Saturday, July 27, 2013

4 laws used to curb dissent post-GE13, says Forum Asia

4 laws used to curb dissent post-GE13, says Forum Asia
First Published: 5:59pm, Jul 26, 2013
Last Updated: 5:59pm, Jul 26, 2013
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FZ.COM/Meena Lakshana

KUALA LUMPUR (July 26): The Malaysian government has used four laws – the Sedition Act 1948, the Peaceful Assembly Act 2012, the Penal Code and the Printing Presses and Publications Act 1984 – to curb dissent after the 13th general election, a Bangkok-based human rights group said today.

This was revealed by the Asian Forum for Human Rights and Development (Forum-Asia) which conducted a fact-finding mission from July 22 to 25 to assess the socio-political situation in Malaysia in terms of freedom of expression, assembly and association after the May 5 polls.

Forum-Asia East Asia programme associate Joses Kuan said the violations of the freedom of expression and assembly included the seizure of party publications, unfair media coverage and the clampdown of participation and organisation of assemblies.

"Crackdowns on activists and opposition leaders seem to continue in the wake of allegations of electoral irregularities in the post-election phase, which led us to undertake this fact-finding mission,” he said at a press conference here.

"Looking at this context, we find that the pledges to reform and rebranding is contradictory to what we see as a systematic post-election crackdown,” he added.

Former chairperson of the National Human Rights Commission of Korea Kyong-Whan Ahn, one of the mission team members, said there were many irregularities in these laws, both in substance and procedure, which go against international standards.

One example is the Peaceful Assembly Act, which prohibits "street protests" but allows for a "moving assembly".

Senior human rights advocate Kishali Pinto Jayawardena, who was also part of the mission team, said the vague provisions in the law can be curbed by increasing the consultation in the process of drafting laws with the public, civil society and specialist organisations like the Bar Council.

"If the laws are drafted in secret by the government and kept from public scrutiny, then there are problems that will arise from the application of the laws.

"It is actually important for the government as well because the less confusion there is in a law, the more it helps the government to apply the law better," said Kishali.

Kishali also said the Sedition Act is archaic and should be replaced by modern standards of the law, which is being increasingly adopted by South Asia and Southeast Asia.

"Of course, we cannot have people inciting racial or communal hatred, but there are provisions in the Malaysia's Penal Code which provide for this. So why have a separate law focused on sedition?" she said.

Questions on the AG’s role 

According to the findings of the mission team, selective persecusion features strongly in all the issues it has examined. 

Selective persecution was significant before and after the 13th general election took place, which raises questions over the discretion of the AG in matters of prosecution, observed Kishali.

"Why is A prosecuted for sedition when calling for street protests against the government whereas B who engage in an act of communal or racial hatred is not prosecuted? So I think the role of the AG needs to be examined more carefully in the wake developments in the region, particularly neighbouring countries," she added.

She said the fact that the AG is beyond public scrutiny is problematic for modern applications of the law.

"The AG has absolute discretion and cannot be reviewed by the courts or any other authority and that is problematic by modern standards as the AG is not a person who can exercise unfettered discretion," she said.

"The very concept of unfettered discretion is anathema to modern standards. We don't get that accepted in modern law," she added.

Kishali said the judiciary in several countries such as Sri Lanka has studied the AG’s role in the systems and has decided that cases whereby mala fide, or bad intent, is concerned, the courts would review the AG’s decision.

She also said the infringement of public freedom affects the voter’s right to choice, which subsequently affects the process of a free and fair election.

"When laws relating to freedom of speech, assembly and association are restricted in a manner that impacts on a voter's right to choice, the right of holding a free and fair election is affected because although you have a theoretical process of holding an election, when the right to informed choices of a voter is affected, the ability to hold a proper election is affected," she added.

She commended the Malaysian public and civil society for displaying strong courage despite a "fairly restrictive and intimidating atmosphere".

Forum-Asia is a Bankok-based regional human rights group representing 47 non-governmental organisations in 16 countries across Asia.

The mission team is collecting information from various countries in the region for documentation on the use of repressive laws after elections. The mission was hosted by Forum-Asia member Suara Rakyat Malaysia (Suaram) and the findings will be used in Malaysia’s upcoming Universal Periodic Review in October.

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