Human Rights Dialogue 1.6 (Fall 1996): "The Human Rights Discourse in East Asia"
September 5, 1996
The following writings were selected because they represent issues that are now in the forefront of social debate in Malaysia. Increased access to education and wealth due to a booming economy has led to a growing awareness that a better quality of life means that basic human rights in a democracy—liberty, freedom of expression, the right to information, the right to a healty environment—must have more substance than they have had in the past. The selections address issues where there is still room for meaningful articulation of rights and responsibilities. The rights of a significant and growing number of people in Malaysia—for example, those of foreign workers and HIV/AIDS victims—still remain undefined.
The multibillion-dollar privatized Bakun Hydroelectric Power (BHEP) project is the subject of two reviews because it has gripped the nation in a relentless discussion of whether it is really for public benefit or private profit. Although the authorities profess commitment to environmental conservation, the BHEP is a clear example of how the environment and the rights of people as defined by environmental laws in Malaysia are cast aside to make way for purported "national development." Worse still, the government, using the Official Secrets Act, was less than forthcoming with answers to pertinent questions raised by NGOs and affected native communities.
As these writings point out, the state continues to be paternalistic, wielding unbridled powers, and is intolerant of alternative views. The promised governmental review of the Internal Security Act of 1960 never materialized. Laws that curtail freedom of information and expression continue to exist. The system of checks and balances essential to parliamentary democracy in Malaysia is being whittled away by a powerful executive in full control of parliament and seen to be working closely with business interests, and by an embattled judiciary that is facing a crisis of confidence. These trends suggest that the long struggle to redefine human rights will continue to be a primary concern for civil society in Malaysia.
Two Faces: Detention Without Trial (Dua Wajah:TahananTanpa Bicara) by S. Husin Ali. Kuala Lumpur: INSAN, 1996.
This is a painstaking record of the six years that the author, S. Husin Ali, spent in detention without trial under the Internal Security Act (ISA). At the time of his arrest in 1974, the author was a respected professor of anthropology and sociology at the University of Malaya. Published twenty-one years after his arrest and based on notes taken while detained, this book resurrects the political events that preceded S. Husin Ali's detention, the torture and harassment he was subjected to, and the failure of the legal system to protect his rights.
The message is clear: There is too much room for abuse of the ISA for dubious political ends, and the ISA is a travesty to any society's notion of human rights and dignity. Released just when the authorities announced that the ISA was due for review, this book presents the Malaysian public with the brutality and injustice of ISA detention. It reflects the determination of the human spirit to fight for what is right and just. S. Husin Ali never gave in to his tormentors and he joins the few courageous Malaysians who dared to go public with their criticism of ISA detention after their release. The author urges the present leadership (including Deputy Prime Minister Anwar Ibrahim, a co-detainee of the author for two years in the same detention camp) to repeal this draconian law. The standing of the author, and the absence of bitterness and accusations in his writing, lends credibility to his account of detention under the ISA. (Other books written by former ISA detainees include: Special Guest: The Detention of an Ex-Cabinet Minister by Aziz Ishak; Universiti Kedua (Second University) by Kassim Ahmad; 445 Days Behind the Wire by Kua Kia Soong; Fragments from Kamunting by Poh Boon Sing; and The Price of Loyalty by James Wong.)
"Why the EIA (Environmental Impact Assessment) of the Bakun Project is Invalid," Utusan Konsumer, July 1996, Vol. 26, No. 11. (English-language edition).
"Kenapa EIA Projek Hiro Elektrik Bakun Tidak Sah," Utusan Pengguna, July 1996 Jil 19 Bil 7, ms. 1, ms. 4 (Malay-language edition).
This article analyzes the recent Kuala Lumpur High Court judgment on the Bakun Hydroelectric Project (BHEP) and reviews the events which precipitated the litigation. It explains the implications of the landmark judgment and reports on the conflicting reactions to the enforceability of the judgment by prominent government leaders and project developers. Although the author does not say so directly, in my opinion many such reactions were tantamount to contempt of court. The High Court's judgment invalidated the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Amendment Order of 1995 and ordered the project developer to comply with the Environmental Quality Act of 1974 before proceeding with the construction of the BHEP. The 1995 amendment order was deemed invalid because of its retroactive application which removed rights that had already accrued to the plaintiffs under the Environmental Quality Act of 1974, namely the right to public participation in the environmental impact assessment process of the BHEP.
The issues raised in this case are far-reaching. First, it exposes the executive's bending over backward to subvert a legal process in order to get the BHEP off the ground without delay. Courageously, the High Court highlighted the illegality of the government's actions at a time when the independence of the judiciary in Malaysia was being questioned. The case also reinforced the right to public participation in the environmental impact assessment process, thereby adding further weight to the right of locus standi for interested parties in public interest litigation in Malaysia. Most importantly, it was a mighty victory, albeit short-lived, for three humble natives of Sarawak against powerful state and business interests. (The Court of Appeal on June 29, 1996 suspended the High Court judgment. Readers may refer to Aliran Monthly, 1996, 16(5) for an analysis of the High Court judgment, more reports, updates, and reactions from several NGOs, political parties, and social analysts on the subject.)
Power Play: Why the Bakun Hydroelectric Project is Damned by the Institute for Social Analysis. Kuala Lumpur: INSAN, 1996.
This book reviews the environmental, economic, social, and political arguments relating to the privatized Bakun Hydroelectric Project (BHEP), poses fundamental questions about the project's desirability and viability, and exposes the political maneuvering that surrounded the awarding of the contract to a private company. In doing so, it shows how public accountability was undermined by subversion of the environmental impact assessment process and the withholding of vital information on the BHEP under the Official Secrets Act, which resulted in a lack of government transparency. The book calls for a reassessment of the BHEP with open public discussion.
Since the project was resurrected in 1990 much literature has become available in Malaysia that argues against the BHEP. This book provides a good overview of the arguments put forth to-date. What is new in this book, though, is revelations of behind-the-scenes political intrigues that raise questions as to whether the BHEP was resurrected for private profit or public benefit. The fact that it dares to name big names in print is bold.
The lack of openness about information on the BHEP is a sad indictment of both the right to information for all Malaysian taxpayers and the right to development, particularly for the 10,000 indigenous Malaysians directly affected by the project.
"Baffling Decision: Judge Who Defamed the Judiciary Won't Be Prosecuted" Aliran Monthly, vol. 16, no. 5, 1996.
After the attorney general's decision not to rosecute the judge responsible for the poison-pen letter against the judiciary, which was announced at a press conference on July 9, 1996, Aliran responded by reproducing its own press statement of that date, that of the Bar Council and the United Nations Special Rapporteur on the Independence of Judges and Lawyers, dated July 10, 1996, and a brief yet provocative letter from a reader. Together these responses question the integrity of the attorney general's decision and its effect on the public's perception of an impartial judiciary in Malaysia. The attorney general himself had revealed that the poison-pen letter contained 112 allegations against twelve judges—twenty-one allegations of abuse of power, thirty-nine of corruption, and fifty-two of misconduct, immorality, and personal attacks. Yet he refused to name the judge, refused to prosecute the judge, refused to give the judge's reasons for writing the poison-pen letter, and refused to provide grounds for stating that the allegations made had been proven baseless.
There has been disquiet for some time now in Malaysia over allegations of impropriety and corruption in the judiciary. In March, before the poison-pen incident, when the attorney general ordered the police and the Anti-Corruption Agency to investigate these allegations in the judiciary, the public eagerly awaited the findings. But public concerns were not adequately addressed, and the recent decision of the attorney general not to prosecute further diminished public regard for the judiciary and the attorney general. (Chandra Muzaffar of Just World Trust, in his article on "Judiciary and Justice," New Straits Times, August 5, 1996, argues that any dialogue on "Asian values" should not overlook the high regard which all Asian cultures and religions have for impartial judges and a ruler who respects the independence of the judiciary.)
"Controversy Over Women's Rights: NGO Exposes Maltreatment of Migrants in Malaysian Detention Camps" Pesticide Monitor, vol. 4, no. 4, 1995.
Tenaganita, a women-workers social activist group, exposed alleged abuse, torture, inhumane treatment, and deaths of migrant workers in detention camps in a memorandum addressed to various government ministers and the media. Though the government admitted that forty-two detainees had died of "natural causes" while under detention, the director of Tenaganita, Irene Fernandez, now stands charged in the Magistrates Court of "maliciously publishing false news" under Section 8A (1) of the Printing Presses and Publications Act 1984. If convicted, she may be sentenced to imprisonment for three years or fined, or both. This article details the chronology of events from the time the memorandum was released to Ms. Fernandez's subsequent arrest and prosecution. Her case highlights the intolerance of dissent in Malaysia.
This case also amply illustrates why police prosecution of any legitimate expression in the public interest should not be tolerated by any society, especially when the people affected are unable to voice their suffering as a result of their marginalized status. Ms. Fernandez and Tenaganita are being persecuted for championing the cause of exploited migrant workers who are contributing to the buoyancy of the Malaysian economy. It is to their credit that initial steps have been taken by the authorities to improve the conditions of these workers. In my opinion, if the motive for the prosecution was to divert attention away from the real issues, it has certainly had an entirely opposite effect.
"First Steps Towards Preserving Rights," by Sek Yong, Sunday Star, December 3, 1995.
This article reports on the launching of the AIDS Charter, the first document of its kind in this region, that attempts to define rights and responsibilities of individuals and organizations involved with AIDS issues. Drafted with the participation of representatives from government departments, NGO, the business community, religious leaders, and people with HIV/AIDS, the charter is not a legal document, but is hoped to become morally binding. This is a laudable pioneering effort in a country where there is still much fear and misconception about HIV/AIDS, which leads to discrimination and violation of the rights of HIV/AIDS victims and family members. It is glaring that there is still no official endorsement of the charter by the government. Recognizing that the sensitivity of the issue impacts on a wide range of conflicting concerns, the fact that a charter could have emerged out of a collective collaborative effort of these various interested parties is in itself quite an achievement. Congratulations are in order for the Malaysian AIDS Council for taking the first step in bringing people together in what will undoubtedly be a long struggle in Malaysia to define and protect the rights of people living with and affected by HIV/AIDS.
Reviewed by Rajeswari Kanniah, dean of the School of Law, Petaling Jaya, Selangor Darul Ehsan, Malaysia. Ms. Kanniah was formerly the legal adviser to the Consumers Association of Penang and Sahabat Alam Malaysia (Friends of the Earth of Malaysia). As an advocate and solicitor, she is actively involved in public interest litigation in consumer and environmental cases in Malaysia.