Human rights in Malaysia: annual report pinpoints deaths in custody, and violations of indigenous rights

The Human Rights Commission of Malaysia (SUHAKAM) released its 2016 annual report today (Tuesday) and pinpointed the continued violation of indigenous people’s human rights.

It also called for an urgent review of death penalty legislation, and highlighted the increase in the number of deaths in custody.

The commission said that custodial deaths in prison had increased to 269 in 2016, as compared with 252 in 2015.

SUHAKAM said 35 deaths were recorded in immigration centres last year, as compared with 82 in 2015.

The commission has no statistics about deaths in police lock-ups in 2016, but 12 were reported in 2015.

There have been three cases of custodial deaths reported in Malaysia since January 2017. On January 18, Soh Kai Chiok was found dead at the Bera police station in Pahang. On February 8, S. Balamurugan was found dead in the Klang Utara police lock-up, and M. Thanaseelan was found dead in his cell at the Bukit Sentosa lock-up in Hulu Selangor on February 25.

SUHAKAM has called on the government to expedite the completion and launch of the National Human Rights Action Plan (NHRAP) and is also advocating for an independent National Action Plan on Business and Human Rights (NAP).

The commission’s chairman Razali Ismail (pictured left) said he hoped the April 2017 deadline given for development of the NHRAP would be strictly adhered to and that there would be “strong political will and better awareness among stakeholders in order to accelerate the execution of the plan”.

The new report states: “SUHAKAM hopes that the NAP will assist the government to increase its capacity to protect human rights in Malaysia, by strengthening administrative structures, promoting greater respect for the rule of law and national cohesion, as well as encouraging development of a human rights culture throughout Malaysia.”

It also says there needs to be faster action in the follow up to the national inquiry into the land rights of indigenous peoples.

Razali said SUHAKAM was very concerned about the slow progress being made by the Cabinet Committee for the Land Rights of Indigenous Peoples.

This, Razali said, had resulted in continuous violations of the human rights of indigenous people and especially the encroachment into their native land by developers. SUHAKAM, he said, received 61 complaints about native land rights in 2016.

“It is our view that the progress of the Cabinet Committee for the Land Rights of Indigenous Peoples has been disappointing because, despite assurances that 17 out of the 18 recommendations by SUHAKAM in our national inquiry were accepted by government, none have been implemented.

“Despite the government’s commitment on this issue, the encroachment into indigenous peoples’ lands for the purpose of logging, plantation, and mining are still taking place.”

Violations of native customary land rights worsened in 2016, SUHAKAM says.

“The failure in protecting the land rights of indigenous peoples by the State has also led to incidents such as the commotion and criminal intimidation at the blockades set up by a group of Orang Asli on a logging trail in Gua Musang, Kelantan.”

There had been recurring complaints from the Orang Asli in Kelantan about logging companies encroaching on their customary land in the Balah Forest Reserve, SUHAKAM says.

“After several of their protests against the logging activities went unheeded by the State government, the Orang Asli erected several blockades on the route to the forest as a last-ditch attempt to stop the logging.”

On November 29, the Kelantan State Forestry Department dismantled the blockades and arrested about 41 of the Orang Asli. They were then released within 24 hours.

“The commission is dismayed at the uncalled-for reaction of the authorities to the Orang Asli blockades against the logging activities, and the indifference towards the commission’s repeated requests to the State government to have a discussion on the issue.”

SUHAKAM has called on the government to issue a moratorium or temporary prohibition order on all developments involving indigenous peoples’ land rights pending the implementation of the cabinet committee’s recommendations.

SUHAKAM says the Department of Orang Asli Development (JAKOA), a government body responsible for protecting the rights of the Orang Asli (First People) and ensuring their well-being and advancement, appears to have failed to protect their rights.

SUHAKAM and others have called for a comprehensive review of JAKOA.

The commission says that causes of violations of indigenous people’s rights continue to be wide-ranging.

“The underlying reasons include the widespread, systematic discrimination against them, as well as exclusion from decision making and effective participation in matters that directly affect them. In our parliamentary system, indigenous communities, in particular the Orang Asli are not sufficiently represented.”

Death penalty

SUHAKAM said it welcomed the initiative taken by the government to explore the possible abolition of the mandatory death penalty for offences under the 1952 Dangerous Drugs Act.

The death penalty is “cruel, inhuman, and degrading” and goes against the right to life, the commission states.

Razali said the commission hoped the government would consider restoring the discretionary power of judges and review the relevance and effectiveness of capital punishment for all other criminal offences.

Increase in complaints

The total number of complaints lodged at SUHAKAM increased in 2016, and totalled 879. In 2015, the commission received a total of 676 complaints, of which 333 cases fell within its jurisdiction.

The complaints lodged in 2016 included alleged violation of the right to nationality, native customary land rights, and the right to seek asylum and refugee status.

Eighty complaints were made by the Orang Asli alleging the continued encroachment of native customary land for logging, mining and farming; the pollution of rivers and rapid deforestation; a lack of basic amenities including electricity and water supply; and issues related to the education of Orang Asli children. In Sabah, complaints were mainly about the right to nationality and native customary land rights.

A total of 395 complaints were received at SUHAKAM’s Kuala Lumpur office, 468 in Sabah, and 16 in Sarawak.

Twenty-five complaints concerned detention under the 1959 Prevention of Crime Act (POCA); seven related to  detention under the 1985 Dangerous Drugs Act (Special Preventive Measures); and three concerned  detention under the 2012 Security Offences (Special Measures) Act 2012 (SOSMA).

In its short lifespan, the commission says, SOSMA has been applied for non-terrorism purposes.

“For this reason, SUHAKAM is concerned that preventive detention, terrorism and security laws are being used to suppress freedom of expression and political dissent.

“SUHAKAM’s position remains that individuals should not be arrested and detained for exercising their right to freedom of expression.”

The commission adds: “There are cases where individuals who have sought to exercise their right to freedom of peaceful assembly have been detained under the Act. There seemed to be a troubling trend to undermine any serious attempt to analyse the human rights compatibility of this so-called counter-terrorism legislation.

“Bluntly put, the broad characterisation of ‘security offences’ under the Act appears to suggest that its ambit extends beyond terrorism offences.”

SUHAKAM cites the example of the civil rights activist Maria Chin Abdullah, who was detained under SOSMA for ten days without charge.

Maria Chin, who is the chairwoman of the Bersih 2.0 Coalition for Clean and Fair Elections, was arrested on November 18, the day before the Bersih 5 rally.

There was outrage both nationally and internationally over her detention.

Under SOSMA, the authorities can hold detainees for 28 days without trial, including two days without legal representation.

The Bersih leader was held in solitary confinement in a tiny, windowless cell with a light on 24 hours a day. After protests about the conditions of her detention, she was given a mattress and a pillow.

Maria Chin received a rapturous welcome on her release.

In addition to complaints it has received about detention without trial, SUHAKAM received complaints about detainees being subjected to torture or cruel, inhuman, or degrading treatment during interrogation; denial of access to legal representation during the detention period; detention of children under the Acts; and the unjustifiable and/or unrestricted use of these laws to detain individuals in the absence of judicial oversight.

The 2016 report highlights the abusive treatment of detainees and other human rights violations not only in lock-ups and prisons, but also in immigration detention centres.

SUHAKAM said it was appalled by an incident where male detainees in a lock-up were not allowed to wear anything but their underpants.

“More appallingly, the police informed SUHAKAM that the practice of forbidding detainees from wearing clothes in the lock-up was outlined in a written guideline issued by the Officer-In-Charge of the Police Station,” Razali said.

SUHAKAM has called on the police to stop this practice and says the guideline should be annulled as it contravenes the 1953 lock-up rules.

Protecting children

The commission called on the government to review some of the provisions of existing laws that it says interfere with the full enjoyment of human rights, such as the 2001 Child Act.

In particular, SUHAKAM called for a specific law to address sexual offences against children. Razali said the commission was pleased to note that the government tabled the Sexual Offences Against Children Bill in April 2017, acknowledging the seriousness of offences against children.

“SUHAKAM hopes that, with the legislation in place, protection mechanisms will be properly implemented and reformed to ensure that sexual abuse cases against children will be effectively reported and the perpetrators thoroughly prosecuted,” Razali said.

SUHAKAM maintains that immigration detention of children is not in the best interest of the child and is in conflict with the government’s obligations under the Convention on the Rights of the Child.

The commission urged the government to expeditiously implement the Alternative to Detention (ATD) proposal to end immigration detention of children, particularly unaccompanied children.

It also reiterated its call for the government to accede, without hesitation, to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Human trafficking

In 2016, SUHAKAM received seven complaints pertaining to alleged human trafficking. In some cases, the complaints were not channelled to the relevant enforcement authority because there was insufficient information and/or because the complainants did not cooperate to provide further details.

It must be noted, SUHAKAM says, that the United States Department of State, in its 2016 Trafficking in Persons Report, identified Malaysia as a destination and, to a much lesser extent, a source and transit country for men, women, and children subjected to forced labour; and women and a small number of children subjected to sex trafficking.

“Most of the trafficking victims are among the approximately two million documented and an even higher number of undocumented migrant labourers in the country.”

The government contends that efforts have been made to interdict trafficking and enhance surveillance, SUHAKAM says, but the rate of prosecution of offenders is not convincing, as compared to Malaysia’s neighbours, such as Thailand.

“The authorities must accept the seriousness of this issue as trafficking occurs both across borders and within a country. SUHAKAM does, however, welcome reform to the victim protection system, including legal provisions to allow victims freedom of movement and the right to work.”

SUHAKAM notes in its report that there are an estimated 150,000 refugees in Malaysia who are registered by the United Nations High Commissioner for Refugees (UNHCR).

“There are still no firm policies, legal framework or solutions in place concerning this vulnerable population,” the commission said.

“Owing to the lack of formal status and, as a result, the ability to obtain legal work permits, this population remain vulnerable to trafficking. Many refugees incur large debts, which traffickers take advantage of, subjecting some of them to debt bondage.”

Other complaints

SUHAKAM also received eight complaints of discrimination on the basis of disability, race, and gender and 36 complaints about the violation of the right to be free from torture, cruel, inhuman, or degrading treatment and punishment.

The role of parliament

In 2016, SUHAKAM took active steps to increase parliament’s role in the promotion and protection of human rights in Malaysia.

“As a primary institution of the State, SUHAKAM believes parliament shares a responsibility to protect and realise human rights in the country alongside the executive and the judiciary,” Razali stated.

He says this is 16th consecutive year that SUHAKAM has not had its annual report debated by parliament.

“It has to be underlined that what SUHAKAM cannot achieve in terms of the protection of fundamental rights of the people, parliament must then take up the ownership.”

SUHAKAM hands over its 2016 report to parliament.