Monday, April 30, 2012

Bar: Police response during BERSIH 3.0 rally disproportionate and excessive

Press Release: Police response during BERSIH 3.0 rally disproportionate and excessive
Sunday, 29 April 2012 01:08pm
ImageThe Malaysian Bar is appalled at the abuse of the legal process and grotesque use of force by the police in connection with the BERSIH 3.0 rally in Kuala Lumpur yesterday, 28 April 2012.
The crowds that had gathered for the BERSIH 3.0 rally reflected a broad cross-section of Malaysian society, and were peaceful.  The police were initially restrained, although they did try to stop people from reaching various pre-announced meeting points.  However, the attitude of the police underwent a sea-change at 3:00 pm that day.  The reported breach of police barricades in some areas does not justify the police unleashing the full force of their arsenal upon crowds that were peaceful.  The police have shown in this incident that they do not have the maturity, discipline and restraint required of a professional force.  In this regard the Malaysian Bar strongly disagrees with the Minister of Home Affairs’ assertion that the police acted professionally. 

The court order excluding members of the public from Dataran Merdeka is arguably defective in law due to a lack of specificity.  Given that the BERSIH 3.0 rally had been announced on 4 April 2012, there was no need to have obtained the order ex parte.  There had been ample opportunity for the relevant parties to be heard before deciding if such an order deserved to be issued.  In addition, the order was obtained with respect to a situation of the authorities’ own making, by their unjustifiable denial of access to Dataran Merdeka.  It is important to bear in mind that the Minister of Home Affairs had previously announced that the BERSIH 3.0 rally was not a security threat.

Nonetheless, having obtained the exclusion order, the police proceeded to disrespect the order by unilaterally closing additional roads and restricting access to other areas not covered by its terms. The terms of the order itself, the closing of the roads and the restriction in access gave rise to a tense situation that contributed to the unnecessary violence that occurred. 

As has been done with some other public assemblies in the past, the Malaysian Bar deployed lawyers and pupils-in-chambers to act as monitors during the rally, numbering approximately 80. Our monitoring teams reported witnessing the use of an array of heavy-handed tactics by the police, including the indiscriminate discharging of multiple rounds of tear gas without any obvious provocation, and arbitrary use of water cannons.  Police fired tear gas directly at the crowd. They also manoeuvred their firing pattern to box in the participants rather than allowing them to disperse quickly.  This is not action to disperse, but is instead designed to attack, a crowd.  When items were thrown at the police, the police stooped to return like for like. 

The Malaysian Bar does not countenance the belligerent conduct shown by a number of the participants.  However, we express deep and serious concern as to how the police responded. The police displayed a lack of restraint and proportionality, reminiscent of their actions at the BERSIH 2.0 rally on 9 July 2011.  Instead of displaying action to calm the situation, they instead aggravated it and contributed to the escalation of the conflict.  Although organisers of public gatherings must bear some responsibility when things get out of hand due to their action or inaction, this does not and cannot excuse the response of the police.  

The monitoring teams also witnessed numerous acts of police brutality, such as assault of arrested persons.  Instead of merely apprehending suspects, the attitude of the police was punitive in nature.  The reported attacks by the police on members of the media, both local and international, and the confiscation and/or destruction of their photographs and video recordings, speaks to police action in covering up or preventing a full and accurate record of the BERSIH 3.0 rally and the responses of the police.
Regrettably, the police also showed a general lack of cooperation towards the Malaysian Bar’s monitoring teams, and were hostile in their attitude and approach at times.  This is most unprofessional and unbecoming, and serves as an unhealthy development with negative connotations for the future.
The Malaysian Bar notes that yesterday’s events have not occurred in isolation, but stem from the fundamental problems that gave rise to the BERSIH 3.0 rally in the first place, namely the ongoing and outstanding issues relating to the electoral roll, and the lack of confidence in its integrity and that of the electoral process in Malaysia.  
Those who look upon Dataran Merdeka as a symbol of freedom will view the exclusion from Dataran Merdeka as freedom denied.  The promise by the Government to respect democracy and human rights, and implement reforms, was tested yesterday.  The Government’s response and actions during the BERSIH 3.0 rally provided an indication of whether the new reform legislation will be perverted and abused in its use and implementation, where the wide powers vested in the authorities call for measured, proportionate and mature exercise.  The events of 28 April 2012 do not bode well in this regard.
Transformation and real recognition of democratic rights come at a price, namely constant vigilance.  The cost of not transforming and not allowing Malaysians the proper exercise of our democratic rights is too high.  In Malaysia’s march towards developed nation status by 2020, which is only eight years away, the constitutional right to clean, free and fair elections cannot and should not be sacrificed.  
Christopher Leong
Malaysian Bar
29 April 2012

Friday, April 27, 2012

KFC must pay $8.3m to poisoned girl in Australia (BBC News Asia)

KFC must pay $8.3m to poisoned girl in Australia

File picture of KFC logoKFC says it will appeal against the decision

Related Stories

Fast-food giant KFC has been ordered to pay $8.3m (£5.1m) to the family of an Australian girl left severely brain damaged after being poisoned by a chicken meal.

Monika Samaan fell ill with salmonella poisoning after eating a "Twister" wrap at a KFC restaurant near Sydney in 2005.

The poisoning left her wheelchair-bound and unable to speak.

KFC said it was "deeply disappointed" by the decision and would appeal.

'Limited resources'
A judge of the Supreme Court of the state of New South Wales awarded the A$8m damages after ruling last week that KFC had breached its duty of care to the girl.

The family's lawyer, George Vlahakis, said they were relieved by the decision.

"Monika's severe brain damage and severe disability has already exhausted the very limited resources of the family," he said.

"Monika is now a big girl and they are finding it increasingly difficult to lift her and to look after her basic needs as well as look after Monika's younger siblings.

"The compensation ordered is very much needed. KFC have to date been determined that Monika does not receive a cent."

KFC, which is owned by Yum! Brands, expressed surprise at the judge's ruling, insisting the evidence did not show it caused Monika's disability. It has indicated it will appeal.

"We feel deeply for Monika and the Samaan family. However, we also have a responsibility to defend KFC's reputation as a provider of safe, high-quality food," a company manager said.

The court was told that Monika was in a coma for six months after she, her parents and brother fell ill with vomiting and diarrhoea after sharing the wrap, the AAP news agency reports. The other family members all recovered.

The family's lawyer told the court that at busy times, the restaurant would reuse chicken that had been dropped on the floor - BBC News Asia, 27/4/2012

Thursday, April 26, 2012

In 2011, 115 groups said 'NO' to labour law amendments ..and the protest continues

In October 2011, 115 organisations, groups and networks from Malaysia and all over the world came out in opposition of the amendment to Malaysia's Employment Act 1955 - which included amendments which would destroy just direct employment relationships between owner-principals of workplaces and their workers, all of whom would be their employees. The new amendment INSERTED a 3rd party into that relationship, to be legally known as the 'Contractor For Labour', who unlike Private Employment Agencies would continue to be the 'employers'  of the workers even after they start working for the principal under the control and supervision of the principal for the benefit and profit of the principal.

The end result - a 'divide and rule' of workers. Discrimination - when workers doing the same work are differently paid and treated. The supplied workers (sometimes called 'outsourced workers') would also not be able to form/join trade unions at the workplace - and will have no ability to even rely on Collective Agreements (which are agreements between employers and employees only ). The introduction of this new class of workers naturally will weaken and ultimately destroy UNIONs and also the bargaining power of existing worker-employees of the principal - as more and more employers(the principal) are using more and more non-employees as their workforce.

The Malaysian government railroaded the proposed amendments - and this has become law with effect on 1/4/2012... but the protests continues
Below a joint media statement of 2011, which was also endorsed by the ITUC and other international unions
Media Statement – 28/10/2011 (107 Groups), now 115

Malaysia Must Protect Worker and Union Rights, and withdraw
proposed unjust amendments to Employment Act
- Labour Suppliers Should Not Be Employers -

We, the undersigned 115 organizations, groups and networks are disturbed that the Malaysian government has proceeded to table, and get it passed speedily on 6/10/2011 at the Dewan Rakyat (House of Representative) the Employment (Amendment) Bill 2011 despite protests from workers, trade unions and civil society. The proposed changes to the Employment Act would be most detrimental to worker rights, trade unions and the existing just direct 2-party employment relationship between worker and end-user (the principal). Malaysia’s action goes contrary to justice. In many countries employers have been wrongly trying to avoid/disguise employment relationships by way of contracts/agreements and triangular relationships, and Malaysia rather than fighting against this negative trend is now trying to legalize it, hence showing itself to be anti-worker anti-unions. 

We note also that the amendments would result in discrimination at the workplace, as many workers at a factory, plantation or any workplace would end up being no longer employees of the owner-operator of the said workplace, also referred to as the principal or end-user, but would remain employees of the supplier of workers, known as ‘contractor for labour’. Workers doing the same work at the factory, would be treated differently in terms of wages, work benefits and even rights by reason of the fact that their employers are different. This will also go against the Malaysian Federal Constitution that guarantees equality of persons. We advocate that all workers working at a factory or workplace are entitled to be treated equally in terms of wages, work benefits, rights, union rights, reliance on collective agreements and other entitlements.

The proposed amendment would also destroy direct employment relationships between owner-operator of workplaces, being the principal, and the workers that work there producing the product or providing the services from which these principals derive their profits. A just employment relationship dictates that all workers should be employees of the owner-operator employer not some other third party labour supplier, whether they be known as ‘contractor for labour’, outsourcing agent or by any other name. The relationship must be a direct relationship, to the exclusion of all third parties, between the employer who needs workers to do the work to produce the goods of their business for profits, and the workers directly who provide the necessary labour as required in exchange for fair wages and other benefits. The availability of short-term employment contracts is another reason why there is no need to legalize triangular or other employment relationships in Malaysia through the creation of the ‘contractor for labour’.

To fight for decent wages and rights, and to be able to negotiate and get better working conditions and other work benefits, workers at a workplace would generally come together collectively or as a union to be able to negotiate from a stronger position with employers, and this would result in agreements or ‘collective agreements’ between employers and workers (or their unions). If the amendments proposed become law, then many workers at the factory would effectively lose their rights to be able to form or be members of the trade union at the workplace, or the right to directly and effectively negotiate with the principal  who effectively controls the work place, working conditions and benefits.

If the proposed amendment becomes law, effectively it will also weaken existing workers and unions, by reducing their negotiating power for now when a strike or a protest in called, there will be other workers of other third party employers who will continue to work normally thus making worker struggle for better rights almost impossible. This proposed amendment is a ‘union busting’ exercises and allows employers to utilize ‘divide and rule’ tactics to counter legitimate demands of their workers and avoid employer obligations and responsibilities. Another unjustifiable proposed changed is the delay of payment of overtime and work on rest days by a month.

With regard to sexual harassment, the new provision provides only for inquiry by employer even when the alleged perpetrator is a member of the management, a partner, shareholder and/or director of the employer’s business, and provides no clear right of appeal to the Labour Courts or the High Court. Note that other worker rights violations are currently all dealt with by the definitely more independent Labour Department or Industrial Relations Department. Remedy for the victim of sexual harassment is also absent, save maybe the right to resign without the need to give the required notice when the perpetrator is a sole proprietor.

The Malaysian Trade Union Congress (MTUC), which represents over 800,000 workers of member unions, who is also is the accepted workers representative in Malaysia, picketed calling for the withdrawal of the amendments on 3/10/2011, and apparently despite the Minister assuring them that the amendment will only be tabled at the end of the month, was suddenly rushed and passed at the Lower House of Malaysia’s Parliament on 6/10/2011.

Malaysia has the Private Employment Agencies Act 1971, whereby these agencies rightfully get workers for employers, who then pay them a fee for the service, and once workers are received by the employer, these workers immediately become employees of the said employer. The amendments will creates a new kind of labour supply companies who will continue as employers of the workers even after they start working at the workplace of the principal, and this is unacceptable. All companies in the business of finding workers for companies that need workers to produce their products or for their business must be private employment agencies, and must never assume or retain the role of employers.

As the said Bill still needs to be passed by the Senate and receive royal assent, before it becomes law, we call on the Malaysian government to act in the best interest of workers and their unions and immediately withdraw this unjust proposed amendments to Employment Act 1955.

We call on Malaysia to immediately discontinue its policy of recognizing outsourcing agents, and act immediately against practices of some employers and outsourcing agents that try to avoid/disguise employment relationships to the detriment of workers and unions.

We call on countries and regional bodies, companies, ILO, trade unions and persons to do the needful to ensure that worker and union rights, not just of local but also migrant workers, are protected in Malaysia, and that the employment relationship continue to be between owner-operator end user employers who actually need workers to do work and the workers that work there to the exclusion of any third party labour suppliers or ‘contractors for labour’.

Charles Hector
Pranom Somwong
For and on behalf of the 115  Organisations listed below:-

Abra Migrant Workers Welfare Association - Hong Kong (AMWWA)
Abra Tinguian Ilocano Society - Hong Kong (ATIS-HK)
ALIRAN, Malaysia
All Women's Action Society (AWAM), Malaysia
Asian Migrants Center (AMC), Hong Kong
Asia Monitor Resource Centre (AMRC), Hong Kong
Asia Pacific Mission for Migrants (APMM)
Asia Pacific Forum on Women, Law and Development (APWLD)
Asian Migrants' Coordinating Body - Hong Kong (AMCB)
Association for Community Development-ACD, Bangladesh
Association of Concerned Filipinos in Hong Kong (ACFIL-HK)
Association of Indonesia Migrant Workers in Indonesia (ATKI-Indonesia)
Association of Migrant Child & Family, Bangladesh.
Australian Council of Trade Unions (ACTU)
BAYAN Hong Kong
Building and Wood Worker's International (BWI) Asia Pacific
Burma Campaign, Malaysia
Cambodian Human Rights and Development Association (ADHOC)
Cambodian League for the Promotion and Defense of Human Rights (LICADHO)
Center for Indonesian Migrant Workers (CIMW)
Center for Trade Union and Human Rights (CTUHR)
Clean Clothes Campaign (CCC)
Coordination of Action Research on Aids and Mobility (CARAM-ASIA)
Committee for Asian Women (CAW)
Community Action Network (CAN), Malaysia
Confederation of Voluntary Associations (COVA), Hyderabad, India
Cordillera Alliance Hong Kong (CORALL-HK)
Democratic Party For A New Society (DPNS), Burma
Dignity International, Malaysia
Education and Research Association for Consumers Malaysia (ERA Consumer Malaysia)
Filipino Friends Hong Kong (FFHK)
Filipino Migrants Association - Hong Kong (FMA)
Filipino Migrant Workers' Union - Hong Kong (FMWU)
Filipino Women Migrant Workers Association - Hong Kong (FILWOM-HK)
Foundation for Women, Thailand
Friends of Bethune House (FBH), Hong Kong
GABRIELA Philippines
Good Shepherd Sisters, Malaysia
Health Equity Initiatives (HEI), Malaysia
Housing Rights Task Force, Cambodia
Human Rights & Legal Aid (LHRLA) Pakistan
Human Rights Education Institute of Burma (HREIB)
Human Security Alliance (HSA)
International Metalworkers' Federation (IMF)
IMA Research Foundation, Bangladesh
INFID (International NGO Forum on Indonesian Development)
Institute for National and Democratic Studies (INDIES)
International Trade Union Confederation (ITUC)
Jakarta Legal Aid Institute, Indonesia
JERIT, Malaysia
Karmojibi Nari , Bangladesh
Kalyanamitra, Indonesia
Kav La'Oved , Israel
Kilusang Mayo Uno Labor Center
Komite Independen Pemantau Pemilu (Independent Committee for Election Monitoring), Indonesia
Lawyers for Human Rights & Legal Aid (LHRLA) Pakistan
Legal Support for Children and Women (LSCW), Cambodia
LLG Cultural Development Centre, Malaysia
Malaysians Against Death Penalty and Torture (MADPET)
Malaysian Election Observers Network (MEO-Net)
MAP Foundation, Thailand
Maquila Solidarity Network, Canada
May 1st Coalition for Worker & Immigrant Rights, NY-USA
Migrant CARE, Indonesia
Migrant Forum in Asia (MFA)
Migrant Trade Union, Korea (MTU)
Migrante International
MTUC (Malaysian Trade Union Congress)
National Alliance of Women Human Rights Defenders, Nepal
Network of Action for Migrants in Malaysia (NAMM)
National League For Democracy (Liberated Area )[ NLD(LA)], Malaysia
Pakistan Rural Workers Social Welfare Organization (PRWSWO)
Peduli Buruh Migran, Indonesia
Penang Watch, Malaysia
People's Green Coalition
Pergerakan Indonesia
Perkumpulan PRAXIS, Indonesia
Persatuan Kesedaran Komuniti, Selangor (EMPOWER)
Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS)
Persatuan Sahabat Wanita Selangor
Pinatud a Saleng ti Umili (PSU)
Pusat KOMAS, Malaysia
Quê Me: Action for Democracy in Vietnam
Saya Anak Bangsa Malaysia (SABM)
Sedane Labour Resource Center/(Lembaga Informasi Perburuhan Sedane), Indonesia
Serikat Buruh Migran Indonesia (SBMI)
Shan Women Action Network (SWAN), Thailand
Silicon Valley Toxics Coalition
Solidaritas Perempuan (Women's Solidarity for Human Rights), Indonesia
SOS(Save Ourselves), Malaysia
Suaram, Malaysia
Tenaganita, Malaysia
Thai Committee for Refugees Foundation (TCR)
The Filipino Women's Organization in Quebec, Canada
The GoodElectronics Network
The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF)
Think Centre (Singapore)
UNI Apro, Singapore
UNI Global Union
UNIMIG (Union Migrant Indonesia)
United Filipinos in Hong Kong (UNIFIL-MIGRANTE-HK)
United Pangasinan in Hong Kong (UPHK)
Urban Community Mission (UCM Jakarta), Indonesia
Vietnam Committee on Human Rights
WARBE Development Foundation, Bangladesh
Women Forum for Women, Nepal
Women Legal BUREAU, Philippines
WOREC, Nepal
Workers Assistance Center, Inc (WAC), Philippines
Workers Hub For Change (WH4C)
 War on Want , United Kingdom
Yayasan LINTAS NUSA (Batam Indonesia)

Wednesday, April 25, 2012

When the people or their MPs are not saying 'NO' to BERSIH

Now, BERSIH wants to have their rally at Dataran Merdeka - and we do not hear the people of Kuala Lumpur objecting. Their duly elected Members of Parliament of Kuala Lumpur, who are the legitimate representatives of the people, are also not saying 'No"...

It is odd that the powers and the decision vests with this Local Authority that was appointed by the Federal Government (not elected by the people...), and not with the Members of Parliament who have been democratically chosen by the people who live in Kuala Lumpur.

Another thing that the mayor allegedly said was 'Furthermore, Dataran Merdeka had been gazetted as a prohibited place for rallies under the new Peaceful Assembly Act 2011, he said.' Having looked at the official portal of e-Federal Gazzete, I found no such gazette - maybe still not there?

DBKL to Bersih: Prepare to face the music

Bersih 3.0 supporters at Saturday's Dataran Merdeka sit-in will face the same actions taken against activists who occupied the venue recently, Kuala Lumpur mayor Ahmad Fuad Ismail has warned.

“Action has been taken against those kids at Dataran Merdeka... The same action will taken if you (Bersih supporters) do the same,” Fuad said.

He said this when asked how Kuala Lumpur City Hall (DBKL) would react if the Bersih coalition proceeded with its plan to hold the sit-in at the square from 2pm to 4pm.

Fuad said this at a press conference after a one-hour meeting between DBKL and Bersih representatives failed to reach agreement on the venue for the rally.

'In case of chaos, blame Bersih'

Asked whether DBKL would seek police help to stop the rally from taking place at Dataran Merdeka, Fuad declined to answer.

"When the time comes, you will know. Don't worry... We are ready. We don't allow them to go to Dataran Merdeka... let us do our job,” he said.

NONEWhen it was pointed out to him that a confrontation with the Bersih supporters could create chaos, Fuad said should this happen, it is the rally organisers who should be blamed.

"Who creates chaos? They create it because they want to go against the laws and (threaten) to sit on the road. I have given them alternatives but they didn't give me any alternative," he said.

He claimed that Bersih representatives had said during the meeting that rally participants might sit on the roads surrounding the square if Dataran Merdeka is cordoned off.

In recent days, DBKL has conducted several raids on students and activists who have set up a protest camp at Dataran Merdeka for more than a 10 days as part of a campaign for free tertiary education.

Their tents and belongings have been confiscated by DBKL while one out of six arrested have been charged in court.

Bersih: No time to change venue

Prior to Fuad’s press conference, Bersih co-chairperson Ambiga Sreenevasan told reporters the coalition still hoped that Fuad would change his mind before Saturday.
Thus, she said, Bersih would stick to its original plan to hold the rally at Dataran Merdeka, despite Fuad had offered them Stadium Merdeka, explaining that there was not enough time to change venue.

"If we change place now, it would cause bigger confusion. People will still gather here (Dataran Merdeka) as well as at Stadium Merdeka.

"It is just too little time to inform people," she said.

"We would be prepared to discuss with the mayor on crowd control and security issues if he changes his mind... We are hoping that we can make it happen," Ambiga added.

DBKL: That's not our fault

Earlier, Fuad told reporters that Ambiga’s argument about the time constraint was a weak excuse not to relocate the rally.

He said Bersih has only itself to blame because its official letter to DBKL was only handed on April 19. He said DBKL replied that very day.

"They claimed they had faxed in the letter on April 16 but we didn't receive it. If it is an important letter, why only fax and not hand deliver it to us?

"Hence, the issue of DBKL delaying their request, causing them to have insufficient time to inform their supporters does not arise," he said.

He said Bersih’s argument that DBKL was already informed through an announcement on April 4 of the coalition’s plan to hold a rally there also cannot be accepted.

"That's your intention but it was not official notice... Let's say if I hold a kenduri (feast) but I don't give you any invitation, would you come?"

Fuad: I'm being fair

Fuad also stressed that if Bersih was willing to accept the alternative venue - Stadium Merdeka, which is just 1km away from Dataran Merdeka - he would be willing to hold a joint press conference with Bersih and help publicise the venue change.

"If all of you here report about it, I think the whole world will know."

NONEFuad further explained that he was in a dilemma because allowing Bersih to use the historic square would cause him to be accused of double standards, breaking the laws and failing to protect the lives of 1.8 million Kuala Lumpur folks from being disrupted.

Previously three organisations - Malay rights group Perkasa, anti-LGBT movement and a Malay traditional marital arts group - had made the same request but all had been rejected, he claimed.

As for the decisions to allow other cultural and sports activities to use the venue, Fuad explained that those events were neutral and nobody would feel uncomfortable with them, unlike Bersih which is opposed by certain quarters of the society.

Furthermore, Dataran Merdeka had been gazetted as a prohibited place for rallies under the new Peaceful Assembly Act 2011, he said.

"If they argue that Dataran Merdeka has historical value, same goes for Stadium Merdeka... Independence declaration was made by (first prime minister) Tunku Abdul Rahman there.

"It is more appropriate (to hold rally there) because it is wide and has many parkings," he elaborated.- Malaysiakini, 25/4/2012, DBKL to Bersih: Prepare to face the music

3 migrants shot dead by police-allegedly victims of organ thefts?

The said 3 Indonesian migrants were allegedly shot dead by Malaysian police - a thorough investigation in needed to see whether this killing was justified. Could they have not arrested them without killing them? From what it reported, they seem to not have had guns - but some sort of knives. Could they not have been shot in the legs, etc and arrested? There is just too many shoot to kill incidents in Malaysia - and there must be independent inquiries into all such incidents to show that the actions of the police were reasonable and justified. 

Now, there is allegation that when the bodies arrived back in Indonesia - their organs may have gone missing. It is still an allegation for a 2nd autopsy has not yet been conducted by the Indonesian authorities - which I believe should be done to ascertain whether organs were really removed. If so, there must be an investigation done as to when and where it happened - and why? Doubts can arise as to the real reasons they were shot dead - was it to harvest organs? 2nd autopsy must be done immediately to ascertain whether organs have been removed or not from the bodies of the said 3 victims...Malaysia really must insist on this, and maybe also be present when this 2nd autopsy is done...

Probe into migrant workers` deaths in Malaysia badly needed

Tue, April 24 2012 23:19 | 216 Views

"We hope that the Malaysian government could clarify what really happened."

Jakarta (ANTARA News) - The peculiarity surrounding the recent death of three Indonesian migrant workers in Malaysia has become the government`s focus of attention to ask for clarification from the Malaysian side.

The Indonesian government is waiting for clarification from Malaysian authorities regarding the death of three migrant workers who allegedly fell victim to organ thefts, Foreign Minister Marty Natalegawa said here on Tuesday.

"We hope that the Malaysian government could clarify what really happened to erase allegations that the organs of the three murdered Indonesian citizens had been removed," he noted. 

Meanwhile, the National Agency for Placement and Protection of Indonesian Migrant Workers (BNP2TKI) and national police have stated to repeat autopsy on migrant workers shot dead in Malaysia, to ensure that no organs of the victims have been removed.

Marty added that he had asked the Malaysian embassy in Jakarta to gather information from relevant parties in Malaysia on the death of the three migrant workers in the Malaysian state of Negeri Sembilan.

"The Malaysian ambassador in Jakarta has promised to provide the Foreign Ministry with the information soon," he said.

Marty also noted that information from the Port Dickson hospital, which conducted autopsies on the three murdered migrant workers, as well as from the police in the Malaysian state of Negeri Sembilan, had thus far provided the most important information.

To obtain this information, the Indonesian embassy in Kuala Lumpur had contacted the hospital, whose officials said the autopsy had been conducted in Malaysia, he said.

"Now we need a repeat autopsy to see if stitches on the three bodies resulted from an autopsy or gunshot wound. This (autopsy) will shed light on the alleged organ theft," he said.

The three ill-fated migrant workers, identified as Herman (34), Abdul Kadir Jailani (25) and Mad Noor (28), were killed after Malaysian police opened fire on them. They allegedly had resisted when police approached them.

The Malaysian police were suspicious of the migrant workers since they wore head covers, masks and carried matches, according to officials.

The bodies of the construction workers in Negeri Sembilan, Malaysia, arrived in their home villages in East Lombok district, West Nusa Tenggara province, on April 12 and were buried there. 

Chief of BNP2TKI agency, Jumhur Hidayat, said in Batam, Riau Islands on Tuesday that a repeat autopsy is needed to see the real conditions of the victims.

In the meantime, head of the National Police public relations division, Inspector General Saud Usman Nasution, said on Tuesday, the police would continue with their plan to conduct an autopsy on the victims` bodies. 

Jumhur Hidayat said, a BNP2TKI representative in West Nusa Tenggara province was advocating for the families of the victims and had advised them to seek a repeat autopsy, following suspicion that some of the victims` organs had been removed before they were sent home.

According to him, the suspicion must be examined, and not only be speculated upon, to see whether it was true or not.

Jumhur said the police and a hospital could not conduct the autopsy unless there was a request from the families of the victims and, therefore, BNP2TKI had been advising the families to make the request.

"We could not force them to do it, although we wish the autopsy could be done immediately," he explained.

Jumhur said further, the death case of the migrant workers had received full attention from the government, adding that President Susilo Bambang Yudhoyono had even contacted him to ask about it.

The families of the three victims suspected that some of the organs of the victims had been removed and sold, because of the stitches found on their eyes, chests, and stomachs. The victims` eyes and other organs were suspected to have been removed.

The families` suspicions were based on the account of Herman who saw the conditions of the victims` bodies at Port Dickson Hospital in Malaysia, before they were shrouded and put into coffins and sent to Indonesia. 

Marty also said that he had set up a special team to collect complete and comprehensive information about the deaths of the Indonesian migrant workers.

According to him, the team consisting of expert staff from the Directorate of Protection of Indonesian Citizens and Legal Entities, would soon be sent to Malaysia.

The ministry has contacted the family of one of the victims to express sympathy and extend help, including assistance with regard to the families` intention to demand a repeat autopsy on the victims.

"The government will also help if the families intend to ask for a repeat autopsy to confirm whether or not organs have really been removed," Marty said.

In addition, the Indonesian Embassy`s ranking official in Kuala Lumpur, Mulya Wirana said the embassy will conduct a thorough investigation into the cases of deaths of three Indonesian workers (TKI), who were shot by police in Negeri Sembilan. - Antara, 24/4/2012, Probe into migrant workers` deaths in Malaysia badly needed

Sunday, April 22, 2012

Sambutan Hari Pekerja 2011 - Issues still not addressed

Uploaded by on May 1, 2011
MTUC bahagian Selangor hari ini telah mengadakan sambutan Hari Pekerja 2011 di Subang Jaya Selangor. Lebih kurang 400 ahli telah mengambil bahagian dalam upacara yang penuh bersejarah ini.

8th Day of Student Protest: 2 arrests and tents confiscated..

On the the eighth day of the student protest for free education, there has been arrest of two persons. The students, who are demanding the abolition of PTPTN (Higher Education Loan Fund), as well as the Occupy Dataran activists, decamped yesterday to make way for a royal concert held in Dataran last night. As such, I believe that the arrests and the 'raid' now is unwarranted and wrong.

Freedom of expression, and peaceful assembly is a fundamental right in any true democracy, and our Malaysian government must respect this and allow person/s with differing views and critical of the existing government the space and the freedom to be able to protest and express themselves in public places, noting also the object of such actions is not just to create awareness but to also garner greater support from the public for a particular viewpoint, perspective or cause. To allow public protest and action, but to confine it to closed-door premises, stadiums, etc, away from the places where one has access to the public is absurd and goes against the very purpose of any public action or protest. What good is there to have a public protest in an 'isolated location' away from where the members of the public usually are? 

In Malaysia, the other problem is the fact there is limited or no access to the media for those with different views, or those critical of the government. We still do not even have live coverage of our Parliamentary proceedings on television, or even the radio - and as such, Malaysians will not even be able to see, monitor or even follow the debates in Parliament. All that is needed here is to just transmit unedited coverage of parliamentary proceedings to the people. It is also these lack of accesses to the media, and other medium of communications, that drive people to have public protests, demonstrations and other forms of peaceful assemblies. It is naive of any government to even think that the intended target of these communication is just the government - it is not, it is also for the members of the public. It is also to solicit greater support from our fellow citizens of Malaysia and the global village.

DBKL confiscate Dataran tents, 2 arrested

Two men were arrested this morning when the Kuala Lumpur City Council (DBKL) and police raided their protest camp at Dataran Merdeka, the iconic public square in the city centre.

According to eyewitness and supporter Wong Tay Sy, 27, a huge contingent of DBKL and police officers surrounded the campsite, seized the tents and loaded them into a City Hall truck at about 8 am.

"They waited for us to wake up and took away 61 out of 62 of our tents. We are only left with food, drinks and a recycled bunting,” she told Malaysiakini. “Only one or two of the police were in uniform.”

The 40 DBKL and police personnel were more than doubled the number of protesters, said Wong, who has been camping there since Friday night.

She said that the two arrested - social activist Fahmi Reza and student Umar Mohd Azmi - were "dragged into an unmarked van" by about two or three men each.

"Fahmi kept on asking if he was arrested but they did not answer. He is now at the Dang Wangi police station," she said, adding that the operation was over in 10 minutes.

Two protestors have gone to the station to check on their friends while the rest have collectively decided to stay put at Dataran.

"We are appealing for more people to join us and help us with supplies," she said.

Day 8 of Dataran occupation

This is the eighth day of the student protest for free education. They share the space with the Occupy Dataran movement - a movement to reclaim public spaces.

The students, who are demanding the abolition of PTPTN (Higher Education Loan Fund), as well as the Occupy Dataran activists,
decamped yesterday to make way for a royal concert held in Dataran last night.

While the Occupy Dataran activists re-established their camp late last night after the concert, the students are expected to return today.
NONEWhen contacted, Fahmi (right) who is still held at the police station, said while DBKL officers took away the tents this morning, the police officers had demanded to speak to him personally.

"I was sitting down... the police said they wanted to talk to me but I told them to let me discuss with my friends first, he then started to grab my hand.

"I asked if I was arrested, they then grabbed me and arrested me without giving me any reason," he said.

Another Dataran occupier, Umar who approached the police to question why Fahmi was arrested, was also detained by police.

The DBKL officers involved in the operation are also at the Dang Wangi police headquarters.

Illegal structures

Meanwhile, at a press conference later, Occupy Dataran activist Lew Pik Svonn said Umar was being detained under Section 186 of the Penal Code for obstructing public servants from performing their duties.

"He is also accused of violating Section 4 of DBKL by-laws for illegally erecting structures," she said.

Is is unclear which law was used to detain Fahmi, who was released hours later.

She also claimed that a DBKL officer had assaulted Umar while attempting to arrest him.

Lew said their lawyers have been informed that the police are also planning to separate the arrested duo by shipping off Umar to the Jinjang district police station.

The raid and arrest come just hours after DBKL returned the occupiers' belongings which was
temporarily stored on their struck in order not to obstruct the royal concert last night.

According to another activist, Dianne Tahir, when the items were returned at around 11pm, DBKL officers also issued a summon to Fahmi for illegally setting up tents at Dataran Merdeka however it did not specify the compound amount.

Close to an estimated RM5,000 worth of items including equipments, tents, raincoats, toiletries were confiscated, she added.

"But they left some food behind for us," she added. -
Malaysiakini, 22/4/2012, DBKL confiscate Dataran tents, 2 arrested 

Saturday, April 14, 2012

Bar:- Bills relating to students’ freedoms inconsistent with constitutional guarantees

Press Release

Bills relating to students’ freedoms inconsistent with constitutional guarantees

The Malaysian Bar is disappointed with the two Bills (collectively referred to as “Bills”) — relating to the Universities and University Colleges (Amendment) Act 2012 (“UUCA Bill”) and Private Higher Educational Institutions (Amendment) Act 2012 — because their provisions regulating the freedoms of association, speech and expression of students violate the freedoms guaranteed under Article 10 of the Federal Constitution.

Those provisions are antithetical to The Honourable Prime Minister’s declaration and assurance to Malaysians on 11 April 2012, that after more than half a century of independence and the practice of democracy, we have reached a high level of maturity, and that it is the Government’s duty to guard our Constitutionally-guaranteed rights instead of restricting individual freedoms.[1]

The proposed amendments contained in the Bills suggest, however, that others in Government apparently do not consider our university students as deserving of equal protection of individual freedoms and rights, ostensibly because they lack the requisite level of maturity.

Whilst the Bills permit membership in a political party, the rights of association, speech and expression are qualified to such an extent as to render such rights illusory, as the proposed amendments:
(1) prohibit a student from being involved in political party activities within campus; 
(2) empower the board of directors of a university or the registrar general to determine if the society or organisation that a student intends to join is “unsuitable to the interest and well-being of the students or the university” (although this does not include political parties);
(3) prohibit a student from standing for election or holding any post in any society or organisation on campus if the student holds any post in a political party; and
(4) prohibit a student from expressing or doing anything that may be reasonably construed as expressing support for, or sympathy with, or opposition to, any society or organisation that is unlawful, or that the board of directors of a university or the registrar general determines to be “unsuitable for the interests and well-being of the students or the university”.

These provisions are unnecessarily restrictive, unreasonable and disproportionate barriers to a student’s freedom of association under Article 10(1)(c), and freedoms of speech and expression under Article 10(1)(a), of our Federal Constitution.

The current laws have long prevented local university students of all ages from being actively involved in a significant aspect of the democratic process.  It has prevented these Malaysians from expressing their views or doing anything that may reasonably be construed as expressing support for, or sympathy with, or opposition to, political parties. Universities — as with all institutions of higher learning — must, as one of their primary duties, embrace and espouse the development of critical thinking by their students and the encouragement of robust debate.  This is vital to ensure a continuous stream of thinking Malaysians who are able to advance and build our nation.

In this regard, the Malaysian Bar fully supports the move by the Barisan Nasional Backbenchers Club, led by Khairy Jamaluddin (Member of Parliament for Rembau), to table a supplementary amendment to the UUCA Bill to remove proposed sections 15(2)(c) and (d).  We also urge the removal of subsections 15(2) to (5) altogether.

Consistent with Deputy Higher Education Minister Datuk Saifuddin Abdullah’s reported comment[2] that the Government would lose in moral terms if it appealed against the decision of the Court of Appeal in Muhammad Hilman bin Idham & 3 Others v Kerajaan Malaysia & 2 Others, which declared the current restrictive section 15(5(a) of UUCA unconstitutional, the Government should withdraw its appeal.

By amending the Bills in the manner suggested above and withdrawing the appeal, the Government would be taking a positive and noteworthy step forward in fulfilling its duty to safeguard the constitutional guarantees for all Malaysians.

Lim Chee Wee
Malaysian Bar
13 Apr 2012



Friday, April 13, 2012

SECURITY OFFENCES (SPECIAL MEASURES) BILL 2012 - Some comments and concerns

SECURITY OFFENCES (SPECIAL MEASURES) BILL 2012 - Some comments and concerns

"solely for his political belief or political activity" - there is concern with regard the definition section as it limits it to "directed towards any Government in the Federation" - when it comes to ordinary persons and maybe even civil society groups - the concern would be whether there would be protection if it is not 'directed towards' because some of these may not be specifically 'directed towards' but may be directed to Malaysians and other persons, the media, some companies in Malaysia, some political party of personality (or even bodies like the ILO, UN, other governments, etc,) but is related to and/or relevant to the government of Malaysia. Hence, the wordings 'directed towards an government in the Federation' may be too limiting and can be narrowly interpreted.... Political activity of individual persons and civil society groups is a funadamental right that need to be protected...Remember political belief and activity is non something that is confined just to political parties and politicians - but is something that everyone has a right to.

Sec. 4(3) (3) No person shall be arrested and detained under this section solely for his political belief or political activity.

(12) For the purpose of this section, “political belief or political activity” means engaging in a lawful activity through—
(a) the expression of an opinion or the pursuit of a course of action made according to the tenets of a political
party that is at the relevant time registered under the Societies Act 1966 [Act 335] as evidenced by—
(i) membership of or contribution to that party; or
(ii) open and active participation in the affairs of that party;

(b) the expression of an opinion directed towards any Government in the Federation; or

(c) the pursuit of a course of action directed towards any Government in the Federation.

Power to intercept communication - section 6 

- this power is most dangerous and certainly an invasion of privacy - without the knowledge of the affected individual, let alone with no stipulation as to the time frame that this invasion of privacy is permitted..

The risk is the government can now legally 'bug' people's phones, intercept e-mail communications, etc -- and it can be something done permanently. All persons active in civil society, political parties, trade unions, etc - may now have their 'communications' permanently being monitored and intercepted. Who would they want to continuously monitor - Ambiga and the people in BERSIH, those involved in HIMPUNAN Hijau, those involved in HINDRAF and in fact maybe all those in civil society, trade unions and opposition political parties,... maybe also ....

Can this 'invasion of privacy' be challenged in court? Well, no mention about this right at all.... Can there be a judicial review to challenge the AG's authorization? There must be - but the present law does not provide for this.

Can the 'evidence' gathered through these actions of invasion of privacy be used in court? It should not be allowed to be used, that is my belief...

Will the police 'openly' use this power - i.e. section 2(b) by entering premises and installing these devices to psychologically instill 'fear' and attempt to silence advocates for rights and justice? Most likely...

From a perusal of some of the grounds for detention of persons who have been detained under the ISA in the past, it is obvious that the police have already been listening in on private conversations, bugging phones, monitoring emails, etc - BUT once this is given 'legality' as is being done through this act - it is even more dangerous and wrong for now whatsoever 'evidence' gathered could also be used against persons. Most importantly, it is a blatant invasion of privacy..

6. (1) Notwithstanding any other written law, the Public Prosecutor, if he considers that it is likely to contain any information relating to the commission of a security offence, may authorize any police officer—
(a) to intercept, detain and open any postal article in the course of transmission by post;
(b) to intercept any message transmitted or received by any communication; or
(c) to intercept or listen to any conversation by any communication.

(2) The Public Prosecutor, if he considers that it is likely to contain any information relating to the communication of a security offence, may—
(a) require a communications service provider to intercept and retain a specified communication or communications of a specified description received or transmitted, or about to be received or transmitted by that communications service provider; or
(b) authorize a police officer to enter any premises and to install on such premises, any device for the interception and retention of a specified communication or communications of a specified description and to remove and retain such evidence.

Sensitive information to be used as evidence by the Public Prosecutor - the avoidance of pre-trial disclosure

The amendments allow for the Public Procedure to evade the duty of disclosure provided for in section 51A - i.e. the right of the accused to be able to see the 'evidence' that will be used against him/her in trial, and this is a most important right to enable the accused to prepare his/her Defence.

Worse still, the Public Prosecutor can make an application to court ex-parte (i.e. without the knowledge of or the right of the accused person  having the right to be heard) to allow them to evade the duty of full disclosure...

When the Public Prosecutor hides evidence from the accused, it  is very unjust - for the accused will be denied the right and opportunity to present a 'proper defence' --- suddenly to be surprised by 'previously undisclosed evidence' in mid-trial that may completely destroy the very defence of the accused. In any trial, there may be a variety of possible defences...and strategies that the accused's lawyer may proceed on, and the hiding of 'evidence' until it is disclosed in trial is very very wrong. Gone will be the opportunity of the accused to verify and investigate whilst defence is being prepared to counter that evidence, or its' source or its credibility...or relevance.

Remember, we are talking about the situation when a person is being charged and will be tried - and thus pre-trial disclosure is fundamental and an important right to the accussed. We certainly do not want convictions based on trickery or 'dishonesty' - but convictions based on the truth where the accussed has been given all opportunity and rights to properly defend himself/herself against any charge.

Now, even the courts power to direct Public Prosecutor to reveal 'sensitive information' is taken away if 'if the Minister certifies that the production of the statement or summary is prejudicial to national security or national interest.'. There is NO mention about the availability of judicial review to challenge the Minister or the Public Prosecutor...

Note section 51A is already bad when it provides that the  'prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.' - This fact may thus never even be revealed to the court. This fact that is 'favourable to the accused' , it it was disclosed would likely result in a finding of not guilty...

- 8. (1) Notwithstanding section 51A of the Criminal Procedure Code, if the trial of a security offence involves matters relating to sensitive information the Public Prosecutor may, before the commencement of the trial, apply by way of an ex parte application to the court to be exempted from the obligations under section 51A of the Criminal Procedure Code.

Section 51A of the Criminal Code is this...

51A.  Delivery of certain documents. (Criminal Procedure Code)
(1) The prosecution shall before the commencement of the trial deliver to the accused the following documents:
(a) a copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any;
(b) a copy of any document which would be tendered as part of the evidence for the prosecution; and
(c) a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.
(2) Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.
 Admissibility of intercepted communication

- Today, is very easy for people to tamper with recordings, etc - splicing it together to suit the intended purpose, and as such the inability of the accused person's to challenge the ' the procedure, method, manner or any means or devices, or any matter whatsoever with regard to anything done..' with regard the alleged intercepted communication is definitely very dangerous. In the 1987 ISA detentions in Singapore, there was also allegations of doctored pictures, etc - but in 2012, it is even more easy to 'doctor' or even create 'evidence' ...

Admissibility of intercepted communication
24. Where a person is charged for a security offence, any information obtained through an interception of communication under section 6 shall be admissible as evidence at his trial and no person or police officer shall be under any duty, obligation or liability or be in any manner compelled to disclose in any proceedings the procedure, method, manner or any means or devices, or any matter whatsoever with regard to anything done
under section 6.

Admission of confessions - this goes against even the Criminal Procedure Code..
- here they want to admit confessions in writing by the Sessions Court Judge - certainly not at all safe.

1- The Session Court Judge is a public servant - and unlike High Court Judges and judges of the higher courts is not even protected by measures needed to ensure their independence. [Now Session Court judges are under the Judicial and Legal Services Commission - and this is also the same Commission under which Public Prosecutors are. He may also be a former Public Prosecutor. ]

2 - In Hong Kong, for example, when it comes to confessions and questioning, all is recorded by video - and not just from one angle but from at least 3 angles, and these are made available to the accused's lawyer - surely in 2012, we must not only talk about the admission of statements/confession just in writing but also with the said video recording of the process that will also show the court the state in which the accussed was when his confession was recorded, his demeanour, the presence/absence of other police personnel or 'intimidations', threats,...

3 - Confessions should never be admitted as evidence

(2) Such statement or confession shall be recorded in full in writing by the Sessions Court Judge to whom it is made and shall then be forwarded to the court before which the case is to be tried.

Finally, I saw that this Bill have been uploaded on the Parliament Website, and above are some of my initial comments about this Bill. 

Note also that what the government intends to repeal is just the ISA - not the other 2 laws that allow for Detention Without Trial, which could very easily be used like the ISA. Emergency (Public Order and Prevention of Crime) Ordinance 1969 could, I believe, very easily be used against persons who the ISA was used before, more so since there are now 'new crimes'....

All Detention Without Trial Laws need to be repealed...