End ALL Human Rights Violations in Malaysia NOW! sign now

Under-Secretary General, Ms Louise Arbour
The United Nations High Commissioner for Human Rights
Office of the United Nations High Commissioner for Human Rights
Palais Wilson,
52 rue des Pвquis,
CH-1201 Geneva, Switzerland

Dear Ms Louise Arbour, UN High Commissioner for Human Rights

PETITION ON BEHALF OF THE MALAYSIAN PEOPLE TO END HUMAN RIGHTS VIOLATIONS IN MALAYSIA AND TO PROTECT THE FUNDAMENTAL RIGHTS, FREEDOMS AND CIVIL LIBERTIES OF THE MALAYSIAN PEOPLE

1. We the undersigned respectfully appeal to you, in good conscience and in good faith, that you investigate into our petition and if found to be true and fair, that you apply appropriate diplomatic pressure on Prime Minister Ahmad Abdullah Badawi and the Malaysian Government to:

charge or release immediately and unconditionally the five Malaysian human rights lawyers and activists of the Hindu Rights Action Force (HINDRAF) currently being detained under Malaysias Internal Security Act (ISA) 1960;

charge or release immediately and unconditionally all other Internal Security Act detainees, estimated to be seventy at present with some detainees having been in detention for over six years;

start or support the process to repeal the out of date and draconian Internal Security Act 1960

start or support the process to repeal all other out of date, anti-democratic and oppressive laws such as the Sedition Act 1948, the Printing Presses & Publications Act 1984, the Universities and University Colleges Act 1971, the Societies Act 1966, the Police Act 1984 and the Official Secrets Act 1972;

re-establish core democratic structures such as an independent judiciary, an independent free press and an independent and impartial Election Commission;

implement the recommendation made by the Royal Commission of inquiry into alleged misconduct by the Royal Malaysian Police by setting up the Independent Police Complaints and Misconduct Commission to control potential abuse of police powers.

2. We also respectfully urge, subject to your independent investigation and findings, that you:

recommend a Universal Periodic Review (UPR) of Malaysias human rights record to gauge whether Malaysia is fulfilling her obligations to uphold the highest standards in the promotion and protection of human rights and to ascertain her suitability to continue with her current membership (to mid 2009) of the UN Human Rights Council;

remove Malaysia from her seat at the UN Human Rights Council if so warranted by the UPR findings and provided no action is forthcoming from the Malaysian Government to eradicate all such alleged human rights abuses and violations in Malaysia.

We thank you in advance and we look forward to your good counsel and help on this important matter of conscience.

Yours respectfully,
Ms S B Menon,
United Kingdom.





APPENDIX SETTING OUT RELEVANT DETAILS IN DEPTH:

Mr P Uthayakumar, Mr M Manoharan, Mr R Kenghadharan, Mr T Vasantha Kumar and Mr V Ganabatirau were arrested in 2007 under Malaysias notorious Internal Security Act (ISA) 1960. The five detained men have been incarcerated since 13 December 2007 and are being held without access to due legal process which is a breach of their guaranteed constitutional rights as well as a breach of their inalienable fundamental human rights.

The five men are being detained at the infamous Kamunting Detention Centre in Perak, where they are being held under inhumane living conditions and in solitary confinement, and where they are allegedly at serious risk of being subjected to physical, mental, emotional and psychological torture. Furthermore, it has been alleged (disturbingly) that ISA detainees are subjected to psychological re-education programmes and that they and their families are subjected to (or threatened with) covert and overt intimidation by the state police and detention centre authorities.

Mr Uthayakumar is a confirmed diabetic and is said to have now become medically unfit due to being forced to subsist on an inappropriate high-sugar content diet and who is allegedly also being denied access to proper medication and medical care for his allegedly serious health condition. Mr Kenghadharan, who is a professed vegetarian, is allegedly being forced to consume a non-vegetarian diet. Mr Manoharan, who was recently elected as a state assemblyman by the people of his constituency at Kota Alam Shah at the recent (12th) general election held on 8 March 2008, is being denied his democratic right to perform his elected duties with his constituents also being denied their democratic right of access to their legitimately elected representative.

Several peaceful and compassionate appeals made to date to the Malaysian Government and to Prime Minister Badawi to release the five detained men by the their families and the Malaysian public have so far fallen on deaf ears and so have been unsuccessful. Some of these compassionate appeals have also been met with unconscionable hostility and unreasonable force from the Malaysian authorities, as was clearly illustrated when a high-profile appeal on St. Valentines day this year by a group of Malaysian children led by Mr Uthayakumars niece, five year-old Vwaishhnnavi, to hand over letters of appeal and bouquets of roses to Prime Minister Badawi, was quelled viciously with police baton charges and Federal Reserve Unit riot-squads firing tear-gas and chemical additives-laced water from water-cannons at the peaceful demonstrators! Even a week-long hunger-strike protest by the detained men failed to elicit any response from the Malaysian Government or Prime Minister Badawi.

The ISA is a legal relic inherited from Malaysias colonial past and which was first introduced by the British colonial rulers to combat the threat from communism in Malaysia. This dangerous legal sledgehammer persists in present-day democratic Malaysia (where there is no longer any threat from communism) because we believe it gives the government of the day the power to order with impunity the arrest and indefinite detention of any Malaysian citizen considered to be a threat to national stability/security. ISA detainees are often arrested on the extremely slippery and tenuous grounds of mere suspicion, with their arrest and detention usually not corroborated by any valid, reasonable or objective proof.

Alarmingly, the ISA detention order is made at the sole discretion and behest of a single government minister, with the detention order purportedly made on the advice/request of a member of the state police force.

To make matters worse, there is no right to independent judicial review to enable a challenge to the ISA detention order to be mounted by the detainee or by another party on behalf of the detainee. This important protection by way of judicial review originally enshrined in the Malaysian Federal Constitution - to safeguard and protect the freedoms and rights of the citizens from being encroached upon and eroded by possible abuse of Executive power - has been (we allege, deliberately)taken away by the Malaysian Government through an amendment made to the Malaysian Federal Constitution sometime in 1988/1989 which effectively negated the protective clause included in the original 1957 written version of the Malaysian Federal Constitution.

The Malaysian Government alleges that the five HINDRAF activists are being detained because of suspected links to terrorist organisations, citing the LTTE in Sri Lanka as one example. However, to date, no evidence whatsoever has been found or presented by the Malaysian Government to support their allegation of the alleged suspicion.

We refute categorically the Malaysian Governments allegations and suspicions as they are, we believe, not only entirely baseless but also spurious, frivolous and in this particular case, also vexatious. We believe that each of the five detained men - who together, successfully galvanised massive support from the Malaysian public to organise peaceful protests against the Malaysian Government in 2007 - are being made an example of to other Malaysians. We believe that they are being deliberately humiliated and punished for engaging in (lawful) democratic dissent and for defying and challenging openly the dictatorial-styled authoritarian rule and unfair practices of the Malaysian Government and also for publicly questioning:

the Malaysian Governments alleged unjust, unfair and discriminatory policies which openly favour citizens from the Malay Muslim community and which disenfranchise and marginalise, to a serious extent in many cases, (equal) citizens from other ethnic communities, and

the Malaysian Governments insensitive and unconscionable policy of wanton destruction of several Malaysian Hindu temples one of which was over a hundred years old with some others said to have been in existence before Malaysias independence and which were desecrated in a deeply offensive and cavalier fashion with the demolitions having been allegedly carried out without proper and appropriate consultation and without due regard and respect for the sentiments and sensibilities of the Malaysian Hindu community.


We also attach, as further evidence to back our appeal to you, an extract of a report published by Amnesty International in 2003 and an excellent report published by Amnesty International Malaysia, both of which we attest provide accurate and credible analyses of the farcical nature of democracy practised in Malaysia and the abysmal human rights abuses prevalent there in what is purported to be a democratic nation state.

The two reports lend weight to our allegation that archaic, irrelevant and bad restrictive laws as well as questionable amendments made to the Malaysian Federal Constitution by the government (through their ruling coalitions majority presence in Malaysias legislative chamber) are being used as (covert) political tools of convenience and expedience by the Malaysian Government to effectively cow and control the Malaysian people into subservience and to curtail their fundamental and constitutionally guaranteed rights, freedoms and civil liberties with impunity under the pretext of protecting Malaysias national stability and security.

1. Extract from an Amnesty International report published in 2003:
Laws like the Sedition Act, that fail to conform to international human rights standards, threaten the survival of an independent media and freedom of expression in Malaysia," Amnesty International said.

Malaysia's restrictive laws are routinely used to curtail internationally recognized human rights, such as freedom of expression. Efforts by independent domestic and international media sources, as well as opposition politicians and Malaysian non-government organizations to comment on sensitive social issues, run the risk of fines, prosecution and imprisonment.

"It is time that the Malaysian government stopped eroding human rights in the name of stability and development. Real stability and development can only be achieved through guaranteeing the free expression of views on emerging social and economic problems, and protecting other fundamental human rights," Amnesty International concluded.

The Sedition Act (1948) places wide limitations on freedom of expression, particularly regarding sensitive political subjects such as race. Under Section 4(1) c of the Act anyone responsible for a "seditious publication" is liable to a fine not exceeding RM5000 or up to three years imprisonment. Sedition itself is broadly defined in Section 3(1) e as "to promote feelings of ill-will and hostility between races or classes of the population of Malaysia."

2. From a report by Amnesty International Malaysia published in 2007:

Malaysia: 50 years after Merdeka
Friday, 31 August 2007
Restrictive laws continue to undermine human rights

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 Generals 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

Malaysias 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 persons 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 electorates 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 societys 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 Acts 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 citizens 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 Malaysias 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.

Amnesty International Malaysia
___________________________________________________________________________

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Ivy GrimesBy:
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