Freedom in the World 2008 - Malaysia

Capital: Kuala Lumpur
Population: 27,200,000

Political Rights Score: 4
Civil Liberties Score: 4
Status: Partly Free

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Malaysia received a downward trend arrow due to a Federal Court decision that eliminated Muslims' right to convert, along with an accelerating judicial crisis, a crackdown on online media, the suppression of opposition-led protests, and use of the Internal Security Act to arrest organizers of minority-rights demonstrations.

Overview

The ruling Barisan Nasional (BN) coalition secured victories in a number of by-elections in 2007, contributing to mounting speculation that Prime Minister Abdullah Ahmad Badawi would call early general elections. Meanwhile, public discontent was fueled by continuing signs of "Islamization," including a controversial ruling in the case of a Muslim convert to Christianity; rising crime and inflation rates; a government crackdown on online media; and a spiraling judicial crisis. In November, some 40,000 Malaysians rallied in the capital to demand political and judicial reform, and another 10,000 protested the marginalization of ethnic Indians. The government called the protests illegal, attempted to suppress them using excessive force, and arrested hundreds of people; five leaders of the Indian-rights demonstrations were detained under the Internal Security Act.

Malaysia gained independence from Britain in 1957 and merged with the British colonies of Sarawak and Sabah in 1963. The ruling Barisan Nasional (National Front, or BN, known as the Alliance before 1969) has won at least a two-thirds majority in all 11 general elections since 1957. The BN consists of mainly ethnic parties, dominated by the conservative, Malay-based United Malays National Organization (UMNO).

Racial tensions between the indigenous Malay majority and Chinese and Indian minorities have played a central role in Malaysian politics and economics since the country's founding. Independence was premised on a social contract, enshrined in the constitution, that granted citizenship to the non-Malay population in exchange for special rights and privileges, especially in education and economics, for all bumiputera (Malays and other indigenous peoples). After an outbreak of race riots in 1969, in which thousands of Chinese homes and businesses were destroyed and more than 180 people were killed, the government declared an 18-month state of emergency and tightened restrictions on free speech, assembly, and political organizations.

Modern Malaysia has been shaped by Mahathir Mohamed, one of the key architects of efforts to shift economic power from the Chinese to the Malays, first as education minister and then as prime minister from 1981 to 2003. His development policies transformed Malaysia into a hub for multinational corporations and high-technology exports. At the same time, he stunted democratic institutions, weakened the rule of law by curtailing the press and political opponents, and drew allegations of cronyism with his state-led industrial development. Mahathir criticized conservative Muslim leaders for failing to promote a more modern brand of Islam and, at the same time, attempted to co-opt Islamist opposition forces by weaving their positions into UMNO's ideology. Mahathir's anti-Western and anti-Semitic views rankled outsiders as well.

In October 2003, Mahathir stepped down, paving the way for his deputy, Abdullah Ahmad Badawi. Many foreign governments and international organizations welcomed Abdullah's appointment as prime minister, hoping it would lead to reform.

The BN won 198 of the 219 seats in the lower house of Parliament (Parlimen) in the 2004 elections, which were generally regarded as transparent. However, the three main opposition parties – the Democratic Action Party (DAP), the Islamic Party of Malaysia (PAS), and the People's Justice Party (PKR) – challenged the results on the grounds that the BN had engaged in vote rigging and other irregularities. Most specific challenges were rejected in court or withdrawn, although allegations of vote buying and problems with the electoral roll were substantiated.

Despite his strong popular mandate, Abdullah achieved little in the way of concrete reform. In 2006, sharp divisions emerged within UNMO as Mahathir launched a series of harsh attacks on Abdullah. Meanwhile, Anwar Ibrahim, a former deputy prime minister who had been controversially removed by Mahathir, reemerged as a major opposition figure. Religious freedom declined significantly during the year with a series of court rulings that denied certain religious and legal rights for non-Muslims, sparking a national debate on constitutional guarantees of religious freedom and the role of Islam in Malaysia. The government took action to suppress press coverage, public discussion, and related civil society activism on ethnic issues, citing the need to prevent national unrest.

In 2007, by-election victories for the BN led to speculation that Abdullah would call early general elections to renew his mandate in the face of diminishing public confidence and prevent Anwar, who was legally prohibited from running for office until well into 2008, from contesting the polls. At year's end, elections were expected for early 2008.

Despite early signs of increased cooperation, significant divisions persisted among the opposition PAS, PKR, and DAP for much of the year. Meanwhile, Anwar's potential as a leader for a united opposition was diminished in part by the Court of Appeals' April ruling that his 1998 dismissal was in fact lawful, and an unsuccessful defamation suit against Mahathir. As 2007 drew to a close, however, momentum for the opposition increased amid criticism of the judiciary, a rise in corruption scandals, and a major November rally by the Coalition for Clean and Fair Elections (BERSIH), an alliance of opposition parties and other civil society groups.

Over the course of the year, Malaysia moved farther away from Abdullah's promises of an open and accountable government, and public frustration skyrocketed in response. Highway toll hikes of between 20 and 60 percent in January drew peaceful protests, which were brutally suppressed by police and neglected by mainstream media. Bloggers and online news sites exposed several high-level political corruption cases, but a major crackdown on online media was launched in June and July. In May, the long-awaited judgment in the case of Lina Joy, a Muslim convert to Christianity, added to frustration among the non-Muslim population. The final ruling effectively barred Muslims from converting to other faiths. Separately, a judicial crisis kicked off in August, focusing on allegations that political figures were using their influence to secure the promotion of compliant judges. Demands for electoral reform in advance of the general elections – coupled with perceptions of rising crime, corruption, and inflation – prompted over 40,000 Malaysians to defy a police ban and attend the BERSIH rally in November, part of what became the country's largest antigovernment protests in nearly a decade. The police attempted to suppress the demonstrations with tear gas and water cannons, and arrested demonstration leaders.

On the economic front, the government downplayed middle-class difficulties while pursuing a development program that maintained pro-Malay affirmative-action policies. Negotiations toward a free-trade agreement with the United States stalled in 2007 due to Malaysia's concerns that the pact would undermine the affirmative-action program. The United States had sought more transparency in the bidding process for state contracts, which favored Malays and other indigenous groups.

Political Rights and Civil Liberties

Malaysia is not an electoral democracy. The party that wins a plurality of seats in legislative elections names its leader prime minister. Executive power is vested in the prime minister and cabinet. The paramount ruler, the titular head of state, is elected for five-year terms by fellow hereditary rulers or sultans in 9 of Malaysia's 13 states. Mizan Zainal Abidin al-Marhum Sultan Mahmud al-Muktafi Billah Shah was elected to the post in December 2006. The upper house of the bicameral Parliament consists of 44 appointed members and 26 members elected by the state legislatures, serving three-year terms. The lower house, with 219 seats, is popularly elected at least every five years. While its oversight powers have increased under Prime Minister Abdullah Ahmad Badawi, Parliament's role as a deliberative body has deteriorated since the 1970s, and opinions expressed by opposition parties tend not to be given serious consideration.

The ruling BN is a coalition of roughly 15 parties, most with an ethnic or regional foundation, including the dominant UMNO as well as the Malaysian Chinese Association (MCA) and the Malaysian Indian Congress (MIC). Prominent opposition parties include the DAP, PAS, and PKR. Serious obstacles, such as unequal access to the media and restrictions on campaigning and freedom of assembly, leave them unable to compete on equal terms with the BN, and the country's first-past-the-post voting system increases the power of the largest grouping. Despite winning more than 40 percent of the vote in the 2004 elections, opposition parties collectively hold only 18 out of 219 seats in the lower house. Concerns about the growing role of Islam have prevented the socialist and ethnically Chinese DAP from reuniting with PAS, which still favors Islamic governance. Only one state government, in Kelantan, is controlled by an opposition party, PAS, and it enjoys a majority of just one seat.

The Election Commission (EC) is frequently accused of manipulating electoral rolls and gerrymandering districts in favor of the ruling party, and the Registrar of Societies arbitrarily decides which parties can participate in politics. In January 2007, EC chairman Abdul Rashid declared that the electoral laws were no longer fair and called for the commission's restructuring and empowerment. In May, PAS accused the BN of removing its supporters from by-election voter rolls and suggested that higher turnout since Abdullah entered office could be attributed to voter-registry manipulation.

Abdullah has largely failed to follow through on his anticorruption campaign pledges. Corruption worsened among members of the ruling coalition in 2007, with a number of cases at the very highest levels. Zulkipli Mat Noor, the head of the Anti-Corruption Agency, was accused of corruption and sexual crimes by a former subordinate. His contract was not renewed in March, although his work was praised. Deputy Prime Minister Najib Razak was accused in April of deceiving the public about defense contracts.

In especially worrisome developments given the perceived increase in crime of late, the police inspector general and the deputy minister for internal security launched corruption allegations against each other in late spring, and the third-highest-ranking police officer was arrested on charges of concealing massive wealth in November. A royal commission tasked with investigating the police in 2005 recommended the creation of an independent complaints and misconduct board, but the move has been resisted by the police inspectorate general and the attorney general. A Special Complaints Commission (SCC) bill was introduced in late 2007, but it faced considerable criticism, and decisions on the issue were deferred until 2008. Malaysia was ranked 43 out of 180 countries surveyed in Transparency International's 2007 Corruption Perceptions Index.

Malaysia's Official Secrets Act (OSA) reduces transparency in governance and curbs freedom of information. The government invoked the OSA in 2007 to prevent the disclosure of potentially damaging information ahead of expected 2008 elections. In January, four opposition politicians were prosecuted under the law for revealing a controversial highway concession agreement following a series of protests against toll hikes.

Freedom of expression is constitutionally guaranteed but restricted in practice, particularly through the 1984 Printing Presses and Publications Act (PPPA), which gives the prime minister – as the minister of internal security – the authority to revoke licenses without judicial review. The PPPA also requires that publications and printers obtain annual operating permits, encouraging self-censorship and limiting investigative journalism. Privately owned television stations have close ties to the BN and generally censor programming according to government guidelines. Books and films are directly censored for profanity, violence, and political and religious material. The number of banned books has risen sharply under the Abdullah administration, and in February 2007, a film about former Malay Muslim members of the Communist Party of Malaya was banned for portraying Communists as noble.

With traditional media so heavily restricted, the internet has emerged as a primary outlet for free discussion and for exposing cases of political corruption. The government responded in 2007 with an escalating crackdown, beginning in January with the first defamation charges against bloggers. The defendants had lodged accusations of plagiarism against the publisher and editor of the New Straits Times, which enjoys close ties with UMNO. A BN official brought defamation charges against the critical website Malaysiakini in April, and another blogger, Nathaniel Tan, assistant to the head of PKR, was arrested under the OSA in July for commentary on corruption in the internal security system. He was released after his four-day remand expired. Coverage warnings were issued in February, April, and July, with the July directive threatening bloggers with use of the Internal Security Act (ISA), the OSA, and the Sedition Act, all of which could draw several years in prison. Newspapers were warned against covering the "rumors" being reported online. In April, Abdullah rejected a proposal that would require bloggers to register with the government, but in June he convened a task force of BN officials to find legislation that could be used to control online content without contradicting a law against internet censorship.

While Abdullah continues to promote Islam Hadhari, or "civilizational Islam," a tolerant and inclusive form of the faith, religious freedom is restricted in Malaysia and declined significantly in 2007. Practicing a version of Islam other than Sunni Islam is prohibited. Muslim children and civil servants are required to receive religious education using government-approved curriculums and instructors. Proselytizing by other religious groups to Muslims is prohibited, and non-Muslims are not able to build houses of worship as easily as Muslims. The state retains the right to demolish unregistered religious statues and houses of worship.

Non-Muslim minorities have been troubled by a series of court rulings, from late 2005 through 2007, that threaten their constitutional right to self-identify and practice freely. On May 30, 2007, the Federal Court, the country's highest court, issued the final ruling in the polarizing case of Lina Joy, a Muslim who converted to Christianity in 1998 and has since fought to have her conversion legally recognized. The Federal Court effectively upheld the Court of Appeals' prior ruling, mandating that Muslims must obtain an order from a Sharia (Islamic law) court stating that they have renounced Islam before they can change their national identity cards. Given that the constitution declares Malays to be Muslims and Sharia courts effectively prohibit Muslims from renouncing their faith, the decision rendered conversion impossible. In July, Deputy Prime Minister Najib Razak declared that Malaysia has always been an Islamic rather than a secular state, prompting a host of negative responses.

The government restricts academic freedom to the extent that teachers or students espousing antigovernment views may be subject to disciplinary action under the University and Colleges Act of 1971.

Freedoms of assembly and association are limited on the grounds of maintaining security and public order; both freedoms declined in 2007 as government sensitivities ramped up ahead of the general elections. A police permit is required for all public assemblies except picket lines, and the granting of permits is sometimes politically influenced. Police suppressed a number of peaceful protests during the year, including protests against road-toll hikes in January and a large BERSIH-led rally pushing for electoral reforms in the state of Terengganu in September, during which two people were shot and seriously wounded by police. In a subsequent BERSIH rally in November, tens of thousands of demonstrators defied a police ban to turn out. No one was hurt, but the police used tear gas and water cannons to disperse the crowd. The police similarly suppressed demonstrations the same month by about 10,000 supporters of the Hindu Rights Action Force (HINDRAF), and violent clashes ensued. Hundreds of activists were arrested in the November protests, both of which were primarily organized through SMS text messaging.

The Societies Act of 1996 defines a society as any association of seven or more people, excluding schools, businesses, and trade unions. Societies must be approved and registered by the government, which has periodically refused or revoked registrations for political reasons. Numerous nongovernmental organizations (NGOs) operate in Malaysia, but some international human rights organizations are not allowed to form Malaysian branches.

Most Malaysian workers – excluding migrant workers – can join trade unions, but the law contravenes International Labor Organization (ILO) guidelines by restricting trade unions to representing workers in a single or similar trade. The Director General of Trade Unions can refuse or withdraw registration arbitrarily, and the union recognition process can take from 18 to 36 months. In practice, collective bargaining is limited. Unions in essential services must give advance notice of strikes, and various other legal conditions effectively render strikes impossible.

Judicial independence has been compromised by extensive executive influence since an infamous 1988 scandal in which then prime minister Mahathir Mohamed sacked six top judges in connection with a political falling-out. Arbitrary or politically motivated verdicts are not uncommon, with the most prominent case being the convictions of Anwar Ibrahim in 1999 and 2000 for corruption and sodomy. Anwar's sodomy conviction was overturned in 2004, and he was released from prison, although the corruption charge was upheld.

Public frustration with the lack of judicial integrity soared in 2007. Long delays and obfuscations in the ongoing murder case against Abdul Razak Baginda, a prominent political analyst close to the deputy prime minister, fed perceptions of judicial bias. The previously acquiescent Conference of Rulers (or COR, Malaysia's nine hereditary sultans) spearheaded calls for prompt reform. In August, it blocked Abdullah's appointment of longtime UNMO legal adviser Zaki Azmi to the position of chief judge of Malaya, the country's third-highest judicial slot. The appointment contradicted a general practice of not naming high-level party officials to the bench and marked the first time a political official was sent to the Federal Court without first rising through the trial and appellate courts.

In September, Anwar's release of a 2002 video clip of a politically connected lawyer discussing judicial appointments with the then chief judge of Malaya (later elevated to chief justice of the Federal Court) sparked a wider firestorm of debate. The government eventually agreed to create a commission of inquiry, but it was given a limited scope. Amid protests by lawyers and reform demands by the Malaysian Bar Council, Sultan Azlan Shah delivered a major October speech lambasting the judicial system. The COR in early November refused Abdullah's request to extend the tenure of the incumbent chief justice. On December 5, Abdullah announced his appointment of Zaki to fill the post in 2008.

Malaysia's secular legal system is based on English common law. However, Muslims are subject to Sharia, the interpretation of which varies regionally, and the constitution's Article 121 stipulates that all matters related to Islam should be dealt with in Sharia courts.

There is no constitutional provision specifically banning torture, and police have been known to torture prisoners and use excessive force or inhumane tactics such as "nude squats" in conducting searches. Police reform has been inhibited by resistance at the highest levels of the police force and, according to many, by the attorney general. In August 2007, a former chief of police and member of the 2005 commission on police reform, Hanif Omar, published a scathing statement on police practices and the government's failure to resolve the problems as crime soared.

Individuals may be arrested without a warrant for some offenses and held for 24 hours without being charged. The ISA, in force since 1960, gives the police sweeping powers to hold any person acting "in a manner prejudicial to the security of Malaysia" for up to 60 days, extendable to two years. It has been used to jail mainstream politicians, alleged Islamist militants, trade unionists, suspected Communist activists, ordinary criminal suspects, and members of "deviant" Muslim sects, among others. Five HINDRAF leaders were detained under the ISA during the November 2007 rallies. Hundreds of detainees currently held under the ISA at the Kamunting Detention Center are reportedly denied due process and systematically abused.

Although the constitution provides for equal treatment of all citizens, the government maintains an affirmative-action program intended to boost the economic status of ethnic Malays and other indigenous people, known collectively as bumiputera. Bumiputera receive preferential treatment in areas including property ownership, higher education, civil service jobs, and business affairs, and bumiputera-owned companies receive the lion's share of large government contracts.

Foreign domestic workers are not covered by the Workmen's Compensation Act and are thus subject to exploitation and abuse by employers. Malaysians officially employ about 240,000 domestic workers, 90 percent of whom are Indonesian, representing roughly 20 percent of the national workforce. There are an estimated two million illegal workers in Malaysia, and the government began an immigration crackdown in March 2006, though it slowed in 2007. If arrested and found guilty, workers can be caned and detained indefinitely pending deportation. An untrained volunteer reserve of hundreds of thousands of baton-wielding Malaysians, called Rela, has been pursuing illegal foreign workers and refugees since March 2005, raising serious concerns among human rights groups.

Despite government initiatives and continued gains, women are still underrepresented in politics, the professions, and the civil service. Violence against women remains a serious problem. Muslim women are legally disadvantaged because their family grievances are heard in Sharia courts, where men are favored in matters such as inheritance and divorce, and women's testimony is not given equal weight. In its 2007 human trafficking report, the U.S. State Department placed Malaysia in Tier 3, among "governments that do not fully comply with minimum standards and are not making significant efforts to do so."