Malaysia: 50 years after Merdeka
For the last 50 years, voices within Malaysia have expressed concern that a legislative and administrative structure was emerging which posed a grave threat to the rights and liberties safeguarded in the Malaysian Constitution and under international human rights law.
There has been an incremental development of an array of preventive detention laws and other restrictive laws of which were inherited from the British former colonial government, which have allowed the authorities to deny, or place unjustified restrictions upon, the enjoyment of fundamental human rights. These laws have affected many Malaysians and it has created an intimidating effect on political life and the development of civil society in Malaysia.
Current developments also show how institutions of the state, including the Royal Malaysia Police, the Attorney General’s Chambers and the Judiciary appear at times to have come under the improper influence of the Executive, and to have failed to robustly defend constitutional principles and to uphold respect for human rights. Amnesty International is raising these concerns once again as the nation celebrates its 50th Anniversary and calls for reforms to improve the human rights situation in the country.
The Constitution
Malaysia’s Merdeka (Freedom) Constitution, promulgated at Independence in 1957, reflected fundamental human rights and political liberties enshrined in the Universal Declaration of Human Rights (UDHR).
Amnesty International is concerned that these constitutional safeguards have not been realized, that the checks and balances within constitutional government have weakened, and that human rights and fundamental liberties in Malaysia have been undermined.
Part II of the Constitution, entitled ‘Fundamental Liberties’, include the right to life and the right to liberty of the person (including habeas corpus); equality under the law and freedom from discrimination; freedom of movement; freedom of speech, assembly and association; and freedom of religion. Articles pertaining to freedom from discrimination (Article 8) and freedom of speech, assembly and association (Article 10), in particular, contain a number of qualifying clauses empowering parliament to legislate any restriction to freedom of expression, association and assembly that it ‘deems necessary or expedient in the interest of the security of the Federation...public order or morality’.
These clauses have allowed the fundamental principles of the Malaysian Constitution to be comprehensively undermined and, through legislation, for the balance of power between the separate branches of government to shift sharply towards the Executive.
The Emergency proclamations
Since independence, five states of emergency have been declared under Article 150 of the Federal Constitution including during the Indonesia-Malaysia Konfrontasi(17) (Confrontation) in 1964, and after the racial riots of 1969. As of 2007, 4 out of the 5 proclamations are still in force and yet to be annulled by Parliament.
In 1960 the authorities amended Article 149 to expand the definition of subversion, and to remove the one-year time limit on such Emergency Ordinances by providing that they could continue indefinitely, unless both Houses of Parliament passed laws revoking them. Article 149 of the original 1957 Constitution allowed for parliament, in the event of serious subversion or organised violence, to pass laws that were repugnant to the fundamental rights safeguarded elsewhere in the Constitution.
In 1960, Article 150 was also amended to allow Proclamations of Emergency, and any Ordinances issued under them, to continue indefinitely unless both Houses of Parliament annulled them. Article 150 of the original Constitution empowered the Executive to exercise extraordinary powers if a State of Emergency was proclaimed - but only for periods of two months at a time. By reason of the proclamation of emergency, numerous legislations were enacted and are still in force, including the Emergency (Essential Powers) Act, 1964 (30/64), today known as the Emergency (Essential Powers) Act 1979 and the Emergency (Public Order and Prevention of Crime) Ordinance 1969.
The Emergency (Essential Powers) Act 1979, states that as long as the Proclamation of Emergency remains in force, all regulations made under the Emergency (Essential Powers) Act, 1964 shall be in force and shall have effect as if they have been made under this Act.
Due to the 1979 Act, many regulations containing wide arbitrary powers were enacted by the Executive including the Essential (Ikatan Relawan Rakyat) Regulations 1966 and the Essential (Clearance Of Squatters) Regulations, 1969. Both this laws contain unaccountable arbitrary law enforcement functions and powers that have provided for abuse of powers and human rights violations. The clear example of the wide powers of RELA that allows arrest without warrant on reasonable belief of vague category of people simply termed as a terrorist, undesirable person, illegal immigrant goes to undermine a person’s freedom from arbitrary arrest and detention. The 1969 Squatter regulation is another example of abuse of power where the state has invoked this regulation to allow for the summary disposal of squatters hence undermining procedural justice and judicial scrutiny as well as their economic, social and cultural rights. These examples clearly establish the arbitrary law enforcement culture in Malaysia as if we are still living under a state of emergency and in a state of war.
The Preventive Detention Legislations
The Internal Security Act (ISA) remains the core of the permanent, arbitrary powers to detain without trial available to the Executive. As with other restrictive laws in Malaysia, the ISA, through a series of amendments, has incrementally extended Executive powers, while stripping away the judicial safeguards designed to protect against their abuse. As such the ISA is contrary to fundamental principles of international law, including the right to liberty of the person, to freedom from arbitrary arrest, to be informed of the reasons for arrest, to the presumption of innocence, and to a fair and open trial in a court of law.
Beyond the violation of basic rights experienced by particular individuals, the ISA has had a wider, intimidating effect on civil society, and a marked influence on the nature of political participation and accountability in Malaysia. The ISA has been used to suppress peaceful political, academic and social activities, and legitimate constructive criticism by NGOs and other social pressure groups. It limits the political space for important debates on issues of economic policy, corruption and other social challenges.
Beyond the ISA, there are a number of other laws which provide for ‘preventive’ detention without trial in Malaysia, including The Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EPOPCO), The Dangerous Drugs (Special Preventive Measures) Act 1985, and The Restricted Residence Act 1933. The existence of a body of “emergency” laws in Malaysia circumvents critical human rights safeguards enshrined in the Malaysian Constitution and international human rights law. They have facilitated patterns of human rights violations, including torture and ill-treatment, and promoted a climate of impunity and arbitrariness including the ability to deprive a person of his or her liberty indefinitely without trial solely for ‘preventive’ reasons, and to prohibit meetings, ban publications and exclude books and periodicals.
Malaysia has also adopted a body of legislation, some from the colonial government, which places unjustified restrictions on the enjoyment of fundamental human rights and allows for government officials to violate human rights. These include the following:
The Sedition Act 1948
The Sedition Act places wide limitations on freedom of expression - especially regarding sensitive political subjects. The original Act, adopted by the colonial government in 1948, was directed against offences such as inciting disaffection against the government, inciting contempt for the administration of justice and provoking discontent among the people. The law also gives a wide definition to the expression ‘seditious tendency’. The Act has been used extensively to prosecute opposition parliamentarians and other social commentators.
The Printing Presses and Publications Act 1984 (PPPA)
The Printing Presses Ordinance of 1948, introduced by the colonial authorities at the beginning of the Emergency, required all newspapers and printing presses to obtain a licence, to be renewed annually. The Ordinance was revised as the Printing Presses Act in 1971 to additionally provide for powers to revoke the licenses of newspapers that aggravated national sensitivities or were detrimental to national development goals.
The wider effects of the Act upon freedom of expression, the media and the development of civil society in Malaysia have been far reaching. Authorities continue to intimidate writers, associations and publishing companies towards self-censorship and restrict the expression and circulation dissenting opinions against NGOs and other social commentators.
The Official Secrets Act (OSA) 1972
The Official Secrets Act (OSA) of 1972, based on the British OSA of 1911, was also seen to impose wide, largely unjustified restrictions on the right to freedom of expression, and on the examination and discussion of public interest issues by the political opposition. By curbing access to public information and information relating to the public interest the electorate’s right to know was curtailed and the means to uphold public accountability weakened.
The definition of an ‘official secret’, which covered virtually all government documents, was too wide, and subject to classification or declassification at the discretion of Ministers have a profoundly intimidatory effect on freedom of expression. The OSA has been applied in many cases which do not involve ‘foreign agents’ or alleged spying and impose threat on media, politicians and civil society.
The Societies Act 1966
The Societies Act of 1966 consolidated the various existing ordinances that regulated and restricted the formation and activities of societies, clubs, organisations, associations and political parties in Malaysia. Restrictions were tightened through amendments to the Act in 1981 when the category of a ‘political’ society, subject to specific restrictions, was introduced. A ‘political’ society was defined as any group or body that sought to influence in any manner the policies or activities of the Government of Malaysia, or of the Government of any State, or of any local authority’. Once designated ‘political’ a society’s membership was effectively restricted: under previous legislation, members of certain professions, including university lecturers, are not allowed to take part in political activity, and would therefore be prevented from joining a political society.
The Societies Act provides the Executive with the means to block or impede the formation of any organisation, which it considers to be undesirable. The Act’s intimidating effect, along with the onerous bureaucratic requirements of the Registrar who can delay any decision indefinitely without explanation, has had a negative impact on the development of independent civil society.
Amnesty International remains concerned that the Societies Act can be used to deny the rights of individuals and groups to associate freely and to express their opinions of government activity. The effect of the Act is further compounded by restrictions on the right to have recourse to the courts when the Executive branch of government misuses its discretionary powers in registering societies.
The Universities and University Colleges Act 1971
The Universities and University Colleges Act (UCCA) was enacted in 1971 primarily to provide an administrative basis for the establishment of new universities. However, in 1975, the government introduced a range of amendments imposing stringent restrictions on students’ rights to freedom of association and freedom of expression. Many students and academic staffs have fall victim from this act over their legitimate political activities.
The Police Act 1967
The Police Act of 1967 that was enacted to replace the 1952 Police Ordinance and the 1963 Royal Malaysia Police Act placed restrictions, tightened through amendments in 1987, on every citizen’s constitutional right to assemble peaceably. Under the Act all public assemblies of three or more persons require a police permit and the police officer may refuse if he believed the three persons were in fact representing an organisation and that the officer should be satisfied that the organisation was registered or ‘otherwise recognised under any law. Police officers were also empowered to stop any unlicensed meeting as an unlawful assembly, to arrest without warrant participants, and to use force if participants ignore orders to disperse.
RECOMMENDATIONS
Amnesty International therefore in conjunction with Malaysia’s 50th Anniversary calls upon the Yang Di-Pertuan Agung to revoke all existing Proclamations of Emergency in Malaysia.
Amnesty International is concerned that the Malaysian Constitution, as currently amended, does not provide adequate safeguards for the protection of the human rights it enshrines. The organisation recommends that all necessary measures are taken to ensure:
That provisions relating to human rights in the Constitution are strengthened, and that all limitations on rights which negate the right itself and do not conform to international standards, are removed;
The absolute protection of certain rights at all times, including the right not to be deprived of life arbitrarily, freedom from torture and ill-treatment, and guarantees of fair trial;
That any limitations on rights are subject to specific criteria, including what is proportionate, legal and legitimate under national and international law, and should be subject to the scrutiny of the courts.
Amnesty International is also concerned that a body of emergency legislation, which places, unjustified restrictions on the enjoyment of fundamental human rights. Amnesty International therefore calls for all preventive detention legislations to be repealed. We also call for all emergency laws specifically the Emergency (Essential Powers) Act 1979 and all Regulations and Rules made there under be repealed.
Amnesty International is concerned about other legislation that allow for government officials to violate human rights relating to the peaceful exercise of freedom of expression, association and assembly. The organisation urges that such restrictive laws, including the Sedition Act, the Printing Presses and Publications Act, the Societies Act, the Universities and Universities Colleges Act, the Police Act and the Penal Code be reviewed with a view to reform. The organisation believes that clauses that may lead to violations of human rights should be removed, or amended to ensure that vague or ambiguous language does not lead to human rights violations. Reforms should also include the right to challenge administrative decisions made under a number of these laws, including before a court of law.
We urge the government to make these changes in the spirit of Merdeka.
Josef Roy Benedict
Executive Director
Amnesty International Malaysia
