Country Report on Human Rights Practices for 1989
MALAYSIA
,
Malaysia has a parliamentary system of government based on
free elections contested by several parties, almost all of
which are racially based. Malaysia is a multiethnic society,
with Malays comprising a little more than half of the
population, and the remainder consisting of Chinese (about 33
percent), Indians (about 10 percent), and several other
minorities. The ruling National Front (composed of three
major and several minor parties) has won a two-thirds or
better majority in the federal Parliament in all general
elections since 1957, but opposition parties are active and
vocal participants in the political system, and they
occasionally control governments at the state level. Malaysia
is a federation of 13 states, with state governments retaining
power over several important areas, including land use and
religion.
From the late 1940's until recently, the defense forces were
directed primarily at containing a major Communist insurgency
that began in 1948 and peaked in the 1950's. The Government
states that because of the insurgency that still smolders in a
few border areas, the intercommunal rioting in which several
hundred persons died following the 1969 national elections,
and the country's serious drug problem, classified by the
Government as a threat to national security, internal security
remains a concern. The Government cites all three factors as
justification for laws allowing preventive detention, but
human rights groups charge that they are primarily used to
stifle dissent.
A strong free market economy, abundant natural resources, and
a relatively small population have helped Malaysia become one
of the most prosperous of the developing countries.
Detention without trial and restrictions on judicial review of
detentions, as well as restrictions on freedom of association,
and on freedom of the press, are the primary human rights
concerns in Malaysia. In late 1987, the detention without
trial of 106 persons under the Internal Security Act (ISA)
became a major focus of attention. By June 1989, all those
detainees had been released and restrictions on their
movements and activities rescinded. Amenc^.-nents to the ISA
enacted by Parliament that same month, however, further
restrict the judiciary's power to review detentions under the
ISA, the Dangerous Drugs Act, and the Emergency Ordinance.
Restrictions on the independence of the Malaysian judiciary
remain a key area of concern. Many legal and other observers
see evidence that when hearing cases v;ith political
ramifications, the courts are increasingly reluctant to take
positions which could be seen by the executive branch as
challenging executive authority.
RESPECT FOR HUMAN RIGHTS
Section i Respect for the Integrity of the Person, Including
Freedom from:
a. Political and Other Extrajudicial Killing
There were no reports of political or other extrajudicial
killings by the Government or by any other political
organization.
b. Disappearance
There was no evidence of abduction, secret arrests, or
clandestine detention attributable to the Government or to
nongovernmental or opposition forces. There have been reports
that, in a number of cases, security authorities waited days
after a detention before informing the detainee's family.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Allegations of cruel, inhuman, or degrading treatment or
punishment are rare, although several Malaysian citizens who
were detained by the Government in October 1987 claim that
they were mistreated by security authorities, especially
during the initial stage of their detention. Their
allegations included charges of sleep deprivation, threats and
verbal abuse, and, in at least one case, beating. After their
release from ISA detention, some former detainees stated that
while there was no torture as such, treatment of detainees by
the authorities varied, with some receiving harsher treatment
than others.
d. Arbitrary Arrest, Detention, or Exile
The Government can detain suspects without benefit of judicial
review under three laws: the 1960 Internal Security Act
(ISA), the Emergency (Essential Powers) Ordinance of 1969, and
the Dangerous Drugs Act of 1985.
The 1960 ISA, patterned after legislation instituted by the
British colonial administration during the Communist
insurgency of the 1950 *s, is aimed at controlling internal
subversion. It empowers the police to hold for up to 60 days
any person who may act "in a manner prejudicial to the
security of Malaysia." Further detention (in renewable 2-year
segments) must be authorized by the Minister of Home Affairs.
The Minister must inform detainees of the charges against them
and give them the opportunity to protest those charges to an
advisory board. The advisory board reviews each case at least
every 6 months. Advisory board decisions and recommendations
are not, however, binding on the Minister, are never
publicized, and are often not shown to the detainee. A number
of the ISA detainees have refused to participate in the review
process under these circumstances.
The Malaysian Government does not publish statistics or make
regular public statements on ISA detentions. Authoritative
information on the number of detainees is not available. In
March 1989, however, the Deputy Home Affairs Minister told
Parliament that 70 persons were under ISA detention at that
time. Prior to the ISA detentions of October 1987, the number
of long-term ISA detainees had dropped from nearly 500 in 1981
to about 25. In October and November 1987, however, Malaysian
authorities, citing a danger of serious racial strife,
detained another 106 persons, including government and
opposition members of Parliament, social critics, academics,
environmentalists, and religious activists. However, none
were charged in court for any unlawful activity. By June
1989, all of these detainees had been released and
restrictions on their movements rescinded. In 1988 the
Government detained 11 Malaysians from Sarawak under the ISA;
all were released by July 1989. Twenty-three from two
northern states also were arrested in 1988 under the ISA as
arson suspects. A spokesman for the opposition Islamic Party
of Malaysia announced that several of those arrested were
members of that party. The spokesman said the party would
investigate to determine whether the arrests were political,
without specifying when the determination would be made.
Human rights observers claim that the detentions were
unwarranted because the defendants could have been arrested
and tried under criminal statutes proscribing arson.
In March 1988 the High Court ordered the release of a
prominent lawyer and opposition leader detained under the ISA,
on the grounds that his arrest was unlawful. Eight hours
after his release he was rearrested under a new ISA detention
order. In July 1988 and June 1989, Parliament amended the ISA
to place additional limitations on judicial review of
detentions. The 1988 amendments validate detention orders
regardless of textual inaccuracies in place or fact, while the
1989 legislation restricts judicial review of government
detention orders to procedural matters only. The Government
defended the amendments by stating that court decisions should
not be permitted to replace executive decisionmaking in
national security matters. Opposition leaders and the Bar
Council publicly protested the 1989 ISA amendments as a
negation of the rule of law.
The Emergency (Essential Powers) Ordinance of 1969 stemmed
from that year's intercommunal riots. The State of Emergency
declared at that time has not been rescinded, although
Parliament regained its legislative power in 1971. The
Emergency Ordinance gives the Government the power to detain
anyone "in the interests of the public safety or the defense
of Malaysia." As under the ISA, detainees must be informed of
the charges against them, and they can appeal to an advisory
board. Since 1985 the Emergency Ordinance has been used in
some serious criminal cases not related to narcotics.
The Dangerous Drugs (Special Preventive Measures) Act of 1985
was enacted by Parliament to give the Government specific
power to detain suspected drug traffickers. Suspects can be
held under this law for successive 2-year periods with
periodic review by an advisory board. Unlike the ISA and
Emergency Ordinance, in the case of the Dangerous Drugs Act
the opinion of the advisory board is binding on the Minister.
As of June 1989, there were about 1,200 drug suspects in
detention under this statute. As with the other two security
statutes, the Dangerous Drugs Act was amended in 1988 to
validate detention orders with certain defects and, in 1989,
to prohibit legal challenges to detention orders. Legal
observers have voiced the same strong concerns about these
amendments.
With regard to forced or compulsory labor, see Section 6.c.
e. Denial of Fair Public Trial
The right to a fair trial is seriously restricted in
security-related matters where the ISA is invoked. Ordinary
civil and criminal cases, and some security-related cases, are
tried under a fair and open judicial system derived from
British jurisprudence. Charges must be levied against a
defendant within 24 hours of arrest, and police must decide
within 14 days whether to bring the case to court. Defendants
have the right to counsel, and lawyers are able to represent
clients without penalty to themselves. Bail is available, and
strict rules of evidence apply in court. Defendants may
appeal lower court decisions to the federal courts and, in
criminal cases, may also appeal for clemency to the King or
local state rulers, as appropriate.
Persons arrested and charged for firearms violations are
normally charged under provisions of the Internal Security Act
which carry a mandatory death sentence upon conviction. Other
security-related crimes, whether or not capital crimes, can be
tried under special procedures contained in the Essential
(Security Cases) Regulations of 1975. The accused is allowed
counsel but sometimes does not receive a statement of the
evidence prior to the trial which is by a single judge without
a jury; and witnesses may be examined in the absence of the
accused. Admissible evidence includes hearsay and secondary
evidence, testimony of children and spouses,
self-incriminating statements to police, and information from
seized records or communications. If the accused is found
guilty, the judge must impose the maximum penalty. According
to local legal sources, these special trial provisions are
rarely, if ever, used.
The Malaysian judiciary has traditionally been regarded by the
public and the legal community as committed to the rule of
law. The judicial system has exhibited over the years an
unusual degree of independence, not hesitating to rule against
the Government in criminal, civil, or occasionally even major
cases with political ramifications. An example of the latter
was the High Court ruling in February 1988 that the dominant
party in the Government coalition was illegally constituted.
However, in 1988 Parliament amended the Malaysian Constitution
to delete the clause vesting judicial power in the courts and
substitute a clause stating that the jurisdiction and power of
the courts are "conferred by or under Federal law." Although
the practical ramifications of this amendment remain unclear,
some members of the legal community charge that it strips the
judiciary of its constitutional basis of authority, making it
wholly dependent upon specific legislation passed by
Parliament.
In another development in 1988 affecting the judiciary, the
Lord President of the Supreme Court was dismissed by the King
on August 8 following the recommendation of a tribunal which
heard the Government's charges against him. The charges
included bias and prejudice in speeches critical of the
Government and writing a letter to Malaysia's King raising
objections to the Prime Minister's criticism of the judiciary,
thereby creating misunderstanding between the Prime Minister
and the hereditary rulers. Five Supreme Court Justices were
suspended for their actions related to the case. A second
tribunal appointed by the King ordered the immediate
reinstatement of three of the Justices in October 1988, while
the other two were dismissed from office. Most nongovernment
observers believe the purpose of the dismissals was
specifically to strengthen the Prime Minister's control of the
judiciary.
The case against the previous Lord President continued to have
ramifications in 1989. In March 1989, the Malaysian Bar
Council filed a contempt of court motion against the current
Lord President for his actions related to the dismissal of the
previous Lord President. In April the Supreme Court rejected
the Bar Council's contempt motion, and then in June agreed to
consider a counter motion filed against the Bar Council
Secretary by the Attorney General. The Government's contempt
motion has not yet been heard. The Supreme Court's handling
of the Bar Council's motion is cited by legal observers as
evidence that the 1988 confrontation between the judiciary and
the executive branches is causing reluctance by the courts to
take positions in politically sensitive cases challenging the
Government.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
These rights are, generally, protected by law. Under the
security legislation described above, however, the police may
enter and search without warrant the homes of persons
suspected of threatening national security and confiscate
evidence. Under this provision, police have searched homes
and offices, seized books and papers, and taken people into
custody without a warrant.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
Despite constitutional provisions for freedom of speech and
press, there are some important limitations. For example, the
Constitution provides that freedom of speech can be restricted
by legislation "in the interest of security... (or) public
order." Thus the Sedition Act Amendments of 1970 prohibit
public comment on "sensitive" issues such as citizenship
rights for non-Malays and the special position of Malays in
society. Since 1970, however, the Government has brought only
a few cases under the Sedition Act, and in the most recent
incident in 1986 the defendant, the President of the Bar
Council, was acquitted.
Press freedom is subject to important limitations under the
Printing Presses and Publications Act of 1984, under which
domestic and foreign publications must apply annually to the
Government for a permit. In December 1987, Parliament amended
this Act to make the publication of "malicious news" a
punishable offense, to expand the Government's power to ban
publications, and to prohibit court challenges to suspension
or revocation of publication permits. An additional
inhibiting factor is that the Government or the business arms
of the leading political parties in the ruling coalition own
almost all the major newspapers as well as all the radio and
television stations.
At the time of the ISA detentions in October 1987, the
Government revoked the publication permits of three
newspapers. Although all three newspapers resumed publication
in March 1988, the revocations and the legislative amendments
described above have resulted in significant self-censorship
by journalists and editors of the daily newspapers.
Nevertheless, opposition parties, social action groups, and a
number of private publications regularly provide detailed
coverage of opposition political activities and print
viewpoints strongly critical of the ruling coalition and its
policies. A wide range of information is available to the
Malaysian public in newspapers and magazines published in all
of the country's four major languages, and major international
and regional news publications circulate freely.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for the rights of freedom of
peaceful assembly and association, but there are significantrestrictions. Those rights can be limited in the interest of
security and public order, and the 1967 Police Act requires
police permits for all public assemblies. In the aftermath of
the intercommunal riots in 1969, the Government banned
political rallies altogether. While the ban on political
rallies has not been formally rescinded, both Government and
opposition parties have been able to hold what they refer to
as "discussion sessions" for electioneering during political
campaigns. In the eight national and state special elections
since August 1988, government and opposition candidates
campaigned openly and with minimal police interference despite
the existence of the Police Act and other restrictions; there
were no public complaints concerning the enforcement of the
Police Act. Some opposition politicians complained privately,
however, that police issuance of permits for campaign events
has not been as timely as they would have liked.
Other statutes limit the right of association, such as the
Societies Act of 1966, under which the Government can refuse
registration to organizations which comment unfavorably on
political or public issues. The threat of deregistration
under the Societies Act tends to inhibit political activism by
public or special interest organizations, but it does not
suppress such activity entirely. Another law affecting
freedom of association is the Universities and University
Colleges Act, which mandates government approval for student
associations and prohibits such associations from engaging in
political activity. In November 1988, police arrested 11
persons in Lake Garden Park who were participating in a
peaceful candlelight protest against the detentions that took
place in late 1987. Charged with illegal assembly under the
Police Act, the charges were later dropped.
For a discussion of freedom of association as it applies to
labor unions, see Section 6. a.
c. Freedom of Religion
The official religion of Malaysia is Islam, and ethnic Malays
are legally bound in some civil matters, e.g., family
relations and diet, by Islamic religious laws administered by
state authorities. An Islamic religious establishment is
supported with government funds, and it is official policy to
"infuse Islamic values" into the administration of Malaysia.
However, the Constitution provides for freedom of religion,
and the Government has refused to accede to pressures for the
imposition of Islamic religious law beyond the Muslim
community. Religious minorities, which include large Hindu,
Buddhist, Sikh, and Christian communities, practice their
faith with minimal interference by the Government.
There are persistent allegations, however, that some state
governments are slow in approving building permits for
non-Muslim places of worship. The Government has limited the
circulation of a popular translation of the Bible in Bahasa
Malaysia, and some states restrict the use of Christian terms
in Bahasa Malaysia. Conversion to religions other than Islam
is permitted but not encouraged; proselytizing of Muslims is,
and has long been, proscribed by law in some states and
strongly discouraged in other parts of the country.
Government attitudes on religious questions were evident in
the October 1987 ISA detentions when several Muslim and
Christian teachers and activists were detained.
In a development affecting the right of parents to teach
religion to their children, the state of Selangor passed a
bill in August 1989 which allows minors to convert to Islam
without parental approval. Although this legislation has yet
to be implemented and could be overturned at a later date, its
passage in the Selangor State Assembly has caused some
consternation among Malaysia's non-Muslim minorities.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
The Government does not generally restrict the right of
individuals to travel within the country and live and work
where they please, but it did place significant restrictions
on the movement and activities of some ISA detainees after
their release from detention. The restrictions on all former
October 1987 ISA detainees were rescinded by June 1989. There
are also no government restrictions on emigration. Since
there are no known Malaysian refugees in other countries,
there is no problem of repatriation. There have been some
cases of Malaysian citizens being denied passports on security
grounds, but Malaysians are generally free to travel abroad.
There are restrictions on travel by Malaysians to Israel,
South Africa, Cuba, China, Vietnam, and North Korea.
Malaysia has provided first asylum to more than 250,000
Vietnamese refugees since 1975. It has cooperated closely
with international organizations and resettlement countries in
facilitating the eventual movement of the refugees to third
countries.
In June 1989, Malaysia chaired the second International
Conference on Indochinese Refugees (ICIR). At the Conference,
the resettlement countries and the countries of first asylum
agreed to institute a comprehensive plan of action for
granting asylum and resettlement to Indochinese asylum
seekers. Boat people arriving in Malaysia after March 14,
1989 would be screened; only those determined to be genuine
refugees would be eligible for first asylum and resettlement.
Malaysia began to screen boat people on August 28. No
determinations regarding refugee status had been made as of
mid-November.
The yearly arrival rate for Vietnamese boat people to Malaysia
remained high in comparison to the mid-80*s: about 17,000
arrived during the year ending September 30, 1989.
Resettlement did not keep pace with arrivals, and the camp
population grew to 21,000, resulting in severe overcrowding at
the principal camp of Pulau Bidong and concerns among relief
workers for the asylum seekers' health. Domestic opposition
to the Vietnamese presence prevented the expansion of camp
facilities. The Government did not follow through on its 1988
announcement that it would close Pulau Bidong within the year.
Despite the commitments which it made at the ICIR, the
Government began intermittently to deny first asylum to boat
people beginning in late May, claiming it could not accept new
boat arrivals indefinitely without some assurance all would
eventually be removed from Malaysia. According to the United
Nations High Commissioner for Refugees (UNHCR) , a total of
2,470 persons had been pushed off through the end of October
1989. In most cases the Malaysians repaired and reprovisioned
the boats before returning them to sea. All such boats
reaching Indonesia have been permitted to land. Nevertheless,
one death reportedly occurred when a boat being towed to sea
overturned, and four persons (including a pregnant woman) died
of dehydration as a consequence of being pushed off.
Section 3 Respect for Political Rights: The Right of Citizens
to Change Their Government
Malaysia's parliamentary system is based on the British model.
The Prime Minister and Cabinet are responsible to Parliament,
from which they are drawn. National parliamentary elections,
which the Constitution requires at least every 5 years, have
been held regularly since independence in 1957 and have
included opposition candidates actively contesting
parliamentary seats. In addition, there are regular state and
local multiparty elections. Most observers consider Malaysian
elections to be generally free and fair, with votes cast
secretly and recorded accurately. Opposition candidates won
several hotly contested byelections in August 1988 and June
1989. Nevertheless, in several byelections in the last year,
there were allegations that government supporters attempted to
intimidate voters.
Through the United Malays National Organization (UMNO), Malays
dominate the ruling National Front coalition of ethnic-based
parties which has controlled Parliament since independence.
Non-Malays fill a number of cabinet posts. In August 1986,
the National Front won 148 of the 177 seats in the House of
Representatives. Although the opposition regularly criticizes
government policies within and outside Parliament, government
views generally prevail. Since 1957 there has been a peaceful
transfer of power in the office of Prime Minister three times.
Opposition parties, such as the Islamic Party of Malaysia
(PAS), have occasionally gained control of state governments.
Non-Malay parties have also controlled state governments; for
example, the ruling party in the important state of Penang is
largely Chinese-based, and in Sabah a predominantly Christian
party is currently in power.
A new Malay political party called Semangat 46 (Spirit of 46)
was registered in July 1989. This party is dominated by
former UMNO leaders who challenged Prime Minister Mahathir for
the UMNO leadership in 1987 and lost. There has also been
some movement toward an opposition coalition led by Semangat
46 to challenge the ruling coalition in the next general
election which must be held before October 1991. The new
party and the informal coalition have actively campaigned in a
series of national and state byelections since August 1988,
winning twice and losing the other six times.
Eleven Members of Parliament, 10 from opposition parties and 1
from the government coalition, were included among the persons
detained in October and November 1987. After their release,
all regained their parliamentary seats and party leadership
positions. Opposition leader and former detainee Lim Kit
Siang continues to criticize government policy and has also
directly challenged the Government in parliamentary sessions
since his release.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
The Government rejects criticism of its human rights record by
international human rights organizations and foreign
governments. Prime Minister Mahathir, in a speech at the
Non-Aligned Movement summit in September 1989, stated that
developing countries cannot practice the Western liberal
"brand of democracy and human rights" to the detriment of
meeting basic human needs, such as food, shelter, and
schools. Malaysian officials criticize local groups for
"collaborating" with international human rights organizations
in their studies of the human rights situation. Nevertheless,
representatives of international human rights organizations
have visited and traveled in Malaysia and have been able to
meet with some relevant government officials. In 1989
representatives of the Committee on Human Rights of the New
York City bar met with the Attorney General and other
government officials. In 1988 the Government permitted
delegations from the International Committee of the Red Cross
and the Human Rights Commission of the International
Parliamentary Union to meet with ISA detainees as well as with
government officials. Foreign government officials have met
in Malaysia with their Malaysian counterparts to discuss human
rights.
In August 1989, a group of prominent Malaysians, including two
former prime ministers, applied to the Registrar of Societies
to establish a national human rights society. The Registrar
had not by year's end ruled on the application, although in
December 1988 the Deputy Prime Minister announced that the
Government would not object. In addition, a number of
organizations, including the Bar Council and various public
interest groups, devote some time to human rights activities.
The Government tolerates their activities but rarely responds
to their inquiries or occasional press statements. The
Government has not acceded to any of the international
covenants on human rights, generally maintaining that such
issues are internal matters.
Section 5 Discrimination Based on Race, Sex, Religion, Language, or Social Status
The Government implements on an extensive scale programs
designed to boost the economic position of the ethnic Malay
majority which remains poorer, on average, than other
Malaysians despite its political dominance. These Government
programs and policies limit, in varying degrees, opportunities
for non-Malays in higher education, government employment,
business permits and licenses, and ownership of new homesteads.
The question of the rights of indigenous peoples in Malaysia
received increasing attention in 1989. The focus of this
attention has been the impact of logging on the indigenous
peoples in the East Malaysian state of Sarawak. Between
November 1988 and January 1989, 128 members of the
semi-nomadic Penan group in Sarawak were arrested and charged
with illegally blockading logging roads and bridges. Another
117 Penans were arrested under the State Forestry Ordinance in
September for similarly blockading logging roads. While the
Penan demonstrators have not yet been brought to trial, the
prosecution dropped similar charges against another indigenous
group--42 Kayans--in April.
There are no laws or regulations restricting the political and
economic rights of women. The position of women in society is
conditioned by the cultural and religious traditions of the
country's major ethnic groups. With a general resurgence of
Islamic piety among Malays, many Malay women have in recent
years tended toward close conformity with Koranic stipulations
on women's roles. Women's groups are active both within the
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governmental and private sectors. Two important umbrella
organizations for women's rights are the National Advisory
Council for the Integration of Women in Development in the
Prime Minister's Department and the National Council of
Women's Organizations.
Violence against women, including wife beating, has resulted
in a number of steps to deal with the problem. According to
government statistics, reported domestic violence cases
increased from 279 in 1982 to 900 in 1988. There are
currently no specific laws on domestic violence. Cases of
wife beating or child abuse are tried under normal assault
provisions of the Criminal Code, which carry penalties of 3
months to 1 year in prison and/or fines up to $750. A women's
aid organization runs shelters for battered wives, and several
women's groups led a succesful effort in April to toughen the
laws against rape, mandating jail sentences of at least 5
years (maximum of 20 years) and allowing the imposition of
fines and/or whipping. Women's rights organizations also
began promoting new legislation to curb domestic violence
against women and children; an interagency group coordinated
by the Welfare ministry was formed to draft the legislation.
Section 6 Worker Rights
a. The Right of Association
The Trade Unions Act of 1959 and the Industrial Relations Act
of 1967 govern the right of workers to engage in trade union
activity. Unions may organize workplaces, bargain
collectively with an employer, form federations, and join
international organizations. The Industrial Relations Act
specifically prohibits any person from interfering with,
restraining, or coercing a worker in the exercise of the right
to form or participate in the lawful activities of a trade
union.
The Trade Unions Act, which is administered by the Director
General of Trade Unions (formerly the Registrar of Trade
Unions), sets rules for the organization of unions, their
recognition at the workplace, the content of their
constitutions, election of their officers, and their financial
reporting requirements. The Act's definition of a trade union
restricts it to representing workers in a "particular trade,
occupation, or industry or within any similar trades,
occupations, or industries," contrary to guidelines of the
Committee on Freedom of Association of the International Labor
Organization (ILO).
The Director General of Trade Unions may refuse to register a
trade union on a variety of grounds. He also has the power,
under certain circumstances, to withdraw the registration of a
trade union. A trade union for which registration has been
refused, withdrawn or canceled is considered an unlawful
association.
Malaysia's electronic components industry, dominated by
American and Japanese firms, has been the focus of
unsuccessful union organizing efforts since the late 1970's.
The Government has used its various powers to prevent the
formation of a union in the industry other than strictly "in
house" unions. In August 1989, the Director General of Trade
Unions refused to register the National Electronics Workers
Union on the grounds that it did not meet the definition of a
"trade union" in the Trade Unions Act because its members work
in the electrical and electronics industries, which the Labor
Minister has determined are different industries. Union
leaders have stated that they seek to represent only workers
in the elctronics industry. The Government has been
repeatedly criticized by the ILO for continued failure to
comply with ILO Convention 98 (right to organize and to
bargain collectively).
Some critics of the Government's policy toward labor unions,
notably the American Federation of Labor and Congress of
Industrial Organizations (AFL-CIO) and Asia Watch, believe the
arrest of V. David under the ISA in the government crackdown
late in 1987 (see Section l.d. above) demonstrated labor
leaders' vulnerability to government pressures, which, critics
assert, inhibit their carrying out legitimate trade union
activities. Mr. David has declared publicly that questioning
during his detention related only peripherally to his role in
the Malaysian Trades Union Congress (MTUC) and the Transport
Workers' Union (TWU) . He continues as MTUC Secretary General,
campaigned successfully for reelection to that position in
December 1988, and has been allowed to travel abroad to trade
union meetings.
Federations of trade unions may cover only a single trade or
industry or similar trades or industries. The only labor
federations currently registered are one for public servants,
one for teachers, and one for state-based textile and garment
workers' unions. The MTUC, the main labor body, is registered
as a society under the Societies Act (rather than the Trade
Unions Act). Previous MTUC efforts to register as a trade
union federation under the Trade Unions Act were turned down
because of its broad membership. In Noyember 1988, however.
Parliament approved legislation granting the MTUC the status
and rights enjoyed by Malaysian trade unions, although it
remains a society.
As of December 1988, there were 392 individual unions in
Malaysia with over 616,626 members (10.4 percent of total
employment).
Unions are independent both of the Government and of the
political parties. While unions are not permitted to engage
in political activity, individual trade union leaders have
served in Parliament (V. David, the MTUC Secretary General, is
currently a Member of Parliament for an opposition party) and
individual union members belong to political parties.
Malaysian trade unions are free to associate with the
appropriate international trade secretariats, and a number of
Malaysian labor leaders play major roles in international
labor affairs. The MTUC is affiliated with the International
Confederation of Free Trade Unions (ICFTU). The Secretary
General of the National Union of Plantation Workers is
President of the ICFTU, and the MTUC Secretary General has
actively participated in the ILO governing body.
While strikes are legal and do occasionally occur, critics
claim that this right in practice is severely restricted. The
Industrial Relations Act of 1967 requires the parties to
notify the Ministry of Labor that a dispute exists before any
industrial action may be taken. If government conciliation
fails to achieve a settlement, the Minister has the power to
refer the dispute to the Industrial Court, which effectively
becomes compulsory arbitration. A strike is prohibited while
the dispute is before the Industrial Court, and an award made
by the Industrial Court cannot be appealed. Industrial Court
awards are the exception rather than the rule, however,
representing only about 18.5 percent of all collective
agreements referred to the Industrial Court in 1988. The
remaining agreements were reached through bargaining between
management and labor.
b. The Right to Organize and Bargain Collectively
Collective bargaining is the norm in Malaysian industries
where workers are organized. Malaysia's system of
conciliation and arbitration seeks to promote negotiation and
settlement of issues without strikes.
In a complaint to the ILO, the MTUC alleged that the 1980
amendments contain prohibitive and oppressive antiunion
provisions which erode the basic rights of workers, restrict
union activities, and result in government and employer
interference in the internal administration of unions. In
1983 the ILO urged the Malaysian Government to amend these
laws further to bring them into conformity with the ILO
Convention on the right to organize and to bargain
collectively. Despite subsequent amendments, the MTUC still
believes the labor law to be deficient by ILO standards. Many
union leaders also believe that creation of the Industrial
Court to handle industrial disputes further weakened their
collective bargaining rights.
Labor standards in free trade zones are the same as those in
the rest of Malaysia. Workers at many companies located in
the free trade zones are unionized, especially in the textile
and electrical products plants. Enterprises granted "pioneer"
status (whether or not located in a free trade zone) are
protected from union demands for terms of employment exceeding
those specified in the Employment Act of 1955 during the
period of their pioneer status (normally 5 years). The
restriction does not apply to wages or benefits not covered by
the Employment Act (see Section 6.e. below).
c. Prohibition of Forced or Compulsory Labor
Malaysia is a party to ILO Convention 105 prohibiting forced
or compulsory labor and it has effective legal sanctions
against such abuses. The ILO has criticized Malaysia for
requiring prisoners and ISA detainees to work. Malaysia
defends the practice as part of its prisoner rehabilitation
program.
d. Minimum Age for Employment of Children
Employment of children is covered by the Children and Young
Persons (Employment) Act of 1966, which stipulates that no
child under the age of 14 may be engaged in any employment
except light work in a family enterprise, in public
entertainment, work performed for the Government in a school
or training institution, or employment as an approved
apprentice. It is illegal for children to work more than 6
hours per day, more than 6 days per week, or at night. The
law is effectively enforced through periodic inspections by
the Ministry of Labor.
e. Acceptable Conditions of Work
Malaysian wages are relatively high for its level of
industrialization and higher than in all neighboring countries
except Singapore. The Employment Act of 1955 sets working
24-900 O—90-
hours not to exceed 8 hours per day or 44 hours per week
(5 1/2 days), sets overtime rates for hours in excess of
those, and mandates public holidays, annual leave, sick leave,
and maternity allowances for workers. Most such provisions
are at least on a par with standards in industrialized
countries. Minimum standards of occupational health and
safety are set by law and enforced by a unit of the Ministry
of Labor. Severance benefits are provided under the
Employment (Termination and Lay-off Benefits) Regulations of
1980. The Employees Provident Fund (EPF) Ordinance of 1951
requires employers and employees to contribute to a fully
funded retirement program. Some 90 percent of workers are
covered by either the EPF or the Government's own pension plan
for public servants. The Workmen's Compensation Act of 1952,
and the Social Security Act provide disability and workman's
compensation benefits.
There is no national minimum wage legislation, but certain
classes of workers are covered by minimum wage laws: retail
clerks, hotel and restaurant employees, cinema workers, and a
few others, totaling approximately 140,000 workers. By local
standards, and taking into account various worker benefits
received by most workers, Malaysian wages provide a decent
standard of living for workers and their families. The
effective minimum wage for unskilled labor in the urban areas
is about $90 per month. Plantation work is increasingly being
done by contract workers, including numerous illegal
immigrants from Indonesia, in part due to a shortage of
Malaysians interested in such work. Working conditions for
contract workers often are significantly below those of direct
hire plantation workers, many of whom belong to the National
Union of Plantation Workers. Additionally, many of the
immigrant workers, particularly the illegal ones, may not have
access to Malaysia's system of labor adjudication. In 1989
the Malaysian Government, at least in part to prevent the
exploitation of these workers, moved to legalize large numbers
of illegal immigrant workers, granting 290,000 work passes to
Indonesian plantation workers in August.
