Jul 7, 2021 | Opinion Articles, RM
By Maria Chin Abdullah
Here in Malaysia, we are currently in the midst of the deadliest wave of COVID-19 yet. We all hope to remain safe from the virus, but I am concerned that many are being left behind without protection; not only from the virus, but also from arbitrary arrests and detention.
Recently, authorities have conducted immigration raids, sprayed disinfectant on migrants, and shared a poster online portraying “Rohingya migrants” as a security threat.
It is shameful to see government units such as the Immigration Department and Home Ministry promoting such anti-migrant and anti-refugee policies and narratives, fostering discrimination, violence and xenophobia within Malaysia.
These politicians know fully well that it is not in the country’s best interests to spread hateful rhetoric or to increase the number of people in detention during a pandemic. So, the question must be asked, in whose interest is it? It appears to me that it is nothing more than political scapegoating in the face of the government’s failure to tackle the spread of the virus and roll out the national vaccination program.
At the start of the pandemic last year, authorities appallingly rounded up thousands of migrants and refugees, pushed back boats of Rohingya refugees, and detained hundreds who arrived on our shores, all the while doing nothing to tackle a surge in hate speech against these communities. These xenophobic actions and policies heightened as the number of COVID-19 cases grew.
Unsurprisingly, the mass detentions were counterproductive and led to widespread infections, as the overcrowded and unhygienic prisons became the ideal breeding ground for the growth of COVID-19 clusters and deaths.
In February this year, the government promised not to detain any undocumented workers willing to be inoculated, but within a matter of months, this policy was reversed once again as the number of infections soared.
Despite the high risk of COVID-19 transmissions in detention facilities, our Home Minister is once again trying to convince Malaysians that the arrests and detentions during this month’s lockdown will help tackle the spread of the virus, and ensure that migrants become vaccinated.
Not only does this hostile approach actually undermine vaccination efforts, but it is counterproductive for the safety of everyone. Spreading fear only creates further barriers for refugees, asylum seekers and undocumented persons to access health services, as it destroys their trust, and therefore the likelihood of them coming forward for testing, treatment and vaccinations. If they remain in hiding, it increases the risk that COVID-19 infections will rise, making it increasingly difficult to reach herd immunity.
By refusing to ensure vaccine equity for all, the government is failing to follow both human rights and public health standards. If the government really is aiming to stop the spread of the virus, it would improve its cooperation with organizations such as UNHCR, as well as NGOs, to create a safe space for undocumented migrants, refugees and asylum seekers to be vaccinated without repercussions. It would also put firewalls in place to create a clear separation between migration enforcement authorities and the health care sector, and ensure that personal data is not shared with migration authorities without consent.
This would be a more humane and effective way to vaccinate undocumented persons. They should not be penalized for being unable to obtain valid documents, when many became undocumented after falling victim to trafficking, abuse, exploitation, and other hardships. Instead of detaining non-registered migrants, asylum seekers and refugees, alternative measures should first be considered.
COVID-19 does not discriminate, and neither should we. To truly protect all of us from the virus, what is really needed is an end to immigration raids and an inclusive response that ensures vaccines are safely accessible to all of us living in Malaysia.
So, I ask all of us, the next time we hear the government spread anti-migrant speech, and brag about rounding up migrants supposedly for our own safety, let’s ask ourselves: who is the government really trying to protect? Because by shifting blame onto those in the most vulnerable situation in our society, it certainly doesn’t appear to be the general public, but instead themselves.
Maria Chin Abdullah is a Malaysian Member of Parliament and Member of ASEAN Parliamentarians for Human Rights (APHR)
May 25, 2021 | DFF, Statements
JAKARTA – Southeast Asian lawmakers today expressed alarm over the recent surge in harassment against opposition lawmakers and critical voices for exercising their rights to freedom of expression and peaceful assembly in Malaysia, and called on authorities to immediately end such tactics of intimidation. The calls came after at least six MPs and four state-level lawmakers were called in for questioning by authorities on a range of potential charges in recent weeks.
“Peacefully demonstrating and voicing opinions should never be a crime, and the rate at which authorities are targeting those merely discussing issues of public interest is a matter of considerable concern,” said Carlos Zarate, a Philippine Member of Parliament (MP) and member of ASEAN Parliamentarians for Human Rights (APHR). “Basic freedoms have come increasingly under attack since Prime Minister Muhyiddin Yassin’s government came to power last year through back-door maneuvering, and this latest wave of investigations and harassment clearly aims to silence political opponents and all forms of dissent.”
On 22 May, MP Syed Saddiq was questioned by police in relation to a video he posted on social media related to police brutality and to demand justice for A. Ganapathy, who died on 18 April after being held in police custody. According to sources, Saddiq is being investigated under Section 505(b) of the Penal Code for allegedly making statements that cause fear or alarm to the public, and Section 233 of the Communications and Multimedia Act (CMA), for alleged improper use of network facilities. The authorities have seized his phone, and have access to his Instagram and TikTok accounts for further investigation.
On 20 May, MP Mukhriz Mahathir, two state assembly representatives, as well as five other political party members and rights activists, were interrogated for allegedly gathering without notice under Section 9(5) of the Peaceful Assembly Act 2012 (PAA), in relation to a peaceful sit-in protest on 30 April. The rally was held to call for, among other things, the reopening of parliament, which was suspended in January after a state of emergency was declared amid a rise of COVID-19 cases. The emergency has since been used to introduce regulations that further threaten fundamental freedoms, including a ”fake news” ordinance that police have used to investigate at least 12 people accused of spreading false information related to COVID-19.
In early May, eight individuals, including APHR member MP Fahmi Fadzil, as well as seven civil society and political party members, were questioned under Section 9(5) of the PAA over a 24 April solidarity gathering regarding the arrest of political artist Fahmi Reza. Meanwhile, later in the same month, at least 11 people were summoned for questioning under Section 9(5) of the PAA and Regulation 11 of the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Conditional MCO) (No. 4) Regulations 2021 in relation to a peaceful gathering on 27 March that protested the Election Commission’s delay in implementing the 18-year voting age. Those hauled up included APHR member and MP Maria Chin Abdullah, MP Maszlee Malik, MP Hannah Yeoh, two state assembly representatives, and APHR member and former MP Tian Chua.
In its September 2020 report, Parliamentarians at Risk, APHR found an increase in cases being opened against parliamentarians since the unelected “back-door” Perikatan Nasional government took power in March 2020. At least five opposition MPs in Malaysia were either probed or charged for raising matters of public interest or for being critical of the government.
“In recent weeks, the number of MPs in Malaysia questioned for expressing their opinion already exceeds those APHR documented in the first half of Perikatan Nasional’s rule last year. In addition, parliament has not sat once this year, and the recent judicial harassment is making it even harder for MPs to fulfil their role as a check on the executive, and safeguard against abuse by authorities,” Zarate said.
These investigation tactics however are only part of a broader trend to restrict civic space in Malaysia, including press freedom, APHR said.
Last month, Reporters Without Borders downgraded Malaysia to 119, from 101 a year earlier, in its annual world press freedom index, recording the worst deterioration among 180 countries. The sharp decline is linked to last year’s change in government, and has seen authorities use repressive laws to harass journalists and restrict space for critical reporting. This year, police have opened several investigations to question journalists for their work. The case of A. Ganapathy, in particular, has seen a police chief threaten to sue a media outlet, Free Malaysia Today, for its coverage, and issued a warning to the public not to comment on Ganapathy’s death.
“Authorities must immediately drop all investigations, and cease going after political opponents, human rights defenders, journalists, and other critical voices who are merely exercising their rights to freedom of expression and peaceful assembly. Rather than stifle legitimate criticism, the Malaysian government would find that listening to the voices of its people, including by reopening parliament, could instead bring greater benefit to the country – such as enhancing transparency and accountability – which are key elements of a democratic country, and could help to improve trust in this government,” said Zarate.
Mar 15, 2021 | DFF, Statements
Malaysia should immediately repeal a new emergency regulation on ‘fake news’ relating to the Covid-19 pandemic, said ARTICLE 19, the ASEAN Parliamentarians for Human Rights (APHR) and Open Net Association today. The new ordinance draws heavily from the Anti-Fake News Act, a repressive law that was repealed in 2019, and is likely to be used by the government to restrict freedom of expression in a manner that violates international human rights law.
On Friday, the Perikatan Nasional government enacted Emergency (Essential Powers) (No. 2) Ordinance 2021 (the ‘Ordinance’) using powers conferred by a January 2021 Emergency Proclamation. The Ordinance establishes a number of criminal offences relating to ‘fake news’ about the Covid-19 pandemic and the Emergency Proclamation, which was promulgated for the stated purpose of combating the Covid-19 pandemic and is effective until 1 August 2021.The new offences include the creation, publication, or dissemination of so-called ‘fake news’ and the failure to take down publications containing content deemed as ‘fake news’.
The Ordinance was promulgated without parliamentary approval, as the legislative body has been suspended during the state of emergency, leaving the country without democratic oversight for several months. Moreover, that the Ordinance punishes “fake news” relating to the proclamation further raises the risk of suppressing meaningful public discussion on the legitimacy of the proclamation or the political crisis brought on by the suspension of parliament.
The Ordinance draws heavily from the Anti-Fake News Act 2018. It follows the structure of the Act, and many provisions in the Ordinance are identical to those in the Act. In 2018, Malaysian civil society and international human rights organisations, including ARTICLE 19, raised concerns that the Act was incompatible with international human rights law and would be used to censor speech and punish government critics. In October 2019, the Malaysian Parliament repealed the law. Not only does the Ordinance replicate many of the most problematic aspects of the Anti-Fake News Act, it also adds new provisions that raise fresh concerns.
The right to freedom of expression is protected by customary international human rights law. Although it may be restricted in order to protect national security, public order, or other legitimate aims, such restrictions must be prescribed by law and necessary and proportionate to those aims.
In a joint declaration on freedom of expression and “fake news”, UN and regional freedom of expression experts stated that broad restrictions on “fake news” do not pass that test, writing 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.”
In the past year, ARTICLE 19 has documented how the government has used various law to restrict freedom of expression and harass journalists and human rights defenders in Malaysia. Given the breadth of powers under the Ordinance, it will likely be used to further suppress public discourse and legitimate criticism of public officials and other powerful individuals.
Problematic aspects of the Ordinance include the following:
● The Ordinance is overly vague. It defines “fake news” as “any news, information, data and reports which is or are wholly or partly false relating to COVID-19 or the proclamation of emergency, whether in the forms of features, visuals or audio recordings or in any other form capable of suggesting words or ideas.” The breadth of this definition is overbroad in scope, making it incompatible with the requirement of legality for limitations to freedom of expression under international human rights law.
● Penalties for offences under the Ordinance are grossly disproportionate. Punishments include fines of up to 500,000 Ringgit (USD 121,500) and up to six years’ imprisonment. The possibility for compounding punishment for “continuing” violations raises further concerns in the digital age, when content can go viral and become difficult to curtail.
● The Ordinance disregards intermediary liability principles. It fails to distinguish between content producers and intermediaries such as Internet Service Providers (ISPs), social media platforms, or third-party commenters on news platforms, placing an equal obligation on all parties to observe 24-hour takedown notices made by police, and introduces compounding punishment for failure to remove content. This further increases the risk of intermediaries engaging in self-censorship. The recent prosecution of Malaysiakini for user comments highlights how authorities could abuse the Ordinance to restrict independent media.
● The Ordinance grants police or “authorized officers” enforcing the Ordinance unfettered access to personal data, including access to “necessary password, encryption code, decryption code, software or hardware,” and disproportionately penalizes non-compliance.
● The Ordinance limits legal challenges. Individuals subject to a court order to remove content cannot apply to set aside the order if it concerns “fake news which is prejudicial or likely to be prejudicial to public order or national security” and if the order is obtained by the Government.
● The Ordinance establishes vague requirements for the preservation and disclosure of personal data. Under the Ordinance, the police or an “authorized person” can issue a written notice requiring those in control of communication systems to preserve data for an unspecified period of time and to provide that data to the authorities upon request. It does not specify the nature of the written order or whether there is an effective appeal process. It provides disproportionate penalties for failure to comply.
● Preservation and disclosure orders can be made privately and kept secret. Anyone who receives such an order is forbidden from publicly disclosing the order “without lawful authority”. This restriction could prevent independent third parties from monitoring the government’s implementation of the Ordinance. It also raises questions about access to evidence and the right to a fair trial should the disclosed data be used as part of a criminal proceeding but be withheld from legal representatives of the accused.
● There is no effective right to remedy, as required by international law. The Ordinance states that the Malaysian government, police and any “authorized officer” acting under the Ordinance “in good faith” shall be immune from prosecution or other proceedings, allowing for impunity for those who commit human rights abuses. All offences established by the Ordinance are seizable offences, meaning that police may arrest suspects without a warrant. The possibility of arbitrary detention without access to a remedy is particularly worrying.
● The Ordinance affects the free flow of information globally. The Ordinance provides expansive jurisdiction, allowing authorities to target any person anywhere in the world, so long as the expression concerns Malaysia or the person affected by the commission of the offence is a Malaysian citizen. This provision could allow authorities to seek to block content created or shared abroad, curtailing the right to information.
While it is important for authorities to prevent the spread of disinformation, and ensure accurate information about the coronavirus, there are steps that the government of Malaysia could take to tackle disinformation that are less threatening to free speech. As well as investing in public awareness campaigns about the pandemic, it could adopt longer-term measures such as promoting media and digital literacy, incorporating the subject into school curriculums, and engaging with relevant civil society actors.
The Ordinance is deeply flawed, unnecessary, and fundamentally incompatible with international human rights law. It should be immediately repealed in its entirety.
Parliament should be convened as soon as possible to review emergency measures and ensure government accountability.
The Malaysian government should additionally initiate a program of legislative reform to bring its legal framework in line with international standards relating to freedom of expression. In particular, the government should repeal the Sedition Act 1948, amend the Communications and Multimedia Act 1998, and consider legislation protecting online intermediaries from criminal and civil liability for third party content. The Malaysian government should also ratify without delay the International Covenant on Civil and Political Rights, which protects the right to freedom of expression.
Feb 26, 2021 | RM, Statements
The Asia Pacific Refugee Rights Network (APRRN), Asian Forum for Human Rights and Development (FORUM-ASIA), ASEAN Parliamentarians for Human Rights (APHR) and the International Detention Coalition (IDC) strongly urge the Government of Malaysia to grant UNHCR immediate and unfettered access to immigration detention facilities. We further urge the government to investigate the deportation on 23 February 2021 of 1,086 individuals to Myanmar, in defiance of the Kuala Lumpur High Court’s interim stay order granted earlier that day.
On 22 February, Amnesty International Malaysia and Asylum Access Malaysia jointly filed an action in the Kuala Lumpur High Court to prevent the deportation of 1,200 persons to Myanmar. Several hours after the interim halt to deportation order was granted, the Malaysian government handed 1,086 individuals to Myanmar naval ships in flagrant violation of the court order. The next day, the High Court issued an extended stay order against the deportation of the remaining 114 individuals.
The Malaysian government has yet to provide information on the 114 persons or their whereabouts. Immigration officials asserted that the 1,086 deported did not include Rohingya refugees or asylum seekers. However, there is a substantial risk that the group includes refugees and asylum seekers, including unaccompanied children. According to Asylum Access and Amnesty International Malaysia, there were at least three UNHCR card holders and 17 children among those scheduled for deportation. APRRN also received troubling confirmation that at least two of those children was separated from their family and deported back to Myanmar alone.
The risk is also particularly acute given that UNHCR has been denied access to verify and assess individuals fleeing persecution since August 2019. Malaysia also lacks a domestic policy and legal framework for the identification and recognition of refugees in the country. In November 2020, the Human Rights Commission of Malaysia (SUHAKAM) estimated that there were approximately 1,000 refugees and people seeking asylum still in detention. The Ministry of Home Affairs confirmed that as of 26 October 2020, more than 756 minors are in immigration detention, with over 326 unaccompanied or separated children from Myanmar.
Returning individuals in need of international protection to Myanmar, especially children rendered unaccompanied through forcible separation from their parents or guardians, would amount to serious violation of Malaysia’s Child Act and Malaysia’s international obligations, notably the Convention on the Rights of the Child and the principle of non-refoulement.
Since the forceful seizure of power by the Myanmar military on 1 February 2021, Myanmar has seen the largest protest and uprising, calling for the restoration of democracy. Grave human rights abuses and tension have also risen steadily with hundreds of arbitrary arrests and detentions, deliberate internet disruption and disconnection from the outside world. With the escalating concerns over the rapid deterioration amidst a health crisis, “the use of deadly violence” by the military on innocent civilians, including the recent killing of a 14-year old was heavily condemned by the United Nations Secretary General in the 46th UN Human Rights Council session. World leaders, including G7 countries and neighbouring members of the Association of Southeast Asia Nations (ASEAN) continue expressing deep concern about the ongoing repression, horrifying loss of lives and the developments that would lead to serious regional instability. Malaysia was amongst the ASEAN countries which echoed that the political turmoil in Myanmar may affect security and stability in the region and is “one step backward in the process of democracy in that country”.
Ethnic minorities, many exiled in Malaysia, including amongst the 1,086 deported, have suffered atrocities for decades under the rule of the military. There is great fear that life for these ethnic minorities deported back to a military regime will likely worsen. Given the increasing instability and drastic shift in the political landscape in Myanmar, individuals who were previously not exposed to protection risks might now face severe security and safety threats.
We therefore call upon the Malaysian government to:
- Urgently grant UNHCR immediate and unrestricted access to the 114 individuals and all immigration detention facilities to verify the status of all detainees;
- Release individuals in need of international protection as identified by UNHCR who are still in detention, especially amongst the 114 who remained;
- Comply with the extended stay order issued by the Kuala Lumpur High Court on 24 February against the deportation of the remaining 114 who were part of the original 1,200 to be deported; and
- Open an independent and thorough investigation into the breach by the immigration department of the court order on 23 February, ensuring that those acting in violation of the court order are held fully accountable.
Feb 18, 2021 | RM, Statements
JAKARTA – Malaysia must immediately suspend the planned repatriation of Myanmar nationals, amid reports that Myanmar’s military government has offered to take back its citizens held in Malaysian immigration detention centers, Southeast Asian parliamentarians said today.
“It is utterly abhorrent that Malaysia is cooperating with the Myanmar junta that has illegally seized power, and even more so to return Myanmar nationals to a situation of danger and unrest. Many of them could be refugees and asylum seekers who will be put back into the hands of the Myanmar military who caused them to flee violence and desperation in the country in the first place,” said Chamnan Chanruang, a member of ASEAN Parliamentarians for Human Rights (APHR), and a former Thai Member of Parliament (MP). “Malaysian authorities should immediately grant access to UNHCR to verify the identities of those in immigration detention centers and ensure that nobody requiring international protection is returned to Myanmar,” he said.
The government of Malaysia accepted an offer by the Myanmar military to send three navy ships on 21 February for 1,200 Myanmar nationals held in Malaysian immigration detention centers to be returned to Myanmar. Although Malaysia has said that it will not deport any UNHCR card holders, UNHCR has not had access to immigration detention centers in Malaysia since August 2019, and it is therefore believed that there may nevertheless be refugees and asylum seekers among those scheduled to be deported who were arrested in mass immigration raids by Malaysian authorities last year. They are likely to face persecution upon return to Myanmar.
Parliamentarians from the region are highly concerned about the safety and wellbeing of Myanmar nationals currently in the detention centers, and urge Malaysia to respect its commitments to international law and international protection, including the principle of non-refoulement. They urge the government to recognize that the recent military coup could result in more widespread human rights abuses, and threatens peace and stability in the region.
“The coup is threatening the lives of all vulnerable communities. There is no doubt that the risk of further discrimination and violence against ethnic and religious minorities, including the Rohingya, is high. We know what the Myanmar military is capable of in terms of human rights abuses,” said Teddy Baguilat, an APHR Board Member, and former Philippine MP.
“Instead of pandering to the Myanmar military government and putting more lives at risk, Malaysia should instead work with its ASEAN neighbors to help protect the lives of the Myanmar people currently peacefully protesting, and at risk of a violent crackdown at the hands of the junta,” Baguilat said.
