ON HUMAN RIGHTS, JUSTICE AND PEACE ISSUES, LABOUR RIGHTS, MIGRANT RIGHTS, FOR THE ABOLITION OF THE DEATH PENALTY, TOWARDS AN END OF TORTURE, POLICE ABUSES, DISCRIMINATION...
Re-tendered - the question is WHY? Was there no one that was successful in the earlier tender exercise? OR did the government find something WRONG with the tender process, or the company that was chosen? What exactly was wrong - don't Malaysians deserve to know? Was it because the company that was successful was 'linked' to the previous parties in power, the previous Minister, etc...Why the re-awarding of the flood mitigation projects?
If therewas something wrong, Malaysians deserve to know. Will the wrongdoers be punished according to law? Is there a law in place that can be used - or do we need a law governing the consideration and awarding of tenders?
Even in open tenders, there is always the risk of 'WRONGS"
- The process of evaluating of the different tenders was defective. Bribes or even 'orders from bosses' can determine the kind of results of evaluation of the companies in contention.
- The final selection could also be tainted with corruption > note that public officers have PUBLIC OFFICERS (CONDUCT AND DISCIPLINE) REGULATIONS 1993PU(A) 395/1993, however the Ministers and Cabinet Members do not have a similar regulations - should Regulation 1993 be extended to Ministers, Deputy Ministers, etc? One wonders whether 'donations' to some Ministers, political parties or to connected charities or organizations is connected to tenders/projects?
- Of course, companies that failed to get a project could resort to court action - even judicial review. Projects should be awarded on merit rather than 'who you know?'
- The availability of positive discrimination for, say 'bumiputra companies' may also result in not the BEST company getting the project. Was there a preference in the earlier awarding, or was there a failure to consider this preference?
HENCE, there should be transparency - as to WHY the re-awarding of tenders?
NEXT issue - it should always be OPEN TENDER, whereby in the consideration whether an applicant has past good records and experience will be a positive point.
SELECTIVE TENDERING - on the other hand, is where the government invites tenders from selected companies only. Others cannot compete to get the project.
Before the upcoming UMNO elections, we saw some potential/possible contestants to positions being 'expelled' and/or 'suspended' by UMNO - which, on the face of it, may result in their inability to contest for positions in the upcoming party elections.
Can a party/association do this to their members? Can the victim claim a violation of his/her rights by non-other than their very own association? Can association do as it likes to any of its members - without recourse to the Court. These interesting issues led me to look at FREEDOM OF ASSOCIATION.
Freedom of Association - is it an individual right? YES, it is.
Article 10 of the Federal Constitution '1(c)all citizens have the right to form associations.'
Now, Article 10(2) (2) Parliament may by law impose—...(c) on the right conferred by paragraph (c)
of Clause (1), such restrictions as it deems necessary or expedient in
the interest of the security of the Federation or any part thereof,
public order or morality.
Article 10(3) says(3) Restrictions on the right to form associations conferred by paragraph (c) of Clause (1) may also be imposed by any law relating to labour or education.
In terms of a person and his/her association, let's acknowledge that the association can also VIOLATE A PERSONS FREEDOM OF ASSOCIATION, and as such, he/she must have the right to fight for his/her rights against that rights-violating association, and hence the right to take the matter to Court in his/her quest for justice.
Did anyone take the issue to court for what seems to be a violation of their rights in UMNO?
Is it because of Section 18C?
18C Decision of political party to be final and conclusive {SOCIETIES ACT 1966}
The decision
of a political party or any person authorized by it or by its
constitution or rules or regulations made thereunder on the
interpretation of its constitution, rules or regulations or on any
matter relating to the affairs of the party shall be final and
conclusive and such decision shall not be challenged, appealed against,
reviewed, quashed or called in question in any court on any ground, and
no court shall have jurisdiction to entertain or determine any suit,
application, question or proceeding on any ground regarding the validity
of such decision.
Well, I believe that this Section 18C may be in violation of the Federal Constitution and the right to Freedom of Association?
Well, decisions of government, Prime Minister and Ministers are all subject to judicial review,etc of the courts?
Worker rights violations can also be taken to court? So, why not member's rights violation in political parties?
So, is not section 18C odd, when it says that decisions of just political parties(not any other society) is 'final and
conclusive and such decision shall not be challenged, appealed against,
reviewed, quashed or called in question in any court on any ground, and
no court shall have jurisdiction to entertain or determine any suit,
application, question or proceeding on any ground regarding the validity
of such decision.'
It seems that there is also no right to challenge the decision by reference/complaint to the Registrar of Societies and/or the Minister responsible...
Is this preferential treatment of political parties in the Societies Act discriminatory - did the MPs in Parliament pass this because it was about their political parties, where then these MPs were not at risk of expulsion and suspension? Why just political parties, and not all societies?
In fact, some laws give preferential treatment to 'political parties and politician' and political activities. For example, SOSMA in section 4(3) (3) No person shall be arrested and detained under this section solely for his political belief or political activity. - why do such provisions even exist? Why will a person who upholds justice and human rights not be given similar protection? Are MPs deciding based on self/party interest rather than the good of all? I wonder.
Remember that a member of a society, association and political party also has a right to the WEALTH of the association. Some parties have a lot of wealth - monies, buildings/property - and every member has a right to an equal share. So, an expulsion is not just 'being kicked out of the party' but also a loss of other assets/benefits..
Even in disciplinary proceedings, when the highest deciding authority is not the total membership in a General Meeting, but the then political leadership - it is even more dangerous and could be abused. In UMNO, for exmaple, can not the incumbent leadership expel and/or suspend potential challengers to their positions in upcoming party elections?
It's an UMNO matter - so others should not be bothered.
Well, we have a duty to comment and bring about needed reform as it affects all our individual rights and freedom of association.
The right of any association member who may be a victim of the association to court should always be there?
Umno confirms sacking of Khairy and Noh; Hishammuddin and Shahril suspended in Zahid's purge
Umno
saw a shock purge which targeted former top leaders such as Tan Sri Noh
Omar, Khairy Jamaluddin and Datuk Seri Hishammuddin Hussein,. Picture
by Yusof Mat Isa
By Zarrah Morden
Saturday, 28 Jan 2023 12:17 AM MYT
KUALA
LUMPUR, Jan 28 — Umno announced last night that former Youth chief
Khairy Jamaluddin has been sacked from the party along with former
Selangor chapter chief Tan Sri Noh Omar, citing breaches of party
discipline.
In addition, former vice-president Datuk Seri
Hishammuddin Hussein and former information chief Shahril Sufian Hamdan
were suspended for six years, along with Datuk Maulizan Bujang and Datuk
Seri Mohd Salim Sharif.
Umno
secretary-general Datuk Seri Ahmad Maslan said that another 42 members
have been sacked; five were from the Pasir Gudang division, nine from
the Putrajaya division, two from Tanjung Karang and 26 from Pahang.
“Among
their offences were running as an independent candidate, becoming
candidates for parties not Barisan Nasional (BN) and being involved in
helping rival parties during GE15,” he said in a statement.
Umno vice-president Datuk Seri Mohamed Khaled Nordin was announced as the new Johor chapter chief.
The
Annual Umno Branch Conference and Divisional, Wanita, Youth and Puteri
Branch Committee Elections will be held from February 1 to 26.
The
Umno representative meeting and Wanita, Youth and Puteri divisional
committee election along with the Wanita executive council, Youth
executive council and Puteri central executive council elections will be
held simultaneously across the country on March 11.
Registration
for candidates to contest in the divisional and central elections will
begin on February 13 and close on February 26 at 5pm. More details will
be released soon. - Malay Mail, 24/1/2023
Separating Children From Their Parents in Malaysian Immigration Depot
May Not Be In The Best Interest of the Child
Better for special units to house
families with children
MADPET (Malaysians Against Death Penalty and
Torture) welcomes Malaysian Home MinisterSaifuddin Nasution Ismail statement
that children detained at immigration depots will soon be removed from the
depots and placed in the care of organizations that specialize in child welfare.
The detaining of children with other adult
strangers is not acceptable, as children should be detained with their family
and parents (mother and father).
Rather than separating children from their
families, as proposed by the Minister, it is better to provide special detention
facilities just for families with children, rather than separating the child
from the family.
Convention on the Rights of the Child(CRC),
where Malaysia is a signatory, in
article 9(1) states that ‘1. States Parties shall ensure that a child shall not
be separated from his or her parents against their will…’ unless the court in
judicial review determines that separation is in the best interest of the
child.
Separating especially a young child from
his/her mother/father is certainly not in the best interest of the child. A
better solution is the provision of special detention facilities for families
with children.
Removal after conviction and serving
sentence?
At the moment, those at the immigration depot,
including children, have broken the law. To be removed from Malaysia back to
their country of origin may take some time – as these law-breakers will first
be charged, then serve their sentence if convicted, and then only be allowed to
return home.
As an example, for unlawfully being in Malaysia(section
6), if convicted in court, may result in
a fine not exceeding ten thousand ringgit or to imprisonment for a term not
exceeding five years or to both, and shall also be liable to whipping of not
more than six strokes.
With regards to removal from Malaysia, section 32
Immigration Act 1959/63 states ‘…(1) Any person who is convicted of an
offence under sections 5, 6, 8 or 9 shall be liable to be removed from
Malaysia by order of the Director General…’ This, on the face of it, means that
one can only be removed after being convicted and serving the sentence.
Would these children also be tried and
sentenced, serve their sentence and then only be returned to their country of
origin?
The CRC says that ‘a child means every human
being below the age of eighteen years…’. However, in Malaysia, many of these ‘children’
can also still be charged and tried.
Repatriation on
Application for certain classes
There is also in the Immigration Act the
possibility of repatriation for certain classes on application to the Director
General. Should undocumented migrants
detained with children be made an additional class, which will allow these
families with children to repatriated fast, without the preliminary requirement
of first serving their sentence before withdrawal from Malaysia.
Sadly, we do not have the needed information of
how many babies, young and older children are in the immigration depots in
Malaysia. Were they arrested with their parent and other siblings? A single
solution for all children, irrespective of their ages may not be best.
One must also look into why families and/or
individuals are coming to Malaysia. Is this because of our porous borders,
corruption or because there are employers willing to employ the undocumented? Whilst
Malaysia seems to focus on the migrants, it may be time to target corruption and
even review migrant employment policies.
MADPET is of the opinion that the best option
is that family units with children should be housed together in special facilities,
not the same as with other adult undocumented migrants.
MADPET also feels that it best that these
families be speedily repatriated, rather than being first convicted and removed
from Malaysia only after serving their sentences.
MADPET is also concerned that the Minister says
that children will be under the care of non-governmental organisations (NGO)
specialising in child welfare. It is best that even if children are to be cared
for, it must be done by the government in government facilities.
MADPET reiterates the call for the abolition of
the corporal punishment of whipping. Whipping of poor migrants who come to
Malaysia to find jobs to survive is inhumane.
Charles
Hector
For
and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
Detained children to be moved out of immigration depot
Home
minister Saifuddin Nasution Ismail said he had identified the profiles
of the children, their numbers and where they were detained.
A child pictured among migrant workers detained during an immigration raid in Kuala Lumpur in 2021. PUTRAJAYA:
Children detained at immigration depots will soon be removed from the
depots and placed in the care of organisations that specialise in child
welfare, says home minister Saifuddin Nasution Ismail.
He said he has already identified the profile of the children, their numbers and where they were detained.
Stay up-to-date by following FMT's Telegram channel
“Very
soon, I will bring them out. I have been dealing with NGOs that are
involved in providing welfare services to children,” he told reporters
last night.
The human rights commission of Malaysia (Suhakam)
had recently expressed concern about the welfare of 36 children housed
at the Lenggeng depot. The children were among 67 Indonesian migrants
rounded up in a raid on an illegal settlement in Nilai Spring on Feb 1.
Speaking
of a Bangladeshi child who was found in a container at Westport in Port
Klang last month, Saifuddin said the child would be sent home next
week.
The eight-year-old from Chittagong, Bangladesh, had
accidentally wandered into a container and was locked inside for six
days before being spotted by Malaysian authorities. He was taken to
hospital and is currently under the care of an NGO.
Saifuddin
said the ministry had managed to locate the child’s family “and I have
informed my counterpart in Bangladesh that the kid will be sent back.
All the documentation process at the embassy has also been done”. - FMT, 16/2/2023
Suhakam welcomes govt’s decision to move children from immigration detention depot
Suhakam
chairman Datuk Rahmat Mohamad said the decision is in line with
Suhakam’s recommendation to the government to implement Alternatives to
Detention for the children concerned. — Picture by Ahmad Zamzahuri
.
Friday, 17 Feb 2023 1:40 PM MYT
KUALA
LUMPUR, Feb 17 — The Human Rights Commission of Malaysia (Suhakam) has
welcomed the government’s decision to place children in immigration
depots under the care of non-governmental organisations (NGO)
specialising in child welfare.
In a statement today, Suhakam
chairman Datuk Rahmat Mohamad said the decision is in line with
Suhakam’s recommendation to the government to implement Alternatives to
Detention (ATD) for the children concerned.
“Suhakam hopes that the enforcement authorities will ensure that children will not be placed at the immigration depots anymore.
“As
a party to the Convention on the Rights of the Child, Malaysia is
obliged to ensure that the detention of a child shall be used as a
measure of last resort, in particular when they were detained together
with their parents or guardians due to immigration offences,” he said.
He
added Suhakam will continue to monitor the implementation of ATD and
advocate for the rights and well-being of all children in the country.
Home
Minister Datuk Seri Saifuddin Nasution Ismail who announced the matter
yesterday reportedly said he had already identified the profile of the
children, their numbers and where they were detained. — Bernama - Malay Mail, 17/2/2023
LETTER | Separating migrant children from their parents inhumane
Charles Hector
Published: Feb 18, 2023 10:23 AM
⋅
Updated: 10:23 AM
Malaysians Against Death Penalty and Torture (Madpet) welcomes Home
Minister Saifuddin Nasution Ismail’s statement that children detained at
immigration depots will soon be removed from the facilities and placed
in the care of organisations that specialise in child welfare.
However,
the detaining of children with other adult strangers is not acceptable,
as children should be detained with their family and parents (mother
and father).
Rather than separating children from
their families, as proposed by the minister, it is better to provide
special detention facilities just for families with children.
The
United Nations Convention on the Rights of the Child (UNCRC), in which
Malaysia is a signatory, states in article 9(1) that “state parties
shall ensure that a child shall not be separated from his or her parents
against their will…” unless the court in judicial review determines
that separation is in the best interest of the child.
Separating
a young child from his or her mother or father is certainly not in the
best interest of the child. A better solution is the provision of
special detention facilities for families with children.
Removal after conviction and serving sentence?
At
the moment, deporting those held at the immigration depot - including
children - will take some time as they have broken the law. They must be
first charged, serve their sentence if convicted, and then only be
allowed to return home.
For example, a conviction
under Section 6 of the Immigration Act 1959/63 for unlawfully being in
Malaysia may result in a fine not exceeding RM10,000 or to five years’
jail, or both, and whipping of not more than six strokes.
With
regards to removal from Malaysia, Section 32 of the Act states “… Any
person who is convicted of an offence under Sections 5, 6, 8, or 9 shall
be liable to be removed from Malaysia by order of the
director-general…”. This, on the face of it, means that one can only be
removed after being convicted and serving the sentence.
Would these children also be tried and sentenced, serve their sentence, and then only be returned to their country of origin?
The
UNCRC says that “a child means every human being below the age of
eighteen years…”. However, in Malaysia, many of these “children” can
also still be charged and tried.
Repatriation on application for certain classes
There
is also in the Immigration Act the possibility of repatriation for
certain classes on application to the director-general. Should
undocumented migrants detained along with their children be made an
additional class? It will allow these families to be repatriated fast
without the preliminary requirement of first serving their sentence
before withdrawal from Malaysia.
Sadly, we do not
have the needed information of how many babies, young and older children
are in the immigration depots in Malaysia. Were they arrested with
their parents and other siblings? A single solution for all children,
irrespective of their ages may not be best.
One must
also look into why families and/or individuals are coming to Malaysia.
Is this because of our porous borders, corruption, or because there are
employers willing to employ the undocumented?
Whilst Malaysia seems to focus on the migrants, it may be time to target corruption and even review migrant employment policies.
Madpet
is of the opinion that the best option is that family units with
children should be housed together in special facilities, not with other
adult undocumented migrants.
We also feel that it is
best that these families be speedily repatriated rather than being
first convicted and removed from Malaysia only after serving their
sentences.
Madpet is also concerned that the minister
said that children will be under the care of NGOs specialising in child
welfare. Even if the children are to be cared for, it would be best for
the government to do it within its own facilities.
Lastly,
we reiterate the call for the abolition of whipping as punishment. The
whipping of poor migrants who come to Malaysia to find jobs to survive
is inhumane. - Malaysiakini, 18/2/2023
As the discussions happening now with regard to MA63, may lead to Sabah and Sarawak getting more Parliamentary Seats - maybe one third of all Parliamentary seats, it is a matter of concern for ALL Malaysians...in all States. {The rationale then could have been to prevent the amendment of the Constitution to the detriment of Sabah and Sarawak, but then a solution to protect such rights could be a requirement of more than two-third majority, say 80% when the amendment risk existing rights of Sabah/Sarawak...)
This discussion or move must involve all Malaysians - ALL STATES in Malaysia, Anwar Ibrahim or the current Malaysian government cannot decide on their own > because also this does not concern PM Anwar and the current government.
MA63 - What exactly is that? Well, that was an agreement between the then British Colonial government(the 'United Kingdom of Great Britain and Northern Ireland'), Sabah(North Borneo), Sarawak and the 'Federation of Malaya'...and Singapore.
Mind you, it was not an agreement where the current Malaysian government was a party - but the now non-existent 'Federation of Malaya'.
PM Anwar Ibrahim and the current Malaysian Government, I believe have no right to represent the Federation of Malaya in the discussion/negotiations with Sabah and Sarawak. Did the Federation of Malaya States give PM Anwar Ibrahim and the Malaysian government the power to negotiate and agree on behalf the States in Peninsular Malaysia?
The Federation of Malaya can, in my opinion, only be represented by the various state governments and Rulers of the States in Peninsular Malaysia. PM Anwar and the current Federal Government should just sit in as 'Observers' only, as they represent the whole of Malaysia including Sabah and Sarawak.
Parliamentary seats - well, this has been an issue for some time. It is absurd that some Parliamentary Constituencies have about 300,000 constituents, and others only about 30,000. This means Malaysians have suffered inequality, in the right to be represented in Parliament. Reasonably, all Parliamentary seats ought to have about the same number of constituents. Area covered by an MP may be a factor to be considered.
the biggest parliamentary seat, Bangi has about 300,000 voters, the smallest seat Igan in Sarawak has about 28,000 voters.
We have been Malaysia since 1963, and people from various states have moved, even today registered as voters in different constituencies where they vote for their MPs. So, too have been the case of people from Sabah and Sarawak - where many today are registered voters in Peninsular Malaysia states, and may have even elected to remain in other States, not the States they were born in or their parents(or fore parents) come from. Hence, the idea of individual State entitlement to the a particular number of Parliamentary seats may be no longer relevant.
In Malaysia, sadly since formation, development have favoured certain States. In Peninsular Malaysia, the West Coast States benefited so much more compared to the East Coast States of Peninsular Malaysia. Whilst the we are talking about double-tracking and high speed trains, and LRTs - the East Coast states of Peninsular Malaysia still only have them old slow trains, with relatively poorer services. It is not only transport services, but also other matters that even sports facilities. Most towns do not have public swimming pools, and government sports facilities - even in Pahang, which have had 3 Malaysian Prime Ministers. More importantly are the welfare facilities, health, education, etc...
There are thus many issues that warrant a State-Federal discussion to ensure a more equitable distribution of wealth and resources, as such it may be BEST for a full scale Federal-State government discussion, rather than just one involving Sabah and Sarawak.
Whilst Federal Territories benefited from federal funds, many a State relied on limited State resources, noting some States simply have lesser resources than others.
There may also be a need to review the State and Federal list - which determines responsibility. Should the issue of environment matters including forest preservation/management now come under the jurisdiction of the Federal government - noting that what happens in any State impacts on all Malaysians anywhere. Climate change and its impact is serious. Should not the Federal government compensate States for the preservation of their forest?
It is true that Sabah and Sarawak may have largest number of poor - this needs attention from all other States and the Federal Government. Maybe, the responsibility of dealing with ending poverty must be made a Federal responsibility - as the Federal Government may have much more funds and resources to deal with such problems..
MA63: One-third parliamentary seat composition for Sabah, S'wak still in discussion stage - Fadillah [NSTTV]
KUALA
LUMPUR: Returning the one-third seat composition in the Dewan Rakyat
for Sabah and Sarawak as stipulated in the Malaysia Agreement 1963
(MA63) is still in the discussion stage, said Deputy Prime Minister
Datuk Seri Fadillah Yusof.
However, he said the matter will take two to three years to complete
as it needed to go through many stages including three main committees,
namely the MA63 Steering Committee; MA63 Technical Committee and MA63
Implementation Action Council, as well as involve various parties.
Fadillah said the MA63 Technical Committee chaired by him would
discuss issues related to MA63 based on topic and give priority to those
that did not involve complicated legal or technical matters.
"Once it is decided at the technical level, it will then be taken to
the Implementation Action Council for final approval before being
presented to the Cabinet to make amendments to all related laws.
"So the process is still long. We also have to get Cabinet approval,
before tabling it in Parliament which requires a two-thirds majority
support," he told reporters after appearing as a guest on RTM's 'Naratif
Khas Bersama Timbalan Perdana Menteri' programme
Earlier in the programme, Fadillah who is also Plantations and
Commodities Minister said that the one-third parliamentary seat
allocation for Sabah and Sarawak was important as it would not allow the
peninsula to amend the Constitution that may eliminate the rights of
the two states as enshrined in MA63.
In addition to the parliamentary seat allocation, he said the return
of autonomy of education and health to Sabah and Sarawak was also
currently in the discussion stage.
On the 'Sarawak First' slogan, Fadillah said it was created to
restore the spirit of the people of Sarawak to together build and
develop Malaysia.
He said although there were calls for Sarawak to leave Malaysia, the
Gabungan Parti Sarawak (GPS) leadership has expressed its commitment
that the state will remain as part of Malaysia.
– BERNAMA - NST, 1/2/2023
5 Facts You Didn't Know About The Malaysia Agreement 1963
This article is for general informational purposes only
and is not meant to be used or construed as legal advice in any manner
whatsoever. All articles have been scrutinized by a practicing lawyer to
ensure accuracy.
[Note: This article was originally written in July 2017]
This move is believed to be a result of Sarawak's request for the
July implementation to be postponed to a later date, which was denied.
But what's interesting is that Sarawak State Minister of Tourism Datuk
Abdul Karim Rahman Hamzah said that tourism was a matter to be discussed
as part of the Malaysia Agreement 1963:
“If
they do not want to defer it in Semenanjung, that is up to them. But at
least defer it in Sabah and Sarawak ... You have to respect the
Malaysia Agreement 1963. And another thing ― the state government must
have some say in the matter; maybe the state government wants part of
the tax collected to be returned." - Datuk Abdul Karim Rahman Hamzah, as quoted by The Maiay Mail Online.
In even more recent news,
current Sarawak Chief Minister Abang Johari Openg announced he was
sending a team of lawyers to London to study details of the Malaysia
Agreement:
"This
agreement is not simply an agreement; we want to get the facts right
because if we want to make a claim, we must do our homework, otherwise
we are just shooting at the target without hitting it." - Abang Johari Openg, as quoted by Malaysiakini.
So.... what's the Malaysia Agreement all about?
As a quick refresher on what you read about in school textbooks, the
Malaysia as we know it today was initially formed as the Federation of
Malaya on 31st August 1957 in accordance with the Federation of Malaya
Agreement:
"As
from the thirty-first day of August, nineteen hundred and fifty-seven,
the Malay States and the Settlements shall be formed into a new
Federation of States by the name of ... the Federation of Malaya..."
However, this did not include Sabah and Sarawak. This inclusion
actually came about later, when another agreement was signed which led
to the merger between Sabah, Sarawak and, briefly, Singapore and the
Federation of Malaya to form the present day Federation of Malaysia.
That agreement is the Malaysia Agreement 1963 (MA63), which set out the terms and conditions in which the three states agreed to merge the Federation of Malaya to form Malaysia:
"The
Colonies of North Borneo and Sarawak and the State of Singapore shall
be federated with the existing States of the Federation of Malaya as the
States of Sabah, Sarawak and Singapore in accordance with the
constitutional instruments annexed to this Agreement and the Federation
shall thereafter be called Malaysia."
Aside from being the crux of the debate for greater autonomy for East Malaysia and (now) the tourism tax issue, the MA63 is a pretty fascinating document. For instance, did you know...
1. MA63 is an INTERNATIONAL agreement
Signatories of the Malaysia Agreement arriving in London on July 12, 1963. Image from The Borneo Post.
MA63 is an international agreement, registered in the United Nations
on 21 September 1970, bearing the registration number 10760. Being an
international agreement, this means the Malaysia Parliament has no
authority to amend the terms of MA63.
What the Parliament can do is pass new law to give legal effect to an
international treaty. For example, the Parliament passed the Malaysia
Act 1963 to give legal effect to MA63. Certain parts of the Federal
Constitution have also been amended to incorporate the terms of
agreement made between Sabah, Sawak and Malaya during the formation of
Malaysia.
2. Unlike Malaysian laws, MA63 cannot be changed in the Malaysian Parliament
The only way the terms within MA63 can be amended is for all the signatory parties to sit down together as peers and amend it.
This is due to the fact that MA63 is an international treaty, not a
piece of law that the Parliament has legislated.As mentioned in the
previous point, the Parliament has no legal right to amend an
international treaty.
In practice this would mean Sabah, Sarawak, the federal government
and the United Kingdom would have to sit together and renegotiate the
terms in order to change it.
Unlike the Federal
Constitution which can be amended by the Malaysian Parliament, MA63 and
IGC Report can never be amended by anyone, unless the territories that
originally signed it decided once more to return to the negotiation
table and re-negotiate a new future- Zainal Ajamain, Sabahan rights activist & author, as quoted by The Malay Mail Online
3. Sabah and Sarawak have the authority to enforce MA63 on their own
Tan Sri Adenan Satem. Image by Norman Goh from Malaysiakini.
Article 8 of MA63 says that Sabah and Sarawak can take their own
measures to enforce and implement MA63, without having to amend the
Federal Constitution.
Article 8, Malaysia Agreement 1963 (in part):
The
Governments of the Federation of Malaya, North Borneo and Sarawak will
take such legislative, executive or other action as may be required to
implement the assurances, undertakings, recommendations….in so far as
they are not implemented by express provision of the Constitution of
Malaysia
If the motion went ahead, it could be seen to be as the Sarawak state
government using its right under Article 8 of MA63. Instead the state
government opted on a diplomatic approach with the federal government on
resolving the issue of unfulfilled rights under MA63.
4. Sabah and Sarawak has extra autonomy to make decisions because of MA63
Sabah and Sarawak joined Malaya in forming Malaysia with the
understanding that there will be guarantees within the Federal
Constitution to protect their rights and privileges.
These guarantees and safeguards have since been inserted into the
Constitution and relevant laws. Some of these privileges include:
Non-Sabah and Sarawak lawyers do not have the right to practise in Sabah and Sarawak courts (Article 161B).
As a result of Article 161B, lawyers from Peninsular Malaysia are not
allowed to practise in Sabah and Sarawak without applying for a licence
from the High Court of Sabah and Sarawak. Even if they have the
obtained the licence, they would still have to apply for a work permit
from the state Immigration Department.
Sabah and Sarawak still have the right to use English in its state assembly and court proceedings (Article 161(1) and (2)).
Article 161(1) forbids any law that restricting Sabah and Sarawak's
right to use English for official purposes until after ten years from
16th September 1963.
As of today the National Language Act 1963/1967
has not yet come into force in Sarawak. This means that it is still not
mandatory for the state to use Bahasa Malaysia in government
departments and state ministries.
Section 1(2), National Language Act:
This
Act shall come into force in the States of Sabah and Sarawak on such
dates as the respective State Authorities may by enactments of the
Legislatures of the respective States appoint and different dates may be
appointed for the coming into force of different provisions of this Act
in those States.
5. Sarawak and Sabah has its own immigration law
Immigration counter in Kota Kinabalu, Sabah. Image from FamousChris.
Sarawak and Sabah has the power to regulate immigration to their
states. In fact, Malaysians from the Peninsula require a permit if they
want to work or study in Sarawak or Sabah. Those who are on a short
visit to Sarawak and Sabah will have to fill an immigration form for a
90-day visit pass.
This restriction is laid in in Section 66 of the Immigration Act 1959/1963, and was included because of MA63.
Section 66(1), Immigration Act 1959/1963 (in part):
"...
a citizen shall not be entitled to enter an East Malaysian State
without having obtained a Permit or Pass in that behalf unless—
Maximus
Ongkili says the call for Sabah and Sarawak’s representation in the
Dewan Rakyat to be increased is up to the Election Commission to
determine. (Bernama pic)
KOTA SAMARAHAN: Sabah and Sarawak affairs minister Maximus Ongkili
has highlighted 15 issues being monitored by the special council on the
Malaysia Agreement 1963 (MA63) which have not been resolved.
He said these include the state’s authority over health issues, the
remaining legislative authority on the environment, the labour force in
Sabah and Sarawak, and the release of land given ownership rights to the
federation in Sabah and Sarawak.“Most have already been passed to the (special council) committee.
There are ongoing matters still under discussion. For example, the issue
of grants under Act 112 (1) of the Federal Constitution (Increase of
Posts) with Sarawak.
“Discussions
have started but there has been no decision yet on how much there is to
be reviewed regarding the refund (for oil royalties and petroleum cash
refunds).
“The additional Sabah and Sarawak parliamentary seats are also still
under discussion,” he said after attending the “1963 Malaysia Agreement
Awareness Forum – MA63: From the Perspective of the Millennial
Generation” at Universiti Malaysia Sarawak (Unimas) here.
Among other issues that have not been fully resolved is the review of
special grants (Article 112D of the Federal Constitution) for Sarawak,
as well as the gas and electricity regulatory authority for Sabah.
Asked whether the ratio for the distribution of 35% of the
parliamentary seats in Sabah and Sarawak should be maintained instead of
basing it on the state’s population, Ongkili said it was up to the
Election Commission (EC).
He said the more important thing is that the goal for the two states
to regain the percentage of seats as stated in the MA63 is achieved.
“The main objective is to return the 30% to 35% rights. The ratio
used by the EC focuses on population and urbanisation. However, the
important thing is that aspirations and terms as stated in MA63 are
restored,” he said.
He
hoped that more programmes explaining the formation of Malaysia and the
goals of MA63 can be held at institutes of higher education, whether in
the peninsula or Sabah and Sarawak. - FMT, 19/9/2022
Pursue decentralisation, not over-representation for Sarawak and Sabah
Share
The news that Sarawak government’s claim for one-third of the seats
in the House of Representatives is still at the discussion stage and
that it would take two to three years for a resolution comes as no
surprise to the Rise of Social Efforts (Rose).
After all
changes in the composition of the House of Representatives in the
federal legislature would mean a constitutional amendment to Article 46
of the Federal Constitution, and other states would certainly want to
have a say on the number of members of Parliament as well.
Fadillah
Yusof is of the view that the “one-third parliamentary seat allocation
for Sabah and Sarawak was important as it would not allow the peninsula
to amend the Constitution that may eliminate the rights of the two
states as enshrined in MA63 [Malaysia Agreement 1963].”
We
therefore surmise that for Fadillah and Gabungan Parti Sarawak, the
endgame of increasing Sabah and Sarawak’s parliamentary seat allocations
is for constitutional safeguards for both states.
Some uncomfortable assumptions underpin this demand, namely:
that the more MPs Sarawak has in Parliament, the better our interests will be protected
that all Sabah and Sarawak MPs (in government and in opposition) will vote the same way on all parliamentary bills
that
all MPs from all Malayan states will vote the same way when it comes to
making amendments in the Constitution affecting Sabah and Sarawak
rights
These assumptions somehow have not been addressed by
GPS in their demands for more seats. They fail to inform that
constitutional safeguards were built into the founding documents of
Malaysia starting from the Inter-Governmental Committee Report, the
Malaysia Agreement 1963 and later in Part XIIA and in particular Article
161E, which contain the provisions of “Safeguards for constitutional
position of states of Sabah and Sarawak”.
In
other words, does having more MPs mean better policies made and basic
needs met for the people of Sabah and Sarawak? What would make
Sarawakian voices or interests heard and addressed would be MPs who
truly play their role as lawmakers whether they are in the front bench
(ministers in the ‘unity government’) or as members of the opposition.
We hope to see policies that are effective and also sensitive to the
needs of all who reside in Sarawak.
We
are of the view that this demand for one-third of the seats has no
historical or legal basis or support. There is nothing in MA63 that
guarantees Borneo states one-third of representation. The 1962 IGC
Report that led to MA63 did guarantee 25% of the seatss for Sarawak and
Sabah in relation to the total seats in House of Representative but only
for seven years after the formation of Malaysia. And that period
expired in 1970! There were no further provisions for the subsequent
years, and we will have to fall back to general provisions based on the
population of the electorates.
Furthermore, in terms of
representation in Parliament, Sabah and Sarawak with 25% of the seats
are currently over-represented as our total electorate is only one-sixth
(16-17%) of the total Malaysian electorate. This means that we are
already not following the principle of one person, one vote, one value.
As
an example, the biggest parliamentary seat, Bangi has about 300,000
voters, the smallest seat Igan in Sarawak has about 28,000 voters. Each
are represented by one member of Parliament. If Sabah and
Sarawak seats are increased to 35%, the over-representation would become
greater. It would not augur well for the upholding of the democratic
principle of equality.
For
the above reasons, we support the recommendation for the Senate or
Upper House of Parliament to be reformed to include elected members so
that they will have real veto powers. That way Sabah and Sarawak rights
and interests can be protected by these senators when there is a need to
exercise veto powers.
Sarawak state is due for a constituency
boundary redrawing exercise under the requirements of the Constitution,
as the last one was carried out eight years ago in 2015. Groups of
voters of any affected constituencies are empowered under the 13th
Schedule to make objections to the recommendations proposed by the
Election Commission on the boundaries of their constituency. The
redrawing of boundaries was preceded by an increase in the number of
state assembly members in the state legislature in the last exercise.
Needless
to say it is therefore more worrying that Fadillah also revealed a
request by Sarawak for administrative autonomy over health and education
is also at the discussion stage. However he did not elaborate further
on the reasons why. Many local Sarawakian leaders and politicians had
been calling for such health and education autonomy prior to the state
elections. – Rose
The
views expressed in Aliran's media statements and the NGO statements we
have endorsed reflect Aliran's official stand. Views and opinions
expressed in other pieces published here do not necessarily reflect
Aliran's official position.= ALIRAN
When Israel attacked Palestine recently, many would have wanted to exercise their right to protest publicly immediately - BUT the law, that unjustPEACEFUL ASSEMBLY ACT 2012 currently says we cannot do so, not until we submit a NOTICE to the police at least 5 days before the intended peaceful assembly... PH Plus after GE14 'betrayed us' as the failed to remove the legal requirement of notice - all they did was to reduce the notice period from 10 days to 5 days.
Then, them PH leaders and MPs 'broke the law' without giving the required absurd 5 day notice - when they assembled in Dataran Merdeka on 2/8/2021. Remove the 5 day notice requirement - as many a time the right to Peaceful Assembly have to be exercised fast - to be still relevant. In fact, repeal the PEACEFUL ASSEMBLY ACT 2012.
De facto opposition leader Datuk Seri Anwar Ibrahim and former prime
minister Tun Dr Mahathir Mohamad also voiced their dissatisfaction over
the blockade by the police...After being prevented from entering Parliament by police, several
opposition lawmakers from PKR, DAP and Amanah instead gathered at
Dataran Merdeka...The opposition MPs finally dispersed after a face-off with Federal Reserve Unit (FRU) personnel in riot gear.
Peaceful Assembly is a human right - and the POLICE should never be the 'PERMISSION GIVER' ...Police duties should be confined to protecting the rights of persons to peacefully protest - nothing else. If there are counter-protests, they keep 2 groups separate to safely exercise their rights..
Before the PEACEFUL ASSEMBLY ACT 2012, although it was then an offence for more than 3 or more to assemble and protest, things may have been better for the right of peaceful assembly in Malaysia. Then, when the people exercise their right to peaceful assembly, the police come and then ask the people to disperse after some time - and then ...
When Israel does anything 'evil' against Palestine, it was not uncommon to see people after Friday prayers assembling before the US embassy to exercise their right of peaceful assembly in numbers, even handing over memorandum of protest >> and then, they peacefully disperse going back to work. [The interesting thing that I have observed about Malaysians when they exercise their right of peaceful assembly is that they are not only 'peaceful' but also responsible - they do not generally protest during working hours, or cause any trouble..]
With the advent of the PEACEFUL ASSEMBLY ACT 2012, this RIGHT has been much diminished. Now, they want 'the organiser' to identify themselves and take responsibility for others that join - ABSURD, as most times, there are no such one organizer - word may go out, that there will be a protest and people just gather and protest peacefully. Who were the 'organisers' of them Saturday afternoon protests in KL in 1998 that saw the participation of about 10,000 during the so-called 'REFORMASI protest' - there were no one, at no one that was ever claimed to be. It was just the people...So, the insisting of the organizer identifying himself to the police before the event, undertaking to pay up for cleaning, etc all are a deterrent to the rights of peaceful assembly in Malaysia.
Anwar and the PH led coalition government must immediately repeal the PEACEFUL ASSEMBLY ACT 2012..
A 18 year old Malaysian have the right to VOTE but NO RIGHT to organize and participate in a Peaceful Assembly - odd, is it not?
PEACEFUL ASSEMBLY ACT 2012, Section 4 Right to organize assembly or participate in assembly
(1) The
right to organize an assembly or participate in an assembly peaceably
and without arms under this Act shall not extend to the following:
(a) a non-citizen;
(b) an assembly held at any prohibited place and within fifty metres from the limit of the prohibited place;
(d) in relation to the organization of an assembly, a person below the age of twenty-one years; and
(e) in relation to the participation in an assembly other than an assembly specified in the second schedule, a child.
There are so many reason why the draconian PEACEFUL ASSEMBLY ACT 2012 ought to be repealed...and, I may deal with it in another post later.
Roads to Parliament closed, opposition assemble at Dataran Merdeka and demand for PM's resignation
Surin Murugiah
/
theedgemarkets.com
August 02, 2021 12:12 pm +08
Roads to Parliament closed, opposition assemble at Dataran Merdeka and demand for PM's resignation. (Photo by Bloomberg)
KUALA
LUMPUR (Aug 2): Major roads leading to the Parliament building in Kuala
Lumpur have been closed, while opposition Members of Parliament (MPs)
were prevented from entering Dewan Rakyat.
In separate live feeds on social media, opposition MPs including
Nurul Izzah Anwar, Segambut MP Hannah Yeoh and Kota Kinabalu MP Chan
Foong Hin said the roads to Parliament were closed despite the
postponement of today's sitting.
Dewan Rakyat was ordered shut for two weeks from July 29 after Covid-19 cases were detected among attendees last week.
After being prevented from entering Parliament by police, several
opposition lawmakers from PKR, DAP and Amanah instead gathered at
Dataran Merdeka.
De facto opposition leader Datuk Seri Anwar Ibrahim and former prime
minister Tun Dr Mahathir Mohamad also voiced their dissatisfaction over
the blockade by the police.
Calling for the resignation of Prime Minister Tan Sri Muhyiddin
Yassin, the opposition MPs criticised the move by the ruling government
led by Muhyiddin to revoke the Emergency Ordinances despite denial by
Yang di-Pertuan Agong that he had given his consent to the revocation.
The MPs then proceeded to Dataran Merdeka.
Among the opposition MPs marching to Dataran Merdeka were Bagan MP
Lim Guan Eng, Amanah president Mohamad Sabu and Semporna MP Datuk Seri
Mohd Shafie Apdal.
Using loud hailers, the MPs stressed that the government led by Muhyiddin had acted in bad faith.
Anwar said the government had disobeyed the wishes of the King as well as disregarded the public, and thus must resign.
Meanwhile, Shafie said the Dewan Rakyat Speaker had undertaken that
questions about the Emergency Ordinances will be answered today.
"But Parliament is shut, using Covid-19 as an excuse.
“Legally, we have the right to be in Parliament," he said.
Yeoh, meanwhile, tweeted that the opposition MPs planned to debate
the emergency proclamation and its ordinances in Dewan Rakyat but were
blocked by police.
"An MP with a walking stick, [another] seven-month pregnant as well
as those aged above 90 came along. This is our duty," she said.
The opposition MPs finally dispersed after a face-off with Federal Reserve Unit (FRU) personnel in riot gear. - Edge Markets, 2/8/2021
ICS
Walk for Judicial Independence participants were not falsely imprisoned by human chain, says police
By NURBAITI HAMDAN Nation Wednesday, 11 Jan 2023 7:18 PM MYT KUALA LUMPUR: The human barricade formed by the police during the Walk for Judicial Independence in June last year was to restrict the participants from marching to the Parliament and not to falsely imprison them, says the police. Even so, the police said it had allowed up to 30 people to continue with the march after several rounds of negotiations.
This was the authorities' contention in a statement of defence they filed on Dec 22, last year, against the Malaysian Bar's lawsuit.
The defendants claimed that the barricade was not to restrict their movement to other places, with exception to the august house.
"The plaintiffs were never prevented from leaving the assembly area.
"They were not besieged and they were free to enter and leave the Padang Merbok parking area.
"They were only restricted from marching to the Parliament," the statement said.
The defendants claimed that the Bar's allegation of "false imprisonment" was a "misstatement under the law".
The defendants further claimed that the police had succeeded in stopping the march after it was told that no procession was allowed.
The plaintiffs, however, had negotiated with the defendants to carry on with their programme and the defendants compromised by allowing 10 of the participants to continue the march.
"However, the plaintiffs continued to push the police to allow a procession for all the participants.
"The police subsequently allowed for 20 people and later, for 30 people, after another round of negotiations," the statement said.
The defendants also stated that no arrests were carried out by the police during the assembly and all its actions were lawful.
They also contended that they received feedback from nearby SK Sultan Hisamuddin Alam Shah, Aswara and Bank Negara, which objected to the assembly, prior to the event taking place.
On Oct 20, 2022, the Malaysian Bar and its office bearers sued the police and the government for alleged wrongful detention when they were barred from proceeding with their "Walk For Judicial Independence" to Parliament on June 17, 2022.
The walk was organised as a peaceful protest against the Malaysian Anti-Corruption Commission's (MACC) investigations into Court of Appeal judge Justice Datuk Mohd Nazlan Mohd Ghazali, who convicted former prime minister Datuk Seri Najib Razak in the SRC International Sdn Bhd case.
The four office bearers were Bar president Karen Cheah, vice-president Mohamad Ezri Abdul Wahab, secretary Anand Raj R. Balasupramaniam and treasurer Murshidah Mustafa.
They named Noor Dellhan Yahaya (in his capacity as the officer in charge of the Dang Wangi police district), Nuzulan Mohd Din (in his capacity as the head of criminal investigation at the Dang Wangi district headquarters), the police, the Inspector-General of Police, the Home Minister and the government of Malaysia as the first, second, third, fourth, fifth and sixth defendants respectively.
According to the statement of claim, the plaintiffs said about 500 members of the Malaysian Bar assembled peacefully at Padang Merbok for the march between 7.45am and 10am on June 17, where they planned to march to Parliament to submit a memorandum to the then deputy minister (Parliament and Law) in the Prime Minister's Department, Datuk Mas Ermieyati Samsudin.
The plaintiffs said the police had placed plastic barriers around Padang Merbok to prevent the participants from entering or passing through.
The plaintiffs claimed that the participants were falsely restrained and imprisoned between 10.35am and 11.15am by the defendants, when they were forcibly confined at the Padang Merbok car park within the barricades constructed by police under the direction of the first defendant.
As a result, the plaintiffs claimed to have suffered loss of freedom for 40 minutes, and their constitutional rights under Articles 5, 8, 9 and 10 of the Federal Constitution were violated.
They further claimed that the defendants breached their statutory duties under the Peaceful Assembly Act 2012 and committed misfeasance in public office.
The plaintiffs are claiming special damages of RM19,449, and unspecified general, aggravated and exemplary damages as well as other reliefs deemed fit by the court.
Case management has been fixed for Thursday (Jan 12). - Star, 11/1/2023
