Categories
Campaign 2019/2020

[#StayAtHome: Gone Too Soon: Deaths in Custody]

[#StayAtHome: Gone Too Soon: Deaths in Custody]

As the death of George Floyd continues to spark protests and conversations about police power, we reflect on the issue of deaths in police custody here in Malaysia. Are there issues of racism among our police? What has been the police’s reaction and procedure when a death occurs in their custody? Is accountability ensured, or evaded?

Join us for a discussion with Mr M. Visvanathan, human rights lawyer and founder of Eliminating Deaths And Abuse In Custody Together – EDICT, as we address the role of police accountability in ensuring the rule of law and democracy, the obstacles faced in protecting the rights of detainees, and the reform and action we can push for as young aspiring lawyers.

Details of the event are as follows:
Date: Saturday, 25 July 2020
Time: 9.00p.m. MYT/ 2.00p.m. UKT
Platform: Zoom/ Facebook Live

Register now at https://www.kpum.org/stayathome

Guest Speaker

Highlights from the #StayAtHome Webinar with Mr M. Visvanathan

We thank M. Visvanathan for spending his Saturday evening to share about his experience and insight on custodial death in Malaysia.

Link to the webinar is available here.

Categories
Biweekly Human Rights Roundup

Human Rights Round-up 19 (24/07/2020)

1. NO INQUEST FOR 80 OUT OF 110 LOCKUP DEATHS

Under s.334 of the Criminal Procedure Code (CPC), EDICT founder M. Visvanathan said an inquest is mandatory for deaths that occurred in a police lockup, prison or mental asylum.

However, he pointed out that there is no such provision for deaths that occur in immigration detention centres. Without a mandatory provision to investigate deaths in immigration detention centres, an inquest will only be conducted if there is a public outcry and the AG’s chambers take action. He further said even with the existing mandatory provision for inquest, out of the 110 lockup deaths from 2010 to 2016, 80 were not investigated.

2. ACTIVISTS SUMMONED FOR HONOURING THOSE WHO DIED IN CUSTODY

On 16 July 2020, several activists gathered to honour and remember those who died in police custody. Some were later summoned by the police to give statements regarding the gathering

According to EDICT, since 2009,176 persons have died in police lockups, 550 persons have died in immigration detention centres and 2,838 persons have died in prisons.

Despite initially obtaining permission to organise the gathering from the Kuala Lumpur City Hall (DBKL), the police revoked the permission. The police claimed that the notice submitted was incomplete, and, thus, failed to comply with the Peaceful Assembly Act, as there had been no consent notice from DBKL, who the police have claimed to be the ‘custodian’ of the area for the event. However, EDICT contended that, although DBKL is the owner of the said area, “custodian” does not mean “owner.” EDICT asserted that no such notice was required from DBKL, but rather from other authorities.

3. WORK PERMIT OF MIGRANT FEATURED IN AL JAZEERA DOCUMENTARY REVOKED 

Lawyers for Liberty (LFL) has expressed grave concern over the revocation of the work permit of the Bangladeshi man interviewed in Al Jazeera’s documentary. The documentary has attracted widespread attacks from the government and members of the public since it was posted on 3rd July 2020.

S.9(1)(c) of the Immigration Act 1959/63 only allows the Director General of Immigration to cancel a permit if it is prejudicial to public order, public security, public health or morality in Malaysia. LFL said it is inconceivable that the mere action of highlighting his plight to the media would fall under any of the categories listed under s.9(1)(c)

Al Jazeera is also being probed for various offences, including sedition, defamation and improper use of network facilities. On 10 July 2020, at least six Al Jazeera staff were summoned to Bukit Aman to facilitate investigations.

4. AL JAZEERA’S ACCREDITATION AND LICENCE QUESTIONED

The National Film Development Corporation (Finas) had investigated Al Jazeera regarding the production of the documentary titled Locked Up in Malaysia’s Lockdown and found that the company does not hold the necessary licence to film or air its documentary.

S.22(1) Perbadanan Kemajuan Filem Nasional Malaysia Act 1981 (Amendment 2013) states that no person shall engage in any activities of production, distribution or exhibition of films or any combination of these activities without a licence authorising the person to carry out such activities.

S.25 of the same Act provides for punishment upon conviction — a fine not exceeding RM 50,000 or an imprisonment for a term not exceeding two years or both. Al Jazeera has since dismissed the claim, saying that, as per Finas’ own definition, its 101 East weekly current affairs show does not fall into the category of film requiring a licence.

5. ALL FILMING, EVEN ON SOCIAL MEDIA, REQUIRES LICENCE 

On 23 July 2020, the Communications and Multimedia (MCMC) Minister Saiffudin announced that, under s.22 of the National Film Development Corporation (Finas) Act 1981, all film production whether from media outlets or personal media on traditional platforms or even social media require a licence. This was made in reply to a question by YB Wong Shu Qi on the exact definition of film, and whether the Act would affect people who use social media platforms such as Instagram TV or TikTok.

Saifuddin interpreted “film” under s.2 of the Finas Act 1981 broadly such that film includes feature films, short films, trailers, advertising “filmlets” and any recording on material of any kind, including videotapes and video discs of moving images, accompanied or unaccompanied by sound, and documentaries, for the viewing of the public.

The government has responded to criticisms of these statements by iterating that it will not use the Finas Act 1981 to restrict personal freedom on social media, and that they are aware that the Act is in need of improvement.

6. SOSMA AND SEDITION ACT TO BE IMPROVED

In a written Parliamentary reply, Home Minister Hamzah Zainudin said SOSMA remains “relevant” for public safety and national security. He further said the government is committed to improving security laws, including SOSMA and the Sedition Act, adding that further studies were needed for the laws.

This marks a departure from the stance taken by the former Pakatan Harapan government, which was to revoke the Sedition Act and to abolish draconian provisions in SOSMA.

In a separate Parliamentary reply to a question on the target of SOSMA, Hamzah listed those who committed four specific offences:

  1. Causing organised violence against people or property, or causing a substantial number of citizens to fear violence;
  2. Inciting disloyalty towards the YDP Agong;
  3. Threatening public order in the country;
  4. Procure the alternation, otherwise than by lawful means, of anything by law established.

7. CALLS TO REPLACE OFFICIAL SECRETS ACT WITH RIGHT TO INFORMATION BILL 

In light of the IGP’s remarks that police officers who reveal confidential investigation reports will be liable under the Official Secrets Act 1972 (OSA), the Centre for Independent Journalism (CIJ) called for the OSA to be replaced with a new Right To Information (RTI) legislation.

CIJ states that the present OSA hinders our RTI as it allows any document to be classified as secret, with no requirement for harm or any relation to national security, international relations or defense. CIJ held that exceptions to the RTI should be narrowly defined and subject to strict “harm” and “public interest” tests to justify why said information should be withheld. 

While acknowledging the importance of deterring private information from being arbitrarily revealed and subject to abuse, CIJ has emphasised that the State should balance, on the one hand, freedom of expression and RTI, with, on the other, the need to protect privacy and data. CIJ has called for this balance to be struck by using other existing laws, instead of applying the “fundamentally-flawed” OSA.

8. SPIKE IN DOMESTIC VIOLENCE IN SELANGOR

In the Selangor State Legislative Assembly, State Health, Welfare, Women and Family Empowerment Committee chairman Dr Siti Mariah reported 90 domestic violence cases were recorded during the MCO in March and April 2020.

The number of calls received by the special assistance lines for domestic violence, set up by the Committee in collaboration with the Women’s Aid Organisation (WAO), also show a spike: 

  • January 2020 – 266 calls received
  • February 2020 – 250 calls received
  • March 2020 – 361 calls received
  • April 2020 – 898 calls received

Dr Siti Mariah urged women in the state to know their rights and to seek help if they were abused by their spouses.

9. HIGH COURT OVERTURNS SENTENCE TO CANE ROHINGYA MEN FOR ARRIVING IN MALAYSIA

On 22 July 2020, the High Court overturned the magistrates’ court’s decision to sentence 27 Rohingya men to be caned under s.6 of Immigration Act 1959/63. S.6 provides anyone who enters the country without permission can face a fine of up to RM10,000, jail for up to five years, and six strokes of a cane.

The appeals court said their refugee status affords them international protection from persecution, and the judge reiterated the international law principle of non-refoulement. The judge also said the men were not habitual offenders, and had not committed any acts of violence, and as such, it was “inhumane” to impose a sentence of caning.

Amnesty welcomes the decision, further calling for the release of other Rohingya refugees who had been jailed for attempting to escape persecution in Myanmar.

INTERNATIONAL NEWS

1. VARIOUS COMPANIES ALLEGEDLY COMPLICIT IN UYGHUR FORCED LABOUR

A coalition of human rights groups have called for companies to end the use of forced labour of the Uyghur population in China. The companies allegedly complicit in the use of such labour range from firms producing PPE masks, to Apple, and ‘virtually [the] entire fashion industry.

Companies were alleged to have sourced materials from Xinjiang, the western region in China home to the largely Muslim ethnic minority Uyghur population. These reports of forced labour were published amidst earlier reports of state-sponsored human rights abuses against the Uyghurs by the Chinese government, such as the use of mass detention and forced sterilisation.

The coalition has called for companies to cut ties with suppliers complicit in Uyghur forced labour, The coalition has called for companies to cut ties with suppliers complicit in Uyghur forced labour, and to ensure that each level of their supply chain is free from such human rights abuses.

Categories
Biweekly Human Rights Roundup

Human Rights Round-up 17 (12/06/2020)

  1. COAC: THE LOGGERS ARE BACK

#OrangAsli

Since the Recovery Movement Control Order (RMCO) on 10 June 2020, logging activities in at least two Orang Asli areas have resumed

In Kampung Sungai Papan, Kedah, loggers have started preparing the road to their concession area. This was the same site where the Temiars set up a blockade a year ago. Several of them were arrested and detained. The Menteri Besar called for a halt of the logging in August 2019, but it only lasted temporarily. On the Lojing-Gua Musang road, Kelantan, bulldozers were also coming in to log, with the purpose of planting musang king durians.

2. SPECIAL STIMULUS PACKAGE FOR THE ORANG ASLI 

#OrangAsli

Senator Manolan Mohamad suggested that the government should implement an economic stimulus package tailored for the Orang Asli (OA), many of whom have been severely affected by the pandemic. 

He cited the US and Canada as countries which have issued special economic packages for their indigenous peoples. For instance, the Canadian government’s targeted economic stimulus package for indigenous businesses has been a lifeline for many.

Senator Manolan further called for the government to develop the long-neglected infrastructure in OA villages, and to promote cooperation between Felcra, Risda, and Jakoa to advance the OA’s economic wellbeing.

3. RESTRICTION OF FREEDOM OF EXPRESSION ONGOING

#FreedomofSpeech #FreedomofExpression

Centre for Independent Journalism (CIJ) and 39 CSOs have issued a joint statement strongly condemning the use of repressive laws – such as s.233 CMA, s.504 and s.505 Penal Code, the Sedition Act 1948, and the Peaceful Assembly Act 2012 – to silent dissent and opposing views. 

Some examples over the past two weeks:

i. The AG filed an application to cite Malaysiakini for contempt over readers’ comments;

ii. Hannah Yeoh for questioning the fate of the National Strategic Plan to Address the Causes of Underage Marriage under her successor Siti Zailah on Twitter;

iii. Syed Saddiq for expressing disappointment with PM Muhyiddin Yassin for working with “kleptocrats” in an interview with Al Jazeera; and

iv. Siti Kasim for suggesting a ban on tahfiz schools in response to PAS calling for the suspension of the production and sale of alcoholic beverages.

Check out CIJ’s Facebook for a non-exhaustive list of cases restricting free speech, all of which have occurred since the change of government in March this year.

4. WAO: ANTI-STALKING LAWS NEEDED URGENTLY

Women’s Aid Organization (WAO) urged for anti-stalking laws to be passed in the next Parliament session to address the rise in gender-based cyberviolence during COVID-19 pandemic.

According to UN Women, the global  increase in internet usage by 50% – 70% during the pandemic has coincided with a rise of cyberviolence, whether in the form of unwanted communications, sex trolling, threats of violence, or sexual images sent or distributed without consent. Recipients of this form of violence are often women.

The anti-stalking law would address both offline and online stalking, including various forms of gender-based cyberviolence like harassment, spying, and doxing. Survivors of cyberviolence would have a path to protection and redress.

5. COMPLAINTS OF SEXUAL HARASSMENT IN LEGAL WORK PLACE

The Malaysian Bar is deeply concerned over complaints of sexual harassment in the legal workplace, recognising the very nature of it would mean there may be more cases than are made known.

Malaysian Bar president Salim Bashir affirmed, despite the existing provisions in the Employment Act 1955 and the Penal Code, there is a lot more that can be done. For instance, to include sexual harassment in section 509 of the Penal Code, and as a defined ‘misconduct’ in the Legal Profession Bill.

The latter move would mean that lawyers would also face disciplinary action for allegations of misconduct or sexual harassment. They could be liable to punishments, including fines or be struck off the roll.

6. RISING CONCERNS OVER DEATHS IN CUSTODY

#DeathinCustody #PolicePowers

Death in police custody: EDICT have raised concerns over the Jinjang police’s failure to properly identify an individual who had died in their custody on 31st May 2020. The police initially announced that the deceased’s name was Dhan Bahadur, however the Nepal embassy told the FMT that Bahadur was still alive in Nepal after verification. EDICT stated there were many suspicious issues during the investigation of the deceased whose identity is currently unknown. 

Death in immigration custody: On 12th June 2020 an Indian tourist, Zeawdeen Kadar Masdan, died in the Immigration Department’s detention after contracting covid-19. SUHAKAM is currently investigating the case, and have questioned the Immigration Department’s decision to arrest the victim for an expired visa when he was unable to extend it during the lockdown.

INTERNATIONAL NEWS

1. US SUPREME COURT BACKS LGBT WORKERS’ PROTECTION

In a 6-3 decision, the US Supreme Court ruled that employers who fire workers for being gay or transgender are breaking the country’s civil rights law.

Lawyers for the employers had argued that the authors of the 1964 Civil Rights Act had not intended it to apply to cases involving sexual orientation and gender identity. The Trump administration sided with that argument.

However, the Court said the federal law, which prohibits discrimination based on sex, should be understood to include sexual orientation and gender identity.

2. US SANCTIONS ICC OVER AFGHAN WAR CRIMES INVESTIGATION

President Donald Trump signed an executive order that blocks the assets of International Criminal Court (ICC) employees. This order was signed after the ICC began investigating whether US forces had committed war crimes in Afghanistan.

The ICC stated that these sanctions are an “unacceptable attempt to interfere with the rule of law”, and that “[a]n attack on the ICC also represents an attack against the interests of victims of atrocity crimes, for many of whom the Court represents the last hope for justice”.

The war crimes investigation followed a 2016 ICC report which found that there was reasonable basis to believe that US forces had committed acts of torture at secret detention sites operated by the CIA.

3. KOSOVO PRESIDENT ACCUSED OF WAR CRIMES

The Special Prosecutor’s Office (SPO) issued a statement alleging that Kosovo President Hashim Thaci and others “are criminally responsible for nearly 100 murders”, torture, and enforced disappearences.

This statement follows the SPO’s decision on 24th April 2020 to file a 10-count indictment which allegedly involves hundreds of victims of Kosovo Albanian, Serb, Roma, and other ethnicities, as well as political opponents. Although it is only an accusation, the indictment is “the result of a length investigation and reflects the SPO’s determination that it can prove all of the charges beyond a reasonable doubt”.

Mr Thaci has denied any wrongdoing. A pre-trial judge has six months to decide if the court will issue charges.

Categories
General Writings

CRIME OR CAKES? HAS POLICE POWERS TAKEN TOO BIG OF A SLICE?

Written by Brendan Low

Brendan
(Sayuti Zainudin, Malay Mail)

Human rights: controversy or constitutionality 

This article will begin by providing a hopefully compromisable definition to the elusive term “human rights”. According to Public Law by Mark Elliott and Robert Thomas, human rights are rights that enjoy a “degree of permanence” by virtue of their constitutional protections. The backing of a nation’s constitution would make it “impossible or difficult” to enact legislation that is incompatible with human rights.

The case before us

On the 24th of April 2020, a 22-year-old university student was sentenced to 7 days imprisonment and an RM800 fine for breaching the conditions of the Movement Control Order (MCO) to deliver a cake she baked for her boyfriend. While on the facts of the case there are far better excuses to breach the MCO, the sentence and by extension the powers of law enforcement undoubtedly have potential adverse implications for human rights. 

The source of police powers

The main Act of Parliament that the law enforcement derives its power from is the Prevention and Control of Infectious Diseases Act 1988 (“the 1988 Act”).  S.11(1) of the 1988 Act allows a Minister to declare areas which have or are threatened by an “outbreak of infectious disease” as long as he “is satisfied that there is”. The Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020 (“the Order”) did just that by declaring the entirety of Malaysia as an infected area for the purposes of s11(1).

This then gave the relevant government minister power via regulation to “prescribe…measures…to control or prevent the spread” (s11(2) of the 1988 Act) of Covid-19. This discretion relates merely to the minister to empower his police force. The discretion given directly to the police force by the 1988 Act is much more astonishing in scope. S11(3) allows “any other measures as the authorised officer considers necessary” on top of a requirement to subject people living in an infected local area – and by virtue of the Order that means everyone occupying Malaysian land – to “treatment”, immunisation, isolation, observation” and “surveillance”. This would immediately raise red flags for most people if not for compromising considerations in light of the circumstances. However, as Niall Coughlan in an interview with LawPod UK notes that although “it can feel like a time of complete state of acception where necessity makes the law” and human rights law is “flexible” with regards to the power given to authorities in considerations of “public interest”, human rights law “must consider to set some minimum standards”. I now go on to consider these standards in the Malaysian context. 

The minimum standards of human rights in Malaysian law

In Malaysia, protection for human rights originates in the Federal Constitution – the “supreme law of the Federation” itself (Article 4). Among the minimum standards that would likely be triggered by the legally-sanctioned excessive powers of the authorities is thankfully found in Article 5(1) of the Federal Constitution. It reads: “No person shall be deprived of his life or personal liberty save in accordance with law.” There are two limbs in this provision. A) The prohibition of any deprivation of a person’s life or personal liberty, and B) the exception being that the deprivation is in accordance with law. At this juncture, it may seem that the second limb has put an end to our argument because as illustrated above, the deprivation in the university student’s case and possibly our own, is sanctioned by a regulation enacted legitimately under an Act of Parliament. However, the people have not lost the argument if we hold fast to the principle that human rights have a “minimum standard” (Coughlan) and a “degree of permanence” (Elliott and Thomas) that cannot easily be eradicated by legislation. In other words, here is where a balancing act comes in. 

The balancing act

Eric Paulsen, the Representative of Malaysia to the Asean Intergovernmental Commission on Human Rights (AICHR), sets out the test for performing this balancing act:

“Any limitations on our rights must be necessary, proportionate and in the pursuit of a legitimate aim”

While Paulsen goes on to say that the current measures taken by the government “clearly satisfies” the above requirements, he too raises some concerns regarding detention and deportation of migrants. The point of this article is not to consider the merits of his balancing act, as the inherent nature of a balancing act is such that different people have different configurations of their weighing scale. It is, however, to perform a balancing act of our own.

On the one hand, the gravity of the disease warrants steadfast (if not over-attached) paternalistic intervention by the government – the only one who has the resources to do so – even if at the expense of human rights.

On the other, we have overcrowded prisons and converted police academies to detain some 15,000 people, with a range of jail terms and culpability, for contravening the MCO. This is in conjunction with a Senior Minister who tells the public that they “will be detained and charged” under Section 24* of the 1988 Act.

The Star is perhaps warranted in calling these measures “stern and uncompromising”.

It is vital to evaluate the counter-intuitiveness of a policy resulting in overcrowded prisons during an outbreak. In addition, from a legal perspective it is at the very least questionable whether all MCO-breaching conduct, which consists of a spectrum of egregiousness, amounts to a criminal offence. These people may be loiterers, midnight eaters, and procurers of cakes for lovers, but it is hard to picture them as criminals.

A jail sentence is supposed to protect the public from dangerous criminals while the 1988 Act and regulations made under it are supposed to protect the public from Covid-19. Evaluations on the balancing act must be done to ensure the two objectives are not conflated, otherwise we risk living in a Kafkaesque world.

*

s.24 1988s.24 1988 (2)

 

 

 

 

 

 

 

 

Writer Profile

Brendan Low is a law student at the University of Cambridge, UK. He is concerned with the philosophical problem of right and wrong, especially with regards to the carve out of philosophy the secular world has dubbed “law”. He believes that every human is endowed with fundamental rights, and would spend his lifetime studying its depth and latitude, even if but an inch of progress is made in contemplating the meaning of truth.

 

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