Disclosure of audio clips by MACC: Legal or not? Statement Dated 11 Jan 2020

Statement published in Malaysiakini

HAKAM Statement on Release of Audio by MACC Dated 11 Jan 2020

The recent disclosure of a clutch of videos by the MACC chief Latheefa Koya has predictably attracted wide public comments. Concerns raised include such issues as the right to privacy, right of an accused to a fair trial. In short, issues that deal with human rights, which are within the remit of this society.

Two matters are of direct relevance. First, the legality of the disclosure. Secondly, the issue of transparency.

Legality

The MACC is invested with the power to receive complaints and pursue investigations. It then can forward the papers to the relevant authority for further action, which could be to further the investigations or to prosecute any alleged offender.

In this case, it is obvious that the MACC had embarked on investigations. For example, it confirmed the authenticity of the tapes as well as the actors.

It also made a preliminary assessment that the contents had potentially violated various laws: including the Official Secrets Act 1972, abuse of power, subverting the course of justice and corruption. Some involve its jurisdiction; others that of the police. Hence it passed the papers on to the police as well to continue with investigations for matters within their scope. So the MACC acted squarely within its statutory powers.

Public disclosure

Some say that there should not have been any public airing of the tapes. And that the MACC should abide by the outcome of the investigations and present this video evidence in court if anyone is charged.

The issue then is: whether this disclosure by the relevant authority wrong in law.

It is not unusual for the disclosure of evidence in relation to ongoing investigations by the relevant authorities – even before investigations are completed and any charges levied. For example, the US Department of Justice publicly outlined in great detail the facts and evidence in relation to the 1MDB money-laundering matter – before any action was instituted.

Granted that this is not normally done. But here we are dealing with matters of grave public concern – involving an erstwhile PM who holds the position of public trust. He is accountable to the country and its people. Any breach or compromise of that trust must necessarily be of immediate public concern and interest.

Such information ought not to be kept under wraps. Else it may suffer the fate of the earlier 1MDB scandal investigations. Which, as we now know, were scuttled by the investigating authorities at the behest of high authority. The then head of MACC was if these tapes are to be believed and proved, complicit. As were many others. Essentially to stultify action against wrongdoing. But for the change of government, all alleged high crimes would have been dead and buried.

Surely that is not what we should wish to revert to. Opaque transparency which leads to the subversion of the course of justice.

Not normal crimes

This case must necessarily be distinguished from normal crimes – even heinous ones committed by individuals. Crimes such as murder and the like. These are essentially between private persons.

But in cases involving the wider public interest – involving the head of government, different considerations apply. Examples abound throughout the world. In the US in three recent cases where the president was alleged to have been involved in illegal activity, the entire facts of the investigations as they proceeded, were laid bare to the public.

Recall the Watergate scandal involving illegal wiretapping at the behest of President Nixon – which led to his resignation. Also, the Monica Lewinsky sex scandal involving president Bill Clinton. Currently, there is the ongoing disclosure of allegations against President Donald Trump regarding his alleged conduct involving trading favours with the Ukraine president.

Nearer home, the public has routinely demanded answers from the investigating authorities on the disappearance of pastor Raymond Koh, Amri Che Mat, Ruth Stepu and Joshua Helmi.

Nature of the alleged wrongdoing

The alleged wrongdoings are huge. First, subverting the course of justice. Seeking to cover up a crime by manipulated contrivances – such as creating evidence to justify an alleged wrong is a grave crime. It is an offence separate and distinct from the ongoing 1MDB or SRC criminal prosecutions.

It works like this. An accused seeks to tamper or subvert witnesses or evidence in relation to a case by asking them to lie or create false documentation. This is after a prosecution has been commenced. Law reports are studded with a litany of successful prosecutions in such cases.

Then there is a case of seeking favours from the head of another country. Favours given must be returned. This could well impact the country’s sovereignty. It is in this context that the spectre of national security was raised by Latheefa. Note that Trump’s impeachment proceedings were commenced precisely on this national security concern.

The disclosure by the DPP seconded to MACC from the AG’s chambers (later made its chief) of ongoing investigations to the alleged wrongdoer compromises the integrity of the MACC and the government.

Latheefa’s public disclosure of these alleged offences now insulates them from any manipulation by anyone. In short, no one can now surreptitiously interfere. The public will be effective gatekeepers.

Is it sub judice?

As indicated, the facts disclose offences that are distinct from the ongoing prosecutions. Hence no question of sub judice arises. In any event, sub judice arises when disclosure will prejudice the mind of the judge.

Our judges are trained to decide cases on the facts as adduced in court. Any failure to evaluate the evidence and consider with cogent reasons the evidence presented by an accused is routinely corrected by our appellate courts.

Is it contempt?

Contempt happens when one interferes or jeopardises the administration of justice. For the reasons aforesaid, there is hardly any basis for contempt. Indeed the disclosures reveal an attempt to interfere with the due administration of justice.

Disclosing investigations to potential wrongdoers so that they can cover up their tracks; or to solicit documentation to justify money laundering is what strikes at the due administration of justice.

Is reliance on the tapes legal?

Quite obviously, the tapes have been provided by a whistleblower. Any person who discloses any alleged crime to the authorities such as the police or the MACC is protected by the Whistleblower Protection Act 2010. He or she is entitled to confidentiality and is also protected against any retaliatory action.

Latheefa is hence justified in not disclosing the source of the videos as yet. Interestingly, Trump’s efforts to get the name of the whistleblower who provided tapes of his conversations relating to the Ukranian president has been consistently refused by the House of Representatives.

Right to privacy

Indeed this is an invaluable right that ought to be protected – although it is noted that there is no such right in the law of tort recognised as yet in Malaysia. In any event, the right to privacy has to yield to the wider public interest in upholding the rule of law. The right to privacy cannot prevail to prevent the disclosure of a crime.

Bank Bumiputra Malaysia Berhad (BBMB) founder Lorraine Osman’s efforts to prevent the disclosure of evidence (including of monies held in lawyers’ accounts) was rejected by our courts as there is no protection or privilege from disclosure of any communication made in furtherance of any illegal purpose or of a fact showing that any crime or fraud has been committed. See AG Hong Kong v Lorraine Osman [1993].

Significantly, taped conversations of potential terrorist acts have been relied upon routinely in curbing such acts by almost all functioning democracies. Ultimately, in any prosecution, the accused can question the authenticity of the tapes and the purport of its contents.

Motive

Finally, aspersions have been cast on Latheefa’s motive for the disclosure. Including a tie-up with a pending by-election. This is a red herring. One should address the legal issues; which this statement seeks to do.

Conclusion

It is understandable that concerns have been raised for this rather unusual and dramatic disclosure of the tapes. But given its legality, as explained, should not we applaud the MACC for disclosing the acts that seem to compromise the trust and fiduciary duty placed in our leaders?

After all, transparency, which leads to accountability, is pivotal to the Rule of Law.

 


GURDIAL SINGH NIJAR is the president of the National Human Rights Society (Hakam) and former law lecturer at Universiti Malaya.

Threat by counter groups – Law Speak

From the Sun Daily

THE dialogue on the introduction of the jawi script in schools was banned by a last-minute court order secured by the police. The reason given was that it would cause chaos. A large number of Malay groups had threatened to scuttle the dialogue congress; convened essentially by Chinese educationists with a smattering of others including a representative from the Ministry of Education.

Earlier the prime minister had warned of the potential for reprisals by other groups against the congress.

All well and good. Law and order is everybody’s concern. And a valid consideration in curtailing freedoms guaranteed by the Federal Constitution. Especially when activities impinge on the delicate race and religion issues.

But pause awhile. The basis is that one ethnic group demands that this issue not be discussed. Can a constitutional right that is fundamentally-guaranteed be thus thwarted?

Admittedly, the constitution allows the curtailment of the right to free speech and assembly on grounds of public order and national security. This present ban at the behest of the police implies that (a) the police with its vast panoply of powers is unable to maintain law and order; and threats by others; and (b) the government is powerless to effectively staunch others from disrupting lawful activities.

The police are eminently placed in a worst-case scenario to impose conditions for any assembly to be held. This would relate to time, manner and place. In other words restrictions but not outright ban. Indeed the Peaceful Assembly Act 2012 allows the imposition of such restrictions.

Significantly, if there is a proposal to have a “counter assembly” the OCPD has the power under the Act “if it is evident that the organisation of the counter assembly will cause conflict between the participants of the assemblies” – to get that assembly organised at another date, time or place. Thus the right of all to assemble peacefully is guaranteed in a balanced way.

I recall that a group sought to injunct one Bersih rally on its eve alleging potential disorder by counter assemblies. The High Court threw out the application. Reminiscent of Lord Denning’s exhortation that the courts “should not interfere by interlocutory injunction with the right to demonstrate and to protest any more than they interfere with the right of free speech; provided that everything is done peaceably and in good order”. And “the right to demonstrate and the right to protest on matters of public concern … are rights which it is in the public interest that individuals should possess” and that “history is full of warnings against suppression of these rights” Hubbard v Pitt (1967).

Now, the convening of the congress by all accounts was done legally in complete compliance with the law. There is no suggestion that it intended to break the law. It was a mere dialogue – to discuss, clarify and explain the issues. No threat to the peace. The threat came from others who assumed to themselves the right to prevent others from assembling together.

Clearly, to prevent a lawful assembly from taking place on the basis that it will be met by an unlawful opposition is to give in to lawlessness. Note that the counter group was not given the go-ahead to carry out their demonstrations. Surely, as a general rule, the correct approach must be for the law enforcement agencies to deal with those who are threatening to break the law rather than to act against those who are seeking to comply with it. “If danger arises from the exercise of lawful rights resulting in a breach of the peace, the remedy is the presence of sufficient force to prevent the result, not the legal condemnation of those who would exercise those rights”. R v Londonderry (1861).

Dealing with a similar threat by a counter group, the revered English judge Lord Denning, speaking for the English Court of Appeal, said:

“The evidence is that if there is any trouble it will not be at the meeting at all. If it does occur, it will be outside caused by opponents … Their members may threaten or assault the members of the National Front; or try to stop their meeting. It would then be the interrupters who would be the destroyers of freedom of speech. They cannot be allowed to disrupt the meeting by mass pickets, or by violent demonstrations, and the like. The police, will, I hope, be present in force to prevent such disruptions”. Verrall v Great Yarmouth BC (1980).

More fundamental issues arise. The ban on this ground engenders, if not exacerbates, ethnic tensions. Any concerted group can prevent the pursuit of legal activity by others, especially minorities. By lodging an avalanche of police reports and contriving a law-and-order threat. Then the very exercise of constitutional freedoms is at stake. Undermining the very ethos of the Rule of Law – a key pillar of our Rukun Negara and proudly declared by the present government as its guiding governance compass. Undermining as well the purpose of the constitution “to restrict the majority’s ability to harm the minority”: James Madison, founding father of the US.

Also, by banning open dialogue, critical matters are then relegated to be dealt with in, perhaps, ill-informed and even insidious cloistered whispers.

One of the challenges of the government is to curb this sort of adversarial ethnic remonstrations. Rather than to succumb to it. For, once mob rule pervades, the “Harapan” for the rest of the citizenry could well recede into oblivion.

Gurdial, is president of Hakam, the National Human Rights Society. 

The case for the constitutionality of vernacular schools

From Malaysiakini

Recently, several groups and individuals have filed suits in court to declare vernacular schools unconstitutional. The argument mounted is that vernacular schools are publicly funded, and when they use Mandarin or Tamil as the main medium of instruction, this contravenes Article 152 which provides that the Malay language is the national language.

In my humble view, vernacular schools are constitutional. This is particularly so when one reads Article 152 of the Federal Constitution in totality and appreciates the historical context of vernacular education in Malaysia.

Protection of use of vernacular languages

Article 152(1) does say that the national language shall be the Malay language – there is no dispute about this.

However, there is an exception which is entrenched in Article 152(1)(a): “provided that no person shall be prohibited or prevented from using (otherwise than for official purposes), or from teaching or learning, any other language”.

It is clear that “using” any other language, besides the Malay language, is protected under the Constitution – provided it is not for “official purposes”.

The key question: can the medium of instruction in vernacular schools be categorised as an “official purpose”?

Article 152(6) defines “official purpose” as “any purpose of the Government, whether Federal or State, and includes any purpose of a public authority”. In turn, a “public authority” is defined in Article 160 as the Yang di-Pertuan Agong, a state ruler, federal government, a state government, a local authority, a statutory authority exercising powers vested in it by federal or state law, all the courts, or any officer appointed by or acting on behalf of such parties.

As one can observe, a vernacular school is not explicitly included as a “public authority”. But could it possibly be categorised as a “statutory authority exercising powers vested in it by federal or state law” within Article 160?

This is when the contentious Merdeka University case comes into the picture. In 1978, Chinese guilds and associations filed a petition to incorporate Merdeka University, which would use Chinese as a medium of instruction.

The education minister rejected the petition on the basis that it was contrary to the national education policy.

The matter was brought to court. In 1982, the Federal Court held that it was not unconstitutional for the government to reject the incorporation of Merdeka University. Its reasoning is as follows:

(i) A university has the requisite public elements – it is subject to some degree of public control in its affairs, involves a number of public appointments to office, acts in the public interest and is eligible for public funding.

(ii) A university is therefore a “public authority” within the meaning of Article 160.

(iii) A university is also a statutory authority exercising powers vested by it under federal law.

(iv) As such, having Chinese as a medium of instruction would be use of the language for an “official purpose”, which use may be prohibited under Article 152(1).

On the surface, it would seem that the Merdeka University case is a basis for arguing that vernacular schools are unconstitutional.

However, there are key differences between the two. Unlike a university under the University and University Colleges Act 1971 (UUCA), vernacular schools are governed quite differently under the Education Act 1996:

Pertinently, the Federal Court in Merdeka University was “greatly influenced by the scheme of the [UUCA], which is peculiar to Malaysia, in that it prohibits the establishment of a university within its context, except in accordance with its provisions (section 5), and that a university, when established thereunder, is deemed to have been established by section 7(1) thereof”.

In contrast, as highlighted above, there is no such prohibitive requirement for vernacular schools which merely need to be registered with the Ministry of Education under the Education Act 1996.

It is, at the very least, arguable that vernacular schools are not a “public authority” or “statutory authority” – therefore the use of Mandarin or Tamil as a medium of instruction is not for an “official purpose” and is protected under Article 152(1)(a).

Right of government to sustain use of vernacular languages

In the alternative, there is a second exception entrenched in Article 152(1)(b): “Nothing in this Clause shall prejudice the right of the Federal Government or of any State Government to preserve and sustain the use and study of the language of any other community in the Federation.”

In simple terms, if the federal government wishes, it has the power to preserve and sustain the “use” and “study” of Mandarin or Tamil in Malaysia. Such power is not only limited to the “study” of Mandarin or Tamil, i.e. purely Mandarin language classes. This power arguably also extends to the “use” of Mandarin or Tamil, i.e. using Mandarin as a medium of instruction to teach Science, as in vernacular schools.

For the vernacular schools suit, the cabinet has already come out in favour of the existence of vernacular schools. It has instructed the attorney-general to act accordingly. Hence, Article 152(1)(b) acts as an additional bulwark for the continuation of vernacular schools.

In the Merdeka University case, the government was against its incorporation. That is why the scope of Article 152(1)(b) was not explored in detail. The Federal Court may have decided differently if the government had supported the establishment of Merdeka University.

Our constitution

Finally, it can be implied that the drafters of our Constitution intended for the continued existence of vernacular schools that use Mandarin or Tamil as a medium of instruction.

In the years leading up to the drafting of our Constitution, the drafters must have been well aware of the contentious debate on vernacular schools through the 1951 Barnes Report, 1952 Fenn-Wu Report, 1956 Razak Report and the Education Ordinance 1957 – as well as representations by Umno, MCA and MIC from the Alliance Party.

Yet, the Constitution made no reference at all to the gradual abolition of the use of Mandarin or Tamil as a medium of instruction in vernacular schools.

Contrast this with the 10-year grace periods to transition from English to the Malay language for proceedings in Parliament and State Legislative Assembly (Article 152(2)), authoritative texts of Bills and Acts of Parliament (Article 152(3)) and superior courts (Article 152(4)). And for proceedings in subordinate courts, it shall be in English until Parliament provides otherwise (Article 152(5)).

If the drafters of our Constitution intended for such a similar transition for vernacular schools, they would have explicitly mentioned so in Article 152.

This is, of course, not indicative of my views on the relationship between vernacular schools on national unity – that is the subject matter of another long debate.

Suffice to say, the Constitution, in its present form, appears to protect the use of minority languages and the continued existence of vernacular schools.

LIM WEI JIET is a constitutional lawyer and Secretary General of HAKAM.

All within reach of the law – Law Speak

From the Sun Daily

PERHAPS it could be construed as a blight of our justice system when two Court of Appeal decisions struck out actions against Datuk Seri Najib Razak, the then prime minister for alleged wrongdoing in executing his public office. In particular, allegedly pocketing 1MDB funds. On the basis that such actions for misfeasance could only be brought against “public officers”. And, ruled these courts, the prime minister was not such a person.

The decisions raised considerable disquiet in the public mind.

Indeed, the High Court judge deciding the case said rather apologetically that many may find his ruling “most surprising and quite unpalatable to swallow”.

For it then immunises a prime minister from the reach of the law by saying he is not a “public officer” – what else could he be when he draws his salary from public funds; and is entrusted with the task of fulfilling public duties on behalf of the nation?

This renders illusory: “Be ye never so high, the law is above you” – Thomas Fuller’s wisdom cited by courts the world over. By Lord Denning in the 1977 Gouriet case; and our Federal Court in PP v Ottavio (2004).

And recently by a seven-member bench of the Federal Court led by Chief Justice Tan Sri Tengku Maimun in Tony Pua v Najib Abdul Razak. Which overruled the previous decisions.

The Federal Court held that it was wrong to say that the prime minister was not a public officer.

Said Justice Nallini in delivering the Federal Court’s grounds of judgment, it would be a violation of the rule of law to exonerate the prime minister for “outrageous” conduct where he was “alleged to have acted unlawfully, illegally, recklessly and/or knowingly in relation to substantive quantities of funds to the ultimate detriment of … the general public”.

This would be “anathema to the doctrine of the rule of law and the fundamental basis of the Federal Constitution”. Because then a prime minister “can act with impunity, so as to knowingly and/or recklessly dissipate public funds and remain immune to civil action in tort …”. Such a construction of the term “public officer”, which erodes the rule of law, is repugnant and cannot prevail.”

The comprehensive, lucid and admirably analytical judgment had no difficulty in debunking the two Court of Appeal decisions that had held that the prime minister did not come within the definition of a “public officer” under the Interpretation Acts and the Federal Constitution; and could not therefore be sued for the tort of wrongdoing in public office.

First, said the judgment, any “public officer” can be sued for wrongdoing for the tort of misfeasance under the common law – defined as a body of legal rules that have been made by judges in cases, as distinct from rules and laws made by Parliament or in official statutes.

The essence of this tort is that public power cannot be abused in bad faith.

Hence it applies, said the judgment, to holders of the highest offices in administration who are entrusted with the greatest public power and corresponding duty to exercise it for the public good.

To immunise the prime minister and ministers would be repugnant to common sense and the rule of law.

Secondly, neither the Federal Constitution nor any act specifically modified or abrogated the common law as regards the liability of “public officers” as widely defined to include persons in the position of the prime minister.

The earlier decisions of the Court of Appeal and the High Court had ruled that the prime minister and members of the Cabinet are members of administration and not public officers because they were not included in the list of “public services” in Article 132 of the Federal Constitution.

This reasoning was flawed, ruled the Federal Court. Because Article 132 merely identified the bodies and persons involved in the governance structure of the country. It was not meant to do away with the common law definition of the term “public officer”.

The judgment is remarkable in many respects. It locates the tort of misfeasance in public office as grounded in the rule of law. Thus placing all within the reach of the law.

It reinforces executive accountability to legal authority. It upholds the public interest in bringing public servants guilty of outrageous conduct to book.

It dispels the notion that anyone – no matter how high – who abuses his public office is free to act with impunity. And it accords any citizen the standing to make a claim for the loss suffered when a prime minister entrusted with public funds uses them for his personal benefit – if indeed he or she can prove such damage.

The case will now proceed to trial for the litigant to prove the misappropriation of public funds and the loss suffered.

This is a landmark judgment that resoundingly places the role of the judiciary in preserving the “internal architecture” of our constitution – which comprises the rule of law and the separation of powers.

It will long stand out as a judgment which resonates with the words of Montesquieu – a French judge and philosopher, famous for his articulation of the theory of separation of powers: “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”

Gurdial is a former law professor and President of HAKAM. 

Climate Crisis: SDGs and Role of youth – Forum 15 December 2019

Climate Crisis: SDGs and Role of youth – Forum 15 December 2019

In conjunction with Human rights Day 2019, and the end of 2019, a year full of ups and downs and big moments for climate activists and global rise of youth activists, lead to a large part by 16 year old Greta Thunberg, the newly formed formed Youth Subcommittee of HAKAM, HAKAM Youth held their very first forum on the topic of Climate Crisis and Youth Activism on Sunday 15 December 2019.

The forum which was well-attended by youth and activists from climate action and environmental non-government bodies, was held with three panel members, Professor Dr Fredolin Tangang @ Tajudin Mahmud who is the Chairperson of Department of Earth Sciences and Environment, Faculty of Science and Technology Universiti Kebangsaan Malaysia, Aaliyah Abdullah from the Malaysian Youth Delegation (MYD), and Aroe Ajoeni Sulistyorieni, the co-founder of Klima Action Youth (KAMY).

Some of the key points, among others, raised during the forum included:

  • The need to expand climate activism to rural and non-English speaking Malaysia to increase awareness and effectiveness,
  • Effectiveness of youth activism in Malaysia, similar to other parts of the world, despite cultural differences and attitudes towards young people getting involved in public debates. It was asserted by both Aliyah and Aro that Malaysian youth are getting more and more involved in climate activism and they are getting their voice heard, and that the government is being more receptive of the views and involvement of the youth,
  • The dire conditions of climate crisis with a very narrow window for action demands more awareness and involvement, and young Malaysians are and must get involved and draw attention to these issues and demand change,
  • Government initiatives regarding climate actions should be widely, and preferably in other languages than English, be promoted so that the public can better understand these movements and the reasons behind them, and
  • There is a need for climate science to be made more understandable for the public, and this can be done through platforms that gathers scientists, activists, non-profits, and policy-makers together. For the public to be more engaged and the policy-makers to effectively address climate crisis, the science behind climate change and its implications should be conveyed in understandable language and this can be achieved by increasing collaborations between scientists and youth activists who then engage the public.

The forum which ended at 12 pm. We hope more discussions and forums could be held on these topics in Malaysia, and we applaud HAKAM Youth for their efforts in making this forum possible. For more information and photos of the event please check HAKAM Youth’s Facebook page.

See you next time!

 

HAKAM Applauds AG’s Decision Not To Appeal High Court Ruling That Denial of Bail Under SOSMA is Unconstitutional

HAKAM applauds the Attorney General’s statement today dated 13th December 2019. The Attorney General rightfully observed that Section 13 of SOSMA which denies bail to an accused is:

Pic from the Reuters

(a) unconstitutional as it takes away the judicial power of the Courts which forms the basic structure of our Federal Constitution, as held by our Federal Court in Semenyih Jaya & Indira Gandhi; and
(b) unacceptable because it offends the fundamental concept that an accused is innocent until proven guilty.

HAKAM is particularly encouraged by the Attorney General’s decision not to appeal Justice Nazlan’s decision which rightfully held that Section 13 of SOSMA is unconstitutional.

HAKAM also supports the Attorney General’s observation that the striking down of Section 13 of SOSMA does not mean that there will be jeopardy to public safety – this is because bail can still be denied by a Judge if there is sufficient evidence that the accused poses a risk to the public, as in all other criminal cases.

HAKAM is confident that the Courts in our country will take note of this development and proceed to exercise their discretion to allow bail to accused persons detained under SOSMA, should the circumstances call for it.

HAKAM trusts the wisdom of the Courts to exercise such discretion on bail judiciously in order to strike an appropriate balance between the rights of an accused and public safety.

Finally, HAKAM reiterates its call to the Government to fulfill its manifesto promise of abolishing SOSMA in its entirety.

Human Rights Day 2019 – HAKAM Urges Government to Expedite Pro-Human Rights Reforms

In conjunction with Human Rights Day on 10th December 2019, HAKAM urges the Government to expeditiously fulfill its manifesto promises in respect of human rights reforms.

There is no doubt that the Government has achieved praiseworthy progress on the human rights front. Some of these include:

  • lowering the voting age to 18;
  • automatic voter registration;
  • abolishing the Anti-Fake News Act 2018;
  • amending the Peaceful Assembly Act 2012;
  • creating the environment for a relatively freer press;
  • appointing independent & credible judges to key positions in the Judiciary;
  • tabling SUHAKAM report for debate in Parliament for the first time in 19 years; and
  • establishing a Parliamentary Select Committee on Human Rights & Constitutional Affairs and a Parliamentary Select Committee on Gender Equality & Family Development;

But the Pakatan Harapan Government was elected on 9th May 2018 by an electorate which expects more substantial human rights reforms and cementing of the rule of law. It has been 1 ½ years since the Government was elected into power, yet there is much more that needs to be done.

HAKAM hereby urges the Government to quicken its pace and to steadfastly carry out the following human rights reforms in Malaysia:

  • Establish an effective Independent Police Complaints & Misconduct Commission (IPCMC);
  • Abolish the Security Offences (Special Measures) Act 2012 (SOSMA);
  • Abolish the Prevention of Terrorism Act 2015 (POTA);
  • Abolish the Prevention of Crime Act 1959;
  • Abolish the Sedition Act 1948;
  • Abolish the Printing Presses and Publications Act 1984;
  • Abolish the National Security Council Act 2016;
  • Abolish the death penalty in all forms; and
  • Enact a Freedom of Information Act

There will no doubt be forces which will resist such reforms. But all of these reforms are promises which were made in the Pakatan Harapan manifesto. The Government must be bold and resolute in fulfilling the same.

Rest assured that civil society and many segments of the rakyat will be behind the Government in carrying out such reforms.

Lim Wei Jiet

Secretary-General of HAKAM

HAKAM Youth is here!

HAKAM is proud to announce the establishment of the youth wing of HAKAM, HAKAM Youth! It is our pleasure to have a team of enthusiastic and committed young students to join us fight for human rights in Malaysia. The Youth subcommittee is an independent subcommittee and HAKAM wishes them the best of luck in all their efforts. We can all expect great things from the future generations of human rights advocates in Malaysia, and for HAKAM this is just the start. 

From HAKAM Youth Faceook

Gather around, ladies and gents, do we have some news for you: HAKAM Malaysia bore its fruit and a new seedling has sprouted!

HAKAM Youth is a subcommittee under HAKAM Malaysia, comprising of passion-driven youths aiming to ignite the desire in Malaysian youths to promote, preserve and defend human rights.

The HAKAM Youth team currently consists of Corina Robert, Iqbal Harith Liang, Jean Lee, Seah Eu Hen, Nisa Muzamir Shah, Thomas Tan and Stephenie Mangharam!

Armed with around two decades of experience and the skill sets we have honed during that period, we hope to bring to to your attention current issues surrounding the rights of Malaysians through our activities. Our end goal: pragmatic solutions.

So buckle up, because we’re in for a heck of a ride!

Joint Statement: Ensure IPCMC Set Up Without Delay

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

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.