Joint Statement: Ensure IPCMC Set Up Without Delay

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4 Dec 2019

The undersigned civil society organisations are concerned at the sudden announcement by the government on 3 Dec 2019 that the second reading of the Independent Police Complaints and Misconduct Commission (IPCMC) Bill would be postponed to next year. This is especially concerning since it had already been announced on 2 Dec 2019 that the chair of the Special Select Committee on Bill Considerations YB Ramkarpal Singh would table the motion for the bill to be debated on 3 Dec 2019.

In our view, the formation of the IPCMC is one of the most important reforms in new Malaysia. The need for an independent oversight body focused on improving professional standards of the police and ensuring accountability for any alleged misconduct is a long-standing issue and cannot be put off any longer.

Despite the formation of the Enforcement Agency Integrity Commission (EAIC) 10 years ago, unfortunately, there are still regular reports of alleged police brutality, questionable police shootings and deaths in custody and outright corruption. Importantly, the EAIC does not have the power to initiate disciplinary proceedings against the police, despite findings of misconduct. We have thus seen cases where the EAIC has found serious misconduct such as tampering with diary entries and making false police reports by police officers, but have not seen any corresponding disciplinary action by the police.

The undersigned civil society organisations have participated actively in the consultations that have been held by Minister in the Prime Minister’s Department Datuk Liew Vui Keong together with the Governance, Integrity and Anti-Corruption Commission (GIACC). Although we were disappointed that the bill was not made available for comment before it was presented in Parliament for first reading, we are nevertheless encouraged by the unprecedented level of engagement from the government after that point. We have submitted our oral and written views on how we thought the bill could be improved and brought in line with international best practices.

We were also part of the consultations held by the bipartisan Special Select Committee chaired by YB Ramkarpal Singh, where oral and written submissions were also made. We commend the government and the Special Select Committee for engaging with stakeholders on this issue. We are heartened that some of our submissions have been taken into account in the amendments that have been proposed by the government and by the Special Select Committee.

We hope that the delay is indeed to fine-tune the bill and not due to inordinate pressure against the bill. We note that the police have concerns regarding the commission having disciplinary powers over them. We would like to point out however, that these powers will be exercised not by the Commission directly, but by separate disciplinary boards that will consist of commission members, a representative from the police force and a representative from the Police Force Commission.

We hope that the government will remain true to its manifesto promise to establish the IPCMC without delay and we remain committed to engaging with them and supporting this effort wherever we can.

Endorsing organisations:
1. Suara Rakyat Malaysia (Suaram)
2. Society for the Promotion of Human Rights (Proham)
3. Justice for Sisters
4. Malaysian Action for Justice and Unity (MAJU)
5. Center to Combat Corruption & Cronyism (C4 Center)
6. National Human Rights Society (HAKAM)

In blow to Sosma, High Court allows DAP rep detained over LTTE links to seek bail

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From the Malay Mail

KUALA LUMPUR, Nov 29 — Lawyers acting for G. Saminathan convinced the High Court today that the DAP assemblyman was entitled to bail despite the invocation of the Security Offences (Special Measures) Act for his detention, according to Bernama.

G. Saminathan was among 12 people including Seremban Jaya assemblyman P. Gunasekaran who were detained using the Sosma and charged over alleged links to the Liberation Tigers of Tamil Eelam. Pic from the Reuters

Provisions of the security law that allows detention without trial prohibit bail.

Saminathan was among 12 people including Seremban Jaya assemblyman P. Gunasekaran who were detained using the Sosma and charged over alleged links to the Liberation Tigers of Tamil Eelam.

The Malaysiakini news portal reported judge Mohd Nazlan Ghazali as finding that the Sosma provision that barred the courts from considering bail to be unconstitutional as it effectively allowed the executive to override the judiciary, violating the separation of powers among the different branches of government.

The landmark decision will also benefit the others still detained using the preventive detention law despite already being charged with supporting or possessing material related to the defunct Sri Lankan terrorist group.

Lawyer Ramkarpal Singh, who represented the DAP lawmaker, previously argued that the provision denying Sosma detainees bail was an overreach of the constitutional article that allowed the passage of security laws that may infringe on some civil liberties.

Among others, he said this effectively usurped the role of the judiciary as well as its lawful discretion in such matters.

On November 1, the Sessions Court decided that there was merit in the application filed by Saminathan and 11 others to challenge their prevention of bail under the Sosma and referred the matter to the High Court.

Aside from Saminathan and Gunasekaran, the others detained are V. Balamurugan; S. Teran; A. Kalaimughilan; S. Chandru; S. Arivainthan; S. Thanagaraj; M. Pumugan; R. Sundram; V. Suresh Kumar and B. Subramaniam.

They were variously arrested in October and charged at the end of the month with offences related to the LTTE.

The Sosma was among security laws the Pakatan Harapan coalition had suggested it would repeal while campaigning in the 14th general election but which it has since said would simply be reviewed now that it is in power.

IRC Report – why the secrecy?

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From the Sun Daily

A CRUCIAL expectation of people in voting out the old and ushering in a new government was the promise of participatory politics. Where the voices of the rakyat will be heard and responded to; with accountability of those in power; the abolishment of all arbitrary laws; and the removal of those who had compromised the public trust.

Indeed the PH government responded brilliantly. With the prompt establishment especially of the Institutional Reform Committee (IRC) comprising persons of impeccable integrity.

The IRC sat through endless hours listening to countless voices: from the professional to ordinary persons clustered in groups. It produced, so says the grapevine, a comprehensive report of moving the nation forward in ways considered anathema in the past.

What should have followed was an active debate of the report and ultimate feedback from all and sundry. And the implementation of those recommendations considered doable. On a scale and time-span: immediate, mid-term and long term.

But the IRC report has yet to be released, thwarting a public discussion.

The reason given by no less than the prime minister himself at a recent forum in response to a question from the floor by past Bersih chairperson, Ambiga Sreenevasan (which question received a thunderous audience response) was that there were parties within the ruling coalition that objected to its release.

Who are these parties? What is their reason for this stance? What do they make of their manifesto promise of an inclusive governance system and institutional reforms to implement just that?

The manifesto promised openness in government. That institutions will be established or strengthened to ensure that future governments will have no space to abuse its powers. And the public will be able to contribute to the making of policy; and the actions of government are properly scrutinised and evaluated and decision-makers held accountable. This makes essential disclosure of the report.

Significantly, the PH manifesto promised to revise the Official Secrets Act; and enact a Freedom of Information Act. Promise of a new ethos of governance.

As Lord Bingham head of the UK judiciary remarked in a 2003 court decision (R v Shayler):

“Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated. Sometimes, inevitably, those involved in the conduct of government, as in any other walk of life, are guilty of error, incompetence, misbehaviour, dereliction of duty, even dishonesty and malpractice. Those concerned may very strongly wish that the facts relating to such matters are not made public. Publicity may reflect discredit on them or their predecessors. It may embarrass the authorities. It may impede the process of administration. Experience however shows, in this country and elsewhere, that publicity is a powerful disinfectant. Where abuses are exposed, they can be remedied. Even where abuses have already been remedied, the public may be entitled to know that they occurred.”

Secrecy begets arbitrariness and misgovernment. It deprives the electorate of information about the processes of government. As the past reveals: an AG dismissed, investigative committees and other institutions scuttled or undermined. So, processes “where they are bad remain bad and get worse in the dark”.

When the 1980s scandal surrounding the massive losses of Bank Bumiputra Finance in Hong Kong emerged, the Inquiry Committee Report was not made public, raising allegations of whitewash and complicity. Given that Bank Bumi is government-owned and monitored by the Ministry of Finance and Bank Negara. It took massive public reaction and even a court action before the report was finally released.

Of course for cogent reasons (national security and the like) specific parts can be redacted.

The electorate is now savvy and reacts unkindly to what it perceives as cover-ups or broken or delayed promises. Secrecy fans these perceptions. The Blair government’s concealment of proper information on weapons of mass destruction led to Britain’s participation in the Iraq war. For which several young British soldiers paid dearly with their lives.

So a timely reminder. “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them”: Patrick Henry, renowned American colonial revolutionary.

Gurdial a former law professor is currently president of Hakam, the national Human Rights Society.

Recent Myanmar/Bangladesh ICC decision reinforces flaws in alleged academics’ presentation to Rulers – Lim Wei Jiet 

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From Malay Mail Online

Yesterday, the International Criminal Court’s Pre-Trial Chamber III announced its “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar,” whereby the ICC authorised the Prosecutor to commence investigations into crimes in Myanmar/Bangladesh.

For context, under Article 13 of the Rome Statute, there are 3 ways to trigger the ICC’s jurisdiction in respect of the crimes listed in Article 5 (genocide, crimes against humanity, war crimes & the crimes of aggression):

(a) a referral by a State Party to the Prosecutor;

(b) a referral by the United Nations Security Council to the Prosecutor; and

(c) the Prosecutor itself initiates an investigation (investigation proprio motu).

In this instance, the third method was triggered – the Prosecutor sought to initiate an investigation proprio motu. It is a requirement under Article 15 of the Rome Statute for the Prosecutor to seek authorisation from the ICC beforehand.

At this stage, the ICC needs to consider two factors in order to decide whether authorization should be given:

(i) if the case appears to fall within the jurisdiction of the Court; and

(ii) if there is a “reasonable basis” to proceed with an investigation

The ICC found that both factors have been fufliled. Consequently, the ICC authorised the Prosecutor to commence investigation propio motu.

While the ICC decision must be celebrated, it also reinforces the flaws contained in the alleged academic presentation to the Council of Rulers dated 2 nd April 2019 (I have previously critiqued on the presentation here.  The Malaysian Government withdrew from the Rome Statute on April 5, 2019 The presentation was leaked to the public by a student activist on April 7, 2019.

The Crime of ‘Deportation’

The alleged academic presentation to the Council of Rulers boldly asserts as follows: “Malaysia yang tidak terjejas apa-apa dengan jenayah ini dan tidak terkat dengan krisis Rohingya di Myanmar tidak boleh memaksa ICC untuk mengambil tindakan ke atas Myanmar walaupun selepas menjadi ahil statut Rom. Hanya Myanmar sahaja yang boleh membawa kes ini ke ICC dengan sendirinya oleh kerana jenayah berlaku di dalam wilayahnya. Tetapi kemungkinan kes ini dibawa oleh Myanmar ke ICC adalah sangat rendah…”

The first flaw: This statement is based on an erroneous assumption that crimes were conducted exclusively within the borders of Myanmar (a non-State party) and not within the borders of any State party, and hence no State party can refer the matter to the ICC. In other words, there is no territorial link.

The academics completely failed to take into account the crime of “deportation,” which is a “crime against humanity” under Article 7(d) of the Rome Statute. The crime of “deportation” happens when the perpetrator deports without grounds persons to another State or location, by expulsion or other coercive acts.

The ICC’s recent decision, in essence, held that it has territorial jurisdiction over Myanmar’s alleged “deportation” of Rohingya people because the victims crossed into the borders of Bangladesh (a State Party) — the crime may have began in Myanmar but was “completed” when the victims entered Bangladesh.

At the outset, whenever a crime of “deportation” occurs or is completed within the territory of a State party, then any State party to the Rome Statute can refer the matter to the Prosecutor for further action (see Article 14).

This means that, even if Bangladesh as a State party does not refer the matter to the Prosecutor, Malaysia as a State party can refer the matter to the Prosecutor. It is a symbolic fact that all States have an interest in the repression of international crimes.

But even if we accept the academics’ line of reasoning that a State party can only make a reference if a crime occurs within its territory, there is good ground to believe — based on the ICC’s recent decision — that Malaysia does indeed have territorial link to the crime of “deportation” of Rohingya people.

Tens of thousands of Rohingya people have since crossed by boats into Malaysian territory and have remained in our borders for refuge. Tun Dr Mahathir Mohamad confirmed in his speech to the United Nation’s General Assembly on September 25, 2019 that “we are also hosting close to 100,000 registered Rohingya refugees. There are many more unregistered. While this may seem like a small number compared to those in Bangladesh, plenty of resources have been dedicated to allow them a decent life while they await relocation to a third country.”

In other words, if Malaysia ratifies the Rome Statute, there is a solid case to argue that it can refer the matter directly to the Prosecutor under Article 13(a) to trigger a case for the crime of “aggression” by Myanmar against the Rohingya people. The academics’ views that Malaysia is “tidak terjejas” and cannot make a difference to the Rohingya people before the ICC is hence fundamentally wrong.

The Complementarity Principle

The second flaw of the alleged academic presentation is when they made this statement: “Di dalam konteks Malaysia, tafsiran “tidak mahu atau tidak mampu” untuk menyiasat atau mendakwa hanyalah berdasarkan keputusan Pendakwa ICC semata-mata.”

This is highly problematic from the onset. Article 17 of the Rome Statute clearly provides that it is the ICC — and not the Prosecutor — which decides whether the “unable or unwilling” principle has been fulfilled.

The ICC noted that Myanmar has thus far not raised any objections to the admissibility of this case on the complementarity principle, and said that it may receive such objections in the future and will decide accordingly. The ICC in its recent judgement reaffirms that the ICC, not the Prosecutor, is the sole adjudicator on whether the “unable or unwilling” (“tidak mahu atau tidak mampu”) principle is complied with (see para 115-117).

The impression given by the academics if Malaysia is a State party, it may be at the mercy of a biased Prosecutor who may unilaterally decide on whether our local criminal justice system has been able and willing to prosecute Rome Statute crimes. But that is not the case at all — that decision lies ultimately on a panel of independent ICC judges who will give parties a right to be heard.

Conclusion

One must recall that the abovementioned ICC’s recent decision regarding jurisdiction in respect of the crime of “deportation” and the complementarity principle are not novel. They are trite principles in international law — the ICC’s recent decision merely reinforced the same.

In fact, the ICC’s Pre-Trial Chamber I decision dated September 6, 2018 on “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” decided on these same issues — many months before the alleged

academic presentation dated April 2, 2019.

It is deeply unfortunate and saddening that the abovementioned perspectives were not brought to the attention of the powers-that-be, particularly when ratification of the Rome Statute was such an important foreign policy agenda for Malaysia.

* Lim Wei Jiet is a constitutional lawyer and secretary-general of the National Human Rights Society (Hakam).

 

Pastor Koh and Amri: 1000 days of disappearance

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The following speech was given by HAKAM President, Dato’ Dr. Gurdial Singh Nijar, at the memorial held for the 1000th day of Pastor Koh and Amri Che Mat disappearance, on 16th November 2019.

Pastor Raymond Koh, and Amri Che Mat.

1000 days of disappearance

This event marks one of the most tragic developments in the law and order and governance history of the country. It has introduced a word in our vocabulary that was completely alien to us. The word: “enforced disappearance”. Even lawyers are slowly coming to terms with what it really encompasses. Stripped of legalese it means that the State (through any of its agencies) abducts a person and makes him disappear.

What is this function about? It is a reminder – a stark reminder – of how low we have spiralled down into a terrible abyss in our law and order framework. It mars the governance and Rule of Law ethos that New Malaysia is seeking to establish as part of its reform agenda.

Let me recount some significant milestones and events in the incidents.

  1. There was a certain amount of inertia by the authorities when the initial disappearance was reported on the same day shortly by a witness to the abduction – a law chambering person Roshan. Only the strenuous efforts of the children Esther and Jonathan yielded the smoking gun – a video that showed a 50-second professionally-executed abduction operation by a convoy of 7 vehicles – replete with 15 or so masked baclava clad personnel. And in the morning in a well-known residential area.

 

  1. The follow up seemed to lack the rigour and robustness that our special branch and police have a reputation for. Each time the investigations ended in an un-penetrate-able blank wall.

 

  1. To its credit, it was SUHAKAM that took up the cudgels to initiate hearings into the inexplicable disappearances of our fellow human beings.

 

  1. The hearings were characterised by some extraordinary events. The more significant ones:

 

  1. Early on in the hearing, there was a threat to open investigation papers against the lawyers for misleading the enquiry into implicating the police. This ended with an apology by the police when it was established that the alleged misleading evidence was an extract from the webpage of the police.
  2. Midway through the hearing, at a critical stage as evidence was mounting showing complicity, the then IGP issued a letter to say that SUHAKAM cease the hearing as they had now found a person – one Lam Chang Nam – which their investigations showed had kidnapped the good Pastor. Along with several others at large. This letter was on 15 January 2018. The SUHAKAM Act does say that once criminal proceedings commence its hearings and proceedings should cease.
  3. What was remarkable about this dramatic turn of events was that high police officials had testified earlier on oath that the special task force had established that Lam was a liar who was trying to extort money from the family by falsely alleging that he had information where to find the Pastor. And was being prosecuted for that.
  4. Former and then IGP Tan Sri Khalid said that Lam was not involved in the abduction. And that the abduction was tied up with some group in Thailand.
  5. It took sometime but we successfully convinced SUHAKAM to continue with the enquiry. On the basis that the charge against Lam and the issue of enforced disappearance were different. The latter was about whether or not the state (or any agency) was involved in the abduction, regardless of who had carried it out. SUHAKAM delivered a comprehensive and remarkably lucid judgment on this point.
  6. This charge against Lam: There is an incredulous paucity of information on the pace this case against Lam is proceeding. And a distinct lack of publicity. He is charged under section 365 of the Penal Code, which reads: Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine. This implies that the police investigations show that Lam has secretly confined the person. What and where?

The Findings

  1. SUHAKAM found that:

 

  1. Both Amri and Pastor Koh were victims of enforced disappearance;
  2. The abduction was executed by or with the support of state agents -the Special Branch;
  3. Both were targeted for allegedly being anti-Islam.

The follow-up

  1. SUHAKAM’s long and thorough inquiry had established the ‘what’. And ‘how’. What remained was the ‘who’; who authorised it and who carried it out.

 

  1. The logical follow-up should have been to carry out an independent and thorough investigation focused on who perpetrated it and flushing out the culprits; and taking appropriate action.

 

  1. However, the government at first dithered, then appointed a taskforce whose membership raised grave concerns; and finally after the removal and resignation of some members, the taskforce seems to be on track to conduct and conclude their work.

 

  1. Nonetheless there are feedbacks of disquieting features as to the way the inquiry is being conducted. As a preliminary observation there seems to be no publicity as to its proceedings. What happened to the requirement for transparency and accountability?

As to other facets – prudence being the better part of valour – we need not air here as there could well be potential legal redress contemplated if there is dissatisfaction with the process and outcome of the taskforce in its investigation into the clear and damning findings of SUHAKAM.

Conclusion

1000 days of an unsolved clear crime is a grave blot to any functioning democracy. The government must leave no stone unturned to get to the bottom of this and restore Pastor Koh and Amri to the fold of his family and friends – which include all of us gathered here today.

While I have the floor, may I also add that as President of HAKAM, the National Human Rights Society (incidentally founded by our first and third Prime Ministers), and on its behalf we add our voice and commitment to the quest for the search for truth and justice in maintaining and upholding human rights; which includes our utter abhorrence and condemnation of this crime of ‘enforced disappearance’.

May this 1000 days’ event trigger a fresh resolve and impetus to banish from our body politic and country the scourge represented by the enforced disappearance of Pastor Koh and Amri.

 

Gurdial Singh Nijar (Dato’, Dr.)

16 November 2019

Why Sosma must go – the Sundaily

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SECURITY Offences (Special Measure) Act (Sosma) is in sharp focus once again. With the arrest and charging of 12 men over purported links to the defunct terrorist group, Liberation Tigers of Tamil Eelam (LTTE). The men have been slapped with charges under the Penal Code – which criminalises acts that solicit or give support to terrorist groups or the commission of terrorist acts.

Sosma regulates the trial of these offences and does not create the offence.

This is how it works. For certain designated “security offences”, the person can be arrested, imprisoned and tried in court using special Sosma procedures. These are completely at variance from the regular criminal procedures that criminal courts have been using all this while.

To begin with, a police officer can arrest a person without a warrant of arrest and his period of detention extended to 28 days – entirely based on the police officer’s “reason to believe” that the person is involved in a security offence.

Whereas in normal criminal cases, he must be brought before a magistrate. The police must then justify his detention. The magistrate scrutinises the reasons and decides whether or not to allow the detention; and, if so, for how long – usually a couple of days.

This is an important safeguard provision. As explained by Justice KC Vohrah in Re Detention of R Sivarasa & Ors. So that “… the detention by the police of a person beyond 24 hours after his arrest is not as a result of an executive act but as a result of a judicial decision in consonance with Article 5(4) of the Federal Constitution”.

This safeguard is eliminated by Sosma, thus resurrecting ISA’s detention without trial.

As indeed happened when former Bersih chief, Maria Chin Abdullah was arrested and imprisoned under Sosma on the eve of the last Bersih rally. For this wrongful detention she was recently awarded damages.

Sosma was also used to arrest and imprison a lawyer and his client for their act in reporting the misappropriation of 1MDB-related funds to the Swiss attorney-general. Alleging that they were sabotaging the banking and financial services of Malaysia. The Court of Appeal threw out the charge on the ground that such a charge could not be the subject of Sosma. Also struck out in another case was a Sosma charge of making fraudulent travel passports.

A crowning obnoxious provision is that a person is denied bail even after being acquitted by the trial court. So this innocent person remains in jail for all the long years it takes for the court appeal process to be exhausted and the appeal finally disposed of.

As the present Chief Justice Tengku Maimun made clear in PP v Khairuddin, a person thus denied bail loses his liberty. And the right to the constitutionally-guaranteed fundamental rights and freedoms.

Women and persons below 18 years will, in lieu of bail, be shackled with an electronic monitoring device. Abolished as well is the usual mandatory requirement to give the accused his prior written statement to the police; or any documents or written facts favourable to the accused before the trial starts. A mere summary suffices. Nor is there a right of appeal to get any such information that the judge rules as “sensitive” upon the prosecution’s say-so.

The prosecution is entitled to withhold disclosure of the identity of a witness on an oral application. The witness can then give evidence in such a manner that he would not be seen or heard by both the accused and his counsel. Evidence can be given even if contrary to the Evidence Act.

In short, the regular protective provisions to ensure that an innocent person is not convicted are jettisoned.

All this done in the name of the security of the nation. Undoubtedly, maintenance of the security of the state is indeed vital. Without which it is not possible for the state to protect other values and interests guaranteed by the constitution.

But then history is replete with instances of governments misusing the cloak of “national security” to extend their own political shelf lives. The citizenry’s human rights are posited against the avowed claim of “national security”.

A civilised nation must necessarily reconcile the obligation to guarantee these rights with the need to maintain national security without bruising both. The basis of the reconciliation has to be managed within the context of a nation functioning under the rule of law. That means no arbitrary action or process and no action taken against persons that does not pass the test of reasonableness, fairness and compliance with certain core values of basic rights.

Recall that it was the mantra of the new government, firmly embedded in the manifesto, that the rule of law will reign supreme; and that all draconian laws will be repealed. Sosma qualifies without contest.

The UK House of Lords in A v Secretary of State for the Home Department in a case involving detention without trial of suspected international terrorists warned:

“A portentous but non-specific appeal to the interests of national security can be used as a cloak for arbitrary and oppressive action on the part of government; and – national security can be the last refuge of tyrants”.

One final point. LTTE ceased to exist after its military defeat in 2009. Whatever its designation before, you simply cannot commit or facilitate the commission of a terrorist act of a non-existent group. Is it not akin to issuing a cheque to a company that has long since ceased to exist?

Gurdial a former law professor is the president of Hakam the national human rights society. 

[23rd December 2018] TAKE STRONG MEASURES TO CHECK RACIAL DISUNITY

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HAKAM views with deep remorse the tragic and untimely death of fireman Adib Mohd Kassim. He paid for his life dearly in the line of his calling. With untold suffering of his fiancé and family.

No doubt it was aggravated by devotees being attacked amidst their prayers. Or the tardiness of the police in quelling the fracas speedily. Yet it is now clear that it was not racially motivated.

HAKAM is concerned that there are some quarters seeking to stir up racial and religious animosity pivoting on his death. This will be a sad taint on Adib’s legacy. For he attended to his duties as a trained fireman professionally – regardless of race or religion.

HAKAM feels it is high time that the Government initiates a concerted policy designed to stop matters from being characterised along ethnic-religious lines in the New Malaysia that we helped so painfully to create. Else every little individual non-ethnic incident can be dressed up as a collective polarising racial issue: be it a road accident involving different races, or this Seafield incident which was essentially a dispute over land between a developer and the occupiers. No doubt it was aggravated by devotees being attacked amidst their prayers. Yet it is now clear that it was not racially motivated.

The subsequent reaction by some politicians may now, perhaps, be seen as insensitive and inappropriate. But this is with the benefit of hindsight. And after the incident.

HAKAM strongly urges the new government to take stock of the situation and act firmly against the few who would – for whatever motive – embark to wreck the unity of Malaysians. And emplace measures to defuse racial characterisation of incidents – with education and awareness and sensitisation programmes – starting from our school children and extending to all sectors and levels of society. To spread cross-communal solidarity. Kicked off perhaps by a nation-wide harmony and reconciliation commission, as suggested by a Minister in the PM’s Department.

That is what we all expect and deserve – from a new government in a New Malaysia.

Gurdial Singh Nijar

President of HAKAM

[2 December 2018] STOP USAGE OF REPRESSIVE LAWS IN ADDRESSING TEMPLE DISPUTE

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HAKAM notes with deep concern the Cabinet’s decision today to withdraw the moratorium on the Prevention of Crime Act (POCA), Prevention of Terrorism Act 2015 (POTA), Security Offences (Special Measures) Act 2012 (SOSMA), Sedition Act 1948 and Section 233 of the Communications and Multimedia Act 1998 (CMA) in order for the police to probe recent events surrounding the Sri Maha Mariamman Temple at USJ 25.

HAKAM fully supports the Government’s intention to restore peace & public order, and for those who incite racial hatred & rioting to be punished under the law.

However, the current Government must not emulate the previous administration in using repressive laws to deal with this situation. It was for this reason that Pakatan Harapan’s manifesto promised to abolish these laws. The continued use of these obnoxious laws violate the integrity and credibility of building a New Malaysia distinct from the old.

HAKAM calls on the Government to immediately repudiate its decision to use these repressive laws against suspects. There are sufficient provisions in our laws to deal with this situation.

In particular, POCA and SOSMA gives wide powers for the authorities to detain a person for prolonged periods without trial & provides no judicial oversight. HAKAM believes that the existing provisions for remand of up to 14 days under the Criminal Procedure Code, as well as channeling more resources to the relevant agencies for speedier investigations, are adequate measures to tackle the problem at hand.

Further, the Sedition Act 1948 and Section 233 of the CMA are phrased too arbitrarily & have been opened to abuse many times under the previous regime. HAKAM believes there are existing provisions in the Penal Code to prosecute offenders in these cases, such as Section 298 (uttering words, etc., with deliberate intent to wound the religious feelings of any person), Section 504 (intentional insult with intent to provoke a breach of the peace) and Section 505 (statements conducing to public mischief).

Finally, the usage of POTA is wholly unnecessary considering that the temple fracas has no relation to terrorism.

HAKAM therefore urges the Government to stand firm with its manifesto promises, respect human rights & to uphold the rule of law. Public order & human rights can exist hand-in-hand – and this Government must prove that this is the way for Malaysia to move forward.

Lim Wei Jiet

HAKAM Secretary-General

[23 November 2018] HAKAM REGRETS UNREST CREATED BY PARTIES ON ICERD RATIFICATION & REJECTS CALLS FOR FOREIGN MINISTER’S RESIGNATION

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1. HAKAM regrets the decision of the Prime Minister’s Office (PMO) in deciding not to ratify the ICERD. However, HAKAM regrets even more that that this issue has been exploited to generate fear and divisiveness in the country.

2. HAKAM urges the government that this precautionary stance be a temporary measure and would continue to engage stakeholders on this issue to dispel the misconceptions on the ICERD. HAKAM also urges for any further discussions on ICERD be conducted in a civil manner without threats & fear-mongering. The government should revisit its decision and reconsider ratification again in the future.

3. HAKAM further regrets the calls for Dato’ Saifuddin Abdullah to resign in light of these developments. The Foreign Minister has done an admirable job in advocating for Malaysia to ratify an important international human rights treaty.

4. HAKAM will continue to support the government’s vision of a New Malaysia – in creating a fair and just society where everyone has a place under the Malaysian sun.

Lim Wei Jiet

HAKAM Secretary-General

On behalf of the HAKAM Executive Committee

[29 September 2018] HAKAM APPLAUDS TUN MAHATHIR’S COMMITMENT TO RATIFY ALL CORE HUMAN RIGHTS TREATIES IN THE 73RD UN GENERAL ASSEMBLY

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1. HAKAM welcomes Prime Minister Tun Mahathir’s commitment to “ratify all remaining core UN instruments related to the protection of human rights” at his speech in the 73rd UN General Assembly yesterday.

2. Tun Mahathir has also promised that the new Malaysia “will firmly espouse the principles promoted by the UN in our international engagements”, which include “the principles of truth, human rights, the rule of law, justice, fairness, responsibility and accountability, as well as sustainability.”

3. HAKAM highly commends the new Malaysia’s principled commitment to human rights at the international stage. In a world threatened by the rise of right-wing nationalism & erosion of civil liberties, the new Malaysia yesterday showed leadership & hope to the other nations on the future of human rights.

4. Nonetheless, HAKAM also takes note of Tun Mahathir’s concern that it “will not be easy for us because Malaysia is multi-ethnic, multireligious, multicultural and multilingual” and that the Government will “accord space and time for all to deliberate and to decide freely based on democracy.”

5. Whilst consultation with all stakeholders is a must, HAKAM takes the view that the presence of a multi-ethnic, multi-religious & multi-cultural society should not be a barrier to a country’s responsibility to uphold human rights. Human rights are innate, inalienable & universal in nature. Religion, race & culture should never be used as a justification for condoning discrimination, injustice & suffering. Everyone deserves to be shielded by & to thrive underneath the over-arching umbrella of human rights.

6. In this respect, HAKAM urges the new Malaysian Government to take immediate steps to do the following:

6.1. Ratify, without reservations, all key international human rights conventions, which include:

(i) The International Covenant on Civil and Political Rights (ICCPR);

(ii) The International Covenant on Economic, Social and Cultural Rights (ICESCR);

(iii) The International Convention on the Elimination of All Forms of Racial Discrimination;

(iv) The UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment and Punishment; 

(v) The International Convention on the Protection of Migrant Workers and Members of their Families; 

(vi) The International Convention for the Protection of All Persons from Enforced Disappearance; and

(vii) The Convention Relating to the Status of Refugees.

6.2. Remove all reservations in the international human rights conventions which it has ratified, which include:

(i) The Convention on the Rights of the Child (CRC);

(ii) The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and

(iii) The Convention on the Rights of Persons with Disabilities (CRPD).

7. The Malaysian Government is not alone in this journey. As long as Malaysia is consistent with its recent stance in the 73rd UN General Assembly, HAKAM believes that civil society organisations will wholeheartedly support this endeavor and provide all the assistance they can.

Lim Wei Jiet

HAKAM Secretary-General

On behalf of the HAKAM Executive Committee