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Joint Memorandum to UN Secretary-General Ban Ki Moon

Joint Memorandum to UN Secretary-General Ban Ki Moon on 22 March 2012

Pressing human rights concerns in Malaysia

Your Excellency,

We, the undersigned Malaysian civil society organizations welcome your official visit to Malaysia on 21 and 22 March 2012. We believe that your visit to Malaysia is a timely one. In this context, we would like to take this opportunity to highlight to you some of the major human rights concerns in Malaysia.

When Prime Minister Najib Razak took over Malaysia’s premiership in 2010, he clearly sought to capture the imagination of an election-expectant public by promising reforms. He undertook to abolish the Internal Security Act 1960 (“ISA”), a law that provides for detention without trial, and three Emergency Ordinances, and to review other laws relating to the freedoms of expression, assembly and association.

However a legacy remains, of policy errors, human rights violations, and indiscriminate abuses of power that has impeded the progress of Malaysia and its public institutions. This has come at great social, economic and political costs to the nation.
The current Prime Minister Najib Razak’s promises of reforms, including the repeal of detention-without-trial laws and guarantees of the right to freedoms of expression and assembly, have thus far proven to be mere rhetoric. The recent arrests in November 2011 and detention of 13 more individuals without trial under the ISA have confirmed our suspicions that the government has no serious intention to abolish this practice.

Recently, in 2011, the government, through its majority in Parliament, speedily passed the Peaceful Assembly Bill, which has increased the deprivation of the right to freedom of peaceful assembly. This new law is expected to further restrict the right to freedom of assembly, which has long been suppressed in Malaysia. In July 2011, for example, more than 1,600 peaceful protestors were arrested during a rally calling for free and fair elections. We anticipate a worsening of the situation after the enactment of the new law.

Abuse of power by the police has continued as seen in the rising statistics with regard to deaths in police custody, police shootings and other forms of violence against the public. The government remains recalcitrant in refusing to implement the Independent Police Complaints and Misconduct Commission (IPCMC) as recommended by the Royal Police Commission a few years ago.

The plight of refugees has not been alleviated by the government’s refusal to distinguish the fundamental differences between a refugee, an asylum seeker and an undocumented migrant. Their protection remains illusory while the Malaysian government drags its feet in ratifying the United Nations 1951 Convention Relating to the Status of Refugees and continues its dismal record in respecting the peremptory norm of non-refoulement.

For the last 55 years since Malaysia’s independence, every fundamental liberty enshrined in the Federal Constitution (“FC”) has been taken away or amended beyond recognition. In this regard, we the undersigned civil societies and defenders of democratic rights and liberties, wish to bring to your attention the following key human rights concerns, which we hope will be relayed to the Malaysian government during your visit in Malaysia.

1. National Unity and Pluralism

Pluralism, multiculturalism and national unity have been at best superficial. Despite 46 years of Independence, the colonial strategy of ‘divide-and-rule’ is still maintained. In stark contrast with the Malaysian Prime Minister’s role in advocating for the establishment of a Global Movement of Moderates, Malaysia continues to experience increasing levels of racial discrimination, racism, and intolerance related to race and religion. This problem is deeply rooted in numerous government policies and practices. For example, issues of race and religion are intricately linked as the FC defines ‘Malay’ as being Muslim (Article 160(2), FC). This conflation of race and religion set in place a divisive discourse of Malays (Muslims) and non-Malays (non-Muslims) that continues to be perpetuated by the Government in its play on identity politics. Poorly administered and monitored affirmative action policies of “special privileges” (Article 153, FC) for Malays and the natives of Sabah and Sarawak have fomented national disunity. Some claim that several of their rights have been violated or not promoted. Examples: rights to education, education in their mother tongue, and to freedom of religion especially when a Malay person wants convert out of Islam.

The first commitment to end this is for the government to:-

·         Constitute a Race Relations Commission to combat racism and racial discrimination.
·         Immediately ratify the International Convention on the Elimination of All Forms of Racial Discrimination.

2. Civil and Political Rights

Malaysia’s human rights record has been dismal, due to the arsenal of draconian legislation that the Executive has in its hands. The preconditions necessary for the reversal of this trend include:-

·         The abolition of all detention-without-trial laws. These include the Internal Security Act, the Emergency Ordinance (Public Order and Preventive Ordinance), and the Dangerous Drugs Act (Special Preventive Measures).
·         Ensuring that no new laws that permits detention without trial be enacted in the pretense of national security
·         The abolition or amendments of laws and provisions of laws that violate the fundamental freedoms of speech, assembly and association. These include the Sedition Act, the Printing Presses Publications Act, Section 15 and 16 of the University and University Colleges Act, the Official Secrets Act, the Police Act, the Societies Act and the Trade Union Act. In particular, we strongly call for the withdrawal of the newly-passed Peaceful Assembly Act, which severely restricts freedom of peaceful assembly.
·         Sign, ratify and implement domestically other key international instruments, including the International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; the Convention Against Torture, and the Rome Statute of the International Criminal Court

3. Free and Fair Elections

There remains a major problem with Malaysian elections: they have not been conducted fairly or cleanly. Malaysians are well aware of the non-level playing field that characterises our electoral process. As elections approach, we see clearly the Barisan Nasional’s (BN) near monopoly and manipulation of the mainstream media, its access to and abuse of federal government facilities and funds, and its possession of huge electoral war chests, which allow the BN component parties to outspend its challengers. Voters have complained that they were denied their right to vote on polling day because their names had been removed from the rolls, or that they had been transferred to other polling stations or districts without their awareness. In the last election there were also allegations that some had not had the opportunity to vote because the stations had not remained open long enough for people to cast their votes.

We urgently call on the government to:

·         Ensure fair representation in delineation of parliamentary constituencies – discrepancy in the number of voters in different constituencies should not exceed 15% as existed at the time of Independence.
·         Strengthen public institutions involved in the electoral process, including the judiciary, the Election Commission, police, MACC and broadcasting media to ensure their independence and professionalism.
·         Clean up the electoral rolls.
·         Guarantee automatic voting eligibility from the age of 18 using identity card, and reform postal voting to ensure transparency and to enfranchise Malaysian citizens abroad.
·         Ensure a minimum of 21 days for electoral campaigning.
·         Prohibit as election offences all unethical practices such as religious or communal appeal, false statements, defamatory or personal attacks, willful distortions, unproven allegations, racist, racial or other forms of intolerant statements against women, minorities and marginalized groups;
·         Curb corruption and vote buying by compulsory auditing of all election expenses, campaign financing; full disclosure of sources of financing and expenditure, and setting a limit on campaign expenditure.
·         Ensure free and fair access to the media for all parties.
·         Invite international election observers as a norm in general elections for greater credibility.
·         Use indelible ink to prevent multiple voting.

4. Protect the Rights of the Indigenous Peoples

Despite voting to adopt the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), indigenous peoples (locally referred to as “Orang Asal”) in Malaysia continue to suffer a lack of recognition of their land rights. They are continuously subjected to forced relocation, and forced assimilation policies affecting their cultures and religions. The Declaration’s core principle of ‘free, prior and informed consent’ is not adhered to in development policies affecting them.

·         Protect the right of the Orang Asal to self-determination, including the right to own, control and use their traditional lands, territories and resources on their own terms.
·         Protect the right of the Orang Asal to sustainable development, access to basic needs and advancement of their traditions and languages.
·         Follow through on Malaysia’s endorsement of the UNDRIP by introducing policies and instituting legislation that comply with its tenets.
·         Enact or amend state laws that recognise and protect the native customary rights of the Orang Asal to their traditional lands and territories.
·         Recognise traditional and ancestral land rights of indigenous communities and their right to free, prior, informed consent in decision-making that affect their livelihood and welfare

5. Women

Women make up more than 50% of the Malaysian population, yet many of the rights of women have yet to be realised. Violence against women and sexual harassment at workplaces is increasing. In 1999, a coalition of prominent women’s organisations produced a comprehensive list of demands which are still relevant today and we continue to call upon the government to:-

·        Implement at least a 30% quota for women’s representation in all decision-making bodies of government, the judiciary and political parties in order to encourage greater participation by women in public life and formulate a plan of action and timeline for the realisation of this quota;
·        Incorporate the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)and its provisions into national law guaranteeing equality of women with men in both public and private spheres of life
·         Review and amend all laws and constitutional provisions that discriminate on the basis of gender;
·        Confront sexism and prejudice based on gender stereotypes;
·        Ensure equal pay for women holding similar posts as men;
·        Criminalise all acts of discrimination against women and ensure that effective remedies are available to women whose rights have been violated.
·         Invite the UN Special Rapporteur on violence against women and the Working Group on Discrimination against Women in Law and Practice for country visits.

6. Workers

Despite moving towards the path of an industrialised nation, many fundamental guarantees have not been made available to Mal
aysian workers. There is no minimum wage system across the board for all sectors and workers still face problems forming or joining a trade union. Hence the government should immediately:-

·         Legislate a guaranteed minimum wage system for all workers as recommended by the Malaysian Trade Union Congress (MTUC).
·         Legislate a monthly wage system for plantation workers.
·         Recognise the rights of workers to join and form trade unions especially in the electronics sector; Allow for a national union for the electronics sector to be formed.
·         Ratify all remaining International Labour Organisation Conventions, in particular C87 Freedom of Association and Protection of the Right to Organise Convention, 1948.
·         Implement the National Retrenchment Scheme (NRC) to safeguard workers facing retrenchment.

7. Education

The development of mother-tongue education schools has deteriorated in recent years. The lack of academic freedom and freedom of association and expression in the institutions of higher education has compromised the quality of education in the country. There is an urgent need to:-

·         Implement the increase of Chinese and Tamil Schools together with resources and facilities, as promised during the 1999 General Elections; Amend the Education Act 1996 to reflect the national education policy as originally stated in the Education Ordinance 1957 which ensures the development of mother-tongue education for all.
·         Abolish the Universities and University Colleges Act to protect academic freedom and freedom of association and expression.
·         Invite the UN Special Rapporteur on the right to education for a country visit.

8. The Economy and Social Services

Rampant privatisation of public utilities and public projects has resulted in vast amounts of public monies wasted and squandered. Funds from the national pension scheme have been used to bail out crony projects and these remain unaccounted for. Public services have been privatised at the expense of the public while basic social needs of the poor have deteriorated. The government of Malaysia must immediately:-

·         Stop the corporatisation of the national healthcare system.
·         Stop the practice of forced evictions; Increase the number of low-cost housing and give land titles to existing villages and settlements of urban settlers, plantation workers and new village residents.
·         Establish a more transparent, just and consultative system in the allocation and determination of price, for low cost housing for the poor.

9. Sexuality Rights

We are deeply concerned with the situation where religious and political leaders, as well as the media continue to demonise LGBTIQ activists and communities in Malaysia. In addition, LGBTIQ persons are frequently exposed to hate speech, attacks and harassment. We believe that everyone in Malaysia deserves to be free from discrimination, harassment and violence regardless of their sexual orientations and their gender identities. The Government must:

·         Fully decriminalise homosexuality and prevent impunity for all kinds of incitement to or direct harassment, threats and other violations against lesbians, gays, bisexuals, transgender, intersex and queer persons, as well as ensure that they are treated equally.
·         Refrain from hate speech and ensure the right to freedom of expression to all human rights defenders, including those defending the rights of sexual minorities, as provided in Article 19 of the ICCPR.
·         Ensure in law and in practice the right to freedom of association for lesbians, gays, bisexuals, transgender, intersex and queer persons, and their right to organise themselves to protect and promote their rights, as provided in Article 22 of ICCPR and called for by the UN Human Rights Council (§ 1, resolution 15/21, 30 September 2010, UN Doc.: A/HRC/RES/15/21).

10. Protect Rights of Refugees and Migrant workers

i. Migrant Workers:

Malaysia is one of the primary destination countries for refugee and migrants in Southeast Asia. There are an estimated 2.1 million documented migrant workers in Malaysia and more than 1 million migrants in an irregular situation. The economy of Malaysia is foreign labour dependent – around 25-30 percent of the workforce comprises migrants. Without the labour of migrants, Malaysians would not be able to enjoy the economic recovery and growth it has experienced over the past three decades.

However, the rights of migrants and refugees are still poorly protected in a number of ways. Migrants and refugees continue to face significant barriers to access to health services and are subject to discriminatory policies of mandatory testing and deportation for several treatable diseases as well as pregnancy. Those who suffer from violations of labour and human rights – such as cheating by agents, wrongful arrest and detention, unpaid wages, wrongful dismissal, wrongful deduction of wages, accidents in the workplace, abuse, violence, sexual harassment, and rape – are unable to obtain effective redress through the existing legal system.

ii. Refugees and Asylum seekers

Malaysian immigration law does not provide special protection or procedures for asylum seekers, refugees or trafficked persons nor does it make special provisions for children or women, including pregnant women. As a result, the status of ‘refugee’ does not exist in Malaysian law and, at least formally, the fact that a person has the recognition of the United Nations High Commissioner fo
r Refugees (UNHCR) does not attract any special rights in Malaysian law. Therefore, refugees and asylum seekers are equally subject to the Immigration Act as other undocumented migrants, such that if they unlawfully enter or remain in Malaysia, they are liable to being imprisoned, whipped, detained and removed.

We urge the government to:

·         Signs, ratify and implement the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention Relating to the Status of Refugees and its Protocol, the Convention Relating to the Status of Stateless Persons, the Convention on the Reduction of Statelessness, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children Supplementary to the United Nations Convention against Transnational Organized Crime.

·         Malaysian government to establish domestic legislation and policies to protect and promote the rights of refugees and asylum seekers who are already in the country and to ratify the 1951 Refugee Convention and its 1967 Protocol;
·         Amend the Immigration Act or enact separate legislation to legalise the status of refugees and asylum seekers in Malaysia.
·         Ensure that conditions in police lock-ups, prisons and immigration detention centres are consistent with the 1955 UN Standard Minimum Rules for the Treatment of Prisoners, the 1985 UN Standard Minimum Rules for the Administration of Juvenile Justice, the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the 1990 Basic Principles for the Treatment of Prisoners and the 1990 UN Rules for the Protection of Juveniles Deprived of their Liberty.

11. Rights of Children

Malaysia ratified the Convention on the Rights of the Child (CRC) in 1995. CRC and the recommendations by its Committee have not been effectively implemented especially the National Plan of Action 2005-2010 for Children and the Child Protection Policy.

Malaysia’s ratification of the CRC must be reflected in an effective implementation of Malaysia’s Child Act. The continued detention of children (including migrant and refugee) who may face whipping and deportation as they deemed to be “illegals” remain great concerns.

Act immediately on the other recommendations of the CRC, including:

·         Carefully and regularly evaluating existing disparities in the enjoyment by children of their rights, taking necessary steps to prevent and combat discriminatory disparities against children belonging to vulnerable groups
·         Improving the birth registration system of non-Malaysian children
·         Taking urgent measures not to detain children for immigration proceedings, unless necessary for their best interests, and then for the shortest time possible
·         Ensuring all children have access to health and therapeutic services, and strengthening mechanisms to protect all children from abuse and neglect
·         Providing free and formal primary, secondary and other forms of education to all children and access to official exams for those in informal education
Your Excellency, the above are some serious pressing human rights concerns in Malaysia. We thank you in advance for your attention on these issues, and trust that you will have a fruitful visit and productive dialogue with the Malaysian government, with the view of advocating for firm and concrete commitments by the Malaysian government towards human rights and democratic principles, which have been the fundamental pillars of the United Nations..

This memorandum is endorsed by:

1.      Anak Muda Sarawak
2.      Community Action Network (CAN)
3.      Community Development Centre (CDC)
4.      Education and Research Association for Consumers Malaysia (ERA Consumer)
5.      Gerakan Mansuhkan ISA (GMI)
6.      Islamic Renaissance Front
7.      Jaringan Rakyat Tertindas (JERIT)
8.      Lawyers For Liberty (LFL)
9.      LLG Cultural Development Centre
10.  Malaysia Youth and Students Democratic Movement ( DEMA )
11.  Malaysian Physicians for Social Responsibility
12.  Persatuan kesedaran komuniti, Selangor
13.  Persatuan Masyarakat Selangor dan Wilayah Persekutuan (PERMAS)
14.  Pusat Komunikasi Masyarakat (KOMAS)
15.  Rainbow Genders Society
16.  Save Sungai Selangor (SOS)
17.  Saya Anak Bangsa Malaysia
18.  Seksualiti Merdeka
19.  Suara Rakyat Malaysia (SUARAM)
20.  Women’s Aid Organisation (WAO)
21.  Group of Concerned Citizens
22.  Semparuthi Iyakkam
23.   Council of Temples
24.  Academy of Tamil Studies
25.  Persatuan Sahabat Wanita Selangor
26.  Centre for Independent Journalism (CIJ) Malaysia
27.  Pertubuhan Advokasi Masyarakat Terpinggir Kuala Lumpur dan Selangor (PAMT)
28.  All Women’s Action Society (AWAM)