Front Line Defenders submits report on Malaysia for UPR

Mar 12, 2013 | General

Introduction:

  1. The following submission has been prepared by Front Line Defenders – The International Foundation for the Protection of Human Rights Defenders based on the research conducted by the organisation as well as information received from independent human rights defenders in Malaysia from February 2009 to March 2013.

  1. Front Line Defenders (www.frontlinedefenders.org) is an international NGO based in Ireland with special consultative status with the Economic and Social Council of the United Nations. Front Line Defenders has particular expertise on the issue of security and protection of human rights defenders and works to promote the implementation ofthe UN Declaration on Human Rights Defenders adopted by General Assembly resolution 53/144 of 9 December 1998.

General trends facing human rights defenders:

  1. The challenges which human rights defenders face in Malaysia are multiple while little has improved in terms of the character of these violations since the last UPR in 2009. Human rights defenders face judicial harassment, smear campaigns, arbitrary arrests, threats and intimidations, illegitimate restriction to the rights of freedoms of opinion and expression, peaceful assembly, and association. Laws which are not in line with international human rights standards have also contributed to lessening the space for human rights defenders to operate freely.

  1. Front Line Defenders agree with the assessments made by Ms Margaret Sekkagya, the UN Special Rapporteur on the situation of human rights defenders, regarding the situation of human rights defenders in Malaysia. In her report to the 19th session of the Human Rights Council on 21 December 2011, the Special Rapporteur“express[ed] her continued concern for human rights defenders advocating for minority rights in the country. According to information she has received, this group continues to face arbitrary arrests and violent threats, as well as restrictions to their rights to freedom of assembly and freedom of expression.”

  1. Inher most recent report to the 22ndsession of the Human Rights Council (A/HRC/22/47/Add.4) dated 27 February 2013, she stated that “[t]he Special Rapporteur remains concerned about the threats and acts of harassment, including judicial harassment, against human rights defenders and association in Malaysia. [S]he calls on the Government to ensure defenders are able to conduct their legitimate activities in defence of human rights without facing threats or obstacles.”

Passing of legislatures that hinder the rights to defend human rights:

  1. Front Line Defenders is worried that throughout the past four year new laws have been passed, despite criticisms from civil society and human rights groups. There are tendencies where these laws could be used to limit and restrict the rights of human rights defenders to promote and protect human rights.

  1. Provisions of the newly adopted Security Offences Act (SOA) allow detention for 28 days without being brought before a judge. Police officers are allowed to arrest anyone if they “have reason to believe” that the person may be involved in security offences which are vaguely defined. Although the law was passed to replace the 1960 Internal Security Act, there is a great concern that the newly adopted Act would be used precisely for the same purposes. The 1948 Sedition Act repeatedly attracted criticism from human rights organisation as a tool to silence critics of the government.

  1. Despiteconcerns raised by Front Line Defenders, the PeacefulAssembly Act (PAA)was adopted by the Senate on December 2011. Similar to the SOA, Front Line Defenders is of the opinion that the law could be used to restrict human rights defenders’ from exercising their right to peaceful assembly. The law was meant to substituted the 1967 Police Act which regulated, among other issues, the public demonstrations. The President of the Malaysian Bar LimChee Wee saidthe proposed law was more restrictive than the previous one. Maina Kiai, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, warned that “many of these restrictions are not justifiable under international law”.

  1. Accordingto the PAA, street protests will be outlawed. Organisers are obliged to inform authorities 10 days prior to the dates on which the assembly will be held. PAA also gives ultimate power to police and the Ministry of Home Affairs to authorise peaceful demonstrations. The police will have the power to impose conditions, including date, time, and the venue of the assembly. Under the PAA no one under the age of 21 is permitted to organise an assembly, while persons under the age of 15 are not allowed to participate in peaceful assemblies. The police is allowed to fine the organiser up to RM 10,000 (€ 2,335) if they receive no advance notice of a planned assembly. In addition, the police is allowed to fine those arrested for organising an unauthorised assembly a maximum of RM 20,000 (€ 4,671).

Judicial harassment and smear campaigns against human rights defenders:

  1. Smear campaigns, instigated by some high-ranking Malaysian politicians, represent a serious threat to the reputation of the human rights defenders, doing their peaceful and legitimate work. The groups receiving foreign funds are often accused by the government of pursuing hidden political agenda. Right wing groups, backed by the some officials, often label the rights groups as traitors. Many Malaysian human rights defenders regularly receive hate email or death threats via electronic communications means. Raids and attacks on the offices by police as well as by the unknown individuals are used as a tool of intimidation.

  1. FrontLine Defenders is concerned that charges related to defamation are currently being used against human rights defenders who are monitoring the human rights situation of workers in factories. In June 2011, CharlesHector Fernandezwas sued for US$3.3 million (approximately EUR 2.5 million) by the Asahi Kosei Company which accused him of posting false information on his blog concerning the breach of an agreement by the company with 31 Burmese migrant workers. The workers claimed they had been paid significantly less than what it had been originally agreed with their employer and when they complained about the breach of the agreement and sought compensation they were allegedly threatened with deportation and termination of their employment.

Arbitrary arrests and intimidations of human rights defenders:

  1. Between 13 and 21 February 2011, some 80 volunteer members, and other individuals associated with Hindu Rights Action Force (HINDRAF) were arrested and detained throughout Malaysia before being released without charge. HINDRAF is a coalition of Hindu non-governmental organizations working on promoting the rights of the Hindu communities in Malaysia. The arrests and detentions were reportedly related to the organization’s ongoing preparations for an anti-racism march, which was due to take place on 27 February 2011.

  1. On 21 February 2011, Mr Gobalakrishnan Manickam, who is involved with HINDRAF, was arrested at his home in Batang Kali by policemen who reportedly did not possess a valid Court Order for his arrest. He was subsequently denied contact with his lawyer and family members until his release. Gobalakrishnan Manickam had been involved in the preparatory forum, held on the same day, to discuss plans for the aforementioned anti-racism march. Following the arrest, police reportedly used loudspeakers to warn people in residential areas of Batang Kali not to attend the forum. It is further reported that five roadblocks were subsequently mounted in order to hinder attendance at the event. Furthermore, individuals wearing orange t-shirts (the colour associated with HINDRAF) were specifically targeted by police, who ordered many to remove their t-shirts and refused them entry to the forum should they refuse to do so.

  1. On 29 June 2011, seven human rights defenders, namely Ms Lau Shu Shi, Ms Mary Sinattan, Ms Deepa Kutta, Ms Mila Nordin, Ms Temme Lee, Mr Mohamad Ikhsan, and Mr Ang Hiok Gai were arrested and later released on bail by Malaysian police after their office was raided. The human rights defenders were affiliated with Coalition for Clean and Fair Elections (Bersih). Bersih is a coalition of organisations led mainly by civil society groups. The coalition includes human rights organisations such as National Human Rights Society, Sister in Islam, Suaram, Trade Union Congress, and Women’s Development Collective. The policemen, who detained the human rights defenders, did not reply when asked whether they had a warrant, and tried to break into the office. The raid happened two weeks prior to the demonstration which was held on 9 July 2011 calling for 8-point demands to Election Commission of Malaysia to ensure transparency in the upcoming election and for the public institutions to act independently, uphold laws, and protect human rights.

Violations to human rights defenders’ rights to freedom of assembly, freedom of speech, freedom of association:

  1. ManyNGOs in Malaysia can not obtain registrations under the SocietiesAct,which governs political parties and non-governmental organisations, and thus had to register under the Companies Act which creates additional legal obstacles for them. The Societies Act is not only restrictive in the initial registration process, which is lengthy and often delayed, but also in the many conditions imposed on activities, the burdensome reporting provisions and the omnipresent threats of dissolution, all of which are amplified by the broad and arbitrary powers afforded to the Registrar of Societies. Because of the many difficulties faced by CSOs in their efforts to register as societies, including the dismissal of their applications, many were forced to operate without registration. Others choose to circumvent the Societies Act by registering as companies; however, that in itself presents many legal and bureaucratic obstacles to raising money for their causes.

  1. Inearly March 2011, the Malaysian authorities have arrested some 54 members of the HinduRights Action Force (HINDRAF)as a part of the widespread campaign of repression and judicial harassment against these organisations and their members. The 54 individuals, who have all been released on bail, were charged with taking part in an “illegal organisation”, as a result of the authorities’ continued refusal to process the organisation’s request for registration.

  1. On28 April 2012 Malaysian police fired tear gas and water cannon into the crowd of protesters associated with Bersihwhowere demanding electoral reforms. Riot police reacted after some protesters among the crowd of at least 25,000 tried to break through barriers, in defiance of a court order banning them from entering the city’s historic Merdeka Square. They fired several dozen tear gas rounds, sending the protesters scattering through nearby streets. On 9 July 2011, Malaysian authorities responded to a peaceful rally for electoral reform in Kuala Lumpur with mass arrests and excessive use of force. In the anticipation of another protest on 12 January 2013, civil servants were warned from attending the event and universities issued public notices discouraging students from attending.

  1. Since early July 2012, Malaysia’s leading human rights organisation Suara Rakyat Malaysia (SUARAM) has been a target of harassment by the government which included the seizure of documents from SUARAM’s Company Secretary and auditors. The board and staff members of the organisations were summoned to to visit the Companies Commission of Malaysia for investigations. The campaign against SUARAM also included accusations by the government that the foreign funds received by the NGO are used for hidden political purposes. SUARAM was accused of breaching the regulations of the Registrar of Societies while the requests of SUARAM regardingwhether Registrar of Societies actually has jurisdiction over SUARAM which had been registered in the CompaniesCommission of Malaysia,remained unanswered.

Restricting human rights defenders’ work to promote and protect the rights of on LGBTI people and communities:

  1. Humanrights defenders and organisations working to promote sexual diversity remains at risk in Malaysia. On 2 November 2011, the Royal Malaysia Police declared a ban on an event planned by SeksualitiMerdeka (SM),which was aimed to celebrate sexual diversity and disseminate information to the public on lesbian, gay, bisexual, transgender, and intersex (LGBTI) rights through art and public talks. SM is a coalition of human rights defenders working to promote the rights of LGBTI individuals and communities in Malaysia. The yearly event has been held since 2008. Public officials and politicians have made inflammatory statements about SM, and the police have announced that they will detain anyone that participates in any such events on grounds including the disturbance of public order and threats to national security.

  1. In additional by the threat from the police, public officials and politicians also verbally threatened and abused the organisers. As a response to this, the organisation decided to appeal for judicial review against the police decision but in March 2012 the court revealed the decison that the police had authority to stop the event in order to ensure the security of the country.

Cooperation with the UN Special Rapporteur on human rights defenders

  1. As of February 2013, Malaysian government has yet to accept the requests by the Special Rapporteur on the situation of human rights defenders to visit the country. The first request was made as far back to 2002 with a reminder issued in 2010. This shows a trend of unwilling to cooperate on the multiplicity of issues with regards to human rights defenders on the part of the government.

  1. According to the report of the Special Rapporteur on the situation of human rights defenders to the 19th session of the Human Rights Council (HRC) in February 2012, the authorities has not replied to the Joint Urgent Appeal, dated 28 July 2011, concerning the court order imposing a ban on entering Kuala Lampur for 13 human rights defenders.

  1. TheSpecial Rapporteur and former Special Representative of the Secretary General have continued to raise their concerns regarding the situation of human rights defenders in the country, particularly those workingon land and environmental issues as they relate to indigenous peoples and minority communities. The activities in which they are engaged relate to the representation of indigenous communities at local and national levels. Violations reported included threats to physical integrity in the form of killings.

Development since the previous Universal Periodic Review session

  1. In the previous UPR session,a recommendation was made by Israel for Malaysia to “[a]brogate or amend legislation, such as the Internal Security Act (ISA), that restricts fundamental freedoms in the name of national security or economic life of the state, fosters the arbitrary arrest and detention of persons without granting access to judicial review, hinders the right to a fair trial, and acts to repress the free expression of human rights defenders and other members of society.” Unfortunately, this recommendation did not enjoy the support of Malaysia and had been rejected.

  1. While Front Line Defenders welcomes that the ISA has been repealed by the Malaysian government in 2011, but is worried that there are a number of laws that could be used to target human rights defenders as mentioned earlier in this report have been created.

  2. In conclusion, Front Line Defenders calls upon the member states of the UN Human Rights Council to urge the Malaysian authorities to prioritise the protection of human rights defenders and in doing so to:

  1. Conduct an independent inquiry into the source of threats, ill-treatment, and all forms of intimidation and harassment directed towards all human rights defenders mentioned in this report;

  1. Ensure that all human rights defenders in Malaysia, especially those working on electoral reforms and the rights of LGBTI community, are able to carry out their legitimate human rights activities free from persecution;

  1. Take measures to ensure that government officials or other public figures refrain from making statements or declarations stigmatising the legitimate work of human rights defenders;

  1. Repeal or amend undemocratic laws that have been and could be used against human rights defenders to ensure that they are in line with international human rights standards;

  1. Cooperate fully with the Special Rapporteur on the situation of human rights defenders by responding to her urgent appeals and letter of allegations and accept the mandate holder’s long outstanding request to visit the country;

  1. Fully implement the UN Declaration on Human Rights Defenders and the adopted UPR recommendations in a transparent and participatory manner with full involvement of human rights defenders at all level

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