KUALA LUMPUR, Jan 1 — In a year filled with heartaches and reminders that rights can be severely restricted, there was also cause for good cheer as Malaysians scored victories along the way.
Here Malay Mail Online looks back at some of the milestones in the legal and human rights sphere in Malaysia:
1. Bersih 2.0 chalks up freedom of assembly victories in court — Sweet
The polls reform group won a series of court cases last year, including the Court of Appeal’s August 29 ruling that the Home Ministry’s ban on the yellow Bersih 4 rally T-shirts was “unreasonable”.
The Court of Appeal had also unanimously ruled that the federal government was not entitled to sue the group for property damages during a 2012 rally, while the Court of Appeal and High Court respectively threw out illegal assembly charges against its leaders.
Despite violent intimidation during a prior nationwide convoy and death threats against its activists, the group managed to hold the Bersih 5 rally peacefully on November 19, with the help of police who also kept its participants apart from the Red Shirts movement, led by Sungai Besar Umno leader Datuk Seri Jamal Yunos.
This was marred only by the crackdown and arrests of activists and politicians the day before the rally, including Bersih 2.0 chairman Maria Chin Abdullah, who was held in solitary confinement under a law allowing detentions without trial. Malaysians held daily vigils until her release 10 days later.
Three Malay trader groups also failed in their last-minute bid to get a court order to stop the Bersih 5 rally that was just days away, with the High Court quizzing them on their delay despite the rally being publicised for months and their failure to show evidence of losses from past rallies.
The High Court also highlighted the police’s legal duty to prevent clashes.
2. Malaysians win recognition worldwide — Sweet
Transgender activist Nisha Ayub became the first transwoman to receive the US Secretary of State’s International Women of Courage Award. The US city of San Diego also honoured her by naming a day after her.
The Malaysian Bar became the first to receive the International Association of Lawyers’ inaugural Rule of Law Award, while Bersih 2.0 won South Korea’s 2016 Gwangju Prize for Human Rights.
Activist and writer Jac Sm Kee was awarded the 2016 Stieg Larsson prize for her work against online harassment and for gender equality while controversial Malaysian political cartoonist Zulkiflee Anwar Ul-Haque, better known as Zunar, won the Cartooning for Peace Award with his satirical drawings.
3. Foreign funding probes on civil society — Bitter
Following claims that US billionaire George Soros’s Open Society Foundations (OSF) funded local civil society to topple the government, police went after Bersih 2.0, Empower, the Bar Council, news outlet Malaysiakini though they all refuted the allegations.
Investigations were carried out under Section 124C of the Penal Code which criminalises attempts to undermine parliamentary democracy and which carries a mandatory jail term for a maximum 15 years. Lawyers criticised the provision as vague and noted there were no existing laws that criminalises foreign funding.
4. Of sedition and intention — Bittersweet
- In its November 25, 2016 landmark ruling, the Court of Appeal unanimously declared the Sedition Act’s Section 3(3) as invalid as it violated the constitutional guarantee of freedom of speech and expression.
The ruling means the prosecution will now have to prove a person had intended to commit sedition in order to secure a conviction, but the government has since appealed. The Federal Court will hear the government’s application for leave to appeal on February 21, 2017.
- Acquitted: The Kuala Lumpur Sessions Court acquitted on February 19 Universiti Malaya’s assistant professor Azmi Sharom, after the Attorney-General withdrew sedition charges over his academic opinion as a senior law lecturer. PKR’s Chua Tian Chang (March 2, High Court). DAP’s R.S.N. Rayer (April 29, July 28 — both Sessions Court). DAP’s Ng Wei Aik (May 19, Sessions Court. Appeal pending). Activist Muhammad Safwan Anang (Dec 20, Court of Appeal overturns Sessions Court’s 10-month jail term, High Court’s RM5,000 fine).
- Case dropped: After the AG dropped a sedition charge against Johor PKR chief Hassan Karim, the court granted him on February 17 a discharge not amounting to acquittal. Four Sabah secessionists (September 28, Sessions Court).
- Reduced sentences: Activist Adam Adli Abdul Halim (February 18, High Court replaces one-year jail term with RM5,000 fine. Appeal hearing on February 2, 2017). Activist Hishamuddin Md Rais (May 16, Court of Appeal reverses High Court’s nine-month jail sentence, restores Sessions Court’s RM5,000 fine).
- Convictions: Activist Haris Ibrahim (April 14, Sessions Court, eight months jail). Vivian Lee (May 27, Sessions Court, six month jail). Parti Amanah Negara’s Mohd Fakhulrazi Mohd Mokhtar (August 25, Sessions Court, eight months jail). Isma’s Abdullah Zaik Abd Rahman (August 30, Sessions Court, RM2,000 fine) PKR’s Chua Tian Chang (September 28, Sessions Court, three months jail and RM1,800 fine). Those with jail terms have their appeals pending.
5. Malaysians can now sue for sexual harassment — Sweet
In a landmark ruling on June 2, the Federal Court introduced the tort of sexual harassment into the Malaysian legal system, which paves the way for Malaysians to sue for losses over such harassment — even with the lack of relevant legislation.
The Employment Act only imposes a duty on employers to deal with complaints of sexual harassment at the workplace, but does not address the rights and liabilities of the alleged harasser and the victim.
6. Land struggles of Orang Asli, Orang Asal — Bittersweet
The indigenous tribes in peninsular Malaysia continued to face a tough year as they defended their land from being destroyed or taken away, with the Kelantan Forestry Department in November nabbing 47 Orang Asli activists and demolishing their months-long blockade to stop timber from being removed from a forest reserve. The Orang Asli have since started to rebuild its Gua Musang blockade in protest against logging activities there.
Joy came early in the year for Sarawak’s natives who regained their native customary land after the government repealed last February the gazetted acquisition of the land for the now-suspended Baram dam project.
But just days before Christmas, the Federal Court decided that Sarawak’s Dayak natives cannot apply their native customary rights to claim virgin forests as their communal forest reserves falling within their territorial domains, saying that no state laws gives legal effect to such claims. The ruling is expected to affect 30 cases at the Court of Appeal — including 20 pending ones --- and over 100 cases at the High Court, a lawyer said.
7. Federal Court upholds rule stopping non-Muslims from becoming Shariah lawyers — Bittersweet
On March 24, non-Muslim lawyer Victoria Jayaseele Martin lost her final bid to become a Shariah lawyer in the Federal Territories, despite having the relevant academic qualifications — including a diploma in Shariah Laws and Practice from the International Islamic University of Malaysia.
The Federal Court reversed a previous landmark ruling in her favour, with five judges unanimously deciding that the Muslim-only requirement for admission as Shariah lawyers in the Federal Territories did not breach the Federal Constitution’s guarantees of equality before the law and non-discrimination, liberty and freedom to form associations.
There was a split decision however on whether the Muslim-only rule remained valid when read with a federal law, with two dissenting judges saying it was invalid as records showed Parliament had never intended to bar non-Muslims with sufficient knowledge of Islamic law from becoming Shariah lawyers.
8. PAS’ ‘anything-but-death’ Bill returns, toned down — Bitter or sweet, still undecided
Malaysians were caught by surprise last May when the government pushed up PAS president Datuk Seri Abdul Hadi Awang’s private member’s Bill to increase the Shariah courts’ powers to hand down punishments, but he asked for debate on it to be deferred.
Widely seen by critics as paving the way for hudud enforcement in Malaysia but denied as such by Hadi, the Bill — which by then was on Parliament’s agenda for the third time — seeks to remove the current limits of the Shariah courts’ sentencing powers to three-year jail term, six strokes of whipping and RM5,000 fine. In its May version, the Bill sought to empower the Shariah courts to mete out any punishment except for the death penalty.
Hadi tabled last November an updated version of the Bill that now seeks to push up the limit to 30 years of imprisonment, 100 lashes and RM100,000 fine; but has asked for the Bill’s parliamentary debate to be deferred again.
9. A tale of two courts, two children — Bittersweet
On February 10, 2016 the Federal Court reversed two previous rulings granting Hindu mother S. Deepa full custody of her two children, splitting custody of the 11-year-old daughter to her and her eight-year-old son to her Muslim convert ex-husband Izwan Abdullah who had snatched the child away. Izwan had previously also unilaterally converted both children to Islam and obtained custody for them in the Shariah courts.
Amid the heartbreak for Deepa, the Federal Court reaffirmed that the civil courts have the exclusive jurisdiction to decide on grant divorces and custody orders for civil marriages, adding that it is an “abuse of process” for the Muslim convert spouse to seek child custody rights in the Shariah courts.
Highlighting that the civil courts continue to have jurisdiction despite Izwan’s conversion to Islam, it said the Shariah High Court has no jurisdiction to dissolve the civil marriage between Deepa and Izwan, or to grant child custody orders.
10. Unilateral child conversion: A Sarawak case, a Perlis law, a federal law — Bittersweet
- Following a court victory and government intervention, Sarawakian Christian Roneey Rebit, 41, finally received a new identification card last October that no longer carries the word “Islam” and reverts to his name at birth.
The Kuching High Court had in a landmark ruling on March 24 found that Roneey was converted by his Muslim convert mother as a child but had never practised Islam, noting that the Bidayuh native was not challenging the conversion but was exercising his constitutional right to religious freedom. The court granted Roneey’s bid as an adult to be declared a Christian.
- On November 21, the federal government finally tabled in Parliament a proposed law change that bars a Muslim convert spouse from unilaterally converting their children from a civil marriage to Islam. This amendment to the Law Reform (Marriage and Divorce) Act has yet to be debated.
- Just two weeks later, Perlis approved a law change that effectively allows unilateral conversion to Islam by removing the requirement for both parents’ consent. The new legal position in Perlis is at odds with laws in five states, but matches the laws of five other states and the Federal Territories.
Putrajaya has said state laws inconsistent with federal laws will be invalid, while lawyers have said that those affected would have to go to court to challenge unilateral conversions, even if and after the proposed federal ban kicks in.
