Malaysia – Communists – Ethnic Chinese – Internal Security Act – Freedom of Association

Home , Censorship in Malaysia, Chin Peng, Labour Party of Malaya

Refugee Review Tribunal

AUSTRALIA

RRT RESEARCH RESPONSE

Research Response Number: MYS17707 Country: Malaysia Date: 16 December 2005

Keywords: Malaysia – Communists – Ethnic Chinese – Internal Security Act – Freedom of association – Human rights

This response was prepared by the Country Research Section of the Refugee Review Tribunal (RRT) after researching publicly accessible information currently available to the RRT within time constraints. This response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

Questions

1. What is the attitude of the Malaysian authorities to Communism/communists? 2. Do the authorities charge, detain in prison and/or restrain the movement of communists? 3. Could the authorities institute other actions such as ‘instigating violence’, ‘creating public unrest’, and ‘anti-national activities’ to mask action against communists? 4. Is Malaysia branding the human rights movement as communists? 5. What is the ISA Act, (Internal Security Act) in Malaysia? 6. Is it generally accepted that the ethnic Chinese have spread the Communist ideology in Malaysia? 7. What rights of association, freedom of movement, workers’ rights (the right to organize and bargain collectively) and anti-discrimination rights are held by Malaysian citizens?

RESPONSE

Executive Summary Country information suggests that the Malaysian authorities maintain an antithetical attitude towards any citizens who subscribe, or have subscribed, to the views which motivated the communist insurgency which affected Malaya during the 1948-1960 State of Emergency. Nonetheless, the Malaysian government has made no recent arrests in connection with an anti-communist program. In the decades which followed the Emergency, the Malaysian authorities did arrest hundreds of ethnic Chinese persons on allegations of supporting the communist insurrection, detaining members of a variety of left wing political and organised labour movements under the powers of the 1960 Internal Security Act (ISA). Recent reports, however, suggest that the ISA, though still a facility for arresting persons deemed a threat to state security, has not been employed to detain persons suspected of communist sympathies. (For information on the history and development of the ISA, see: Amnesty International 1999, ‘Malaysia – Human Rights Undermined: Restrictive Laws in a Parliamentary Democracy’, AI Index: ASA 28/06/99, 28 June http://web.amnesty.org/library/pdf/ASA280061999ENGLISH/$File/ASA2800699.pdf – Accessed 14 December 2005 – Attachment 1; for a recent report on persons arrested under the powers of the ISA, see: Human Rights Watch 2005, ‘Detained Without Trial: Abuse of Internal Security Act Detainees in Malaysia’, September http://hrw.org/reports/2005/malaysia0905/malaysia0905.pdf – Accessed 14 December 2005 – Attachment 2.)

Hostilities against the Communist Party of Malaya (CPM) formally ended in 1989 with the signing of the Haadiyai Peace Accord and a 1999 Amnesty International report states that “[t]he last six remaining communist detainees were reported to have been released in 1995”. Even so, former Communist insurgents who found refuge in Thailand have not been allowed to re-settle in Malaysia, in spite of provisions in the Haadiyai Peace Accord’s agreeing to such re-settlement. Further to this, the Malaysian authorities continue to ban certain communist publications from import into Malaysia and the government prohibits “the Communist Party and affiliated organizations from registering and has blocked the registration of the Socialist Party of Malaysia [or SPM] since 1999”. In spite of this, the SPM continues to operate and to engage in opposition politics; and although its activists are frequent arrested at demonstrations they are rarely detained for any great length of time. Thus, although the political rights of the far left are marginalized through exclusion from the electoral process, there appears to be no active campaign of arrest being waged against persons residing in Malaysia who might be deemed communist sympathizers. (For information on the 1989 Haadiyai Peace Accord and the government’s resistance to the repatriation of former communist insurgents, see: Veeranggan, A. 2005, Suaram website, source: Malaysiakini.com, 4 April http://www.suaram.net/display_article.asp?ID=234 – Accessed 13 December 2005 – Attachment 3; for information on the current ban on communist publications, see: ‘Ministry Closely Monitoring Publications on Terrorisme’ 2005, Organisation of Asia-Pacific News Agencies, source: Bernama, 9 December – Attachment 4; for information on the legal status of the CPM and the SPM, see: US Department of State 2005, Country Reports on Human Rights Practices for 2004 – Malaysia, 28 February http://www.state.gov/g/drl/rls/hrrpt/2004/41649.htm – Accessed 2 March 2005 – Attachment 5; ‘Malaysia: Police attack residents, demolish homes’ 2005, Green Left Weekly website, 14 September http://www.greenleft.org.au/back/2005/642/642p19e.htm – Accessed 14 December 2005 – Attachment 6; for information on the activities of the SPM, see: ‘Defence Request AG to Drop Case!’ 2003, Socialist Party of Malaysia website 2003, Socialist Party of Malaysia website, 29 October http://www.parti- sosialis.org/issues/english/MAY%20DAY/DEFENCE%20REQUEST%20AG%20TO%20D ROP%20CASE.htm – Accessed 15 December 2005 – Attachment 7.)

An overview of the source information informing this summary follows below.

Source Information The Economist Intelligence Unit’s 15 November 2005 risk assessment observes that the communist insurgency – which defined the shape of Malaysian politics in the decades which followed the Second World War – has “cast a long shadow over Malaysian politics”:

After the second world war, many of the ethnic Chinese sympathised with the communist revolution in China. A guerrilla war was started by the largely ethnic-Chinese Malayan Communist Party (MCP), leading to the declaration of a State of Emergency in 1948, which did not officially come to an end until 1960. One of the measures used by the colonial regime to suppress the insurrection was detention without trial, a practice that successive Malaysian governments have continued to employ. The Emergency was to cast a long shadow over Malaysian politics (‘Malaysia risk: Political stability risk’ 2005, Economist Intelligence Unit, 15 November – Attachment 8).

A 1999 Amnesty International report details the manner in which the Malaysian government continued to aggressively police allegedly communist organisations in the decades which followed the ending of the 1948-1960 State of Emergency. Arrests in the hundreds were enabled by “the 1960 Internal Security Act (ISA)” which “gave the Executive sweeping powers including the ability to deprive a person of his or her liberty indefinitely without trial solely for ‘preventive’ reasons, and to prohibit meetings, ban publications and exclude books and periodicals”. Amnesty International states that “the number of people arrested and detained under the Act rose from 1119 between 1960 and 1969, to 1713 between 1970 and 1979”; and that “the use of the ISA went beyond suppressing communist insurgency and their supporters and extended to a far broader spectrum of political activity in Malaysia”, with ethnic Chinese members of left-wing political and labour organisations being targeted in particular. Since this time the security focus of the Malaysian authorities has shifted somewhat. “The last six remaining communist detainees were reported to have been released in 1995”, and “[i]n recent years the government has evoked the memory of the 1969 ethnic riots and emphasised the maintenance of inter-communal harmony as a justification for maintaining the extraordinary powers extended by the ISA”. Nonetheless, the arrest of some persons, such as human rights activists, continues to be framed in language reminiscent of anti-communist discourse; former Malaysian prime-minister, Mahathir Mohamad, has, for instance, “accused…NGOs of including ‘leftists’ and ‘traitors’”. Relevant extracts follow in detail:

…While the lifting of the 1948-1960 State of Emergency signalled the substantive defeat of the communist insurrection, never-the-less the government, on the basis of Article149 as amended, proceeded to enact the 1960 Internal Security Act (ISA). Rather than being merely an extension of the 1948 Emergency Regulations, regarded as extraordinary measures which automatically lapsed on an annual basis, the ISA was a permanent law, and gave the Executive sweeping powers including the ability to deprive a person of his or her liberty indefinitely without trial solely for ‘preventive’ reasons, and to prohibit meetings, ban publications and exclude books and periodicals.

…In the first instance, therefore, the authorities justified the ISA as necessary to effect the ‘mopping up’ of the communist guerrilla threat or, in the mid-1970s, to check a feared resurgence of armed insurgency in the context of communist advances in Indochina. Additionally, for many years the government asserted that the underground tactics of the proscribed Communist Party of Malaya (CPM) and its suspected infiltration of various front organisations could only be effectively countered through the use of the ISA. However these justifications became progressively weaker over the years – and lost all credibility with the signing of a formal peace treaty with exiled remnants of the CPM in Thailand in 1989. In recent years the government has evoked the memory of the 1969 ethnic riots and emphasised the maintenance of inter-communal harmony as a justification for maintaining the extraordinary powers extended by the ISA. However this position has been increasingly open to question as inter-communal tensions have receded in the context of sustained economic growth and increased prosperity.

In 1996 the government, indicating that the scope and frequency of ISA detentions had waned, announced that there were no longer any ‘political’ ISA detainees, and that all the remaining ISA detainees, reportedly numbering fewer than 230, were held for offences involving identity paper forgery and the ‘smuggling’ of illegal migrant workers. The last six remaining communist detainees were reported to have been released in 1995.

…4. The Detentions

(A) 1960 – 1980

The first two decades of the ISA were marked by the campaign against the Communist Party of Malaya (CPM) and their suspected sympathisers. However the use of the ISA went beyond suppressing communist insurgency and their supporters and extended to a far broader spectrum of political activity in Malaysia. The use of the ISA in this period was extensive: the number of people arrested and detained under the Act rose from 1119 between 1960 and 1969, to 1713 between 1970 and 1979.23 Detainees included hundreds imprisoned for peaceful political activity with periods of detention ranging from a few months to up to 12 years.24

During the 1960s the principal multi-racial left-wing party, the Labour Party of Malaya, which mainly recruited from among the Chinese working-class, was weakened by a series of ISA arrests, as was its initial partner in the Socialist Front opposition alliance, the Party Sosialis Rakyat Malaysia (PSRM). By 1978, of the approximately 100 ISA detainees at the Batu Gajah detention camp, at least 22 were Labour Party activists arrested in the mid- and late 1960s. Additionally, during the 1963-5 Confrontation with Indonesia, opposition party members, particularly those belonging to the Socialist Front, were subject to arrest. The government, dominated by UMNO, claimed that most of the detained members of the Socialist Front were communist sympathisers.

In the aftermath of the 1969 racial riots the leader of the ethnic Chinese based opposition Democratic Action Party (DAP) Lim Kit Siang was detained under the ISA in 1970. In 1976, amid factional tensions within UMNO, six senior politicians, including two government ministers, two DAP parliamentarians, and the PSRM chairman, were arrested. Police stated the men had been detained,

“...because of their involvement in the activities of the Communist United Front or in activities which could be regarded as assisting the advancement of the Communist United Front, whether directly or indirectly, deliberately or unknowingly”.

In 1971 the ISA was amended to allow the detention of anyone perceived to be a threat to the essential services and economic life of the country. The Socialist Front was active in a resurgence of trades union activities, and party members and unionists were vulnerable to ISA detention. One trade unionist, Chang Ben San, was held for nine years after being arrested in 1969. In February 1979 22 members of the Airlines Employers Union (AEU) were detained under the ISA after a pay dispute at the state-run Malaysian Airline System (MAS) had led to a work to rule and a government order to deregister the union. The police announced that the unionists were being held to prevent them continuing to act in a manner ‘prejudicial to the maintenance of an essential service’. They were released in April 1979 but the de-registered union became defunct. (see page 52, Trades Union Act)

In 1974 amid increasing student protests in Kuala Lumpur and elsewhere, in solidarity with evicted Malay urban squatters and impoverished farmers in Baling in the north of the Peninsular, the authorities arrested over a thousand students for illegal assembly on university campuses and at the National Mosque. Over 20 students, academics and government critics were also arrested under the ISA in late 1994, including University of Malaya Professor of Anthropology Syed Husin Ali, who was detained for six years, and also then President of the Muslim Youth Movement (ABIM), Anwar Ibrahim, who was held for 22 months.(see page 48, Universities Act)

In 1976, in a move that was to have a long-lasting effect on press self-censorship in Malaysia, Ahmad Samad Ismail, the managing editor of the New Straits Times (NST) newspaper, and Samani Mohd Amin, News Editor of Berita Harian, were arrested under the ISA, allegedly for involvement in a communist subversion plot to weaken the belief in religion among Malays and convert them to communism.

(B) The 1980s and Operation Lallang (October 1987)

When Prime Minister Mahathir Mohamad took office in 1981 there were indications of a more liberal approach by the authorities toward peaceful dissenting activity. In 1982 Amnesty International welcomed the release of at least 168 ISA detainees during the Mahathir premiership.

The apparent decline in the number of ISA arrests during the 1980s raised hopes that the government might rely less on the ISA, but these proved illusory. In April 1987, against a backdrop of a sharp economic downturn and bitter factional divisions within UMNO, Prime Minister Mahathir only narrowly survived a leadership challenge by Tengku Razaleigh Hamzah in party elections. Tengku Razaleigh’s defeated faction appealed to the courts to declare the results void citing voting by ‘false’ delegates and alleged vote-buying. The High Court ruled that failure to register a number of UMNO branches, as required under the Societies Act, made UMNO an illegal organisation and that no new elections could be held until lawfully constituted organisations were created.

Amid this political crisis, Dr Mahathir, citing signs of rising ethnic tensions,25 ordered the launch in October 1987 of Operation Lallang (‘Lallang’ means weed). In this operation 106 people across a wide political and social spectrum were arrested under the ISA, accused of provoking racial and religious tensions. Those detained included 15 members of PAS, DAP leaders Lim Kit Siang and Karpal Singh and seven other DAP parliamentarians, two PSRM leaders and 16 members of the Barisan Nasional (BN) ruling coalition. Other detainees included trade unionists, Chinese educationalists, Islamic teachers and Christian church and community workers and activists. At least 40 of the 106, none from the BN, were given two-year detention orders, and were adopted by Amnesty International as prisoners of conscience. The last detainees to be released, DAP leader Lim Kit Siang, and his son parliamentarian Lim Guan Eng, were set free in April 1989, several months after the other remaining Lallang detainees. Attempts to question the validity, through judicial review, of the Executive’s grounds for the detention of individual Lallang detainees had proved almost completely ineffective.

With the release of the final Lallang detainees in 1989, the numbers of political ISA detainees continued at low levels during the early 1990s. However the ISA continued to be used periodically against political and religious activists and other individuals regarded as a potential threat to national security or to the national interest. For instance, in 1991 Sabah Chief Minister Joseph Pairin Kitingan’s brother, Jeffrey Kitingan, and six other members of Bersatu Sabah Party (PBS) were detained under the ISA for alleged involvement in a plot to withdraw Sabah from the Federation (Amnesty International 1999, ‘Malaysia – Human Rights Undermined: Restrictive Laws in a Parliamentary Democracy’, AI Index: ASA 28/06/99, 28 June http://web.amnesty.org/library/pdf/ASA280061999ENGLISH/$File/ASA2800699.pdf – Accessed 14 December 2005 – Attachment 1). A September 2005 Human Rights Watch report on the abuse of Internal Security Act detainees in Malaysia notes the anti-communist origins of the ISA but makes no mention of any persons being detained under it powers, at the present moment, by way of association with the communist movement (Human Rights Watch 2005, ‘Detained Without Trial: Abuse of Internal Security Act Detainees in Malaysia’, September http://hrw.org/reports/2005/malaysia0905/malaysia0905.pdf – Accessed 14 December 2005 – Attachment 2).

In spite of the shift in focus away from the vigorous policing of allegedly communist persons and groups, the Malaysian government has maintained an antithetical attitude towards the far left. On 9 December 2005, Bernama reported that the Secretary General of Malaysia’s Internal Security Ministry, Abdul Aziz Mohd Yusof, had announced a tightening of restrictions on publications allowed into the country; “Abdul Aziz also said that any publication on communism would not be allowed even though Malaysia no longer faces communism threat and the Malayan Communist Party members had laid down their weapons” (‘Ministry Closely Monitoring Publications on Terrorisme’ 2005, Organisation of Asia-Pacific News Agencies, source: Bernama, 9 December – Attachment 4).

The US Department of State’s most recent report on human rights in Malaysia notes that “[t]he Government bans membership in unregistered political parties and in unregistered organizations” and that the “Government [has] prohibited the Communist Party and affiliated organizations from registering and has blocked the registration of the Socialist Party of Malaysia since 1999”. The report also notes that – although the Malaysian “Constitution provides that no citizen may be banished or excluded from the Federation” – “Chin Peng, the 80-year-old former leader of the communist insurgency in the country, lives in exile in Thailand and has been denied permission to return to the country” (US Department of State 2005, Country Reports on Human Rights Practices for 2004 – Malaysia, 28 February http://www.state.gov/g/drl/rls/hrrpt/2004/41649.htm – Accessed 2 March 2005 – Attachment 5).

A news report published by the independent Malaysian daily, Malaysiakini, on 4 April 2005, provides an overview of the rights which were ostensibly granted to members of the CPM under the terms of the 1989 Haadiyai Peace Accord. The report notes that the Malaysian government has refused to allow former CPM members to re-settle in Malaysia despite the fact that Accord gives former CPM members the right to live peaceably and lawfully in the country. The report provides this information in the context of reporting on the ongoing attempts of former CPM leader Ching Peng, and “several hundred of his comrades”, to return to the Malaysia. The application received support at this time from a former policeman who had served with a counter-insurgency unit during the Malayan Emergency; the policeman saw the exile of Peng and his comrades as a violation of the terms of the Accord. “The government had previously rejected [Peng’s] entry, claiming that Chin Peng was linked to a banned organisation with a history of perpetrating terrorism in the country.” Relevant extracts follow in detail:

A former member of a special police squad filed an affidavit in the Penang High Court today to support an application by former communist Chin Peng to be allowed to return to Malaysia with several hundred of his comrades.

…In his supporting affidavit, he said that the government should honour the 1989 peace treaty signed with the communist guerillas by allowing Chin Peng and his comrades to return and start life afresh in Malaysia. …Salim also said the government should learn to forgive the communists for the casualties of (the guerilla) war, in the same way that it has forgiven the Japanese and the British, who had caused more deaths during their occupation of the country.

…The High Court has fixed May 25 to hear Chin Peng’s application to return to Malaysia. He had filed it on March 4.

The government had previously rejected his entry, claiming that Chin Peng was linked to a banned organisation with a history of perpetrating terrorism in the country. The premier’s office has left it to the court to decide the matter.

[Chin Peng’s] application cited the terms of the peace treaty, known as the 1989 Haadyai Peace Accord, which was witnessed by a four-member representation of the Thail government.

Article 3 of the Administrative Agreement between the Malaysian government and CPM to terminate hostilities states that the government shall allow former members of CPM and the party’s disbanded armed units to settle down in Malaysia, if they desire to do so.

Article 3.1 states that members of Malaysian origin who wish to settle down in Malaysia shall be allowed to do so in accordance with the laws of Malaysia.

Article 3.2 stipulates that members who are not of Malaysian origin may be allowed to settle down in Malaysia in accordance of the country’s laws, if they wish to do so.

Article 4 states that the Malaysian authorities shall assist the members in starting their life afresh (Veeranggan, A. 2005, Suaram website, source: Malaysiakini.com, 4 April http://www.suaram.net/display_article.asp?ID=234 – Accessed 13 December 2005 – Attachment 3).

On 5 August 2005, The Star reported that “application for an injunction by Chin Peng, the former secretary-general of the Communist Party of Malaya (CPM), has been transferred to the High Court in Kuala Lumpur”; and that “Justice Balia Yusof Wahi ordered the transfer of Chin Peng’s application to restrain the Government and its agents from making defamatory statements against CPM after a request from the Government”. Relevant extracts follow in detail:

Chin Peng, 81, who was born Ong Boon Hua in Sitiawan, is also seeking an injunction to restrain the Government or its agents from further publishing slanderous statements in breach of a 1989 agreement between the Government and the CPM to terminate hostilities and an administrative arrangement between the Government and the CPM.

Chin Peng said the Government had issued statements that contained slanderous terms against him.

He is seeking a declaration that the agreement is valid, enforceable and binding on the Government.

He is also seeking damages, costs and other relief.

…In the affidavit, Chin Peng had claimed that Zainuddin had made a slanderous remark against the CPM when he was quoted by The Star on March 21 as saying “the Government will telecast short films on the brutality and bloody insurgency which left thousands of security personnel, civilians and communists dead” (‘Chin Peng’s application for injunction transferred to KL’ 2005, The Star, 5 August – http://www.thestar.com.my/news/story.asp?file=/2005/8/5/courts/11687732&sec=courts - Accessed 13 August 2005 – Attachment 9).

Expressions of opposition to the return of Chin Peng and other former CPM members have been vehement; “‘once a communist, always a communist,’ said Deputy Information Minister Zainuddin Maidin”. The following extract from a 2003 Asia Times report gives an indication of the mood of those opposed to the repatriation of CPM members.

The Malaysian government has refused to allow him back because he was linked to a banned group that had a history of perpetrating terrorism.

“Chin Peng was a terrorist who murdered in cold blood ... he is a communist and we must remember that once a communist, always a communist,” said Deputy Information Minister Zainuddin Maidin. “We are disappointed that some Malaysians want him back.”

…many ex-soldiers and civilian survivors of Chin Peng’s past terror reject this, relating horror stories – how babies were impaled on stakes, civilians beheaded, informers scalped and entire villages burned (Kuppusamy, Baradan 2003, ‘Malaysia: Old communist wants to come home’, Asia Times website, 11 October http://www.atimes.com/atimes/Southeast_Asia/EJ11Ae07.html – Accessed 13 December 2005 – Attachment 10)

While former communists remain barred from returning to Malaysia, and while there is no active party in Malaysia operating under the communist title, the unregistered Socialist Party of Malaysia (Parti Sosialis Malaysia or PSM) remains an active, if illegitimate, part of the Malaysian political landscape. Although it has been barred from participating in elections since 1999, the PSM maintains an active and open political network; and opposes a variety of government policies and private interest groups. Left wing news and advocacy websites regularly report the arrest of PSM activists, but such incidents tend to be of a minor nature and generally occur in the context of political protests. For instance, according to Green Left Weekly, two leaders of the PSM were reported arrested on 7 September 2005 when “[a] bloody confrontation erupted…in Kampong Saujana Shah Alam, when four truckloads of riot police clashed with local residents who had formed a human chain to prevent the demolition of their homes”. The two were “released on bail later that day”. Similarly, in 2003, PSM’s website reported on an ongoing case which had resulted from the arrest of seventeen PSM members at a May Day rally in 2002. The seventeen arrested persons were soon released without charge but two other PSM members, who reportedly “brought food for those arrested”, were “charged under the police Act for disorderly conduct in the police station”, “a minor offence” (‘Malaysia: Police attack residents, demolish homes’ 2005, Green Left Weekly website, 14 September http://www.greenleft.org.au/back/2005/642/642p19e.htm – Accessed 14 December 2005 – Attachment 6; ‘Defence Request AG to Drop Case!’ 2003, Socialist Party of Malaysia website 2003, Socialist Party of Malaysia website, 29 October http://www.parti- sosialis.org/issues/english/MAY%20DAY/DEFENCE%20REQUEST%20AG%20TO%20D ROP%20CASE.htm – Accessed 15 December 2005 – Attachment 7).

While generally antithetical in its attitudes towards its own allegedly communist movements, the Malaysian authorities have, of late, been sensitive in their attitudes towards the communist state of the People’s Republic of China (PRC). In July 2005 “Malaysia’s internal security ministry” announced “its decision to maintain an import ban on all copies of the Epoch Times newspaper on diplomatic grounds…because the seized issues contained articles openly denigrating the Chinese government and it was necessary to safeguard relations between Malaysia and China” (‘Kuala Lumpur maintains ban on Epoch Times imports’ 2005, Reporters Without Borders website, 15 July http://www.rsf.org/article.php3?id_article=14278 – Accessed 9 December 2005 – Attachment 11).

Recently, an incident involving the alleged mistreatment of a woman, thought to be a PRC citizen, by the Malaysian Police brought forth conciliatory statements from the Malaysian government, along with an enquiry, which have sought to dispel the feeling that Chinese nationals might be treated differently to Malay citizens when visiting Malaysia (a video of the woman’s mistreatment has been widely circulated). Extracts follow from a BBC News (World Edition) report on this matter.

Some Malaysians are comparing the grainy video of a woman being forced to strip and perform squats by a police officer to the abuses perpetrated by coalition forces in Iraq.

…To their credit, Malaysia’s leaders did not even draw breath before condemning the video, which came to light on Friday.

“It should not have happened,” said Deputy Prime Minister Najib Razak. “It has dealt a severe blow to our country’s image.”

Prime Minister Abdullah Badawi, who is also the minister in charge of the police, ordered a full investigation.

The woman being abused in the video appears to be ethnically Chinese, her tormentor a Malay woman police officer wearing a Muslim headscarf. The victim is made to hold her ears as she squats and rises. Ear squats are a punishment common in Malaysian schools and are designed to humiliate.

What makes this doubly uncomfortable for the authorities is that the video emerged after a number of Chinese tourists alleged they had been arrested, forced to strip in front of male police officers and robbed.

One of them, a 35-year-old housewife, filed a complaint. “A policewoman grabbed my breast and slapped me when I blushed,” she told The Star newspaper. “I was then forced to take off my undergarments and do five ‘ear squats’. I saw a policeman peeping then,” she said.

…Stories of Chinese tourists being abused by the Malaysian police have been widely reported in China. They add to a heated debate about the apparent assumption by Malaysian immigration officers that young Chinese women entering the country are intending to work as prostitutes. …The government response is also telling in other ways. Though ministers have been careful to remind people that the video may not be genuine, they have not rushed to suggest it is fake.

Even if it were, it still rings true with thousands of Malaysians who have suffered at the hands of the police – anything from routine requests for bribes, to unexplained deaths in custody.

“One of the most common-place police abuses is to harass women by getting them to undress,” said Cynthia Gabriel, a director of the Malaysian human rights group Suaram. “This isn’t something totally strange or alien that people can’t associate with the Malaysian police” (Kent, J. 2005, BBC News (World Edition) website, 25 November http://news.bbc.co.uk/2/hi/asia-pacific/4470422.stm – Accessed 14 December 2005 – Attachment 12).

A report published by the International Herald Tribune has observed that “[w]hatever the incident may suggest about police procedures in Malaysia, it illustrates China’s growing importance to the region’s trade-dependent economies”; “[p]erhaps more than anything, Malaysia’s response underscores the diplomatic stature China is gaining in the region thanks to its meteoric economic expansion” (Arnold, W. 2005, ‘Malaysia attempts to assuage Chinese Strip-search of woman triggers a furor’, International Herald Tribune, 9 December – Attachment 13).

4. Is Malaysia branding the human rights movement as communists?

Although, as is addressed above, present day human rights activists in Malaysia have been branded leftists and traitors, no information could be found which would suggest that the Malaysian authorities have sought to present human rights movements as communists per se.

5. What is the ISA Act, (Internal Security Act) in Malaysia?

A September 2005 Human Rights Watch report provides the following information on the ISA and persons currently held in custody under its powers:

The ISA was originally enacted by British colonial authorities in 1960 during a national state of emergency as a temporary measure to fight a communist rebellion. The ISA allows the police to detain any person for up to sixty days, without warrant or trial and without access to legal counsel, on suspicion that “he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to maintenance of essential services therein or to the economic life thereof.” After sixty days, the minister of internal security (formerly the minister of home affairs) a post currently held by the prime minister, can extend the period of detention without trial for up to two years, without submitting any evidence for review by the courts. Such two year detention orders are renewable indefinitely. While the ISA does allow for review of all detentions by a nominally independent Advisory Board, the recommendations of the board are non-binding. The Advisory Board is appointed by the Malaysian King on the advice of the prime minister, and its suggestions on individual cases are frequently ignored.3

…As of September 2005, the Malaysian government holds 112 detainees under the ISA. Sixty-five of them are alleged members of Jemmah Islamiyah (JI), a militant group purportedly seeking to create an Islamic state encompassing Malaysia, Indonesia, and parts of the southern Philippines. Nine are alleged members of Kumpulan Militia Malaysia (KMM or Malaysian Militant Group), which according to the Malaysian authorities wants to overthrow the government and set up an Islamic state. Twenty two are detained for counterfeiting currency and thirteen for document falsification. One detainee allegedly worked with Pakistani scientist Abdul Qadeer Khan to sell nuclear secrets. Two of the ISA detainees are women. One of them is Norawizah Lee Abdullah – the wife of Riduan Isamuddin, also known as Hambali, an alleged leader of JI and currently in US custody at an unknown location. According to a lawyer for some of the ISA detainees, Norawizah Lee Abdullah is being detained because of her relationship with her husband (Human Rights Watch 2005, ‘Detained Without Trial: Abuse of Internal Security Act Detainees in Malaysia’, September http://hrw.org/reports/2005/malaysia0905/malaysia0905.pdf – Accessed 14 December 2005 – Attachment 2).

For further information on the relationship between the ISA and alleged communists, see the response to Question 1. 6. Is it generally accepted that the ethnic Chinese have spread the Communist ideology in Malaysia?

As is noted elsewhere in this response, Malaysia’s communist insurgency was a predominantly ethnic Chinese movement. One study of the Malayan Emergency has observed that “[t]he MCP received almost no support from the Malays and Indians because it was never able to breach the racial barrier built up by its having roots in the Communist Party in China”. “The majority of Chinese” were not, however, communist supporters, and “were intent on ‘keeping far away from both sides,’ more concerned about self-preservation than throwing their lot in behind the Communists even if they were disgruntled with the government”; “[t]he British scornfully described the Chinese as sitting on the fence, yet this meant that even though the Chinese were not actively helping the British, neither were they automatically Communist supporters” (Kee, Rui Xiong 2003, ‘Exploring the “Communist” in the Communist Insurrection in Malaya’, Stanford University website, Autumn http://pwr.stanford.edu/publications/Boothe_0304/PWR%20Kee.pdf – Accessed 14 December 2005 – Attachment 14).

7. What rights of association, freedom of movement, workers’ rights (the right to organize and bargain collectively) and anti-discrimination rigths are held by Malaysian citizens?

The US Department of State’s most recent report on human rights in Malaysia provides the following information on workers rights:

Section 6 Worker Rights a. The Right of Association By law, most workers have the right to engage in trade union activity, but only 8.5 percent of the labor force was represented by the 609 trade unions. Those restricted from joining a union include workers categorized as “confidential” and “managerial and executive,” as well as defense and police officials. With certain limitations, unions may organize workplaces, bargain collectively with employers, and associate with national federations. In theory, foreign workers can join a trade union; however, the Immigration Department placed conditions on foreign workers’ permits that effectively barred them from joining a trade union (see Section 6.e.). The Trade Unions Act prohibits interfering with, restraining, or coercing a worker in the exercise of the right to form trade unions or in participating in lawful trade union activities. However, contrary to International Labor Organization (ILO) guidelines, the act restricts a union to representing workers in a “particular establishment, trade, occupation, or industry or within any similar trades, occupations, or industries.” The Director General of Trade Unions may refuse to register a trade union and, in some circumstances, may also withdraw the registration of a trade union. When registration is refused, withdrawn, or canceled, a trade union is considered an unlawful association. Trade unions from different industries may join in national congresses, but the congresses must register as societies under the Societies Act (see Section 2.b.). Malaysian Trade Union Congress (MTUC) officials continued to express frustration about delays in the settlement of union recognition disputes. While the Industrial Relations Act requires that a union be recognized within 21 days of application, it was not uncommon for unions to go unrecognized for 1 to 4 years. During the year, there were 101 applications for trade union recognition under the Industrial Relations Act. According to the Ministry of Human Resources, there were 10 court challenges by private companies to decisions authorizing the formation of unions. In August, the press reported that the employees of Euromedical Industries finally managed to get their union recognized after 29 years of court appeals. Government policy inhibited the formation of national unions in the electronics sector, the country’s largest industry. The Government believed that enterprise level unions were more appropriate for this sector. According to MTUC officials, 150,000 electronics workers were unable to organize and only 8 in house unions were formed in the electronics industry. Collective bargaining agreements are limited in those companies designated as having “pioneer status.” According to the ILO, the Government has promised to repeal this statute since 1994. Unions maintained independence both from the Government and political parties, although individual union members may belong to political parties. Although union officers by law may not hold principal offices in political parties, individual trade union leaders have served in Parliament. Trade unions were free to associate with national labor congresses, which exercised many of the responsibilities of national labor unions, although they cannot bargain for local unions. There are two national labor organizations. The MTUC is a society of trade unions, in both the private and government sectors, registered under the Societies Act. As such, the MTUC does not have collective bargaining or industrial action rights, but provides technical support for affiliated members. Government sector unions had opportunities to affiliate with the Congress of Unions of Employees in the Public and Civil Service, a federation of trade unions registered under the Trade Unions Act. Trade unions were also permitted to affiliate with international trade union organizations, such as global union federations and the International Confederation of Free Trade Unions, subject to the approval of the Director General of Trade Unions. Although the law grants public servants the right to organize at the level of ministries and departments, the Government did not respond to ILO requests for specific information on the numbers and categories of civil servant employees covered or details regarding the collective bargaining agreements reached. There were three national joint councils representing management and professional civil servants, technical employees, and non technical workers. b. The Right to Organize and Bargain Collectively Workers have the legal right to organize and bargain collectively, and collective bargaining was widespread in those sectors where labor was organized. Charges of discrimination may be filed with the Ministry of Human Resources or the Industrial Court. Critics alleged that the Industrial Court was slow in adjudicating worker complaints when conciliation efforts by the Ministry of Human Resources failed. However, others pointed out that the Industrial Court almost always sided with the workers in disputes. In the past, employers reportedly often ignored Industrial Court judgments with impunity. In 2002, the number of Industrial Court chairpersons was increased from 14 to 21 to address the problem of backlogged cases. The Government holds that issues of transfer, dismissal, and reinstatement are internal management prerogatives; therefore, they are excluded from collective bargaining, which is not in accordance with ILO standards. The Minister of Human Resources can suspend for up to 6 months any trade union deemed to be used for purposes prejudicial to or incompatible with security or public order. Although strikes are legal, the right to strike is severely restricted. The law contains a list of “essential services” in which unions must give advance notice of any industrial action. The list includes sectors not normally deemed essential under ILO definitions. The Government stated these essential services were considered crucial to the economy and the public interest. The MTUC officials said that requirements imposed by the authorities were so stringent that it was almost impossible to strike. According to the Ministry of Human Resources statistics, there were 2 strikes and lockouts involving 57 workers in 2003. Employees in the public sector do not have the right to collective bargaining. The Industrial Relations Act requires the parties to notify the Ministry of Human Resources that a dispute exists before any industrial action may be taken. The Ministry’s Industrial Relations Department then may become involved actively in conciliation efforts. If conciliation fails to achieve settlement, the Minister has the power to refer the dispute to the Industrial Court. Strikes or lockouts are prohibited while the dispute is before the Industrial Court. The act prohibits employers from taking retribution against a worker for participating in the lawful activities of a trade union. When a strike is legal, these provisions prohibit employer retribution against strikers and leaders. However, some trade unions questioned the effectiveness of the provisions. Companies in free trade zones (FTZs) must observe labor standards identical to those in the rest of the country. Many workers in FTZ companies were organized, especially in the textile and electrical products sectors. The ILO continues to object to legal restrictions on collective bargaining in pioneer industries (US Department of State 2005, Country Reports on Human Rights Practices for 2004 – Malaysia, 28 February http://www.state.gov/g/drl/rls/hrrpt/2004/41649.htm – Accessed 2 March 2005 – Attachment 5).

A March 2003 report produced by the Organisation Mondiale Contre la Torture (OMCT; or World Organisation Against Torture) provide extensive background on the situation of organised labour movements in Malaysia.

Trade unions in Malaysia, like NGOs, face numerous difficulties in operating freely. The legal obstacles to organise and to obtain recognition as a trade union are enshrined in the Trade Unions Act 1959 and the Industrial Relations Act 1967, and the successive amendments introduced to these texts. Local civil groups and the Malaysian Trade Union Congress (MTUC) have long expressed their concern over the Trade Unions Act, which is said to have weakened the trade union movement, but their demands have always been portrayed as unreasonable by the authorities. It is believed that less than 20 % of employees in the country are unionised, and this number is further split among more than 400 unions. It is to be emphasised that trade unions in Malaysia have also been made to suffer from the previously noted ‘strangulation strategy’ of the authorities. This means that the Malaysian trade union movement has not engaged in the broader public debate on freedoms in Malaysia. ‘Trade unions are good at what they do, but they have not dared broaden their mandate,’ notes an observer. The MTUC official interviewed by the delegation explained that the MTUC General Council (comprising 230 members) had held a debate at the height of the Reformasi movement to decide whether or not it should take a public stance in the debate on freedom and democracy in Malaysia – and eventually decided not to. ‘The MTUC as a body is very tame,’ notes an observer, ‘it concentrates on its constituency and does not want to anger the authorities in any way.’ A trade union official interviewed noted that out of the 560 unions operating in Malaysia, none got involved as such in Reformasi. He explains: ‘The authorities waved the possibility of de- registration – how could any responsible union official take the risk of seeing his union de-registered?’ According to the MTUC there are approximately 760,000 members of trade unions in Malaysia, out of a working population of 8.2 million. Malaysia has not ratified the ILO Convention 87 on Freedom of Association and Protection of the Right to Organise and there are many restrictions to the right to strike, which conspire to make the labour movement very weak. The MTUC has campaigned for the ratification of this instrument, so far without success. a) Restrictions on the right to organise and the right of collective bargaining According to all national and international observers, workers in Malaysia continue to be denied the right to join a trade union of their choice and to freely organise and bargain collectively because of government policies, restrictive legislation and bureaucratic practices. There continues to be many obstacles to establishing trade unions such as legislative obstacles or dismissals of union officials. As stated, the right to organise is regulated by the Trade Unions Act, which pertains though only to certain sectors of activity, such as trade and industry. According to this Act, the powers relating to the registration, supervision and inspection of trade unions are assigned to the Director General of Trade Unions. He can refuse to register a trade union without explaining his decision. He also has the power to withdraw registration, thus making the trade union illegal, and his approval is required for a union to join an international organisation. According to the union officials interviewed by the delegation, the authorities tend to delay the registration of unions and to push for community-based (i.e. In-house) rather than sector-based unions, as they are perceived to be more politically ‘dangerous’. The union officials further denounced the common practice of terminating the contracts of the union organisers within a company, ‘usually on completely futile charges’, thus further weakening the labour movement. It should be noted that the Industrial Relations Act excludes hiring and firing, transfer and promotion, dismissal and reinstatement from the scope of collective bargaining. A particularly sensitive issue is that of the electronics sector, which accounts for approximately 160,000 workers, according to the MTUC. The electronics sector has long been denied the right to form a national union: so far only in-house unions are allowed, estimated to cover merely 5% of the country’s electronics workers. The Industrial Relations Act further limits collective bargaining in ‘pioneer’ companies, and the electronics industry among others still has this status. Since 1994, the Government has claimed that measures were taken to repeal this provision, but nothing has been done so far. The last application to form a national union, in 1988, was rejected by the DGTU on 15 August 1989. The basis for this decision was that “the formation of the proposed union is in conflict with the definition of ‘trade union’ as provided in the Trade Union Act 1959, as the members are drawn from workers employed in the electrical industry and also the electronic industry, which are not similar”. On 14 September 1989 an appeal was lodged against this decision with the Minister of Labour. The DGTU’s decision was upheld, on the grounds that the DGTU had discretionary power over the registration of trade unions and that the court had no jurisdiction. It is clear that the economic importance of the electronics sector, one of the fastest growing industries in the country, has played a role in the decision not to allow an industry-wide union. Malaysia is currently the world’s third largest producer and one of the largest exporters of semiconductors and electronic products. In 2001, between June and December, the MTUC-affiliated Metal Industry Employees’ Union was directed to remove close to 2000 members from six metal products manufacturing companies, on the basis that these were electronics workers and not metalworkers. The authorities have in the past also used other legislation against trade unionist and labour activists, first and foremost the ISA. Tian Chua (Chua Tian Chang), a Reformasi leader arrested in April 2001 (see above), was also a labour activist; he was very active in organising workers in Malaysia and was the organiser of the Labour Resource Centre. b) Right to demonstrate Attempts by workers to demonstrate have been curtailed. On 1 May 2002 the police violently dispersed a peaceful May Day March gathering of about 150 people at Kuala Lumpur City Centre, and arrested 18 people. After the demonstrators had walked for approximately 1.5 km, a group of police officers from the Dang Wangi district attacked the assembled crowd without warning or provocation. The police reportedly attempted to prevent workers from getting into buses parked nearby when the attack began. An hour later the buses were allowed to drive the demonstrators away, but negotiators were arrested as they helped people into the vehicles. Eighteen people were arrested in several areas of Medan Dang Wangi and Central Kuala Lumpur, among them an 8-year old boy (Organisation Mondiale Contre la Torture 2003, ‘Malaysia – “The Boa Constrictor”: Silencing Human Rights Defenders’, March http://www.omct.org/pdf/observatory/Malaysia_SilencingHRDefenders.pdf – Accessed 27 September 2004 – Attachment 15).

List of Sources Consulted

Internet Sources: Government Information & Reports US Department of State website http://www.state.gov Non-Government Organisations Amnesty International website http://www.amnesty.org/ Human Rights Watch (HRW) website http://www.hrw.org/ Organisation Mondiale Contre la Torture (OMCT; or World Organisation Against Torture) website http://www.omct.org Reporters Without Borders website http://www.rsf.org Suaram website http://www.suaram.net International News & Politics Asia Times website http://www.atimes.com BBC News (World Edition) website http://news.bbc.co.uk/ Green Left Weekly website http://www.greenleft.org.au Region Specific Links Socialist Party of Malaysia website http://www.parti-sosialis.org Search Engines Google search engine http://www.google.com.au/ StaggerNation website’s Google API Proximity search engine http://www.staggernation.com/cgi-bin/gaps.cgi Internet Archive WayBackMachine search engine http://www.archive.org/ University Sites Stanford University website http://www.stanford.edu/

Databases: Public FACTIVA Reuters Business Briefing DIMIA BACIS Country Information REFINFO IRBDC Research Responses (Canada) RRT ISYS RRT Country Research database, including Amnesty International, Human Rights Watch, US Department of State Country Reports on Human Rights Practices. RRT Library FIRST RRT Library Catalogue

List of Attachments 1. Amnesty International 1999, ‘Malaysia – Human Rights Undermined: Restrictive Laws in a Parliamentary Democracy’, AI Index: ASA 28/06/99, 28 June. (http://web.amnesty.org/library/pdf/ASA280061999ENGLISH/$File/ASA2800699.pd f – Accessed 14 December 2005)

2. Human Rights Watch 2005, ‘Detained Without Trial: Abuse of Internal Security Act Detainees in Malaysia’, September. (http://hrw.org/reports/2005/malaysia0905/malaysia0905.pdf – Accessed 14 December 2005)

3. Veeranggan, A. 2005, Suaram website, source: Malaysiakini.com, 4 April. (http://www.suaram.net/display_article.asp?ID=234 – Accessed 13 December 2005)

4. ‘Ministry Closely Monitoring Publications on Terrorisme’ 2005, Organisation of Asia-Pacific News Agencies, source: Bernama, 9 December. (FACTIVA)

5. US Department of State 2005, Country Reports on Human Rights Practices for 2004 – Malaysia, 28 February. (http://www.state.gov/g/drl/rls/hrrpt/2004/41649.htm – Accessed 2 March 2005)

6. ‘Malaysia: Police attack residents, demolish homes’ 2005, Green Left Weekly website, 14 September. (http://www.greenleft.org.au/back/2005/642/642p19e.htm – Accessed 14 December 2005)

7. ‘Defence Request AG to Drop Case!’ 2003, Socialist Party of Malaysia website 2003, Socialist Party of Malaysia website, 29 October. (http://www.parti- sosialis.org/issues/english/MAY%20DAY/DEFENCE%20REQUEST%20AG%20TO %20DROP%20CASE.htm – Accessed 15 December 2005)

8. ‘Malaysia risk: Political stability risk’ 2005, Economist Intelligence Unit, 15 November. (FACTIVA)

9. ‘Chin Peng’s application for injunction transferred to KL’ 2005, The Star, 5 August – http://www.thestar.com.my/news/story.asp?file=/2005/8/5/courts/11687732&sec=cou rts – Accessed 13 August 2005.

10. Kuppusamy, Baradan 2003, ‘Malaysia: Old communist wants to come home’, Asia Times website, 11 October. (http://www.atimes.com/atimes/Southeast_Asia/EJ11Ae07.html – Accessed 13 December 2005)

11. ‘Kuala Lumpur maintains ban on Epoch Times imports’ 2005, Reporters Without Borders website, 15 July. (http://www.rsf.org/article.php3?id_article=14278 – Accessed 9 December 2005)

12. Kent, J. 2005, BBC News (World Edition) website, 25 November. (http://news.bbc.co.uk/2/hi/asia-pacific/4470422.stm – Accessed 14 December 2005)

13. Arnold, W. 2005, ‘Malaysia attempts to assuage Chinese Strip-search of woman triggers a furor’, International Herald Tribune, 9 December. (FACTIVA) 14. Kee, Rui Xiong 2003, ‘Exploring the “Communist” in the Communist Insurrection in Malaya’, Stanford University website, Autumn. (http://pwr.stanford.edu/publications/Boothe_0304/PWR%20Kee.pdf – Accessed 14 December 2005)

15. Organisation Mondiale Contre la Torture 2003, ‘Malaysia – “The Boa Constrictor”: Silencing Human Rights Defenders’, March. (http://www.omct.org/pdf/observatory/Malaysia_SilencingHRDefenders.pdf – Accessed 27 September 2004)