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Friday, November 30, 2012

Without FTAs, foreign investors come in and goods flow in and out

Without an FTA, foreign investors came in and set up their factories, and exported/imported goods from Malaysia. There is really no need for Malaysia to sign Free Trade Agreements ...in fact a MOU would have been sufficient...

Now we are beginning to understand the dangers of FTAs - how it prevents Malaysian government changing laws to improve rights and benefits of workers and the public at large... Oh yes, when we pass NEW laws and/or policies to improve working and living conditions of persons in Malaysia, including workers.... FTAs allow "investors" to be able to take legal action against MALAYSIA on the grounds that it affects the 'legitimate interest' of the business. FTAs, some expect us to maintain the conditions as it is ... 

See also earlier posts:-

By signing FTAs with Investor Protection Clauses, Malaysia has failed Malaysians

What is Malaysia doing about stopping foreign investors preventing improvement of livelihood of Malaysians?

 

 

Australian senate passes Australia-M'sia free trade bill
 
The Australian senate has passed legislation to create stronger trade ties with Malaysia through a new free trade agreement.

Senators yesterday approved the legislation to implement the agreement, which will lead to almost all Australian goods being able to enter Malaysia free of import duties, the Australian Associated Press reported.

The Malaysia-Australia Free Trade Agreement will guarantee tariff-free entry for 97.6 percent of goods exported from Australia after it comes into force.

It will rise to 99 percent by 2017.

Malaysian exporters will enjoy duty-free entry to the Australian market.

The opposition backed this legislation with shadow attorney-general George Brandis saying it dated back to 2005 when former prime minister John Howard’s government launched the negotiations.

Brandis said Malaysia was Australia’s third largest trading partner in Asean and 10th largest partner overall with exports of A$5 billion and imports of A$9.1 billion in 2011-2012.

“Prominent Australian industries are set to benefit from this new trade agreement with Malaysia, including the Australian dairy industry,” he told the senate.

Brandis said other Australian industries set to gain from the trade agreement include the local automotive sector, wine, agriculture including sugar, wheat and rice, plastics, processed food, chemical and a range of manufactured goods.

Greens leader Christine Milne said the greens had a long-standing position that free trade agreements were not what they were cracked up to be.

“No matter how efficient an Australian farmer, they cannot compete against farmers in other economies if farmers in other economies don’t have to bear the cost of compliance with environmental laws and standards or compliance with labour standards.

“We cannot have free trade agreements in the future unless they take those things into account,” she added.

The senate passed the Customs Amendment (Malaysia-Australia Free Trade Agreement Implementation and Other Measures) Bill 2012 and the Customs Tariff Amendment (Malaysia-Australia Free Trade Agreement Implementation) Bill 2012.
 

Tuesday, November 27, 2012

What is Malaysia doing about stopping foreign investors preventing improvement of livelihood of Malaysians?

Our BN government have been entering FTAs (Free Trade Agreements) - Bilateral Investment Treaties without careful consideration - and this failure will affect Malaysia and Malaysians...

Of concern is the said  Investor protection clauses/section in these agreements which open the door to foreign investors to take Malaysia to international tribunals, not in Malaysia. Yes, the investor - not the foreign State government can cause Malaysia a lot of money even when Malaysia does things for the good of the people, workers, ,,,, see earlier post: By signing FTAs with Investor Protection Clauses, Malaysia has failed Malaysians

Bilateral Investment Treaties between governments ultimately seem to benefit corporations and businesses who can now take to task governments of countries they invest in for millions of dollars... 

The bringing in of new policies and laws that will benefit its people can open the doors for these foreign investors to claim great damages ... on the ground that it affects the legitimate interest of businesses...profits. 

Sure corporations and businesses have NO duty to ensure people, workers, etc good, livelihood, rights, health, etc is improved - it is the duty of government.


The emerging crisis of investment treaties
[South Bulletin 69 Article]
An epidemic of international legal suits taken by companies against governments for billions of dollars is causing public concern and leading to reviews of investment treaties.

By Martin Khor
A growing number of international law suits has highlighted an emerging global crisis:   the nature and effects of investment treaties signed between governments but which are allowing private companies and investors to sue countries for millions or even billions of dollars.

The most recent cases involving investment include a US$1.8 billion judgment against Ecuador obtained by the U.S. oil company Occidental Petroleum, a US$2 billion suit filed against Indonesia by a UK mining company Churchill,  cases taken against Uruguay and Australia for public health measures by tobacco companies, suits threatened against India by several multinational companies, and even the seizure of an Argentinian warship in a Ghana port on behalf of a U.S. investment firm.

The law suits, which have resulted in judgments totalling many billions of dollars against governments, were taken by companies and investors claiming that their investments including future profits had been affected by a range of government policies, including non-compliance with contracts or new health, environmental or economic measures.

Most of arbitration cases are taken up in the ICSID (International Centre for Settlement of Investment Disputes), based in the World Bank in Washington.

The tribunal system is widely criticised for its lack of professionalism and transparency, its conflicts of interest and the secrecy of its cases and outcomes.

The epidemic of cases and the high losses that governments have suffered or will potentially suffer is giving rise to grave concerns and calls by several governments as well as public interest groups and legal experts to review and amend the agreements that have led to the legal suits.

The agreements are of two main types – the bilateral investment treaties (BITS) signed between pairs of governments (of which there are now around 3,000) and the investment chapter contained in bilateral or regional free trade agreements (especially those involving the United States).

Many of these agreements have “investor-to-state” dispute systems, under which a private company or investor can directly sue governments in an international tribunal by claiming that their property or profits have been “expropriated” or adversely affected by a violation of contracts or by recent policy measures.

The following are some recent cases of legal suits taken by investors against countries:

·  An ICSID tribunal in October awarded a judgment for US-based Occidental Petroleum (Oxy) against Ecuador of US $1.8 billion, its largest ever award, in a case taken under the U.S.-Ecuador BIT.  In addition, Ecuador has to pay $589 million in backdated compound interest and half of the costs of the tribunal, making its total penalty around $2.4 billion.  The government had annulled a contract with Oxy because it violated a clause that the company would not sell its rights to another firm without permission.  The tribunal agreed the violation took place but judged that the annulment was not fair and equitable treatment to the company.  (Ben Beachy, Public Citizen Global Trade Watch)

·  The Indonesian government was sued in June for $2 billion by a London-based mining company Churchill, which claims its right to mine in Busang (East Kalimantan) was violated when the local government revoked the concession rights held by a local company in which it had invested. The government is countering the Churchill case, claiming that Churchill did not have the correct type of mining licenses. Law Minister Amir Syamsuddin said Churchill's acquisition of a local company broke the law as they did not report nor get approval from the regency government and Jakarta.  Two Ministers and other senior officials will be representing Indonesia at the case in ICSID.  (Straits Times, Singapore, 18 Sept 2012)

·  The tobacco company Philip Morris sued Uruguay for alleged breaches to the Uruguay-Swiss BIT for requiring cigarette packs to display graphic health warnings and sued Australia under the Australia-Hong Kong BITS for requiring plain packaging for its cigarettes.  The company claims that the packaging requirements in both countries violates its investment, including its trademark which as an intellectual property is an investment asset.

·  The Indian government has planned to review its bilateral investment agreements after foreign telecommunication companies gave notice that they would take up BITS cases against India after the 2G licenses given to them were cancelled by the Supreme Court in April 2012.   The company Sistema invoked the treaty between India and Russia, while Telenor invoked the agreement with Singapore through which the telecom firm routed its investment, according to an Indian Express report, which also quoted a government official:   “We need to relook clauses in such treaties in order to ensure that such an eventuality does not happen in the future again.”

·  There are two known pending cases taken in international tribunals against Vietnam.  In 2010 , U.S. businessman Michael L. Mackenzie, filed a case claiming that Vietnamese authorities failed to protect his investments in a resort development project in Vietnam.  In 2011, the company Dialasie SAS sued Vietnam under the France-Vietnam BIT.  Dialasie had a contract with Vietnam’s social security agency to operate a private dialysis clinic in Ho Chi Minh City but it was closed in 2006 amidst a series of disputes with local health-care authorities. (Source: Luke Eric Peterson, IA Reports).

·  In November 2012, a US energy company Lone Pine Resources sued  Canada under the investment chapter of the NAFTA (North American Free Trade Agreement) for $250 million because the Quebec provincial government declared a moratorium on fracking (a method of obtaining shale gas) and also banned drilling below the St. Lawrence River, which the company claims is a violation of its drilling permit. (Source:  The Star, Ottawa; and Globe and Mail, 15 Nov. 2012).

The ease with which investors are able to bring and win cases against governments for such a wide range of issues is due to the nature of the investment agreements.

First, the definition of “investment” which is the subject of the treaties is usually very broad, covering direct investment, portfolio investment, loans, franchises, licenses, contracts, intellectual property and other assets.  Investors can bring up cases in claiming that their rights to any of these have been violated. 

Second, the treaties grant national treatment , “fair and equitable treatment” and investor protection to investors. The definitions of these are so flexible that investors are able to claim their rights are violated for a wide range of reasons.

Third, many of the treaties prevent governments from controlling or regulating inflows and outflows of capital, and some restrict or disallow governments from imposing performance requirements on foreign companies.

Fourth, the treaties prohibit expropriation of the investments.  The definition of “expropriation” is very broad; it includes direct expropriation such as takeovers of property but also indirect expropriation including “regulatory takings”, or the implementation of new policy measures that affect the potential revenue and profits of the investors.  Thus, investors have sued governments for changes to or cancellation of contracts, and for health and environmental policies and regulations.

Fifth, some of the treaties allow for investors to directly sue governments in international tribunals, including ICSID, the Washington-based and World Bank-linked tribunal mentioned in most investment treaties. These cases  have caused many governments to divert scarce time and resources to defend several cases.

Sixth, the arbitration system is riddled with major weaknesses that are not found in normal courts. In many cases, the tribunal members are lawyers who have also acted for investors in other cases.  For example, in the case taken by Dialasie against Vietnam, the chair of the tribunal is a European lawyer who has also worked extensively as counsel for investors in many other cases.

According to international trade and investment expert, Chakravarthi Raghavan:  “The ICSID panels are constituted of lawyers who sometimes are on panel, and sometimes suing for firms against governments, and don't have any obligation to disclose conflicts of interest.  It is time that BITs and ICSID system and these quite arbitrary, 'arbitration' panels are exposed.”

Seventh, the BITS arbitration cases are shrouded in secrecy.  They are not held in the open, and the existence or results of cases are not officially made known.

Eighth, it is difficult for a country to exit from a BIT even if it has decided it is against its interests, as many BITs have a “survival clause”;  the country is bound by its provisions 10-15 years after giving notice of exiting.

The growing number of cases could also be due to the setting up of law firms, especially in the US and Europe, that specialise in investment disputes, and which encourage investors to take up cases in order to profit or benefit.

The BITs as well as FTAs’ investment component have caused outrage among public interest groups which are concerned that these treaties prevent or punish the implementation of required health, safety, environmental and developmental measures.

Governments, especially in developing countries, are also increasingly concerned.  Faced with a multitude of law suits, several governments have recently taken action to review or revise their investment treaties.  

South Africa, after completing a review of its BITS, has decided not to sign any new BITS, will attempt to exit from or re-negotiate existing ones,  and will formulate a new model BIT.

Australia, in April 2011, announced it would not agree to including investor-state dispute settlement provisions in its BITS and free trade agreements.

India in April 2012 announced it is reviewing its BITS, especially their dispute resolution component, after facing the threat of suits arising from a Supreme Court order nullifying the award of 2G contracts to several foreign telecommunication companies.

And some Latin American countries including Ecuador, Venezuela and Bolivia have expressed their serious concerns about BITs and announced their exit from ICSID.

The UN Conference on Trade and Development (UNCTAD), which has been a major promoter of BITS, is also changing its mind about the benefits of these treaties.   It now distinguishes between the normal BITS which it calls “agreements for freedom of investors” and a new type of BITS which it terms “investment agreements for sustainable development”, and it is promoting the move from the first to the second type.

With so many problems arising and so many cases being taken against countries, the review and reform of investment treaties should be accelerated at both national and international levels.
Martin Khor is the Executive Director of the South Centre.-

Monday, November 26, 2012

By signing FTAs with Investor Protection Clauses, Malaysia has failed Malaysians

One danger in most FTA(Free Trade Agreement) which Malaysia signs is the Investor protection clause/section, in which the right is given to the investor to take Malaysia to some international arbitration tribunal 

In such  “investor-state dispute settlement” (ISDS) demands becomes exposed to international arbitration at a tribunal such as the International Centre for the Settlement of Investment Disputes (ICSID). This means that the investor sues the government of that country.me country.
And, by investor it can also mean a shareholder. In short, when Malaysia signs such FTA Agreements, Malaysia surrenders its right to amend laws that will improve worker rights and conditions, and even measures for the public good. The reason for the action is that this new policy, regulation or law affects the legitimate interest of the investor...Read the article below by Fifa Rahman, which also gives examples of countries that have fell victim to such clauses - having to spend millions in defence, and millions (maybe even billions) if and when these 'investors' succeed. The author looks primarily to tobacco and cigarettes - but our concern must be broader..

The irony is that such disputes are settled at usually some international arbitration in the US,etc - not in the Malaysian courts according to the Malaysian law. I believe, if there be any such disputes, it must be resolved in the Malaysian courts - or at some local independent arbitration body like the Kuala Lumpur arbitration centre. Should not that foreign investor also be accorded equality and equal protection under the Malaysian law - not some different special right. Private corporations can do what it wants - but certainly not the Malaysian government.

RISK :- If Malaysia passes laws with regard to a just living wage, laws that ensure that workers are employed as regular permanent workers until retirement (hence abolishing the practice of short-term employment contract and/or labour outsourcing)...or even effect a ban on say cigarettes, alcohol or even some dangerous medicines...or even imposes higher standards to the protection of public health/environment - then, by reason of the existence of such investor protection clauses, actions may be commenced against Malaysia in some far away arbitration body by reason that it will affect the 'legitimate interest of the investor'...or his profits...This is certainly wrong.

Australia have woken up - and is objecting to the inclusion of such “investor-state dispute settlement” (ISDS) clauses. Malaysia should do the same.

Australian New Position: Australian Parliamentary Commission’s stance is that no new Bilateral Investment Treaties (hereinafter referred to as ‘BIT’s) entered into by Australia will contain an alternative dispute resolution (ADR) clause normally calling for international arbitration. 

In my opinion, Malaysia should take steps to revoke any or all FTA agreements or other treaties that contain such clauses that give individual investors and Trans National Corporations the ability to take such actions against Malaysia... The government must always be FREE to do the needful for the better rights, good, health and welfare of the people in Malaysia.




MARCH 1 — The Trans-Pacific Partnership Agreement (TPPA) is an agreement being negotiated between the US and nine countries, including New Zealand, Singapore, Australia and Malaysia.

This week, from March 1-9, negotiators from these nine countries will meet in Melbourne, Australia in what is known as the Melbourne round — to discuss and negotiate provisions in the TPPA.

What is bound to be discussed — particularly by pro-health Australia and New Zealand — are provisions in the TPPA that will negatively affect domestic regulation of tobacco and expose parties who continue to regulate post-signing to international tobacco litigation/arbitration, the costs of which reach into the hundreds of millions of US dollars.

In simple terms, the TPPA basically demands that any measure to reduce tobacco use will be “unfair and unequitable” to investors, that some measures constitute technical barriers to trade, and that laws to reduce tobacco use amount to “expropriation of value of investments”, all of which breach the terms of the agreement.

So what happens upon breach? Any country that agrees to “investor-state dispute settlement” (ISDS) demands becomes exposed to international arbitration at a tribunal such as the International Centre for the Settlement of Investment Disputes (ICSID). This means that the investor sues the government of that country.

Why is this such a big deal then? Firstly, international arbitration at ICSID or other similar international tribunals costs hundreds of millions of US dollars. The Czech Republic, in the case of CME vs Czech Republic, was required by the United Nations Commission on International Trade Law (UNCITRAL) to pay the investor US$350 million (RM1,050 million), the equivalent of their entire health budget for that year. Slovakia, however, had to pay more: in CSOB vs Slovakia, CSOB was awarded US$867 million.

The question is: Is there a real threat of Malaysia being sued because of tobacco laws?

There are two high-profile cases currently in procedural stages at international tribunals on tobacco — Philip Morris Asia vs Australia and Philip Morris International vs Uruguay. In the latter, Uruguay is being sued by Philip Morris International’s subsidiary in Switzerland, and a small Uruguayan company called Abal Hermanos under the Swiss-Uruguay Bilateral Investment Treaty, for having 80 per cent of their cigarette packs covered with health warnings — the largest health warnings in the world, and also for only allowing one variant of cigarette per brand, such as only Dunhill Reds, but not Dunhill Greens or Blues.

The President of Uruguay, José Mujica, knew that Uruguay could not afford the fees — so he asked his friend Mayor Mike Bloomberg of New York for technical and financial assistance.

In the Australian case, Philip Morris Asia, which is based in Hong Kong, bought shares in Philip Morris Australia to prove vested interests, and sued Australia under the Hong Kong-Australia Bilateral Investment Treaty due to Australia’s law to introduce plain packaging of cigarettes in the year 2012. (see picture)

So basically, if Malaysia enacts any law to reduce tobacco use, it could be sued at the international tribunals, and face hefty penalties that could exceed the national health budget.

Some people say that an option is simply not to regulate tobacco at all. No public health professional in their right mind will say this is an option at all. Malaysia is in the situation where 46 per cent of our males from 18-65 years old smoke, and we spend RM20 billion a year treating tobacco-related diseases.

The fear is that when we choose not to regulate to avoid expensive tobacco arbitration, health expenditure will increase and, most importantly, the health burden will increase. If tobacco is not regulated, we can expect that more Malaysians will die from tobacco-related diseases.

Australia, which is a party to the negotiations, is refusing to agree to ISDS. In the words of Gleeson, Tienhaara and Faunce in their 2012 article in the Medical Journal of Australia: “Australia’s refusal to consent to ISDS in the TPPA is a significant step towards limiting the encroachment of international trade agreements into our national health policy space and retaining our sovereign right to regulate significant areas of public health policy.”

Malaysians must push for the exclusion of tobacco from the application of the agreement, or at the very least, insist on no ISDS. Tobacco lobbying is extremely strong, and only a collective and strong voice can pressure negotiators to go pro-health.

Last week, on February 24, a tobacco industry-sponsored event was held in Washington DC, hosted and attended by ambassadors and embassies of TPPA negotiating countries. The event calendar can be viewed here.

According to this event calendar, the Malaysian ambassador hosted along with his counterparts. The New Zealand ambassador, Mike Moore, also hosted, and New Zealanders have since called for his sacking. Australia did not attend on grounds on conflicts with their pro-health stance.

This paragraph illustrates just how strong and influential the tobacco industry is, and how it is highly likely at this moment that citizens will lose unless we begin to fight for our right to health. It also shows the importance of the TPPA to the tobacco industry. We must urge negotiators from the Ministry of International Trade and Industry (MITI) to discuss our concerns on tobacco and how it will affect Malaysian health.



Saturday, November 24, 2012

My son executed - then they admited making mistake and said sorry

"My son was killed for a crime he did not commit…. our family has lived in shame and neighbours never spoke to us. Whatever apology or compensation the government promises, it is too late.”- Wang Tsai-lien, mother of Chiang Kuo-ching who was coerced into making a confession and subsequently executed in error in 1997 in Taiwan.1

In January 2011, Taiwan’s Ministry of Justice admitted that Chiang Kuo-ching, a private in the Air Force, had been executed in error in 1997 for a murder committed 15 years previously. The authorities acknowledged that his statement “confessing” to the crime had been made as a result of torture and that his conviction had been rushed through a military court. The court had ignored his allegations of torture and his pleas of innocence. In September 2011, a military court formally acquitted Chiang Kuo-ching and a month later Taiwan's Ministry of Defence announced it will pay US$3.4m in compensation to Chiang Kuo-ching’s relatives.3

Chiang Kuo-ching is not an isolated case. Across the region, as elsewhere in the world, people are sentenced to death after proceedings which fail to meet international standards of fair trial

“The law is the law but I wish Parliament would abolish the death sentence because if a mistake is made, it would be irreversible. There are other ways of dealing with heinous crimes.” - Former High Court and Court of Appeal Judge Datuk K.C. Vohrah, Malaysia.2

More people are executed in the Asia-Pacific region than in the rest of the world combined. Add to this the probability that they were executed following an unfair trial, and the gross injustice of this punishment becomes all too clear.

Failures of justice in trials which result in an execution cannot be rectified. In the Asia-Pacific region, where 95 per cent of the population live in countries that retain and use the death penalty, there is a real danger of the state executing someone in error following an unfair trial.


Source: ADPAN Report - When Justice Fails = Thousands Executed In Asia After Unfair Trial 

ABOLISH THE DEATH PENALTY IN MALAYSIA

Friday, November 23, 2012

GO SIGN ON-LINE PETITION calling on Malaysia to abolish Death Penalty

 
Media Statement – 3/11/2012
Call for the Abolition of the Death Penalty in Malaysia
 
We, the undersigned 79 groups and organisations welcome Malaysia’s move towards the abolition of the mandatory death penalty for drug offences, and replacing it with jail terms. 
 
Recently, the Minister in the Prime Minister's Department Datuk Seri Nazri Aziz stated that Malaysia is considering withdrawing the mandatory death sentence for drug offences and replacing it with jail terms.(Star,21/10/2012, Death penalty may be scrapped for drug offences). He also said he will be moving the Malaysian Cabinet to defer the death sentences passed on 675 convicted drug traffickers in the country, while the government reviews the death penalty for drug offences. (The Straits Times, 25/10/2012, Death knell for death penalty in Malaysia?) This follows the statement in July 2012, when Attorney-General Tan Sri Abdul Gani Patail said that his Chambers was working towards proposing an amendment to the Dangerous Drugs Act 1952 to give judges the discretion of not imposing death sentences on couriers(Malay Mail, 12/7/2012, M’sia mulls scrapping death penalty for drug couriers). In its 2009 Universal Periodic Review report to the United Nations Human Rights Council, Malaysia also did  declare that it was proposing to amend "existing anti-drug trafficking legislation to reduce the maximum sentence to life imprisonment" from the currently practised mandatory death.
 
Most of the 675 persons on death row for drug trafficking today are "drug mules", some of whom may have even been conned. Drug kingpins are rarely caught. In Malaysia, persons caught with a certain weight of drugs are presumed to be drug traffickers, and the onerous burden of rebutting this presumption shifts to the accused person. This goes against the norm in the criminal justice system, where the burden of proving beyond a reasonable doubt that a person is guilty is on the prosecution. There are also close to 250 Malaysians arrested as drug mules and sentenced to death abroad, including in China and Singapore, and Malaysia’s plea for clemency is inconsistent if  it retains the death penalty.
 
In March 2012, it was also revealed in Parliament by Home Minister Hishammuddin Hussein that the mandatory death penalty has been shown to have failed to act as a deterrent. Police statistics for the arrests of drug dealers under Section 39B of the Dangerous Drugs Act 1952, which carries the mandatory death penalty, for the past three years (2009 to 2011) have shown an increase. In 2009, there were 2,955 arrested under this section.  In 2010, 3,700 people were arrested, whilst in 2011, there were 3,845 arrested.(Free Malaysia Today News, 19/3/2012, Death penalty not deterring drug trade)
69%(or 479) of the 696  waiting for execution of their death sentences in Malaysian prisons as on Feb 22, 2011, were for drug offences. Today, there are about 900 on death row.
 
No legal system in the world is foolproof or error-free. There have been many examples of cases of miscarriage of justice, where innocent persons have been incarcerated for many years, or even sentenced to death. The opportunity to right a wrong is, however, not available since death is irreversible.
 
SUHAKAM (Malaysian Human Rights Commission) has also called on Malaysia to join  the  other   140   UN member   states   to completely   abolish  the  death   penalty. The United  Nations   General    Assembly   have also adopted  Resolutions  in  2007, 2008  and 2010  calling  for a moratorium on executions, with a view to eventually abolishing the death penalty.
 
Malaysia has begun commuting death sentence, whereby 5 Filipinos on death row had their sentenced commuted to prison terms earlier this year.
 
We call for the abolition of the death penalty in Malaysia, for an immediate moratorium on all executions pending abolition and for the commutation of the sentences of all persons currently on death row;
 
We also call on Malaysia to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).
 
Charles Hector
For and on behalf of the 79 groups/organisations listed below
 
ALIRAN (Aliran Kesedaran Negara), Malaysia
Aksi  - For Gender, Social And Ecological Justice, Indonesia.
Amnesty International Malaysia
Amnesty International Philippines
Amnesty International Thailand
Anti-Death Penalty Asia Network (ADPAN)
Advocacy and Policy Institute (API), Cambodia
Arus Pelangi, Indonesia
Asia Indigenous Peoples Pact, Thailand
Cambodian Defenders Project (CDP)
Cambodian Human Rights Action Committee (CHRAC)
Cambodian Human Rights and Development Association (ADHOC)
Cambodian Volunteers for Society (CVS)
Catholic Lawyers Society, Malaysia
Center for Human Rights Law Studies (HRLS), Faculty of Law, Airlangga University, Surabaya
Center for Human Rights of Islamic University of Indonesia
Center for Indonesian Migrant Workers(CIMW)
Civil Rights Committee KLSCAH (KL & Selangor Chinese Assembly Hall), Malaysia
Civil Society Committee of LLG Cultural Development Centre, Malaysia
Community Action Network (CAN), Malaysia
FORLITAN (Forum Perlindungan Pertanahan), Indonesia
Foundation for Women
Garment and Allied Workers Union, India
Housing Rights Task Force, Cambodia
Human Rights Ambassador for Salem-News.com
Human Rights Working Group (HRWG) Indonesia
IMPARSIAL - The Indonesian Human Rights Monitor
IMA Research Foundation, Bangladesh
Indonesian Coalition for Drug Policy Reform (ICDPR) 
Indonesia for Humans
Jakarta Legal Aid Institute (LBH Jakarta)
Jaringan Rakyat Tertindas (JERIT), Malaysia
Kesatuan Pekerja Pekerja Polyplastics Asia Pacific (KPPAP), Malaysia
KIARA (The People's Coalition for Fisheries Justice) / Indonesia
Knights for Peace International
Lawyers for Liberty, Malaysia
LSPP (Institute For Press And Devolepment) Indonesia
MADPET (Malaysians Against Death Penalty and Torture)
Malaysians for Beng Hock
Migrant CARE -Indonesia
Migrant CARE – Malaysia
Migrante International
NAMM (Network of Action for Migrants in Malaysia)
National League for Democracy (Liberated Area) Malaysia
Parti Rakyat Malaysia (PRM)
People's Union for Civil Liberties (PUCL),  India
PERGERAKAN INDONESIA
Persatuan Kesedaran Komuniti Selangor (EMPOWER)
Persatuan Masyarakat Selangor dan Wilayah Persekutuan (PERMAS), Malaysia
Persatuan Sahabat Wanita Selangor (PSWS), Malaysia
PINAY (The Filipino Women's Organization in Quebec), Canada
Pusat Komunikasi Masyarakat (Komas), Malaysia
Save Vui Kong Campaign, Malaysia
Saya Anak Bangsa Malaysia [SABM]
Sedane Labour Resouce Centre/Lembaga Informasi Perburuhan Sedane (LIPS), Indonesia
Seksualiti Merdeka, Malaysia
Singapore Anti Death Penalty Campaign (SADPC)
Solidaritas Perempuan - Indonesia
SUARAM, Malaysia
Serikat Buruh Migran Indonesia (SBMI)
Sibuyan Island Sentinels League for Environment Inc. (Sibuyan ISLE)
Tenaganita, Malaysia
Thai Committee for Refugees Foundation (TCR)
Think Centre, Singapore
Quê Me: Action for Democracy in Vietnam
Vietnam Committee on Human Rights
WAC (Workers Assistance Center), Philippines
We believe in Second Chances, Singapore
WH4C (Workers Hub For Change)
Women's Aid Organisation (WAO)
Woman Health Philippines
Writers Alliance for Media Independence (WAMI), Malaysia
Yayasan Lintas Nusa - Batam, Indonesia


New Endorsers:
Cambodian League for the Promotion and Defense of Human Rights (LICADHO), Cambodia
Free Legal Assistance Group, National Capital Region, Philippines(FLAG)
Hong Kong Joint Committee for the Abolition of the Death Penalty
Women's Aid Organisation (WAO), Malaysia
Women's Centre for Change, Malaysia
 Malaysian Physicians for Social Responsibility(MPSR)

Thursday, November 22, 2012

Media, please cover workers' picket at UAC in Perak

Workers picket - and it certainly would be good if alternative media gives them some coverage. They have apparently been on picket for 2 days ...are they still protesting....

What is the history? What are their demands? .... this is what the media should be informing us...
400 pekerja lancar piket
lancar piketWartawan Sinar Harian
20 November 2012

Sebahagian 400 pekerja sebuah kilang berpiket menuntut majikan mengkaji semula penyelarasan gaji dan kadar upah pekerja-pekerja.
 
IPOH – Kira-kira 400 kakitangan sebuah kilang fiber simen, di sini menuntut majikan mempertimbangkan 12 tuntutan yang dikemukakan Ahli Jawatankuasa Kerja UAC pada Februari lalu.

Pengerusinya, Wahid Anuar Mat Saad berkata, penyelarasan gaji sebanyak empat peratus dan elaun-elaun yang ditetapkan dengan kadar minimum 15 sen sehari dilihat tidak relevan dengan kos sara hidup semasa.


Menurutnya, walaupun pertumbuhan ekonomi bagi kilang itu positif, faedah yang diterima oleh pekerja-pekerja terutama pekerja lama dilihat tidak berbaloi.


“Majikan seolah-olah sengaja melambatkan proses penstrukturan semula gaji minima yang baru seperti yang tertakluk pada perjanjian bersama antara kesatuan dan majikan.


“Kita menuntut penyelarasan gaji sebanyak lapan peratus tetapi majikan hanya memberikan empat peratus sahaja, semua pekerja berasa tidak puas hati dengan penyelarasan yang disifatkan terlalu sedikit,” katanya kepada Sinar Harian di sini, semalam.


Wahid Anuar berkata, syarikat juga gagal menaikkan faedah persaraa walaupun kerajaan telah mengumumkan kenaikan caruman Kumpulan Wang Simpanan Pekerja (KWSP) sebanyak 13 peratus.


“Kami meminta agar pekerja diberikan kad perubatan bagi memudahkan proses mendapatkan rawatan segera di hospital panel.


“Pembiayaan sedia ada tidak mencukupi memandangkan industri kami tergolong dalam industri berisiko tinggi mendapat kecederaan atau penyakit,” katanya.


Sementara itu, seorang lagi pekerja, Mohamad Najib Jamaluddin, 29, berkata, majikan perlu kaji semula pelarasan gaji kerana dilihat tiada perubahan dalam gaji asas pekerja-pekerja dan memberi kesan kepada pekerja-pekerja baru.


“Lain- lain kebajikan kurang memuaskan selain lambakan pekerja-pekerja kontrak dan asing. Majikan lebih senang untuk mengupah kontraktor luar dengan harga tinggi berbanding kami.


“Majikan perlu memanggil kesatuan kami untuk berbincang dan selesaikan kemelut ini. Kita tidak mintak tuntutan yang melampau tetapi bersesuaian dengan kos sara hidup yang semakin tinggi,” katanya. -
Sinar Harian, 20/11/2012, 400 pekerja lancar piket

Wednesday, November 21, 2012

Graves and Cemeteries discovered - what to do?

2 Issues here, one being freedom of expression not forgetting that MPs are mere representatives of the people - it is absurd that 'Bosses' are being treated this way.. 

Second, the issue of WHAT the government will do when cemeteries with a certain number of graves are discovered. Sometimes, graves are not just of one religion but a mixture of religion. In Temerloh, just recently some people came across a 'cemetery' with about 6 - 8 graves - (mulch-religious). Will the attitude be 'pretend it is not there' and allow the Developer to do as they please??

I believe that the the government must first have a meeting with all religious community leaders in the particular district, efforts must be made to identify family and relatives (or even the name of the person buried there because some time by reason of time names and dates cannot no longer be read)

BEST SOLUTION
Cordon of the area, be it a cemetery of many graves or just one grave, and leave it as a cemetery/grave site. Remeber, it could always be made to look good.

If movement of the graves are REALLY required, it must be done with the knowledge and approval of the respective religious communities - because different religions have different ways, ceremonies, prayers, etc ...that need to be done when a grave is re-located. - If any grave is relocated, there must be a marker/sign where the grave was - a notice to loved ones/friends/etc that may one day come looking for the graves of their loved ones of where the graves had been re-located to...

 


Pengerang residents pulled out of Parliament PC area

Pengerang residents were pulled out of the designated press conference (PC) area at the Parliament lobby when they tried to address the media about a signature campaign to stop the forced removal of burial sites of their ancestors.

Parliament guards pulled out NGO leader Sim Seng San, who refused to budge at first, and later tried to do the same to his colleague Yap Lay Yen.

NONE“This are is only for parliamentarians. Get up,” the guard said, while tugging at Sim’s (sitting, left in photo) arm.

However, DAP’s Bakri MP Er Teck Hwa (centre in photo) stopped the guard from doing the same to Yap.

“She is a woman, you cannot touch her,” he told the guard who was trying to implement the new ruling by the Dewan Rakyat speaker to disallow non-Parliamentarians from holding press conferences in the designated area.

NONESim and Yap later took questions from reporters outside the designated press conference area, but were again stopped by the guard.

“This area is still in Parliament jurisdiction,” another Parliament guard said, but the guard left when reporters pointed out that the speaker’s ruling only applies to the designated area.

Sixty tombstones more than 120 years old

According to Sim, the nationwide signature campaign to protest the forced removal will be launched next month.

“We hope the people of Malaysia can help us,” he said.

NONEAccording to Yap, the Pengerang NGO coalition had done a survey of the area and found that in the five cemeteries, 1,566 graves were to undergo forced removal to make way for the petrochemical project.

She said that all the graves belong to individuals with living relatives whom the NGOs have traced, and that 60 tombstones are more than 120 years old.

She said that while the government has informed them of the move, it is uncertain when the move will be done or the relocation site. Compensation has also been offered but the quantum has yet to be determined.

“We want to know why only a few graves had to be relocated for the Ulu Tiram-Desaru Highway but none are to be spared in Pengerang...

“If they move the Pengerang graves now, then other graves around the country can also be forcefully moved,” she said. - Malaysiakini, 21/11/2012, Pengerang residents pulled out of Parliament PC area

Tuesday, November 20, 2012

SUHAKAM: ASEAN Human Rights Declaration Falls Short Of Expectation

PRESS STATEMENT

ASEAN HUMAN RIGHTS DECLARATION FALLS SHORT OF EXPECTATION

The   Human   Rights   Commission   of   Malaysia   (the   Commission)   welcomes   the   adoption   of   the   ASEAN Human   Rights   Declaration   (AHRD)   on   18   November   2012   during   the   ASEAN   Summit   in   Cambodia   as   a positive development in the promotion and protection of human rights in the region. The Commission is greatly encouraged   by the  reaffirmation   by the   ASEAN   countries  of  their commitment  to   the Universal Declaration   of   Human   Rights   (UDHR),   the   Charter   of   the   United   Nations,   the   Vienna   Declaration   and Programme of Action and other international human rights instruments to which ASEAN Member States are parties.   The Commission notes that the AHRD covers a wide range of rights categorised separately as Civil and Political Rights, Economic, Social and Cultural Rights, the Right to Development, and the Right to Peace, all of which, while in consonance with international human rights standards, are subject to nine general principles.

While   not   downplaying   the   significance   and   usefulness   of   those   general   principles,   the   Commission   is disappointed      that  they   permit   restrictions  to  be   made    on  grounds    wider   than   what   are  accepted internationally.    More   important,   General   Principle   7,   which   declares   on   the   one   hand,   that  all   human rights are universal, indivisible, interdependent and interrelated, recognises on the other, that Member States    may    take   into  consideration     their  political,  economic,     legal,  socio-cultural,   and   historical backgrounds   in   the   realisation   of   human  rights   in   their   countries. The   Commission   is   concerned   that these principles might undermine the whole spirit of the Declaration and negate the full enjoyment and protection of human rights in the region.        The Commission would also like to draw attention to Article 5 of the   Vienna   Declaration   and   Programme   of   Action   under   which   it   is   the   duty   of   States   to   promote   and protect   human   rights   and   fundamental   freedoms,   regardless   of   their   political,   economic   and   cultural systems.

The Commission also regrets  the Declaration was drafted with limited openness and transparency, and inadequate      extended    consultations    with   various   stakeholders,   including   the   National   Human     Rights Institutions (NHRIs) which were keen to contribute and anxious to ensure that the AHRD would be on a par with other regional human rights declarations.

Nonetheless,   the   Commission,   along   with the   other   members   of   the   South   East   Asia   National   Human Rights Institutions Forum (SEANF), will continue to engage with the ASEAN Governments and the ASEAN Intergovernmental       Commission      on  Human     Rights  (AICHR)   in  the  process   of  the  full  and  unimpeded implementation   of   the   AHRD,   consistent   with   international   human   rights   standards   and   norms   in   the interest of ensuring that the rights of the region’s 600 million citizens are promoted and protected.
                                                          -   END –


“HUMAN RIGHTS FOR ALL”

TAN SRI HASMY AGAM
Chairman
The Human Rights Commission of Malaysia (SUHAKAM)
 

19 November 2012

See earlier post:  ASEAN Human Rights Declaration (adopted 18/11/2012)

Monday, November 19, 2012

ASEAN Human Rights Declaration (adopted 18/11/2012)

ASEAN HUMAN RIGHTS DECLARATION

WE, the Heads of State/Government of the Member States of the Association of Southeast Asian Nations (hereinafter referred to as "ASEAN"), namely Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People's Democratic Republic, Malaysia, the Republic of the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam, on the occasion of the 21st ASEAN Summit in Phnom Penh, Cambodia.

REAFFIRMING our adherence to the purposes and principles of ASEAN as enshrined in the ASEAN Charter, in particular the respect for and promotion and protection of human rights and fundamental freedoms, as well as the principles of democracy, the rule of law and good governance;

REAFFIRMING FURTHER our commitment to the Universal Declaration of Human Rights, the Charter of the United Nations, the Vienna Declaration and Programme of Action, and other international human rights instruments to which ASEAN Member States are parties;

REAFFIRMING ALSO the importance of ASEAN’s efforts in promoting human rights, including the Declaration of the Advancement of Women in the ASEAN Region and the Declaration on the Elimination of Violence against Women in the ASEAN Region;

CONVINCED that this Declaration will help establish a framework for human rights cooperation in the region and contribute to the ASEAN community building process;

HEREBY DECLARE AS FOLLOWS:

GENERAL PRINCIPLES

1. All persons are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of humanity.

2. Every person is entitled to the rights and freedoms set forth herein, without distinction of any kind, such as race, gender, age, language, religion, political or other opinion, national or social origin, economic status, birth, disability or other status.

3. Every person has the right of recognition everywhere as a person before the law.  Every person is equal before the law. Every person is entitled without discrimination to equal protection of the law.

4. The rights of women, children, the elderly, persons with disabilities, migrant workers, and vulnerable and marginalised groups are an inalienable, integral and indivisible part of human rights and fundamental freedoms.

5. Every person has the right to an effective and enforceable remedy, to be determined by a court or other competent authorities, for acts violating the rights granted to that person by the constitution or by law.

6. The enjoyment of human rights and fundamental freedoms must be balanced with the performance of corresponding duties as every person has responsibilities to all other individuals, the community and the society where one lives. It is ultimately the primary responsibility of all ASEAN Member States to promote and protect all human rights and fundamental freedoms.

7. All human rights are universal, indivisible, interdependent and interrelated. All human rights and fundamental freedoms in this Declaration must be treated in a fair and equal manner, on the same footing and with the same emphasis. At the same time, the realisation of human rights must be considered in the regional and national context bearing in mind different political, economic, legal, social, cultural, historical and religious backgrounds.

8. The human rights and fundamental freedoms of every person shall be exercised with due regard to the human rights and fundamental freedoms of others.  The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the human rights and fundamental freedoms of others, and to meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society.

9. In the realisation of the human rights and freedoms contained in this Declaration, the principles of impartiality, objectivity, non-selectivity, non-discrimination, non-confrontation and avoidance of double standards and politicisation, should always be upheld. The process of such realisation shall take into account peoples’ participation, inclusivity and the need for accountability.


CIVIL AND POLITICAL RIGHTS

10. ASEAN Member States affirm all the civil and political rights in the Universal Declaration of Human Rights. Specifically, ASEAN Member States affirm the following rights and fundamental freedoms:

11. Every person has an inherent right to life which shall be protected by law. No person shall be deprived of life save in accordance with law.

12. Every person has the right to personal liberty and security. No person shall be subject to arbitrary arrest, search, detention, abduction or any other form of deprivation of liberty.

13. No person shall be held in servitude or slavery in any of its forms, or be subject to human smuggling or trafficking in persons, including for the purpose of trafficking in human organs.

14. No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.

15. Every person has the right to freedom of movement and residence within the borders of each State. Every person has the right to leave any country including his or her own, and to return to his or her country.

16. Every person has the right to seek and receive asylum in another State in accordance with the laws of such State and applicable international agreements.

17. Every person has the right to own, use, dispose of and give that person’s lawfully acquired possessions alone or in association with others. No person shall be arbitrarily deprived of such property.

18. Every person has the right to a nationality as prescribed by law. No person shall be arbitrarily deprived of such nationality nor denied the right to change that nationality.

19. The family as the natural and fundamental unit of society is entitled to protection by society and each ASEAN Member State. Men and women of full age have the right to marry on the basis of their free and full consent, to found a family and to dissolve a marriage, as prescribed by law.

20. (1) Every person charged with a criminal offence shall be presumed innocent until proved guilty according to law in a fair and public trial, by a competent, independent and impartial tribunal, at which  the accused is guaranteed the right to defence. 

 (2) No person shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.

(3) No person shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with the law and penal procedure of each ASEAN Member State.


21. Every person has the right to be free from arbitrary interference with his or her privacy, family, home or correspondence including personal data, or to attacks upon that person’s honour and reputation. Every person has the right to the protection of the law against such interference or attacks.

22. Every person has the right to freedom of thought, conscience and religion. All forms of intolerance, discrimination and incitement of hatred based on religion and beliefs shall be eliminated.

23. Every person has the right to freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information, whether orally, in writing or through any other medium of that person’s choice.

24. Every person has the right to freedom of peaceful assembly.

25. (1)  Every person who is a citizen of his or her country has the right to participate in the government of his or her country, either directly or indirectly through democratically elected representatives, in accordance with national law.

(2) Every citizen has the right to vote in periodic and genuine elections, which should be by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors, in accordance with national law.

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

26. ASEAN Member States affirm all the economic, social and cultural rights in the Universal Declaration of Human Rights. Specifically, ASEAN Member States affirm the following:

27. (1) Every person has the right to work, to the free choice of employment, to enjoy just, decent and favourable conditions of work and to have access to assistance schemes for the unemployed. 

(2) Every person has the right to form trade unions and join the trade union of his or her choice for the protection of his or her interests, in accordance with national laws and regulations.

(3) No child or any young person shall be subjected to economic and social exploitation. Those who employ children and young people in work harmful to their morals or health, dangerous to life, or likely to hamper their normal development, including their education should be punished by law.  ASEAN Member States should also set age limits below which the paid employment of child labour should be prohibited and punished by law.

28. Every person has the right to an adequate standard of living for himself or herself and his or her family including:

a. The right to adequate and affordable food, freedom from hunger and access to safe and nutritious food;
b. The right to clothing;
c. The right to adequate and affordable housing;
d. The right to medical care and necessary social services;
e. The right to safe drinking water and sanitation;
f. The right to a safe, clean and sustainable environment.

29. (1)  Every person has the right to the enjoyment of the highest attainable standard of physical, mental and reproductive health, to basic and affordable health-care services, and to have access to medical facilities.

(2)  The ASEAN Member States shall create a positive environment in overcoming stigma, silence, denial and discrimination in the prevention, treatment, care and support of people suffering from communicable diseases, including HIV/AIDS.

30. (1)  Every person shall have the right to social security, including social insurance where available, which assists him or her to secure the means for a dignified and decent existence.

(2) Special protection should be accorded to mothers during a reasonable period as determined by national laws and regulations before and after childbirth. During such period, working mothers should be accorded paid leave or leave with adequate social security benefits.

(3)  Motherhood and childhood are entitled to special care and assistance. Every child, whether born in or out of wedlock, shall enjoy the same social protection.

31. (1)   Every person has the right to education.

(2) Primary education shall be compulsory and made available free to all. Secondary education in its different forms shall be available and accessible to all through every appropriate means. Technical and vocational education shall be made generally available. Higher education shall be equally accessible to all on the basis of merit.

(3)  Education shall be directed to the full development of the human personality and the sense of his or her dignity. Education shall strengthen the respect for human rights and fundamental freedoms in ASEAN Member States.  Furthermore, education shall enable all persons to participate effectively in their respective societies, promote understanding, tolerance and friendship among all nations, racial and religious groups, and enhance the activities of ASEAN for the maintenance of peace.

32. Every person has the right, individually or in association with others, to freely take part in cultural life, to enjoy the arts and the benefits of scientific progress and its applications and to benefit from the protection of the moral and material interests resulting from any scientific, literary or appropriate artistic production of which one is the author.

33. ASEAN Member States should take steps, individually and through regional and international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of economic, social and cultural rights recognised in this Declaration.

34. ASEAN Member States may determine the extent to which they would guarantee the economic and social rights found in this Declaration to non-nationals, with due regard to human rights and the organisation and resources of their respective national economies.

RIGHT TO DEVELOPMENT

35. The right to development is an inalienable human right by virtue of which every human person and the peoples of ASEAN are entitled to participate in, contribute to, enjoy and benefit equitably and sustainably from economic, social, cultural and political development. The right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations. While development facilitates and is necessary for the enjoyment of all human rights, the lack of development may not be invoked to justify the violations of internationally recognised human rights.

36. ASEAN Member States should adopt meaningful people-oriented and gender responsive development programmes aimed at poverty alleviation, the creation of conditions including the protection and sustainability of the environment for the peoples of ASEAN to enjoy all human rights recognised in this Declaration on an equitable basis, and the progressive narrowing of the development gap within ASEAN.

37. ASEAN Member States recognise that the implementation of the right to development requires effective development policies at the national level as well as equitable economic relations, international cooperation and a favourable international economic environment. ASEAN Member States should mainstream the multidimensional aspects of the right to development into the relevant areas of ASEAN community building and beyond, and shall work with the international community to promote equitable and sustainable development, fair trade practices and effective international cooperation.

RIGHT TO PEACE

38. Every person and the peoples of ASEAN have the right to enjoy peace within an ASEAN framework of security and stability, neutrality and freedom, such that the rights set forth in this Declaration can be fully realised.  To this end, ASEAN Member States should continue to enhance friendship and cooperation in the furtherance of peace, harmony and stability in the region.

COOPERATION IN THE PROMOTION AND PROTECTION OF HUMAN RIGHTS
 
39. ASEAN Member States share a common interest in and commitment to the promotion and protection of human rights and fundamental freedoms which shall be achieved through, inter alia, cooperation with one another as well as with relevant national, regional and international institutions/organisations, in accordance with the ASEAN Charter.

40. Nothing in this Declaration may be interpreted as implying for any State, group or person any right to perform any act aimed at undermining the purposes and principles of ASEAN, or at the destruction of any of the rights and fundamental freedoms set forth in this Declaration and international human rights instruments to which ASEAN Member States are parties.

Adopted by the Heads of State/Government of ASEAN Member States at Phnom Penh, Cambodia, this Eighteenth Day of November in the Year Two Thousand and Twelve, in one single original copy in the English Language.

Source:- ASEAN Website -  http://www.asean2012.mfa.gov.kh/?page=detail&menu1=0&menu2=328&article=328&lg=en