Observatory for the Protection of Human Rights Defenders Annual Report 2004 - Malaysia

Mrs. Irene Fernandez sentenced⁸¹

In 1995, Mrs. Irene Fernandez, director of Tenaganita, an NGO working with migrant women, was charged with "publishing false information with malevolent intentions", following the publication of a report entitled Memorandum on abuses, acts of torture and inhuman treatment towards migrant workers in detention camps, which contained allegations of ill treatment of migrant populations, based on Mrs. Fernandez's interviews with over 300 migrant workers. Convicted and sentenced to 12 months in prison on October 2003 by the Magistrate's court 5B, in Kuala Lumpur, Mrs. Fernandez was granted bail for RM 3000 and she filed an appeal with the Kuala Lumpur High Court on 17 October 2003.

At the end of 2004, the appeal was still pending.

Since she has been convicted, Mrs. Fernandez was barred from standing as a candidate for the 2004 Malaysian parliamentary elections, and the government is limiting the use of her passport, which she had to surrender to the court as part of her bail. This means that she must apply to the government whenever she wants to leave the country. Many of her requests were denied by the Kuala Lumpur Magistrate's court, in particular, her applications for the release of her passport to attend several international meetings in 2003.

On 26 February 2004, Mrs. Fernandez decided to withdraw her application due to the delay by the Kuala Lumpur High Court in hearing her travel ban appeal, after Judge Abdull Hamid Embong had said that the matter had been rendered academic, as the international meetings she had intended to attend were already over.

Mrs. Fernandez's passport application to attend the Food and Agricultural Organisation (FAO) Regional Conference of the International Planning Committee on Food Sovereignty for Asia Pacific to be held from 15 to 21 May 2004 in Beijing, China, was also rejected by the Kuala Lumpur Magistrate's court on 6 May 2004, without stating the grounds for the rejection. An immediate appeal was made at the High Court over the magistrate's decision.

On 10 May 2004, Judge Y.A. Dato' Abdul Kadir Bin Musa of Kuala Lumpur High Court approved Mrs. Fernandez's application for the release of her passport to participate in the conference, but the judge set a few conditions. Among others, she was required to report at the Malaysian embassy in China upon her arrival on 14 May 2004 and 48 hours before departure from China, and to uphold "the Malaysian Flag" (the country's image) while in China.

Mrs. Fernandez had to return her passport on 24 May to the Magistrate's court.

Infringements to freedom of assembly, arbitrary arrests and ill treatment of several defenders⁸²

On 28 February 2004, members of 64 NGOs and political parties gathered outside the Bukit Aman police station, in order to hand a memorandum on the misuse of police powers to the Inspector General of the police. They were protesting against numerous incidents involving, in particular, the death of suspects while in police custody, police shootings, violations of remand procedures, and the dispersion of peaceful assemblies.

During this peaceful demonstration, the police detained the message bearer and ordered the demonstrators to disperse. Then they attempted to arrest Mr. Fahmi Reza, a member of Suara Rakyat Malaysia (SUARAM), a Malaysian human rights NGO. When the crowd protested and demanded his release, Mr. Reza was beaten and trampled on, and the police tried to take away his glasses and belongings. The police then used two water cannons that sprayed chemical-laced water to disperse the crowd. Following this police intervention, 17 members of political parties and representatives of civil society, including Mr. Eric Paulsen, Mrs. Elizabeth Wong and Mr. Fahmi Reza, all three members of SUARAM, were arrested and sent to the police station at Jalan Hang Tuah.

Later that same day, all 17 demonstrators were released on bail. They were told to report back to the police on 15 March 2004. No charges were made against any of them. Mr. Tian Chua, vice president of the National Justice Party, and Mrs. Elizabeth Wong sustained bruises. Mrs. Latheefa Koya, another member of SUARAM, sustained minor injuries around her neck due to ill treatment in the hands of the police.

Reports against the police were filed by many groups.

As of December 2004, the only reaction to these reports came from the Human Rights Commission in Malaysia (SUHAKAM), which, in a letter, stated that the assembly was held without a permit and that organisers should have applied for it before the assembly. Yet, the 17 protestors had been arrested on the ground that one of them (Fahmi Reza) allegedly carried a sharp object and that the other 16 remained at the place even though they were asked to disperse. While SUHAKAM did not propose to investigate into the incident, the commission said it would raise the issue within the police forces in fora and workshops.

Physical attack and repeated acts of harassment against Mr. Ponnusamy Uthayakumar⁸³

On 27 April 2004, the windshield of the car of Mr. Ponnusamy Uthayakumar, a human rights lawyer, was smashed.

On 30 April 2004, he was arrested along with 11 other persons as they were about to file a complaint against the police concerning the death in custody of a 23 years old man.

On 10 May 2004, Mr. Ponnusamy Uthayakumar was attacked by three unidentified people wielding a sledge hammer, as he was on his way home from his office, on Jalan Medang Tandok road in the Bangsar area of Kuala Lumpur. During the incident one of the attackers pointed a gun at Mr. Uthayakumar. He managed to escape but suffered injuries to his body, face and head. Mr. Uthayakumar filed a report with the police alleging the attack was carried out by, or on the orders of members of the police forces. He requested the recently established Royal Commission on the police to investigate this attack.

A decision on this request was still pending at the end of 2004. Mr. Uthayakumar also applied for police protection and a firearms licence to protect himself; he did not receive a response to either application.

As of December 2004, the Malaysian government had not yet carried out a fair, impartial and independent investigation into the attack on Mr. Uthayakumar, and the perpetrators had not been brought to justice. His suit against the authorities for unlawful detention was adjourned to 14 February 2005. Furthermore, in late December 2004, the authorities lifted the overseas travel ban that has been imposed on Mr. Uthayakumar, and the income tax department sent him a letter that they would refund part of the income tax they had imposed on him earlier.

Mr. Uthayakumar had already been subjected to acts of harassment in the past. In particular, he was arrested in January 2003 and held for two days after attending an inquiry concerning a case of death in custody. During this detention, he was abused, humiliated, stripped to the underwear, and photographed and video-taped in front of nine police officers. Mr. Uthayakumar was also denied legal representation. He was initially charged under Section 228 of the Criminal Code (contempt of court) and Section 506 (criminal intimidation) but all charges against him were dropped after the High Court found that the charges were brought against him in bad faith.

[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.]

81. See Annual Report 2003.

82. See Open Letter to the Malaysian authorities, 5 March 2004.

83. See Urgent Appeal MYS 001/0504/OBS 037.