WORLD REPORT 1997 - Malaysia

Human Rights Developments

Malaysia=s harassment of nongovernmental organizations and its violations of freedom of expression were issues of concern during the year, and the arrest and trial of human rights activist Irene Fernandez, director of a women=s and migrants= rights organization in Kuala Lumpur called Tenaganita, exemplified both.

On March 18, Fernandez, aged fifty, was arrested at her home and charged with Afalse reporting@ under Section 8A(1) of the Printing Presses and Publications Act of 1984 in connection with a brief report Tenaganita had issued in July 1995 on the treatment of migrant workers in Malaysia=s immigration detention centers. She was released on bail and was at liberty throughout the court proceedings.

The Tenaganita report, quoted widely in the national and international press, contained allegations of torture, mistreatment and deaths of migrant workers in the period 1994 to 1995 and focused in particular on a major detention camp outside Kuala Lumpur in the town of Semenyih. The report was denounced by the Home Ministry as defamatory, and when Fernandez=s trial opened on June 10 in a Kuala Lumpur magistrate=s court, the prosecution cited sixteen statements it said were false. Unlike the Malaysian penal code, the Printing Presses and Publications Act places the burden of proof on the accused in defamation cases and assumes malice unless the accused can show that he or she took steps to verify the news. The charge carries a maximum penalty of three years in prison.

The trial, still going on at the end of the year and expected to continue through early 1997, became a cause célèbre among Asian NGOs and international advocacy groups working on behalf of migrants and women. NGOs were concerned that the charges diverted attention from the real problems of custodial abuse of immigrants and from state responsibility to investigate and prosecute those abuses. If there were errors in the report as the government alleged, the government could have provided a detailed refutation and given Tenaganita a chance to respond publicly or privately. Human rights activists were concerned that if NGOs were to be tried on criminal charges for errors in their publications and their daily activities disrupted as a result, freedom of expression and association both would be severely jeopardized.

The trial also led to questioning of Tenaganita=s legal registration under the Companies Act, rather than the Societies Act. The latter has more onerous registration procedures and allows wider liability of personnel; as a result, many NGOs had elected to register under the former, but the government=s investigation of Tenaganita suggested that more intense state scrutiny of NGO registration would be forthcoming.

The Afalse reporting@ section of the Printing Presses and Publications Act, together with the Sedition Act, were used against opposition parliamentarian Lim Guan Eng from Malacca in a trial that opened in January and that many observers saw as an assault on free speech. In a lecture in January 1995, Lim had charged that a former Malacca chief minister, who also happened to be a powerful member of the ruling UMNO party, had raped a fifteen-year-old girl and that the girl had been detained for three years in a welfare home while the minister went free. The prosecution charged that his accusation constituted sedition because it instilled hatred and Aaroused sentiments against the administration of justice in the country.@ The charge of Afalse

reporting@ was based on a pamphlet Lim had published with the title AVictim Jailed.@

Lim=s trial was adjourned shortly after it opened to await a federal court ruling on a landmark burden of proof case. The ruling, which came on July 26 and was welcomed by civil liberties groups in the country, established that the prosecution must prove its charge beyond a reasonable doubt before the defense is presented. It was not clear when Lim=s trial would resume.

In the government=s efforts to avoid communal conflict, basic civil liberties sometimes suffered. By the end of the year, at least eighteen members of the banned Al-Arqam sect had been arrested under the Internal Security Act (ISA), and at least nine had been served with two-year detention orders. The ISA, which the government placed under review during the year, provides for indefinitely renewable two-year detention periods without trial for people considered a danger to state security. All eighteen detainees were accused of trying to revive the sect banned in 1994. The Malaysian government had accused it of Aexclusivist@ and Adeviationist@ teachings; press reports suggested that the ruling UMNO party was concerned about the extent of its business holdings.

The government closed the last transit camps for Vietnamese boat people at the end of June with the forced repatriation by ship of hundreds of asylum-seekers from the Sungai Besi camp outside Kuala Lumpur. A riot broke out in which Vietnamese reluctant to return clashed with Malaysian security forces. Many of the Vietnamese employed violence, mostly throwing stones and molotov cocktails and also, in a few cases, firing homemade bows and arrows. However, the security forces responded with excessive force, firing on the Vietnamese, killing one man and injuring others.

The Right to Monitor

Malaysian human rights groups faced harassment and intimidation as noted above but were legally free to operate. The consequences for NGOs of the Irene Fernandez prosecution and trial were not clear at the end of year.

The Role of the International Community

The Fernandez trial attracted international attention particularly from countries whose nationals work as migrants in Malaysia: Bangladesh, Indonesia, and the Philippines in particular. Observers from the first two countries attended sessions of the trial, as did a diplomatic representative from the U.S. embassy. In addition, when the government confiscated Irene Fernandez=s passport in March to prevent her from traveling to Geneva for the U.N. Commission on Human Rights meeting, the U.S. made appeals on her behalf. Members of the U.S. Congress also protested her arrest and trial; in March, the Congressional Human Rights Caucus wrote a letter to Prime Minister Mahathir urging that all charges against her be dropped.

Malaysia appeared to take the lead within ASEAN on granting membership to Burma despite the latter=s appalling human rights record.