riot—massive demonstrations and killings. Instead, while the drama was unfolding, the Yang Di-Pertuan Agong was distributing McDonald’s and Kentucky Fried Chicken to the reporters waiting outside His Majesty’s gates.
Our constitution is a document of moderation, and in the first decades since her independence, Malaysia was a country of give and take, of intercultural, integration, and interreligious respect. However, in 1969 the bubble burst, and since then we were able to restore certain amount of racial and religious harmony. Sadly, things were no
longer the same, and the country has proceeded towards the wrong direction. While other countries work towards victory, snatching them in the jaws of defeat, we were  already victorious; we already have the necessary ingredients of a developed nation.
However, we went backwards.
Still, Malaysians are a moderate people; Malaysians aim for equality, and leaders of substance do not follow after opinions with guns and rallies of opposition, but with the power of souls. That is the essence. A strong leader is not afraid to say “no, that is not right.” There is awareness among the local youth—in UiTM, in UM—that Article 153 of
the Federal Constitution is being abused by the elites with private agendas. That is the reason why this country is so peaceful and progressive.
Professor Shad is hopeful that the Malaysian youth will make the right sort of differences; that we do not want policies to be based solely on race and religion, that we actually want the government to recognise the importance of uplifting our identities
as “Malaysians”. That is the biggest agenda today—greater interracial, interreligious communities with interreligious tolerance and appreciation of our differences.

Written by
Members of HAKAM Youth
HAKAM Youth is a committee under HAKAM, the National Human Rights Society

Lockdown, lock-in or what? – Law Speak

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From the Sundaily

CONFUSION reigns following the dramatic announcement by the prime minister on Monday. Is it a lockdown – meaning people can’t leave their homes? Like a curfew where police will be on the streets to bar people moving on the streets. Or haul up anyone outside their homes.

The object is clear. To limit the movement of people in public places. Essentially to prevent people mixing with others.

Hence all businesses are to close. All government buildings and private premises are to shut down. Schools and universities must shutter their doors.

Travel out of the country is prohibited. And travel into the country strictly regulated. Malaysians who commute daily to Singapore are adversely affected by the travel ban.

There is also a complete ban of gatherings and meetings – including religious congregations.

These measures are introduced under the Prevention and Control of Infectious Diseases Act 1988. And under the Police Act 1967 – which allows the deployment of the police to oversee the implementation and adherence of these measures.

The prime minister has acted under Section 11 of the Infectious Diseases Act to declare the whole of Malaysia as an infected area. This is on the basis that the minister is satisfied that there is an outbreak of an infectious disease in the country or the country is threatened with an epidemic of an infectious disease. This allows him to prescribe the necessary measures to control or prevent the spread of the infectious disease.

The worry about the spread appears real. As at March 8 there were fewer than 100 reported cases of infection of the corona virus. As of Tuesday it had spiked to 673 cases with two deaths, one a 34-year-old and the other a 60-year-old Sarawakian, who had an underlying chronic illness.

These figures may not represent the true state of infections. It is not known how many fail to report; either for fear of being quarantined or because they dismiss the symptoms. The latter understandable as the symptoms mimic other infections such as flu and the like.

The measures require Malaysians returning from overseas to be screened and to self-quarantine for 14 days after arrival. And a complete ban of tourists and foreign visitors. These measures are imposed under Section 6 of the Act “to prevent the introduction of any infectious disease into Malaysia from an infected area”.

To ameliorate the wide reach of these measures, one is allowed to move to get your food and medical supplies. Restaurants can open but only for takeaways (markets, grocery stores, pharmacies and hospitals remain open); also banks and financial institutions will remain open. Premises of public utilities providers – water, electricity, telcos, post and the like – will also remain open.

That’s why this order cannot be categorised as a lockdown or a curfew – as has been implemented in China, Italy and Spain. It is best described as a restriction of movement order.

All other movements are strictly prohibited. So offices cannot be partially shuttered – with a skeleton staff. Nor can business premises such as restaurants operate to provide online services. Hotels too are business premises and must close their doors. Religious places are also off limits to their routine mass services.

Any breach and the Act provides for penalties – of fines and jail terms. That’s where the deployment of the police under the Police Act kicks in.

We are of course not used to such drastic measures. And wonder how they will be enforced. One can easily avoid prosecution if caught travelling by arguing that the movement is to one of these permitted outlets.

So these measures should be viewed as encouraging people to restrict their movements to the bare essentials. And be implemented in a facilitative rather than punitive way. After all, it is only for a test 14-day period.

This will also be a steep learning curve for the public to realise how easily the infection can be spread; and to get them on board to ensure that the infection is not carelessly spread to other unsuspecting innocents. Especially the elderly and the babies. For whom it could be fatal, as the statistics in other countries show.

The objective, said the Ministry of Health, is to break the chain of transmission of Covid-19 among individuals and communities. And to highlight to the public that Covid-19 prevention and control measures must be taken seriously.

We must begin to recognise that each and everyone of us has a critical role to play in curbing this terrible new disease involving a little sacrifice and some inconvenience.

Gurdial, a former law professor, now practises law and is the President of HAKAM.  

Challenging the PM’s appointment – Law Speak

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From the Sundaily

TWO critical questions seem to be troubling the public. First, can the appointment of the prime minister by the king be challenged? Second, does such a challenge amount to disrespect for the king and the institution of the monarchy?

Our courts have answered both these questions. Yes, to the first. No, to the second. Let me elaborate.

The Sabah case: Tun Datu Hj Mustapha bin Harun v Tun Datuk Hj Mohamed Adnan and Datuk Joseph Pairin Kitingan No 2

In 1985 the court intervened in a constitutional crisis in Sabah and quashed the appointment of a chief minister. Pairin, whose party had just won the state elections, was expected to be appointed chief minister by the Yang di-Pertua Negeri (YDPN) – equivalent of the sultan of a state; or king in the federal context.

However, at 3.40am on the night the election results were announced, the leaders of two other parties visited the residence of the YDPN and persuaded him to appoint Tun Mustapha as chief minister on the basis that they commanded 22 seats; and with the appointment of an additional six members, who had to be nominated by the YDPN, they would have an overall majority in the state assembly. The YDPN swore in Tun Mustapha as the chief minister at 2.30pm.

Three hours later, the YDPN revoked Tun Mustapha’s appointment. At 8pm he swore in Pairin as chief minister.

Mustapha challenged the validity of his revocation as well as Pairin’s appointment, seeking declarations that he had been validly appointed and was still the chief minister.

Pairin and the YDPN objected – arguing that the court had no jurisdiction because the case concerned the manner of exercise of discretion by the head of state and raised political questions which should be, and had been, dealt with by the legislature. In the interim Pairin had secured a vote of confidence in the state assembly.

The High Court held that the court had jurisdiction. The case involved construction of the federal and state constitutions, and consideration of legal principles; and the legal issues of conspiracy, misrepresentation, fraud and duress – all of which, ruled the court, fall within its jurisdiction and function.

It was not a question of how the YDPN had exercised his discretion – which the court had no jurisdiction to decide.

The Supreme Court upheld the High Court decision.

The Perak case: Datuk Nizar Jamaluddin v Datuk Seri Zambry Abdul Kadir

In 2009, Perak Sultan Raja Azlan Shah refused to dissolve the state assembly upon the request by the then mentri besar Nizar Jamaluddin. Instead of deferring to the state assembly to determine who had the confidence of the majority, the sultan opted to interview the members of the state assembly. His Majesty concluded that Nizar had lost the confidence of a majority of the assembly and asked for his resignation. Nizar was thus ousted without any vote in the assembly.

Nizar brought an action in court to challenge the appointment by the sultan. The High Court decided in Nizar’s favour; but the Court of Appeal, and later the Federal Court, upheld the appointment.

The courts read into the Perak Constitution a conventional power for the sultan to declare the office of MB vacant, without a vote in the assembly. The decision broke “new ground in allowing the ruler considerable latitude, which is not apparent in the constitutional text or in general understandings of constitutional conventions, to reach his own judgment as to the issue of the legislature’s continued confidence in the Head of Government” (Andrew Harding, The Constitution of Malaysia: A Contextual Analysis).

Note that all state constitutions have identical provisions empowering the sultan/YDPN to appoint state MBs. The king also acts under a similar provision in the Federal Constitution: Article 43(2)(a).

This Federal Court decision was approved last year when the High Court rejected Tan Sri Musa Aman’s challenge of the appointment of Datuk Seri Shafie Apdal as chief minister by the YDPN.

Conclusion

Through these decisions, our highest court has established the undoubted right of litigants to challenge the appointment of the prime minister or mentri besar by the ruler. To say that this will denigrate the institution of the monarchy is to misunderstand the power of the courts to decide issues that are legal and constitutional in nature. Else the rule of law, an integral pillar of the basic structure of the Federal Constitution, will be undermined.

One final comment. Courts cannot decide questions that are political in nature. Indeed, most of these cases have a distinct political flavour. Nonetheless, as declared by the UK Supreme Court recently “… although the courts cannot decide political questions, the fact that a legal dispute … arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. … Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense”: Lady Hale, R (Miller) v The Prime Minister (2019) UKSC 41.

Gurdial, a former law professor, now practises law and President of the National Human Rights Society (HAKAM). 

HAKAM Urges the National Art Gallery to Uphold Freedom of Artistic Expression – Statement dd 10/02/2020

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HAKAM notes with grave concern the National Art Gallery’s decision to take down 4 paintings of visual artist Ahmad Fuad Osman’s exhibition titled “At The End Of The Day Even Art Is Not Important (1990-2019)”.

Ahmad Fuad Osman’s installation ‘Mak Bapak Borek, Anak Cucu Cicit Pun Rintik’ (2015-2018). Photo: Handout – Source the Star

This was reportedly pursuant to a complaint by a board member of the National Art Gallery itself. Some of the 4 paintings depicted politicians or contained political elements. This lead to Ahmad Fuad’s request to close down the entire exhibition.

HAKAM condemns the National Art Gallery’s decision to curtail & censor artistic expression. Freedom of artistic expression is part & parcel of the freedom of speech protected under Article 10 of the Federal Constitution.

Politics plays a big part in our everyday lives. Art, in turn, is a reflection of life. Politics should not in any way be deemed as “sensitive”, “unsuitable” or “undesirable” in the arts. In fact, the arts should readily comment, critique & satirise politics in order to produce an enlightened electorate. The National Art Gallery – of all bodies – should hold true to these principles.

Ahmad Fuad Osman’s ‘Dreaming Of Being A Somebody Afraid Of Being A Nobody’ (UV print on mirror, 2019). Source The Star/Ong Soon Hin

HAKAM therefore urges the National Art Gallery to revoke its decision to take down Ahmad Fuad Osman’s 4 paintings.

HAKAM also requests for the National Art Gallery & the Ministry of Tourism, Arts & Culture’s commitment to not censor artistic expression in the future & to fully respect the freedom of artistic expression.

Lim Wei Jiet

HAKAM Secretary-General

10.2.2020 – HAKAM Urges the National Art Gallery to Uphold Freedom of Artistic Expression

Review Disabled Man’s Conviction for Attempted Suicide & Repeal Section 309 of the Penal Code – Statement dd 3 February 2020

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HAKAM urges the Attorney General’s Chambers to review the Kuala Terengganu Magistrate Court’s recent conviction and sentence to 7 months jail of a disabled man for attempted suicide.

Such charges under Section 309 of the Penal Code should never have been instituted in the first place. There is a serious lack of compassion and humanity in the criminal justice system if a disabled man who has reached such a desperate position in life is punished even further with a jail term. The law should not only be concerned with penalties, but must be tampered with mercy and kindness.
HAKAM calls for the disabled man to be given psychiatric assistance in a suitable institution, and not imprisonment where his mental health would likely deteriorate further.

HAKAM further calls for the Government to consider repealing the offence of attempt to commit suicide under Section 309 of the Penal Code. Other Commonwealth countries such as the UK, India and Singapore have already done the same. Malaysia is one of the only few countries which still retain this archaic law in our statute books. This recent conviction encapsulates everything that is wrong with such law.

Lim Wei Jiet
HAKAM Secretary-General

HAKAM Applauds Malaysia’s Best Ever Score in EIU’s Democracy Index 2019 – Statement dd 02/04/2020

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HAKAM applauds Malaysia’s best score and rank to date on the Economist Intelligence Unit (EIU)’s Democracy Index. Malaysia is now placed 43rd out of 167 countries, with a score of 7.16 from a maximum score of 10. This is a marked improvement from being scored 5.98 to 6.88 in the previous years since the index started in 2006.

Unfortunately, the rest of the world has regressed in human rights – this year saw the worst average global score since the index started in 2006. That Malaysia has beaten this global trend is a testament of the many strides the Government has undertaken to improve democracy since GE14.

HAKAM nonetheless urges the Government to not rest on its laurels and to expedite its reform agenda. It is reported that Malaysia’s score on the functioning of government (7.86), political participation (6.67), political culture (6.25) and civil liberties (5.88) have remained stagnant. Steps must be taken by the Government to improve Malaysia’s score on such crucial fronts.

HAKAM hereby urges the Government to steadfastly proceed with the following human rights reforms in Malaysia as a first step to improve its performance in EIU’s Democracy Index:

  • Establish an effective Independent Police Complaints & Misconduct Commission (IPCMC);
  • Abolish laws which restrict freedom of speech such as the Sedition Act 1948, Section 233 of the Communications & Multimedia Act 1998 & the Printing Presses and Publications Act 1984;
  • Abolish oppressive detention without trial laws such as the Security Offences (Special Measures) Act 2012 (SOSMA), Prevention of Terrorism Act 2015 (POTA) & Prevention of Crime Act 1959;
  • Abolish the death penalty in all forms;
  • Improve the living condition of prisons & immigration detention centres;
  • Enact a Freedom of Information Act; and
  • Comprehensively overhaul the education syllabus to educate the young on the importance of human rights, democracy and the rule of law.

Malaysia has the opportunity over the next few years to be a beacon of democracy in a world where democracy is slowly dimming. Let us all not squander such chance.

Lim Wei Jiet

Secretary-General of HAKAM

HAKAM Statement – 3.2.2020

Lawyers challenge Singapore attempt to use ‘fake news’ law over prison killings claim

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From Free Malaysia Today

Lawyers for Liberty adviser N Surendran, flanked by Gurdial Singh Nijar and LFL director Melissa Sasidaran, talking to reporters. Pic from FMT.

Lawyers for Liberty (LFL) is seeking to declare as illegal an order issued by Singapore’s home minister, under its anti-fake news law, over claims by the rights group on brutal extra-legal execution methods carried out at the Changi Prison.

In a suit filed at the High Court registry today, LFL is also seeking a court pronouncement that the minister, or anyone acting under his authority, could not act to enforce any provision of the Protection from Online Falsehoods and Manipulation Act (Pofma).

“A correction direction issued by Singapore under Pofma is illegal, oppressive and an attempt to silence Malaysian citizens from exercising their right to free speech in Malaysia,” they said.

Apart from LFL, the other plaintiffs are its adviser, N Surendran, and director Melissa Sasidaran.

Minister K Shanmugam is named as the defendant.

The swift action came about after LFL claimed it had received evidence of such methods by prison guards in the event the hanging procedure fails during execution.

Surendran, who is also a lawyer, alleged that if the rope broke during a hanging, a prison officer would pull the rope that was around the neck of the prisoner towards him.

“Meanwhile, another prison officer will apply pressure by pulling the body in the opposite direction.” he had said.

Saying the details were shared by a former executioner at Changi Prison, Surendran said prison guards would kick the convict’s back “with great force in order to break it”, while ensuring there would be no tell-tale marks in case there was an autopsy.

Singapore said the claims were “untrue, baseless and preposterous allegations”, adding that all judicial executions in the state were carried out in strict compliance with the law.

It also instructed the Pofma office to issue a “correction direction” against LFL’s statement on its website.

Meanwhile, lawyer Gurdial Singh Nijar said this was an unusual action against Singapore as the penalty for violating Pofma carried a jail term.

“They can issue a warrant of arrest against Surendran and Melissa to face charges there,” he said.

Gurdial, who is taking up the case with Ambiga Sreenevasan, said the minister could rely on sovereign immunity in not responding to the suit but, at the same time, he had encroached into fundamental rights of Malaysian citizens.

“You cannot extend your laws against the citizens of another nation,” Gurdial said, adding that he hoped the minister would contest the action in the Malaysian court.

Meanwhile, Ambiga said it was imperative for the plaintiffs to file this action against the minister as the new Malaysian government has repealed its Anti-Fake News Act.

Meanwhile, in an affidavit in support of the action, the plaintiffs said LFL’s statement issued on Jan 16 was in the public interest as there were many Malaysians facing the death penalty in Singapore.

They said the minister issued an order to do a correction and failure to do so was an offence under Pofma, which carried a fine of up to S$20,000 or a maximum jail sentence of 12 months for individuals.

They said LFL had issued a press statement three days ago dismissing the minister’s stand.

Transparency the key to trust

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From the Sundaily

WE the people need to have faith in the government. Believing in what it says and does. And its promises for the future. For this to happen, the government must disclose its plans and policies in a way that is easily understood by the people. And then engage them in a participatory process, seeking their feedback and shaping its policies and plans to accord with the wishes of society. This requires it to be transparent to help strengthen citizens’ trust in policymakers and thus enhance the accountability of public administrations.

In short, transparency is the key to citizens’ trust. This appears to be sadly lacking in the New Malaysia as pointed out at a forum organised by the National Human Rights Society (Hakam) last weekend. It centred around the failure of the government to release the report of the Institutional Reform Committee (IRC). Recall that the reform agenda was central in PH’s election campaign: reforms to ensure that public institutions will be insulated in the future from being subverted. Prime Minister Tun Dr Mahathir Mohamad in his recent Che Det blog posting acknowledged as much. That PH took over from a kleptocratic government, which among other ills, had “destroyed its finances, undermined its administrative agencies and abused the laws … and generally undermined the moral of the people”.

What is now taking the wind out of the sails of reform is the refusal of the government to release the reports not just of IRC but as well that of its superior body – the Council of Eminent Persons. The people participated in these processes with an unrestrained gush of passion and enthusiasm. And the IRC’s panel worked tirelessly to produce its recommendations.

The expectation was that this new participatory process would form the new ethos of good governance. Resonating with the caution delivered by Lord Bingham head of the UK judiciary in a 2003 court decision (R v Shayler): “There can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated. Experience shows that publicity is a powerful disinfectant”.

You can hardly blame the electorate for handing a litany of by-election defeats to PH and its allies. An unconditional declaration of its disillusionment. And, charitably, the expectation that the government will heed the signals and return to the path of delivering on its promises with public involvement. Promises which roused the electorate to sweep it into power.

Let’s survey the “disenchantment landscape”. First, the laws either enacted or employed by the previous government in its twilight years to suppress the people – laws like Sosma and the Sedition Act.

All are very much alive and kicking under the new regime. I remain convinced that the IRC made concrete and incredibly useful recommendations for reform, which the government has kept under wraps. The peoples’ disenchantment was reflected in a well-patronised vigil last Saturday against the continued use of these laws.

Then there is a cheerful and optimistic forecast of the economy. When the reality may not be quite that – with ministers telling us that all is hunky-dory, as a columnist wrote in the Sunday Star. The cost of living is the biggest problem. On the ground, SMEs, retailers and hawkers will tell you their business is bad, by one account. The cost of doing business is high, they complain. There have yet to be solutions proffered, discussed and implemented that inspire confidence in the rakyat that all will turn out for the better sometime soon.

Then the lack of verve and commitment to curb strident voices spewing hatred that spawns racial disunity and religious animosity. Racial and religious disunity is at an all-time high.

An opposition leader recently spoke of ministers talking without a clear policy and considerations of the viability of the projects they propose. And that Cabinet ministers leave meetings saying they do not agree with some decisions. While there may be little truth in these allegations, yet these views gain currency when the people are delinked from policy formulation and implementation.

Such is the frustration that it led Ambiga, a member of the IRC, to announce at Hakam’s forum that people will take to the streets if the promised reforms fail to materialise timeously.

The message is clear. Gain the trust through transparency. The quality of transparency, like “mercy” in Shakespeare’s Merchant of Venice “… is not strained. It droppeth as a gentle rain from heaven upon the place beneath. It is twice blessed. It blesseth him that gives and him that takes”. So it benefits the government and the governed.

Trust and accountability go hand in hand. Trust in political institutions is a key element of representative democracies. Trust in the rule of law is also the basis for democratic participation of citizens. All clear indications that trust is an essential condition of good governance.

Dato’ Dr. Gurdial Singh Nijar is the President of HAKAM.

Institutional Reform Committee (IRC) Report: Why the Secrecy? HAKAM Forum dated 18 January 2020

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“IRC Report: Why the Secrecy?” was the first HAKAM forum of 2020, held on 18 January 2020 at the KL and Selangor Chinese Assembly Hall. The well-attended forum started at 10:00 am and was led by a panel of distinguished guests, who all had been involved and well-informed of the IRC process; Dato’ Ambiga Sreenevasan (IRC member and former President of HAKAM), Ms. Siti Kasim (Maju), and Mr. Sevan Doraisamy (Suaram) and the panel was moderated by Dato’ Dr. Gurdial Singh Nijar (HAKAM President). The presentations of the forum speakers were followed by a Q&A session, and the forum ended at 12:00 pm.

In October last year, prime minister Tun Dr Mahathir Mohamad said the confidential report by the IRC and its seven recommendations that have been passed to the quasi-official Council of Eminent Persons can only be made public once all Pakatan Harapan (PH) component parties agree to it.

Key points from the forum on the issue of the release of the IRC Report to the public included:

  • Dato’ Ambiga suggested a pilot pilot project by “releasing just one set of recommendations [by IRC] and see whether the government falls down the next day.”
  • Dato’ Ambiga said she does not know the real reason why PH did not want it to be released but she would “charitably” assume that it is because of public and voters’ perception towards the already much-criticised administration.
  • By withholding the report, the government has denied the public and their own supporters the opportunity to be involved in making the country a better place, something that was promised by PH when they rolled out their election manifesto before 2018 election.
  • Siti Kasim pointed out that transparency is the cornerstone of good governance, hence the Pakatan Harapan (PH) government should make public the Institutional Reforms Committee (IRC) report.
  • Sevan suggested that all CSO and NGOs who have contributed to the making of the report, can release their own recommendations to the IRC, which in effect is a major part of what the IRC has referred to in its process, and this way the public can have access to the institutional problems pointed out and recommended reforms.
  • Dato’ Dr. Gurdial mentioned that HAKAM has been following up the release of the Report with the PM, Tun Dr. Mahathir Mohamad and will continue to do so until the people can know the content of the report.

Gallery:

HAKAM wishes to thank everyone who came to the forum and the media for covering the event. See you all next time!

HAKAM Forum Media Coverage:

The Malay Mail Online

Malaysiakini

Malaysiakini

The Malaysian Insight

Sinar Harian