Malaysians MUST oppose the US-Malaysia FTA

Dear All,

I just wanted to draw your attention to the Free Trade Agreement that the US and Malaysia will begin negotiating come June. The US has signed several similar agreements with other countries, the closest to home being the recent attempt with Thailand which was met with a 10,000 people strong demonstration by the citizens of Thailand. (The Thai-USA negotiations are currently on hold because the Thai Government is in caretaker mode).

These agreements are not just about selling another Nike shoe or the opening of the US market to our products or people – for the US it is all about securing market share and having a strong economy (no country ever won a war by being poor) through being allowed into our countries on an equal footing with Malaysians, the controlling of our natural resources and our sovereignty.

These agreements are of a new breed and are very wide ranging, dealing with issues such as government procurement, investment, intellectual property rights. From the word go it is hard for Malaysia to effectively negotiate because of a lack of local data on various sectors in this country. For example, in the FTAs a negative list is used for services and investment, meaning that every sector is liberalized unless protected by being listed on the negative list. This is not the case under WTO where developing countries can choose the sector it wishes to liberalise and how much. Furthermore, based on existing USFTAs, all of Malaysia’s tariffs on goods coming from the USA whether they are manufactured products or agricultural will have to be reduced to 0%. This and the negative list would very much kill infant industries if not properly protected, plus we would have to be soothsayers to know what industries need protecting in the future. We will be tying ourselves down almost blindly and a USFTA would make it virtually impossible to move up the value chain and become a more technologically advanced economy.

There is one thing that is absolutely clear – Malaysia should not sign the agreement. If at all Malaysia negotiates with the US it should be at WTO level where the developing countries can come together and protect themselves. What the US is trying to do through these bilaterals is to break the resistance of developing countries by entering into one on one agreements with us which are more onerous than anything asked for under WTO.

None of the countries which have signed the FTA with the US have benefited, not even Australia. Why do they sign then? For the developing countries it is pressure eg US now gives preferential tariffs to a lot of third world countries at its sole discretion which it can be revoked at anytime – it holds these against those who resist; another reason is stealing a march on neighbours – here, the intention is to be the first to get the benefit of preferential treatment by the US, but this benefit will be eroded under WTO in time and also when other countries enter into similar FTAs with the US.

Why is the FTA so bad – won’t it mean better goods and services, lower prices and advancement due to competition, industrialization and globalization? The answer is a flat out no. A lot of the theories argued in favour of opening markets fully really do not have any proven basis economically and what is reported in the media is not what it really is.

There will be less competition, de-industrialization if the FTA comes into force. What there will be is among other (many many more) things, more expensive medicines, health treatments and the control of our natural resources by the US. The US has a standard model FTA that it uses and based on an analysis of past FTAs we have found the following to be true:

The US will seek to have stronger patent laws which will allow it to patent its inventions here for longer periods of time. This means for eg. in the case of medicines – significantly delayed introduction of generic versions of medicines which is what brings the prices down. Malaysia has a fantastic generic medicine industry and this will be strangled if a USFTA is signed. A USFTA will mean more medicines are patented for longer and even when there is no patent, another form of monopoly called data exclusivity will stop generic medicines being sold. The free trade agreement will not encourage competition it will kill it – the persons who drafted the provisions in relation to this issue are the big pharmaceuticals in the US and they have only one thing on their mind – profits.

The US will also seek to patent – health treatments and methods – imagine the way an operation is carried out being patented, the method which a doctor diagnoses you being patented – they tried this in the US but had to do away with it because everyone started suing each other. So the US requires of us what they don’t require of their own citizens.

The US will also seek to patent animals and plants for eg neem and basmati rice in India – they didn’t succeed. If they succeed in doing this, it means they will control what is a natural resource and our farmers may not be able to plant padi without paying royalty.

The difference of price between patented medicine and generic price in Malaysia can be as much as 1044%. One example – drugs for AIDS patients used to cost as much as RM1,500 per month, now costs on RM72-00 per month. For this group, for asthma patients, for diabetic patients – it is a matter of life and death.

Under the FTA – the US will require us to reduce all tariffs to 0. We currently have 40% tariffs on rice to help our farmers survive. Reducing this to 0 will mean that our rice farmers will have to fight much cheaper US imports (as agriculture is heavily subsidized in the US). How will they survive? With larger subsidies from the government? But how can the government afford to pay higher subsidies when it has no more income from tariffs on imports from the USA? How will it make up this income when it loses it? Higher taxes on its citizens, higher oil prices?

There are also other provisions – one of the most insidious to me being the “expropriation” clause. What this clause requires is this: that the Malaysian government cannot do anything that will negatively impact on a US investment in Malaysia. If it does the Malaysian government can be sued in the international court by a US individual – not the US govt - but any US individual who feels his investment has been affected can sue the govt. And if we do not comply with paying up compensation, the US can impose retaliatory tariffs against our country. How this translates is this – say the US wants to build a toxic waste dump in Malaysia and we refuse on grounds of public health – it may be possible that that rejection will amount to expropriation. What it also means is this –that every time we want to draft policy, pass a bill, send out a surat pekeliling we have to think – will this breach the FTA? Is that not a loss of sovereignty? Our ability to live and breathe as Malaysians as we choose will be a thing of the past. Existing laws will have to be amended – there is a case in Guatemala arguing that it will have to amend 130 provisions of its CONSTITUTION to comply with what was agreed under its USFTA.

The point is – the government is negotiating an agreement which experience shows only benefits the US, yet it has been represented to the US that the Malaysians will not oppose the agreement. How can we in fact when the Malaysian public is not being told much? More information is posted on http://www.ftamalaysia.org/ and there is an excellent issue of Resurgence, a magazine by Third World Network that has good coverage on the FTA experiences of other countries and a good explanation of the issues involved. Let me know if you want a copy. The latest copy of Utusan Konsumer which will be available in Popular bookstores next week or on the FTA website above, carries the issues too. You can also check out the TWN website at http://www.twnside.org.sg/ and the latest happenings in Parliament on Mr. Lim Kit Siang’s blog http://blog.limkitsiang.com/

The government needs to show its people the cost benefit analysis which it has done to justify the FTA. We need information and we will only get it if we ask.

The government is intending to complete the agreement by the end of the year – the rush is because Bush has fast track approving authority (ie agreement cannot be amended by Congress) which will end mid next year. The one negotiating the agreement for the US is the US Trade Representative and he cannot promise many things most importantly of which are VISA requirements which is the role of Congress. Even if we succeed in getting a VISA, many professionals will not be able to work in the US if they do not get their qualifications recognised which is usually not controlled by the Federal but State govt. Tradewise – what have we to give to the US? We are US’ 18th trading partner while they are our no. 2 importer. Trade sanctions against the US will not be more than an ant bite to them, but trade sanctions against us may well be devastating.

See write up on the issue in Asia Times and an excerpt from Mr. Lim’s blog.

There is a petition on the http://www.ftamalaysia.org/ website (also attached herewith) – it would be great if you could sign it and send it off to the PM.

Karina Yong
Legal Advisor
Third World Network/ Consumers' Association of Penang
No. 10, Jalan Mesjid Negeri
11600 Penang
Tel No.: 04-829 9511; Fax No.: 829 8109

LAWYERS TURN UP IN PARLIAMENT TO SUPPORT MOTION PROTESTING MALTREATMENT OF LAWYERS BY POLICE

LAWYERS TURN UP IN PARLIAMENT TO SUPPORT MOTION PROTESTING MALTREATMENT OF
LAWYERS BY THE POLICE.

Today, the 10th of May 2006, about 25 lawyers turned up in Parliament in support of an emergency motion put in by member of the Bar and Member of Parliament for Ipoh Barat, Mr M. Kulasegaran over the harassment, arrest and detention of lawyer s. Balasubramaniam. The motion also referred to incidents involving other lawyers like P. Uthayakumar, Leonard Teoh, Zainur Zakaria and Cheah Kah Peng.

Kula’s motion also highlighted the plight of Kuala Lumpur lawyer Rajasingam, who was arrested on 1/3/2006, for allegedly using his handphone whilst driving. Rajasingam said that he was handcuffed and then beaten by police. He was then charged under the Road Transport Act for refusing to give in to their unreasonable demand that he produce a urine sample. After being charged in court and released on bail, he was immediately re-arrested allegedly for intimidating the police.

This morning at about 10.00am, despite the seriousness of the issue, the Speaker rejected Kula’s emergency motion without calling the matter up for debate.

Later, at about 1pm, M. Kulasegaran called for a press conference which was attended by the lawyers present. Mr Karpal Singh, Ms Teresa Kok and Wan Azizah were some of the other members of parliament present. Ms Ambiga Sreenevasan, the Vice President of the Malaysian Bar, also spoke. Thereafter, Rajasingam, S. Balasubramaniam and P. Uthayakumar also narrated their shocking treatment by the police.

Amongst the lawyers present was Mr George Varughese (the Selangor Bar Chair), Mr Lim Chee Wee (the Kuala Lumpur Bar Chair), Ms Chee Swee Yoke, Mr N. Surendran, Mr Annou Xavier, Rashid, Cik Latheefah Koya, Mr Richard Wee, Mr Rajpal Singh, Mr Sivarasa Rasiah, Mr Ravindra Kumar, Mr Colin Pereira, Mr Ragunath Kesavan, Mr Edmund Bon, Mr Puravalen and Charles Hector.

This was yet another great day for the Malaysian Bar when once again lawyers turned up in numbers during a working day on very short notice to show support for the plight of fellow lawyers who had been harassed, beaten, arrested and/or detained by the police.

It all started on 27th April 2006 with the handing over of a memorandum of protest to the Petaling Jaya OCPD by about 40 lawyers over the manner in which lawyer S. Balasubramaniam was harrased, arrested and detained by the police on 18th April 2006 at this police station when he was there carrying out his duties as a lawyer. Bala was arrested, deprived of his identity card and was detained for about 3 hours before being released.

On 2nd May, the Selangor Bar and Kuala Lumpur Bar representatives met with the Chief Police Officer of Selangor.

The Malaysian Bar Chairperson, Mr Yeo Yang Poh has written a letter to the Inspector General of Police seeking an urgent meeting with the IGP to raise this matter, but to date, even after a reminder letter, the IGP has yet to set a date for this meeting, let alone respond to the President. This omission and failing on the part of the IGP is inexcusable and totally disrespectful to the President and the Malaysian Bar. Lawyers are very disturbed over this state of affairs. Lawyers want the meeting between the President of the Bar and the IGP to take place very soon, and this was one of the issues raised by the Vice President at the Dewan Rakyat press conference today.

This concerns rights of a lawyer to carry out his duties to the lay client without police interference and intimidation. We must not tolerate or accept a violation of this right which is fundamental to the cause of justice.

If the IGP is not willing to meet up with the President of the Bar, then this matter must be taken up to the Minister or the Prime Minister.

The attitude and behaviour of the Malaysian police further emphasizes the immediate need for the setting up of an Independent Police Complaints and Misconduct Commission (IPCMC).

Charles Hector
10th May 2006

MADPET - OPPOSE DEATH PENALTY FOR WATER OFFENCES

MEDIA STATEMENT – 10/5/2006

OPPOSE DEATH PENALTY FOR WATER OFFENCES

MADPET (MALAYSIANS AGAINST DEATH PENALTY AND TORTURE) calls for the immediate removal of the clauses imposing the death penalty in the Water Services Industry Bill 2006, which came up for second reading in Parliament today(10/5/2006).

Section 121, under Part X : General Offences and Penalties of this Bill, which deals with the offence of water contamination provides that “…a person who contaminates or causes to be contaminated any watercourse or the water supply system or any part of the watercourse or water supply system with any substance (a) with the intention to cause death; (b) with the knowledge that he is likely to cause death; or (c) which would likely endanger the life of any person ….[and]… where death results shall be punished with death or imprisonment…”

The Malaysian Bar, a body representing over 12,000 Malaysian lawyers, at its 60th Annual General Meeting held on 18/3/2006 passed a Resolution calling for the abolition of the death penalty in Malaysia, an immediate moratorium on all executions pending abolition and the commutation of the sentences of all persons currently on death row.

It must be pointed out that a recent television poll done by RTM 2 during the Hello on Two programme on 7/5/2006 showed that 64% of Malaysians are for the abolition of the death penalty in Malaysia. This program has an estimated audience of 80,000. It is thus important that members of Parliament, the representatives of the people respond to the aspirations of Malaysians and remove the death penalty from the Water Bill and all other laws of Malaysia.

It is ironic that at a time when the nations of the world are rapidly moving towards abolition of the death penalty, Malaysia is once again unnecessarily and imprudently extending the range of capital offences. An average of three countries have abolished the death penalty each year over the last decade 122 countries have abolished capital punishment in law or practice as opposed to 74 countries which retain the death penalty.

We therefore call on all Parliamentarians, from both the Barisan National ruling coalition and the Opposition, who value human rights, justice and mercy to immediately cause the removal of the provisions that provide for the sentence of death.

N. Surendran
Salbiah Ahmad
Charles Hector
for Malaysians Against Death Penalty and Torture (MADPET)
10th May 2006

Rights and duties in pursuing justice

Rights and duties in pursuing justice
08 May 2006, New Straits Times
YEO YANG POH

The police, prosecutors, defence lawyers and judges all play a role in ensuring a fair judicial system. Thus, arresting a lawyer who’s carrying out his duties, without justifiable reason, is tantamount to abuse of power, writes YEO YANG POH.

A LAWYER receives information that a client has been detained by the police. He goes to the police station in which the client is believed to have been detained. He wants to provide legal services to the client. That is his job, his right, his obligation.

To do so, he requires co-operation from the police. He needs information, such as confirmation of the arrest, reason for the arrest, information regarding any proposed remand application, and access to his client. If he receives sufficient information and co-operation, he will be able to carry out his duties.

However, if reasonable co-operation is not forthcoming, the lawyer will be "stuck", and unable to proceed. Being stuck is not a nice feeling. Then, the lawyer may usually do one of two things. He may resign himself to the situation of helplessness, and accept that his client will have to go without legal assistance in the meantime. Or, he may persist in demanding sufficient co-operation, and refuse to budge, insisting that it is within his (and his client’s) rights to be given proper treatment and co-operation.

If the lawyer opts for silent resignation, and walks away without argument, there will be peace and quiet in the police station. But justice will be in tumult. The lawyer who retreats at the first hurdle would not have given his best. The client, who deserves legal assistance, will have to suffer without it for the time being. The justice system that is supposed to ensure fairness every step of the way will have failed this detainee.

Unfortunately, apart from the few persons involved in the incident, the rest of society carries on happily, oblivious to such an event and its significance. And, if incidents of this nature are frequent rather than isolated, not only is justice in tumult, but it is in secret tumult, away from public view.

On the other hand, if the lawyer chooses to persist in his pursuit to serve his client, and insists on being granted co-operation, then, if the police refuse to budge, the tranquility of the police station would be broken. A "situation" will arise. Words will be exchanged, perhaps harsher ones as the incident progresses. Frustration will form, and worsen. Emotional temperatures will rise.

Now, imagine that the police not only stand their ground, but decide to arrest the lawyer, possibly to stop him from being "difficult". With the arrest, tranquility returns to the police station.

But justice will be in tatters.

Refusing the demands of a lawyer is one thing, the reasonableness or otherwise of which will depend on the facts of a case. But arresting him for no apparent reason other than wanting to put an end to his demands is something else, and something unacceptable.

What is hoped to be achieved by such an arrest? Is it to teach the lawyer a "lesson"? What lesson might that be? A lesson about who has the power in the circumstances and who has no choice but to be subject to that power? Or, is it to make an example of him, so that other lawyers will in future think twice before being "difficult", never mind the pursuit of their duties?

Arresting a lawyer in the course of his duty in the circumstances described above cannot be justified without the most exceptional and demonstrable reasons, reasons that are incumbent upon the police to illustrate convincingly. Anything short of that makes the arrest an abuse of power.

It is an abuse of power that amounts to an obstruction of the course of justice.

The police, prosecutors, defence lawyers and judges are all part of our criminal justice system. Each plays a different role, but all of them are essential to make the system a fair, meaningful and effective one. Their roles are of equal importance, none of which is subservient to another. Any unwarranted prevention of any of them in the performance of their duties will affect the integrity of the entire system, and is thus an obstruction of the course of justice.

That is why, when recently a member of the Bar, one S. Bala, was arrested and detained at the Petaling Jaya police station when he went there to provide legal assistance to his clients, lawyers were outraged.

Forty lawyers staged a peaceful demonstration at the station, and handed a protest note to the OCPD’s representative, as the OCPD had declined to receive the document in public. Representatives of two state Bars met the state CPO, and registered their protest. A meeting with the Inspector-General of Police has been sought by the Bar Council to discuss the incident and related matters.

The Malaysian Bar’s message is clear. No one should obstruct justice. Lawyers must be allowed full latitude to play their crucial role in the justice system, and to carry out their duties without intimidation.

The police have promised an investigation. However, not- withstanding the best of intentions, an issue remains concerning the suitability and credibility of an internal investigation. It is natural for those concerned, if they had abused their power, to deny the same unless and until incontrovertible evidence becomes available.

It is also not at all easy to expect any enforcement agency to act against its own personnel without the slightest wish, consciously or subconsciously, to try not to portray the department in an unfavourable light.

This brings us to what most Malaysians know and believe the country needs, namely that no real improvement and credibility will be achieved with regard to the police force unless and until the IPCMC (Independent Police Complaints and Misconduct Commission) is established in substantially the same manner as proposed by the Police Commission.

If things are by-and-large fine and police abuse is rare, as opponents of the IPCMC would like us to believe, the IPCMC will reveal the same and place the police in the good light that they deserve.

If it is otherwise, the IPCMC will bring about changes, and restore credibility and confidence in the police force. Either way, the IPCMC will serve its purpose.

Either way, there is nothing to lose for those who have nothing to hide.

The writer is president of the Malaysian Bar.

Good of the People versus Good of the Party

Members of the Parliament must act for the people NOT for their Party

It is not only absurd but also totally immature for our Prime Minister to say that the Barisan’s Nasional’s position is that no BN Member of Parliament should support a Motion coming from the Opposition in Parliament. That is what I understood when I listened to the Radio News at 11.00 pm on Sunday(7/5/2006).

What this means is that a Barisan Members of Parliament do not have the freedom to act as their conscience dictate and for the good or the best interest of the people they represent. They are required to reject all that is coming from an Opposition Member of Parliament, and vote in support of all that is coming from the Barisan Nasional members or the executive even though deep down he/she may feel that the motion coming from the Opposition member has merits and is worth supporting.

If that is what the PM said, for after all media reports have been known to get it wrong, then we do not have BN wakil rakyats but only BN wakil BNs. Is that the reason why most of time most of the BN Member of Parliaments are empty. If this is the state of affairs, then we must all fight for the freedom of the Barisan Member of Parliament to choose and vote as they personally feel is for the best interest of the people of Malaysia.

I sincerely hope that what was reported and what I understood from that report is wrong.

Members of Parliament, be it members of BN or members of the Opposition, must act independently and freely supporting all that is good and rejecting all that is bad for the people of Malaysia irrespective of whose motion it is.

Charles Hector
Petaling Jaya
8th May 2006

Suhakam Tigers Face Extinction

Suhakam tigers face extinction
Charles Hector
Apr 7, 06 4:45pm (Malaysiakini)

Suhakam is not a toothless tiger as long as we still have few human rights commissioners like Prof Mohd Hamdan Adnan there. When Suhakam first came into being, there were more commissioners with teeth like Mehrun Siraj and Musa Hitam. As time went on, more and more of the independent and brave commissioners were just not re-appointed. The term of this present batch comes to end this month, and maybe Prof Mohd Hamdan Adnan and some of the other stronger and more vocal commissioners will not be reappointed, and then Suhakam will become a true toothless tiger.

Who is the chairman of Suhakam? Why did he not come out and make a response to Minister in the Prime Minister’s Department Nazri Abdul Aziz’s recent statements on the non-powers of Suhakam? Come to think of it, we have not heard much from that former attorney-general who is the current chairman of Suhakam. It is time for Suhakam to have a new chairman, someone who does not have a government servant mentality. Suhakam, as creature of an Act of Parliament, must be independent and that includes being independent of the government of the day. A commissioner must be fearless, a person who works and does things for the promotion of human rights and to ensure that all parties (including) the government of the day respects human rights.

In other countries, appointment as a human rights commissioner is for a term of at least six years, not two years as is in Malaysia. This short two-year term may be what is keeping the other commissioners quiet and docile in that they will stand a better chance of re-appointment if they are not troublemakers. We do not need people with this kind of attitude appointed as commissioners. We need fearless persons willing to risk all for the cause of human rights. In Malaysia, it may be a bit difficult to find such persons but it is not impossible if we really want Suhakam to be effective and not just a window-dressing .

It is also important that Suhakam commissioners are full-time and not just part-timers who spend most of their time with their other work and other businesses. It may be very difficult to find persons who are willing to give up their present jobs and businesses to just serve a two-year term but then if it was for a six-year term, you will have more who would be willing to serve as full-time commissioners.

In another 20 days or so, we will know whether Suhakam will finally become a toothless tiger, or whether the tiger will get more teeth. Who will be re-appointed? Who will be asked to leave? By the end of the month, we will find out what kind of people our present prime minister wants in the Human Rights Commission of Malaysia.

**Hamdan is among two others, Ramon V Navaratnam and Sharifah Hapsah Syed Hassan Shahabudin, whose contracts were not renewed - Malaysiakini 3/5/2006

Domestic Workers entitled to worker rights

Time for domestic workers to be guaranteed basic worker rights

Contributed by Charles Hector
Monday, 01 May 2006

The time has come for Malaysia to now ensure that basic worker rights is provided for and guaranteed to the over 0.3 million domestic workers in our country.

Gone also are the days when the number of domestic workers were small and there was no real need to look at legislating the rights of these workers. Today, in Malaysia, there are 320,000 registered foreign housemaids in Malaysia, and out of this 96 per cent or 308,000 are Indonesian migrant workers.

Gone too are the days when domestic workers were members of the extended family or someone from one’s own village. Gone too are the days of the local Malaysian part-time household helper. At the moment, although domestic workers are recognized as workers in Malaysian law, there is in effect very little or almost no protection whatsoever of the rights of this category of workers.

“Domestic servant” is acknowledged as worker in law BUT without rights

In our Employment Act 1955, “Domestic servant” is mentioned and is given the meaning “a person employed in connection with work of a private dwelling-house and not in connection with any trade, business, profession carried on by the employer in such dwelling house and includes a cook, house servant, butler, child’s nurse, valet, footman, gardener, washer man or washerwoman, watchman, groom and driver or cleaner of any vehicle licensed for private use.” In Malaysia, save for driving, migrant domestic worker normally ends up doing all of these different jobs.

With regard the domestic servant, it is clearly stated that the following sections of the Employment Act are not applicable to them, being:- Section 12 (Notice of termination of Contract), 14 (Termination of Contract for Special Reasons), 16 (Employees on Estates to be provided with minimum number of days’ work in each month), 22 (Limitation on advances to employees), 61 (Employers Duty to Keep Register), 64 ((Employers Duty to display notice boards), Part IX (Maternity Protection), Part XII (Rest Days, Hours of Work, Holidays And Other Conditions of Service) and Part XIIA (Termination, Lay-Off And Retirement Benefits.
Worker Rights Must be Legislated To Ensure Certainty and Real Protection

In short, there is not even basic protection for domestic workers under the Malaysian employment laws. Jordan has legislations to provide for rights and protections to domestic workers, and in Taiwan, a Bill for Household Services is before Parliament. In Malaysia, whish has a higher number of domestic workers; it is time for some legislation to protect the rights of these domestic workers.

Although, the Malaysian Immigration Department “policy” or “guidelines of employment” do have an Employment Agreement form which stipulates that a domestic worker is entitled to one day off per week, but the same clause provides that an employer can insist the worker works on the “off-day” provided adequate remuneration is provided. Sadly, there is no stipulation of wages, let alone the calculation of this additional remuneration. What is the basis of this “Employment Agreement” – for there is no existing Act or legislation that provides for rights of domestic workers in Malaysia.

In practice, save for the Filipino domestic workers, none of the other domestic workers of other nationalities seem to be getting any day off, let alone any time off. Domestic workers are treated more like “property” or “slaves” rather than human beings.

What then is the basis of the rights of domestic workers? Is it the Memorandum of Understanding (and/or Agreements) entered into between the sending countries and the receiving countries? If yes, the difficulty to get access to these Memorandums and/or Treaties keeps everyone guessing as to its contents.

Indonesia and Malaysia would be entering into a Memorandum of Understanding within a month or two, and it is disturbing to note whilst the Indonesian government are insisting on labour rights, Malaysia is rejecting giving reasons like according labour rights as given to other workers in Malaysia would make it uneconomical for Malaysian employers to continue to employ Indonesian domestic workers.

Discrimination based on Nationality must be stopped
It is also very disturbing to note that Indonesian domestic workers are the lowest paid compared to domestic workers from other nationalities, and this discrimination based on nationality goes contrary Article 8 of the Federal Constitution of Malaysia provides that “All Persons are equal before the law and is entitled to equal protection of the law” and by the use of term “person” as opposed to ‘citizen’ makes it most clear that this guarantee of rights extends also to all persons, including migrant workers. Hence, the discrimination based on nationality is wrong.

No right of claim against the Government and/or its Agents?
It is shocking that the Malaysian government requires Muslim domestic workers have also to sign a Declaration agreeing not to make any claim against the Government and its agents in any cause of action whilst they are in Malaysia. This is what the Form at the Immigration Department website entitled “Lampiran B Perakuan Pembantu Rumah Asing Islam Warganegara …” (Enclosure B Muslim Foreign Domestic Worker of … Nationality”. This is a gross violation of human rights and a great injustice. It is interesting that protection from claims seem also to be accorded to the agents.

Of course, it seems that the claims may be made after the domestic worker leaves Malaysia – but this is not only difficult but near impossible taking into consideration that domestic workers generally are from poor backgrounds and would lack the resources to pursue any claims after they have left Malaysia.

Should Not the Agent be the Employer – not the Householder?
Employers, after all, do not have a choice but have to get the domestic workers through agents, and as such a question can be raised as to whether there should even be an employment agreement between the husband/wife (the householder) and the domestic worker – for after all is not the agent the labour provider.

Maybe, then the proper employer of the domestic worker should then be the agent, and the householder should just be entering into an agreement with the agent for the provision of labour in the form of a domestic worker. The duty of the agent should therefore be to ensure that wages, rights and benefits that should be accorded to the domestic worker is so provided as per the agreement. If the worker fails to provide services as per the agreement, the householder should have a lawful remedy/claim/cause of action against the agent. If the householder is in breach, then the agent would have a remedy/claim/cause of action against the householder.

With regard to the domestic worker, her claim and cause of action with regard to matters involving her employment then will lie against the agent, the employer. Of course, if there is abuse, assault, battery or anything else against the person and/or property, the domestic worker should like any other person have a claim and/or cause of action against the employer.

Since, the agent is also the agent of the government; the domestic worker must definitely be entitled as of right to pursue a claim and/or a cause of action also against the government as well. Governments then would have to ensure that only good agents are approved and appointed. It may be good to also provide legislations covering the appointment and duties of the agents involving in the business of providing labour, and the Ministry responsible must be the Human Resources Ministry not the Director General of Immigration under the Ministry of Home Affairs.

The employer-employee relationship between the “agent”(labour provider) and the domestic worker is not something new. For example security companies provide security guards to its customers, and at all time these security guards are the employee of the security company and not the customers. If unsuitable, the customers will have a right to demand a change of the guard. Wages and rights are the duty and responsibility of the security company not the customer. Similarly, the householder will have to make monthly payments to the ‘agent’, who will then have to pay the wages, less lawful deductions, to the domestic worker.

Rights that need to be accorded to domestic workers
The right to an 8-hour work-day (of course given the nature of domestic work, this could be defined periods through-out the day), the right to be remunerated for overtime work, the right to have one-day off per week, the right to be able to fulfill one’s religious obligations, the right to be able to communicate with one’s family using own monies/resources, the right to sick leave, the right to compassionate leave, the right to annual leave, the right to association, the right to seek legal redress, the right to a speedy procedure for redress, the right to change of place of work, the right to association, the right to consult a lawyer, the right to communicate and/or go to her embassy, the right to open a bank account, the right to have access to banking facilities to be able to transfer money back home, the right to sue and be sued, the right to private space and leisure time, the right to adequate medical and dental care; and the right to have a original copy of her agreement are just some of the minimal rights that must be to the domestic worker.

We sometimes forget that domestic workers are human beings – with families and other human responsibilities and needs. Domestic workers are also workers, and like every other worker must be accorded worker rights and human rights, including also effective access to justice.

Malaysia is on the verge of attaining developed nation status, and being a caring nation, we must not delay to ensure that our domestic workers, like any other workers, are treated with dignity and with justice.

39 per cent of MALAYSIAN national schools are without toilet facilities

UMNO has failed the poor Malays

Isn’t it mind-boggling that nearly 39 per cent of the national schools are without toilet facilities?
by P Ramakrishnan
Aliran Monthly Vol 25 (2005): Issue 7


How could UMNO have tolerated this lack of progress over 15 years when no one else has dominated the government and the bureaucracy?

P Ramakrishnan

UMNO has failed the poor Malays. Not just failed them but failed miserably.

All the rhetoric and keris wielding that we witnessed at the recent UMNO General Assembly can’t hide this fact. All the sloganeering and bravado on behalf of the Malays will not legitimise these leaders as having truly struggled to advance the lot of the majority Malays who are poor and deserving help.

Pathetic state of affairs

Let’s for a moment forget the `30 per cent equity’ issue and the call to resuscitate the New Economic Policy.

Let’s just take a mundane issue of everyday living. The Education Minister revealed that out of 4,036 national schools, 794 were without electricity and 1,555 without toilet facilities.

Isn’t this staggering? Nearly 20 per cent of the national schools are without electricity. How is this possible when the government has repeatedly emphasised the need for e-knowledge? We were bent on building computer labs for schools and expanding computer literacy among children. How were these schools and their students “excluded” from the national policy? How is it that their interests did not feature at all in implementation?

Isn’t it mind-boggling that nearly 39 per cent of the national schools are without toilet facilities. How do their students wash themselves, ease themselves and keep themselves clean? When schools are expected to teach cleanliness and the need to eradicate diseases, how was this neglect tolerated?

We need to know how this pathetic state of affairs arose. Practically all those schools were rural schools, mostly attended by poor Malay children. Was it a lack of expertise that led to those schools being deprived of electricity and toilet facilities? Was it a shortage of funds and allocations? Was it indifference to the education of rural children?

How did UMNO, ever ready to advance every Malay interest, permit this neglect. Practically every Education Minister since Merdeka has come from UMNO. Every Finance Minister after Tan Siew Sin was an UMNO man.

If all those ministers couldn’t solve the problems faced by rural schools after so many years - so many years of prosperity at that - why should UMNO continue to talk about rural poverty, Malay relative backwardness and lack of bumiputera advancement?

Why should UMNO use that dismal situation of under-provided schools and their obvious failure to make emotional statements about how Malays must rally around their sole protector, UMNO?

Two extremes

In the name of the NEP and improving the economic position of the Malay community, enormous amounts of resources were dispensed by way of contracts, projects, shares, licences, permits, subsidies and other forms of assistance.

Has that wealth, meant to realise what some call the “Malay agenda”, trickled down to the rural schools and the rural students? Or has the re-distribution only benefited cronies and well-connected elites – rather than the deserving children of fisher folk and farmers?

When rural schools can’t be properly equipped with electricity and toilet facilities, what’s the point of talking about “30 per cent equity”, “APs” and the “new national agenda”?

Or are we talking about two sets of standards – one towering set for well-connected wannabees and one depressingly low set for the cable-less ordinaries?

How else can we see such extremes in fortunes?

On the one hand, there are individuals who, without claims to expertise or experience, have been granted thousands of “APs” worth tens of millions of ringgit.

On the other hand, there are rural children who have every right to be treated “equitably” but are deprived of electricity or toilets in schools that are supposed to help them gain education and expertise.

Poor, cable-less Malays

If UMNO leaders want to question why the Malay share of corporate equity has not moved upwards in 15 years, from 18.7 per cent in 1988, they should come clean on many counts.

Why hasn’t the Malay share risen, or moved at all, despite so much government effort and resources being devoted to reaching the magical “30 per cent” figure?

Is it credible for them even to keep using such figures to justify such a statistical stagnation?

How could UMNO have tolerated this lack of progress over 15 years when no one else has dominated the government and the bureaucracy?

Can the responsibility be placed on the shoulders of other communities, including most of all, the unconnected, cable-less among them?

Or was it because what was proclaimed to be the “Malay agenda” was captured by “private agendas” that UMNO leaders would rather not discuss in public?

UMNO should stop shouting slogans and instead solve the genuine problems of the genuinely deserving poor. UMNO leaders should stop wielding kerises and instead unplug connections between politics and business.

Until then, why shouldn’t the neglected think that UMNO leaders don’t or can’t or won’t safeguard the real welfare of poor but deserving Malays?

WE PROTEST HARRASSMENT OF LAWYERS BY POLICE

WE PROTEST HARRASSMENT OF LAWYERS BY POLICE
- Brave Lawyers Acted As Bar Leadership Procrastinates -

On 16th April 2000, a lawyer was forcibly pushed away from his client, angrily shouted at by Police Officers at the Petaling Jaya Police District Headquarters and then told he was going to be charged with obstruction of public servant in the course of his duties. He was there to protect his client in the execution of his duty. Instead he was thoroughly intimidated, pushed around and accused of a criminal offence and arrested.

On 18th April 2000, a group of about 15 young lawyers were there at the Ibu Pejabat Daerah Petaling Jaya to hand over a memorandum of protest, which was signed by 107 lawyers, to the Officer in Charge of the Police District(OCPD) of Petaling Jaya. That action was initiated by then young lawyers, N. Surendran and Charles Hector, who collected signatures from lawyers that Tuesday morning at the courts in Jalan Raja and Wisma Denmark and the memorandum of protest was handed over that very afternoon.

Then only did the Bar Council respond by sending a delegation to meet up with the Deputy Inspector General of Police on Thursday 20th April 2000, and thereafter, a press statement entitled “Arrest of lawyer in P.J. Police Station” was issued on the same day by the then President, Haji Sulaiman Abdullah.

All this happened 6 years ago, coincidently also in mid-April and at the same Petaling Jaya Police District Headquarters and the lawyer concerned then was Cheah Kah Peng.

27th April 2006 - Petaling Jaya Police District Headquarters

On Thursday, 27th April 2006, lawyers were back again at the Petaling Jaya Police District Headquarters handing over yet another memorandum of protest about police officers wrongfully harassing, arresting and detaining a lawyer on 18th April 2006 who was there at this police station representing and performing his duties as a lawyer for his clients.

On 18th April, lawyer S.Balasubramaniam, was at this PJ Police Headquarters in order to render legal assistance to his clients who had been detained by police. Despite repeated requests, the police refused to give him relevant information about, amongst others, the reason for the arrests and the status of his clients. Balasubramaniam was physically pushed and then unlawfully arrested by a plainclothes policeman. After being detained without reasons being given for his arrest, he was released after about 3 hours. On 19th April, he subsequently lodged a police report (PJ/004538/06) with regard the mistreatment by the police.

At about 12.00pm on the 27th, about 40 lawyers gathered at the PJ Police Headquarters to hand over a memorandum of protest which was supported by 112 lawyers to the OCPD.

Disappointingly, Mohd Hazam Abd Halim, the district police chief, refused to come down from his office and receive the protest memorandum, which finally was received by a Division Head, representing the OCPD. Mr George Varughese, the Selangor Bar Chairman and member of the Bar Council, handed over the memorandum of protest on behalf of the lawyers.

The members of the press were unreasonably stopped at the gate and prevented from even entering the compound of the PJ Police Headquarters. The lawyers protested this denial of access to a police station, which must and should always be open and accessible to any person but the police refused to budge and the media were forced to cover the event from outside the main gate.

The presence of a small team of riot-police, armed with their shields, protective helmets and batons was too much when it was only a group of lawyers, also officers of the court, who were there to peacefully protest what happened to one of their own and to hand over a protest memorandum.

Amongst the lawyers present were Sharmini Thiruchelvam, Francis Pereira, Shanmugam, N Surendran and some others were also there in April 2000. Young lawyer leaders, Will Fung and Richard Wee, Selangor Bar Committee Chairman, another member of the Bar Council, several former Bar Council members and senior lawyer, Chew Swee Yoke were also amongst the 40 who took the time and effort to be present at this protest. Sadly, the Chairman and the members of the Kuala Lumpur Bar Committee were noticeably absent at this protest involving what happened to a Kuala Lumpur lawyer.

Failed to take “…immediate action by making its stand or position openly and clearly”

Despite being notified of what transpired to Bala, and being faxed the relevant police report on or about 19th April, the slowness of the Bar Council and the Kuala Lumpur Bar to respond is appalling. Again, in 2006 lawyers have reacted and responded strongly before their own elected leaders in an incident about the harassment and wrongful treatment of a lawyer carrying out his professional duties as an advocate and solicitor.

The importance of a quick and strong response by the Bar have been repeatedly raised by the membership at General Meetings of the Bar, including the last one in October 2005.

For the record, at the Extraordinary General Meeting of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur on Saturday, 10 October 1998, Motion 4 (which interestingly was seconded by the same Bala Subramaniam) in item 1 of the said proposed Resolution read as follows “…The Bar Council, whenever such arrests and detention take place be it under any laws that are in connection with the said lawyer’s brief … [should] takes immediate action by making its stand or position openly and clearly that it is perturbed and opposed of such actions of the police or other authorities, by the issuance of a media statement and by whatever other means deemed appropriate.” Although this motion was not voted upon, it was agreed that the “…motion be treated as sentiments of the House”.

In 2000, in 4 days the Bar Council did make an official representation to the Inspector General of Police and cause the issuance of a media statement.

In 2006, despite being informed of the incident and having received a copy of the relevant police report of the affected lawyer on 19th April, both the Bar Council and the Kuala Lumpur Bar Committee is yet to make any protest to the IGP or the authorities, let alone issue any media statement stating “…openly and clearly that it is perturbed and opposed of such actions of the police or other authorities”.

The State Bar Committee cannot and should not abdicate their duty by giving reasons like the matter was already within the notice of the Bar Council, and as such it is best that it is the Bar Council rather than the State Bar Committee that makes an open and clear protest. All the more reason for members of the Bar to vote wisely and choose leaders who will ACT without fear and favour rather than repeatedly year after year voting in the same persons with well-known names with a pleasant smile.

Without Fear or Favour they acted ..

The 40 lawyers who turned up at the police station on the 26th, and the 112 who supported the memorandum of protested must be applauded for their action in upholding the cause of justice without fear and favour.

They did the legal profession proud when they courageously stood firm in the face of police intimidation, displaying posters with words like “No Harassment of Lawyers By Police”, “Let Lawyers Do Their Job” and calling for the expedition of the setting up of the Independent Police Complaints and Misconduct Commission (IPCMC) as the media cameras clicked away and George Varughese handed over the memorandum.

Lawyers cannot and should not just wait for the leadership of the Bar to react and respond when injustices and human rights violation occurs. Lawyers have to also act independently and immediately if the leaders are dragging their foot in the name of “expediency”, red-tapes or just simply pure fear.

The duty of upholding the cause of justice and human rights is also on the shoulder of each and every lawyer in the land – and sometimes just passing on information is just not enough to discharge this onerous obligation to act.

The police tried to suppress the impact and the publicity of the protest by suggesting that a couple of representatives go up and pass the memorandum of protest to the OCPD behind closed doors in the absence of the press, but all 40 lawyers stood firm and insisted that they will hand over the memorandum of protest in public, in front of media and all lawyers present as witnesses, to the OCPD – and at the end of the day this was what was done.

No fear was shown as the 40 stood there in the open, being aware also that some of these photographers maybe police photographers. Bravo my fellow lawyers, and we hope that more of the 12,000 will be there the next time such when such public actions is needed.

What happened to Bala and Cheah Kah Peng has also happened to other lawyers including Leonard Teoh, P. Uthayakumar and the 2 others, as was highlighted at the last Malaysian Bar AGM. I believe that there may be other cases of police intimidation and harassment of lawyers when carrying out their duties, but this information has just not come to the notice of lawyers or the Bar.

It is now of utmost importance that there be an immediate, strong and open protest of all such cases of harassment of lawyers by the police or other government personnel as and when it happens. N. Surendran put it well when he was reported saying, “If a lawyer can be treated like (Bala), then no Malaysian citizen can be safe as lawyers would not be able to do their job,”. Let us not forget that our Federal Constitution guarantees and justice demands the immediate right to a lawyer to person arrested.

There Will Always Be Brave Lawyers…

The Bar Council must immediately, start working together with the State Bar Committees, to set up mechanisms to ensure immediate responses whenever this kind of cases, and also when any other cases of violations of human rights occurs. Members have been asking for this for a very long time now, and in 1998 this was made very clear but until this date, obviously we still do not have it.

But rest assured, there still is and will hopefully always be lawyers who will come forward in the interest of justice and human rights – even when the official leadership is procrastinating.

Charles Hector
28th April 2006

40 lawyers protest police treatment of lawyer

Some 40 lawyers stage a protest outside PJ Police Headquarters


Contributed by Charles Hector
Friday, 28 April 2006, 08:11
Surendran, George and Charles handing over the Memorandum of Protest to a police officer
On 18.04.2006, lawyer S. Balasubramaniam, was at PJ Police Headquarters in order to render legal assistance to his clients who had been detained by police.Despite his repeated requests, the police refused to give him information about the reason for the arrests and the suspected offence that his clients were arrested for.S. Balasubramaniam was physically pushed and then unlawfully arrested by a plainclothes policeman.Balasubramaniam was released after 3 hours of detention without reasons being given for his arrest. He lodged a police report (PJ/004538/06) with regard his treatment by the police.We, the undersigned lawyers, are concerned and very disturbed by the police action of wrongfully harassing, arresting and detaining a lawyer who was there representing and performing his duties as a lawyer for his clients.
We demand that :-a. That S. Balasubramaniam’s complaint be immediately investigated by an investigation team independent of the PJ Police Headquarters;
b. That stern action be taken against all those police officers responsible for this incident;c. The police officers responsible be forthwith suspended pending investigation;d. That the CPO of Selangor/ IGP immediately gives an undertaking that there will be no repeat of such interferences with and/or harassment of an advocate carrying out his duties in any police station in Malaysia.

The 112 who supported the Memo
1 Sharmini Thiruchelvam Kuala Lumpur2 Colin anak Victor George Malaysian Bar3 Bernard Chong Malaysian Bar4 Fadzila Binti Said Malaysian Bar5 Dara Waheda Mohd Rufin Malaysian Bar6 Richard Wee Thiam Seng Kuala Lumpur7 L.Y.Lee Kuala Lumpur8 Charles Hector Petaling Jaya9 N.Surendran Kuala Lumpur10 Ahmad Zainuddin Dataran Palma11 Khaznim Dataran Palma12 Leena Ghosh Petaling Jaya13 Francis Pereira Kuala Lumpur14 Kasthury S* Petaling Jaya15 Vasandi K K. Vasandi & Co16 Ng See Kee Penang17 George Varughese Petaling Jaya18 Stanly Sinnapan Kuala Lumpur19 Moganamball Kuala Lumpur20 Edmund Bon Kuala Lumpur21 Jeremy Tan Jeremy & Sazlin22 Balakrishnan A Bala Naido & ..23 Nik Mohamed Ikhwan Kuala Lumpur24 Koong Len Sheng Kuala Lumpur25 Shanker Sivapragasam Kuala Lumpur26 Chin Pien Yee Kuala Lumpur27 Erene Lee Lin Lin Kuala Lumpur28 John You Choon Kit Kuala Lumpur29 Puspawati Rosman Kuala Lumpur30 Fazlina Pawan T eh Kuala Lumpur31 Nelson Awgang Kuala Lumpur32 John Yong Tee Kong Puchong33 Irene Song Lai Kuan Puchong34 David Charles Petaling Jaya35 Will Fung Kuala Lumpur36 R. Shamuga Nathan R.Shan & Associates37 Grudit Singh R.Shan & Associates38 Subajayanthi K Negeri Sembilan 39 Yee Seu Kai Ipoh40 Chong Kok Yew Ipoh41 Venkadesh Ipoh42 Zainorah Hassan Ipoh43 Mohd Syukri Yahaya Ipoh44 G. Balasunderam Ipoh45 Kerpal Singh Ipoh46 Feg Agis Ipoh47 Lim Ta Wai Ipoh48 Chan Kok Keong Ipoh49 Al Hundallah * Ipoh50 Lai Choe Ken Ipoh51 Ellanggovan * Ipoh52 Srividhya Ganapathy Kuala Lumpur53 Muhendaran Suppiah Kuala Lumpur54 Kavitha Guna Segaran Kuala Lumpur55 Liu Meng Wun Kuala Lumpur56 Modeshanantham V. Perak57 Leong Kow Hoo Perak 58 Amret Dhillon Perak 59 James Devadason Perak 60 Harbhajan Singh Perak 61 K.C.Lai Perak 62 Mary Lim Perak 63 Leon Julian Perak 64 Annou Xavier Kuala Lumpur65 Kee Seok Meng Kuala Lumpur66 Chow Wei Cheng Kuala Lumpur67 Lim Ching Liew Kuala Lumpur68 George Miranda Kuala Lumpur69 Gerald Samuel Kuala Lumpur70 Khor Lee Chin Kuala Lumpur71 Kenny Ng Bee Ken Kuala Lumpur 72 Lee Swee Seng Kuala Lumpur73 G.Nanda Goban Kuala Lumpur74 Yap Wai Kit Kuala Lumpur75 Tay Ka Ping Kuala Lumpur76 Lavinia Kumar Sendran Kuala Lumpur77 Oweo Olivia Meng Kuala Lumpur78 Shanthi Supramaniam Kuala Lumpur79 Unclear*** Sivananthan, Kuala Lumpur80 H** Kaur Sivananthan, Kuala Lumpur81 Lim Yap Kuala Lumpur82 Ong Bee Koon Kuala Lumpur83 Lilian Siew Kuala Lumpur84 Ravindran S Kuala Lumpur85 Yoong Kien Fah Kuala Lumpur86 Karina Yong Penang87 Theivanai Amerthalingam* Penang88 S. Kumaari Munusamy Penang89 Jessica Binwani Penang90 Chong Poh Ken Petaling Jaya91 Ng Kah Fei Petaling Jaya92 Tan Ban Cheng Penang93 Mohamed Fadly Zakaruya Kuala Lumpur94 Ravindran S Kuala Lumpur95 Leong Kong Meng Penang96 Radehayati Johateh Petaling Jaya97 R. Shanmugam Kuala Lumpur98 Augustine Anthony Ipoh99 Ng Poh Tat Ipoh100 Shaznam Haseena Ipoh101 Kenneth Gomes Kuala Lumpur102 Tha*** S*** Ipoh103 Sunder Singh Ipoh104 Edwin Seibel Ipoh105 Joshua Leong Ipoh106 Raden A.Shauki Perak Bar107 Christina Loke Kuala Lumpur108 Lee Woan Chyi Kuala Lumpur109 Sivarasah Rasiah Kuala Lumpur110 M. Puravalen Kuala Lumpur111 Chew Swee Yoke Kuala Lumpur112 Amer Hamzah Kuala Lumpur* Some of the names and addresses were unclear – we did our best to try to get it correct.