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General Writings

WE WON’T FORGET OUR VICTIMS OF ENFORCED DISAPPEARANCE

Last I checked, Malaysia is a country in which the rule of law is prized [1].

We have comprehensive laws on important issues, government officials mandated to enforce them, and courts tasked to uphold them. Head into a bookstore and you’ll find shelves of statute books. Head to Putrajaya and you’ll see a grand Palace of Justice, the Istana Kehakiman. These are badges of legality that we can be proud of. However, for them to continue to truly represent the rule of law, there must not be any force or penalties imposed on individuals apart from the law, with impunity. That would terminate the “rule of law”. It would instead be “rule by individuals in power”.

Pastor Raymond Koh, Amri Che Mat, Joshua Hilmy, and Ruth Sitepu went missing in 2016–17. There was no conviction or charge against them in a court on the basis of law, let alone a sentence. Yet Suruhanjaya Hak Asasi Manusia (SUHAKAM), a statutory body, found that Koh and Che Mat were subjects of enforced disappearance, probably by the Special Branch of police [2]. 

Our legal system is meant to facilitate fines, imprisonment, or other penalties for violations of the law as declared by a court. But out of the two possibilities for what happened to the four individuals on the fateful days they disappeared, whichever is true, the way their disappearances are being handled at present could suggest that those in authority do not believe in the rule of law any more:

• Possibility #1—Enforced disappearance: If, as SUHAKAM suggested, they were abducted by the Special Branch of police, the state agents must be held accountable, either properly defending their actions as lawful or being punished for exceeding their powers.

• Possibility #2—Abduction by private actors: If the Special Branch of police did not abduct these individuals—although SUHAKAM doubts this—then they were probably abducted or attacked by private actors, in which case the government is responsible for finding them and holding them accountable.

The silence is chilling. The details of what exactly Koh, Amri, Hilmy, and Sitepu did wrong are sketchy and unclear: they are either the product of hearsay, or even if the product of more authoritative statements by people who knew them, have not been considered definitively by a court of law. This uncertainty means that all individuals who are not of a majority religion might hesitate to do anything outside of their homes for fear of committing whatever unstated “transgression” that those four individuals supposedly committed. So much for Article 11(1) of the Federal Constitution which guarantees the freedom to profess a religion to every Malaysian.

This chilling effect applies not only in respect of religious minorities, but also in respect of holders of minority political beliefs, those with marginalised ethnic backgrounds and other protected characteristics; perhaps even private contractors who deal with the government. So long as disappearances are not based on law but on the unexplained decisions of the authorities, this is a slippery slope. At a stretch, even the kaki lima cobbler who doesn’t shine a political leader’s shoes with enough shine, or the person at the next table in the mamak who the political leader thought had a face problem, could be at risk. 

Where the legal system is taken seriously as the exclusive means to enforce the rules that our society lives by, the difference between violating the law and not violating the law is a vertical cliff. One slaps a court judgment against you and sentences you to prison (or other penalty); the other leaves you safe at home with your loved ones without fear. But where an extra-legal system is operating with unexplained secret operations, and the legal system is used only when convenient, then we’re on a wretched journey to dystopia. Lock your doors at night and hold your loved ones close, because who knows what secret code of behaviour you’ve accidentally broken today? They might be out to get you this very moment.

What needs to be done? We uphold SUHAKAM’s recommendations in its April 2019 reports. A special task force has already been set up [3]. We understand that investigations must be thorough, and that that would take time. However, we want to remind the task force that we are waiting. 

Whilst accountability for these four individuals is important, we look prospectively ahead too: we hope for more accountable institutions in future. We ask for an Independent Police Complaints and Misconduct Commission—one that “enhance[s] accountability of the police and promote[s] good governance in the country” [4].

To achieve comprehensive institutional and legal reform, we join SUHAKAM’s call for an overarching commitment by the government to ending enforced disappearances [5]. The best way to secure this is for Malaysia to accede to the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), according to which Malaysia would have to implement an effective legal framework.

It is clear that no society can thrive in the chains of lawless force. At the same time, the Malaysian authorities cannot get away by delaying investigations and hoping for the news to fade: for no society can thrive in a vacuum either. It is prohibitively precarious. In such a vacuum, we would live in fear, unable to trust our institutions and our law, since we do not know what happened to our brothers and sister who were taken away. 

We look for light in this bleak state of things. The families of Pastor Raymond, Amri Che Mat, Joshua, and Ruth deserve better. We, the people, deserve better. 

#TidakAkanLupa  

References:

[1] See Public Prosecutor v Mohamed Ismail [1984] 2 MLJ 219; Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1993] 3 MLJ 265; Chai Choon Hon v Ketua Polis Daerah, Kampar and Government of Malaysia [1986] 2 MLJ 203.

[2] SUHAKAM, Public Inquiry into the Disappearance of Pastor Raymond Koh, Final Decision (3 April 2019): https://drive.google.com/file/d/1qQ9WAQzizsZDGwHsiYM-mFWnlkg2XJPU/view; SUHAKAM, Public Inquiry into the Disappearance of Amri Che Mat, Final Decision (3 April 2019): https://drive.google.com/file/d/1VB__ZJyop1ZaAYeDQ3KZOR-aqr2IUndg/view, especially [171].

[3] Free Malaysia Today, “Task force on Koh, Amri disappearance wants more time to prepare report” (16 January 2020): https://www.freemalaysiatoday.com/category/nation/2020/01/16/task-force-on-koh-amri-disappearance-wants-more-time-to-prepare-report/. 

[4] Human Rights Commission of Malaysia, Press Statement No.24 of 2020 “SUHAKAM expresses its concerns on the IPCC Bill 2020” (27 August 2020): https://www.suhakam.org.my/press-statement-no-24-of-2020-suhakam-expresses-its-concerns-on-the-ipcc-bill-2020/.

[5] Malay Mail, “Commemorating International Day of the Victims of Enforced Disappearances—Suhakam” (30 August 2020): https://www.malaymail.com/news/what-you-think/2020/08/30/commemorating-international-day-of-the-victims-of-enforced-disappearances-s/1898506.

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Blog Posts General Writings

The Case For A Unified Domestic Regime Against Modern Slavery: Part 1

by Emily Ho

Reading the Malaysia chapter of the recent 2020 Trafficking in Persons Report by the US State Department, I couldn’t help but notice a recurring concern in its Prioritised Recommendations and observations on Prosecutions. It is that there is a lack of familiarity and understanding of the national legal framework on human trafficking. This, and other factors such as alleged corrupt practices, have led to the result that “[the] government prosecuted and convicted fewer traffickers” in this reporting period (October 2019 to March 2020): twenty prosecutions and twenty convictions, compared to fifty prosecutions and fifty convictions in the last reporting period. Several of the Report’s prioritised recommendations can be traced back to this lack of familiarity; for example, it is recommended that we “[provide] improved guidance to prosecutors on pursuing trafficking charges, and increase judicial familiarity with the full range of trafficking crimes”.

In this Article I briefly consider the shortcomings of our current law against modern slavery, making it difficult to gain a competent grasp of it for the purposes of investigation and prosecution. Then I set out a vision for a more robust domestic legal regime against modern slavery: a unified statute encompassing the different forms of modern slavery in one code.

Forms of modern slavery

The term “modern slavery” encompasses four principal forms of abuse: slavery, servitude, forced or compulsory labour, and human trafficking. Traditionally, the former three are bundled together. They are forms of abuse that are very much like each other but differ in degree, forming a scale or “gradation” of modern slavery forms [1]:

  • Slavery: “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised” (Art.1(1), 1926 Slavery Convention, which Malaysia is not party to, but which forms, internationally, the basic legal concept of slavery). This includes de jure and de facto ownership [2].
  • Servitude: a “particularly serious denial of freedom” involving coercion and the victim’s subjective sense of the permanence of their situation, as suggested by the European Court of Human Rights in Siliadin v France and Chowdury v Greece; a degree more grave than forced labour
  • Forced labour: “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (Art.2 1930 Forced Labour Convention, to which Malaysia is a party).

Human trafficking, on the other hand, is considered separately because it uniquely includes the element of the migration of individuals from one place to another. The UN’s 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons (aka the “Palermo Protocol”) sets out the definition in Art.3(a): “the recruitment, transportation, transfer, habouring or receipt of persons [i.e. an act], by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person [i.e. a means], for the purpose of exploitation [i.e. a purpose]”. This is often understood as a three-piece formula of act + means + purpose to establish trafficking.  

In the UK, which is considered to have one of the best legislative codes addressing modern slavery, has enacted its criminal provisions and statutory protective measures concerning these four categories of modern slavery into a single Act of Parliament: the Modern Slavery Act 2015. Its offence provisions, for example, capture modern slavery forms in two neat sections: 

Section 1: Slavery, servitude and forced or compulsory labour

(1)  A person commits an offence if—

(a)  the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or

(b)  the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour.

[…]

Section 2: Human trafficking

(1)  A person commits an offence if the person arranges or facilitates the travel of another person (“V”) with a view to V being exploited.

[…]

(2)  A person may in particular arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V.”

These provisions form a clear and cohesive criminal response to modern slavery, easily studied and understood by law enforcers and prosecutors.

In contrast, domestically, the only purpose-enacted regime against modern slavery is the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (“ATIPSOM”). It is commendable that we do have such a statute, but it is hard to ignore that since its enactment in 2007, Malaysia has still not risen above the Tier 2 Watch List category. Indeed, in 2009 and 2014, we even fell into the Tier 3 category. Besides that Act, slavery, servitude, and forced labour are addressed only in patchy fragments of law, as hard to comprehend as puzzle pieces of a Picasso drawing. As collated by the Antislavery in Domestic Legislation project:

  • Slavery: “Provisions related to slavery are found in the Federal Constitution, which prohibits slavery at article 6, and the Penal Code which prohibits buying or disposing of any person as a slave (s 370), habitual dealing in slaves (s 371), and kidnapping or abducting in order to subject a person to slavery (s 367).”
  • Servitude: “There appears to be no legislation in place in Malaysia which prohibits servitude, although article 5 of the Constitution prohibits deprivation of personal liberty except in accordance with the law.”
  • Forced labour: “Provisions related to forced labour are found in the Constitution, which prohibits forced labour at article 6 and the Penal Code which criminalises unlawful compulsory labour.”

Apart from this piecemeal patchwork of law, slavery, servitude, and forced labour may also “form an element of an offence of trafficking under [ATIPSOM]”, but are not, in their own right, addressed or criminalised by it.

It is suggested that this domestic legal collage of modern slavery law should be unified into one statute criminalising slavery, servitude, forced or compulsory labour, and human trafficking all in one Act, along with statutory measures to protect victims of these offences. This would (1) make for a cohesive code more easily understood by law enforcers and prosecutors, and (2) properly emphasise the exploitative dimension of human trafficking to prevent the excessive focus on the (often forced or inadvertent) immigration transgressions of the victims.

To be continued in Part II.


Emily Ho is a recent first-class graduate in law from the University of Cambridge, with a keen interest in human rights law. She is currently studying for the UK Bar exam, and will enrol as a LLM student at Harvard Law School next August. One of her passions is combatting modern slavery in Malaysia, and to that end she has created a webpage compiling information about modern slavery in Malaysia in words that anyone can understand.

Find her at Facebook –  https://www.facebook.com/emilyho99/

Categories
General Writings

My Two Cents: Local Advocacy For Women’s Rights Do Not Harm Men

By Elliot Cheah

Hey, why are there two head prefects? I thought the boy is the head prefect and the girl is the vice head prefect,” 

What? No, of course both get to be head prefects,” my 7-year-old brother replied as a matter-of-factly.

That’s when it dawned on me that I have internalized patriarchy and sexism. Until that day, I was completely unaware about it. As far as my 15-year memory serves me, no one has ever told me explicitly that women are less capable than men. So why do I have such thoughts? 

Fast forward to my university days, I realized due to lack of proper exposure, sexist behaviours could be happening right in front of our face but we fail to recognize it – from “women can’t drive” jokes to casual comments that women are “too emotional”, “too bossy”, or “too meek to be a leader”.

I found out about the feminist movement and how it has helped women have a more equal standing in society. In a local sense, one can also easily observe women’s rights advocacy here in Malaysia. It includes campaigning against child marriage (GGAM), providing legal and emotional support to survivors of domestic violence (AWAM, WCC), providing information to recognize abuse and steps to take, promoting women’s participation in politics (EMPOWER) etc. Needless to say, I stand for it. 

__________________________________________________________________________________

Nonetheless, my casual observations throughout university has made me concerned about the spread of resentment and dissatisfaction, mostly among boys and men, towards this movement. It does not bring good if half a segment of society feels alienated. I hope to be able to address some in a local context – 

1.  Parking lots and train coaches for women

Some people pointed out that women-only parking lots and train coaches perpetuate inequality, because men do not enjoy the same privileges. 

As commonly known, women are more at risk of physical and sexual harassment than men. The YouGov Omnibus’ survey in 2019 found that 36% of Malaysian women have experienced sexual harassment compared to men (17%), and only half of those experienced sexual harassment reported or told someone about the incident.

Observing the results, men have also experienced sexual harassment and this should not be dismissed. However, based on the concept of gender equity, since women are twice more likely to experience sexual harassment, it seems justifiable that extra effort is taken to address this. The facilities designated for women were because they are a category of people who face a higher risk of harassment, in other words a preferable target for harassers. 

2. That men are always blamed 

Some people have expressed resentment that there is this belief that men are more likely to be harassers, stalkers or aggressors compared to women. My first instinct was empathizing with these individuals, they must have felt rejected or demonized for things that they are not at fault. 

Nevertheless, I questioned myself later – is it a prejudice to think that most harassers are men, or that men are more likely to be aggressors? I do not want my male counterparts to feel demonized, how do I address this? 

Here’s an example of men (or boys) being unfairly treated under the law. In Malaysia, if an underage boy and an underage girl had consensual sex, the boy can be charged under Section 375 of the Penal Code for rape; whereas the girl can only be charged under Section 507 of the Penal Code for insulting the modesty of a person, which carries less punishment in comparison to rape. Though if both are minors, they may be tried in the Court for Children.

Under our archaic law, “rape” can only be committed by a man towards a woman. ‘Rape’ is defined as a man having sexual intercourse with a woman without her consent – section 375 of the Penal Code; and ‘sexual intercourse’ is defined as penile penetration into the vagina – explanation to section 375; Bunya Anak Jalong v Public Prosecutor (2015)

It follows that section 375(g) which lays out the offence of statutory rape i.e. sexual intercourse with a girl under the age of 16 whether or not she has given consent, the perpetrator must be a boy and the victim must be a girl.

The rationale of the offence of statutory rape was to protect minors, where there is unequal power dynamics. However, it fails to take into account this specific scenario where both parties, who are of the same age or maturity, consented. 

Before bashing me that women are blamed for many things too! Perhaps this distinction may help. Although in many situations, men are unfairly assumed to be the wrongdoer; women are also unfairly assumed to be the provocator. This is a result of sexism and there needs to be more dialogue to dismantle this. 

3. The lack of voices when men are at a disadvantage 

Continuing my point above, some people have expressed discontent that only women and children’s welfare are being heard, how about men’s? 

Currently, in Malaysia, there seems to be only organizations that focus on women and children’s welfare, but none for men. My take is that these bodies were created, because a large number of women were experiencing various levels of violence and discrimination. Because most victims were women and most perpetrators were men, accordingly the attention shifts towards the party who needs urgent help i.e. women.

Further, this argument about the absence of voice for men’s gender-based concerns is not exactly accurate. In November 2019, Women’s Aid Organization (WAO) created an online petition and called on the Ministry of Human Resources to introduce at least 7 days paternity leave in the private sector. WAO advocacy manager Yu Ren Chung said, 

Fathers want to play a role and want to support their wife in being part of the process as well as to bond with their newborn baby. Looking at gender equality and gender roles, we want to move away from the idea that childcare and childbirth is solely the responsibility of mothers.” This is a great initiative that promotes both the welfare of men and gender equality. 

Another example can be observed from All Women’s Action Society (AWAM). In October 2020, AWAM reminded that the Sexual Harassment Bill should provide protection not only to women and girls but to transgenders, boys and men, acknowledging that men face unwanted sexual advances as well. They also pointed out that due to the belief that only women suffered sexual harassment, there is a lack of research on the harassment of males.

Before concluding, if I may, it is not that society does not care about the welfare of men or hate men. It is that in the current circumstances, women bear a disproportionate burden, hence the voices for the protection and empowerment of women. 

__________________________________________________________________________________

Moving forward, I wonder if men who want their gender-based concerns to be heard would want to form their own community or advocacy group. It would be splendid to have them in the conservation and progress for gender equity and gender equality. For instance, redefining masculinity, acknowledging rape culture, and empowering men in abusive situations.

Men have always been in decision-making positions. They are free to advocate their gender-based concerns like existing women’s groups. However, it must come with good faith. Are they speaking up to drown the voices of other quarters or are they speaking up for the betterment of all genders? Or if not all, would they at least voice their concerns without the expense of causing harm to other segments of society? 

I believe there are well-principled men who silently stand for gender equity and gender equality. We need your voice and participation not only to defuse resentment against the movement, but to also work towards a society where everyone is cared for according to their respective needs.

Writer Profile

Elliott is a CLP student graduated from the University of Essex, UK. They have an interest in human rights and are often fascinated by the multiple facets of human rights. Despite multiple experiences in human rights NGOs, Elliott is looking forward to the general practice of law in the near future.  

Reviewed by: Wayne Cheah

Categories
General Writings

Part II – Challenging The Status Quo That Marginalizes The Queers

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If you haven’t read part I of this series, check it out here!

Challenging anti-LGBT laws

Fortunately, discriminatory laws in Malaysia have not gone unchallenged. Apart from the ‘anti-sexual diversity law’ that has been disputed recently, ‘anti-gender diversity law’ has also been challenged before.

A series of violent and arbitrary arrests have prompted activists and lawyers to take the matter to court. In 2014, a landmark ruling in the Court of Appeal declared Section 66 of the Negeri Sembilan Syariah Enactment unconstitutional as it was inconsistent with Articles 5, 8, 9 and 10 of the Federal Constitution. In Muhamad Juzaili bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors [2015] 3 MLJ 5013 [70], the court found that “[a] person’s dress, attire or articles of clothing are a form of expression, which in our view, is guaranteed under Article 10(1)(a)”.

It would have had a profound impact on all transgender people in the country, Muslims and non-Muslims alike. Opposing views often purport that all religions disapprove transgender people. If there is one change in the status quo – that the state no longer criminalizes people, even if it is just people professing that one specific religion, for “cross dressing” – it may cultivate spaces for education about gender diversity; and ultimately, the acceptance (not just tolerance) of transgender and gender nonconforming people in the country. 

That is, if there is no severe backlash from society. It would be naive to think that if these laws were abolished, everything would be fine and dandy. One could imagine parties who are angry with the change would be riled up to take matters in their own hands. Will the victims be protected, or will the perpetrators be free to crusade against transgender people? Who will protect us then? Still, decriminalizing transgender people would be an applaudable step. 

Sadly, before we can rejoice, the commendable decision was overruled by the Federal Court on grounds of legal technicalities. It was held that the Court of Appeal had no jurisdiction to declare the law unconstitutional; and their judicial review at the High Court was premature as there was no decision by the public authority.

Counsel representing the Negeri Sembilan government submitted that applicants should have filed their action under Article 4 of the Federal Constitution as they were challenging the constitutionality of the Syariah enactment. Under Article 4, applicants must first obtain leave from a Federal Court judge to pursue their petition.

This is exactly what the man who pleaded not guilty in the Syariah court is doing – the leave for the petition was granted on 14 May 2020. One may deduce that judges are typically conservative, but from the previous transgender case, it seems that the Federal Court only overturned the decision on legal technicalities, not so much on the merits of the case. 

Although there will be different grounds (the petition here is to challenge the state’s power to enact laws that are already dealt with by Federal law, which did not exist in the previous transgender case) and points of arguments (it being about sexual relations instead of gender), the LGBT community in Malaysia is waiting with fingers-crossed. 

Closing thoughts

Coming back to gender nonconformity – if gender nonconforming people used to be able to live freely in our tanah air, why are we being robbed of that liberty now? Not only that, why are we being persecuted? 

Many scholars and bodies would have the answer in hand – politicization of Islam. In the race among the elites to rule the country, LGBT people are often used as scapegoats. Ex Prime Minister Najib Razak (who has Bugis descent with five genders!) pledged to eradicate us as if we are destroyers of morality and a threat to the country and its official religion. 

The lines between politics and religion have blurred in this respect, though it can be inferred that  it has always been this way. The issue lies in the encroachment by the state to redefine the religion, especially post-1980. The effect is the strengthening of the powers of the state to dictate people’s lives to the point of uprooting long-existing cultures and phenomena, in addition to invading personal privacy. 

The rakyats, to a certain extent, or at least those who are not exposed to alternative sources, are influenced by stances taken by the state and its politicians. This trickles down to formulate attitudes of ordinary citizens against LGBT people in both public and private spheres, for example in the institutions of education, healthcare, and private family life. Even if the narrative is only for Muslims, non-Muslims would use it to fuel their prejudice. 

Perhaps you have seen several LGBT people doing fine in your circle, but that per se does not represent the reality. What about the youths and young adults who are dependent on their non-accepting families? What if they are exposed? This potentially endangers not only their mental health, but their lives and livelihood. What about the employment of underprivileged LGBT people, especially trans women? What about fair healthcare for LGBT people, especially the transgender community? 

Entering into a new decade, I dread to see leaders of our country throwing us under the bus again just to gain political mileage. As the Malay saying goes “Gajah sama gajah berjuang, pelanduk mati di tengah-tengah”.  We must stand stronger and claim the dignity and liberty we rightfully deserve. We belong in Malaysia, exactly as who we are.

Writer Profile

Elaine is a CLP student graduated from the University of Essex, UK. They have an interest in human rights and are often fascinated by the multiple facets of human rights. They believe that queer people deserve equal treatment and opportunities, which unfortunately are not granted in many countries including their own.

* This is the personal opinion of the writer and does not necessarily represent the views of ASASIkini.