Observatory for the Protection of Human Rights Defenders Annual Report 2003 - Malaysia

Raid in a newspaper's offices⁴⁴

On 20th January 2003, 10 police officers from the Kuala Lumpur Dang Wangi District Police Station and the Computer Crime Department of the Bukit Aman National Police Headquarters raided the offices of the Malaysiakini, the online daily newspaper which has been in operation since 1999. This raid was launched in connection with a police complaint lodged by the youth wing of the United Malay National Organisation (UMNO) on 17th January 2003 concerning a letter published by Malaysiakini, which the UMNO youth claimed to have seditious content for questioning the Malay special rights and instilling hatred towards the government and non-Malay Malaysians.

The police officers confiscated 15 computers and 4 servers in Malaysiakini's office and had therefore full access to all confidential information. The police also took away the organisational chart of Malaysiakini and Mr. Steven Gan, editor-in-chief was asked to record a witness statement at the Dang Wangi District police station on 21st January 2003. According to the police, the raid was conducted under the Sedition Act, which provides power to the police to seize materials in order to preserve evidence.⁴⁵

As of December 2003, the police have concluded their investigation into the case and the decision lies with the Attorney-General as to whether to institute criminal proceedings.⁴⁶

During its international mission of inquiry conducted in March 2002,⁴⁷ the Observatory had been informed about pressure exerted on the online newspaper that had previously benefited from a loophole in the legislation. Although the government has launched a project to establish an "Asian Silicon Valley" and pledged freedom of information on the Internet,⁴⁸ government officials have repeatedly threatened to prosecute the newspaper if it "endangered national security". Publicly vilified for its supposedly defamatory articles on Malaysia, journalists of Malaysiakini have been subjected to discrimination, e.g. an unofficial "ban" for interviews from all government officials, which is however not strictly enforced.

Obstacles to freedom of circulation⁴⁹

On 18th August 2003, Ms. Cynthia Gabriel, Executive Director of the human rights organization Suara Rakyat Malaysia (SUARAM), was denied entry into Sarawak by Immigration officers at Miri Airport. Ms. Cynthia Gabriel was to attend a workshop entitled "Workshop on Globalisation and its Impact on Indigenous Peoples in Malaysia" in Miri, Sarawak. Immigration officers at the airport told Ms. Gabriel that she was denied entry as her name was blacklisted since 1998. The officers kept her passport and booked a return ticket for her on 19th August, to Kuala Lumpur. Upon negotiation, she was allowed to stay overnight and was told to be back at the airport at 5.30 a.m. She was then given back her passport and took the plane. Ms. Cynthia Gabriel has still not been officially informed of the reasons why she had been denied entry and no official explanation was given about the black list.

On 8th September 2003, indigenous rights activist, Mr. Colin Nicholas, coordinator of the Centre for Orang Asli Concerns (COAC) was similarly refused entry on the grounds of the black list while trying to enter Sarawak for a conference.⁵⁰

Ms. Irene Fernandez's sentence⁵¹

On 16th October 2003, Ms. Irene Fernandez, Director of Tenaganita, an NGO working with migrant women, was sentenced to 12 months in prison by the Magistrates Court 5B, in Kuala Lumpur. She was granted bail for RM 3000 and she filed an appeal to the High Court on 17th October. However, the High Court has not rendered its decision yet.⁵²

The judgement was initially due to take place on 17th March 2004, once the submission from the defence and the prosecution would have been gathered. However, on 7th October 2003, the Magistrate, Ms. Juliana Mohamed, requested the use of the Court for the decision on Ms. Irene Fernandez's trial and on 9th of October 2003, Ms. Irene Fernandez's lawyers received a letter from the Magistrate requesting them to send the written submissions by 11th October. Since Mrs. Irene Fernandez's senior counsel for the trial, Mr. Pura Valen, was not in the country at that time as he had left Malaysia on 7th October to conduct a two-week investigation mission in Pakistan mandated both by the FIDH and the Observatory, the sudden change of date put Ms. Fernandez in a difficult situation regarding her defence. The Observatory expressed its concern that the new date might have been set up on purpose in order to profit from the absence of Ms. Irene Fernandez's senior counsel for the trial.

Ms. Fernandez had been charged in 1995 with "publishing false information with malevolent intentions" under Section 8A of the Printing, Presses and Publications Act following the publication of a report entitled "Memorandum on abuses, acts of torture and inhuman treatment towards migrant workers in detention camps". This report contained allegations of ill-treatment of migrant populations, based on Ms. Fernandez's interviews with over 300 migrant workers. Ms. Fernandez's trial began in 1996 and is known as the longest trial thus far in the history of Malaysia.

In November 2003, the Malaysian Magistrates Court, without adequate explanation, denied Mrs. Fernandez the right to travel to important human rights and HIV/AIDS meetings in the U.S. and Canada, including a meeting with the UN Acting High Commissioner for Human Rights at the Carter Center. On 5th December, Irene Fernandez's second attempt to attend human rights events abroad failed again when the Kuala Lumpur magistrate's court rejected her application for the return of her passport. The rejection has forced Fernandez to forego attending a "hearing" for human rights defenders in Germany on 10th December, an event organised by German parliamentarians.

Mrs. Fernandez had surrendered her passport to the court in October as part of her bail condition and has since then not retrieved it.

Release after expiry of the detention order⁵³

2003 was highlighted by the release of six " reformasi " leaders after the expiry of the two-year detention order. They had been accused of attempting to topple the government in April 2001 and had been detained under the ISA (Internal Security Act): Tian Chua, vice-president of the Keadilan Party (National Party of Justice), labor and student activist, Saari Sungib, a leader of the Keadilan Party, Mohamed Ezam Mohd Noor, Youth Chief of the Keadilan Party, Hishamuddin Rais, film-director, Lokman Adam, Youth leader of the Keadilan Party, and Dr. Badrulamin Bahron, Central Committee member of the Keadilan Party.

[Refworld note: This report as posted on the FIDH website (www.fidh.org) was in pdf format with country chapters run together by region. Footnote numbers have been retained here, so do not necessarily begin at 1.]

44. See Open Letter to the Prime Minister of Malaysia on 21st January 2003.

45. The Sedition Act (1948) contains a very broad definition of seditious acts including acts that bring hatred or contempt or excite disaffection against any ruler, the government or the administration of Justice. It also prevents the questioning of the special position of Malays and citizenship rights of the non-Malays. A violation of the act is punishable by up to three years in prison. This law forms part of a framework of very repressive legislation, in particular concerning what is perceived as a threat to the National Security, like the Internal Security Act, which is at the disposal of the authorities to restrict fundamental freedoms. For more information see the Mission report of the Observatory: Malaysia: Human Rights Defenders Under Close Surveillance, March 2003.

46. See Suara Rakyat Malaysia's Executive Summary 2003.

47. See Mission report of the Observatory: Malaysia... op. cit.

48. The MultiMedia Super Corridor (MSC) was one of Dr Mahathir's pet projects. In order to attract foreign investors he pledged in section 3 of the Communications and Multimedia Act complete freedom of information on the Internet.

49. See Open Letter to the Minister of Home Affairs of Malaysia on 20th August 2003.

50. Sarawak has a different set of immigration rules from those used in Peninsular Malaysia as a result of an agreement signed during the formation of Malaysia in 1963. Sarawak retains exclusive control over who enters the state. Malaysians living in other states must go through immigration checks. See Suara Rakyat Malaysia's Executive Summary 2003.

51. See Press Release of 15th October 2003, Press Release of 17th October 2003 and the report of the mission of the Observatory, Malaysia... op. cit., March 2003.

52. See Appeal Update 27th November 2003, Tenaganita.net

53. See Annual Report 2002.