Monday, 30 April 2012

Malaysia-Press Release: Police response during BERSIH 3.0 rally disproportionate and excessive

Press Release: Police response during BERSIH 3.0 rally disproportionate and excessive





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Press Release


Police response during BERSIH 3.0 rally disproportionate and excessive

The Malaysian Bar is appalled at the abuse of the legal process and grotesque use of force by the police in connection with the BERSIH 3.0 rally in Kuala Lumpur yesterday, 28 April 2012.

The crowds that had gathered for the BERSIH 3.0 rally reflected a broad cross-section of Malaysian society, and were peaceful.  The police were initially restrained, although they did try to stop people from reaching various pre-announced meeting points.  However, the attitude of the police underwent a sea-change at 3:00 pm that day.  The reported breach of police barricades in some areas does not justify the police unleashing the full force of their arsenal upon crowds that were peaceful.  The police have shown in this incident that they do not have the maturity, discipline and restraint required of a professional force.  In this regard the Malaysian Bar strongly disagrees with the Minister of Home Affairs' assertion that the police acted professionally. 

The court order excluding members of the public from Dataran Merdeka is arguably defective in law due to a lack of specificity.  Given that the BERSIH 3.0 rally had been announced on 4 April 2012, there was no need to have obtained the order ex parte.  There had been ample opportunity for the relevant parties to be heard before deciding if such an order deserved to be issued.  In addition, the order was obtained with respect to a situation of the authorities' own making, by their unjustifiable denial of access to Dataran Merdeka.  It is important to bear in mind that the Minister of Home Affairs had previously announced that the BERSIH 3.0 rally was not a security threat.

Nonetheless, having obtained the exclusion order, the police proceeded to disrespect the order by unilaterally closing additional roads and restricting access to other areas not covered by its terms.  The terms of the order itself, the closing of the roads and the restriction in access gave rise to a tense situation that contributed to the unnecessary violence that occurred. 

As has been done with some other public assemblies in the past, the Malaysian Bar deployed lawyers and pupils-in-chambers to act as monitors during the rally, numbering approximately 80.  Our monitoring teams reported witnessing the use of an array of heavy-handed tactics by the police, including the indiscriminate discharging of multiple rounds of tear gas without any obvious provocation, and arbitrary use of water cannons.  Police fired tear gas directly at the crowd.  They also manoeuvred their firing pattern to box in the participants rather than allowing them to disperse quickly.  This is not action to disperse, but is instead designed to attack, a crowd.  When items were thrown at the police, the police stooped to return like for like. 

The Malaysian Bar does not countenance the belligerent conduct shown by a number of the participants.  However, we express deep and serious concern as to how the police responded.  The police displayed a lack of restraint and proportionality, reminiscent of their actions at the BERSIH 2.0 rally on 9 July 2011.  Instead of displaying action to calm the situation, they instead aggravated it and contributed to the escalation of the conflict.  Although organisers of public gatherings must bear some responsibility when things get out of hand due to their action or inaction, this does not and cannot excuse the response of the police.  

The monitoring teams also witnessed numerous acts of police brutality, such as assault of arrested persons.  Instead of merely apprehending suspects, the attitude of the police was punitive in nature.  The reported attacks by the police on members of the media, both local and international, and the confiscation and/or destruction of their photographs and video recordings, speaks to police action in covering up or preventing a full and accurate record of the BERSIH 3.0 rally and the responses of the police.
Regrettably, the police also showed a general lack of cooperation towards the Malaysian Bar's monitoring teams, and were hostile in their attitude and approach at times.  This is most unprofessional and unbecoming, and serves as an unhealthy development with negative connotations for the future.
The Malaysian Bar notes that yesterday's events have not occurred in isolation, but stem from the fundamental problems that gave rise to the BERSIH 3.0 rally in the first place, namely the ongoing and outstanding issues relating to the electoral roll, and the lack of confidence in its integrity and that of the electoral process in Malaysia.  
Those who look upon Dataran Merdeka as a symbol of freedom will view the exclusion from Dataran Merdeka as freedom denied.  The promise by the Government to respect democracy and human rights, and implement reforms, was tested yesterday.  The Government's response and actions during the BERSIH 3.0 rally provided an indication of whether the new reform legislation will be perverted and abused in its use and implementation, where the wide powers vested in the authorities call for measured, proportionate and mature exercise.  The events of 28 April 2012 do not bode well in this regard.
Transformation and real recognition of democratic rights come at a price, namely constant vigilance.  The cost of not transforming and not allowing Malaysians the proper exercise of our democratic rights is too high.  In Malaysia's march towards developed nation status by 2020, which is only eight years away, the constitutional right to clean, free and fair elections cannot and should not be sacrificed.  
Christopher Leong
Vice-President
Malaysian Bar
29 April 2012  

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Malaysia-Conference on Competition Law (31 May 2012)

Conference on Competition Law (31 May 2012)







This circular may also be accessed here.



 


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Malaysia-Press Release: Government urged to facilitate peaceful assembly

Press Release: Government urged to facilitate peaceful assembly





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Press Release


Government urged to facilitate peaceful assembly
The Malaysian Bar calls on the Government — Polis DiRaja Malaysia ("PDRM") and Dewan Bandaraya Kuala Lumpur ("DBKL") in particular — to cooperate with the organisers of the upcoming BERSIH 3.0 assembly in order to facilitate a peaceful gathering this Saturday, 28 April 2012.
We reiterate that we support and defend the principle of any individual or group's fundamental freedom to speak, assemble or walk in order to publicly and openly promote and publicise a cause, if that freedom is exercised responsibly and peacefully.  The right to gather and to speak is not fully respected if it is shunted into the confines of a stadium.  
PDRM has demonstrated on various occasions in the past four months, and even prior to that, that it can work with organisers of public assemblies to monitor routes and manage traffic flows to allow participants to walk, and openly and outwardly express their viewpoints to members of the public, in safety.   We commend these positive and salutary examples.  It is thus evident that, with proper liaising and cooperation, it is possible for PDRM and the organisers of the BERSIH 3.0 event, and any other events, to work together to allow for the public to exercise their fundamental rights in a peaceful and responsible manner.

This occurs regularly in more mature democracies, and it has happened in Malaysia.  We urge the Government to take measures to allow, and encourage, such practices to continue.  Let us take this opportunity to promote, enhance and celebrate democracy.
From lessons observed worldwide, it is clear that the voice of the people cannot be silenced.  Our Government (and this includes the Government-appointed DBKL leadership) ignores the wishes and resolve of the people at its peril, and should, instead, rise to the occasion, to embrace and protect its people's freedoms and rights consistent with a true democracy.  Only then can we have a world-class democracy practising internationally-accepted human rights standards and respected by all.

The Malaysian Bar therefore calls on PDRM to permit all walks and public assemblies, and the activities leading up to them, to take place peacefully and with minimal intrusion and disruption, while ensuring public order and protecting the safety of all participants.

Bar Council will send a team to monitor events on the ground on Saturday.  In addition, a team from the Bar Council Legal Aid Centre (Kuala Lumpur), led by the following lawyers, will provide legal assistance in the event of arrests:
(1) Rajesweri Paramasevam  (012-275 1660)
(2) Lim Chi Chau  (016-228 8142)
(3) Adora Yusof  (019-317 8347)
Lim Chee Wee
President
Malaysian Bar

26 April 2012



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Thursday, 26 April 2012

Malaysia-Workshop on an Introduction to Mediation Skills and Techniques (14 May 2012)

Workshop on an Introduction to Mediation Skills and Techniques (14 May 2012)








This circular may also be accessed here.



 

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Malaysia-CORRECTION Circular No 084/2012: Seminar on Land Acquisition (8 May 2012)

CORRECTION Circular No 084/2012: Seminar on Land Acquisition (8 May 2012)




Please take note that the correct name of the first speaker is Robert Lazar.  The error is deeply regretted.




This circular may also be accessed here.



 



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Malaysia-Seminar on Land Acquisition (8 May 2012)

Seminar on Land Acquisition (8 May 2012)







This circular may also be accessed here.



 



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Saturday, 21 April 2012

Malaysia-Talk on 'Legal Groundwork Towards IPO'

Subject: Talk on 'Legal Groundwork Towards IPO'
To:



SBC/CIR/018/12
18th April, 2012


Dear Members and Chambering Pupils,



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Malaysia-INTEREST SCEME : THE NEXT GENERATION WEALTH GENERATOR


Dear Sir/Madam,

Companies Commission of Malaysia Training Academy (COMTRAC), the training arm under Companies Commission of Malaysia invites you to attend the programme :
INTEREST SCEME : THE NEXT GENERATION WEALTH GENERATOR
Date             :  9 May 2012
Event Code: CEP/KL/12/056
Time             : 9.00 am- 5.00 pm
Venue          :  Menara SSM @ Sentral, Kuala Lumpur





Register now! Don't miss the opportunity. Thank you.
















WARNING!: This message and attachments are intended for the recipient(s) only. The information contained is privileged and/or confidential and intended for the person(s) named only. Any use, review, disclosure or copying of the contents is hereby strictly prohibited. If this email has been received in error, kindly notify the sender via email and delete this message and its attachment accordingly. Except where the email is sent in the usual course of business, any views expressed in this message are those of the individual sender unless expressly stated as being that of the Companies Commission of Malaysia. The Companies Commission of Malaysia cannot ensure that the integrity of this communication has been maintained or that it is free of errors, viruses, interception and / or interference. The Companies Commission of Malaysia is not liable whatsoever for loss or damage resulting from the opening of this message and/or attachments and/or the use of the information contained in this message and / or attachments.






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Malaysia-Seminar on Current Issues in Bankruptcy Law (24 May 2012)

Seminar on Current Issues in Bankruptcy Law (24 May 2012)







This circular may also be accessed here.



 


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Wednesday, 18 April 2012

Malaysia-Press Release: Bills relating to students’ freedoms inconsistent with constitutional guarantees

Press Release: Bills relating to students' freedoms inconsistent with constitutional guarantees





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Press Release


Bills relating to students' freedoms inconsistent with constitutional guarantees
The Malaysian Bar is disappointed with the two Bills (collectively referred to as "Bills") — relating to the Universities and University Colleges (Amendment) Act 2012 ("UUCA Bill") and Private Higher Educational Institutions (Amendment) Act 2012 — because their provisions regulating the freedoms of association, speech and expression of students violate the freedoms guaranteed under Article 10 of the Federal Constitution.

Those provisions are antithetical to The Honourable Prime Minister's declaration and assurance to Malaysians on 11 April 2012, that after more than half a century of independence and the practice of democracy, we have reached a high level of maturity, and that it is the Government's duty to guard our Constitutionally-guaranteed rights instead of restricting individual freedoms.[1]

The proposed amendments contained in the Bills suggest, however, that others in Government apparently do not consider our university students as deserving of equal protection of individual freedoms and rights, ostensibly because they lack the requisite level of maturity.

Whilst the Bills permit membership in a political party, the rights of association, speech and expression are qualified to such an extent as to render such rights illusory, as the proposed amendments:
(1) prohibit a student from being involved in political party activities within campus; 
(2) empower the board of directors of a university or the registrar general to determine if the society or organisation that a student intends to join is "unsuitable to the interest and well-being of the students or the university" (although this does not include political parties);
(3) prohibit a student from standing for election or holding any post in any society or organisation on campus if the student holds any post in a political party; and
(4) prohibit a student from expressing or doing anything that may be reasonably construed as expressing support for, or sympathy with, or opposition to, any society or organisation that is unlawful, or that the board of directors of a university or the registrar general determines to be "unsuitable for the interests and well-being of the students or the university".

These provisions are unnecessarily restrictive, unreasonable and disproportionate barriers to a student's freedom of association under Article 10(1)(c), and freedoms of speech and expression under Article 10(1)(a), of our Federal Constitution.

The current laws have long prevented local university students of all ages from being actively involved in a significant aspect of the democratic process.  It has prevented these Malaysians from expressing their views or doing anything that may reasonably be construed as expressing support for, or sympathy with, or opposition to, political parties. Universities — as with all institutions of higher learning — must, as one of their primary duties, embrace and espouse the development of critical thinking by their students and the encouragement of robust debate.  This is vital to ensure a continuous stream of thinking Malaysians who are able to advance and build our nation.

In this regard, the Malaysian Bar fully supports the move by the Barisan Nasional Backbenchers Club, led by Khairy Jamaluddin (Member of Parliament for Rembau), to table a supplementary amendment to the UUCA Bill to remove proposed sections 15(2)(c) and (d).  We also urge the removal of subsections 15(2) to (5) altogether.

Consistent with Deputy Higher Education Minister Datuk Saifuddin Abdullah's reported comment[2] that the Government would lose in moral terms if it appealed against the decision of the Court of Appeal in Muhammad Hilman bin Idham & 3 Others v Kerajaan Malaysia & 2 Others, which declared the current restrictive section 15(5(a) of UUCA unconstitutional, the Government should withdraw its appeal.

By amending the Bills in the manner suggested above and withdrawing the appeal, the Government would be taking a positive and noteworthy step forward in fulfilling its duty to safeguard the constitutional guarantees for all Malaysians.

Lim Chee Wee
President
Malaysian Bar
13 Apr 2012

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Malaysia-Seminar on Medico-Legal Issues (8 May 2012)

Seminar on Medico-Legal Issues (8 May 2012)







This circular may also be accessed here.



 

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Malaysia-Press Release | ASEAN Human Rights Declaration: hear the voices of the peoples of ASEAN

Press Release | ASEAN Human Rights Declaration: hear the voices of the peoples of ASEAN





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Press Release


ASEAN Human Rights Declaration: hear the voices of the peoples of ASEAN
Later this year, the ASEAN Ministerial Meeting will meet to consider and to recommend the adoption of the ASEAN Human Rights Declaration ("AHRD").  This will be the principal human rights document that will express the hopes and aspiration of the peoples of ASEAN.  It will encapsulate the fundamental rights and liberties to which all ASEAN peoples aspire.

The AHRD was drafted by a drafting working group set up by the ASEAN Inter-Governmental Commission on Human Rights ("AICHR").  The draft document from this working group was presented to AICHR at the end of last year.  AICHR is now in the process of fine-tuning the draft before submitting it to the ASEAN Ministerial Meeting.  However, it is deeply regrettable that, notwithstanding that this document will speak about the human rights of the peoples of ASEAN, thus far the majority of the peoples of ASEAN have not heard of or seen this document, let alone been consulted about its contents.

Not only has the drafting process been secretive and opaque, but AICHR has thus far refused to be open and officially release a copy of the draft AHRD for public discussion.  Discussion of the draft AHRD between the AICHR representative and civil society of each ASEAN country has not been consistent or widespread, depending very much on individual initiatives, and varying from country to country.  This ad hoc approach to consultation cannot be the way forward, as many diverse groups of people should be included in the consultation process.

Further, there has been no active engagement by AICHR with national human rights institutions.  In Malaysia, the Human Rights Commission ("SUHAKAM") has not been engaged by the Malaysian AICHR representative.  This cannot be right.

The Malaysian Bar joins civil society organisations — both within Malaysia and throughout the ASEAN region — in supporting the call to the governments of ASEAN member countries to make public the current draft of the AHRD, and then to hold open and transparent consultations with the peoples of ASEAN with respect to the AHRD.  A joint statement was issued on 8 April 2012 to all the 10 representatives of AICHR, endorsed by 137 civil society organisations and networks throughout ASEAN.  If need be, the submission of the draft to the ASEAN Ministerial Meeting should be delayed in order for comprehensive consultations to be carried out.

Since the intention is for the AHRD to be a foundational document that captures the hopes and aspirations of the peoples of ASEAN, then their voices must be heard.

Lim Chee Wee
President
Malaysian Bar

12 Apr 2012



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Malaysia-Press Release: Repeal of ISA is commendable, but provisions in new law that depart from ordinary principles must be reviewed

Press Release: Repeal of ISA is commendable, but provisions in new law that depart from ordinary principles must be reviewed






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Press Release


Repeal of ISA is commendable, but provisions in new law that depart from ordinary principles must be reviewed
The Malaysian Bar commends the Honourable Prime Minister for fulfilling the promise he made on 15 September 2011 to abolish the Internal Security Act 1960 ("ISA").  Since its enactment more than fifty-one years ago, this piece of oppressive legislation enabling preventive detention without trial has been extensively condemned for being a gross violation of human rights, and for the cruel and indiscriminate abuse resulting from its use.

The Malaysian Bar is fully supportive of the Government's aim to combat terrorism, which represents an extraordinary threat to international and domestic peace and security.  The Government's counter-terrorism policy and actions must strike a delicate balance between collective security and individual liberties, and be consistent with the rule of law.

In its Memorandum dated 19 July 2010 ("Memorandum")[1], the Malaysian Bar expressed its view that there is adequate legislation to combat terrorism and, where necessary, the existing legislation could be strengthened alongside improved safeguards and oversight mechanisms.  Nonetheless, the Bar acknowledges that the replacement legislation — the Security Offences (Special Measures) Bill 2012 ("Bill") — and the amendments to the Penal Code, Evidence Act 1950 and Criminal Procedure Code ("Amendments") allow for the right to trial, and contain some provisions found in the laws of other jurisdictions[2].  Furthermore, the maximum period of detention of twenty-eight days, after the arrest and detention period of twenty-four hours, is consistent with the Bar's position in its Memorandum.

Bar Council was invited by the Honourable Attorney General to provide its comments — although within a short period of time prior to this legislation being tabled in Parliament — and two meetings were held to discuss the Bill.  We welcome the open-minded and frank dialogue with the Attorney General's Chambers, and note that some of our suggestions were accepted.  Whilst we appreciate the Government's desire for quick action and the hard work of the Attorney General's Chambers in its study, and drafting, of the Bill and the Amendments, we urge that in future the consultation process be more extensive, and more time be provided for it.

The Bill vests extraordinary and wide-ranging powers in the Government.  The Bar expresses its concerns regarding, inter alia, the following issues[3], which deserve further study and debate.  
(a) Preamble — the validity of the Bill is not dependent on the invocation of Article 149 so long as it contains safeguards consistent with fundamental liberties.

(b) Section 3 (Interpretation) — the definition of "security offences" includes an act that is prejudicial to national security or public safety[4].   Such a definition is too wide.  Instead, a more precise, and better, definition can be found in the United Nations Convention for the Suppression of the Financing of Terrorism:

Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act.

(c) Section 4 (Power of arrest and detention) — the extension of the period of detention for a duration of not more than twenty-eight days should be subject to judicial oversight, instead of by way of decision of a police officer of or above the rank of Superintendent.

(d) Section 6 (Power to intercept communication) — this power should be exercised by a judge, and solicitor-client communications must be protected.

(e) Parts IV (Special Procedures Relating to Sensitive Information) and VII (Evidence) — it is here that the Malaysian Bar has its greatest concerns, and where there are radical departures from the current rules of evidence.  The use of a summary of the evidence (as opposed to the evidence itself) and the lowering of the admissibility threshold will pose a serious impediment to a fair trial.  

In particular, the radical departure from the ordinary rules of evidence may negatively impact on the accused's right to a fair trial.  Counter-terrorism laws, policies and decisions must not usurp the very rights and freedoms that the terrorists themselves are threating.  

We appreciate the assurance of the Attorney General that there will be continuous study and review of the Bill and the Amendments, and that the Malaysian Bar's contribution will be welcomed.  
Apart from the ISA, the other legislation that now remains for the Honourable Prime Minister to consider amending — to rid our statute books of all arbitrary detention laws — are the Dangerous Drugs (Special Preventive Measures) Act 1985 and Prevention of Crime Act 1959, on the assumption that there will be no re-introduction of the Emergency (Public Order and Prevention of Crime) Ordinance 1969.
The Malaysian Bar encourages and supports the Prime Minister to continue on a path of law reform that is consonant with international human rights norms.
Lim Chee Wee
President
Malaysian Bar
10 Apr 2012

_________________________________

[1] The Memorandum is accessible here.
[2] One example is the Canadian Anti-Terrorism Act Bill C-36.
[3] The Bar would require some time to prepare and submit a memorandum to address more comprehensively the issues raised by the Bill and Amendments.
[4] The First Schedule of the Bill refers to Chapters VI and VIA of the Penal Code, where section 130B(2) defines "terrorist act".

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Tuesday, 10 April 2012

Malaysia-Seminar on Torrens System and Equitable Principles (17 Apr 2012)

Seminar on Torrens System and Equitable Principles (17 Apr 2012)








This circular may also be accessed here.



 


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Malaysia-International Malaysia Law Conference 2012 (26 to 28 Sept 2012)

International Malaysia Law Conference 2012 (26 to 28 Sept 2012)







This circular may also be accessed here.



 

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Wednesday, 4 April 2012

Malaysia-Press Release: Final report of PSC incomplete, and inadequate to achieve free and fair elections

Press Release: Final report of PSC incomplete, and inadequate to achieve free and fair elections





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Press Release

Final report of PSC incomplete, and inadequate to achieve free and fair elections
The tabling of the final report of the Parliamentary Select Committee on Electoral Reform ("PSC") in the Dewan Rakyat on 3 April 2012 ought to have been an occasion to highlight the work that had been done in the last six months to investigate weaknesses in our electoral system, identify best practices from around the world, and recommend implementation of the most appropriate solutions in order to strengthen our democratic process.

After the BERSIH 2.0 rally on 9 July 2011 and the manner in which the Government responded to it, the public have come to expect that the establishment of the PSC was an expression of the Government's intention to transform our electoral system, and translate the rakyat's deep-seated desire for change, expressed on that day, into real and permanent reforms. 

While the Malaysian Bar acknowledges that some of the 22 recommendations of the PSC are positive, and represent a step in the right direction, the PSC has missed an ideal opportunity to make comprehensive and extensive recommendations to realise Malaysians' aspiration for free and fair elections.

The first and most important weakness of the report is its failure to adequately deal with issues pertaining to the electoral roll.  This was the principal and immediate concern that gave rise to BERSIH 2.0.  The measures recommended by the PSC in relation to the electoral roll do not engender faith and confidence in the integrity and veracity of the principal electoral roll.  Not only must the system of adding new names onto the electoral roll be free from fraud, the list of existing voters needs to be weeded of the results of accumulated erroneous entries. The PSC made only a nominal nod in that direction by referring to a brief audit of the electoral roll by the government agency MIMOS, which was conducted within very limited parameters.  There is a compelling case for a more vigorous and extensive auditing of our electoral roll.  In India, for instance, the updating of its electoral rolls is a continuous process, with revisions conducted partly by way of house-to-house enumeration.

The serious and apparently rampant problems with our electoral roll were highlighted in the High Court decision in Harris Mohd Salleh v Ismail bin Majin, Returning Officer & Ors [2001] 3 MLJ 433, where the Judge made the following damning findings:

The instances of non-citizens and phantom voters in the electoral roll as disclosed at this trial may well be the tip of the iceberg. … It is common knowledge that an influx of illegal immigrants has plagued Sabah for some years.  It is a well-known fact as it had appeared in the local dailies too frequently. … The exposure of fraudulent practices such as massive registration of phantom voters is time consuming.  However, it has to be done if we wish to defend and preserve the meaningful practice of democracy in Malaysia.  As custodians of free and fair elections, the SPR is duty bound to do it.

These problems were acknowledged by the PSC in its interim report, with its recommendation that a Royal Commission of Inquiry be established to look into the situation in Sabah.

Secondly, the PSC's report does not deal with the Election Commission's apparent reluctance to be an agent of change, as evidenced by its rejection of six out of the 10 interim recommendations made by the PSC.

Thirdly, whilst the PSC fixed a deadline of three months for at least three of the 22 recommendations,[1]  it failed to prescribe a timeline for nine recommendations.[2]   Further, it also failed to propose policies or details with respect to some of its recommendations,[3]  for instance fair access to media.  
Finally, it is highly regrettable that the Speaker of the Dewan Rakyat disallowed the introduction of a minority report to the PSC's final report.  The PSC comprised nine members, four of whom were not from the governing coalition, including three from Pakatan Rakyat.  A minority report was prepared to draw attention to points of disagreement and dissension.  Procedures for Parliamentary Select Committees in other parts of the Commonwealth do provide for the inclusion of minority views in the main report.  However, this was not allowed by the majority in the PSC, and as such the preparation of a minority report was justifiable in order to reflect divergent views and an absence of consensus.  For the Speaker to have disallowed it means that the PSC's final report fails to reflect the diversity of views expressed within the PSC.  

The Malaysian Bar urges the Honourable Prime Minister to consider the weaknesses of the PSC's final report and exercise political will, to pursue holistic solutions towards rectifying the problems of the electoral roll and implement unhesitatingly all the recommendations of the PSC, before the next general elections.

Lim Chee Wee
President
Malaysian Bar

4 Apr 2012

_________________________________

[1]These are recommendations found in paragraphs 1.5, 6.2 and 13.4.
[2]These are recommendations found in paragraphs 12.5, 13.3, 16.4, 17.4, 18.2, 19.3, 20.3, 21.4 and 22.3.
[3]These are recommendations found in paragraphs 6.2, 9.2, 10.5 and 14.6.

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Malaysia-Press Release: Initiate and implement effective alternative approaches to immigration detention of children

Subject: [MBar] Press Release: Initiate and implement effective alternative approaches to immigration detention of children





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Press Release


Initiate and implement effective alternative approaches to 
immigration detention of children
The Malaysian Bar is pleased to support the global campaign calling for an end to the immigration detention of children.  This was launched on 21 March 2012 at the 19th Session of the Human Rights Council in Geneva, Switzerland.

In conjunction with the launch of the campaign, the International Detention Coalition ("IDC")[1] released a report-cum-policy document called "Captured Childhood", which highlights the experiences of 70 detained children and 16 parents of children who have been detained in immigration detention around the globe, including Malaysia.  The document can be accessed here.

The immigration detention of children in Malaysia is an issue of concern to the Malaysian Bar.  Malaysia, as a signatory to the 1989 Convention on the Rights of the Child ("CRC"), is committed to upholding the provision of the CRC that detention of children should only be used as a "last resort and for the shortest appropriate period of time".  We note that the IDC report acknowledges that "[t]he Malaysian government has in recent years taken positive steps towards improving the situation for refugees and asylum seekers" and that "[i]mproved access to immigration depots for the UNHCR has meant that the release of some refugee and asylum-seeking children and their families has been secured more rapidly".  IDC has also observed that "[t]here have also been clear efforts by officials within specific immigration detention centres to improve conditions for child detainees".

However, Malaysia should not rest on its laurels.  We should aim for zero immigration detention of children as well as their families.  Given that administrative detention and deprivation of liberty can result in long-term emotional and psychological damage for any child, and separation from one or both parents can be a highly traumatic experience, the Malaysian Government should ensure that refugee and asylum-seeking children and their families are immediately united (if separated) and accommodated together under alternative non-custodial arrangements rather than in immigration detention centres.  The government should investigate the feasibility of providing accommodation for refugee and asylum-seeking children and their families within the community.

Government policy with respect to refugee and asylum-seeking children, as well as stateless children, should also focus on providing them with adequate access to affordable health care.  These groups of children should be allowed to receive medical attention at nominal charges at government medical facilities.  

At present, the Malaysian Government relies almost exclusively on the private sector, namely non-governmental organisations ("NGOs"), to meet the schooling and recreational needs of refugees, asylum-seeking and stateless children.  Little or no financial assistance is given to such NGOs by the government.  As such, the provision of education is ad hoc and not comprehensive, and enjoyment of recreational facilities is sporadic at best.  Coming as they do from already dire circumstances, such children are thus additionally deprived and their future well-being further disadvantaged.  We call on the Malaysian Government not to ignore its responsibility in contributing to the financial costs of providing education and recreational facilities to these groups of children.

Given the slow rate of resettlement, many refugee and asylum-seeking children are likely to spend a considerable amount of time in Malaysia.  All parties concerned should think "outside the box" and consider the possibility of absorbing these children and their families in our country.

The Malaysian Bar urges the Malaysian Government to take cognisance of IDC's report-cum-policy document, and the observations and recommendations made therein.  We encourage the Malaysian Government to work with IDC, the Malaysian Human Rights Commission ("SUHAKAM"), the Office of the United Nations High Commissioner for Refugees ("UNHCR") in Malaysia, civil society groups as well as the Malaysian Bar, to initiate and implement effective alternative approaches to the immigration detention of children.


M Ramachelvam, Chairperson, Subcommittee on Migrants, Refugees and Immigration Affairs                                
Andrew Khoo Chin Hock,  Chairperson, Human Rights Committee
Bar Council Malaysia

2 Apr 2012
_________________________________

 [1] The International Detention Coalition is a coalition of over 250 non-governmental groups and individuals working in more than 50 countries to protect the rights of refugees, asylum seekers and migrants in immigration detention around the world through education, networking, advocacy, reporting and research.



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Proview eBook Bi-Weekly Offer - Get your copy at 20% off!

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