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Thursday, September 29, 2011

Workers and MTUC say withdraw or we picket & Minister says we do this because workers requested

It is disturbing that the Human Resource Minister and the BN government just do not want to listen to the people, and in these case the workers in Malaysia represented by the strong position taken by the MTUC, i.e. to picket on 3rd October if the proposed Bill to amend the Employment Act is not withdrawn. See earlier post:- MTUC threatens picket 0n 3rd October ...

The recent statement of the Minister as reported indicates that the BN government may be going to railroad this new Bill this coming parliamentary session beginning 3rd October, 2011. This anti-worker anti-union Bill, which is pro-employer, if passed would end just employment relationships that exists today, and introduce the 3rd party, i.e. the entities now known as the 'outsourcing agents' into the equation, who unlike private employment agencies, will continue to be the employer of the workers that they supply to the principal, i.e. the factories, the plantations and the workplaces. There is no restrictions as to numbers or percentages, and soon the majority of workers in a workplace may no longer be employers of the owner-operator of the workplaces, and they will no longer have the duty and obligation to ensure that rights of workers are protected. Once it becomes law, this practice may extend to all sectors including also the civil service - workers working may finally no longer be civil servants but workers of some 3rd party.

To date, our BN government has already eroded too many worker rights:-

a)  Security of tenure or permanent employment until retirement is gone with the introduction of fixed duration or short-term employment contracts. In fact many who had the security of employment were 'pushed' towards accepting VSS(Voluntary Separation Schemes), whereby many were re-hired on short-term contracts.

b)  For wrongful dismissal, whereby before if the courts come to the conclusion that the worker has indeed been wrongly dismissed, he/she would be reinstated without loss of benefits OR compensated with full salary/benefits for the months he was wrongfully dismissed until the judgment of the court. This was slowly 'taken away' by starting with deducting monies earned in other employment with other employers during the period. Then, they limited the compensation to a maximum of 24 months... and now, there are plans to exclude certain categories of workers from even claiming this, including those workers on fixed term contracts. Wrongful dismissal is wrongful dismissal, and employers who did this must be penalized for this by paying workers full wages (plus benefits) from date of wrongful dismissal until date the court finds for the worker that he/she was wrongfully dismissed. 

c)  Minimum wages - well, the Malaysian BN government is just not interested in this, even though it has been shown that about 30% of Malaysian workers are earning below poverty wages. At the same time, it speedily removes subsidies, introduces new taxes(Good and Services Tax) and allows for the increase of tariffs/rates for toll, electricity, ASTRO,...resulting in an increased cost of living. Again, these actions are evidence of a government not really interested in the welfare of its workers and its people.
 
We did have a Ministry that was primarily concerned for the welfare of workers - then there was a name change, and it is now called Ministry of Human Resources - and now, it seems to be more concerned for the welfare and well-being of employers - their 'human resource' issues, and making Malaysia attractive for foreign direct investors. I say it is time for us to demand a new Ministry that will focus its attention for the well-being and welfare of workers.


September 28, 2011 19:14 PM

Certain Parties Misunderstood Government's Intention In Amending Employment Act - Subramaniam

PUTRAJAYA, Sept 28 (Bernama) -- Human Resource Minister Datuk Dr S Subramaniam has expressed regret that certain parties have misunderstood the government's intention in amending the Employment Act 1955.

He said the decision was made at the request of the workers, in particular the National Union of Plantation Workers (NUPW), due to "massive abuse of workers in the plantation sector."

"The whole act is to protect workers but unfortunately some see it from a different angle. They said it will formalise outsourcing of labour, and by doing so, reduce permanent jobs," he told a press conference after presenting letters of appointment to members of the National Wages Consultative Council, here today.

He was commenting on MTUC's decision to picket in front of Parliament when it sits on Monday if the government continues with its plans to amend labour laws.

The amendment bill was first tabled in Parliament on July 8, 2010 but was withdrawn on Oct 12, due to last minute views from various parties about amending the term 'sub-contractor for labour' to 'contractor for labour.'

Dr Subramaniam said the situation now was "totally unmanaged," and thus, there had been a lot of abuses on the ground.

"We hope all parties understand this and assist us in this very noble objective of making sure workers get correct representation and their welfare is protected. When we are so positive in our outlook, we actually get hurt when people look at what we are doing from a negative viewpoint," he said.

-- BERNAMA - Bernama, 28/10/2011, Certain Parties Misunderstood Government's Intention In Amending Employment Act - Subramaniam

Monday, September 26, 2011

MTUC threatens picket 0n 3rd October ...

The said amendments, first tabled in 2010 waswithdrawn after much protest including from MTUC, and then it was re-tabled with substantially the same amendments this year - it is currently fixed for 2nd and 3rd reading..

The danger of this amendment is that it introduces 'contractor for labour' - a 3rd party that will , unlike Private Employment Agencies, will continue to remain employers of the workers that they supply to the principal. Hence, we will no more have a direct employer-worker employment relationship. We will now have Employer - contractor for labour- worker relationship, and the worker will continue to be employees of these 'contractors for labour' even after the worker is supplied to the factory/plantation. 

Of course, the unions in the factories/plantations will be weakened - for there will be other workers who are there in the factory, who will not be able to be part of the union... and how many of these not directly employed workers,,,it could be a small percentage or maybe even the majority..

And, this will also lead to discrimination at the workplace for not all workers will be treated the same with regard to wages, benefits and even rights despite the fact that they do the same work.

This amendment reveals again that our BN government is really not for the good and welfare of workers and trade unions... All this is done not just to benefit employers, i.e. by removing their obligations and duties to their workers. The 3rd party labour suppliers really do not have any actual control or supervision of the workplace and working conditions...

We already have these 'contractors for labour' now known as 'outsourcing companies' - and they are already operating 'illegally' and the government rather than acting have not enforced the law.

Why? Well, to get a permit/license to operate as an 'outsourcing agent' is a gold mine - and guess who are getting the licences/permits... Just like those "APs" ...mmm one wonder. What happens is the factory/company pays the 'outsourcing agent'(the contractor for labour) RM60 for a worker per day normal hours, and they pay the worker RM20 and keeps RM40.. - A Labour Toll, is it not and very profitable indeed.

I was worried about the silence of MTUC - but alas they have now taken a strong stand against this propose amendment...

What say the Opposition political parties - let us hope that preparations for the next General Elections may not distract them from taking the correct position regarding these proposed amendments - are they pro-workers pro-unions or just like the BN pro-employer...pro-'outsourcing agents'..

Well, to be fair some companies/employers prefer to have a direct employment relationship with all their workers - and their complaint is that this option has been made difficult especially for migrant workers, and they are 'pushed' towards getting workers from these 'outsourcing agents'..

 

MTUC warns Oct 3 picket if Putrajaya tables labour law reforms

September 26, 2011
KUALA LUMPUR, Sept 26 — The Malaysian Trades Union Congress (MTUC) has vowed to stage a protest outside Parliament when it starts sitting on October 3 if Putrajaya proceeds with its plan to amend current labour laws.

MTUC secretary-general Abdul Halim Mansor pointed out that Human Resources Minister Datuk Dr S. Subramaniam had recently given his assurance that the amendment Bill would not be tabled in the House without prior discussion with the National Labour Advisory Council (NLAC).

The NLAC comprises representatives from the government, employers and employees.

He told The Malaysian Insider that the decision was reached during MTUC’s general council meeting yesterday.

“If the government really goes ahead with debates on any labour law Bill, especially the Employment (Amendment) Bill 2010, MTUC will picket outside Parliament on the first day of the sitting,” he said.
Parliament will reconvene this October 3 and go on until December. The coming session is scheduled to focus on debates for Budget 2012 but several Bills are also expected to be tabled. 

Halim said the MTUC general council has directed its secretariat to contact the ministry and find out if the amendment Bills would be brought to Parliament next month.

“If so, then it violates the minister’s guarantee to MTUC before this. If the Bills are read, MTUC will not hesitate to picket... we want the government to hold a discussion before any amendments are tabled,” he said.

The second reading of the Employment (Amendment) Bill 2010 has been postponed twice before this.
Trade union representatives and opposition politicians had decried the proposed amendments, claiming they were drawn up at the behest of multinational corporations and potential investors and deliberately designed to empower employers to employ workers on fixed-term contract for as long as they please.

The MTUC had also highlighted the fact that once the amendments are passed, “employers would be permitted to impose unreasonable working hours, change weekly rest days as they please”, in effect requiring women workers to work at night.

Last October, the ministry withdrew the Bill from the second reading to incorporate several changes and add further amendments but has reportedly refused to furnish further details.

At the time, Dr Subramaniam denied the withdrawal was tied to plans by Parti Sosialis Malaysia (PSM) to picket at seven different locations to protest the amendments.

The Bill was first tabled on July 8 last year and touched on provisions involving sexual harassment at the workplace and the welfare of housekeepers.

It is believed that the laws that are scheduled to be amended include the Employment Act 1955, Industrial Relations Act 1967 and the Trade Union Act 1959.- Malaysian Insider, 26/9/2011, MTUC warns Oct 3 picket if Putrajaya tables labour law reforms

Thursday, September 22, 2011

RM15,000 Bail Excessive - time to reform Bail in Malaysia

RM15,000 Bail - this is excessive. The purpose of bail is to secure attendance in court during dates fixed for trial, and this amount is most unjust

And this sum must be raised and deposited before the accused is let free.

RM15,000 
- is more than 20 months salary of a worker earning RM700 per month...
- is more than  3 months remuneration of a Senator
- is more than 2 months remuneration of a Member of Parliament.
3.  Remuneration of Members of Parliament. (MEMBERS OF PARLIAMENT (REMUNERATION) ACT 1980)
(1) The remuneration of Members of Parliament shall consist of-
(a) in the case of a member of the Senate, a monthly allowance of four thousand one hundred and twelve ringgit and seventy-nine sen;
(b) in the case of a member of the House of Representatives, a monthly allowance of six thousand five hundred and eight ringgit and fifty-nine sen;
What happened to the presumption of innocence until proven guilty...

This kind of bail sum is just unjust - remember one could be released without any bail or maybe even a token sum of RM1...

Maybe, court bail should be revised to be like 'police bail', where no actual money is needed -  where it is merely a guarantee of payment if the bail condition for attendance in court is violated without any good reasons... when the amount due and payable could be sought from the surety/ties 

One should not use 'bail' as a deterrent - or  as some form of 'interim punishment' ..

For the rich - such sums are no problem - but for the ordinary persons it is unjust and where will he find the money - go to the money-lenders...sell off the car or land? 

And this is not murder...or armed robbery or any serious crime - justice loving Malaysians must protest this disturbing trend of imposing high bail... 
It is embarrassing that the public prosecutors were pressing for an even higher bail amount - i.e. RM50,000. Our AG/Public Prosecutor must really step in and advice DPPs and POs not to push for such bail sums for not so serious crimes...

Prosecution division deputy head from Putrajaya Deputy Public Prosecutor Mohamad Hanafiah Zakaria, who was assisted by DPP Suhaimi Ibrahim and DPP Ishak Mohd Yusof, pressed for RM50,000 bail....Sessions judge Ikmal Hishan Tajuddin set bail at RM15,000 on one surety and fixed Oct 27 for mention and Dec 5 to Dec 9 for trial. Mat Sabu posted bail.

High bail also certainly affects one's right to be able to defend oneself and the right to a fair trial. After handing over RM15,000 to the court, where will I be able to get more money to pay my lawyer..and do the needful to prepare my defence...

We must call for reforms - no more such high bail...

Possible reforms-

a) Bail should not need to be immediately deposited in court but only be payable by the surety when the accused person violate the condition(or intention of the bail), i.e. not attend court on the stipulated date for no good reason.
b) Alternatively, bail especially for offences where the maximum sentence does not exceed 5 years, it should not be more than RM1,000. 

c) The exception would be when the accused person is NOT (i) a Malaysian or (ii) a permanent resident or (iii) a spouse/children of a Malaysian or (iv) a permanent resident or foreigner who do not have a job/business/profession in Malaysia, and who do not have a permanent address, which he has been staying at. Note for foreigners or locals accused of more serious crimes, courts could hold on to international passports if there is any reason to believe that there is a flight risk. Of course, it will be handed back if there is some good reason to leave Malaysia for a short period..

d) The exception would be when there is proof that the said accused person have been guilty of threats and/or harassment of victims and/or prosecution witnesses.
e) The court should have the power to increase or reduce bail amounts at any time based on the application of parties or on its own motion.
-- we need to think about these reforms a bit more...

BUTTERWORTH: PAS deputy president Mohamad Sabu has been charged in a Sessions Court here with criminal defamation against policemen and their family members who defended themselves against communist guerillas at the Bukit Kepong police station on Feb 23, 1950.

Mohamad, popularly known as Mat Sabu, claimed trial to the charge under Section 500 of the Penal Code.

Mat Sabu, 56, is alleged to have committed the offence during a speech at the Pusat Asuhan Tadika Islam (Pasti) Al-Fahmi, Markas Tarbiyah PAS in Padang Menora, Tasek Gelugor, between 10pm and midnight on Aug 21.

He also faces an alternate charge under the same section of the Penal Code with criminally defaming three policemen – Konstabel Marin Abu Bakar Daud, Konstabel Jaafar Hassan and Yusoff Rono – and their family members who defended themselves against communist attacks at the same police station on the same day.

The alternate charge alleged that Mat Sabu had made the allegations in the same public speech with the knowledge that the allegations might smear the good name of the policemen and their families.

The offence carries a jail sentence of not more than two years, fine or both.

Mat Sabu, who wore a black jacket over a T-shirt and black jeans, remained calm when the charges were read out to him.

The charge sheet was read together with a 14-page attachment, which is said to be a transcript of his speech delivered in Tasek Gelugor.

Prosecution division deputy head from Putrajaya Deputy Public Prosecutor Mohamad Hanafiah Zakaria, who was assisted by DPP Suhaimi Ibrahim and DPP Ishak Mohd Yusof, pressed for RM50,000 bail.

Defence counsel Mohamed Hanipa Maidin, who was assisted by Aminuddin Zulkipli, appealed for a lower bail, saying that the accused would not abscond from attending the court proceedings as he had attended other court proceedings in the past.

He also pointed out that the accused had co-operated with the police during the investigations into this case.

Sessions judge Ikmal Hishan Tajuddin set bail at RM15,000 on one surety and fixed Oct 27 for mention and Dec 5 to Dec 9 for trial. Mat Sabu posted bail.

About 60 supporters shouted Allahuakhbar as they accompanied him outside the court building.

Speaking to reporters outside the court, Mat Sabu expressed confidence that the trial would go on smoothly.

Later, Jelutong PAS division committee member Md Noor Md Ismail said Mat Sabu’s supporters passed the hat around and raised RM1,670 for his legal expenses.- Star, 22/9/2011, Mat Sabu charged with defamation


ISA repealed? Believe it only when it happens... continue to call for the repeal

Well, Malaysian PM said that the ISA will be repealed and we hope to see the tabling of the Bill to repeal this Act in the upcoming Parliamentary seating starting in the beginning of October 2011... 

And, he also said a lot of other good things but I do not hold much hope in mere words...

Malaysian Ministers and politicians, both in the BN and the Opposition, have in the pass raised our hopes with statements, pronouncements and promises, and then nothing was done .... One trick is by saying that something will be done but not saying when it will be done...
In September 2009, the Minister promised that the law will be amended to ensure that domestic workers will be ensured the right to one rest day per week,... and there have been at  least 2 amendments proposed to the said Employment Act but I saw nothing there about this 'rest day right' - and it has been more than 2 years...
Indonesians maids in Malaysia will be given one day off a week and be allowed to keep their passports during their stay in the country. The Home Ministry, in a statement today, stated that the rest-day requirement would be enforced after amendments were made to the Employment Act 1955…” - New Straits Times, 3/9/2009, Indonesian maids to get one day off a week.

********


International Federation for Human Rights (FIDH)

Press Release

Malaysia: Law reforms must be far-reaching and progressive


Paris-Bangkok, 21 September 2011. While the recently announced repeal of two draconian security laws and amendments to other restrictive laws are welcomed, the Malaysian government must outline a concrete timeline to follow through with these promised reforms, said the International Federation for Human Rights (FIDH) today. However, other existing laws, including the Dangerous Drugs Act, the Restricted Residence Act, and the Sedition Act, continue to place restrictions on fundamental freedoms and Malaysia must take additional steps to bring them into full compliance with international human rights law and standards, FIDH added.

In a speech on 15 September, Malaysian Prime Minister Najib Razak announced that the government will repeal the Internal Security Act (ISA) of 1960 and three emergency declarations, including the Emergency (Public Order and Prevention of Crime) Ordinance of 1969. The Prime Minister also announced that the Banishment Act would be repealed and the Printing Presses and Publications Act (PPPA) will be amended to eliminate the requirement of annual publishing permits. Section 27 of the Police Act of 1967 will be amended to bring the law into line with international norms, said the Prime Minister.

Both the ISA and Emergency Ordinance (EO) allow for detention without trials for up to two years and can be renewed indefinitely. Civil society in Malaysia, including FIDH’s member organization SUARAM, has documented widespread abuses under these two laws. As many as 10,000 people have been detained under the ISA alone since 1960.

In July 2011, Malaysian authorities severely repressed peaceful activities of the Bersih 2.0 campaign and arrested opposition leaders under the EO, which is the latest example of the serious deterioration of the Malaysian government’s respect for basic freedoms and the rule of law. FIDH urges the government to release all remaining individuals still detained under both laws and cease judicial intimidation against all political opponents and peaceful critics, including the 30 members of the Parti Sosialis Malaysia (PSM) who have been given a discharge not amounting to acquittal on 19 September which means they could be charged with the same offence in the future.

“While the Malaysian legislature should repeal these laws at the soonest, it must not stop there and should undertake a comprehensive review of all laws that have a deleterious effect on fundamental freedoms, and repeal or amend them to ensure their compliance with international human rights law and standards,” said Souhayr Belhassen, FIDH President.

The Prime Minister also announced that the ISA and EO will be replaced by two new counter-terrorism laws that would still allow for preventive detention. FIDH is concerned that these two new laws would simply perpetuate the abusive practices under the ISA and EO in another name. Many existing counter-terrorism legislations around the world are found to be overly broad, vulnerable to arbitrary application, and undermine the rule of law and protection of basic rights, including fair trial rights.

“It would make a mockery of democratic reform to replace the ISA and Emergency Ordinance with two equally draconian laws,” said Debbie Stothard, Deputy Secretary-General of FIDH. “The resort to extraordinary legislation with exceptional powers has been proven to undermine both human rights and the effectiveness of counter-terrorism strategies. Malaysia should make the rule of law the center of its national security policy rather than to sideline it,” Ms. Stothard added.



Wednesday, September 21, 2011

PM should respect right to fair trial - and attend as witness when subpoenaed

I just hope that our Prime Minister does not again set a bad example to all Malaysians, and do respect the right of  an accused person to a fair trial, which includes the right of being able to advance all available defences and call all witnesses that the accused wants to call in their defence...

The judge should also allow the defence to adduce all evidence - and only decide to take it into consideration or not at the end of the trial. 

Judges should never prevent the accused person from being able to call witnesses or to ask questions. 

Remember also that the accussed do have a right to appeal to the Court of Appeal, and thereafter to the Federal Court - and these judges at these appeal courts (not court of first instance) will generally only be looking at the notes of proceedings at the High Court when they decide. 

What may be irrelevant to an High Court judge may turn up to be most relevant to the judges of the Appeal courts - so that is why Judges at the courts of 1st instance must generally always allow the accused person to call any witness they want, and ask any questions...

Our PM already set a 'bad example' when he apparently did not want to meet and talk with the lawyers of the defence, forcing them to have to go to court to get an order of court to compel him to meet with the lawyers of the accussed...

And, then again he went to meet them but allegedly refused to answer questions - why? PM, do you not believe that an accused person has a right to defend themselves, and a right to a fair trial... 

And, now there are also rumours that you may even want to avoid being a witness in court... Please, just go to court and be a witness and tell the truth... Remember, taking the stand as a witness during the defence case does not make you 'pro-Anwar'  or 'pro-accussed"...

PM, in my opinion, on the other hand, if you refuse to take the stand as a witness when subpoenaed gives a very wrong impression to the public at large that you do have something to hide... 

I do hope that the news report below is wrong and that our PM will set the best example by attending court as a witness, when subpoenaed to do so... After all, you have nothing to hide...and all you will be required to do is to answer questions truthfully...

Najib, Rosmah seek to strike out subpoena
Sep 21, 11 1:24pm
 
Prime Minister Najib Razak and his wife Rosmah Mansor are expected to file an application to strike out subpoenas compelling them to appear as witnesses at PKR de facto chief Anwar Ibrahim's on-going sodomy trial.

A source informed Malaysiakini that the couple intend to file their application today.

Details surrounding their application however remain unclear. It is also not known what time they will be filing their application. - Malaysiakini, 21/9/2011, Najib, Rosmah seek to strike out subpoena

Saturday, September 17, 2011

Will Malaysian government go after companies that violate worker rights...

When governments do take actions to ensure that worker rights are protected... hope Malaysian government will also start taking pro-active action for the protection of worker rights...

Zara accused in Brazil sweatshop inquiry

Spanish fashion chain's parent denies claims but will compensate 15 migrants 'rescued' from Sao Paulo workplace
    Zara womenswear fashion shop,Glasgow, Scotland,
     
    A Bolivian migrant worker said the labour component of a pair of Zara jeans which retail at $126 (£76) was $1.14, which was divided between the seven people involved in the process. Photograph: Murdo Macleod for the Guardian
    Retail fashion chain Zara is under investigation by Brazil's ministry of labour after a contractor in São Paulo was found to be using employees in sweatshop conditions to make garments for the Spanish company.
    The Brazilian government listed 52 charges against Inditex, Zara's parent company, after it "rescued" 15 workers from a factory sub-contracted by AHA, the company responsible for 90% of Zara's Brazilian production. Fourteen of the workers were Bolivians and one was from Peru. One was 14.
    Inditex said in a statement that it could not be held responsible for "unauthorised outsourcing" but would compensate the workers because AHA had violated Inditex's code of conduct. Zara has 1,540 stores worldwide, including 64 in the UK.
    The response has not satisfied the Brazilian authorities. "AHA is a logistical extension of its main client, Zara Brasil," said the prosecutor, Giuliana Cassiano Orlandi. "The company is responsible for its employees. Its raison d'être is making clothes and it follows that it must know who is producing its garments."
    Inditex said its 50 suppliers last year produced 7m garments, with only 0.03% made in unlicensed workshops. It was working closely with the ministry of labour to eradicate sweatshop conditions.
    Renato Bignami, who led the investigation, said the workers – who lived on the premises – worked 12-hour shifts in dangerous and unhealthy conditions.
    One Bolivian told the TV show A Liga that the labour component of a pair of Zara jeans selling at $126 (£76) was $1.14, which was divided between the seven people involved in the process. The workers earned between $156 and $290 a month. The minimum wage in Brazil is $344.
    The investigation began after unions reported last June that sweatshops in Sao Paulo were producing garments for Zara. "Before then, no accusations had been made against Zara," said Maria Susiclea Assis of the local garment-makers' union.
    Bignami said the economic crisis in Spain was driving impoverished migrant workers from places such as Bolivia, Paraguay and Peru back to Brazil, which is in a boom. The high exchange rate for the Brazilian real means that, even at these wages, workers can send money home.
    "They work 16 or even 18 hours a day," he said. "It is extremely exhausting work, from Monday to Saturday, sometimes even Sunday depending on demand. I've seen workers who have taken home R$150-250 (£57-94)[RM283] at the end of the month – after paying off housing debt, food debt, telephone card debt, debt [to people traffickers] for the journey here."
    Many have to work for three or four months to pay off the "coyotes" who have smuggled them into the country.
    "These are classic cases of immigrant sweatshops," Bignami said, adding that he had no doubt that such labour conditions characterised modern-day slavery. Workers often face "threats, coercion, physical violence. All this to increase productivity," he added.
    Ineke Zeldenrust of the Clean Clothes Campaign, in Amsterdam, said such sub-contracting was common in the industry. "It is Zara's responsibility to know who is making their clothes," she said. "According to the code of conduct that they have signed up to, they are responsible for everyone involved in the supply chain. It is up to them to do the monitoring."
    Zara is a family business founded in 1975 in La Coruña, north-west Spain by Amancio Ortega, who has become Spain's richest man and the seventh richest in the world. According to Forbes magazine, half of production remains in Spain, with 26% per cent in Europe and the remainder spread around the world.
    In July, 300 Zara employees staged a demonstration in Madrid, complaining that 80% of the mainly female workforce were on temporary contracts. They earn €830 for a 40-hour week [€830 =RM4,050 per week].
    This article was amended on 23 August 2011 because the original said A Liga is a TV channel. This has been corrected.- theguardian, 18/8/2011, Zara accused in Brazil sweatshop inquiry

Monday, September 12, 2011

Rights of persons must be respected - NO justification for the continuous existence of DWT laws in modern Malaysia

The Detention Without Trial laws, I believe, are being abused by some at times to overcome failings of the police and the Malaysian government...

A suspect can be arrested and detained - but only for 24 hours, and if further detention for purpose of investigation is needed, then the police need to get a Magistrate's order for further remand - and the maximum here is 14 days. But now, what the police sometimes do to undermine this right of a person in Malaysia - is by (1) putting the 'detainee' on a road show - i.e. repeatedly re-arresting the suspect, usually by different police districts for different crimes - hence ensuring detention beyond the maximum 14 days..., and (2) by resorting to the use of ISA, EO and Detention Without Trial laws, which allow for detention by police up to 60 days..and thereafter, detention by Ministerial order for periods of 2 years at a time, whereby the reasons/justification for the detention by the Minister cannot be even questioned in court anymore...

Whilst much attention was on the ISA, today more is being gotten for the EO....but still not enough for those being detained under that 3rd Detention Without Trial law - Dangerous Drugs (Special Preventive Measures) Act[DD(SPM)A]. The Minister can very easily detain any person under DD(SPM)A, even Anwar Ibrahim, saying that he is involved in drug trafficking - and the person who may not at all be involved in the drug trade cannot even go to court to challenge the reasons for his/her detention.

That is one of the reasons why all Detention Without Trial laws should be immediately repealed...abolished, and all those languishing in detention or under restrictions under these laws should immediately be given back their liberty and freedom.

The Emergency Ordinance came into focus recently when it was used to detain six Parti Sosialis Malaysia (PSM) members. The Star spoke to the Law Minister, Police and NGOs about the pertinence of the EO, which provides for detention without trial and has been used a lot more than the ISA. 

WHEN a mother asked her 19-year old twins, Vignesh and Vengadash, to run to the shop to buy some things, she never thought her boys would be detained by the police.

The boys went to the shop, inadvertently walked in on a police raid, and got scooped up too.

“These are good kids. They really are innocent but just happened to be in the wrong place at the wrong time,” claims Suaram's coordinator E. Nalini.

We don’t know when the police started using EO for petty crimes like motorcycle theft. Most of the EO cases I receive these days are for motorcyle thefts! — E. NALINI

The incident occurred in Petaling Jaya in 2006. The twins were detained under the Emergency (Public Order and Prevention of Crime) Ordinance (EO), which meant detention without trial.

They were moved from one police station to another and after the initial 60-day period, they were put in the Simpang Renggam Detention Centre.

The boys come from a poor family. Their father is sick so he doesn't work and they live on their mother's earnings from her job in a factory.

The mother did not know how to get her boys out so, after a year of worrying and asking around, the family turned to Suaram for help. The human rights NGO wrote letters to the Home Ministry, followed these up with a number of reminders and in 2008 (three months before their two-year detention order expired), the twins were released unconditionally.

“But they lost two years of their lives being detained for a crime they didn't commit,” says Nalini.

Simpang Renggam was also a scary experience for the duo. They were bullied a lot by their cell mates because they didn't want to mix around.

Recently, the police put the spotlight on the EO when they arrested six Parti Sosialis Malaysia (PSM) members, including an MP, under the EO and held them for 28 days for allegedly attempting to revive communism before releasing and charging them.

The EO people are basically nobodies and are also too scared to come out (and challenge it) But the principle is the same; it is detention without trial. — EDMUND BON

Significantly, the “EO6” (as the six have come to be known) detentions were made two weeks before the July 9 Bersih 2.0 rally for electoral reforms, which they were supporting.

Normally, the ISA is used for detention without trial.

But this is the first time that the EO, which is normally reserved for underworld kingpins, dangerous criminals and gangsters was used against politicians and political activists.

“The EO6 has opened many people's eyes. Now people want to know more and more about the EO,” says Nalini, who finds herself explaining that “EO is ISA with a different name” because both bypass the judicial system.

Following the May 13, 1969 racial riots during which (according to official figures) 137 were killed, the King proclaimed a state of emergency and passed the EO which was meant to keep public order and security.

The country has come a long way since then but that proclamation of emergency has never been lifted, which means Malaysia is technically still under emergency. So the EO, a provision made under the Emergency, is still very much in use.

Nalini says Suaram only started paying attention to EO detentions from 2000, alleging that they found the police using it for petty crimes.

“Nobody realised this before so our records start only from 2000. We don't really know when the police started using EO for petty crimes like motorcycle or car theft. Most of the EO cases I receive these days are for motorcycle thefts!”

She laments that statistics on the EO are difficult to get.

“I have written letters to the Home Ministry. I've called the Simpang Renggam centre asking for statistics but they have never responded. The only way we seem to be able to get some statistics is through questions in parliament.

“Even in the parliament answers, we don't really get what we want. We asked how many people have been arrested under the EO over 60 days, how many in two years, and how many have had their detentions renewed after the two-year period. But there's no answer.

“The only data given in parliament is from 2000 to 2009 (which say) that 3,701 people have been detained under the EO. But we don't believe the figure because almost every year, the number of EO detainees is about 1,000. So how come they say it's 3,000 in seven years?

She argues that Suaram is not against taking criminals off the streets but this should be done in accordance with the law.

“Bring them to court, charge them and sentence them, otherwise release them,” she says.

Having dealt with EO cases for years, Nalini claims that the police are detaining people under the EO for KPI purposes to show their superiors that they are doing work by arresting “suspects” even though they might have no connection to the crime they are accused of.

Nalini says that from interviews she has done with former EO detainees, their allegations are all the same: they are taken to the police station, beaten, kicked and forced to confess.

She claims that when they go along with a confession, they are slapped with the two-year detention order instead.

Some “luckier” ones might get buang daerah (restricted residence) in which they are sent off to another district or state to live for a certain period of time.

No doubt this gives them more freedom compared to being in a detention centre because they are able to work, have access to phones, banks, shops and TV, and they are able to move around within the area.

But they have a “curfew” each night and must report to the police station every week. If they need to leave the area for a particular purpose, they have to seek permission from the district police.

Criticism of the EO is not new. Suhakam, the Bar Council and even the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police (2005) have all called for the EO to be repealed because they say it has outlived its purpose, violates personal liberties and has been abused by the police.

The UN Working Group on Arbitrary Detention, which spent some time in Malaysia a year ago, also urged for its repeal because they say it allows the police and AG's office to elude the normal penal procedures for common crimes and offences.

The group says it is gravely concerned that thousands are being detained under the EO instead of being tried in court for crimes that fall within the purview of the country's penal code.

Edmund Bon, a human rights lawyer who deals with EO cases, feels the EO is being used by the police as a shortcut.

He claims it is prevalently used on petty crimes and even on minors.

“We don't even get to see the police report so we don't know who the complainant is and the details of the complaint.

“When we ask for it, the police will only give us a piece of paper which says the person is suspected to have stolen cars, the date and time the cars were stolen.”

In Bon's view, the EO allows the police to have a low standard of investigation.

“We can only improve the quality of police investigation if we remove this type of crutches,” he points out.

He stresses that the EO was meant for the 1969 racial riots, which has long ended, and questions why it is still being used today.

It can't be that we need the EO because the police are not competent, he says.

“(By retaining the EO) They are actually saying that. But we are saying that because of the EO, the police are lousy!

“All the police need to do with the EO is get a police report, write the story, get some statements which cannot be scrutinised independently by a court or lawyer, give these to the Home Minister and expect him to sign the detention order for two years,” he says.

As regards detention without trial, the focus has been on the ISA rather than the EO.

Bon believes this is because the ISA has traditionally been used on politicians like during Ops Lalang (1987) and Reformasi (1998) so there has been a lot of public anger and pressure against it.

“The EO people are basically nobodies and are also too scared to come out (and challenge it).

“But the principle is the same; it is detention without trial,” says Bon.

He believes the police used the EO on the PSM six including Sg Siput MP Dr Michael Jeyakumar because the ISA has become so controversial and the government has already announced plans to amend it.

But Bon is quick to stress that the EO is much more serious than the ISA because the number of people detained is far greater.

Earlier this year, to a question in Parliament, the de facto Law Minister Datuk Seri Nazri Aziz said the government has no plan to repeal the 1969 emergency and EO because it is still needed for national security and in the event that it may be needed in the future.

Disagreeing, Bon says: “If the situation warrants it and there is no other option, then the Yang di-Pertuan Agong can proclaim a new EO stating its objective and specific period.

“You can have a 2011 EO but you shouldn't be using the 1969 EO.”

The EO, he adds, is being retained as a “convenient tool” for law enforcement. “But you can't use a hammer to kill a mosquito.” - Star, 11/9/2011, Use of EO in the spotlight

IT was still dark outside the home of Mohamed Ramadan Mohamed Ali and his brother Mohamed Rafe in Batu Caves on March 8 when the entire family was awakened by loud knocks on the front door.

When they opened the door, they saw six to seven policemen who had come to take them away for interrogation under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 on suspicion of motorcycle theft.

Three months later, they and their friend Muhamad Arif Abu Samah, 19, were banished to different states for two years by orders under the EO.

In a telephone interview from Pahang, Ramadan, 22, said the first thing the police did after they entered their home at the Taman Mulia Selayang low-cost flats was to take his and his brother's identity cards and motorcycle keys.

“They said they were investigating motorcycle thefts and wanted to question us,” said Mohamed Rafe, 19, in a telephone interview from Kedah.

The cops then went to Mohamed Arif's flat which was in the same block. All three were taken to the Gombak district police headquarters in Selayang. The three steadfastly denied they were involved in motor-cycle thefts.

Then began a merry-go-round of police stations which confused the boys so much they could not remember how many days they spent at each place.

All three claim they were abused during their 10-day remand and were made to sign documents without knowing what they were. None of the three have a previous criminal record.

“I told my brother Aswan about this when he visited me later on April 22 and he lodged a police report on what had happened to me,” said Arif.

Sometime in mid-March, all three were slapped with a 60-day detention order under Section 3(1) of the EO. 

And on May 16, they were told they could return home and pack their bags, and make their way the next day to their new home states and register at the police station there.

The 60-day order had been replaced by a two-year one which also restricted their movement: Muhamad Arif was banished to Mukim Lenggor in Mersing; Mohamed Ramadan to Mukim Chenor in Maran, and Mohamed Rafe to Mukim Sungai Ular in Kulim.

They have to report to the local police station every day and they are not to leave their homes between 8pm and 6am.

Muhamad Arif, who lives in a hostel, works in the fast-food industry, and Mohamed Rafe, who now lives in a single-storey terrace house in Taman Seri Kota, is a general worker at a factory. Ramadan works for his contractor landlord when he can.

Arif, who had to wait longer to find a job, said the people at his new neighbourhood, hostel and workplace were friendly.

“I told them the truth and they accepted it.”

Mohamed Ramadan, however, is having a harder time: “Because I have been banished here the older folks tell the younger ones not to befriend me, saying I take drugs.”

Mohamed Ramadan and Mohamed Rafe's family have also suffered financial loss since their arrest.

At a press conference on May 5, their sister Afizah revealed that she had received a telephone call from a man who claimed to be one Inspector Zulkifli from the Gombak district police station.

He asked her to post RM30,000 bail for their release but finally agreed to the sum of RM13,000 which he asked her to deposit into a bank account in the name of one Ponnan a/l Subramaniam.

The family did as instructed. Soon after, they discovered they had been duped there was no Inspector Zulkifli and RM5,000 had been withdrawn from the account.

On Aug 25, the trio took their first step towards defending themselves; they applied for leave for judicial review of the restriction orders and challenge of the EO itself.

But the case was adjourned to Oct 5 at the request of the A-G's Chambers who wanted to file submissions to object to the trio's prayers for the EO to be repealed. - Star, 11/9/2011, Trio banished for motorcycle theft






AT first, de facto law minister Datuk Seri Nazri Aziz didn't believe the police use the Emergency Ordinance (EO) on petty thefts.


“If it's true, I'm surprised. The EO is meant for hardcore criminals. It is not meant to be used for petty thefts like stealing motorbikes.


“I don't think the police are using it on petty thefts. Prove me wrong,” he said in an interview two weeks earlier.


When contacted again, after the police explained that they do use the EO on petty crimes, including motorcycle thefts in the interest of public security, Nazri admits to have been proven wrong.


Nazri: ‘ We need to have this tool to enforce order. If there is abuse, then address the abuse. Don’t repeal the law’


He also accepts the police's explanation. “I understand their difficulty. If using the EO helps in the security to the country, we have to leave it to the police. It's not for me to tell them how to do their business because their primary concern is the security and stability of society.


“It's tough for me. As a lawyer, I feel the police have to try and find enough proof first to bring the case to court but I believe the police know what they are doing.”


Nevertheless, there should be safeguards, Nazri says.


“We have to think of some safeguards to make sure there is no abuse,” Suaram, a human rights NGO, and human rights lawyer Edmund Bon who handles a number of EO cases, say the police have been increasingly using the EO on petty crimes.


But as far as Nazri is concerned, the EO has been used sparingly.


“It is not to be used suka suka hati (indiscriminately). We need to have this tool to enforce order. If there is abuse, then address the abuse. Don't repeal the law.


“Don't burn the mosquito net; attack the mosquito,” he says.


He adds that complaints of abuse can be referred to the Suruhanjaya Integrity Agensi Penguatkuasa (SIAP/ Integrity Enforcement Agency Commission).


The EO was made after a Proclamation of Emergency was declared by the Yang di-Pertuan Agong on May 15, 1969, two days after the May 13 racial riots.


More than 30 years later, the proclamation still stands, as well as a number of emergency-related ordinances made with it.


Nazri points out that from time to time the Government does evaluate these ordinances.


Some, like Ordinance No. 7 (Essential Powers) 1969, were revoked in 2006 because they were no longer deemed relevant.


But he stresses that other ordinances, and the EO (Public Order and Prevention of Crime) 1969 in particular, are still very relevant and essential to combat crime as well as to ensure public order, and safeguard the security and economy of the country.


Nazri believes the EO is used in circumstances where the Penal Code, Criminal Procedure Code and Police Act are “not suitable”.


The offences committed under the EO, he adds, are usually (but not always) more serious than offences that can be covered by the normal laws.


“But the EO is used very carefully after taking into consideration all factors,” he stresses.


Nazri says one should also remember that the EO is a deterrent measure.


So, he says, the police have the right to detain someone if they believe he or she is about to act or is likely to act in any manner “prejudicial to public order” or they feel it is necessary for the “suppression of violence” and also the “prevention of crimes involving violence.”


He says the EO is also used on gangsters running criminal activities as the police sometimes prefer to detain rather than charge these people so that they can get their co-operation and details of their network.


“Catching (underworld) gangsters is not easy,” he adds.


What about minors? Why are some being held under the EO?


“It is unfortunate that there are minors being detained under the EO but the criteria aren't age. Rather it is the threat that these people pose which is being used as the yardstick.”


But he does not agree with the EO being used on kids for things like stealing chocolates, cigarettes and drinks from 7-11 convenience stores. There must be a better way of handling such situations, like getting the parents of these kids involved to keep them out of trouble, he says.


Currently, there are 642 detainees at the Simpang Renggam detention centre (main centre for EO detainees). 

There are another two detention centres, one each in Machang and Muar.


While EO detainees are not tried in court, Nazri reiterates that they do have rights, including the right to know why they are being held, the facts behind their detention order and the right to make a representation to the Advisory Board.


On the use of the EO on the six Parti Sosialis Malaysia members (popularly referred to as EO6), Nazri insists the police were right to take action based on their concern for public order and security.


Defending the use of the EO on the six, Nazri says the ISA would not have been appropriate.


“They (EO6) are not terrorists. In the past, the Government used ISA on politicians but the thinking these days is that the ISA should be used only for terrorists,” he says, adding that after the EO detention for investigation purposes, the police proceeded to charge the six in court.


Regarding the proposed amendments to the ISA, Nazri hopes it will be tabled in the next parliament session. 

There are many bills in the queue and all have to wait for their turn to be tabled, he adds.


But he is firm on the EO, saying there are no plans to amend it.


Neither are there plans to revoke the 1969 Proclamation of Emergency.


“The (1969) Emergency doesn't specify that it's only for racial riots. It can be for anything public order, safety, security and it can even include things like famines, earthquakes, floods, epidemics and the collapse of civil government.


“The term emergency' doesn't refer to only the actual violence or breach of peace. An imminent danger is enough.


“Emergency deals with urgency. Things can happen any time.


“Should we wait for clashes and only then we move to proclaim an Emergency? By then, it might be too late,” he says.


A point to note, he adds, is that some of the region's top terrorists, such as Jemaah Islamiah's Nordin Top and Azhari Mat Husin (both who have been killed in Indonesia), were Malaysians.


“Doesn't it occur to you why they can't operate in Malaysia? There has been no bombing of hotels, churches or of American interests here.


“In Indonesia, there have been clashes between the Muslims and Christians but that has never happened here.


“We have Acts like the EO and the ISA to thank for this.” - Star, 11/9/2011, Nazri: Keep the law, check the abuse