Human rights in Malaysia

The situation of human rights in Malaysia is controversial as there have been numerous allegations of human rights abuses in the country. Human rights groups and foreign governments are generally critical of the Malaysian government and the Royal Malaysian Police. Preventive detention laws such as the Internal Security Act and the Emergency (Public Order and Prevention of Crime) Ordinance 1969 allow for detention without trial or charge and as such are a source of concern for human rights organisations like SUARAM.

Ratings

In 2013, Malaysia was ranked 147 out of 180 nations by Reporters Without Borders in the Press Freedom Index.

As of 2013, Malaysia is rated as "Partly Free" in the Freedom in the World report.

Legislation

Several Malaysian laws are used to restrict basic human rights. Recent sweeping changes in these laws have been described by the government as human-rights reforms but, according to critics, have actually, in some regards, made restrictions even more stringent.

The country's Ministry of Foreign Affairs has defended its strict controls on human rights with the explanation that the nation “takes a holistic approach to human rights in that it views all rights as indivisible and interdependent. In Malaysia, the rights of every citizen are protected by legal provisions in the Federal Constitution....But these rights are not absolute and are subject to, among others, public order, morality and security of the country.” Hence, while claiming to “uphold...the universal principles of human rights,” Malaysia finds it important to “take into account the history of the country as well as the religious, social and cultural diversities of its communities. This is to ensure that the respect for social harmony is preserved and protected. The practices of human rights in Malaysia are reflections of a wider Asian value system where welfare and collective well-being of the community are more significant compared to individual rights.”

The country is especially well known for arresting persons without warrants and detaining them indefinitely without trial, and for placing strict limitations on freedom of speech, press, assembly, and association in the name of social order. Among the other problems cited in a US State Department report in 2011 are the abuse and even death of persons held by police; punishment by caning; trafficking in persons; systematic official prejudice in favour of ethnic Malays; forced labour by migrant workers and others; and child labour on plantations.

Traditional restrictive legislation

There are several strong and sweeping pieces of legislation that have long been used by Malaysia to restrict the human rights of individuals and thus preserve, in its view, social order. In 2008 Amnesty International summed up the state of human rights in Malaysia, in part, by noting that the government had “tightened control of dissent and curtailed the right to freedom of expression and religion,” arresting bloggers under the Sedition Act, using the Printing Presses and Publications Act (PPPA) to control the content of newspapers, and arbitrarily arresting several individuals under the Internal Security Act (ISA). In 2012 there were major changes in a number of these laws that were officially described as human-rights reforms but that have been widely criticised either for not going far enough or for, in fact, further restricting human rights.

Internal Security Act

Main article: Internal Security Act (Malaysia)

Perhaps the best known of these laws is the Internal Security Act, which was passed in 1960, three years after the nation gained its independence from the United Kingdom. Widely viewed as draconian, it permits long-term detention without trial, and over the decades has been used systematically against individuals who have been viewed, for various reasons, as threats to Malaysia's government or to the “social order.”

Sedition Act

Another powerful and widely employed piece of legislation, which dates back to 1948, when Malaysia was still a British colony, is the Sedition Act, which criminalises speech or writing that is considered to be seditious. A great many critics and political opponents of the Malaysian regime have been arrested and held under the Sedition Act, the effect of which has been to restrict freedom of expression in Malaysia.

Printing Presses and Publications Act

Passed in 1984, the Printing Presses and Publications Act, which makes it a crime to publish anything without a government license that must be renewed every year by the Home Minister, has been used to silence government critics and to ban various publications for a variety of reasons. As with the Sedition Act, the practical effect of the Printing Presses and Publications Act has been to severely restrict freedom of speech in Malaysia. Meanwhile, in East Malaysia(Sabah and Sarawak), press is more free as there is less concern of controversy happenning there.

Police Act

Main article: Police Act 1967 (Malaysia)

The Police Act of 1967 allows the Malaysian police to detain persons without warrants, and has been used especially to restrict the freedom of assembly. Under the Police Act, until recently, police permits were required for gatherings of over four people, other than strikes,

Changes in restrictive laws

On 15 September 2011, Prime Minister Datuk Seri Najib Tun Razak announced that the ISA would be totally repealed and “be replaced by a new law that incorporates far more judicial oversight and limits the powers of the police to detain suspect for preventive reasons.” The government also committed itself to the repeal of some of its other best known legal instruments for restricting human rights, including the Sedition Act and Emergency Declarations and Banishment Act. In addition, the government agreed to review several laws, including Section 27 of the Police Act, the Printing Presses and Publications Act and the Official Secrets Act.

Security Offences (Special Measures) Act

In a June 2012 article published in the East-West Centre in Asia Pacific Bulletin and reprinted in the Bangkok Post and on the website of Human Rights Watch, writer Mickey Spiegel noted that in April 2012, the Malaysian parliament had passed the replacement for the ISA, called the Security Offences (Special Measures) 2012 Act (SOSMA). Spiegel complained that SOSMA “does not go far enough to protect the fundamental rights and freedoms of Malaysians.” In fact, asserted Spiegel, SOSMA is "actually more repressive and retrograde" than the ISA in some ways, an indication that the government was “playing 'bait and switch' with human rights.”

For example, “coupled with amendments to other laws,” SOSMA “tightened restrictions or banned outright activities already under constraint, added limits to previously unrestricted activities, and broadened police apprehension and surveillance powers in new and innovative ways.” In addition, it “further erodes citizens’ individual protections, for example by ceding to the police rather than judges the power to intercept communications.”

Peaceful Assembly Act

Main article: Peaceful Assembly Act 2012

The Peaceful Assembly Act (PAA) replaces Section 27 of the Police Act, which required police permits for large gatherings. Under the new act, such permits are not necessary. Instead, organizers must give the police 10 days notice of any planned gathering, after which the police will reply, outlining any restrictions they wish to place on the gathering. The new act forbids street protest, prohibits persons under 15 from taking part in gatherings, prohibits persons under 21 from organising them, and bars them from taking place near schools, mosques, airports, railway stations, and other designated places. Though touted as a reform of Section 27 of the Police Act, the PAA has been severely criticised by the government opponents and by others as more restrictive than the legislation it replaced, with one opposition leader saying that the PAA gives “absolute powers to the police.”

ASEAN human-rights declaration

In November 2012, Prime Minister Datuk Seri Najib Tun Razak signed the first human-rights declaration by the ASEAN nations, an action that officially committed the nation “to its first foreign convention to promote fair treatment of every individual irrespective of race, religion and political opinion.” This signing, it was noted, took place at a time when Malaysia had “come under close international scrutiny for its alleged mishandling of several recent human rights issues,” including crackdowns on two major pro-democracy protests in July 2011 and April 2012. The Human Rights Commission of Malaysia expressed its disappointment that the declaration permits “restrictions to be made on grounds wider than what are accepted internationally,” and pointed especially to General Principle 7, “which declares on the one hand, that all human rights are universal, indivisible, interdependent and interrelated, recognises on the other, that Member States may take into consideration their political, economic, legal, socio-cultural, and historical backgrounds in the realisation of human rights in their countries.”

Human Rights Commission of Malaysia

Main article: Human Rights Commission of Malaysia

The Human Rights Commission of Malaysia, better known in the country as Suhakam (which is short for Suruhanjaya Hak Asasi Malaysia), is the country's major agency for addressing human-rights issues.

Human-rights groups

The leading human-rights organisation in Malaysia is Suara Rakyat Malaysia (SUARAM). On 17 September 2012, several dozen international human-rights groups issued a joint press release protesting what they described as “the Malaysian government's ongoing harassment” of SUARAM.

Basic rights

The constitution forbids discrimination against citizens based on sex, religion, and race, but also accords a "special position" to Bumiputeras, a label that applies both to ethnic Malays and to members of tribes that are indigenous to the states of Sabah and Sarawak in eastern Malaysia. In 2010 Prime Minister Najib called for the reform of this positive discrimination policy. Those who are not members of the ethnic Malay majority are systematically discriminated against in education, employment, and other spheres.

Freedom of speech

Freedom of speech and the press are restricted, with journalists intimidated into censoring themselves. Public comment on racial, religious, and other subjects is prohibited. A variety of laws restrict political speech, although some criticism of the government occurs without retaliation. All newspapers are controlled by governing parties or their allies. Publications must apply annually for permit renewals, which can be denied; foreign publications are subject to censorship and confiscation. On radio and TV, opposition parties are subject to biased reporting. Certain Malaysians and foreigners are banned from appearing on broadcast media.

Internet access is permitted, but defamation and other laws result in self-censorship by bloggers and others. Civil servants, professors, and students must sign a loyalty pledge, under which their political activity and freedom of expression are restricted. Many films are censored or banned.

Freedom of assembly and movement

Although citizens technically enjoy the right to assembly, public gatherings are subject to police approval. The Societies Act requires organisations of seven or more people to register, with the government denying registration to certain groups, including human-rights organisations, and the Universities and University Colleges Act restricts the formation of student groups. While Malaysians generally enjoy freedom to travel within the country and abroad, and to move abroad and move back to Malaysia, residents of peninsula Malaysia require passports or national IDs to enter the states of Sabah and Sarawak, and citizens cannot travel to Israel without official permission.

Freedom of religion

The constitution guarantees freedom of religion, but also describes Islam as the official religion. The government influences the teachings of mosques for its own purposes. Among the official public holidays in Malaysia (varying by area) are Muslim, Buddhist, Hindu, and Christian holy days. Marriages between Muslims and non-Muslims are not recognised; ethnic Malays are considered Muslim. Non-Sunni interpretations of Islam are illegal. Islamic courts enforce sharia law in certain areas of responsibility. In practice, non-Muslims face religious discrimination, including the right to own land (PENIPU).

Political freedoms

Though Malaysia is a multiparty constitutional monarchy, the same party has held power since 1957 and opposition parties do not compete on a level playing ground. Over the years the prime minister's power has increased and parliament's has declined. The only elected officials are members of state assemblies and of the federal parliament. Since 1969, municipal and other officials have been appointed.

Children's rights

Malaysians inherit citizenship from their parents. Persons who cannot prove that their parents were married, or whose parents were of different religions, are denied citizenship and considered stateless. Children who lack birth certificates cannot attend public or private schools. Primary education is compulsory, but this requirement is not enforced. Incest and other forms of sexual exploitation of children are common, as is the genital mutilation of girls. While statutory rape is illegal, enforcement is complicated by the fact that sharia law regards menstruating girls as adults. Child prostitutes are often treated not as victims but as delinquents. Many children of illegal immigrants live on the street and worked at menial jobs, commit crimes, or engage in prostitution. Malaysia is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, but after the UN's Universal Periodic Review of Malaysia in 2009, the government withdrew several but not all of its reservations under the Convention on the Rights of the Child (CRC) and acceded to the two optional protocols to the CRC.

Women's rights

Main article: Women in Malaysia

After the UN's Universal Periodic Review of Malaysia in 2009, the government ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) in 2010, although with certain reservations. The punishment for rape in Malaysia is a prison term of up to 30 years, plus caning and a fine; the law against rape is enforced effectively. Since 2007, marital rape has also been a crime.

There are crisis centres at many government hospitals where victims can report acts of rape and domestic abuse, but owing to cultural attitudes and other factors about 90 percent of rape victims remain silent. Domestic abuse cases are often complicated, moreover, by provisions of sharia law that forbid wives to disobey their husbands. Medical treatment for women is adequate, including pre- and postpartum care.

Sharia courts

Main article: Syariah Court

Women are discriminated against in sharia courts, especially in family-law matters. Sharia allows men to have multiple wives and favours males in inheritance cases. Non-Muslim women, and Muslim women in four states, enjoy equal parental rights. There is employment discrimination against women. In Kedah State, women performers can appear only before female audiences.

Sexual harassment

Sexual harassment is common, and since 2010 trains on the Malaysian Railway have included pink-coloured women-only cars as a means of cutting down on it. There are also women-only buses in Kuala Lumpur since 2010. In 2011, the government launched a women-only taxi service in the greater Kuala Lumpur area. The taxis have women drivers, and operate on an on-call basis.

Disabled rights

Discrimination against the disabled is not illegal, but the government promotes the acceptance and employment of such persons. While new government buildings are designed with disabled people in mind, older buildings and public-transportation vehicles are not. A lower excise duty is charged on cars and motorcycles designed for disabled persons. The Ministry of Human Resources is tasked with protecting disabled rights. A Persons with Disabilities Act was passed in 2008 but violators are not penalised. In the wake of the UN's Universal Periodic Review of Malaysia in 2009, Malaysia ratified the Convention on the Rights of Persons with Disabilities, though with certain reservations.

Indigenous people's rights

For the most part, indigenous people do not participate in decisions affecting their lives, and their rights are not effectively protected. Under the Aboriginal People's Act, members of indigenous groups do not have land rights, and logging firms encroach on their traditional lands. Although for a long time indigenous persons were often deprived of their lands without due process, this situation has improved in recent years. Malaysia is signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), but has still not ratified ILO Convention 169.

The 20-point agreement, or the 20-point memorandum, is a list of 20 points drawn up for North Borneo, proposing terms for its incorporation into the new federation as the State of Sabah, during negotiations prior to the formation of Malaysia on 16 September 1963. Some of the twenty points were incorporated, to varying degrees, into what became the Constitution of Malaysia; others were merely accepted orally, thus not gaining legal status. Point 12: Special position of indigenous races ~ "In principle the indigenous races of North Borneo should enjoy special rights analogous to those enjoyed by Malays in Malaya, but the present Malaya formula in this regard is not necessarily applicable in North Borneo"

Trafficking in persons

Malaysia, according to Amnesty International, “is a destination and, to a lesser extent, a source and transit country for women and children trafficked for the purpose of commercial sexual exploitation, and men, women, and children for forced labor....Malaysia improved from Tier 3 to the Tier 2 Watch List for 2008 when it enacted comprehensive anti-trafficking legislation in July 2007.”

As of 2014, Malaysia is listed as a tier 3 country.

LGBT rights

Main article: LGBT rights in Malaysia

Both section 377 of the Penal Code as well as several state-level laws criminalise homosexuality and sodomy. Laws forbidding sodomy and unnatural carnal intercourse are occasionally enforced, and there is considerable social prejudice founded in the Islamic view of homosexuality, although the situation in this regard is reportedly improving. Gays are not permitted to appear in the state media, and cannot be depicted in films unless they "repent" or die.

In two speeches given in June and July 2012 to Muslim groups, Prime Minister Datuk Seri Najib Tun Razak described gays as a "deviant culture" that had no place in Malaysia. In December of that year Human Rights Watch decried Najib's remarks, saying that his “actions against LGBT people are a glaring contradiction to his self-proclaimed profile as a 'global moderate' leader.” Those actions include shutting down a November 2011 sexual-diversity festival and a government program to train people to “convert gays.”

The Malaysian establishment's view of LGBT rights was reflected in a 12 September 2012, letter to a Malaysian newspaper by the vice-president of the Muslim Lawyers Association of Malaysia, Azril Mohd Amin. Writing about the proposed declaration of human rights by the ASEAN countries, Amin, wrote that: “There will be attempts by LGBTs, NGOs, and various other activists to include LGBT rights and the right of absolute freedom of religion in the declaration.” But if such rights were included in the declaration, “Malaysia as a Muslim-majority country would have to reiterate her strong objections; as such a policy clearly contradicts the principles enshrined in the religion of Islam.” According social recognition to LGBT people “would be confusing and destructive to the development and witness of our own children....Malaysian and those who are against LGBT rights are thereby protecting the human race from the secular fallacy, perpetrated by the United Nations, that human beings may do as they please, within their so-called 'sovereign borders' (as laid down by the European powers).

Rights of refugees and asylum seekers

Malaysia is not a party to the 1951 UN Convention relating to the Status of Refugees and its 1967 Protocol, and it has no provision for the granting of asylum or refugee status or for protecting persons from being returned to countries where their lives are in danger. Nonetheless, Malaysia does co-operate with UNHCR by not deporting registered refugees whose resettlement in other nations is being arranged. Illegal immigrants and asylum seekers are held in immigration detention centres (IDCs). Since 2009, Malaysia has not deported persons carrying UNHCR refugee cards. Refugees may work but are not provided with access to education. Immigration officials used to be accused of trafficking IDC-held refugees to Thailand to be sold into slavery, but no such accusations were made in 2010. According to Amnesty International, officers of RELA (Ikatan Relawan Rakyat), a civilian volunteer force that is empowered to arrest migrants and refugees, “often extort money from migrants and refugees, and sometimes beat them.”

Trafficking in persons

Malaysia, according to Amnesty International, “is a destination and, to a lesser extent, a source and transit country for women and children trafficked for the purpose of commercial sexual exploitation, and men, women, and children for forced labor....Malaysia improved from Tier 3 to the Tier 2 Watch List for 2008 when it enacted comprehensive anti-trafficking legislation in July 2007.”

Employee rights

Most workers can join unions, but this right is restricted by the Trade Unions Act (TUA) and the Industrial Relations Act (IRA), as well as by other laws limiting the freedom of association. The right to strike is so severely limited that stringent that striking is effectively all but possible. Private-sector workers are allowed to engage in collective bargaining. There is no minimum wage in either the private or public sector. Forced labour is illegal, but occurs, with many women and children essentially being forced to work in households, and many of them suffering abuse. Children under 14 are not allowed to work but some exceptions are permitted. The Employment Act limits working hours and imposes other restrictions, but they are not enforced strictly. The US Department of Labor's List of Goods Produced by Child Labor or Forced Labor indicates that instances of child labour and forced labour have been observed in the electronics and the textile industries as well as in the production of palm oil. Many foreign employees work under unfair and abusive conditions, with employers withholding pay and confiscating passports. There is an Occupational Safety and Health Act, but workers who walk out of dangerous workplaces are subject to dismissal.

Rights of persons under arrest

Warrant less arrests are not permitted, and suspects may be held without charge for up to three weeks with a magistrate's permission. Suspects are sometimes released and then rearrested, often questioned without being offered legal representation, and occasionally denied family visits. Detention of material witnesses in criminal cases is permitted. Pretrial detention can last several years. Several laws permit the detention of suspects without judicial review or the filing of charges.

Under the ISA, police were permitted to arrest and detain for sixty days, without warrant or counsel or judicial review, persons who acted “in a manner prejudicial to the national security or economic life of Malaysia.” The ISA did not permit judicial review of most ISA decisions, and the UN Human Rights Council considered the ISA inconsistent with the Universal Declaration of Human Rights. Under SOSMA, “initial police detention is cut to a maximum of 28 days, after which the attorney-general must decide whether to prosecute and on what charges.” But “judicial oversight is notably absent during the first 24 hours of police custody and such absence can be extended to the entire 28-day investigatory period.” While SOSMA “promised to ease incommunicado detention by mandating immediate notification of next-of-kin and access to a lawyer chosen by the suspect,” in fact “initial access can be postponed for 48 hours should a higher level police officer consider it prudent; another serious violation of an individual's due process rights.”

The Emergency Ordinance (EO) empowers the home minister to issue an order to detain persons for up to two years to preserve public order or prevent violent crimes. In 2009, 548 persons were held under the EO. Suspected drug traffickers, including those already freed by ordinary court processes, may be arrested and held for 39 days without trial or a detention order, and thereafter held without charge indefinitely, with their detention approved every two years by an advisory board. In 2009, over 1000 persons were detained in this fashion. Under the Restricted Residence Act, the home affairs minister may compel individuals to live in residences other than their homes and to remain within the neighbourhood; such an order can be renewed indefinitely by authorities.

In 2009 alone, police killed 108 persons during arrests. Torture as such is not illegal. In the past there were many allegations of abuse in IDCs and of persons detained under the ISA, but the number of such allegations declined considerably in 2010.

Rights of persons on trial

Main article: Law of Malaysia

The constitution is self-contradictory on the judiciary, on the one hand providing for its independence and on the other hand limiting that independence. Malaysia's constitution provides for a dual justice system, under which secular law and sharia (syariah) law are both recognised, and secular criminal and civil courts coexist with sharia courts. Sharia law applies only to, and sharia courts have jurisdiction over, only Muslims. In some states sharia courts solely or principally adjudicate family and personal law, while in other states they are empowered to pass judgment on criminal matters.

Malaysia's secular law is based on English common law. Defendants in serious criminal cases are entitled to government-paid lawyers. Pretrial discovery in criminal cases is limited. Testimony by witnesses is sometimes disallowed. Defendants are not routinely entitled to see evidence held by the government. The right to appeal is sometimes restricted.

Due-process rights are sometimes compromised. Women do not enjoy equal treatment in sharia courts, especially in divorce and custody cases.

Privacy rights are sometimes infringed upon, with the authorities monitoring e-mails sent to websites and police permitted to search homes, confiscate items, and take people into custody without a warrant. JAKIM officials may enter private premises without a warrant if they believe Muslims are gambling, consuming alcohol, or committing adultery. Messages sent or received by individuals suspected of corruption or terrorism may be intercepted.

Under the new SOSMA legislation, the prosecutor at a trial is permitted to keep secret the identity of prosecution witnesses, thus preventing cross examination. SOSMA also revised the rules of evidence, enabling prosecutors to use information without disclosing sources.

Rights of inmates

Prisoners suffer from overcrowding, poor food, and irregular water supplies. Inmates are allowed visitors. Religious observance is allowed, provided the religion in question is not one of 56 Islamic sects considered “deviant.” Medical care is poor, with hundreds dying of communicable diseases in IDCs, prisons, and jails from 2001–2007. NGOs and the media are usually not allowed to monitor conditions in prison. Preventive and investigative detention are permitted. Police are provided with human-rights training. Caning is a common punishment for serious crimes; boys over 10 may be sentenced to what is called a light caning.

Caning

Main article: Caning in Malaysia

Under sharia, several dozen offences such as drinking alcohol and being close to a person of the opposite sex are subject to caning. The death penalty is the mandatory punishment for persons found guilty of possessing illegal drugs above certain quantities; in 2010, 114 people were sentence to hanging.

A 6 December 2010 Amnesty International report entitled 'A Blow to Humanity' criticises the increasing use of judicial canings in Malaysia and concludes the punishment "subjects thousands of people each year to systematic torture and ill-treatment, leaving them with permanent physical and psychological scars". The report describes the abuse: "In Malaysian prisons specially trained caning officers tear into victims’ bodies with a metre-long cane swung with both hands at high speed. The cane rips into the victim’s naked skin, pulps the fatty tissue below, and leaves scars that extend to muscle fibre. The pain is so severe that victims often lose consciousness."

Political controversies

There have been cases of flagellation in prisons and they were confirmed by the authorities.

On November 2007, two of the largest political rallies since 1998 took place in Kuala Lumpur challenging the government of Abdullah Badawi. The Bersih rally was held on 10 November and the Hindu Rights Action Force (HINDRAF) rally on 25 November. The Bersih rally was organised by a number of non-governmental organisations and opposition political parties to demand electoral reform in Malaysia and about 50,000 people took to the streets. The rally was attended by at least 10,000 protesters, mainly ethnic Indian, demanding equal social and economic rights from the Bumiputras. Tamil politicians in India such as Karunanidhi came out in support of the largely Tamil Indian population by demanding the Indian government take up their matter with their Malaysian counterparts.

In a letter dated 10 December 2007, the internal security ministry banned the Malay-language section of a Catholic weekly newspaper, the Catholic Herald due to its use of the word Allah, resulting in the Allah Controversy.

On 14 May 2014, the country's premier, Najib Razak, was quoted as saying that said Islam and its followers are now being tested by new threats under the guise of humanism, secularism, liberalism and human rights, although he later reversed his position three days later after coming under criticism.

NGO's

• The Official Portal of Human Rights of Malaysia
• SUARAM for human rights

See also

• Ketuanan Melayu

External links

• Review of Malaysia by the United Nations Human Rights Council's Universal Periodic Review, 11 February 2009
• Home for Human Rights
• Censorship in Malaysia – IFEX
• case studies relating to human rights violations in Malaysia especially with regard to police abuse and custodial deaths
• Malaysia: Human rights undermined: Restrictive laws in a parliamentary democracy – Amnesty International
• 2011 Human Rights Report – US State Department
• International Religious Freedom Report for 2011: Malaysia – US State Department