Sep 28, 2016 | News
The conviction of Member of Parliament Tian Chua under the 1948 Sedition Act increases already severe restrictions on freedom of expression in Malaysia, said the ICJ today.
The Malaysian government should drop all charges filed under this law and remove or amend this colonial era law to ensure compliance with international human rights law and standards, the ICJ added.
The Sessions Court in Kuala Lumpur convicted Tian Chua (photo) today under Section 4(1)(b) of the 1948 Sedition Act for allegedly uttering “seditious words.”
The allegedly “seditious words” spoken by Tian Chua were calling on Malaysians to “stand up and fight against racism and corruption.”
Tian Chua spoke these words at a public forum on 13 May 2013 at the Kuala Lumpur and Selangor Assembly Hall.
“Prime Minister Najib Razak promised in 2012 to abolish the 1948 Sedition Act, but until now, this promise has not been fulfilled,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
“It now appears that the Malaysian government is holding on to this law to silence political opponents and human rights defenders who express critical views about what is happening in the country today,” she added.
Tian Chua received a penalty of three months’ imprisonment plus a fine of RM1,800 (approximately US$435).
Although he will still be entitled to keep his seat as Batu’s representative to the Malaysian Parliament, his conviction sends a clear and dangerous message that politically critical comments or dissenting opinions from anyone, including a Member of Parliament, will not be tolerated by the government, the ICJ says.
Several other people were also charged for sedition for their speeches at the same public forum where Tian Chua spoke: activists Adam Adli, Hishamuddin Md. Rais, Haris Fathillah Mohamed Ibrahim, and Safwan Anang.
All of them have already been convicted in the past few months under the same provision of the Sedition Act.
“By its very terms, the 1948 Sedition Act contemplates restrictions on the exercise of freedom of expression that are grossly overbroad and inconsistent with the basic rule of law and human rights principles,” said Gil.
The lawyers of Tian Chua, Latheefa Koya and N. Surendran, have confirmed that they will be seeking a stay order on the basis that they will be appealing the sentence and conviction.
The ICJ has repeatedly expressed its concerns regarding the restrictive effect the 1948 Sedition Act has on freedom of expression in the country.
The law criminalizes speech and publications considered to have “seditious tendencies”, a term that is very ambiguously and vaguely defined.
Last year, the ICJ expressed alarm over amendments made by the Malaysian Parliament strengthening the law and broadening its scope, making the “promotion” of hatred between religions an offence.
Contact:
Emerlynne Gil, ICJ’s Senior International Legal Adviser for Southeast Asia, t: +66840923575 ; e: emerlynne.gil(a)icj.org
Apr 7, 2016 | News
The Malaysian government should reject a proposal to make the Attorney General automatically the chair of the Bar Council of Malaysia, the ICJ said today.
The Malaysian Bar must remain independent and the government should not entertain this or any other measure that would compromise this independence, the ICJ says.
Yesterday, during the debate session at the Dewan Rakyat (Lower House of the Malaysian Parliament), parliamentarian Datuk Datu Nasrun Datu Mansur suggested that the Attorney General should be automatically appointed as the chairman of the Bar Council of Malaysia.
Datuk Datu Nasrun Datu Mansur made the suggestion while criticizing the Bar Council for its role in demanding greater government accountability.
“This latest proposal is just the most recent attempt by the government to silence all opposition and to weaken the rule of law,” said Emerlynne Gil, ICJ’s Senior Legal Adviser for Southeast Asia.
“First the government weakened the independence of the judiciary, and now it is going after the lawyers who are standing up for justice and accountability,” she added.
Responding to the suggestion, Law Minister Nancy Shukri said that the government will look into this, noting that amendments need to be made to the Legal Profession Act 1976 for this measure to be adopted.
“International standards on the independence of lawyers state very clearly that governments should not interfere with the work of professional associations of lawyers like the Malaysia Bar,” said Gil.
The United Nations Basic Principles on the Role of Lawyers stipulate that lawyers have the right “to form and join self-governing professional associations to represent their interests, promote their continuing education and training, and protect their professional integrity,” the ICJ reminds.
Furthermore, the Basic Principles distinctly state that “the executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.”
“An independent and self-regulated bar association is important to safeguard the professional interests and integrity of lawyers in Malaysia,” Gil said.
“It acquires specific importance especially now in Malaysia where there have been questions regarding the way justice is being administered in the country,” she added.
The Malaysia Bar is an essential agent in the administration of justice and hence, the lawyers belonging to it play a key role in supporting and calling for law and justice sector reform in the country, the ICJ further says.
Contact:
Emerlynne Gil, Senior International Legal Adviser for Southeast Asia, t: +66 840923575 ; e: emerlynne.gil(a)icj.org
Background:
The Malaysia Bar passed a motion last month during its 70th Annual General Assembly calling for the resignation of Attorney-General Tan Sri Mohamed Apandi Ali because he summarily ended the investigation of alleged corruption by Prime Minister Najib Razak.
The Prime Minister appointed Attorney-General Apandi on 27 July 2015, in the midst of the corruption investigation.
Attorney General Apandi subsequently cleared Prime Minister Najib Razak of any criminal wrongdoing and instructed the Malaysian Anti-Corruption Commission to close the investigations.
According to the ICJ, the motion passed by the Malaysia Bar calling for the resignation of the Attorney General was within its mandate as an independent professional association of lawyers, seeking as it did to draw attention to how administration of justice is being jeopardized right now.
The UN Basic Principles specifically recognize the right of lawyers to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights.
The UN Human Rights Council has unanimously affirmed that “an independent legal profession” is among the “essential prerequisites for the protection of human rights, the rule of law, good governance and democracy, and for ensuring that there is no discrimination in the administration of justice”. Such independence should be respected in all circumstances.
Mar 30, 2016 | News
The Malaysian government must immediately halt the politically motivated sedition investigation launched by the police against members of the Malaysian Bar who had called for the Attorney General’s resignation, the ICJ said today.
“The Malaysian authorities are using the archaic, colonial Sedition Act to harass and silence lawyers who are demanding that the country’s legal authorities observe international standards of propriety and independence,” said Emerlynne Gil, ICJ’s Senior Legal Adviser for Southeast Asia.
“This latest misuse of the Sedition Act constitutes a brazen political attack on the independence of the country’s lawyers,” she added.
On 29 March 2016, lawyers Charles Hector, Francis Pereira, and Shanmugam Ramasamy, received letters from police authorities summoning them to the Bukit Aman Police Headquarters on 31 March 2016 for the purpose of taking down their statements regarding a complaint filed against them under the Sedition Act (1948).
The three had proposed a motion during the Malaysian Bar’s 70th Annual General Assembly, calling for the resignation of Attorney-General Tan Sri Mohamed Apandi Ali. The motion was passed by a majority vote.
Karen Cheah Yee Lynn, Secretary of the Malaysian Bar, was also notified that her statement would likewise be taken but she was not summoned to the Bukit Aman Police Headquarters.
The Malaysian Bar demanded the resignation of Attorney-General Tan Sri Mohamed Apandi Ali after he summarily ended the investigation of alleged corruption by Prime Minister Najib Razak.
The Prime Minister appointed Attorney-General Apandi on 27 July 2015, in the midst of the corruption investigation.
Attorney General Apandi subsequently cleared Prime Minister Najib Razak of any criminal wrongdoing and instructed the Malaysian Anti-Corruption Commission to close the investigations.
“In 2012, Prime Minister Razak had promised to repeal the Sedition Act, but since then his government has increasingly relied on the law’s impermissibly vague and broad language as a useful tool of repression,” Gil said.
International standards highlight that protecting the independence of lawyers and their professional associations is essential for upholding the rule of law and the administration of justice, the ICJ says.
“This police investigation is clearly designed to challenge that independence,” Gil said.
“The Malaysian Bar has been one of the few institutions consistently defending the rule of law and human rights in Malaysia, and it is crucial to maintain the ability of its members to engage critically in upholding the standards of professional integrity and independence,” she added.
The ICJ urges the Malaysian government to repeal the archaic Sedition Act 1948 and fulfill the commitment it made in 2012 to abolish it.
Unless repealed or considerably revised so that it will be consistent with international law, the Sedition Act 1948 will continue to unduly limit and repress the freedom of expression, not only of lawyers and human rights defenders, but of all Malaysians exercising their fundamental rights, the ICJ says.
Contact
Emerlynne Gil, ICJ’s Senior International Legal Adviser, t: +66840923575, e: emerlynne.gil@icj.org
Background
Under the UN Basic Principles on the Role of Lawyers, governments have the obligation to ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference (Principle 16).
Like other citizens, lawyers are entitled to freedom of expression, belief, association, and assembly. Lawyers have the right to take part in the public discussion of matters concerning the law, the administration of justice, and the promotion and protection of human rights (Principle 23).
The UN Basic Principles on the Role of Lawyers also state that lawyers are entitled to form and join self-governing professional associations to represent their interests and protect their professional integrity (Principle 24).
Governments should ensure that these professional associations are able to function without improper interference (Principle 25).
In its 2016 resolution on human rights in the administration of justice, the UN Human Rights Council unanimously affirmed that “the independence and impartiality of the judiciary, the integrity of the judicial system and an independent legal profession are essential prerequisites for the protection of human rights, the rule of law, good governance and democracy, and for ensuring that there is no discrimination in the administration of justice, and should therefore be respected in all circumstances” (Resolution 30/7, 1 October 2015).
Malaysia’s Sedition Act 1948, originally enacted by the British colonial government and amended times over the years, criminalizes speech and publications considered to have “seditious tendencies”.
The term “seditious tendencies” is ambiguously defined to mean any kind of speech or publication that causes “hatred or contempt, or excite disaffection” against any ruler or the government or promotes “ill will and hostility between the different races or classes”.
The law also considers “seditious” any speech or publication that questions the special privileges of the Malay people, as provided in the Constitution.
Furthermore, sedition is a strict liability offence in Malaysia, which means that the intention of a person allegedly making seditious statements is irrelevant.
Mar 10, 2016 | News
The ICJ welcomes the decision of the Magistrate Court to dismiss the charges against Lena Hendry for her involvement in 2013 screening of No Fire Zone: The Killing Fields of Sri Lanka, an award-winning human rights documentary on the civil war in Sri Lanka.
Magistrate Mohamad Rehab Mohd Aris determined that the prosecution failed to prove a prima facie case against Lena Hendry (photo).
As a consequence, she did not have to enter her defense.
“We welcome the decision of the Magistrate’s Court to clear Lena Hendry from all charges,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
“We must emphasize though that subjecting Lena Hendry in the first place to criminal prosecution simply for screening this documentary violated her human rights and contravenes Malaysia’s obligations to uphold freedom of expression,” she added.
“We should remember that the provision in the Film Censorship Act 2002 used against Lena Hendry remains on the books and still operative. It can still be used to stifle the voices of other human rights defenders in Malaysia,” Gil further said.
Lena Hendry was charged under section 6(1)(b) of the Film Censorship Act 2002 for allegedly showing the film without prior authorization by the Board of Censors.
The said provision prohibits any person to circulate, exhibit, distribute, display, manufacture, produce, sell, or hire any film or film publicity material that has not been approved by the Board of Censors.
If Lena Hendry had been found guilty, she could have faced a fine of up to RM30,000 (approximately US$6,900) and/or a sentence of up to three years imprisonment.
The ICJ reiterates its call to the Government of Malaysia to safeguard freedom of expression and uphold the right of individuals to elaborate and disseminate information, including on questions of public import and the documentation of human rights abuses.
Contact:
Emerlynne Gil, Senior International Legal Adviser for Southeast Asia, t: +66 840923575 ; e: emerlynne.gil@icj.org
Mar 4, 2016 | Advocacy, Non-legal submissions
The ICJ prepared an oral statement on the situation of human rights defenders in Malaysia, for today’s interactive dialogue at the Human Rights Council with the UN Special Rapporteur on the situation of human rights defenders.
The statement could not be delivered in the limited time available for civil society statements; its text is set out below:
ICJ Oral Statement in the Interactive Dialogue with the Special Rapporteur on the situation of human rights defenders, Mr. Michel Forst
SITUATION OF HUMAN RIGHTS DEFENDERS IN MALAYSIA
3 March 2016
“The International Commission of Jurists (ICJ) welcomes the report of the Special Rapporteur on the situation of human rights defenders.
The work of human rights defenders is particularly under challenge in States where governments have conferred on themselves sweeping powers to restrict human rights on grounds of national security. One example, as reflected in the Special Rapporteur’s “Observations on communications” (UN Doc A/HRC/31/55/Add.1), is the situation of human rights defenders in Malaysia.
The ICJ welcomes the Attorney General’s decision to drop sedition charges against law lecturer Dr. Azmi Sharom; however, the Sedition Act and the Peaceful Assembly Act are still being abused to harass human rights defenders and others. Most recently, the High Court of Malaysia sentenced activist Hishamuddin Rais to nine months in jail for sedition, for calling for peaceful protest against the results of the 2013 general election on the basis that it was not transparent. Maria Chin Abdullah and Jannie Lasimbang, organizers of the Bersih 4.0 peaceful assembly calling for good governance, were charged under the Peaceful Assembly Act for allegedly omitting to inform the police about the assembly. There have reportedly been at least 91 cases of arrests, charges or investigations for sedition during 2015, and more than 30 cases of arrests under the Peaceful Assembly Act since 2013. Most, if not all, of these people are human rights defenders, including Eric Paulsen, the Director of Lawyers for Liberty, Adam Adli, a human rights activist, and Mandeep Singh, the Secretariat Manager of Bersih.
Unless repealed or drastically revised, these laws will continue to facilitate sweeping and arbitrary repression of freedoms of expression, assembly and association of human rights defenders, under the flag of national security. This contravenes the UN Declaration on Human Rights Defenders and numerous other resolutions of the Human Rights Council and General Assembly, including General Assembly resolution 70/161, adopted by the General Assembly in December with Malaysia voting in favor. Among other things, resolution 70/161 urged States ensure that human rights defenders are able to exercise the rights to freedom of opinion, expression, peaceful assembly and association, which are essential for the promotion and protection of human rights; and it emphasized that national security measures must not hinder the work and safety of individuals engaged in promoting and defending human rights.
In this context, the ICJ would like to ask the Special Rapporteur to comment on the obligations of governments to repeal or amend legislation that allows for abusive arrest or prosecution of human rights defenders on grounds such as “national security”, “sedition” or for not giving prior notice of assemblies.”
