Sep 4, 2018 | News
The ICJ today condemned the public caning of two women, a punishment imposed upon them by the Terengganu High Court after conviction on charges of ‘attempting to have sexual intercourse’.
The ICJ called on the Government of Malaysia to immediately abolish the practice of caning as it constitutes a form of cruel, inhuman or degrading punishment prohibited under international human rights law and standards.
Furthermore, it also called on the Government to ensure that its laws, policies and practices at the local, state, and federal levels are in full compliance with its international legal obligations, including under the Convention on the Elimination of all forms of Discrimination against Women (CEDAW).
On 3 September 2018, two women, aged 23 and 33, were publicly caned in front of a hundred people in Terengganu, a coastal state of Malaysia, located northeast of Kuala Lumpur.
The two women were convicted under Section 30 of the Syariah Criminal Offences (Terengganu) Enactment 2001, for the crime of ‘Musahaqah’ (sexual relations between female persons).
“This punishment is a clear violation of Malaysia’s obligations to prevent, prohibit and prosecute all forms of torture and other cruel, inhuman or degrading treatment or punishment. The Government of Malaysia should immediately abolish the practice of corporal punishment, which has been condemned by international authorities such as the UN Human Rights Council’s Special Rapporteur on torture,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
“It is equally deplorable that Malaysia continues to criminalize consensual same sex relations. The criminalization of private consensual sexual activities – whatever the sex, gender identity and sexual proclivities of those involved, and whatever the actual sexual practices – violates international human rights law. It also undermines women’s enjoyment of their rights to privacy, personal integrity, and equality,” she added.
The Human Rights Committee has said that criminalizing private sexual acts between consenting adults constitutes an arbitrary interference with privacy and cannot be justified.
It has also observed in a number of Concluding Observations that the criminalization of private consensual sexual activities between adults of the same sex violates the prohibition of discrimination, and the right of equality before the law.
The ICJ also notes that early this year, the CEDAW Committee recommended to Malaysia to “take effective measures to ensure that civil law and Syariah law are in full compliance with the provisions of the Convention at local, state, and federal levels” so as to guarantee the rights of all women throughout the country.
The ICJ calls on the Government of Malaysia to abide by its obligations under international law and follow through with its commitment to human rights, non-discrimination and equality by abolishing the sentence of caning and the criminalization of consensual same sex relations in the country.
Contact
Emerlynne Gil, ICJ Senior International Legal Adviser, t: +66 840923575, e: emerlynne.gil(a)icj.org
Background
On 8 April 2018, religious state authorities arrested the two women who were in a car and accused them of preparing to ‘commit sexual acts’, which is an offense in the State of Terengganu, under the Syariah Criminal Offences (Terengganu) Enactment 2001. The women pleaded guilty to the offence without being represented by a lawyer and did not appeal their case.
On 12 August 2018, the two women pleaded guilty and were sentenced by the Terengganu Shariah to a fine of RM3,300 ($800 USD) and six strokes of caning for attempting to have sexual intercourse.
This is the first case of caning of women for ‘Musahaqah’ (sexual relations between female persons) crime and its attempt in Malaysia and it marks a steady decline in Malaysia’s commitment to protect the rights of its sexual minorities and the members of the LGBTIQA community.
In Malaysia’s Criminal Procedure Code, under Federal law, it states that
“No sentence of whipping shall be executed by installments, and none of the following persons shall be punishable with whipping: (a) females;”
Malaysia’s Federal Constitution provides that Islamic law falls under the matters of State law, with the exception of the Federal States.
It is concerning that the Syariah legal system in Malaysia continues to carry out caning in a manner that is discriminatory against women, and women sexual minorities, as seen in the 2010 case, where three women were found guilty of ‘illicit sex’ by the Kuala Lumpur Syariah Court, as well as the continuing use of Syariah legal enactments to harass, intimidate and prosecute the transgender community in Malaysia.
Mar 27, 2018 | News
The ICJ and Suara Rakyat Malaysia (SUARAM) today urged Malaysia’s Parliament not to pass the Anti-Fake News Bill 2018.
The two organizations are concerned that the bill will unduly limit freedom of opinion or expression in Malaysia, and could be used to suppress legitimate criticism of the government.
“The bill is flawed in its design and will be open to abuse by the Malaysian government which maintains a poor track record in upholding freedom of expression,” said Sevan Doraisamy, SUARAM’s Executive Director.
“The term ‘fake news’ is in itself problematic. It is defined in an overbroad manner in the draft law, and therefore vulnerable to arbitrary interpretation and enforcement,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
“Given past experience in Malaysia, it is highly likely to be used to suppress legitimate criticism of the government on matters of opinion or where the facts are contested,” she added.
The right to freedom of opinion and expression is guaranteed by the Federal Constitution of Malaysia, as well as the Universal Declaration of Human Rights.
The bill makes no provision for exceptions or defences such as honest mistake, parody, artistic merit, or public interest. The bill would allow up to ten years imprisonment.
“The penalties are wildly disproportionate,” said Gil. “Indeed, under international standards, imprisonment is never an appropriate penalty for such offences.”
On 3 March 2017, the UN Special Rapporteur on Freedom of Opinion and Expression, together with his counterparts from the Organization for Security and Cooperation in Europe (OSCE), the Organization of American States (OAS), and the African Commission on Human and People’s Rights (ACHPR), issued a joint declaration on ‘fake news’, disinformation, and propaganda.
The joint declaration emphasized that “the human right to impart information and ideas is not limited to ‘correct’ statements, that the right to also protects information and ideas that may shock, offend and disturb.”
It also said that “general prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’ are incompatible with international standards for restrictions on freedom of expression.”
The ICJ and SUARAM also note that the timing and the lack of transparent consultation on how it was developed raise concerns about the government’s motivation behind the introduction of this bill.
The bill has been introduced during the final days of Parliament sitting and is expected to be voted on within this week, leaving little time for deliberation or consultation.
“Allowing this bill to be passed would only serve as an affront to democratic values. It will be another strike on Malaysia’s already shoddy human rights record,” Doraisamy said.
“Adopting a law that would unduly limit the right to freedom of opinion and expression is not the optimal way to counter disinformation and propaganda,” said Gil.
“The best way is to disseminate accurate information and to make such information accessible to everyone,” she added.
The ICJ and SUARAM strongly urge the Malaysian parliament not to pass the Anti-Fake News Bill 2018 and uphold the right to freedom of opinion and expression in the country.
Contact
Emerlynne Gil, Senior International Legal Adviser for Southeast Asia of ICJ, t: + 662 619 8477 (ext. 206) ; e: emerlynne.gil@icj.org
Background
The Anti-Fake News Bill 2018 has been tabled for first reading at the Malaysian Parliament on 26 March 2018 and may be voted on this week or early next week.
The bill defines ‘fake news’, without any defences or exceptions, as including “any news, information, data and reports” which are “wholly or partly false”.
Furthermore, the bill states that ‘fake news’ may be “in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas.”
If passed, any person may be subject to a penalty of up to ten (10) years imprisonment and/or a fine amounting to MYR 500,000 (approximately USD 127,681) if convicted of knowingly creating, offering, publishing, printing, distributing, circulating, or disseminating any ‘fake news’ or publication of ‘fake news’.
The bill also seeks to penalize both Malaysians and foreigners alike, even if they are outside of Malaysia, as long as the fake news concerns Malaysia or a Malaysian citizen.
Apr 26, 2017 | News
The ICJ today condemned the conviction and sentencing of Siti Noor Aishah Atam for possessing twelve books allegedly associated with terrorist groups, an act which is criminal under Malaysia’s Penal Code.
The ICJ calls for her immediate release from detention and for the authorities to take steps to quash or reverse her conviction.
The Kuala Lumpur High Court found Siti Noor Aishah Atam guilty under Section 130JB(1)(a) of the Penal Code which prohibits any “possession, custody or control of any item associated with any terrorist group or the commission of a terrorist act” and sentenced her to five years of imprisonment.
Siti Noor Aishah Atam contended that she was using the supposedly proscribed books for her thesis as a graduate student at Universiti Malaya, where she majored in Islamic Studies.
The High Court indicated, however, that they were applying the standard of strict liability to this case, meaning that the particular reason a person may have of possessing the books should not be taken into account.
If a person is found to have these books in their possession, for whatever reason, he or she will be penalized under the provision.
“The prosecution and conviction of Siti Noor Aishah Atam by Malaysian authorities is a violation of her right to freedom of expression, which includes the right to seek, receive, and impart information,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser for Southeast Asia.
The ICJ notes that while the right to freedom of expression is not absolute, any restriction must be provided by law and be strictly necessary for a limited number of purposes, such as national security.
Any restriction must also be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly.
“The law under which Siti Noor Aishah Atam had been convicted is overly vague, since nobody would know what books or other material would be impermissible. The law is also certainly overbroad – having the effect of preventing potentially important academic research,” said Gil.
The twelve books found in the possession of Siti Noor Aishah Atam have not been specifically banned by the Malaysian government.
Indeed, these books may easily be bought at any number of bookstores in the country.
This unjust verdict illustrates the need for urgent legal reform, including the repeal or modification of Section 130JB(1)(a) of the Penal Code.
The ICJ also noted with profound concern that Siti Noor Aishah Atam has been subjected to prolonged detention under multiple laws, namely the Security Offences (Special Measures) Act 2012 (SOSMA) and Prevention of Crime Act 1959 (POCA).
“The Malaysian authorities appear to be abusing SOSMA and POCA by invoking them alternately to keep Siti Noor Aishah Atam in detention. This constitutes a denial of her right to be free from arbitrary detention,” Gil said.
The ICJ had previously called for the abolition of SOSMA, POCA, and similarly abusive laws.
Contact:
Emerlynne Gil, ICJ’s Senior International Legal Adviser, t: +66 840923575 ; e: emerlynne.gil(a)icj.org
Background
Siti Noor Aishah Atam is a former graduate student at Universiti Malaya, majoring in Usuluddin (Akidah) or Islamic Studies.
On 22 March 2016, the police raided the residence of Siti Noor Aishah Atam and arrested her.
She was taken into custody and detained for 28 days under SOSMA at an undisclosed detention facility while her trial was ongoing.
On 25 July 2016, she pleaded not guilty and stated that the books were used for her thesis on terrorism.
On 29 September 2016, the Kuala Lumpur High Court acquitted Siti Noor Aishah Atam.
The High Court had pointed to the Ministry of Home Affairs’ failure to ban the twelve books as one of the key reasons behind the acquittal.
On the day of her acquittal, she was again arrested and detained under POCA for 60 days and was subsequently ordered to be put under house arrest for two years.
In March 2017, the prosecution appealed the High Court’s decision. This allowed authorities to subject Siti Noor Aishah Atam to continued remand under SOSMA.
She was then detained in Kajang Prison until her conviction and sentencing today.
Nov 21, 2016 | Advocacy, News
The ICJ and five other human rights groups are calling on the Malaysian authorities to drop all charges against the Bersih organizers and activists, return all items confiscated from their offices and stop making further arbitrary arrests in connection with these events.
Download the statement here:
malaysia-bersih-5-statement-advocacy-2016-eng (full text in PDF)
Nov 8, 2016 | News
The Malaysian government must act to stop and redress the ongoing harassment, and death threats against the organizers of the Bersih 5.0 protest rally, scheduled for 19 November 2016, said the ICJ today.
The ICJ is calling on the authorities to conduct a thorough, impartial investigation into unlawful acts of intimidation against the organizers with a view to identifying and bringing to account those responsible.
The Bersih (or Gabungan Pilihanraya Bersih dan Adil) is a coalition formed in 2006 by Malaysian non-governmental organizations to call for free, clean and fair elections.
“The Malaysian government has the obligation to respect the right to freedom of expression and freedom of assembly,” said Sam Zarifi, ICJ’s Asia Director. “These rights are not only guaranteed under the Malaysian Constitution, but also under international human rights law.”
The ICJ recently received reports that Bersih leaders Maria Chin Abdullah, Mandeep Singh, and former Chairperson Ambiga Sreenevasan received death threats from unknown individuals.
Family members of Maria Chin Abdullah also received similar threats.
On 29 October 2016, police arrested Maria Chin Abdullah for distributing flyers promoting the forthcoming public assembly.
She was investigated on suspicion of having violated Section 11 of the Printing Presses and Publications Act 1984, which requires every publication printed or published within Malaysia to bear the name and address of the printer and publisher. Maria Chin Abdullah was subsequently released.
On 1 October 2016, men wearing the customary red shirts of ‘anti-Bersih’ groups and riding motorbikes tailed the convoy in Perak, kicked the cars and punched the vehicles’ side mirrors, while on 8 October 2016, unknown persons smashed the windows and slashed the tires of cars participating in a Bersih convoy in Sabah state.
Last week, police authorities launched investigations under Section 124C of the Penal Code against Bersih and other Malaysian NGOs that are alleged to have received foreign funding. Section 124C penalizes persons who are found to “attempt to commit activity detrimental to parliamentary democracy.”
“Section 124C is impermissibly vague and ambiguous, and allows authorities to engage in arbitrary prosecution, conviction, and punishment of people who are exercising their right to freedom of speech and assembly,” Zarifi said. “These claims against Bersih seem to be the latest effort by the Malaysian government, which is facing allegations of massive corruption, to repress political opposition.”
Contact
Emerlynne Gil, ICJ’s Senior International Legal Adviser, t: +66 840923575 ; e: emerlynne.gil(a)icj.org
Background
Over the years, Bersih has been organizing peaceful assemblies attended by thousands of Malaysians in Kuala Lumpur and other parts of the country.
Last year, monitors from the ICJ observed Bersih 4.0 and reported that it had been a peaceful assembly, in exercise of the right to freedom of assembly and that the organizers took careful measures to keep it orderly and free from violence. The ICJ will again be sending observers to this year’s Bersih rally in Kuala Lumpur.
Under Article 10(1)(b) of the Malaysian Constitution, “all citizens have the right to assemble peaceably and without arms.” Furthermore, the right to peaceful assembly is also guaranteed under several international human rights instruments, including the Universal Declaration of Human Rights.
In his 2012 report, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association emphasized that States “have a positive obligation to actively protect peaceful assemblies”. This State obligation includes “protection of participants of peaceful assemblies from individuals or groups of individuals, including agents provocateurs and counter-demonstrators who aim at disrupting or dispersing such assemblies.”
With regard to the use of Section 124C of the Penal Code to commence investigations against Bersih and other non-governmental organizations, the ICJ has emphasized that the ambiguity and vagueness of this provision makes it inconsistent with the principle of legality, a basic tenet of law. The principle of legality in the criminal law context requires that any offense must be established in law and defined precisely and unambiguously so as to enable individuals to know what acts will make them criminally liable.
