rime Minister NajibRazak’s announcementon 15 September, on theeve of Malaysia Day,
that the government would repealthe Internal Security Act (ISA) andlift the proclamations of Emer-gency has removed a heavy mill-stone that has weighed down onthe nation’s psyche.
Despite the long delay before theactual repeal (supposedly inMarch 2011), the announcementvindicates the long struggle byordinary Malaysians to rid thenation of this obnoxious detentionwithout trial law.
The dumping of the ISA would betestimony to the strength ofPeople Power for over half a cen-tury. A droplet of discontent grewinto a stream and then a ragingriver which flowed into a sea ofprotest, the biggest of which wasthe Abolish ISA rally in 2009.
Even when the peninsulaachieved Independence in 1957,we were not fully liberated. TheEmergency Regulations Ordi-nance, introduced in 1948 re-mained in force. Introduced by theBritish High Commissioner Ed-ward Gent, the Ordinance wasanything but gentlemanly. It al-
lowed for detentions not exceed-ing one year. Not only suspectedcommunists, but thousands of na-tionalists including Malay politi-cal activists outside the Umno foldsuch as Ahmad Boestamam andPak Sako were detained withouttrial.
The struggle to get rid of deten-tion without trial and promotehuman rights continued with ear-nest soon after Independence.
Only three months had lapsedsince 31 August 1957, when thetowering personality D RSeenivasagam rose in the Federal
COVER STORY
Half-century - long ‘Abo l i shISA’ struggle is vindicatedBut People Power must continue campaign to abolish allrepressive laws
by Anil Netto
PPPPP
Aliran Monthly : Vol.31(9) Page 3
Najib’s announcement about the imminent repealof the ISA and emergency era laws caught many bysurprise. As Anil Netto writes in our cover story, itvindicates a half-century long ‘people power’struggle against detention without trial laws.
This journey is instructive: it illustrates to us viv-idly that the struggle for justice and freedom is oftenlong and arduous. But it also shows us what is pos-sible if we persevere until enough people stand upto be counted and a critical mass is reached.
Kua Kia Soong, however, wonders if this is going tobe a case of old poison in a new bottle. Malaysians,he says, would do well to demand that there is noreturn to detention without charge. That’s the pointwhich Syed Ibrahim Syed Noh, who spearheadedthe Abolish ISA campaign in recent years, reiter-ates.
More good news came when the Australian courtsblocked a refugee swap deal with Malaysia, forwhich Tommy Thomas is thankful. The merits ofthe case, he notes, would never have been deter-mined by our courts.
Another case grabbed the attention of Angeline Loh:the case of Japanese multinational corporationAsahi Kosei which was suing human rights lawyerCharles Hector over entries in his blog about mi-grant workers’ complaints.
Finally, Mustafa K Anuar looks back at the Bersihrally and laments over how the mainstream pressdisregarded the Bersih phenomenon. That was tan-tamount to abandoning journalistic and a commit-ment to truth and social responsibility.
Struggle Is VindicatedStruggle Is VindicatedStruggle Is VindicatedStruggle Is VindicatedStruggle Is Vindicated 22222••••• It Was People Power That FinishedIt Was People Power That FinishedIt Was People Power That FinishedIt Was People Power That FinishedIt Was People Power That Finished
Off The ISAOff The ISAOff The ISAOff The ISAOff The ISA 77777••••• Transforming The ISA: Old PoisonTransforming The ISA: Old PoisonTransforming The ISA: Old PoisonTransforming The ISA: Old PoisonTransforming The ISA: Old Poison
In New BottleIn New BottleIn New BottleIn New BottleIn New Bottle 88888••••• Repeal Of ISA: GMI RespondsRepeal Of ISA: GMI RespondsRepeal Of ISA: GMI RespondsRepeal Of ISA: GMI RespondsRepeal Of ISA: GMI Responds 1 11 11 11 11 1
FEATURESFEATURESFEATURESFEATURESFEATURES••••• Redefining The Meaning Of No.1Redefining The Meaning Of No.1Redefining The Meaning Of No.1Redefining The Meaning Of No.1Redefining The Meaning Of No.1 1 41 41 41 41 4••••• Double Standards In Australia-Double Standards In Australia-Double Standards In Australia-Double Standards In Australia-Double Standards In Australia-
Malaysia Refugee Swap DealMalaysia Refugee Swap DealMalaysia Refugee Swap DealMalaysia Refugee Swap DealMalaysia Refugee Swap Deal 1 71 71 71 71 7••••• Memories Of ISAMemories Of ISAMemories Of ISAMemories Of ISAMemories Of ISA 1 91 91 91 91 9••••• Malaysia's Reputation Tarnished InMalaysia's Reputation Tarnished InMalaysia's Reputation Tarnished InMalaysia's Reputation Tarnished InMalaysia's Reputation Tarnished In
Australian CourtAustralian CourtAustralian CourtAustralian CourtAustralian Court 2424242424••••• The Elephant In The (News)RoomThe Elephant In The (News)RoomThe Elephant In The (News)RoomThe Elephant In The (News)RoomThe Elephant In The (News)Room 3 03 03 03 03 0••••• Charles Hector's Case: A JudicialCharles Hector's Case: A JudicialCharles Hector's Case: A JudicialCharles Hector's Case: A JudicialCharles Hector's Case: A Judicial
Denial Of JusticeDenial Of JusticeDenial Of JusticeDenial Of JusticeDenial Of Justice 4040404040
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Aliran is an organisation for ‘social democraticAliran is an organisation for ‘social democraticAliran is an organisation for ‘social democraticAliran is an organisation for ‘social democraticAliran is an organisation for ‘social democraticreform’. We advocate freedom, justice andreform’. We advocate freedom, justice andreform’. We advocate freedom, justice andreform’. We advocate freedom, justice andreform’. We advocate freedom, justice andsolidarity; comment critically on social issues, offersolidarity; comment critically on social issues, offersolidarity; comment critically on social issues, offersolidarity; comment critically on social issues, offersolidarity; comment critically on social issues, offeranalysis and alternative ideas keeping in mindanalysis and alternative ideas keeping in mindanalysis and alternative ideas keeping in mindanalysis and alternative ideas keeping in mindanalysis and alternative ideas keeping in mindthe national and global picture based on universalthe national and global picture based on universalthe national and global picture based on universalthe national and global picture based on universalthe national and global picture based on universalhuman rights and spiritual values. We are listedhuman rights and spiritual values. We are listedhuman rights and spiritual values. We are listedhuman rights and spiritual values. We are listedhuman rights and spiritual values. We are listedon the on the on the on the on the roster of the Economic and Social Council ofroster of the Economic and Social Council ofroster of the Economic and Social Council ofroster of the Economic and Social Council ofroster of the Economic and Social Council ofthe United Nations. Founded in 1977, Aliranthe United Nations. Founded in 1977, Aliranthe United Nations. Founded in 1977, Aliranthe United Nations. Founded in 1977, Aliranthe United Nations. Founded in 1977, Aliranwelcomes all Malaysians above 21 to be members.welcomes all Malaysians above 21 to be members.welcomes all Malaysians above 21 to be members.welcomes all Malaysians above 21 to be members.welcomes all Malaysians above 21 to be members.Contact the Hon. Secretary or visit our webpage.Contact the Hon. Secretary or visit our webpage.Contact the Hon. Secretary or visit our webpage.Contact the Hon. Secretary or visit our webpage.Contact the Hon. Secretary or visit our webpage.
Aliran Monthly : Vol.31(9) Page 4
Legislative Council to assert:
‘It is well known that theimplementation of the Emer-gency Regulations Ordinanceis a serious violation of basichuman rights. We were toldthat some people have beenlabelled as “subversives”,“pro-communists”, “commu-nists sympathisers” and so on…. but if Chin Peng were tosurrender unconditionally tothe government, will the Emer-gency end? I dare say it willnot. This is because the policyof the Alliance Government isto ensure the permanent exist-ence of the Emergency.’
Seenivasagam’s fears were notwithout basis as 56 student activ-ists were detained the followingyear.
The good news, however, wasthat the government agreed to re-peal the Emergency RegulationsOrdinance on 31 July 1960.
The bad news was that a Consti-tutional Amendment Bill waspassed the very next day, givingbirth to an even more ominouslaw, the Internal Security Act, on1 August 1960. Lawyer Lim KeanSiew, then of the Socialist Front,retorted that this amounted to “inreality, hoodwinking the people;it is only a change in form but notin substance”.
The legendary opposition leaderTan Chee Khoon denounced thissleight-of-hand: “This infernaland heinous instrument has beenenacted by the Alliance Govern-ment at a time when the emer-
gency was supposed to be over.Then it promptly proceeds to em-body all the provisions of the Emer-gency Regulations which duringthe Emergency had to be re-en-acted every year, but now it is writ-ten into the statute book ad infini-tum...”
Will the same “reincarnation”happen all over again once the ISAis finally repealed? The mutedwelcome that greeted the PM’s an-nouncement was soon engulfedby worry and cynicism over whatwould take the place of the ISA.
It did not help when the govern-ment announced that the laws toreplace would be modelled afteranti-terrorism laws in existenceelsewhere that still allow for de-tention without trial. Not surpris-ingly, reactions to Najib’s reformshave been mostly flat. There is nosense of euphoria or celebration.Perhaps most people realise thatwhile the ISA may be going soon,preventive detention or detentionwithout trial law will very likelybe reincarnated under other lawsfor “anti-terrorism” and “publicorder” and “rebranded” with
names that are more politicallycorrect. (This raises the question,who decides whether someone isa “terrorist” or disturbing the“public order”? Will these per-sons be given a fair trial before theyare locked away?)
As for publishing permits, theMinister still has the discretion asto whether or not to approve anynew applications for permits andto revoke existing permits. Asthings stand, his decisions can-not be challenged in court.
But even if little else changes, therepeal of the ISA, when it is finallydone, will remove a great psycho-logical impediment for manypeople to play a more active roleas agents of change.
I once sat in a coffee-shop and lis-tened to a couple of acquaintan-ces talking about current events.
One older guy sounded particu-larly pessimistic. “I don’t havemuch hope that things can
change,” he lamented. “No mat-ter what you say, no matter whatwe do, nothing much willchange.”
I found that defeatist attitudealarming. If we adopt that line,then we are reduced to little morethan helpless, passive observersunable to shape or influence un-folding events. Many politicianslike to believe that it is only they –and not the ordinary person onthe street - who can determine thedirection of the nation or shapethe discourse of current events.
Clearly that’s not the case. Con-sider this: as recently as 15 yearsago, how many people wouldhave believed that we could getrid of the ISA? It wouldn’t bewrong to say that a majority of Ma-laysians actually supported theISA, which they believed to be es-sential to prevent our country fromdisintegrating into chaos. At least,that was the propaganda line fedto them by BN politicians anddutifully disseminated in themainstream media.
But something happened along
the way. As early as 1965, protest-ers were calling for the “Strugglefor Human Rights Day” to markthe second anniversary ofBoestamam’s arrest. Of course, thegovernment reacted by detainingseveral top leaders of the SocialistFront and its component partiesand 250 demonstrators includingPak Sako.
Two decades later, OperasiLalang in 1987 opened the eyes ofa new generation of Malaysiansto the injustice of the ISA. Whenopposition politicians, academics,church workers, unionists andactivists were roped in under theMahathir administration, peoplesat up and took notice. AliranMonthly spread the message thatthis was not right. Suaram andHakam were formed to join in thehuman rights struggle. And thenreformasi was unleashed fol-lowed by a heavy crackdown bythe state.
During the reformasi era, GerakanKeadilan Rakyat or Gerak, a coa-lition of opposition political par-ties and NGOs, was formed tocampaign against unjust laws. By
1999, the government found itselfon the defensive and Suhakam,the human rights commission ofMalaysia, was created to try andaddress some of the increasinglyvocal public concerns. Gerak’srole was later taken over by thecivil society-led GerakanMansuhkan ISA (Abolish ISAMovement) in 2001, when 10reformasi activists were detained.
Then came the September 11 at-tacks in the United States, deliv-ering a setback to the momentumof the Abolish ISA campaign.Governments across the worldtightened their anti-terror laws,and detention without trial re-ceived a new lease of life.
But greater awareness of the in-justice of detention without trial(recall what happened in Iraq andAfghanistan and torture via ren-dition) broke people out of theirstupour. Facilitated by easier ac-cess to critical information onblogs and independent newswebsites, more people grew awareof the excesses under such repres-sive laws. The ISA’s days werenumbered.
The government seriously miscal-culated the growing public senti-ment against the ISA when it de-tained three people in September2008, including web master RajaPetra and opposition MP TeresaKok, six months after the water-shed 2008 general election. Over-night, thousands across the coun-try participated in prayer ser-vices, attended candle-light vigils,wore Abolish ISA badges, signedpetitions and stuck campaignstickers on their cars. By now,
S e r i o u sm i s c a l c u l a t i o n s
Ahmad BoestamamAhmad BoestamamAhmad BoestamamAhmad BoestamamAhmad BoestamamIshak Mohd aka Ishak Mohd aka Ishak Mohd aka Ishak Mohd aka Ishak Mohd aka Pak SakoPak SakoPak SakoPak SakoPak Sako
Aliran Monthly : Vol.31(9) Page 6
public sentiment had swung de-cisively against the ISA and in Au-gust 2009, some 50000 peoplethronged an Abolish ISA rally inKL organised by GMI.
No longer would the public toler-ate a mere “review” of the ISA, asthe government had pledged inan attempt to placate the public.The continued use of the ISA wasno longer tenable. And then on theeve of Malaysia Day, 2011, it fi-nally happened. Najib an-nounced that the ISA, three Emer-gency Ordinances and the Ban-ishment Act would be repealedwhile other repressive laws relat-ing to public assembly and publi-cation licences would be eased.
Many took these “reforms” with apinch of salt. Some even saw themas a pre-election ploy. On the sur-face, the “reforms” appear positive.But in substance, has there beenmuch change? While the ISA willbe repealed, the detainees inKamunting remain incarcerated.While there is no more need to ap-ply for annual publishing licences,the Home Minister still has the pre-rogative to decide whether new li-cences should be approved or ex-isting licences revoked. His deci-sions cannot be challenged incourt. While laws pertaining to theright to assemble would be broughtin line with “international norms”,street demonstrations would re-main prohibited.
Still, the junking of the ISA showsthat nothing is impossible whenenough people make their voicesheard. When people stand up to becounted, unexpected things canhappen. All those Abolish ISA gath-erings and rallies, candle-light vig-ils, badges, T-shirts, stickers, peti-tions and prayer services have not
Anil Netto is honoraryAnil Netto is honoraryAnil Netto is honoraryAnil Netto is honoraryAnil Netto is honorarytreasurer of Aliran.treasurer of Aliran.treasurer of Aliran.treasurer of Aliran.treasurer of Aliran.
been in vain.
The ripples from the imminent de-mise of the ISA have fanned outacross Asean. In Singapore, ThinkCentre has renewed calls for therepeal of the ISA while in Burma,military generals have started free-ing political prisoners.
Even the ludicrous chargesagainst the PSM 30 - the court hear-ing had been scheduled for 10-14October - have been dropped andthe activists given a discharge notamounting to an acquittal. Theywere due to face charges under theSocieties Act (for promoting an“illegal” organisation”) and ISA(for possession of “subversive”material). Once again, the govern-ment gravely miscalculated thepublic sentiment against deten-tion without trial as seen from thepublic outcry over the unjust ar-rests of the PSM activists, espe-cially the six detained under theEmergency Ordinance.
So the collective voice of the ordi-nary people can can can can can make a difference.What this should tell us is that weshould never under-estimate thecapacity of ordinary people, in-spired by the higher commongood, to effect change.
That said, it is important that atribunal be set up to look into theunjust - and often heroic - ordealof so many ISA detainees downthe years. Many lives have beenruined. They must not be forgot-ten. The detainees or their fami-lies should be compensated.
Next, it is important that we re-main vigilant and reject all otherpreventive detention laws. In case
we need reminding, detentionwithout charge or trial is a viola-tion of the Universal Declarationof Human Rights:
Article 9 - No one shall be sub-jected to arbitrary arrest, detentionor exile.
Article 10 - Everyone is entitled infull equality to a fair and publichearing by an independent andimpartial tribunal, in the determi-nation of his rights and obliga-tions and of any criminal chargeagainst him.
Article 11 (1) - Everyone chargedwith a penal offence has the rightto be presumed innocent untilproved guilty according to law ina public trial at which he has hadall the guarantees necessary forhis defence.
We have to remain vigilant andensure that reforms go much fur-ther, beyond cosmetic or superfi-cial change. We need to push forreal change so that we can be freeto live our lives to the full. As stew-ards of the environment, as agentsof transformation, we have a re-sponsibility to promote justiceand peace in this world – and nolaw should stand in the way ofthis noble objective.
Detention without trial is patentlyunjust. People power has ensuredthat the ISA will soon be chuckedout. Now it is our task to ensurethat all other unjust laws, includ-ing laws that allow detentionwithout trial, are similarly dis-carded.
Making a difference
q
Aliran Monthly : Vol.31(9) Page 7
rime Minister NajibRazak’s announcementthat the ISA and theEmergency Ordinance
would be repealed has taken thenation by surprise. He also an-nounced that Section 27 of thePolice Act (on public assemblies)and the requirement for publish-ing permits to be renewed annu-ally would be dropped.
Most people would be inclined towelcome these announcements.But we would be well advised totemper any celebration with cau-tion. What will replace these op-pressive laws is not clear and hasnot yet been revealed in much de-tail.
The repeal of the ISA and EO is anacknowledgement that the gov-ernment can no longer sustain theuse of these laws without strongpublic condemnation and oppo-sition. The repeal of these twolaws is the only logical move.
Massive public rallies have driventhe final nail into the coffin ofthese obnoxious laws. The people,inspired and spurred on by thecivil society Abolish ISA Movement(GMI), have won a remarkable vic-tory through their persistent anddetermined opposition to the ISA.For that, the people have to be con-gratulated.
The repeal of the ISA and EO,
however, will not erase the suf-fering of all the detainees downthe ages who have unjustly suf-fered at the hands of an oppres-sive state apparatus. Countlesslives have been ruined. An in-dependent tribunal is needed tolook into all cases of ill-treat-ment and torture, psychologicalor otherwise, that have surfacedover the years. Those who havebeen abused and ill-treated andincarcerated without trial foryears – or their families – mustbe adequately compensated.Those responsible for ill-treatingor abusing detainees must bebrought to book as a lesson forothers who may be tempted tocontinue in similar ways.
Meanwhile, other laws that re-strict human rights such as theSedition Act, the Police Act, the Uni-versities and University Colleges Actand the Official Secrets Act mustalso be repealed as a sign of sin-cerity on the part of the BN. Thesame goes for other preventivedetention laws.
As for publishing permits, dodemocratic countries really re-quire permits for publishingnewspapers and other periodi-cals? If the Minister revokes a“permit”, can it now be chal-lenged in court? In the spirit ofdemocracy and freedom of ex-pression, the governmentshould also make a commitment
towards creating a Freedom ofInformation Act. If not, there isnothing to celebrate.
To demonstrate its commitmentto international human rightsnorms, the Malaysian govern-ment must now ratify all UNhuman rights treaties such asthe UN Covenant on Civil andPolitical Rights, the UN Cov-enant on Economic, Social andCultural Rights and the RefugeeRights Convention. This willconvince Malaysians that theBN is serious about respectinghuman rights.
It is also important to put in placea truly independent judiciary sothat the courts will not be used topersecute political opponents. Torestore the independence of the ju-diciary, appointments of judgesmust be made based on merit andnot on political considerations asperceived by a vast majority ofMalaysians.
For now, in the spirit of these an-nouncements and to mark Malay-sia Day, Aliran calls on the Ma-laysian government to drop allcharges against the PSM 30 andothers arrested before and duringthe Bersih rally. This would be awelcome gesture on this auspi-cious day.
Aliran Executive Committee,Malaysia Day, 16 September 2011
COVER STORY
It was People Power thatfinished off the ISA
PPPPP
q
Aliran Monthly : Vol.31(9) Page 8
rime Minister NajibRazak’s recent an-nouncement to repeal themuch loathed Internal
Security Act (ISA) does not giveus cause for celebration when hesimultaneously says that it will bereplaced by two anti-terrorismlaws. There is no doubt that thesenew anti-terrorism laws willagain allow the government-of-the-day to detain people withoutcharge. The entire function of theISA since 1960 has been for theAlliance and then the BarisanNasional government to deal withthe Opposition and other dissi-dents through detention withoutcharge.
Before we look at the way in whichother countries deal with terror-ism, it may be worth our while toask if an emergency situation ex-ists in Malaysia to warrant suchlegislation. The US, UK and otherwestern countries are the objectsof terrorism mainly because oftheir support for Israel and theiraggression against Iraq, Afghani-stan and other Muslim countries.September 11, 2001 of course pro-vided President Bush and PrimeMinister Blair with the perfect ex-cuse to launch their offensive
against Iraq, Afghanistan andnow Libya and to pass anti-ter-rorism laws in their own coun-tries.
Articles 149 and 150, which en-abled the legislation of the Inter-nal Security Act (which is incon-sistent with Articles 5, 9 and 10guaranteeing liberty of the person,freedom of movement and free-dom of speech, assembly and as-sociation respectively), were in-cluded in the 1957 Federal Con-stitution because the Emergencyof 1948-60 was ongoing.
The BN government’s pledge toannul the three states of emer-gency in force since 1964 showstheir recognition of the fact thatthere is no justification for anystate of emergency in Malaysia. Sowhy is there a justification for newanti-terrorism laws when our ex-isting laws can cope with anyeventuality?
If an emergency situation shouldarise in the future, the governmentstill has Articles 149 and 150 tofall back on and to legislate ap-propriate laws to cope with thesituation as they have done in thepast. Alas, as with other lapses in
their governance, they have beenmost tardy in annulling the statesof emergency once the emergencyhad blown over. And their tardi-ness has been most costly formany victims of their draconianlaws.
Based on its record, the govern-ment cannot be trusted to use de-tention-without-trial laws respon-sibly. Apart from the detention ofpeace-loving citizens like me un-der the ISA, it is worth pointingout that out of the more than10000 ISA detainees since 1960,few if any have been charged incourt for terrorist crimes. It is alsoan indication of the warped pri-orities of the government and itssecurity forces that the alleged ter-rorist in the Bali bombing killedby the Indonesian police, Mat Top,had never been detained underthe ISA!
Many people are not aware thatthroughout the repugnant careerof the ISA since 1960, when theEmergency was declared over, theISA has been more draconian thansimilar laws in South Africa un-
COVER STORY
Transforming the ISA:Old poison in new bottleMalaysians would do well to demand that there is no return todetention without charge
by Kua Kia Soong
PPPPP
The importanceof due process
Aliran Monthly : Vol.31(9) Page 9
der apartheid or even NorthernIreland during the IRA cam-paigns.
In 1962, a black South African waspicked up after returning fromtraining in bomb-making andguerilla warfare in Ethiopia. Hethen spent 27 years in jail but hewas given access to lawyers andhis prosecutor had to follow rulesof due process. That man later be-came the president of South Af-rica.
Terrorism laws must be clearlyworded, passed by parliament,and the powers of the executivemust be balanced by wider reviewand new checks and balances.
The government will try to justifylong periods of detention withoutcharge by claiming that the policeneed time to scrutinise mountainsof documents, computer data, etc.This excuse, however, does notcarry water because major fraudand pornography trials face simi-lar challenges. The governmentmust bear in mind that suspectsare not terrorists.
Britain already has 200 pieces ofanti-terrorism legislation, whileMalaysia also has terrorism-re-lated offences in the Penal Codeand the Criminal Procedure Codeof 2006. There is also an Anti-Money Laundering and Anti-Ter-rorism Financing Act 2001. More-over, the police can detain peopleon less serious charges and stillquestion them on the more seri-ous ones as they sometimes do.
In the UK, terrorism is defined as“any politically motivated vio-
lence against people, property orelectronic systems designed to in-fluence the government or intimi-date the public for a political, reli-gious or ideological cause…”
This raises the question of whetherpeople have the right to take uparms against tyranny, injustice orforeign occupation. And whatabout the assault on civilian tar-gets by states as we have seen inIraq, Afghanistan, Libya and else-where?
The definition of terrorism is alsointended to proscribeorganisations whose activities“glorify, exalt or celebrate terror-ism”. What happens is that in theprocess, peaceful organisationscan be banned and support formainstream Muslim causescriminalised. Consequently, thiswill drive more to go under-ground.
It is instructive to treat “terrorists”as criminals (as in the UK) basedon justice and due process and notas combatants in war based onfear and suspicion (as is the casein the US).
The US president has extraordi-nary powers compared with theexecutive in the UK. Even so, it isinstructive that in the Special Reg-istration Programme soon afterSeptember 11, 2001, 80000 menfrom Arab and Muslim countrieswere “ethnically profiled” but itresulted in not a single terroristconviction.
With the US resolution of 18 Sep-tember 2001, the US Congressauthorised the President to use
force against any person or entityhe might determine to be respon-sible for September 11, providingfor indefinite detention of sus-pected terrorists anywhere in theworld without any guarantee ofcharge or trial. Then by a secretorder, President Bush authorisedthe National Security Agency tointercept communications (wiretapping) without judicial war-rant.
With the war in Northern Ireland,Britain has had detention withoutcharge although there is judicialreview unlike the case ofMalaysia’s ISA. In 1997, there wasan upper limit of four days’ de-tention without charge and in2000, it became seven days. After2001, it became 14 days. In 2005,the Terrorism Bill was proposedfor 90 days of detention withoutcharge but this was defeated in theHouse of Commons. The new Ter-rorism Act then allowed 28 daysof detention without charge. In2008, the House of Lords defeatedanother Bill asking for 42 days’detention without charge.
In the other European countries,the period of detention withoutcharge is as follows:
• F r a n c e … … … … … … 4 days• Greece……………… 5 days• Spain..…………….... 13 days• Austral ia…………… 7 days• C a n a d a … … … … … … 1 day
In France and Spain, an indepen-dent judge decides if there is a caseto answer while in Australia, de-tention is under ordinary remandprovisions.
E x i s t i n ganti-terrorism laws The Exe cu t i ve ’ s
extraordinary powers
Period of detentionwithout charge
in the West
Aliran Monthly : Vol.31(9) Page 10
This Act stands for “ProvidingAppropriate Tools Required toIntercept and Obstruct Terror-ism.” The first thing about this Actis that it can only be used againstforeigners. This begs the question:Why is the same act not “terror-ist” if committed by US citizens?
Secondly, the US government isrequired to press charges withinseven days. Since the passing ofthe Act, the United States has de-tained more than 80000 people,nearly 800 of them at GuantanamoBay. Guantanamo Bay prisonersare not given Prisoner Of War sta-tus nor charged nor given law-yers. The US government uses the“enemy combatant” designationto detain them indefinitely, allow-ing no access to lawyers.
There is a repeated pattern of ex-traordinary powers first used onlyagainst non-citizens, but then ex-tended to include citizens.
President Bush got away with alot after September 11, and detain-ees have suffered for it. But the USjudiciary has also stood up to theUS Commander-in-Chief. Thus inRasul v Bush in 2004, the SupremeCourt ruled that a non-citizen hadthe right to challenge detention:
“Executive imprisonment hasbeen considered oppressive andlawless since King John atRunnymede pledged that no freeman should be imprisoned, dis-possessed, outlawed or exiledsave by the judgement of his peersor by the law of the land.”
After each defeat in the SupremeCourt, the US governmentamended the law but once againin Hamdan v Rumsfeld 2006, theSupreme Court ruled:
“The (new) legislation did not pre-vent federal courts hearing habeascorpus petitions; detainees areentitled to protection of Article 3of the Geneva Convention (whichprohibits cruel treatment and tor-ture) and that detainees were en-titled to trial before a regularlyconstituted court affording all thejudicial guarantees recognised asindispensable by civilisedpeoples.”
After further legislative change,the US Supreme Court ruled inBoumedienne v Bush 2008 thatdetainees had a constitutionalright to habeas corpus and legisla-tion was unconstitutional:
“The laws and constitution aredesigned to survive, and remainin force in extraordinary times.Liberty and security can be recon-ciled; and in our system they arereconciled within the law.”
In 2006, the federal judge in Michi-gan ruled that President Bush’ssecret order authorising the Na-tional Security Agency to interceptcommunications without any ju-dicial warrant was a violation offederal criminal law and added,“There are no hereditary Kings inAmerica.”
The Council of Europe pro-nounced in 2002:
“While the state has the right to
employ to the full its arsenal oflegal weapons to repress and pre-vent terrorist activities, it may notuse indiscriminate measureswhich would only undermine thefundamental values they seek toprotect.”
In 2004, the International Com-mission of Jurists in its Berlin Dec-laration proclaimed that:
“In adopting measures aimed atsuppressing acts of terrorism,states must adhere strictly to therule of law, including the coreprinciples of criminal and inter-national law and the specific stan-dards and obligations of interna-tional human rights law, refugeelaw and, where applicable, hu-manitarian law.”
Finally, Cicero’s old adage is thewisest caution against terrorismlaws from the Wild West: “Saluspopuli suprema est lex” (The safetyof the people is the supreme law).
Malaysians would do well to de-mand that there is no return todetention without charge and thatwe do not accept the old ISA poi-son in a new bottle!
The US PATRIOTAct 2001
Judicial checkson the Executive
Supranational viewson terrorism laws
Dr Kua Kia Soong is theDr Kua Kia Soong is theDr Kua Kia Soong is theDr Kua Kia Soong is theDr Kua Kia Soong is thedirector of human rightsdirector of human rightsdirector of human rightsdirector of human rightsdirector of human rightsgroup Suaram.group Suaram.group Suaram.group Suaram.group Suaram.
q
Aliran Monthly : Vol.31(9) Page 11
he Internal Security Act1960 (ISA) will be abol-ished, said the PrimeMinister in a special ad-
dress on the eve of Malaysia Day.
Gerakan Mansuhkan ISA (GMI),which is made up of more than 80organisations consisting ofNGOs, political parties, humanrights bodies, women, students,the Bar Council and workers’unions, welcomes this new devel-opment.
GMI attributes the success (of thecampaign) to:• the awareness and demands of
the people;
• efforts by victims and familiesof ISA detainees who continueto defend themselves;
• support from multiple NGOsdomestically and internation-ally irrespective of race andreligion, lawyer groups andpolitical parties especiallyPakatan Rakyat (PR) with theirorange book commitment anda few motions to abolish theISA, which was approved atthe PR state level; and
• Suhakam’s consistent standon the repeal of ISA.
After 10 years of GMI’s existenceand campaigning, after tens ofthousands of victims of ISA since
1960, after many families fell vic-tims to the ISA, after several cam-paigns introduced with themessuch as “Freedom for ReformasiPolitical Detainees”, “ISA MalaFide”, “Free Malaysia From ISA”,“Save Malaysia, Abolish ISA!”and “Abolish ISA, Not Amend!”,for the first time, the people ofMalaysia heard for themselvesfrom the Prime Minister that ISAwill be abolished. His statementimmediately signalled the successof GMI’s campaign!
GMI also views this development
COVER STORY
Repeal of ISA: GMI respondsRepeal of ISA: GMI respondsRepeal of ISA: GMI respondsRepeal of ISA: GMI respondsRepeal of ISA: GMI respondsAll detention-without-trial laws and other repressivelegislation must also go
by Syed Ibrahim Syed Noh
TTTTT
V i o l a t i o nof basic rights
ISA vigilISA vigilISA vigilISA vigilISA vigil
Aliran Monthly : Vol.31(9) Page 12
as a very bold move on the part ofNajib as the Prime Minister as noprime minister before him man-aged to do this. However, thisserves also as evidence of theshackles and grip of the ISA onthe people all this while. The PMregretted that Malaysia’s realityhas changed. The people want amore open and dynamicallydemocratic Malaysia, where opin-ions, idea and concerns of themasses are given more attention.This could not happen with theexistence and excessive powersunder the ISA. This is the messagethat has been carried by GMI andother bodies in its coalition formany years.
Additionally, the Prime Ministeralso attested to how the ISA wasused against those with differentpolitical ideologies. He gave hiscommitment that no individualswould be detained just because oftheir political ideology. Thisclearly signalled that the deten-tion of 10 Reformasi activistsbased on the allegation of unseat-ing the government by means ofexplosives was a mistake and an
abuse of the powers of ISA. Thesame goes for the detention ofTeresa Kok or Raja Petra and areporter a few years ago.
However, do remember that indi-viduals should not also be de-tained for “political motives” likewhat happened to detainees al-leged to have been involved withJemaah Islamiah. They were madescapegoats of the internationalpolitics of Malaysia and the US.They were never proven to be in-volved with terrorism.
The Prime Minister and govern-ment also implicitly acknowl-edged finally the violation of free-dom and basic rights besides theexcessive powers of the policeand Minister under the ISA. Hegave his commitment to take intoconsideration freedom and basicrights in any law while any ex-tension of detention can only bemade by the court’s instruction(except for legislation related toterrorism).
Even then, GMI wishes to stressagain its main principles against
the ISA, which is on the provisionof detention without trial and ex-cessive arbitrary powers of thepolice and Minister of Home Af-fairs. GMI also wishes to stress itsthree main objectives, which areabolish the ISA, release the detain-ees and close down KamuntingCamp.
Therefore, GMI wishes to raise afew queries and concerns:
Will the repeal of the ISA elimi-nates all provisions in it in rela-tions to detention without trialand arbitrary powers of the policeand the Minister of Home Affairs?Or are the provisions transferredto the two new laws to be enacted?It seems that courts’ ruling is anexception for the new laws. De-tention without trial is a thorn inthe flesh and a disease. Withoutthe scrutiny of the judiciary, theroom for abuse is wide open. If (theprovision for detention withouttrial is) transferred from the ISAto the new laws then radicalchange will not happen even if theISA is abolished. The ISA has beenthe wand of power for the rulers.It will not be lifted that easily.
Why are the two new laws en-acted with detention without trialprovisions when there are exist-ing laws for terrorist offences suchas Chapter VIA of the Penal Code?
What is the time frame for the re-peal of the ISA? If it takes up totwo years as seen before, pleasedo not fault the people for assum-ing the announcement as bait forthe general election as well as forthe political survival of the BN.The tabling of the motion to repealthe ISA must be made in the next
Syed Ibrahim Syed Noh isSyed Ibrahim Syed Noh isSyed Ibrahim Syed Noh isSyed Ibrahim Syed Noh isSyed Ibrahim Syed Noh ischairperson of the Abolishchairperson of the Abolishchairperson of the Abolishchairperson of the Abolishchairperson of the AbolishISA Movement (GMI).ISA Movement (GMI).ISA Movement (GMI).ISA Movement (GMI).ISA Movement (GMI).
parliamentary session.
Will the repeal of the ISA bringabout the release of all detainees?The repeal should result in therelease of all detainees withoutconditions and further ado.
What is the status of ex-ISA de-tainees who were deported whilethey are permanent residents? Arethey permitted to return?
What will happen to KamuntingCamp? The Camp should beclosed and be acknowledged as aWorld Heritage site much likeRobben Island, South Africa as asymbol of the injustice and cru-elty meted out under the ISA.
The new development bringsabout several implications anddemands:
• All victims of the ISA shouldbe paid a gratuity as compen-sation for the torture and suf-fering experienced by the de-tainees and family members;
• All parties involved in the tor-ture and maltreatment of ISAdetainees must be brought tojustice and open trials;
• The government, relevant Min-ister and police must be trust-worthy in upholding the prin-ciples stressed by the PrimeMinister in his address, andnot just pay lip service. Hestressed the governmentwould put its trust in the wis-dom of the people of Malaysiain making choices to pave theway for their own future direc-tion;
• The government must abolishother detention without lawssuch as the Dangerous DrugsAct (DDA);
• The government must reviewimmediately within a specifictime frame other laws that re-strict the freedom of the peopleand media such as the PoliceAct and the Printing Pressesand Publications Act;
• The government must adhereto the international humanrights charter over issues re-lated to anti-terrorism activi-ties and draft long term plansfor the country in developingmechanisms to address terror-
ism without jeopardising ba-sic rights and the principles ofjustice; and
• The government must sign andratify the International Cov-enant on Civil and PoliticalRights (ICCPR) and the Con-vention Against Torture andOther Cruel, Inhuman or De-grading Treatment or Punish-ment (CAT);
Finally, it is evident that the exist-ence of a strong principled voice/coalition/movement in a demo-cratic system is very important toguarantee the welfare and liveli-hood of the people. GMI conveysits appreciation and admirationof the people’s voice. GMI’s posi-tion will be discussed among itscoalition members at a suitabletime.
Abolish ISA!Release Detainees!Close down Kamunting Camp!
I m p l i c a t i o n sand demands
Kamunting Camp should be preserved Kamunting Camp should be preserved Kamunting Camp should be preserved Kamunting Camp should be preserved Kamunting Camp should be preserved as a symbol of the injustice andas a symbol of the injustice andas a symbol of the injustice andas a symbol of the injustice andas a symbol of the injustice andcruelty meted out under the ISA.cruelty meted out under the ISA.cruelty meted out under the ISA.cruelty meted out under the ISA.cruelty meted out under the ISA.
q
Aliran Monthly : Vol.31(9) Page 14
ere in America, we seemto be more interested infinishing first than weare in figuring out what
race we ought to be in.
The refrain is insistent, from Presi-dent Obama on down. He, likeothers in both parties, urges us on— to build or educate or invest orcut the deficit — so that “Americacan be No. 1 again”.
We want to be No. 1 — but why,and at what?
The size of our economy is onemeasure of success, but it’s not the
only measure.
Isn’t the important question nothow we remain No. 1 but rather,what we want to be best at — andeven, whether we want to lead atall?
But we are Americans and weseem to think the rest of the worldlooks best when framed in ourrear-view mirror.
We outstrip the world by manymeasures but lag, sometimesshockingly, in many others. Themetrics by which we choose tomeasure our success determineour priorities. Yet, some of themetrics we rate as most important,
like GDP, stock indices or tradedata, are so deeply flawed as to beirrelevant or worse, dangerousdistractions. And at the same time,countries that could hardly hopeto outperform the world in anycategory are far ahead of us whenit comes to things that matter moreto people. Choosing metrics tomeasure our society is not a value-free process. As a country we haveconsistently relied on indicatorsthat keep us focused on the inter-ests of business, financial institu-tions or the defence industrywhereas equity, quality of life andeven social mobility metrics areplayed down.
Calculating national income is arelatively new concept.Previously, countriesmeasured their eco-nomic well-being by tal-lying land holdings orcounting railroad box-cars. But in the midst ofthe Great Depression,Congress, showing agreat deal more intellec-tual curiosity than itdoes today, commis-sioned a group of econo-mists led by a futureNobel Prize winnernamed Simon Kuznetsto better measure eco-nomic activity.
INTERNATIONAL
Redefining theMeaning of No. 1by David J Rothkopf
HHHHH
Flawed GDP measure
Aliran Monthly : Vol.31(9) Page 15
Although Kuznets and his teamfulfilled their mission, they re-leased their results with consid-erable unease. Not only were theyaware that the statistic they de-vised ignored many types of eco-nomic activity — from the work ofhousewives to illegal enterprises— they also knew their numberdid not assess the social benefitsof what they were tracking.
Kuznets warned of this: “The wel-fare of a nation can, therefore,scarcely be inferred from a mea-surement of national income” likethe one they created. That hasn’tstopped us from making this mis-leading number perhaps the mostinfluential statistic in the world.
Americans use GDP in discus-sions about how well we are do-ing. It’s at the heart of discussionsof whether we are in a recessionor not, ahead or falling behind.
Yet, when China “passes” us, itwill remain for the most part a verypoor country racked with socialproblems. And as we have seen,though the past decade wasmarked mostly by United States“growth”, recent Census datashows that since 1999, medianAmerican incomes have fallenmore than 7 per cent while the top1 per cent showed gains. Almostone in four American childrenlive in poverty. We have a highlevel of unemployment comparedto many of our peers.
The GDP number is not the onlyculprit, of course. Listening to thenews, you might be forgiven if youthought that stock market perfor-mance was linked to reality. Butmarkets are oceans of teemingemotions that make the averagehormone-infused high school
look calmly rational, and much ofthe “data” that moves markets isjust bunk. Trade deficit numbersmay be scary but they are alsofrighteningly flawed, doing a ter-rible job of accounting for trade inservices, trade via the Internet,and inter-company trade, to pickjust three among many problemareas.
Worse than the shortcomings ofthese statistics are the conse-quences of our over-dependenceon them as measures of the suc-cess of our society. A country, forexample, that overemphasisesGDP growth and market perfor-mance is likely to focus policieson the big drivers of those — cor-porations and financial institu-tions — even when, as during therecent past, there has been littlecorrelation between the perfor-mance of big businesses or elitesand that of most people.
Furthermore, of course, the pur-pose of a society is not merely thecreation of wealth, especially ifmost of it goes to the few. Even JohnLocke, who famously enumeratedour fundamental rights as being
to life, liberty and property, quali-fied this by asserting that peopleshould appropriate only whatthey could use, leaving “enoughand as good” for others. ThomasJefferson later consciously re-placed the right to property witha right to “the pursuit of happi-ness”. And happiness has becomethe watchword for those seekingdifferent measures that might bet-ter guide governments.
According to the economist CarolGraham, the author of a recentbook called “The Pursuit of Hap-piness: An Economy of Well-Be-ing”, “happiness is, in the end, amuch more complicated conceptthan income. Yet it is also a laud-able and much more ambitiouspolicy objective.” While she notesdistinctions between approachesto happiness — with some societ-ies more focused on goals like con-tentment and others on the cre-ation of equal opportunities — shejoins a growing chorus of leadingthinkers who suggest the time hascome to rethink how we measureour performance and how we setour goals.
This diverse group has includedthinkers and public figures likePresident Nicolas Sarkozy ofFrance, who established a com-mission in 2008 to address the is-sue that was co-led by the NobelPrize-winning economist JosephE Stiglitz; the Columbia economistJeffrey D Sachs; the British primeminister, David Cameron; and thetrail-blazing people of Bhutan,who since 1972 have set a goal ofraising their gross national hap-piness.
Dr. Graham admits that it’s a chal-lenge to set criteria for measuringhappiness. However, in a conver-
The pursuit ofh a p p i n e s s
Aliran Monthly : Vol.31(9) Page 16
sation, she told me she did not seeit as an insurmountable one: “Itdoesn’t have to be perfect; after all,it took us decades to agree uponwhat to include in GDP and it isstill far from a perfect metric.”
But for Americans, beyond choos-ing the right goals, there remainsthe issue of being No. 1. Many ofus have lived our lives in a coun-try that has thought itself theworld’s most powerful and suc-cessful. But with the United Stateseconomy in a frustrating stall asChina rises, it seems that periodis coming to an end. We are suf-fering a national identity crisis,and politicians are competingwith one another to win favour byassuring a return to old familiarways.
This approach, too, is problematic.We, as a developed nation, areunlikely to grow at the rapid paceof emerging powers (the UnitedStates is currently ranked 127thin real GDP growth rate). Europeand Japan, too, are grappling withthe realities of being maturing so-cieties.
But maturing societies can offermany benefits to their citizens thatare unavailable to most in the rap-idly growing world — the prod-ucts of rich educational and cul-tural resources, capable institu-tions, stability and prosperity.
As a consequence, countries thatat different times in history wereamong the world’s great powers,such as Sweden, the Netherlands,France, Britain and Germany,have gradually shifted theirsights, either in the wake of defeator after protracted periods of grap-
pling with decline, from winningthe great power sweepstakes totopping list of nations offering thebest quality of life.
When Newsweek ranked the“world’s best countries” based onmeasures of health, educationand politics, the United Statesranked 11th. In the 2011 Qualityof Life Index by Nation Ranking,the United States was 31st. Simi-larly, in recent rankings of theworld’s most liveable cities, theEconomist Intelligence Unit hasthe top American entry at No. 29,Mercer’s Quality of Living Surveyhas the first United States entry atNo. 31 and Monocle magazineshowed only three United Statescities in the top 25.
On each of these lists, the top per-formers were heavily concen-trated in Northern Europe, Aus-tralia and Canada with strongshowings in East Asian countriesfrom Japan to Singapore. It is noaccident that there is a heavy over-lap between the top performingcountries and those that also out-perform the United States in termsof educational performance —acknowledging, of course, themistake it would be tooveremphasise any one factor incontributing to something as com-plex as overall quality of life.Nearly all the world’s quality-of-life leaders are also countries thatspend more on infrastructure thanthe United States does. In addi-tion, almost all are more environ-mentally conscious and offer morecomprehensive social safety netsand national health care to theircitizens.That virtually all of the top per-formers place a much greater em-phasis on government’s role in en-suring social well-being is also
David J Rothkopf is theDavid J Rothkopf is theDavid J Rothkopf is theDavid J Rothkopf is theDavid J Rothkopf is theauthor of the forthcomingauthor of the forthcomingauthor of the forthcomingauthor of the forthcomingauthor of the forthcoming“Power, Inc.: The Epic Ri-“Power, Inc.: The Epic Ri-“Power, Inc.: The Epic Ri-“Power, Inc.: The Epic Ri-“Power, Inc.: The Epic Ri-valry Between Big Busi-valry Between Big Busi-valry Between Big Busi-valry Between Big Busi-valry Between Big Busi-ness and Government —ness and Government —ness and Government —ness and Government —ness and Government —and the Reckoning thatand the Reckoning thatand the Reckoning thatand the Reckoning thatand the Reckoning thatLies Ahead.”Lies Ahead.”Lies Ahead.”Lies Ahead.”Lies Ahead.”
Source: The New YorkSource: The New YorkSource: The New YorkSource: The New YorkSource: The New YorkTimes: 9 October 2011Times: 9 October 2011Times: 9 October 2011Times: 9 October 2011Times: 9 October 2011
undeniable. But the politics ofsuch distinctions aside, the focusof those governments on socialoutcomes — on policies that en-hance contentment and securityas well as enriching both humancapabilities and opportunities —may be seen as yet another sign ofmaturity.
It is also worth noting that pro-viding the basics to ensure a highquality of life is not a formula forexcess or the kind of economiccalamities befalling parts of Eu-rope today. For example, many ofthe countries that top quality-of-life lists, like Sweden, Luxem-bourg, Denmark, the Netherlandsand Norway, all rank high in listsof fiscally responsible nations —well ahead of the United States,which ranks 28th on the Sover-eign Fiscal Responsibility Index.
What these societies have in com-mon is that rather than striving tobe the biggest they instead aspireto be constantly better. Which, inthe end, offers an important anti-dote to both the rhetoric of declineand mindless boosterism: the rec-ognition that whether we are fall-ing behind or achieving newheights is greatly determined bothby what goals we set and how wemeasure our performance.
Quality of life
q
Aliran Monthly : Vol.31(9) Page 17
Double standards in Australia-Double standards in Australia-Double standards in Australia-Double standards in Australia-Double standards in Australia-Malaysia refugee swap dealMalaysia refugee swap dealMalaysia refugee swap dealMalaysia refugee swap dealMalaysia refugee swap deal
liran is dismayed thatthe most fundamentalrequirements of refugeeprotection, especially the
basic human rights of all refugees,is not covered by the Australia-Malaysia asylum seekers-for-refu-gees swap deal signed on 25 July2011 – notwithstanding that Ma-laysia is not a state party to the1951 Refugees Convention.
Malaysia has not guaranteed hu-man rights protection for either itsown citizens, legitimate asylumseekers, refugees or any other mi-grants in this country, as recentevents here have revealed. Issuesrelating to refugee and humanrights protection currently seem tobe confined to policy and theterms of the agreement betweenboth governments, with the nec-essary involvement of the UnitedNations High Commissioner forRefugees and the InternationalOrganisation for Migration (IOM)The provisions of this particularrefugee swap agreement do notapply to the thousands of asylumseekers and refugees currently inMalaysia.
Detailed information regardingthis agreement has been morewidely accessible to the public inAustralia and other countries. Butthere has been limited disclosureof such information to the Malay-
REFUGEE RIGHTS
sian public in the local main-stream media. This points to thefact that there is virtually no trans-parency by the Malaysian govern-ment over issues of grave publicconcern.
Partial accounts of governmentdealings usually highlightclaimed advantages but fre-quently the disadvantages of suchdeals are not publicised. In thiscase, Malaysia stands to receiveUS$316m for taking in 800 asy-lum seekers from Australia in ex-change for allowing 4000UNHCR-confirmed refugees to beresettled in Australia over fouryears.
Australian government sponsor-ship of asylum seekers “exported”to Malaysia raises the fear ofdouble standards applied to asy-lum seekers and refugees. It hasbeen brought to our notice that the800 asylum seekers coming fromAustralia will be given preferen-tial treatment, affording them pro-tection from arrest, detention andother human rights violations ex-perienced by those deemed “ille-gal immigrants” under the Immi-gration Act 1959.
In contrast, asylum seekers andrefugees currently in Malaysia orwho arrive from elsewhere willnot be afforded such privileged
protection, as they are not coveredby this agreement. This doublestandard is discriminatory andwill potentially serve to furtherdivide refugee communities inMalaysia. Such discrimination isa blatant violation of human andrefugee rights under which equaltreatment is requisite under inter-national human rights and refu-gee law.
From Australian ImmigrationMinister Chris Bowen’s speech atthe Refugee Conference in theUNSW, Australia, in June, the ob-vious aim of this scheme is to out-source Australia’s Refugee Con-vention obligations to countrieswith large refugee inflows thathave no treaty obligations to refu-gees.
Paradoxically, it should be Refu-gee Convention countries likeAustralia, New Zealand andlately Nauru, with the capacityand potential to carry out refugeestatus determination and resettle-ment procedures, that should besetting an example in upholdingrefugee rights. These countriesshould be assisting the UNHCRin Malaysia, Thailand and Indo-nesia to reduce their backlog ofcases awaiting status determina-tion and to register the thousandsof asylum seekers awaitingUNHCR registration in these
AAAAA
Aliran Monthly : Vol.31(9) Page 18
countries.
Malaysia has been tussling withthe problem of refugees since the1970s but has produced no prac-ticable, workable solution ororganised system to deal with thisinflux. This fact should have beensignificant to the Australian Gov-ernment before it rushed into thisdeal.
But apart from sporadic efforts bythe Malaysian Home Affairs andimmigration authorities, there hasbeen no substantial move to set upa government-supported processfor asylum seekers and refugeesin Malaysia. Instead, Malaysiahas frequently engaged in launch-ing crackdowns deploying secu-rity enforcers like Rela, immigra-tion enforcement units, the policeand even municipal council en-forcers to arrest, detain and obvi-ously ‘punish’ undocumentedmigrants regardless of their rea-sons for being in the country. Theglaring result of these actions isthe widespread human rights vio-lations that have become commonknowledge nationally and inter-nationally.
Setting up a two-tiered system,where a small number of poten-tial refugees will benefit from anAustralian-type support systemfunded by the Australian govern-ment, leaving the majority of asy-lum seekers and refugees cur-rently in Malaysia without anysupport system besides a very lim-ited one provided by Malaysiancivil society organisations (CSOs)and the UN Refugee Agency, iscertainly not the solution to therefugee or human smuggling andtrafficking problems in the region.We are aware that the first ‘lot’ ofasylum seekers reaching Austra-
lian waters in the past few dayswill imminently be sent to Malay-sia.
Aliran notes that eight immigra-tion officers who were detainedunder the Internal Security Act(ISA) for involvement in humantrafficking activities last Octoberhave been released without beingbrought to trial. HishammuddinHussein, the Minister of HomeAffairs, did not see fit to try themin a court of law. The decision torelease the officers was made af-ter they admitted to their wrong-doing and promised not to repeatthe offence, he was reported assaying by the official Bernamanews agency. The officers weresaid to have assisted authoritiesin subsequent human traffickingcases.
Opposition parties have ques-tioned this move and called for theofficers to be brought to trial. Thedecision to prosecute allegedcrimes seems to hinge on a dealcut by the Home Affairs Ministrywith the alleged offenders. Noguarantees are given that justicewill be done or be seen to be done.
Aliran joins the call to bring theeight immigration officers accusedof human trafficking to trial, if theMalaysian government seriouslyintends to curb human traffick-ing/people smuggling in thecountry.
Aliran welcomes the UNHCR’sstatement that the UN RefugeeAgency is not signatory to thisrefugee swap deal although act-ing as the principal consultant in
the arrangement But we hope theUN Refugee Agency will continueto insist on prioritising humanrights and refugee protection andmake ratification of the 1951 Refu-gee Convention and the 1967 Pro-tocol a pre-requisite for any kindof government bilateral agreementdealing with asylum seekers andrefugees.
We also hope that the UN Refu-gee Agency sees the need toemphasise the respect and exer-cise of basic human rights in moni-toring the implementation of refu-gee protection according to Refu-gee Convention provisions.
Aliran also notes whilst it has nec-essarily involved the UNHCR andother international organisationsconcerned with refugees in arrang-ing the bilateral refugee swap dealwith Australia, the Malaysian gov-ernment has not given any assur-ances or pledges that it will rem-edy widespread human rights vio-lations in the country.
The Malaysian government is ap-parently treating this arrangementas a one-off, despite the fact thatthere is a possibility of it becom-ing permanent. There has alsobeen no pledge to ratify the 1951Refugee Convention, although thegovernment seeks to reap the ben-efits of this agreement.
Aliran strongly urges the Malay-sian government to ratify the 1951Refugee Convention and the re-maining international humanrights conventions before furtherimplementation of its controver-sial refugee swap deal with Aus-tralia.
Aliran Executive Committee5 August 2011
G o v e r n m e n ttrivialises human
t r a f f i c k i n g
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Aliran Monthly : Vol.31(9) Page 19
More than once my Case Officers asked me, apro-pos of nothing in particular, if I knew the location ofthe centre where I was being held. I said I did not. Infact the location of this place, known as the HoldingCentre, was a jealously-guarded secret.… The secu-rity of the place itself, especially of the inmates,should not be known to anyone, even to those work-ing in the Police Force — in fact, to no one, that is,other than the Special Branch officers assigned di-rectly to such duties. (p. 75)
They said, ‘Datuk Raja Abu Hanifah and Ishak HajiMohamed have confessed. So why should you notdo so?’ I was not deterred nor deluded by this line ofapproach. Had they not begun to realize even yetthat the answers I had given to their questions werehonest? Did they really expect me to break downand tell some other story that would fit in with theconfessions? As far as I was concerned, how did Iknow whether this statement about the confessionswas fiction or fact? If it was fiction, they must thinkme a fool indeed. If it was fact, then what did it mat-ter? My story was mine; their stories were theirs. Atthis point we reached a stalemate. (pp. 105—6)
‘None of you’, said I, ‘should appoint yourself a
ISA
Memories Of ISA by former detainees
Abdul Aziz IshakAbdul Aziz IshakAbdul Aziz IshakAbdul Aziz IshakAbdul Aziz IshakSpecial Guest:The Detention inMalaysia of anEx-Cabinet MinisterSingapore, OxfordUniversity Press,1 9 7 7
judge of what we are alleged to have committed.Only God has the full facts of the case, not even theSpecial Branch; and the Special Branch is not freefrom making mistakes.’ (p. 76)
After his arrest until his Order of Detention is madeout, a detainee is completely under the authority ofthe Special Branch, and strictly so, with ‘no politi-cal interference by anyone’…. But this rigid proce-dure can be tampered with even before the SpecialBranch has enough evidence to recommend that aperson should be picked up. In fact, it can occurfrom above. Those at the top can ask the SpecialBranch to devise a plan to detain so-and-so. Thiscan happen even in a Government that claims topractise democracy’ (pp. 111-112)
Thousands of people have fallen victims to the ISAsince it was introduced in 1960. My experience un-der this act is little, compared to what has been ex-perienced by many others. There were those whowere detained for more than fifteen years; and therewere also those who were forced to take their livesbecause they could not bear the sufferings any more.… Experience has shown that it is so easy for peo-ple to be branded, accused, detained and tortured,until they are forced to confess to what they nevereven did. (p.vi)
‘You know. I can force you to crawl and lick thefloor,’ he shouted. I continued to remain silent. Goto hell with him! If they refused to believe me andwanted to torture me, let them. God would repaythem for all they did.
‘You must talk. Otherwise, I will beat you up,’ say-ing that, he walked out.
His friend was still there, sitting. He asked me to sit.He spoke to me in a soft and civilised way. He askedme to give my cooperation. He began to relate a fewincidents when we were in school together in BatuPahat. So, he was playing the ‘good guy’ role, com-pared to the ‘bad guy’ just now. (p.107)
I did a lot of free exercise in the room, any time I feltlike doing so. One day, I saw a picture of the Minis-ter of Home Affairs in the newspaper that they usedto wrap my food. I took the paper and for three orfour days I exercised by jumping repeatedly on it,until the picture was tattered. I only wanted to re-lease my tension. (p. 114)
I wanted to cry but my tears wouldn’t flow. The faceof my youngest son, Ahmad Shauqi, nine years ofage then and in Standard 3, floated before my eyes.He was the child to whom I was closest. I thought,he surely wouldn’t understand why his father wasarrested. My two other sons were in Form 3. Thesecond had gone ‘express’ two or three years ear-lier; hence both were placed in the same class. Myheart was filled with worries over their education.
But in my present condition I couldn’t do anythingat all. No one could fault me or my sons if their edu-cation declined. (p. 26, translated)
As I have said, the ‘turning over’ techniques go be-yond moral considerations: whether they are law-ful is a question that never arises. Hence even yourfamily can sometimes be a space that will be tres-passed. You are brought to meet with your wife orfamily at a certain hour but your wife or family aretold to come at another time, an hour later, or theymay not have been told to come at all. When youcome and you wait and your family do not showup, you feel dejected, maybe even angry. Then theywill say to you that your family or your wife are notconcerned with you anymore, and they will insti-gate you to divorce your wife. Or your wife may bevisited by a police officer for the purpose of winningher over and persuading her to divorce you. (p. 35,translated)
That night I was interrogated till the next morn-ing by a new team of interrogators whom I’d metthe evening before. They took turns, two or threeof them every two hours. I was made to sit on around stool with no back. Compared to the firstteam, this team was extremely rough. Theyspewed obsenities, screamed at me, cursed,scolded, insulted and humiliated me all throughthe night. (p. 49, translated)
Breakfast consisted of one small green banana(pisang embun), one slice of plain bread and a
James Wong KimJames Wong KimJames Wong KimJames Wong KimJames Wong KimMinMinMinMinMinThe Price of LoyaltySingapore, SummerTimes Publishing,1 9 8 3
What A Feast!
Aliran Monthly : Vol.31(9) Page 21
glass of watery black coffee. Lunch came in theform of a newspaper-wrapped packet contain-ing, in a plastic sheet, some white rice, a spoon-ful or two of curry gravy and, on top of the rice,two small fried ‘ikan curot’, a fish about thesize of my index finger. That was all. Dinnerwas virtually the same, except that in place ofikan curot sometimes there would be a thumb-sized piece of salt fish with some vegetablescraps such as traces of pumpkin. (p. 41)
‘Dato, as you know we are only police officersdoing our job. We’ll report everything you saidbut frankly we still have no idea why you werearrested. We simply cannot see any reason foryour arrest but it is not for us to say whether ornot you will be served with a detention order.That is up to our superiors and the Ministerconcerned.’ (p. 47)
I have already referred several times to thefalsity of the accusations against me. Duringmy time in detention I made frequent repre-sentations, directly and through my lawyers,to the government protesting that I had beenwrongfully accused; but to no avail…. A hor-rifying aspect of detention without trial inthe Malaysian manner is that the detainee isconsidered guilty from the start. The old andhonourable maxim that a person accused ofa crime is innocent until proven guilty meansnothing. From the moment I was arrestedsome officials seemed delighted to regard meas guilty. (p. 76)
Why should I, a former parliamentarian andofficial Leader of the Opposition in Parliament,and one of the founders of Malaysia, be treatedworse than a common criminal, kept in solitaryconfinement, without exercise, on a starvationdiet, sleeping on a cold, concrete bed, with onethin blanket, no pillow, no sleeping mat, letalone mattress, no mosquito net for what turnedout to be sixty-six days and nights? (p. 52)
The first thing that struck me on entering the cellwas the suffocating confinement of the walls. Thebiggest window to the beyond was a hatch on thedark green heavy door. This hatch was scarcely largeenough for a fist and a mug. It faced the cell oppo-site. There was not much to see as all the hatcheswere kept tightly shut at all times...
A concrete platform protruded from the wall oppo-site the door. With a thin slab of plywood atop, thiswas the bed which was big enough for a six footer.Contiguous with this, on the same side of the wallwas my “attached bathroom”, all three-and-a-halfby three of it. It was wholly dominated by a squat-toilet and a tap...
In this claustrophobic space I was to spend sixtyone days of solitary confinement. (p. 21)
Early on during the second week or so, I was askedif I would like to do an interview on TV. I said, ‘Whynot, if I can say whatever I want to say?’ I was givena piece of paper and I wrote, among other things,that I was more convinced than ever the ISA is amost iniquitous law if it can be used against inno-cent people like me; that I was relieved that theUMNO rally had been cancelled. My IOs took onelook at it and said they would show it to their supe-riors. I did not hear anymore about television inter-views after that. (p. 39)
‘Why don’t you join the Barisan Nasional (the rul-
See No Evil, Hear No Evil,Do What Yo u ’ r e Told
Guilty From The Start
Opposition Worse Than Criminals
Kua Kia SoongKua Kia SoongKua Kia SoongKua Kia SoongKua Kia Soong445 Days Behind TheWire: An Account OfThe Oct 1987 ISADetentionsKuala Lumpur,Selangor ChineseAssembly Hall,Resource and Re-search Centre, 1989
Hell Of A Cell
Going On The Air
Why D o n ’ t We All JoinBarisan Nasional?
Aliran Monthly : Vol.31(9) Page 22
ing coalition)?’ was a constant refrain and offer thatwas put to me during the interrogations…. ‘Don’tyou know you have been used? We’ve got statementsfrom one of your leaders (also under detention atthe time) to show that he has used you all along!’
This sort of bluff was a tactic they used quite often. Ireplied by saying how thin the government’s propa-ganda was whenever they said that people had beenused: ‘When rubber tappers or others in the poorerclasses are unhappy, you accuse them of being usedby others; now even an academician with a PhDhas been used like a puppet!’ (p. 41)
Special Branch officers are trained as professionalsto strike at detainees with lightning, to demoralisethem and to extract as much information as possi-ble in the shortest time, so that more arrests, particu-larly of underground activists, can be made. Withdetermined, non-violent and non-subversive detain-ees, their previous methods are out of date. Never-theless, detainees are at their mercy. They use what-ever method to break those detainees provided theycan get away with it. As a result, some detaineessustain permanent damage in one way or another.(p. 64)
Whenever newspapers, journals or television carryunfavourable or distorted news or lies against them,detainees may feel outraged. It is like adding insultto injury. The callousness of the Home Minister andhis deputy is evident; they take especial pleasure indoing it. From time to time, detainees would sendletters, telegrams or ask their legal advisers to seek
redress. (p. 110)
Under sustained duress, detainees can behave inunusual manners. The pressure of a caged personin addition to temporary or permanent damage sus-tained during the first 60 days can affect detainees’behaviour. Therefore, we have to give allowances tofellow detainees. Tempers would flare and suspi-cion of certain members would arise. Friction wouldoccur with or without conflicts of ideology and per-sonality. (p.116)
Dr Tan Seng GiawDr Tan Seng GiawDr Tan Seng GiawDr Tan Seng GiawDr Tan Seng GiawThe First 60 Days:The 27 October ISAArrestsPetaling Jaya,Democratic ActionParty, 1989
Lightning Force
D o n ’ t B e l i e ve The News
And We’re Al l Human Beings
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Aliran Monthly : Vol.31(9) Page 24
A. The Australian proceedingsA. The Australian proceedingsA. The Australian proceedingsA. The Australian proceedingsA. The Australian proceedings
The recent decision of the highestcourt in Australia, its High Court,which received tremendousworldwide publicity, substan-tially damaged Malaysia’s inter-national standing, particularly inthe way it treats refugees and asy-lum-seekers. Malaysia’s refusalto ratify the 1951 Geneva Conven-tion on Refugees cost us dearly inthe litigation. It is thereforecritical that Malaysia imme-diately adopts the RefugeeConvention so that it meetsstandards acceptable underpublic international law.Further, Malaysia must ur-gently enact laws to protectrefugees and asylum-seek-ers, and give them properstatus in our domestic law.This article considers theAustralian decision, andhow a similar case wouldhave been treated by ourCourts under our laws.
In Plaintiff M70/2011 andPlaintiff M106/2011 v. Min-ister for Immigration and theCommonwealth of Australia,the High Court of Austalia,by a 6-1 majority, declared
that Malaysia could not qualify asa “specified country” within themeaning of Section 198A of the Mi-gration Act, 1958 of Australia forthe purposes of receiving refu-gees, and granted an injunctionrestraining the defendants fromtaking the plaintiffs to Malaysia.The plaintiffs are citizens of Af-ghanistan and arrived by boat atthe Australian territory of Christ-mas Island on 4 August 2011.
They had travelled through Paki-stan, Dubai, Thailand, Malaysiaand Indonesia. Both plaintiffs areShia Muslims. Both claim to havea well-founded fear of persecutionin Afghanistan on grounds thatwould, if established, make them“refugees” to whom Australiaowes protection obligations underthe Convention relating to the Sta-tus of Refugees done at Geneva on28 July 1951 (“the Refugees Con-
vention”). Lacking visas,both are “unlawful non-citi-zens” and “offshore entrypersons” within the mean-ing of the Migration Act.Both were detained uponarrival at Christmas Island.
Both plaintiffs are subject toa new administrative re-gime, established by theAustralian Government, forthe transfer to Malaysia ofup to 800 asylum seekers ir-regularly arriving in Aus-tralia by sea after 25 July2011. The regime was setup pursuant to an Arrange-ment between the Govern-ments of Australia and Ma-laysia entered into on 25July 2011 (“the Arrange-ment”). On 7 August 2011,
INTERNATIONAL
Malaysia’s reputation tarnishedMalaysia’s reputation tarnishedMalaysia’s reputation tarnishedMalaysia’s reputation tarnishedMalaysia’s reputation tarnishedin Australian courtin Australian courtin Australian courtin Australian courtin Australian courtThe merits of such an action over the refugee swap dealwould never have been determined by our courts
by Tommy Thomas
Aliran Monthly : Vol.31(9) Page 25
an officer of the Department of Im-migration determined that Plain-tiff M70 was liable for removalfrom Australia, and should betaken to Malaysia under the Ar-rangement. In respect of PlaintiffM106, the only impediment to hisremoval was the establishment inMalaysia of relevant support ser-vices for unaccompanied minors(he being 16 years old). Neitherplaintiff wished to go to Malaysiavoluntarily.
The critical provision in the Mi-gration Act, 1958 is Section 198A,the material parts of which read:-“Migration Act, 1958Migration Act, 1958Migration Act, 1958Migration Act, 1958Migration Act, 1958Section 198A“(1) An officer may take an offshore
entry person from Australia to acountry in respect of which a dec-laration is in force under subsec-tion (3);
(3) The Minister may:(a) declare in writing that a
specified country:(i) provides access, for persons
seeking asylum, to effectiveprocedures for assessingtheir need for protection; and
(ii) provides protection for per-sons seeking asylum, pend-ing determination of theirrefugee status; and
(iii) provides protection to per-sons who are given refugeestatus, pending their volun-tary repatriation to theircountry of origin or resettle-ment in another country,and
(iv) meets relevant humanrights standards in provid-ing that protection;.”
At the same time as the arrange-ment was entered into betweenthe two countries, that is, on 25July 2011, a declaration of Malay-sia as a “specified country” wasmade by the Minister of Immigra-
tion purportedly acting underSection 198A (3).
The plaintiffs commenced theseproceedings on 7 August 2011.On 8 August 2011, a single judgeof the High Court (Justice Hayne)made an interlocutory order re-straining the Minister from re-moving the plaintiffs from Austra-lia pending the disposal by theFull Court of their case. The casewas heard by the full bench of theHigh Court on 17 August. Judg-ment was delivered on 31 August2011. The grounds running to 96pages are posted at http://www.austlii.edu.au/au/cases/cth/HCA/2011/32.html.
Among the materials consideredby the Minister before he declaredthat in his judgment Malaysia sat-isfied the four criteria under Sec-tion 193A(3) was an assessmentprovided by the Australian De-
Aliran Monthly : Vol.31(9) Page 26
partment of Foreign Affairs andTrade (“DFAT”). The DFAT As-sessment made the following ninesalient points:-
• Malaysia is not a party to theRefugee Convention and doesnot itself grant refugee statusor asylum or have in place le-gal protections for personsseeking asylum.
• Malaysian authorities never-theless “generally cooperatewith the United Nations HighCommissioner for Refugees(“UNHCR”)”
• There are, according to theUNHCR, “credible indicationsthat forcible deportations ofasylum seekers and refugeeshad ceased in mid-2009.”
• A number of “fundamentalliberties” are contained in theMalaysian Federal Constitu-tion, and the Malaysian Hu-man Rights Commission is ac-tive in fulfilling its mandatewith respect to those rights, in-cluding inquiries about com-plaints.
• Illegal immigrants in Malaysiaare liable to imprisonmentand/or a fine and caning of notmore than six strokes.
• Access to health care is pro-vided to refugees with cardsissued by the UNHCR at a dis-counted rate available to for-eigners. However, the costs aregenerally beyond the means ofrefugees.
• Lack of official status has im-peded access by refugees tosustainable livelihoods or for-mal education.
• Credible allegations have beenmade regarding inadequatestandards in immigration de-tention centres.
• Malaysia is not a party to theInternational Covenant on
Civil and Political Rights orthe International Covenant onEconomic, Social and CulturalRights. It is a party to the Con-vention on the Elimination ofAll Forms of DiscriminationAgainst Women, the Conven-tion on the Rights of Personswith Disabilities and the Con-vention on the Rights of theChild.
In these circumstances, it comesas a surprise that the AustralianMinister took the position that theconditions enumerated in Section198A (3) were satisfied. The HighCourt took a contrary view. A re-view of the majority judgmentswill indicate that the Court de-cided that Malaysia cannot be a“specified country” within themeaning of Section 198A of the Mi-gration Act, 1958 for the follow-ing three principal reasons:• Malaysia does not recognise
the status of refugees under itsdomestic law. The Immigra-tion Act, 1959 of Malaysia doesnot afford any protection torefugees and asylum-seekers;
• the Plaintiffs are not protectedfrom prosecution in Malaysiafor their prior illegal entry intoand exit from Malaysia; and
• Malaysia is not a safe thirdcountry to provide protection,under the law, to refugees andasylum-seekers.
The concluding paragraphs of thejudgment of Chief Justice Frenchare instructive:
“The criteria for a declaration setout in s 198A(3)(a) are not limitedto those things necessary tocharacterise the declared countryas a safe third country. They arestatutory criteria, albeit informedby the core obligation of non-
refoulement which is a key protec-tion assumed by Australia underthe Refugee Convention. Attentionmust be directed to the statutory lan-guage. The questions the Ministermust ask himself, about whether therelevant ‘access’ and ‘protection’ areprovided and “human rights stan-dards” are met, are questions whichcannot be answered without referenceto the domestic laws of the specifiedcountry, including its Constitutionand statute laws, and the interna-tional legal obligations to which ithas bound itself. The use of theterms “provides access … to effec-tive procedures”, “protection” and“relevant human rights stan-dards” are all indicative of endur-ing legal frameworks. Having re-gard to the Minister’s concessionand what appears, in any event,from the submissions upon whichthe Minister acted and his affida-vit, it is clear that he did not lookto, and did not find, any basis forhis declaration in Malaysia’s in-ternational obligations or relevantdomestic laws. There is no indica-tion that the apparent legal fragilityof the exemption order under the Ma-laysian Immigration Act and the as-sociated risks to transferees weredrawn to his attention. Important el-ements of his decision were thenon-binding Arrangement, con-versations he had undertakenwith his ministerial counterpartin Malaysia, and observations byDFAT about contemporary prac-tices with respect to asylum seek-ers in that country.
An affirmative answer to the ques-tions posed by the criteria in s198A(3)(a), reached by referenceonly to the specified country’slaws and international obliga-tions, is not the end of the neces-sary ministerial inquiry. Consti-tutional guarantees, protective do-
Aliran Monthly : Vol.31(9) Page 27
mestic laws and international obliga-tions are not always reflected in thepractice of states. There are examplesaround the world of governmentswhose implementation of humanrights standards fall short of the au-thoritative legal texts, be they consti-tutional or statutory, or embedded intreaties and conventions which, on theface of it, bind them. The existenceof a relevant legal frameworkwhich on paper would answer thecriteria in s 198A(3) cannot there-fore always be taken as a sufficientcondition for the making of a dec-laration. The Minister must askhimself the questions required bythe criteria on the assumption thatthe terms “provide” and “meet”require consideration of the extentto which the specified country ad-heres to those of its internationalobligations, constitutional guar-antees and domestic statuteswhich are relevant to the criteria.
The ministerial declaration of 25July 2011 was affected by jurisdic-tional error. It was not a declara-tion authorised by s 198A of theMigration Act. The plaintiffs can-not therefore be taken to Malaysiapursuant to the power conferred”(my emphasis)
Likewise, this paragraph from theJoint Judgment of JusticesGummow, Hayne, Heydon,Crennan and Bell:-
“As already explained, the refer-ences in s 198A(3)(a) to a countrythat provides access and providesprotection are to be construed asreferences to provision of accessor protection in accordance withan obligation to do so. Where, asin the present case, it is agreed thatMalaysia: first, does not recognise
the status of refugee in its domesticlaw and does not undertake any ac-tivities related to the reception, regis-tration, documentation and status de-termination of asylum seekers andrefugees; second, is not party to theRefugees Convention or the RefugeesProtocol; and, third, has made no le-gally binding arrangement with Aus-tralia obliging it to accord the protec-tions required by those instruments;it was not open to the Minister toconclude that Malaysia providesthe access or protections referredto in s 198A(3)(a)(i)to(iii)
…………………………………………………………..The Jurisdictional facts necessaryto making a valid declaration un-der s 198A(3)(a) were not andcould not be established.
The Minister’s declaration wasmade beyond power. “(my emphasis)
Numerous other passages in themajority judgments are also notflattering to Malaysia. There is nodoubt that the lack of any recog-nition or protection under thelaws of Malaysia to refugees andasylum-seekers was the funda-mental cause for the High Court’sdecision. The image of Malaysiaas a decent, law abiding memberof the world community and of theCommonwealth has received amassive battering by reason of thisdecision. Our image must be im-mediately repaired, and that canonly occur if concrete legislativeand executive measures arequickly taken. Anyway this is theright thing to do.
B.B.B.B.B. Parallel proceedings in Ma-Parallel proceedings in Ma-Parallel proceedings in Ma-Parallel proceedings in Ma-Parallel proceedings in Ma-laysia(?)laysia(?)laysia(?)laysia(?)laysia(?)
What would have happened if thesame two plaintiffs (or other refu-
gees in a similar position) hadfiled legal proceedings in thecourts of Malaysia seeking a dec-laration that the government ofMalaysia cannot lawfully let theminto Malaysia and an injunctionrestraining the government frompermitting them to enter Malay-sia. There are no legal or factualimpediments to the courts of Ma-laysia possessing the necessaryjurisdiction to determine such asuit. In other words, the courts ofboth countries have jurisdiction todetermine the matter. In some re-spects, the dispute represents twosides of a coin.
It would be apparent to a Malay-sian lawyer that the Australianaction is founded in that branchof public law previously knownas administrative law, but nowfashionably described as judicialreview. Because the AustralianConstitution is not supreme, noconstitutional issues were dis-cussed in the judgment of theHigh Court. If this dispute hadbeen filed in our Courts, on theother hand, additional over-riding claims could have been re-lied upon by the Plaintiffs,namely, that their “life” and “per-sonal liberty” would be violatedin breach of those fundamentalliberties enshrined in Article 5(1)of our Federal Constitution or notbeing treated equally under Ar-ticle 8(1). Thus, they would theo-retically enjoy constitutional pro-tection in Malaysia.
Having regard to actual submis-sions made in court in recent timesby the Attorney-General on behalfof the Malaysian government injudicial review matters, whichsubmissions have invariably beenaccepted by our courts in whatare deemed politically sensitive
Aliran Monthly : Vol.31(9) Page 28
cases similar to our hypotheticalcase brought by the refugees, thecase for the refugees would fail inMalaysia for any one of these tech-nical or procedural reasons:-
• “locus standi” of the plaintiffs;• leave will not be given if the
matter is filed as a judicial re-view application under Order53 of the Rules of the HighCourt, 1980; or
• conversely, if the action is in-stituted as a writ of summonsunder general law, it would bestruck out on a summary ap-plication as substantially be-ing a public law matter whichcan only be filed under Order5 3 .
Insofar as substantive law is con-cerned, one can expect our courtsto readily accept a submission thatClause 16 of the Arrangement be-tween the two countries whichreads:-
“This Arrangement represents arecord of the Participant’s inten-tions and political commitmentsbut is not legally binding on theParticipants”.
mean that the arrangement createsno legal obligation on the Govern-ment of Malaysia: hence, the gov-ernment is under no duty to doanything, and cannot be sued onit. Further, it would be success-fully argued that the plaintiffscannot sue on an arrangement towhich they were not a party to.Finally, no injunction would lieagainst the government by reasonof Section 29 of the GovernmentProceedings Act, 1955. If theplaintiff couched their relief interms of an Order for Prohibitionin a judicial review application,that too would be refused.
In other words, the merits of suchan action would never have beendetermined by our courts. Hence,the ultra vires rule in administra-tive law, which is the foundationof the High Court’s decision inAustralia (although described indifferent language), and the PartII fundamental liberties under ourConstitution would never be trig-gered in the hypothetical Malay-sian case. The abject failure of ourcourts to stand as the arbiter be-tween the all-powerful State anda meek individual or anuninfluential organisation hasresulted in its abysmal reputationin the common law world. What-ever international reputationjudges like Eusoffe Abdoolcader,Suffian and Harun Hashimbrought to our Judiciary in the1970s and 1980s altogether van-ished after the judicial crisis of1988.
By contrast, the instant decisionof the High Court of Australia isyet another demonstration of itsstanding as one of the four great-est Courts in the Commonwealth,
along with the Supreme Courts ofUnited Kingdom, India andCanada. They have achieved theirunparalleled reputation in thecommon law world because of theconsistently high standards oftheir judges, both in the conclu-sions they have reached (regard-less of the identity or status of theparties in front of them) and theprocess of their reasoning. Whenthe facts and the law warrantsuch a conclusion, judges in thesecourts have not acted in a defer-ential manner to the executive andhave often found against it.
The only true measure of a judge’sgreatness is his written judgment.That is how a judge is judged, bothcontemporaneously and by pos-terity. Lords Atkin, Reid, Denningand Wilberforce of the UnitedKingdom, Justices Bora Laskinand Brian Dickson of Canada,Justices Owen Dixon and An-thony Mason of Australia and Jus-tices Gajendragadkar andPatanjali Shastri of India arehailed as giants because of theirjudgments. Infallible, they were
Boat peopleBoat peopleBoat peopleBoat peopleBoat people
Aliran Monthly : Vol.31(9) Page 29
not; perfect, they were not; but theyare all well respected and re-nowned for what they have leftbehind through their decisions.The Bar looks forward to the lead-ership of incoming Chief JusticeArifin Zakaria to impress upon thejudges of the higher judiciary theimportance of writing sound judg-ments which will assist the coher-ent and principled developmentof our laws, thereby enhancing thereputation of our Courts.
Cases like Subramanian Subakaranv PP [2007] 1 CLJ 470 and TunNaing Oo v PP [2009] 6 CLJ 490demonstrate that refugees andasylum-seekers can be charged inour courts for entering and re-maining in Malaysia, contrary toSection 6(1)(c) of the ImmigrationAct, and can be punished by im-prisonment and whipping. Hun-dreds of such prosecutions musttake place annually; hardly, anyare reported or publicised. Theyall tell a sad tale. According tointernational surveys, Malaysiahas between 90000 and 170000refugees. They cannot be in a “le-gal black hole” reminiscent of thehundreds of alleged Taliban footsoldiers held by the Americans atGuantanamo Bay in Cuba so thatthey are put beyond the rule oflaw, beyond the protection of lawand courts, and absolutely at themercy of their captors: see the criti-cal expose of the US treatment ofdetainees in Guantanamo Bay byLord Steyn, retired judge of theHouse of Lords, in a 2003 lecture.
Hence refugees suffer the burdenof having to comply with our lawsby their sheer physical presencehere, but do not enjoy the protec-tion of such laws. So, for instance,can a refugee or an asylum-seekerdetained unlawfully in Malaysia
Tommy Thomas is aTommy Thomas is aTommy Thomas is aTommy Thomas is aTommy Thomas is aleading constitutionalleading constitutionalleading constitutionalleading constitutionalleading constitutionallawyer in Malaysia.lawyer in Malaysia.lawyer in Malaysia.lawyer in Malaysia.lawyer in Malaysia.
be entitled to habeas corpus?Surely, the answer must be in theaffirmative. But what is totallylacking and must be immediatelyaddressed by our executive andlegislature is the enactment of astatute by Parliament governingtheir rights:• to enter and remain in the
country;• to be gainfully employed so
that they contribute to thelabour force and earn a suffi-cient income, thereby not be-coming a burden to society;
• to free or cheap health care;• to marry and start a family;• to educate their children; and• other basic or fundamental
freedoms.
Because the entire process of re-settlement to a safe and acceptablethird country may take years, therefugees and asylum-seekers mustbe treated fairly and humanelywhile in Malaysia. It must alwaysbe remembered that they are flee-ing murder, persecution, disap-pearance, torture and other ter-rible injustices in their home coun-tries. Malaysia, has a duty underinternational law and commondecency, to house them in acivilised fashion, while they aretemporarily on our shores, pend-ing departure to safe havens else-where.
An important signal has beengiven by the Australian decisionto the people of Kuantan andPekan who are unhappy with theproposed installation of the Lynasplant in their neighbourhood.They should file proceedings inAustralia, if possible, by an actionthat goes directly to their HighCourt, as in the refugee case. Anargument that any export by Aus-tralia of toxin or other dangerous
matter that would endanger theenvironment of another country(Malaysia), and harm its peoplewould contravene the laws ofAustralia and public interna-tional law would probably be ac-cepted by the courts of Australia.At least, there would be confi-dence by all that such a disputewould be taken seriously by theircourts, and dealt with properlyand according to the law, regard-less of who the litigants are.
Let me conclude with an observa-tion on the commendable speedof the proceedings in the HighCourt of Australia, culminating inthe issuance of the grounds ofjudgment. The matter was filedin its original jurisdiction on 7August. An interlocutory injunc-tion was granted on 8 August.The hearing took place on 17 Au-gust, when judgment was re-served. On 31 August, judgmentwas delivered. Four separatejudgments were released, totaling96 pages. The three majority judg-ments were 32 pages, 27 pagesand 19 pages long. The dissentwas in 16 pages.
Apart from its length, the reason-ing was impeccable (although Ihave difficulty in understandingthe minority judgment of HeydonJ.), the language polished, and thetreatment of principles first rate. Ipay tribute to the masterly perfor-mance of the judges of the HighCourt of Australia. A proud dayindeed, for the common lawworld. q
Aliran Monthly : Vol.31(9) Page 30
he morning after. Thepro-government main-stream press splashedheadlines, news reports,
so-called “analyses” and photosthat essentially and predictablymocked, discredited anddemonised the leaders, support-
ers and participants of the Bersih2.0 rally in Kuala Lumpur on 9July.
For instance, the Sunday Star car-ried a front-page headline thatsaid: “Defiant”. The bold head-line accompanied a huge picture
of a face-off between the FederalReserve Unit and other police per-sonnel on the one hand and theprotesters on the other at the tem-porarily closed Puduraya bus ter-minal.
Why “defiant”? This is because
MEDIA
The elephant in the (news)roomThe elephant in the (news)roomThe elephant in the (news)roomThe elephant in the (news)roomThe elephant in the (news)roomFor the mainstream press to disregard the Bersih phenomenonis tantamount to their abandoning journalistic ethics and acommitment to truth and social responsibility
by Mustafa K Anuar
TTTTT
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Aliran Monthly : Vol.31(9) Page 31
gument through, the demonstra-tors “deserved” to be depicted as“troublemakers” (and possiblytreated, or rather mistreated, assuch).
In the absence of a vital reminderin the news coverage about thedemocratic right of ordinary Ma-laysians to exercise their freedomof assembly and expressionpeacefully as enshrined in theFederal Constitution, such a de-piction was aimed at gaining trac-
Bers ih’s aspirat ionsm a r g i n a l i s e d
New Sunday TimesNew Sunday TimesNew Sunday TimesNew Sunday TimesNew Sunday Times
the political backdrop that hadbeen played up and emphasisedby the powers-that-be and withthe help of their compliant main-stream media as well in the run-up to this event was that an “ille-gal” rally was being planned.
Surely, as this logic would insist,to go along with that “illegal”gathering, nay defying the restric-tion order and police warning,was an act of defiance of the high-est order on the part of the pro-testers.
If anything, if we follow this ar-
tion among the less politicallysavvy or simply naive Malay-sians.
It therefore “makes sense” forPrime Minister Najib Razak, whowas quoted all the way fromKuala Terengganu, where he wasattending a Bakti sports competi-tion on Saturday itself, to have ex-pressed his relief that the “illegal”rally “did not cause serious harmto people and property” (Head-lined on page 2, “PM glad no realharm caused”).
In other words, one would expectanarchy and vandalism at thevery least from people who seem-ingly had the penchant for break-ing laws — but, alas, the policewere able to arrest that chaoticeventuality.
On the same page as the PM’sstory, the “people’s paper” ran itseditorial, headlined “The game isover, time for everybody to moveon”, which borders on mischief.Surely participating in the rallyknowing fully well the possibil-ity of incurring the wrath ofchemically-laced water and teargas was no game at all.
Indeed, the people had made acalculated move to not only sacri-fice their precious Saturday butalso possibly bear the brunt of thestate apparatus. No picnic in thepark on Saturday, this one.
Besides, some of the things posedby the editorial made one wonderwhether the paper was indeed lo-cated on a different planet: For ex-ample, “was there no better wayof putting across the message,cause or demand for a clean gen-eral election?” (yes, the Bersih 2.0folk had expressed grievances to
Aliran Monthly : Vol.31(9) Page 32
the Election Commission (EC),but had received an unsatisfac-tory response); “Whether or not astreet demonstration should be thelast resort for aggrieved parties, itshould seldom, if ever, be the first”(yes, because of the lukewarm re-sponse of the EC, the rally becamethe last resort); and “The Yang di-Pertuan Agong had advised rallyorganisers against a street protest,and the prime minister had ap-proved in principle a stadiumrally” (yes, there was an attemptby the Bersih 2.0 organisers tocome to the negotiation table, asrightly suggested by the King, withthe federal government leader-ship but it wasn’t reciprocatedeventually). So were the Bersih 2.0folk still playing a game?
To be sure, there was space givento the Bersih 2.0 organising com-mittee to briefly express theirviews pertaining to the rally, butthis was put in the inside pages,placed next to a news item onPerkasa. MCA president Chua SoiLek, to which this paper is politi-cally affiliated, was given cover-age in an earlier page where heprotested that “Bersih’s protestsmake no sense.” Clueless in KualaLumpur.
As if not to be outdone, the NewSunday Times (NST) “graced” itsentire front page with a picture ofan unknown person (presumablyone of the protesters), face maskedand donning military fatigues,about to throw something into theair. In other words, the kind of“combatant” that could wreakhavoc in the otherwise calm, butjammed streets of Kuala Lumpur.
This picture, which might remindyou of the stormy PalestinianIntifada of yore, was juxtaposed
with the quizzical headline“Peaceful?”. This was possiblyaimed at questioning the publicassurance of the Bersih 2.0 rallyorganisers that it would be free ofviolence.
Like the coverage of the SundayStar, the NST’s was meant to con-vey a message to the readers thatstreet demonstrations of this na-ture inevitably lead to chaos anda breakdown in law and order,and are a danger to national se-curity and hurt businesses bigtime. Hence, the need by the po-lice to lock down the key entrypoints into the city and conductroad blocks, among other things.
The second page of the paper ranthe expected headline, “Fourhours of madness”, that was ac-companied by a big photo of dem-onstrators drenched with thechemically-laced water in front ofMenara Maybank in KualaLumpur, and a fallen motorcycleparked by the roadside, presum-ably knocked down by the runningcrowd. A picture of disorder, inshort.
A cursory look at the headlines inthe following pages would give anindication of the newspaper’sideological slant: “Govt notagainst fair election, says Najib”;“Hisham: King’s advice notheeded”; “‘Swift action containedrallies’”; “16 children among1,667 held”; “Gloom as shoppersshy away”; “Demos ruin weddingplans”; and then the so-calledthink pieces of the paper’s Who’sWho such as “Sheer display ofarrogance and political postur-ing”; and “Apply the law on rallyorganisers.”
The only space allotted to theBersih 2.0 organisers by the news-paper was the one buried in theinside pages that reported of Pasthreatening another rally if the au-thorities didn’t release their lead-ers and other Bersih 2.0 commit-tee members; and next to it a newsstory indicating Bersih 2.0’s de-mands, but this without the steer-ing committee members beinggiven a voice to speak in their ownright (“4 more demands added to2011 list”).
The unmistakable and indefati-gable Mingguan Malaysiascreamed a headline “Usaha polisberjaya” (the police’s effort bearsfruit) to convey the message thatthe police force managed to pre-empt the “illegal” attempts of theBersih 2.0 folk to march to the Sta-dium Merdeka, thus saving KLfrom calamity.
It is the kind of “news” that wassupposed to induce a sigh of re-lief among its readers. This newsitem carried with it a big photo ofa scene where a few of the demon-strators were seen to have throwncertain objects at the police truckthat was moving in front of them,an act which the daily deemed“wild” (bertindak liar).
Undoubtedly, the paper, likemany other dailies and TV sta-tions in town, put heavy empha-sis on the “illegality” of the well-attended rally that was painted tobe disorderly.
Also on the front page was a quotefrom the prime minister who ex-pressed, as was similarly reportedin the Sunday Star, relief andthanked the police force for hav-ing managed to ensure that therally didn’t end with a disaster to
“ I l l e g a l r a l l y ”
Aliran Monthly : Vol.31(9) Page 33
human lives and property. Najibadded that those who didn’t par-ticipate in the “illegal” rally wereMalaysians who cherished peaceand harmony and paid heed tothe advice of the King, theSelangor Sultan and the (federal)government. If-you’re-not-with-them, you’re-with-us kind of sim-plistic argument.
Like the other papers, the head-lines used in Mingguan Malay-sia suggest a certain ideologicalbent. Take a look at the follow-ing sample: “Polis berjaya kekangBersih” (Police succeed in re-straining Bersih); “Pembangkangpesong niat Bersih” (Oppositiondeviates Bersih’s intention); and“ Ingkar arahan, polis terpaksaguna meriam air” (Instructionsdefied, police forced to use wa-ter cannon).
There’s one whole page dedicatedpictorially to the rally and herewas where the dots were made toconnect, judging from the cap-tions of the selected photos:“Akur” (Compliance) accompa-nied a photo of Perkasa leadersholding a press conference, whereit was said that the right-winggroup refused to enter the fray asthey didn’t want to go against theadvice of the King. “Patriot” obvi-ously showed a photo of theUmno Youth holding a counter-rally. “Jadi mangsa” (Victimised)accompanied a photo of LRT pas-sengers waiting tiredly for theirdelayed train. “Ganas” (Violent)showed a demonstrator throwingback a gas canister at the police.“Lengang” (Quiet) explained thequietness in the shopping areaalong Jalan Tuanku AbdulRahman. “Layanan baik” (Goodtreatment) showed the detaineddemonstrators being “well
treated” as exemplified by theirability to pray in the detentionarea. “Turut serta” (Participating)showed the leader of thePertubuhan Seni Silat LincahMalaysia, Omardin Maju, joininghands with the Patriots. “Ingkar”(Disobedient) obviously referredto the photo of the Bersih 2.0 lead-ers in Kuala Lumpur who defiedthe ban order on them. And lastbut not least: “Sesak” (Jammed)depicted a Kuala Lumpur streetthat was jam-packed with vehiclescaused by, surprise, surprise, theBersih 2.0 rally.
Like their political masters, themainstream press and other me-dia had placed so much empha-sis on the so-called “illegality” ofthe rally (and also its consequentviolence, or the threat of violence— coming from the motley crowdthat had been made out to be un-ruly) that this “illegality” factorhad eclipsed, or drowned out, theeight demands of the Bersih 2.0organisers and supporters.
Additionally, the Bersih 2.0steering committee was notgiven enough space to explainin their own voice their side oftheir story: why they did whatthey did after all avenues wereexhausted.
In a sense, the mainstream presstreated the “illegal” Bersih 2.0rally like a yellow plague, whichis most unfortunate given thatthe aspirations of the Bersih 2.0organisers had transcendedthem, and subsequently caughtthe imagination of many Malay-sians, the rally participants andthe “silent majority.”
Besides, this rally has assumednational significance for it man-aged to amass tens of thousandsof people on the streets of KualaLumpur despite the many ob-stacles placed against the partici-pants such as pre-rally arrests (in-cluding MP Jeyakumar Devarajand his PSM colleagues who arestill being detained), roadblocks,hotel room checks, shutdown ofbus stations and selected LRT sta-tions, the threatening Friday ser-mons and warning circulars tocivil servants.
And yet, the press as a wholechose to ignore, nay belittle, this“yellow elephant” in their verynewsrooms. It’s a cruel mockeryof the dreams of ordinary Ma-laysians, irrespective of theirethnic origins, who crave for abetter tomorrow. Just look at theoutpouring and sharing of sen-timents and observations of theBersih 2.0 participants in theonline newspapers, especiallythose who felt “truly Malay-sian.”
Equally important, for the main-stream press to disregard thissocial phenomenon and all itsramifications is tantamount totheir abandoning, if not betray-ing, journalistic ethics, and acommitment to truth and socialresponsibility.
Ignore all this at the mainstreampress’ own peril for it wouldonly heighten their credibilitydeficit.
Dr Mustafa K Anuar isDr Mustafa K Anuar isDr Mustafa K Anuar isDr Mustafa K Anuar isDr Mustafa K Anuar ishonorary assistant secre-honorary assistant secre-honorary assistant secre-honorary assistant secre-honorary assistant secre-tary of Alirantary of Alirantary of Alirantary of Alirantary of Aliran
Yellow plague
q
Aliran Monthly : Vol.31(9) Page 34
News of airlines struggling al-ways is very pleasing for me toread. Poetic justice.
It’s always extremely excruciat-ingly painful if one gets dissedabout after paying for services orproducts. This happens a lot thesedays with contractors,service providers andmany customer-un-friendly clueless entities.
What really beats all of theculprits and takes thegrand prize are airline/airports. As soon as youhave paid your fare, yournightmare begins. Firstare the many restrictionswith changing bookingsand poorly written exclu-sion clauses and what-not. Even at the airlinesconcerned, many do notreally know the full terms
and conditions. To me the startand end of your flight is like thebeginning and end of a prisonterm, where everyone else tells youwhen you can sit, walk, eat andwhere you can sit and what youcan do all the way.
For these privileges we must paythe airlines/airports lorry-loadsof money? How is it that we putup with this when we get allworked up by a small queue in thepost office?
They tell us what we can take intoplanes now; liquid spooks them,even mineral water scares the liv-ing daylight of airlines. And fun-nily liquid and mineral bottlesbought in airport shops are allright? Aren’t they dangerous aswell? Surely not all the merchan-dise in duty-free is painstakinglysearched and security cleared?Total hogwash, isn’t it?
To me, airports have stumbledupon a major money-makingmove after the security scare bybanning all sorts of normal itemsbeing taken in from outside intothe cabin, so that they can profit
from airport shop sales.
The airport security checks noware getting from ridiculous to bi-zarre to total madness. Many in-sist that shoes and belts must betaken off and put through thescreening machines. At HeathrowAirport, the whole process feelsand looks like a refugee/asylumprocessing centre; it is total mad-ness and chaos with the officersexpecting us to put our nice hand-bags and computer bags onto trayson which someone could put hisor her stinking shoes. Don’t thesepeople think?
Some airports make even drivingto the terminal in a taxi almost im-possible. At KLIA , taxis can nolonger enter the first lane at theDeparture section, which is nearerthe entrance door. Instead, theyhave to fight with all other ve-hicles and use the farthest lane,which is now in total chaos. Thefirst lane is now reserved for VIPsand MAHB staff parking. Howvery inconsiderate.
Airlines treat economy-class pas-senger like dirt, without realising
that these passengersare actually keepingtheir airlines running.Without economy class,airlines can’t keep theplanes flying. Do theythink they can sell all600 seats on an A380 tobusiness class passen-gers only? If they could,they would have al-ready done so and in-sisted that all fly busi-ness class. So airlinesand their crew and all
Letters must not exceed 250words and must include thewriter's name and address.Pseudonyms may be used. Sendletters or emails to Editor (seepage 3 for address details).Views expressed need not reflectthose of Aliran. If e-mailing,include message in the e-mailbody itself.
Airlines should nottake passengers
for granted
Continued on page 36Continued on page 36Continued on page 36Continued on page 36Continued on page 36
Aliran Monthly : Vol.31(9) Page 35
While we are somewhat relievedthat the Barisan government haddecided to drop the chargesagainst the 30 PSM members, theissues surrounding their casehave not been resolved.
We must not forget the larger is-sues involved in the case simplybecause the government had de-cided to get out of a messy situa-tion for its own good.
The BN government created thisuntenable position which cannotbe sustained by logic and facts. Asa cover-up for its high-handed-ness, it is posturing itself as a gen-erous institution that is capableof being considerate. The fact is itis trying to extricate itself from thisunjustified and cruel actionagainst these helpless people whoonly meant well.
It is unthinkable that people willbe deluded by this gesture of thepolice. Malaysians are no moregullible or naïve to be easily fooled
by such tokenism. The reprehen-sible conduct of the police cannotbe condoned.
These 30 PSM members are inno-cent and not guilty of any offenceby any stretch of the imaginationunder any Malaysian law. Thatwas the reason why the policetried desperately to incriminatethem by all sorts of ridiculous ac-cusations:
• They were accused of carrying
weapons in their buses on 25June 2011.
• They were accused of possess-ing subversive material.
• They were accused of wagingwar against the Agong.
• They were accused of being anational threat.
The police invoked Section 122 ofthe Penal Code, Section 48 andSection 43 of the Societies Act, Sec-tion 29 (1) of the Internal SecurityAct and the Emergency Ordi-nance to build up a case that theseare indeed dangerous criminals.The police threw everything avail-able at them in an attempt to crushthem and frighten other Malay-sians in an attempt to preventthem from joining the Bersih 2.0Walk for Democracy.
They were incarcerated unjustlyunder intolerable conditions. On4 July – after nine days of impris-onment – 24 of them were chargedin court while the rest of the sixwere charged in court on 3 Au-gust after having been held for 28days in solitary confinement. Thecourt imposed bail of RM8000each, which meant they had to
A record of A record of A record of A record of A record of Aliran'sAliran'sAliran'sAliran'sAliran's stand on current affairs. stand on current affairs. stand on current affairs. stand on current affairs. stand on current affairs.
What has happenedto our rule of law?
Where has the Rule of Law gone to?Where has the Rule of Law gone to?Where has the Rule of Law gone to?Where has the Rule of Law gone to?Where has the Rule of Law gone to?
Aliran Monthly : Vol.31(9) Page 36
scramble desperately to raiseRM240000 to seek their freedom –almost a quarter of a millionringgit! How could these poorpeople raise such a huge sum topost bail?
All this, however, failed to breakthe spirit of these 30 stalwarts; itfailed to discourage outragedMalaysians from marching for de-mocracy on 9 July 2011. If any-thing it only spurred Malaysiansto discard their fear and stand upfor their rights.
But the worrying thing about thewhole episode involving these 30Malaysians is the conduct of thepolice force. We are perturbed thatthe police can detain anyone un-der baseless charges with impu-nity. It looks that they can accuseanyone for whatever reason with-out a shred of evidence to back uptheir claim and detain them.
How could they accuse them ofwaging a war against the King,which is a serious criminal offence– Section 122 allows for 20 yearsor even life imprisonment – with-out an iota of incriminating evi-dence. This is clearly an abuse oftheir authority.
How could they accuse them ofcarrying weapons in their buswhen no weapon was found inthe bus?
How could they accuse them ofpossessing subversive materialwhen this was not established?
How could they accuse them ofbeing a national threat withoutproving the existence of such athreat?
Who cooked up these stories?
Surely someone must be answer-able. Who will be held account-able for this sordid affair?Shouldn’t the Inspector-Generalof Police who is the head of thepolice force be held accountablefor this? Shouldn’t the Ministerof Home Affairs be taken to taskfor this break-down in the ruleof law?
Why didn’t the judge who is re-sponsible for granting the remandorder demand proof before grant-ing such an order? Aren’t the fun-damental rights and freedoms ofa person his concern? Isn’t he theperson who ensures that justicemust be upheld and every personunder the law is entitled to theprotection of the law? Why did hefail miserably in his duty to up-hold the constitution?
The rule of law should not becomea myth in our country. The policemust not be a law unto themselves.The rule of law must prevail at alltimes.
To prevent similar incidencesfrom occurring in future we needto go deep into this episode andferret out those who were cal-lous in accusing innocent Ma-laysians without just cause. Weneed a Royal Commission of In-quiry to examine how and whythe detention of the 30 PSMmembers took place. We need toknow what gives the police theauthority to behave in the man-ner they have without being ac-countable for their action. Weneed to establish the fact thatthere is such a thing as Rule ofLaw in this country.
P RamakrishnanPresident
24 September 2011
their so-called management, I askyou to treat economy-class pas-sengers better as we are the oneswho are actually paying yoursalaries.
I believe airport ground crew getvery depressed seeing air travelpassengers moving in and out.And they make our lives as diffi-cult as possible, without realisingagain that without travellers, thereare no airports and there are nojobs for them. They all have to be-come football pundits then.
Whenever I hear an airline fold-ing up or suffering losses andhaving to close down, I feel asense of poetic justice. Many air-lines are kept alive by taxpayers’funds, and yet they are so arro-gant and totally rude to travellers.
My wish is that one day we cantravel through time and spacewithout airlines and airports. Ifthat were to happen, then airportswill be turned into car parks orhypermarkets, and airlines will bejust decorations at roundabouts orjust parked and turned into low-cost apartments. Then the airline/airport staff and crew will have tocome to the rest of us air passen-gers for help and that would bethe time we subject them to thesame ‘five star’ treatment that theyhave accorded us. Don’t think thisis far fetched; in those days, seatravel operators were equally ob-noxious; now they are extinct ex-cept for luxury liners.
That would very sweet indeed.
GroundedKuala Lumpur
Continued from page 34Continued from page 34Continued from page 34Continued from page 34Continued from page 34
Aliran Monthly : Vol.31(9) Page 37
and would be published onHector’s blogs, if no response wasforthcoming. Asahi Kosei, unfor-tunately, failed to use these op-portunities to find a simple solu-tion to the problem before resort-ing to legal action.
If, as the the company claimed, theworkers involved were not theirworkers but employed by anoutsourcing agent, then theyshould have responded accord-ingly to Hector’s enquiries insteadof raising this matter in a legal suit.Asahi Kosei, as it were, did notact reasonably in pursuing thisdefamation action despite thechoice of avenues open to them toresolve the matter in a dignifiedand sensible way.
After an odyssey of intelocutoryapplications, which were all re-fused by the High Court, the rejec-tion of this appeal appears to bean obstruction of justice in thiscase. The rejected applicationsincluded one to set aside anexparte gag order stopping Hec-tor from discussing the Burmeseworkers’ allegations of rightsabuses on his blog and on Twitter
The Court must have been fullyaware that:
• The allegations of human andworker rights violations origi-nated from the 31 Burmese mi-grant workers involved.
• To permit the full trial to goahead without ensuring achance for defence counsel tocall such fundamental evi-dence when key witnesses
were available would under-standably result in a miscar-riage of justice.
• The Burmese migrant workerswho are key witnesses in thiscase were vulnerable to pos-sible deportation when theirexisting work permits expire.The loss of such witnesseswould make any judgment forthe plaintiff partial and unjust.
• The subsequent issue of allow-ing these migrant workers afair chance to seek equitableremedies for the alleged viola-tion of their rights would benullified on their deportation.The probability of their beingable to return to Malaysia topursue legal redress is ex-tremely unlikely due to theircircumstances and financialmeans.
It is dismaying that the Court ofAppeal exhibited an apparentlypartial disposition in giving coun-sel for Charles Hector (the Appel-lant) less time to state his case butmore time to the counsel of AsahiKosei (the Respondent) to do so.Moreover, the court failed to makeany effort to consider a justamount of costs between the
RM2000 proposed by Hector’scounsel, and the RM10000 sug-gested by Asahi Kosei’s counsel.The Appeals Court, however,awarded costs of RM10000 in thecompany’s favour (apparently onthe basis that it was rainingheavily on the hearing day?).
It was obvious that the Respon-dent company was merely ‘fish-ing’ for an excuse to claim theyhad been put under hardship toattend this appeal hearing, whichthey implied was a vexatious ac-tion.
The reverse was actually the situ-ation, as several of those who at-tended the hearing did not haveprivate transport but had to usepublic transport to go toPutrajaya. Some of them incurredlarge expense in the effort to at-tend the case they saw as signifi-cant and holding possible reper-cussions for the working condi-tions of migrant workers andrights advocacy.
Many of these attendees, includ-ing representatives of the Euro-pean Union, Norwegian Em-bassy, international and national
Punishing Hector
CHARLES HECTOR'S CASE ... Continued from page 40
Charles in courtCharles in courtCharles in courtCharles in courtCharles in court
Aliran Monthly : Vol.31(9) Page 38
human and labour rights advo-cates, women’s rights advocates,Suhakam and the Burmese com-munity were visibly shaken by theCourt of Appeal’s decision. Theywere taken aback by the disposalof the case within a little over fiveminutes without hearing full ar-guments from both sides and bythe arbitrary award of costs to themultinational corporation (AsahiKosei).
The Appeal Court’s decision maybe viewed as oppressive andseemingly meant to ‘punish’Charles Hector for exercising hisright to appeal and be treatedfairly by a court of law. TheCourt’s behaviour is questionableand fails to adhere to its obliga-tion to do justice or to see that jus-tice is done. Such actions alsoserve to erode public confidencein the judiciary and the system ofjustice in this country.
The Appeals Court’s apparentlyflawed decision was not the endof the matter, as the trial contin-ued as scheduled on 24 August.However, it could not begin to dealwith issues of defamation asHector’s defence counsel againraised questions of procedure -this time concerning the fairnessof the prior interlocutory proceed-ings. Amongst other things, de-fence counsel applied for thejudge to recuse herself from thiscase.
The main reason for this was, inshort, the court’s overall allegedlypartial attitude in favour of cor-porate interests over that of doingjustice between the litigants. Thecourt appeared to have pre-judged
the case even before thoroughlyexamining any evidence to provethe allegations made by the mul-tinational corporation. Thus, jus-tice was perceived to have alreadybeen compromised before anyproper trial of the defamation suit.Counsel for Asahi Kosei wasgiven a fair chance to rebut the ar-guments supporting the applica-tion for recusal, in keeping withlegal procedure.
Nonetheless, on Thursday morn-ing, 25 August 2011, negotiationsfor a settlement of CharlesHector’s case took place. It wasn’tclear which side initiated thesettlement. However, what wasultimately agreed on by both par-ties after nearly half a day of ne-gotiations was not exactly a justoutcome nor can it be seen as evenbeing close to justice.
It was still heavily in favour of themultinational company at the ex-pense of Charles Hector, an indi-vidual lawyer and human rightsdefender, who does pro bonocases for migrant workers quali-fying for legal aid.
Terms and conditions of thesettlement were very simplistic.These were :
1 . Charles Hector is to pay dam-ages of RM1 and costs of RM1to Asahi Kosei.
2. Charles Hector is to publish ahalf-page apology to AsahiKosei in two mainstream newspapers i.e. The Star (an Englishlanguage news daily) andNanyang Siang Pau (a Chinese-language news daily),
tent on making Charles Hector‘pay’ for raising concerns abouthuman and workers’ rights vio-lations affecting migrant workersat their plant.
The two half-page advertisementstogether will cost about RM22000.What is interesting about the cho-sen news dailies is that both ofthem are owned by the MalaysianChinese Association (MCA) orpersons linked to this BarisanNasional component politicalparty.
Furthermore, these mainstreamnews daillies are the wrong me-dia in which this ‘apology’should be published. Since theallegedly ‘contentious’ articleswere posted on Charles Hector’sblog, the ‘apology’ should havelikewise been published on thesame blog. Only persons who hadvisited Charles Hector’s blogwould have read the relevant ar-ticles and possibly those visitingother online media that may havechosen to publish the articles fortheir readers who were interestedin migrant worker and humanrights issues.
Asahi Kosei, nonetheless, was in-sistent that the ‘apology’ be pub-lished in the print dailies to beread by the general public, manyof whom are completely ignorantof the facts of Charles Hector’scase and the issues involved in it.This seems a deliberate attempt toembarrass Charles Hector, to‘save’ the company’s face from theproblems they caused themselves,making Charles Hector a scape-goat for their deeds.
Besides, Charles Hector is beingused as an example and his ap-parent ‘humiliation’ is a warning
Asahi Koseiadds insult to injury
Aliran Monthly : Vol.31(9) Page 39
to other human and labour rightsadvocates and defenders whosework involves raising awarenessof human and worker rights vio-lations publicly. As a foreignmultinational corporation, AsahiKosei might be seen as represen-tative of other foreign global mul-tinational corporations investingin Malaysia.
To many who have observed andbeen closely involved in CharlesHector’s case, the final resultcomes as no surprise. This case isnot the first nor will it be the lastto be so ‘indecently’ and unjustlytreated by the so-called arbiters ofjustice. All through the legal pro-ceedings, it was clear that profit-making coporate interests tookpriority over respect for humanrights and dignity and the rightsof migrant workers.
This is not the first instance inwhich courts are seen to have re-linquished their role as impartial
Aliran exco memberAliran exco memberAliran exco memberAliran exco memberAliran exco memberAngeline Loh was closelyAngeline Loh was closelyAngeline Loh was closelyAngeline Loh was closelyAngeline Loh was closelyfollowing this case on be-following this case on be-following this case on be-following this case on be-following this case on be-half of Aliran.half of Aliran.half of Aliran.half of Aliran.half of Aliran.
arbiters of justice but choose toassume the role of governmentservants promoting and protect-ing vested interests in line withthe policies of the ruling party. Itis common knowledge amongstthe Rakyat (citizens) that the sepa-ration of powers among the Ex-ecutive, Legislature and Judiciaryno longer exists in Malaysia.Thus, the judiciary has given upits independence to maintain theshell of a structured legal system.
Moreover, our constitutionalrights of freedom of speech underArticle 10, which applies to everycitizen of Malaysia, has been de-nied to arbitrarily gag, not only,human and labour rights defend-ers and advocates, but any would-be whistleblower, courageousenough to make a stand for jus-tice and the protection of humanrights.
This significant case has manyrepercussions that could becomethe topic of discourse amongstgovernments, legal professionals,
academics, inter-governmentalorganisations, non-governmentalorganizations and activists, na-tionally and internationally. Thehuman and workers’ rightsstruggle is far from over. Manyquestions regarding the conflict ofinterests involving human rights,labour rights and business ethicsglobally remain unanswered.
Perhaps, the saving grace in thiscase is that is has highlighted theinjustice within the judicial sys-tem that has manifested itself invarious ways and exposed thepoliticisation of the justice systemand the judiciary in Malaysia. Italso indicates a widening protec-tionism of the corporate agendausing the judicial mechanism togive effect to government eco-nomic and financial policy.
Politicised judiciary
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Charles with his lawyers and supporters. Angeline Loh is second from left.Charles with his lawyers and supporters. Angeline Loh is second from left.Charles with his lawyers and supporters. Angeline Loh is second from left.Charles with his lawyers and supporters. Angeline Loh is second from left.Charles with his lawyers and supporters. Angeline Loh is second from left.
Aliran Monthly : Vol.31(9) Page 40
he Court of Appeal’s 23August 2011 decision toreject the appeal to stayproceedings in the case
of Asahi Kosei (M) Sdn. Bhd vCharles Hector Fernandez, whichmetaphorically ‘bludgeoned’Charles Hector with costs ofRM10000, was an unnecessarilyharsh punitive measure for an in-terlocutory process. This appealcame in the wake of a pendingappeal on an application to join31 Burmese migrant workers asco-defendants with Hector, to bedecided on 5 October by the samecourt.
Hector, a human and labourrights defender, lawyer andblogger was being sued forRM10m by Japanese multina-tional company, Asahi Kosei’sMalaysia branch. allegedly fordefaming them in his blog in Feb-ruary this year. The company ac-cused Hector of spreading mali-cious and false allegations of hu-man and labour rights abuse ofthe Burmese migrant workersworking in their factory.
The company brought the defa-mation suit against Charles Hec-tor despite efforts made by him to
verify and confirm the complaintsof labour and human rights vio-lations that were disclosed by the31 Burmese workers from thefirm’s plant in Selangor. The Bur-mese migrant workers had alsolodged a complaint with theLabour Department and Suhakam(the Human Rights Commissionof Malaysia), prior to thecompany’s instituting legal actionagainst Hector.
There was thus a lawful avenuefor dispute resolution withLabour Department assistance,initiated by the complaint filed bythe migrant workers, in which the
company could have engagedand amicably settled the prob-lems. The defamation suit againstCharles Hector, according tomany thinking Malaysians, wasthus totally unnecessary.
In addition, the company, in allfairness, had been given a fairchance to verify the facts of themigrant workers’ complaints. Thefirm had received adequate indi-cation that the information of hu-man and workers’ rights viola-tions would be taken as genuine
JUSTICE
Charles Hector’s case:A judicial denial of justiceThe outcome indicates widening protectionism of thecorporate agenda
by Angeline Loh
TTTTT
Charles Hector with his lawyerCharles Hector with his lawyerCharles Hector with his lawyerCharles Hector with his lawyerCharles Hector with his lawyer
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