THE heralding of Malaysia Baharu since the historic 14th General Election (GE14) promised an era where oppressive laws would be repealed, public institutions would be governed with independence and adherence to the rule of law, and our human rights record would be respected by the world. As we take a look back at the past 12 months, how has the government fared and has this dream of Malaysia Baharu really transpired?
Any democratic and liberal society which respects human rights should not retain the death penalty in any form. After an announcement in late 2018 that the government would abolish the death penalty and imposed a moratorium on all executions, they backtracked after facing opposition from those who favoured the punishment for its imaginary deterrent effect.
Yet multiple studies, including one carried out by the International Centre for Law and Legal Studies of Malaysia under the auspices of the Attorney-General’s Chambers, have consistently shown that there is no link between the death penalty and
a reduction in crime.
The resulting compromise was that the death penalty would no longer be mandatory for certain offences. The majority of death row prisoners in Malaysia are not violent criminals or murderers, but drug traffickers. However, it doesn’t take a large quantity of drugs for a person to be sentenced to death – only 15g of heroin, 200g of cannabis and 50g of methamphetamine (more commonly known as syabu) to trigger the
presumption of trafficking under our harsh drug laws.
Although the moratorium on execution means that no one has suffered death by hanging this year, we must go further and totally abolish this cruel form of punishment that violates international human rights law.
The government has repealed the Anti-Fake News Act 2018, which was passed by the previous government in a desperate attempt to control dissenting views which they had termed “fake news” prior to GE14. Its abolition was part of a wider improvement in freedom of speech and expression in Malaysia, including freedom of the press.
In the Reporters Without Borders Press Freedom Index 2019, Malaysia rose a remarkable 22 places from 145 last year to 123 this year, the highest of any Asean member state.
However, several pieces of oppressive legislation which violate basic human rights remain law, including the Sedition Act 1948, the Security Offences (Special Measures) Act (Sosma) 2012, the Prevention of Crime Act (Poca) 1959 and the Prevention of Terrorism Act (Pota) 2015. The government promised to either repeal these statutes or amend their most draconian provisions, but they all remain unchanged.
It is clear the Sedition Act must be abolished, as it is an outdated piece of colonial legislation that was not even enacted by our independent Parliament. Most modern and democratic states in the world have either repealed or allowed such oppressive laws to fall into disuse. It is undeniable that sedition in Malaysia is too broadly defined and open to abuse, as we have seen repeatedly in the recent past. Under the law, almost anything said or published that is remotely contentious can be deemed seditious.
Although the present government has not prosecuted anyone for sedition, the temptation to use the law remains high. We have seen how the police have continued to open investigations for
comments made relating to the so-called sensitive subjects of race, religion and royalty.
The Sedition Act allows for a far-reaching chilling effect and arbitrary powers which offend basic democratic principles. On this basis alone, the law ought to be abolished and future governments should not have the option to use it against political opponents and dissidents.
Sosma allows for a show trial that will almost inevitably lead to conviction, as the procedural law excludes fundamental safeguards found in the Criminal Procedure Code, Evidence Act and other laws. Evidence which would normally be inadmissible in a criminal case can be admissible in a Sosma trial, including that which is obtained by oppression or even fabrication. Sosma makes a mockery of the rule of law, our justice system, and falls far short of international standards of fair trial.
As for Poca and Pota, these are detention without trial laws akin to the now repealed Internal Security Act (ISA) 1960. If the rationale for abolishing detention without trial applies to the ISA, surely the same must apply to Poca and Pota. Without exception, no one should be detained without trial. If the authorities have strong grounds to suspect that those detained under Poca and Pota have committed offences, they should be charged and tried fairly in a court of law.
Abolishing Sosma, Poca and Pota does not mean that the authorities will lack the power to tackle terrorism, human trafficking or other serious crimes. It merely means that there would be no shortcut to putting people behind bars, and that those who are guilty of committing serious offences would be imprisoned based on robust and secure convictions.
Although these laws have not been amended, there are glimmers of hope that our justice system is evolving and improving. Most recently, the High Court declared that Section 13 of Sosma, which prohibits the court from even considering bail, is unconstitutional. The impact of this landmark judgment was strengthened by the decision of the Attorney-General to agree with the court, and not to appeal the ruling.
This development was significant not only in terms of recognising the difficulties with Sosma,
but also as a demonstration of the greater levels of judicial independence in the country.
Tan Sri Tengku Maimun Tuan Mat was appointed Chief Justice, the country’s highest judicial post, in May this year. Since then, she has consistently spoken out, calling for the judiciary to remain independent and to uphold the Federal Constitution, separation of powers and the rule of law.
Following the heated debates about the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd), resulting in the failure to sign the convention late last year, it was disappointing to see the government come under political pressure again over the Rome Statute. Amidst a flurry of misleading information and politically motivated opposition to the Rome Statute, which would have made Malaysia a member of the International Criminal Court,
the government withdrew from ratifying the statute.
It would undoubtedly be beneficial for Malaysia to ratify both Icerd and the Rome Statute, as well as other core international human rights instruments. But it is important not to be deterred by these setbacks. The government can
and should act to resolve our key human rights issues and protect fundamental freedoms, regardless of whether it has formally acceded to these instruments.
The struggle to see the Independent Police Complaints and Misconduct Commission (IPCMC) become a reality continued this year, having been first recommended by the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005. Much progress was made, with agreement finally being reached in May that the IPCMC would be established and the draft Bill put forward for consultation.
The draft contained several strong provisions, including giving the IPCMC the power to conduct investigations on its own initiative, to deal with cases involving grievous hurt or death in custody, and to determine and impose appropriate disciplinary action.
It has been reported that 37 amendments have been made following stakeholder consultations, but these will now not be debated until the next parliamentary sitting due to resistance from the police and the opposition.
The IPCMC need not be an acrimonious issue. Importantly, the current draft deals with matters of police misconduct as well as enhancing the wellbeing of the police. At this point, almost 15 years since the IPCMC was first proposed, the Bill must be passed at the next opportunity so that a new era of trust and public confidence in the police can begin.
While there have been some disappointments in terms of human rights progress in 2019, the government has still managed to achieve some significant reforms. The
challenge of building a more democratic, liberal and human rights respecting Malaysia after six
decades of the same oppressive regime cannot be underestimated.
High points include the lowering of the voting age from 21 to 18, which gained bipartisan support in Parliament, and a positive change in political culture with the introduction of more parliamentary select committees. For the first time ever, the annual report of the Human Rights Commission of Malaysia (Suhakam) was debated in Parliament.
The prominence of human rights in public discussion and political debate serves as a promising indicator of things to come, including the drafting of sexual harassment and anti-stalking laws and the establishment of a Malaysian Media Council.
Looking ahead to 2020, the government will continue to face challenges but must be unwavering
in its continued commitment to reform and taking greater strides forward for Malaysia Baharu.
Eric Paulsen is the Malaysian representative to the Asean Intergovernmental Commission on Human Rights. The views expressed here are solely his own.