Photo by Satha Selvan Subramaniam, Senior Administrative Assistant, Bar Council
Distinguished panellists and moderators,
Members of the Bar,
Ladies and Gentlemen,
- A very good morning and welcome to the second day of our Second Strategic Litigation Conference themed “Reinvigorating Human Rights for a New Malaysia”, organised by the Bar Council Human Rights Committee (BCHRC) and the Malaysian Centre for Constitutionalism and Human Rights (MCCHR).
- At the very dawn of this decade, it is fitting that we take stock of the development of the human rights landscape over the past decade. In the previous years, an assessment of the human rights track record of the Government was typically disregarded by the Government. However, since the change of Government, our Government is more open to criticism on their human rights track record and proposals to reform. For the first time, the annual report of the Human Rights Commission of Malaysia (SUHAKAM) was debated in Parliament last year. It was also reported in December last year that the cabinet had approved the development of a National Action Plan on Business and Human Rights for Malaysia. These are indications that our Government is willing to advance their human rights agenda, as promised in their election manifesto.
- While there is a positive outlook on human rights reforms in the foreseeable future, we must not lose sight of greater human rights protection needed for vulnerable persons and to prevent the laws of our country from being abused to deprive our fundamental liberties entrenched in our Federal Constitution. It is pertinent to remind ourselves that all human beings are born free and equal in dignity and rights, and that all persons are equal before the law and entitled to the equal protection of the law.
Rights of the Indigenous Peoples
- The Bar has always called on the Government to legally recognise and protect customary lands, territories and resources inhabited, occupied, used or enjoyed by the natives of the East Malaysian states of Sabah and Sarawak, and the Orang Asli of the Malay Peninsula.
- The Bar views with disappointment the reported statements and actions of the Chief Minister of the state of Perak last year, suggesting that the Constitution and law of his state did not recognise Orang Asli customary or ancestral lands. This was a legally erroneous contention, which the Malaysian Bar opposed.
- The Bar believes that it was a lost chance for the Federal Court in TR Sandah ak Tabau v Director of Forest, Sarawak1 to exercise its powers of review to correct any obvious error, injustice or ambiguity contained in its 2016 majority grounds of judgment in Director of Forests, Sarawak v TR Sandah ak Tabau2. In its 2016 decision, the Federal Court had appeared to be split 2:2 on the legal principles regarding the enforceability of the Iban land customs of pemakai menoa (native territorial domain) and pulau galau (communal virgin forest) in the State of Sarawak. This apparent anomaly, amongst others, prompted the Sarawak native applicants to file an application pursuant to rule 137 of the Rules of the Federal Court 1995 to review the 2016 Federal Court’s decision. The Federal Court in its 2019 decision, however, chose not to exercise its review powers.
- For native communities whose rights over these lands remain uncertain, justice delayed may well constitute justice denied. Accordingly, the Malaysian Bar urges the Sarawak State Government to demarcate such areas and to impose a moratorium from the further grant of interests and licences over these areas until the satisfactory resolution of all native customary rights claims in Sarawak.
Rights of Migrants, Refugees and Asylum Seekers
- The rights of migrants, refugees and asylum seekers also deserve particular mention.
- Malaysia hosts more than two million documented migrant workers, as well as a large number of undocumented migrants. Several progressive steps were taken. Among them are, first, the setting up of the Independent Committee on Foreign Workers by the Ministry of Human Resources (MOHR), tasked to coordinate and streamline the overall policies and management in respect of migrant workers; and the MOHR announced in May 2018 that the Employment Act 1955 will be amended to make it compulsory for employers to provide accommodation facilities for migrant workers.
- The Bar continues to advocate for, among others, the extension of legal aid to migrants in Malaysia; the provision of a comprehensive amnesty programme to allow all undocumented migrants currently in the country to be regularized; and the accession to the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, adopted by the United Nations General Assembly on 18 December 1990.
- Despite the large presence of refugees and asylum-seekers in the country for several years, our laws do not accord refugees and asylum-seekers due recognition, care and protection. Thus, they are exposed to arrest, detention, whipping and deportation. Refugees and asylum-seekers are yet to be recognised as a workforce in Malaysia, and continue to be denied access to lawful employment.
- The Bar is also concerned that human trafficking of refugees in the region continues to be on the rise. A Royal Commission of Inquiry (RCI) was established to investigate the cases of human trafficking and “death camps” uncovered in Wang Kelian, Perlis five years ago. It was reported that the RCI Report would be released by September 2019, however, no such Report has been published to date.
- The Malaysian Bar will continue to petition the Government to, among others, ratify the 1951 Convention relating to the Status of Refugees, and its 1967 Protocol; the 1954 Convention relating to the Status of Stateless Persons; and the 1961 Convention on the Reduction of Statelessness.
Ratification of International Instruments
- The Bar also reiterates its call to the Government for its accession to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the Rome Statute of the International Criminal Court. The withdrawal of the Government’s promise to accede to these two international instruments gravely undermined Malaysia’s commitment to upholding international human rights and fell short of Promise 26 of the Government’s election manifesto which sets out the Government’s pledge to "make our human rights record respected by the world".
- Similarly, despite the recommendation of the SUHAKAM inquiry panel on the disappearances of Pastor Raymond Koh and Amri Che Mat to accede to the International Covenant on Civil and Political Rights (ICCPR) and the International Convention for the Protection of All Persons from Enforced Disappearance, our Government remains unmoved.
- The acceptance and incorporation of international norms and standards as set out in these Conventions are necessary for establishing universal baselines for human rights. These Conventions are not antithetical to the fundamental liberties entrenched in our Federal Constitution.
Fundamental Liberties Entrenched in the Federal Constitution
- Fundamental liberties are entrenched in Part II of our Federal Constitution, such as rights to life and liberty, freedom of speech and freedom of religion. Other articles outside Part II of the Federal Constitution are also relevant to human rights, such as citizenship, the establishment of Parliament, voting, special position of the Malays of Peninsular Malaysia and the natives of Sabah and Sarawak.
Freedom of Speech
- In upholding freedom of speech enshrined in Article 10 of the Federal Constitution, the Pakatan Harapan Government has opened up the democratic space by amending the Peaceful Assembly Act 2012 to allow for various forms of peaceful demonstrations, repealing the Anti-Fake News Act 2018. There is a less severe attitude towards censorship compared to that of the Barisan Nasional administration. The Bar notes a decrease in the use of the Sedition Act 1948 and section 233 of the Communications and Multimedia Act 1998 in comparison to 2017 and 2018. The Pakatan Harapan Government has also promised to draw up a new Freedom of Information Act to replace the Official Secrets Act 1972.
- While the opening up of democratic space has been abused on several occasions as hate speech and race and religious rhetoric helped fan racial sentiments, this shall not be a justification to undo and hamper the Pakatan Harapan Government’s efforts in preserving freedom of speech. It was suggested by Charles Bradlaugh, an English political activist and Member of Parliament in the 19th century that, “better a thousandfold abuse of free speech than denial of free speech”.
- It is the Bar’s position that the Government should enact national harmony laws to promote national harmony, unity, reconciliation, integration, equality and non-discrimination and make it a criminal offence to incite racial or religious hatred. The Bar submitted its Racial and Religious Hate Crimes Bill to the Committee for Institutional Reform in June 2018. The Bar reiterates its call for such a bill to be made into law.
Right to life
- It is provided in Article 5(1) of our Federal Constitution that no person shall be deprived of his life or personal liberty save in accordance with law. It has been reported that an inquest into the death of a Nigerian PhD student, Thomas Orhions Ewansiha, who died in custody after being detained by the Immigration Department last year is currently ongoing. The Bar hopes that no stone would be left unturned to uncover the circumstances that led to Thomas’s death, so as to prevent the occurrence of any further deaths in custody.
- The sanctity of life ought to be preserved. The Government announced on 10 October 2018 that it would abolish the death penalty and would table a bill accordingly. It was subsequently reported that the Government would not abolish the death penalty but would only repeal the mandatory death penalty. The Bar will persevere with our initiatives in seeking for the total abolition of the death penalty.
Use of Draconian Laws
- Throughout the past decade, the Bar continues to push for the abolishment of draconian and oppressive laws such as the Sedition Act 1948, the Prevention of Crime Act 1959, the Security Offences (Special Measures) Act 2012 (SOSMA), the Prevention of Terrorism Act 2015 and the National Security Council Act 2016 against the backdrop that these laws were promised to be repealed or amended by the Pakatan Harapan Government in its election manifesto. As we continue to wait for the abolishment or amendment of these draconian laws, SOSMA was used against 12 individuals allegedly linked to the Liberation Tigers of Tamil Eelam (LTTE).
- These persons were arrested, detained, and denied bail under SOSMA, and were only charged nearly two weeks later. This unnecessary piece of legislation, in the Malaysian Bar’s view, substantially erodes the right of an accused to a fair trial and undermines the protections and fundamental liberties contained in the Federal Constitution.
- In a recent High Court case brought by two detainees to challenge the constitutionality of the provision in SOSMA which denies bail, this provision was held to be ultra vires Articles 8 and 121 of the Federal Constitution.
Ladies and Gentlemen,
- We were promised a return to the rule of law by the Pakatan Harapan Government in its election manifesto. In this regard, the Bar lauds the tabling of the Independent Police Complaints and Misconduct Commission (IPCMC) Bill in the Dewan Rakyat on 18 July 2019.
- For the first time in history, a bill was referred to a Special Select Committee in Parliament (SSC) for further deliberation. The IPCMC Bill is expected to be tabled in March this year for second reading after the Government has considered the new recommendations given by the SSC. The Malaysian Bar looks forward to the establishment of the IPCMC, which would operate as an independent, external commission tasked solely to receive and investigate complaints of misconduct and abuse made against the police. Any dilution or deviation from this original purpose is unacceptable.
Constitution (Amendment) Act 2019
- The Bar also notes that the Constitution (Amendment) Act 2019 was passed last year. The Act provides for lowering of voting age from 21 to 18, automatic voter registration and candidates as young as 18 years old can contest in elections. Distinct but not totally dissimilar, another Bill was presented to the Dewan Rakyat in December 2019 to amend the Federal Constitution to limit the term of office of the Prime Minister to two terms.
- The Bar looks forward to a swift implementation of the 18-year old voting age and automatic voter registration, after a special task force was reportedly set up by the Election Commission (EC) and National Registration Department (NRD) in October last year.
- Last year, several pollution disasters made the headlines. A water pollution incident occurred in March 2019 caused by illegal chemical waste dumping at the Kim Kim River in Pasir Gudang, Johor. Most victims were school students. Then, Malaysians were also affected by the haze crisis in September. Still haunting the Malaysian environmental landscape is the question of radioactive waste disposal at the Lynas Plant in Gembing, Pahang. Over and on top of this climate change poses an existential issue. According to Science Alert, “the amount of heat we have put in the world’s oceans in the past 26 years equals to 3.6 billion Hiroshima atom bomb explosions”. It is imperative that the law provides a bridge to science to not only ensure the protection of environmental human rights but also a solution.
- Article 5 of the Federal Constitution, which provides that “[n]o person shall be deprived of his life or personal liberty save in accordance with law”, has been interpreted by the Court of Appeal in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Another3 to include the right to live in a reasonably healthy and pollution-free environment. The Malaysian Bar calls on the Government to take immediate action to ensure the effective enforcement of environmental laws in order to curb activities that have adverse and irreversible effects on the environment as well as the health of present and future generations of all Malaysians.
- Over the last decade, we witnessed several landmark decisions handed down by the judiciary with a renewed commitment to judicial independence, rule of law and separation of powers and an emphasis on Malaysians’ basic rights entrenched in our Federal Constitution.
- The Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case4 held that:
“The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework…. The Malaysian apex court had prescribed that the powers of the Executive and the Legislature are limited by the Constitution and that the Judiciary acts as a bulwark of the Constitution in ensuring that the powers of the Executive and the Legislature are to be kept within their intended limit…”
- These important developments contributed to the landmark decision of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals5, where the Federal Court reaffirmed the civil courts’ constitutional role and powers and declared that unilateral conversions of children to Islam are unlawful.
- The principles expounded in the case of Semenyih Jaya were taken further by the High Court which decided on the constitutionality of the provision in SOSMA which denies bail. As mentioned earlier, the High Court held that it was ultra vires Articles 8 and 121 of the Federal Constitution.
- Other encouraging legal developments in 2019 include the Federal Court’s decision to acquit Karpal Singh of his sedition conviction and overturning of Rafizi Ramli’s conviction by the High Court for exposing confidential banking details relating to the National Feedlot Corporation (NFC).
- The Federal Court also struck down the double presumption for drug trafficking under the Dangerous Drugs Act 1952 in the case of Alma Nudo Atenza v Public Prosecutor and another appeal6. In this case, the Federal Court held:
“The importance of the right to life cannot be over-emphasised… Since the right to life is ‘the most fundamental of human rights’, the basis of any state action which may put this right at risk ‘must surely call for the most anxious scrutiny’... The courts’ role is given added weight where the right to life is at stake.”
Ladies and Gentlemen,
- To conclude, we witnessed a significant, renewed commitment by the new Government to protect human rights and the rule of law. However, several alleged human rights violations from the past decade deserve a proper closure which is long overdue. The Government must also continue to enhance human rights protection with an emphasis on the rights of vulnerable persons and not renege on several key promises made in its election manifesto.
- To quote Eleanor Roosevelt, “the destiny of human rights is in the hands of all our citizens in all our communities”. As lawyers who conduct strategic litigations and public interest litigations, it is crucial to ensure that we continue to stand up against human rights violations and be the voice for the voiceless. We may face challenges from the authorities, in terms of access to our clients and evidence. We may face pressure from the courts, in terms of making justice swifter. We may face tension with the partners in our firm, in the likely event that there is a strain on resources to handle human rights cases.
- However, we must persevere, and we will.
Roger Chan Weng Keng
Chairperson, Bar Council Human Rights Committee; Vice-President, Malaysian Bar
19 Jan 2020
1  6 MLJ 141.
2  2 MLJ 281.
3  1 MLJ 261.
4  3 MLJ 561.
5  1 MLJ 545.
6  4 MLJ 1.