Sometimes the government listens - PP's green light before judge exercise discretion removed?

Human Rights Defenders can speak up and act, and the Media has the capacity of making these voices heard.Positive results can sometimes be achieved - and this is one of them when the government decided to amend the proposed law and return the full discretion when in comes to sentencing to judges - no more the need for 'discretion only if the Public Prosecutor gives the green light'. We await the tabling of these amendments to the Bill, which the Minister assured us will be done during the 2nd reading...

U-turn death penalty for drug traffickers

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Gan Pei Ling Updated 23 hours ago · Published on 29 Nov 2017 6:35PM

A clause in the Dangerous Drugs Bill (Amendment) 2017 allows public prosecutors to issue a written certification to convicted drug traffickers who helped enforcement authorities disrupt drug distribution activities in or outside the country. – EPA pic, November 29, 2017.

PUTRAJAYA today caved in to public pressure and will return full discretion to judges to mete out the death sentence to drug traffickers.

Minister in the Prime Minister’s Department Azalina Othman Said said in a statement today the government will amend a controversial clause in the Dangerous Drugs Bill (Amendment) 2017.

“The government will carry out an amendment at the committee stage to Section 39B of Act 234 (Dangerous Drugs Act) to give full discretion to the judiciary,” she said. 

The Dewan Rakyat secretary has been notified about the amendment to the bill, which is expected to be tabled for second reading tomorrow, she said.

A clause in the original bill, tabled last Thursday, gave unprecedented powers to public prosecutors to issue a written certification to convicted drug traffickers who helped enforcement authorities to disrupt drug distribution activities within or outside of Malaysia. 

Judges could then decide whether to spare these convicts the mandatory death penalty. 

However, the judges would have no choice but to mete out the mandatory death sentence to convicts without a written certificate from prosecutors.

Various parties, including the Malaysian Bar, opposition MPs and human rights group Malaysians Against Death Penalty and Torture, have criticised the controversial clause over the past week, saying that it interferes with the judges’ sentencing power.

Azalina said the decision to amend the bill was made after taking into account the views and suggestions of all stakeholders to the government.

“This amendment demonstrates the government’s openness, especially the prime minister who always listens to views from various parties to ensure every policy decision is made inclusively,” she said.

Attorney-General Mohamed Apandi Ali blamed the cabinet today for adding the caveat to give prosecutors the power to issue a written certification to convicted drug traffickers.

“My initial proposal was to give discretion to judges, that is, to pass a death sentence or otherwise. That was my principal advice.

“The certification (by public prosecutors) is another policy matter by the cabinet... I don’t have a say in it,” Malaysiakini reported him as saying. – November 29, 2017, Malaysian Insight

Malaysian Insight also carried MADPET's statement 

Public prosecutor granted ‘too much power’ over life and death, says human rights group 

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Bede Hong Updated 6 days ago · Published on 24 Nov 2017 1:26PM 

A HUMAN rights group is critical of an amendment to the law governing the death penalty, saying it gives too much power to the public prosecutor over the judge in determining who deserved to be sentenced to death.

Yesterday, the bill for the Dangerous Drugs (Amendment) Act 2017 was tabled in Parliament, amending Section 39B of the Dangerous Drugs Act 1952, which pertains to the death penalty. The new law would allow the judge to exercise discretion in meting out life imprisonment instead of the death penalty, which was previously mandatory for those convicted of drug trafficking. 

However, a clause states that the judge may impose a sentence other than the death penalty, only if and when the "public prosecutor certifies in writing to the court, that in his determination, the person convicted has assisted an enforcement agency in disrupting drug trafficking activities within or outside Malaysia."

"It is wrong to give the public prosecutor the power to decide who dies and who may live," Malaysians Against Death Penalty and Torture (Madpet) coordinator Charles Hector said in a statement today. 

"Remember, that he is also responsible for prosecution in a criminal trial, and the power to the public prosecutor to give or not give the written certification is most dangerous. It may also undermine the right to a fair trial."

According to the proposed amending act, if the public prosecutor does not provide the certification, judges will have no choice but to impose the death penalty.  

Hector said the power of sentencing should rest with the judge alone. 

"The existence of appeals to higher courts helps ensure that there be no errors."

Before sentencing, the judge usually hears and considers the submissions of the prosecution and the convicted person to impose an appropriate sentence. 

"Thus, the question of whether there was assistance or not could be included as one of the listed matters that should be considered by the judge before he decides and pronounces sentence." 

"Some may have no information or very little information, or maybe that information and/or assistance will not help disrupt drug trafficking activities. As, such this really should be for the judge to decide and maybe should be a point to be considered before sentencing."

In a statement today also condemning the law amendment,  Lawyers for Liberty executive director Eric Paulsen said there was little guarantee that the law enforcement agencies and public prosecutor would not abuse such "unfettered and arbitrary power".

"It is basic that the act of prosecution is an executive function of the state and the office of the public prosecutor shall be strictly separated from judicial functions. Therefore it would be a serious miscarriage of justice if the prosecutor could also decide the mode of punishment, and all the so, the punishment of death," he said. 

By compelling judges to impose a life or death sentence based on the public prosecutor’s certification is an "unnecessary fetter" on their discretion and interferes with judicial independence and justice, Paulsen said. 

As of March, there are almost 800 prisoners on death row for drug trafficking offences under Section 39(B), according to Prison Department statistics.

Madpet has called for all death sentences to be commuted to imprisonment. It further calls on the government to impose a moratorium on pending executions and speed up efforts towards the abolition of the death penalty. – November 24, 2017, Malaysian Insight.

MADPET's Full Statement -  MADPET - JUDGE’S DISCRETION TO NOT IMPOSE DEATH PENALTY ONLY IF PUBLIC PROSECUTOR GIVES CERTIFICATION IS WRONG

**Thereafter several human rights groups, including the Malaysian Bar, and even Opposition MPs raised concerns about the said Bill, being debated at the Dewan Rakyat(House of Representatives) in Malaysian Parliament.

Release Siti Noor Aishah Atam immediately(15 Groups) - Malaysiakini

Release Siti Noor Aishah Atam immediately

Published: Today 11:04 am     Modified: Today 1:09 pm

LETTER | We, the 15 undersigned civil society organisations and groups, call for the immediate release of Siti Noor Aishah Atam, who was found guilty under Section 130JB of the Penal Code, and was sentenced to five years' imprisonment from the date of arrest on March 22, 2016.

The ruling is not only unjust, but is also seriously flawed.

Amongst others, there is a lack of mens rea (intention) in this offence - a flaw which was supposed to be remedied in an amendment, but which is yet to be done.

Secondly, classifying the possession of books - which are not even banned by Malaysia - as being "items associated with any terrorist group or the commission of a terrorist act" is grossly unjust.

Aishah was first arrested for the possession of 12 books associated with terrorism, and the Security Offences (Special Measures) Act 2012 was used, making bail unavailable. She remained in detention.

She was then charged and tried by the High Court in Kuala Lumpur, which acquitted her at the close of prosecution case without her defence being called on Sept 29, 2016.

The prosecution then applied to the High Court to be able to continue to detain her, pending the filing of an appeal.

However, on Sept 29, 2016, after being set free by the High Court, she was rearrested under the Prevention of Crime Act 29159 for allegedly importing IS flags into the country - a totally different charge from the one initially levied against her, which was being in possession of 12 books.

To date, Aishah has not yet been charged in court over the flags, which raises the question of whether the reason used to continue to detain her was even true.

After the Court of Appeal allowed the prosecution’s appeal on March 27 this year, and sent the case back to the High Court for the continuation of the trial, she continued to be detained under Sosma.

The following month, the High Court then found her guilty and sentenced her to five years in prison beginning from the date of her arrest. It was reported that some of these books were still not banned.

Her case is now being appealed.

Inadmissible evidence now admissible

Sosma allows for the sidestepping of practices and procedures set out in the Criminal Procedure Code, the Evidence Act 1950, and other relevant laws, all of which were put in place to ensure a fair trial.

In Aishah's case, Sosma was used to admit evidence, which would not normally be admissible under the Evidence Act and the Criminal Procedure Code in normal trials.

For instance, it was admitted that Aishah allegedly told the arresting officer that the books belonged to her. There were no witnesses to this alleged conversation. There was also no subsequent statement or records that such a statement was ever made to the arresting officer.

However, when Sosma was used, this questionable evidence was accepted as proof that all the things in the room, including the 12 books, belonged to her.

Bound by the decision of the Court of Appeal, the High Court continued the trial and asked Aishah to present her defence.

Section 130JB is defective

In brief, the offence as it is set out in section 130JB today just has too many inadequacies, and it would be unjust to charge someone like Aishah for the mere possession of books.

image: https://i.malaysiakini.com/1161/a14b307b247d61b56fa09e9632fa14a5.jpeg

Such laws can easily be abused or wrongly used by authorities against innocent people, and justice may not be done.

It was first revealed in the High Court judgment dated April 26, 2017, that there was a defect in section 130JB. This particular section, unlike the other offences in the new Chapter VI, had words like "knowing", "intentionally" and/or "having reason to believe," which clearly provided for the need of the mens rea.

The High Court in its judgment, also referred to the Hansard, and it was revealed that this defect was brought to the notice of a minister, who apparently acknowledged the inadequacy, and said that he would do the needful with regard to the missing element.

The minister in question assured that he would first raise the matter with the attorney-general before any possible subsequent amendment.

The indication was that the amendment would be done at a later time. But to date, there have been no amendments to Section 130JB, under which Aishah was charged, tried and convicted.

The second concern is whether books and articles should even be considered
items associated with any terrorist group or the commission of a terrorist act."

Naturally, firearms, explosive devices, and items that could be used to build bombs would be construed as "items," but the question remains if books, articles and other literary material that mentions and discusses "terrorist groups" or "terrorist acts" should be included.

It is the responsibility of all persons to fight against terrorism. As such, knowledge of the motivations and ideology of persons who resort to such violence is essential for everyone if they are to assist in combatting such ideologies.

But how can one argue or debate against such thinking if we are ignorant of the subject matter?

Hence, the act of a person reading or in possession of such literature must never be criminalised, as is happening now with Aishah.

However, if such books and literature are proven to be used for the purpose of recruiting others into terrorist groups or committing violent acts, then it may be made into a criminal offence.

It must be pointed out that incitement and/or preparation to commit an offence is already a crime in Malaysia, and as such, one needs to consider whether there is really any need to even have specific laws to deal with "terrorist acts" or "terrorism."

Likewise, the words "associated with" is rather vague. Would it also include books and material critical of or against the motivation and ideologies of terrorist groups or acts of terrorism?

In Siti’s case, one most disturbing fact was the fact that these books were not even banned by the government at the time.

In fact, it was revealed that some of the said books were obtained from a local distributor and are available for purchase in Malaysia.

We have not seen any action taken against the distributor and sellers. We have also seen no action by the Malaysian government to trace all who may be in possession of the books, many who are unknowing of their crimes as yet.

Will they all be one day arrested and charged under Section 130JB as well?

Aishah may be guilty of many other offences, but what matters here is if she is guilty of the offence that she is currently being charged for – the possession of the 12 books.

For other offences, she must be charged and tried separately. 

It is wrong and most unjust to convict and sentence a person for things that she may or may not have done that are different from the current charges, just because we, the police or the government think that someone is a "bad" person.

The right to a fair trial must be respected.

Hence, we call for:

• The immediate repeal and/or removal of Section 130JB of the Penal Code, which is not only too vague, but is also unjust by reason of not requiring a mens rea to the said offence;
  
  
• That pending the repeal or deletion of Section 130JB of the Penal Code, it should not be used again, and certainly not for simply being in possession of books;
  
  
• The immediate release of Siti Noor Aishah Atam and all persons currently being detained, imprisoned and/or being tried for the Section 130JB offence;
  
  
• That Sosma be repealed, and pending repeal, it will not be used to undermine the standards and requirements in the Evidence Act, Criminal Procedure Code and other relevant laws that have been put in place to ensure a fair trial;
  
  
• That the Malaysian judiciary uphold the cause of justice without fear or favour.

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Written on behalf of:

Aliran

Center for Prisoners' Rights Japan

Christian Development Alternative ( CDA), Bangladesh

Dutch League for Human Rights

Japan Innocence and Death Research Center

KL Selangor Chinese Assembly Hall - Civil Rights Committee

MADPET(Malaysians Against Death Penalty and Torture)

Malaysian Physicians for Social Responsibility (MPSR)

North South Initiative

Rescue Alternatives Liberia (RAL)

Saya Anak Bangsa Malaysia (SABM)

Teoh Beng Hock Trust for Democracy

Women’s Criminal Justice Network

WH4C (Workers Hub For Change)

Association of Human Rights Defenders and Promoters- HRDP, Myanmar

Source:- Malaysiakini, 30/11/2017

The original full statement, that contains also extract of Hansard in Malay taken from the High Court judgment,  could be viewed here 

Flawed Section 130JB Penal Code must not be used pending repeal Release Siti Noor Aishah Atam in prison for possession of unbanned books? (15 Groups)

The first High Court Judgment which acquitted her at the close of the prosecution's case(which is in Malay) could be found here - Siti Noor Aishah Atam - Alasan Penghakiman Mahkamah Tinggi - Mahkamah Bebas Polis Tangkap Lagi Guna POCA??

The 2nd High Court judgment, after the Court of Appeal overturned the High Court judgment, which led to her conviction can be found in this post - -  Siti Noor Aishah Atam - dipenjarakan 5 tahun memiliki buku yang tidak diharamkan kerajaan. Kini di Mahkamah Rayuan?

 

 

 See earlier related posts, some of which are as follows:-

Siti Noor Aishah Atam - Release her, and Repeal section 130JB Penal Code?

Release Siti Noor Aishah Atam from Poca restrictions, kata 36 kumpulan (Malaysiakini, 20/12/2016)

Siti Noor Aishah Atam - victim of SOSMA, found Not Guilty by High Court, then re-detained under POCA?

Siti Noor Aishah Atam - Ditahan lagi di bawah SOSMA?

Bar Resolution for the Repeal of the Prevention of Crime Act 1959 and All Detention Without Trial Laws, and Provision for Compensation for Deprivation of Liberty of the Innocent

 

 

Worker's access to justice. Courts decide not Minister, who blocked 31% cases reaching court?

A worker should be immediately allowed to file his case in the Industrial Court and/or Labour Court, and the court should proceed to hear the case immediately especially for wrongful dismissal cases where the worker is asking for his employment and income back. Everyone else can take their claim/dispute to court, why are workers being discriminated against.

Now, it takes a very long time before the matter goes to court, in the case of the MAS workers, it took 2 years ...and then the Minister did not even refer the matter to court. Justice demands that the courts(not the Minister or some officer) decides after listening to all the evidences, documentary and evidence from witnesses, before deciding. Now, Minister deciding without with giving the dismissed worker and the employer a right to be heard is ABSURD...

Minister of Human Resources had decided not to refer the claim of about 3,200 Malaysian Airlines(MAS) workers, alleging wrongful dismissal and claiming for reinstatement, to the Industrial Court – hence denying these workers the right for their claim of wrongful dismissal to be heard speedily and determined by the Industrial Court is grossly unjust. (Malaysiakini, 5/10/2017)

 

31.5%(10,016) workers denied access to Industrial Court in wrongful dismissal cases

If attempts at reaching an amicable settlement between the wrongfully dismissed worker and the employer fails - it must be immediately referred to the Industrial Court....BUT in Malaysia it is referred to the Minister who then decides which case to refer and which not to... There is No Right to Be Heard before the Minister - so the Minister's decision is based on the report send by the officer than conducted the failed conciliation attempt,... 

The revelation that between the period of 2001 and 2011, 10,016 workers in Malaysia who claimed wrongful dismissal(or 31.5%) were denied their day in the Industrial Court by the Minister of Human Resources who REFUSED to refer their cases to the Industrial Court is shocking...

What is even more shocking is the reasons the Minister gives for not referring these cases to the Industrial Court. The Minister, unlike the court, does not hear witnesses or  peruse documentary evidence... so, the decision not to refer is based on WHAT? Belief in an assertion of the employer... acceptance of an opinion of an officer who failed to amicably resolve the matter between employer and dismissed worker? ...

What were the reasons given by the Minister for not referring the case to the Industrial Court.

a) Because the worker was dismissed for misconduct

b) Because the Employer has shut down its business

c) Because the Worker was given the opportunity to return back to work But refused to come back to work

d) Because the worker had been terminated because the employment contract had come to an end

e) Because the worker had voluntarily stopped work under some Voluntary Separation Scheme(VSS), and then changed their mind after receiving payment.. 

When a worker takes the trouble to rush over to the Industrial Relations Department within 60 days from the date of 'wrongful dismissal' and lodge a complaint under section 20 claiming wrongful dismissal and demanding reinstatement, and thereafter coming for the attempts at 'conciliation', naturally one should assume that the worker genuinely believes that he/was was wrongfully dismissed...and has a valid case to justify the claim.

All the grounds of non-referral of the dispute to the Industrial Court by the Minister seems to be the very reasons that the Employer would have given for the termination of the worker's employment... These obviously are matters that the aggrieved worker is disputing, proven also by the very fact that the complaint itself had been lodged by the worker...

BUT, some may say that any person aggrieved by the decision of the Minister not to refer(or refer) to the Industrial Court can always file an application at the High Court to ask the court to do a judicial review of the Minister's decision...

Well, it is possible but for such an application, you need to get a lawyer and when an application is filed in the High Court, there is always the risk that if the worker were to fail in their application to the High Court, they may be ordered to pay COST to the employer - and this could very well be RM5,000, RM10,000 or even more... 

So, now a worker wrongfully dismissed would also have to raise money for lawyers and court proceedings.... and also face the risk of having to pay COST which really may be equivalent to 10 month's salary (RM5,000) or more - .... so naturally many a worker (especially those who earn lower wages)... will just walk away...and not bother to apply to the High Court when the Minister decides that the case would not be referred to Court. Justice is denied...and yet again, it is the worker that is the victim of this 'miscarriage of justice'...here being the right to have his/her claim heard and determined by an independent judge of the Industrial Court, the right to a fair and open trial...

[In the Industrial Court, what is good is that there is NO cost that the losing party would have to pay - and for poorer workers, this is a good thing and it helps make real 'avenues of justice' available in law for workers...] 

The section 20 IRA procedure is also ODD when there is an additional step that gives the Minister power to decide whether a case be referred to the Industrial Court or NOT. In other cases, once attempts to reach an amicable settlement fails - the matter is as of right referred to the Courts to resolved after hearing evidence of witnesses, considering documentary evidence and hearing legal arguments/submissions by both the worker and the employer. Rightfully, the Ministers involvement need to be extinguished... and after attempts at amicable settlement had failed, all cases must, as of right, be referred to the Industrial Court

This was an important matter that concerns rights of workers in Malaysia, but sadly it seems that most media (including also alternative media) failed to report on this matter, which was raised to the Minister of Human Resources in Parliament. The only report that I came across was a Bahasa Malaysia report carried by the Utusan Online, which is copied and pasted below. 

Sebanyak 31,714 kes tuntutan pekerja yang diterima Jabatan Perhubungan Perusahaan dari 2001 hingga 2011 gagal diselesaikan melalui proses rundingan.

 

Menteri Sumber Manusia, Datuk Seri Dr. S. Subramaniam berkata, daripada jumlah berkenaan, sebanyak 31.5 peratus atau 10,016 kes di bawah Seksyen 20 Akta Perhubungan Perusahaan 1967 itu tidak dirujuk ke Mahkamah Perusahaan berikutan pelbagai faktor.

"Antara sebabnya adalah pekerja diberhentikan kerja atas masalah salah laku, majikan telah menutup perniagaan dan pekerja diberi peluang untuk bekerja semula tetapi enggan berbuat demikian.

"Selain itu, perkara tersebut turut disebabkan pekerja diberhentikan kerana tamat tempoh kontrak, berhenti secara sukarela tetapi berubah fikiran menuntut bekerja semula dan telah menerima bayaran pampasan melalui Skim Pemberhentian Sukarela (VSS)," katanya menjawab soalan Khairy Jamaluddin (BN-Rembau) dalam sidang Dewan Rakyat hari ini.

Menurut Subramaniam, pekerja yang diberhentikan atas sebab-sebab seperti mengurangkan bilangan pekerja dan penstrukturan semula perniagaan wajib dibayar pampasan di bawah Akta Kerja 1955.

Katanya, bagi tuntutan untuk kembali ke pekerjaan asal, Jabatan Perhubungan Perusahaan boleh mengadakan rundingan damai di antara majikan dengan pekerja untuk menghasilkan penyelesaian.

Jelas beliau, sekiranya kes gagal diselesaikan secara rundingan, masalah tersebut dibawa kepada panel pakar sebelum diputuskan oleh pihak menteri sama ada wajar untuk dirujuk ke Mahkamah Perusahaan. - Utusan Online, 23/10/2012, 31,714 kes tuntutan pekerja gagal diselesaikan secara rundingan

Peneroka FELDA - malas silap sendiri atau silap UMNO-BN?Polisi Pembangkang?

UMNO-BN failed - because the poor FELDA settlers who should by now become financially independent and able to live without anymore depending  on government(or FELDA) assistance seem to be still 'poor' with large debts? 

UMNO-BN gagal kerana penroka FELDA yang mula-mula miskin seharusnya kini sudah menjadi stabil dari segi kewangan and boleh hidup berdikari tanpa perlu bergantung kepada bantuan kerajaan(atau FELDA) nampaknya masih lagi 'miskin' dengan hutang besar?

Is the Opposition party just intending to simply take over from UMNO-BN, and keep the FELDA settlers poor and still dependent on government - or will there be change? Again the Opposition seems to be concerned about failings of FELDA/Government and the alleged injustices suffered...

Adakah parti Pembangkang hanya mahu mengambil alih tempatUMNO-Bn, dan terus menurus mengekalkan peneroka FELDA dalam keadaan kemiskinan yang masih bergantung kepada kerajaan - ATAU adakah akan berlaku perubahan? Kini, nampaknya Pembangkang menumpukan perhatian kepada kegagalan FELDA/Kerajaan dan dakwaan ketidakadilan yang telah berlaku...

BUT what will the NEW policy of the Opposition for FELDA - will new groups of poor be given land, skill and assistance to overcome poverty and become financially stable and independent? Will it be for all poor or will it still be primarily for the Malay poor? Or are their only concern about this already existing about 112,000 Felda setlers and winning the General Elections? 

TETAPI apakah polisi BARU Pembangkang untuk FELDA - adakah mereka yang miskin akan sekali lagi diberikan tanah, skil dan bantuan untuk mengatasi kemiskinan dan menjadi stabil dari segi kewangan? Adakah program sedemikian jika dimulakan kembali untuk mereka yang miskin...atau masih untuk Melayu miskin? Atau adakah keprihatinan mereka hanya untuk 112,000 peneroka FELDA dan keluarga sedia ada ...hanya untu menang PRU?

ARE FELDA SETTLERS TO BE BLAMED FOR THE PREDICAMENT SOME OF THEM ARE IN NOW?  

Haruskah Peneroka FELDA sendiri yang harus dipersalahkan untuk masalah yang sebahagian mereka kini alami?

Easy to blame FELDA and the UMNO-BN government for the indebtness that many FELDA Settler families are facing today. It maybe true that the UMNO-BN government may have had played a part in failing to make FELDA Settlers and their families independent, confident and self sufficient - but at the same time blame also lies in the FELDA Settlers and their families.. When people become free and independent of government, they are free to choose wisely. This is why in urban centres, often the UMNO-BN gets defeated during elections...but in rural areas, dependency, poverty and indebtness ensures the UMNO-BN victory in most cases.

Senang sekali kita menyalahkan FELDA dan kerajaan UMNO-BN untuk keberhutanga ramai keluarga peneroka FELDA hari ini. Ia mungkin benar kerajaan UMNO-BN telah memainkan peranan dalam kegagalan menjadikan peneroka FELDA dan keluarga yakin, berdikari dan boleh hidup tanpa bergantung kepada kerajaan. Apabila rakyat menjadi bebas dan kurang bergantuang kepada 'bantuan' kerajaan, mereka akan memikirkan sendiri dan akan arif memilih pemimpin dan kerajaan. Ini dapat dilihat di kawasan bandar, di mana kebanyakkan kali UMNO-BN akan tertewas dalam pilihanraya...tetapi dalam kawasan luar bandar, kemiskinan dan pergantungan kepada kerajaan semasa dan keberhutangan nampaknya akan memastikan kemenangan UMNO-BN(kerajaan semasa) dalam kebanyakkan kes.

There are 112,635 Felda settlers, not including their wives and children.

Yes, FELDA did come up with proposals that the settlers allow FELDA(or some FELDA company or some contractor) to do the clearing of old trees, the replanting...for a FEE(Price), and those who agreed would also be given monthly advances of RM1,500 for the entire duration. Now, all these 'Fee' and Advances had to be paid back. Sadly, the majority chose the easy way - hand over the work to FELDA(or its agents), and take the RM1,500 monthly allowances...

YA, dalam isu baru ini, FELDA memang ada memberikan pilihan (1) FELDA(atau syarikat FELDA atau kontraktor luar) akan mengambil alih kerja membersihkan pokok uang sudah tua dan kerja penanaman semula...untuk harga tertentu, dan mereka yang bersetuju juga akan diberikan 'advance' bulanan RM1,500 untuk jangkamasa(mungkin 3-4 tahun sehingga hasil mula keluar) lagi. Dan semua pendahuluan dan bayaran bulanan perlu dibayar balik. Sedih sekali, kebanyakkannya nampak memilih cara mudah - serah saja tanah/ladang kepada FELDA(atau ejen mereka) - dan ambil bayaran bulanan RM1,500-00

BUT a small percentage were smarter, they decided to do the clearing of the old trees and the replanting on their own, and not take this RM1,500 advance for living allowances. So they worked their land, and survived on their savings(or maybe even income from other work/sources) - That would have been how any non-FELDA small holder would have done when it comes to the time for clearing old trees and replanting.

Tetapi, sebilangan kecil lebih arif, mereka memilih kerja sendiri membersihkan pokok lama dan menjalankan kerja tanaman semula  dan juga tidak mengambil elaun kehidupan RM1,500-00. Justeru, mereka kerja sendiri, dan telah terus hidup bergantung kepada simpanan mereka(dan/atau pendapatan dari kerja/perniagaan lan/sumber lain). Inilah cara mana-mana mereka yang bukan peneroka FELDA di Malaysia akan lakukan bila perlu bersihkan pohoh lama dan menanam semula pokok baru.

Other smallholders and small business people, mostly without government loans or assistance, are able to survive and even prosper. It is all a question of good financial planning and savings. It is a question of smart spending - buying and spending according to your means, always making sure there is sufficient monies put aside for a rainy day. 

Kebanyakkan petani, pekebun kecil dan peniaga kecil, kebanyakkan tanpa apa-apa bantuan atau pinjaman kerajaan, dapat hidup dan juga tambah kaya. Ianya semua soal perancangan kewangan yang baik dan simpanan. Ianya adalah mengenai perbelanjaan pandai - beli dan belanja berasaskan hakikat sendiri, selalu memastikan cukup wang disimpan untuk hari-hari susah...

However, looking at the state of indebtedness of FELDA settlers and their families, this was not a lesson they learned - and they continued to depend too much on the government and FELDA. [See the experience of Bakar Hashim, who decided not to outsource the tree clearing and replanting, but did it himself - see below -No Felda, no problem, for Bakar).

Tetapi, jika melihat hakikat ramai peneroka FELDA yang berhutang, mereka nampaknya tak belajar cara perancangan kewangan dan keperluan simpan untuk masa tak ada hasil.(Mereka sudah berpuluh tahu berkecimpung dalam sektor perladangan). Mereka masih terlampau banyak bergantung kepada FELDA(kerajaan) - tengok contoh Bakar Hashim, yang telah memilih tidak 'outsource' kerja ladang sendiri tetapi kerja sendiri...

Instead, Bakar forked out RM15,000 to replant his four-hectare plot. That, he said, was much lower than the RM100,000 it would cost some of his friends who had signed on for the Felda replanting scheme.

Bakar said he cleared his plantation by poisoning the old trees and bought oil palm seedlings, which he paid labourers to plant, and later, fertilise. 

After three years, Felda paid him RM17,000 from the replanting fund and RM5,000 for removing the old trees.

Dependence on the Government and FELDA may have been an UMNO-BN strategy to keep the support of the FELDA community for the incumbent government - now UMNO-BN. 

Mengekalkan kebergantungan kepada Kerajaan dan/atau FELDA mungkin satu strategi UMNO-BN untuk mengekalkan sokongan lomuni FELDA kepada kerajaan sedia ada - kini UMNO-BN.

The government and/or FELDA cannot be said to have not given settlers choices - but may have encouraged outsourcing work on their individual small-holdings to FELDA and/or its contractors...and surely these companies/contractors that took up the jobs made profits.  

Tidak boleh dikatakan peneroka tidak diberikan pilihan oleh FELDA(kerajaan) - di mana kerajaan/FELDA mungkin ada mendesak atau mengumpan dengan janji elaun bulanan untuk peneroka FELDA jangan kerja sendiri tetapi 'OUTSOURCE'(suruh pihak lain buat kerja) kepada FELDA(atau syarikat FELDA/kontraktor) ...sudah pasti syarikat yang ambil buat kerja ada mengaut untung...

FELDA settlers were many, and they should have come together as settlers, to work together on their respective hectares of land - that would have saved money. Did they 'over-trust' FELDA and/or the government - choosing rather to outsource work on their land, rather that work it themselves.

Ramai peneroka FELDA - mereka boleh datang bersama untuk kerja bersama membersihkan ladang dan tanam semula - dan wang akan dapat disimpan. Adakah mereka terlalu percaya FELDA/kerajaan - memilih 'OUTSOURCE' kerja dan bukan kerja sendiri di atas tanah mereka. Kalau cuci kereta sendiri, tak ada bayaran - tapi kalau minta 'car wash' kena bayar RM8-10??

Remember FELDA is a government agency, and it has its own plantations to run - different from the hectares given to the individual settlers and their families.

Ingat FELDA adalah ejensi kerajaan, yang juga mempunyai ladang sendiri - ini berbeda dengan program peneroka yang peneroka diberi tanah beberapa hektar untuk tanam, dan mengaut keuntugan usaha mereka.

The government's role is bring development to the area - and this they did by the building of roads, schools, clinics, etc...

Peranan kerajaan adalah untuk membawa pembangunan kepada sesuatu kawasan - jalanraya, sekolah, klinik, dll...

Felda Settlers were also NOT 'locked-up' or not able to move ini and out of their Felda Settlemnents. Likewise, everyone could go and visit these FELDA settlers. They could easily discuss and get advice from others, not being those associated to FELDA or the government. They had access to information, advice, etc ...so when the settler chose to outsource work and end up in debt, who would we blame?

Peneroka FELDA bebas keluar masuk kawasan FELDA, dan orang luar boleh masuk bertemu peneroka FELDA. Senang sekali mereka berbincang dan mendapat nasihat daripada orang lain, bukan hanya bergantung kepada nasihat orang FELDA atau kerajaan. Akses maklumat, nasihat, dll ada - justeru bila peneroka sendiri memilih 'Outsource' kerja dan kini dalam keadaan keberhutangan - siapa yang harus dipersalahkan?

Now, for the purpose of the upcoming General Elections, there is much interest on FELDA - why was it not there before? But then there were always people from political parties, NGOs and others who may have given advice - but many FELDA settlers may have chosen to just trust FELDA and/or the government only...Who to blame? Many of FELDA settlers children have degrees and are educated...why were they not giving their parents good advice?

Kini, kemungkinan PRU tak lama lagi, banya minat mengenai FELDA - kenapa tidak ada sebegitu banyak minat sebelum ini? Tetapi pada masa yang sama ada selalu mereka daripada NGO, parti politik dan yang lain yang mungkin telah memberikan nasihat - tetapi mungkin ramai peneroka FELDA hanya pilih percaya dan dengar nasihat FELDA dan/atau kerajaan...Justeru, salah siapa? Ramai peneroka FELDA juga mempunyai anak yang ada ijazah universiti dan berpelajaran tinggi -mengapa mereka tidak berikan ibu bapa mereka nasihat baik?

What then is the position of the Opposition parties on FELDA - are they simply promising to continue the UMNO-BN way and keep settlers dependent and loyal to their political parties...or will they encourage independence, self-confidence...so that these settler communities will finally be 'debt-free' and able to survive on their own without any FELDA or government aid? or even Opposition politician assistance? Will they encourage the working on your land, or will they still encourage outsourcing to others to do the work? Working your own land is certainly cheaper...even if you have to hire your own workers, compared to outsourcing the work to FELDA or some private company/contractor.

Apakah posisi atau pendirian parti Pembangkang berkenaan FELDA - adakah mereka hanya janji ikut cara UMNO-BN dan memastikan peneroka bergantung kepada mereka dan setia kepada parti politik mereka...atau adakah mereka akan mengalakkan kepercayaan pada diri sendiri, berdikari - dan boleh hidup tanpa perlu lagi bergantung kepada bantuan kerajaan atau FELDA? Atau bantuan ahli politik atau parti politik? Adakah mereka akan mengalakkan buat kerja sendiri atas tanah sendiri ...atau adalah mereka akan mengalakkan 'outsourcing' kerja kepada syarikat/kontraktor? Kerja tanah sendiri adalah lebih murah dan tidak akan menyebabkan hutang terlampau...jika pun kena ambil pekerja sendiri, berbanding dengan 'outsourcing kerja kepada FELDA atau syarikat/kontraktor swasta yang lain.

The cause of the indebtness maybe the fault of the FELDA Settler themselves...and, the way forward is not to forgive the debt or the new government paying of the debt(or cancelling the debt) - This will be a bad lesson, and continue to generate 'dependence'...

Akhirkata, sebab keberhutangan mungkin salah peneroka FELDA sendiri...dan jalan kehadapan adalah untuk tidak memaafkan keberhutangan ini atau 'janji' kerajaan akan melupuskan hutang - Ini akan memberikan ajaran salah..dan atau memastikan 'kebergantungan' terus kepada...

The FELDA settler program was a good program, where the poor were given land, skills and assistance to enable them to escape poverty...will the Opposition re-start the program, and help more poor people. Of course, the settler will have to work hard...and not be lazy and simply outsource work..and take loans. The FELDA settlers need to have greater interaction with other farmers and small-holders, who continue to survive and prosper without any government assistance.

Program peneroka FELDA rancangan yang baik bila yang miskin diberikan tanah, skil dan bantuan untuk memastikan mereka melepasi/menangani kemiskinan..adakah Pembangkang akan memulakan semula program peneroka dan membantu lebih ramai orang miskin di Malaysia? Yang pasti, peneroka kena kerja keras...dan jangan malas dan senang-senang 'outsource' kerja dan ambil pinjaman. Peneroka FELDA harus mempunyai lebih interaksi dengan petani dan pekebun kecil, yang boleh hidup dengan baik tanpa apa-apa bantuan kerajaan...

The FELDA Settler Debt -

RM1,500 per month for 3 years = RM54,000

RM1,500 per month for 4 years = RM72,000

Cost of clearing their old trees, replanting and continuous monitoring(weeding/fertilizing) for 3 to 4 years = ? 

If the debt is only about RM100,000 - noting they were getting money every month doing nothing...is it reasonable?

HUTANG Peneroka FELDA

RM1,500 se bulan untuk 3 tahun = RM54,000

RM1,500 se bulan untuk 4 tahun = RM72,000

Kos pembersihan pokok lama, kerja tanam semula, kerja jaga tanah/ladang(potong rumput, racun, baja) untuk 3-4 tahun - adalah ini munasabah? 

DEBTS - How much debt do you have? Housing, Car, etc -RM100,000, RM200,000?

HUTANG - berapa hutang anda? Pinjaman Rumah, Kereta - RM100,000, RM200,000 atau lebih?

Thus, the indebtness of the FELDA Settlers, who it seem elected to outsource the removal of old trees, the replanting and their land until it started producing, and receiving advances of RM1,500 per month for about 3 years...The indebtness may not be the real issue that deserves too much attention when it comes to FELDA - Maybe, it was the failure of the UMNO-BN to develop 'independence' - and its questionable strategy of handing 'goodies', encouraging settlers to outsource work rather than doing it themselves...It would be most shocking if the some Felda Settlers, whilst waiting for their trees to produce just sat and received the advances - and did not try to generate alternative income whilst they waited. 

Justeru, hakikat keberhutangan peneroka FELDA yang nampaknya memilih 'outsource' kerja kepada FELDA atau kontraktor lain, sambil menerima 'advance' perlu bayar balik sebanyak RM1,500(yang nyata lebih daripada gaji minima) untuk lebih kurang 3 tahun bukan isu utama di FELDA. Isu utama adalah kegagalan policy dan cara UMNO-BN untuk menjana sifat berdikari - strategi memberikan 'kelebihan', memujuk peneroka untuk jangan buat kerja sendiri tetapi outsource kepada FELDA...Adalah menghairankan jika peneroka ini tak kerja dan/atau mendapat pendapatan lain dalam masa 3 tahun mereka duduk menunggu menerima RM1,500 sebulan...

FELDA settlers is just one group -m

Peneroka FELDA satu kumpulan - bagaimana pula dengan pekerja di Ladang Milik Felda - adakah mereka ditindas...adakah mereka menerima sekurang-kurang RM1,500 sebulan...atau mereka terima gaji minima sahaja? 

 

 

 

 

No Felda, no problem, for Bakar

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Zulkifli Sulong Updated 3 days ago · Published on 21 Nov 2017 7:00AM

Life is good these days for Bakar Hashim and his family in Felda Chini Timur Satu in Pekan, Pahang. – The Malaysian Insight pic by Hasnoor Hussain, November 21, 2017.

LOOKING back, Bakar Hashim is glad he did not go with the flow and take up Felda’s replanting scheme.

At a time when most of his friends in Felda Chini Timur Satu chose to  surrender the management of their smallholdings to Felda in return for replanting, Bakar stood firm as he felt something was not quite right about the agreement.

He thought the terms were fuzzy and could bind his children and grandchildren to debt.

Instead, Bakar forked out RM15,000 to replant his four-hectare plot. That, he said, was much lower than the RM100,000 it would cost some of his friends who had signed on for the Felda replanting scheme.

Bakar said he cleared his plantation by poisoning the old trees and bought oil palm seedlings, which he paid labourers to plant, and later, fertilise. 

After three years, Felda paid him RM17,000 from the replanting fund and RM5,000 for removing the old trees.

“As such, I didn’t lose RM15,000 by replanting but instead made a profit of RM7,000, and did not have to surrender my land to Felda to take part in its programme,” Bakar told The Malaysian Insight in Chini.

Felda Chini Timur 1 is one of the Felda settlements in the Pekan constituency, which MP is Prime Minister Najib Razak.

The 62-year-old settler said he turned down Felda’s offer to replant his plantation after speaking with his children.

Bakar said it was really a bit of luck that his son, Mohamad Hisommudin Bakar had attended the briefings about the replanting scheme.

Hisommudin, who was a university student activist, said what he heard did not make sense. Felda had told the settlers that they would surely fail if they tried to replant themselves and would only succeed if they went with Felda.

At the time, Hisommudin said, almost all of the 400 settlers in attendance had agreed with him, so much so that the Felda officers decided it was no use going on and called the meeting to an end.

After Hisommudin had returned to campus, however, Felda officers returned to persuade the settlers to sign up for the replanting scheme.

“In the end, only my father and 10 more settlers decided not to sign the replanting agreement and to work their own lands,” Hisommudin told The Malaysian Insight.

But people like his family were the minority and Hisommudin said only 5% of the settlers decided to do the work themselves. The rest took up  Felda’s offer.

Not following the herd

Hisommudin’s mother, Hawariah Mohamad, said it was hard work doing the replanting themselves. 

“Our house was filled with oil palm seedling. Even the neighbours would make fun of us. They used to ask us what the seedling were and I said they were snake fruit,” said Hawariah.

The snake fruit seedling resembles the oil palm seedling.

Hawariah also remembers the pressure on the family for not going with the herd.

“It was like Israel pressuring the Palestinians,” said the retired religious teacher.

Hisommudin said his father was tempted to give up many times 

“My father wanted to give up and let Felda take over. But we discussed it as a family, we asked him to hang on,” said the Ilham Centre executive director.

Reaping what he sowed

But all that hard work has paid off.  The family now hold their heads high in the village where they were once shunned for daring to rebel.

Bakar earns RM5,000-RM5,500 each month from the oil palms and he is debt free, to boot.

His fellow settlers who took up the replanting scheme, meanwhile, draw RM2,000 to RM3,000 a month. 

And, they owe Felda for replanting their land and for the living allowance the agency paid them. The debts run into the tens of thousands of ringgit.

Some have been receiving the monthly living allowance for 12 years. The living allowance is a loan or advance for the settlers that is supposed to tide them over until the new trees bear fruit, about three years after replanting.

These days, Bakar’s role is that of the plantation owner. He no longer does the heavy work and his youngest son supervises the workers, who are mainly from Indonesia and Bangladesh. 

Bakar has a small lorry to transport the oil palm bunches and has started rearing cows. He has 50 heads of cattle.

“With the cows and everything, my father earns around RM10,000 a month,” said Hisommudin.  – November 21, 2017, Malaysian Insight.

Indebted to Felda for life

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Zulkifli Sulong Updated 3 days ago · Published on 21 Nov 2017 7:00AM

Settlers in Felda Chini in Pekan, Pahang are spending their sunset years trying to repay the massive debt the government agency says they owe. – The Malaysian Insight pic by Hasnoor Hussain, November 21, 2017.

AFTER signing a deal to allow Felda to replant his plantation in 2004, Ahmad Hashim left Felda Chini 4 in Pahang in search of job opportunities. 

The 61-year-old returned to claim his land after three years, when they trees had reached maturity and began fruiting.

However, his application to take back the land was rejected as Felda claimed he still owed the government agency money, Ahmad told The Malaysian Insight.

“They estimated that the land would break even in five years. So I was told to wait first,” said Ahmad in Felda Chini in Pekan, the constituency of Prime Minsiter Najib Razak, whose home state is Pahang.

In 2012, Ahmad again met Felda management to get his land back, but was again turned away as the agency said he still owed money.

It was then that Ahmad began wondering how much he owed Felda for replanting and the RM1,500 allowance he was paid monthly,  and whether his plantation would ever yield enough to pay off the debt.

Former plantation manager Shariman Alang Ahmad said oil palms usually started producing in the fourth year, yielding six to nine tonnes of oil per hectare that year.

“The yield will then increase by three tonnes each year until the trees enter their eighth and ninth year. By then they should produce around 20 tonnes per hectare a year. The yields begin declining when the trees turn 20 years old,” said Shariman. 

The current price of oil palm is RM5,500 to RM6,500 per tonne. 

“We don’t know how much we owe Felda”

Ahmad said he had asked Felda for a financial report or balance sheet of his holdings. But the settler said he was pushed from place to place. 

“I want to know how much I still owed them and the yields of my land. Is that too much to ask?,” he said, expressing his disappointment over the Felda management in his area.

Another settler, Akhir Ahmad has run up a RM98,000 debt to Felda, six years after signing the replanting agreement.

“I am really shocked at the amount I still owed them. After six years, my debt is RM98,000. I’m so angry because Felda didn’t tell us it was going to be like this when we signed the agreement,” he said.

He said the debt was the accumulation of replanting costs and monthly living allowance Felda paid the settlers. 

“The problem is, they don't tell us the income generated from the land, after it starts producing yields,” he said. 

Tired of being left in the dark, he and other settlers gathered to meet Felda to talk about the replanting agreement and its impact to the settlers.

“We managed to get about 400 settlers together in 2010 and we discussed the issue with Felda officers,” said Akhir.

“I said what Felda was doing went against the vision of its founder, the late Tun Razak,” he said, adding that the settlers began efforts to reclaim their lands after the meeting. 

“In Felda Chini 4, which houses more than 400 settlers, there are about 100 settlers who are still allowing Felda to manage their lands.

“The rest have begun managing their own estates."

As a settler managing his own holdings, Ahmad said he earned RM4,500 to RM5,500 monthly. 

Perpetual debt

Felda Chini opened in 1978 and after 20 years, the yields declined and the trees had to be replanted. The settlers were given the option of Felda’s replanting scheme in 2004.

Most of the settlers had taken up the deal, which let Felda fully manage their holdings from replanting oil palm trees to pruning and harvesting the fruits. 

During the replanting period, settlers received a monthly RM1,500 living allowance that was to be repaid once their estates begin turning in a profit.

Ahmad said starting June, Felda no longer paid the settlers the RM1,500 living allowance. Instead, the sum the settler is paid is determined by the yield of his holdings.

Second generation Felda settler, Mohd Firdaus Salleh, 31, said his father, who took part in Felda's scheme, now earned RM2,000 to RM3,000 a month.

But Felda was deducting RM400 each month as repayment for the RM130,000 owed to the agency according to the replanting agreement. 

“How long will it take for us to repay the debt? Even after we inherit the land and after another round of replanting, we will still be in debt,” he said. – November 21, 2017, Malaysian Insight

The controversial contract that can cost BN the Felda vote

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Zulkifli Sulong Updated one week ago · Published on 15 Nov 2017 7:00AM

Felda settlers are burdened by crushing debt which is the result of a 15-year-old agreement they signed with Felda to replant their oil palm and rubber holdings. – The Malaysian Insight file pic, November 15, 2017.

ABOUT 15 years ago, tens of thousands of settlers signed a replanting agreement with Felda that activists claim has led to one of their biggest problems today – crushing debt.

That agreement is now being studied by the settlers’ children, activists, lawyers, and politicians who want to either challenge it in court or use it as fodder for their general election campaigns.

Some of the settlers and their lawyers allege that the agreement is lopsided.

Others are working with politicians in Pakatan Harapan to turn it into a defining issue that could sway the Felda vote which impacts 56 parliamentary seats in the peninsula – most of which are held by Barisan Nasional.

There are 112,635 Felda settlers, not including their wives and children.

“We are forming a committee to study this issue at the party level  before bringing it to the Pakatan Harapan presidential council,” said Amanah communications chief Khalid Samad.

Amanah, together with Bersatu, PKR, and DAP, form the PH alliance.

“We hope to go on a roadshow in Felda areas to explain the issue just like we did with the 1MDB (1Malaysia Development Bhd) financial scandal, and offer solutions,” Khalid told The Malaysian Insight.

One of the lawyers studying the agreement, Dr Zulqarnain Luqman said 95% of the settlers signed the contract with Felda so that the agency could replant the holdings.

Hisomuddin Bakar, the son of a settler in Felda Cini, Pahang, said each Felda settler owned a four-hectare oil palm or rubber plantation, and by the beginning of the millennium, many of those trees were too old to bear fruit or latex.

He said Felda crafted an agreement wherein settlers would relinquish management of their estates to the agency so that it could replant the land with new trees.

It took about three years to replant and for the trees to mature, during which the holdings did not produce yields. During this period, each settler was paid a living allowance of RM1,500 per month.

Former plantation manager Shariman Alang Ahmad said oil palms took about three years to reach maturity and produce fruit.

“The optimal fruit bearing age is between eight and nine years, and the yield usually goes down once the tree is over 20 years old,” said Shariman, who worked for a government-linked company.

"At the end of the three years, when the trees started to bear fruit, Felda continued to manage the settlers’ holdings including maintaining the trees and harvesting the fruit.

"Felda did not return their holdings to the settlers because it claimed the settlers needed to repay the cost of replanting which ran into hundreds of thousands of ringgit," Hisomuddin said.

Settlers were also told they needed to repay the living allowance they were paid during the three years.

Meanwhile, Felda continued to pay them RM1,500 per month while holding on to the holdings.

Settlers have claimed that their debts came up to over RM100,000 and that the agency could be collecting more than what it was owed.

“The question is, when are the settlers going to be done with the debt? Will it be passed on to their children and grandchildren?” said Hisomuddin.

One of the clauses of the agreement stipulates that the settlers may not, for any reason or under any circumstances, terminate the agreement until all debts and payments that are owed , including income advances, have been paid in full to Felda.

Zulqarnain, the lawyer, said the government needed to review the agreement.

“It is too much tilted in favour of Felda and burdens the settlers."

Another lawyer said the settlers were bound by their debt while the amount they owed was determined by the agreement which specified that the settlers’ estates be handed over to Felda until the debt is fully repaid while the settlers are bound to pay the cost of management and replanting.

The debt, said the lawyer who did not want to be named, could also be passed on to the settlers’ descendants. – November 15, 2017, Malaysian Insight.