SUARAM Welcomes Extension of Temporary Injunction, Next Decision should Uphold the Refugee Convention


SUARAM Welcomes Extension of Temporary Injunction, Next Decision should Uphold the Refugee Convention

SUARAM welcomes the extension of the Australian High Court’s temporary injunction of the deportation of 16 asylum seekers under the controversial asylum swap deal between the Australian and Malaysian governments.

On 7th August, an Australian refugee lawyer, David Manne had launched proceedings in the High Court in Melbourne and succeeded to temporarily stop and prevent the deportation of the asylum-seekers which comprises accompanied and unaccompanied minors.

The first temporary high court’s injunction will only be in force until 4.15pm (AEST), on 8th August, pending the hearing of another application in High Court in Canberra at 2.15pm (AEST). Today’s hearing in High Court in Canberra had decided to extend asylum swap injunction until there is a full hearing later this month.

SUARAM is in full support of the legal challenge made by the Australian lawyers. We hope that the Australian High Court will uphold the 1951 Refugee Convention in their decision making process in the next full hearing later this month.

SUARAM believes that asylum-seekers arriving in Australia have the right to seek asylum and claim refugee protection. As a state party to the 1951 Refugee Convention, Australia is showing a bad example in their treatment of asylum seekers by sending them to Malaysia and to other states in the region that have not ratified the Refugee Convention.

At the same time, we believe that the choice of Malaysia which is expected to be a country for off-shore processing is also an erroneous decision made by the Australian government. Australia has disregarded Malaysia’s record of poor treatment of asylum seekers and refugees, and her status as a non-state party to the 1951 Refugee Convention.

SUARAM also believes that the suicide attempts and hunger strikes launched by the asylum seekers at Christmas Island last week had demonstrated the inhumane and vigorous elements enshrined within the asylum swap arrangement.

Once again, SUARAM strongly condemns the arrangement as it is a clear violation and denial of the rights of asylum-seekers to seek asylum in Australia and to obtain refugee protection. The argument that the deal would reduce the people smuggling and human trafficking business model is an unjustified security concern.

We are of the view that these transnational crimes relating to migration such as human trafficking and smuggling must not be treated merely as a crime but must also include and consider the human rights of the individuals involved. States must also take into consideration that refugees fleeing harm and persecution sometimes use whatever means they deem necessary to seek protection. There is no compromise for human rights and all crime prevention plans undertaken must be consistent and in line with human rights principles.

As such, SUARAM urge the Australian and Malaysian governments to abandon the asylum swap deal and urge both governments to ensure that future bilateral or regional cooperation deals relating to human trafficking and smuggling includes the highest respect for human rights of the trafficked and smuggled persons.

Released by,

Andika Ab. Wahab
Refugee Coordinator


1.      Case: Habeas Corpus hearing of Six EO detainees
a.       Dr Michael Jeyakumar Devaraj  (Sungai Siput MP and PSM Central committee member)
b.      M Sarasvathy (PSM deputy chairman)
c.       Choo Chon Kai (Central committee member)
d.      M Sukumaran  (Central committee member)
e.       R Saratbabu (Youth chief)
f.       A Letchumanan (Sungai Siput branch secretary)
2.      Respondent:
a.       Government of Malaysia
b.      Inspector General of Police (IGP) and
c.       Home Minister
3.      Judge at the High Court: Justice Su Geok Yiam
4.      Applicants (EO6) represented by:
a.       Haji Sulaiman Abdullah
b.      Edmund Bon Tai Soon
c.       Yudistra Darma Dorai
d.      Maha Balakrishnan
e.       James Khong
5.      Watching brief by Roger Chan (KL Bar)

Suara Rakyat Malaysia (SUARAM) held an observation brief today at the habeas corpus hearing of 6 Parti Sosialis Malaysia (PSM)  members who had been detained under the Emergency Ordinance (Public Order and Prevention of Crime) on 2 July 2011. The Ordinance allows the Home Minister to detain persons without trial for up to two years which may be renewed indefinitely.
Today, the 6 former detainees withdrew their action against the government, Home Minister and the Inspector-General of Police (IGP) upon being served with the affidavits in reply and because they had already been released. This withdrawal was done without concession or admission of the contents of the affidavits in reply and the allegations made against them. The EO6 will be pursuing further legal action for their wrongful arrest and detention, and they reserved their rights to do so in Court today.
The 6 had been released on 29 July 2011 unconditionally but were then charged on 3 August at the Butterworth Sessions Court for possession of subversive documents under the Section 43 and 48(1) of the Societies Act as well as Section 29(1) of the Internal Security Act together. 24 other PSM members who were also arrested on June 25 in the run-up to the July 9 BERSIH rally had earlier been charged for the same offenses.
The Respondents’ counsel submitted that the detainees were no longer in police custody and therefore the habeas corpus applications to examine their detentions have become academic.
The Applicants’ counsel submitted that the Respondents were to file their affidavits in reply to justify the detention but failed to do so. The Respondents’ counsel informed the Court that they had filed 19 affidavits in reply on 29 July but did not serve them.
Unlawful Detention

Lead counsel for the Applicants, Haji Sulaiman Abdullah Said that after looking at the affidavits, the Applicants maintain that they have done nothing against the law and it was because of unified public pressure that forced the authorities to release the detainees.
 Judge and the Judiciary: In Favour of Human Rights Violators?

SUARAM’s observation finds that the learned High Court Judge Justice Su Geok Yiam had been found wanting in upholding the international human right norm to a speedy hearing in this case dealing with the liberty of 6 Malaysians.
On 6 July 2011, the 6 filed a writ of habeas corpus to challenge their detention.
Initially, the High Court scheduled the hearing on 12 August 2011. The solicitors for the EO6 succeeded, despite much resistance from the Respondents, in their request to bring forward the hearing and the Court fixed 22 July 2011.
On the day of the hearing, the Respondents sought an adjournment of the habeas corpus hearing for 3 weeks. After lengthy arguments, the Court agreed to postpone the case to 5 August even as the Applicants’ counsel agreed to withdraw the affidavits filed which needed to be replied to by the Respondents.
SUARAM is of the views that the decision to postpone the hearing on 22 July sets a bad precedent as it in effect continued the purported legitimisation of the EO6’s detention for up to one month. International human rights law clearly requires that on an urgent matter such as a habeas corpus application, the detainee is entitled to a speedy hearing and disposal of the matter.
Abolish the EO, ISA and DDA!

The absence of judicial checks and balances in Malaysia’s preventive detention law has exacerbated police abuse of power. SUARAM reiterates its demand that the Government abolish all preventive detention laws and free all detainees held under the same or to accord them a fair trial. SUARAM stands strongly against any law that provides for detention without trial.
Released by,
Program Manager

Eight Immigration Officers Released from ISA, What about the Rest?

4 August 2011
Eight Immigration Officers Released from ISA, What about the Rest?

Gerakan Mansuhkan ISA (GMI) welcomes the released of three ISA detainees who were released on 2 August 2011 while the remaining five will be released on Friday. The eight were detained in October last year for alleged involvement in human trafficking.
GMI welcomes the release of the eight as they have not been proven guilty by any open court in Malaysia. We believe that the release of the detainees is the result of the persistent and continuous campaigns to demand for the abolition of the ISA. However, we could not escape the thought of the motive and the timing of the release i.e. in commemoration of 51 years of ISA on 1st August 2011 or the looming GE13.
The release of the eight although welcomed, should not be seen as a substantial improvement in the state of human rights with regards to the use of the ISA by the government. More than 30 detainees are still currently being detained under the ISA. We urge the government to release all remaining ISA detainees and to abolish the Act and all other laws which permit detention without trial.
Although the detainees were released from detention and claimed that they regretted, we believe that this admission is a sign of compulsion. Such incidents are not uncommon to GMI where newly released prisoners said that they regretted and thanked the Malaysian government. The question to ask is, can the government restore the freedom the detainees lost for the ten months?
GMI reiterates that punishing or detaining people without giving them any opportunity to defend themselves is barbaric. Uncivilized laws that permit detention without trial go against the principles of democracy and should be abolished. In fact the Standard Minimum Rules for the Treatment of Prisoners Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions under rule 95 clearly said that,
“Without prejudice to the provisions of article 9 of the International Covenant on Civil and Political Rights, persons arrested or imprisoned without charge shall be accorded the same protection as that accorded under part I and part II, section C. Relevant provisions of part II, section A, shall likewise be applicable where their application may be conducive to the benefit of this special group of persons in custody, provided that no measures shall be taken implying that re-education or rehabilitation is in any way appropriate to persons not convicted of any criminal offence”
All ISA detainees should be released or be charged in the courts. Even if there is only one ISA detainee left, the struggle will still continue. 51 years of ISA is enough! It’s time to abolish all the laws that allows detention without trial.
Abolish ISA!
Release All ISA Detainees!
Close Down Kamunting Detention Camp!
Released By,

51 years of ISA: Enough is enough! Abolish Now!

Gerakan Mansuhkan ISA

Press Statement: 1st August 2011

51 years of ISA:  Enough is enough! Abolish Now!

Today, 1st August 2011 marks the 51st Anniversary of the enactment of the notorious Internal Security Act 1960 (ISA). The ISA was originally enacted to succeed emergency laws aimed at combating the communist insurgency during the 1940s and 1950s. However, it has since been used against those who commit acts deemed to be “prejudicial to the security of Malaysia”, or threatening to the “maintenance of essential services” or “economic life”. The government arbitrarily determines which acts fall under these categories and by using a loose interpretation of the legislation, has detained scores of individuals under the ISA, many of whom were prisoners of conscience, trade unionists, teachers, religious activist and community workers.
We are celebrating 54 years of independence but what is the meaning of it if the state still uses ISA by detaining persons without trial and without any form of judicial process? The draconian act infringes the Federal Constitution of Malaysia and the Universal Declaration of Human Rights (UDHR), as listed below:
Article 5, Federal Constitution of Malaysia
    (3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.
    (4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority    and
Universal Declaration of Human Rights (UDHR)
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
Are We Still In A State Of Emergency To Resort To Such “Emergency” Laws?
The ISA has been kept in use all this time mainly because it is a very convenient tool at the disposal of the government. The ISA itself has served as an instrument of terror of the State and used consistently against dissidents who have defended democratic and human rights of Malaysians. While we are no longer the state of emergency, the gloomy cloud of ISA continues to put us under a state of siege mentality. Even if there is a state of emergency, there can be no justification for a person to be detained for an extended period without trial. Is it any wonder that this draconian law was enacted on the year the Emergency was declared over?
On the occasion of the anniversary of the draconian ISA, GMI also expresses gravest concerns over other existing emergency and preventive laws which also provide for indefinite detention without trial, namely the Emergency Ordinance 1969 (EO) and the Dangerous Drugs Act 1985 (DDA). As of February 2010, 819 individuals were detained without trial under the EO, while 412 were incarcerated under the DDA which amounts to a total of more than 1,200 individuals detained without trial in Malaysia notwithstanding the ISA detainees.
The recent detention of 6 Parti Sosialis Malaysia (PSM) leaders namely MP Dr. Jeyakumar Devaraj, Sarasvathy Muthu, Saratbabu Raman, Sukumaran Munisamy, Choo Chon Kai and Letchumanan Aseerpatham shows that the EO is equally draconian and has now been misused by the government to detain political activists. The 6 have been released on 29 July unconditionally because of the continuous and persistent pressure on the government by the brave Malaysians who stood and fought for the release without any fear because the people of Malaysia believe that the detention of 6 is unlawful and unwarranted. Salute to Malaysians!
Torture under ISA
All these years under the ISA, the first sixty days of solitary confinement have been even more draconian than the security laws in South Africa under Apartheid, or even in the Northern Ireland during the war against the Irish Republican Army. In February 2004, 31 ISA detainees who were alleged as terrorists from Jemaah Islamiah (JI) and held at the Kamunting detention camp accused the police of applying 59 forms of mental and physical torture. This includes round-the-clock interrogation depriving detainees of sleep, stripped naked during interrogation, forced to urinate in a bottle, forced to drink spittle of interrogators, beard shaved and burned, ordered to make tea, massage the interrogators, threatened to arrest their family members, kicked and beaten up etc. In an ongoing civil suit of a detainee against the government, former detainee Malek Hussin told that he was stripped naked, kicked and beaten-up, force-fed dirty and stinking water and subjected to sexual abuse.
Every decade has grisly tales of torture to relate. These dark deeds by the Malaysian Special Branch are the scandalous side of “Malaysia Boleh”. The biggest scandal of all is that to date, none of these torturers have been brought to justice, nor have deterrent sentences been passed on them. These cases are only the tip of the iceberg. While the government denies any such acts, it remains very difficult for victims of torture to prove the acts, especially while in detention.
No Progress, More Hypocrisy

To date, more than 30 ISA detainees continue to languish in the Kamunting Detention Camp.  The detainees have been accused of various allegations, including being members of militant groups Jemaah Islamiah (JI), Darul Islamiah (DI), coins counterfeiting, forging fake documents, human trafficking and etc. None of them has been brought to court.
Even yesterday, the Home Minister Hishammuddin said that two people detained under the Internal Security Act (ISA) for links with terrorist group Liberation Tigers of Tamil Eelam (LLTE) have been deported to Sri Lanka.  He also mentioned that the government is considering releasing the seven Immigration Department officers detained under ISA for their involvement in human trafficking. This  release is due to the Ramadan month. The power of minister and police is ultimately unquestionable!
Since Najib Razak came to power in 2009, the ISA has continued to be used in the same way in the name of national security, ranging from persons allegedly spreading rumours through SMS, to political dissidents and alleged terrorists. In 2011, the government continued its tactic of creating a climate of fear through the use of the ISA, threatening to invoke it upon activists and organisers of BERSIH 2.0 who allegedly asked the people of Malaysia to participate in street demonstrations.
lSA is not only unfair and unjust to the detainee, it has become one of the main root-causes of corruption, abuse of power and police brutality, which the Abdullah administration tried to address with the setting up of the Royal Police Commission. The lack of transparency and accountability and the secrecy surrounding the use of the ISA provide a more than perfect environment for corruption, abuse of power and torture by the police, knowing fully well that they will get away scot-free with absolute impunity.
GMI is disappointed with the performance of the PM, who has shown no hesitation in continuing to invoke the ISA to arrest and detain more people without trial. We have a vast array of laws which provide an adequate legal framework to deal with threats against national security, trafficking activities, counterfeiting currency or falsifying documents which do not by contravene universally accepted principles of justice and human rights. Why, therefore, is the ISA still needed?
Respect the Judiciary

Under the ISA, EO and DDA, there is no space for the judiciary to intervene or review the decision made by the Minister of Internal Security. The lack of judicial check and balance has exacerbated the abuse of power by the police who can get away with impunity. It has also facilitated torture and ill-treatment of detainees. Malaysia cannot call itself a democratic country when there is such a law that permits detention without trial and gross violation of human rights.
Movement to Abolish Preventive Law’s

GMI, in its 10 year existence has succeeded, through its many programmes, in raising public awareness about the injustice and cruelty of the ISA. It has also been able to put continuous pressure on the government by campaigning at home and abroad. As part of an intensive programme to campaign against the detention of number detainees, GMI has produced several publications and pamphlets which have been distributed throughout the country. GMI also organised the biggest and historical Anti ISA rally in 2009 and most recently simultaneous Anti ISA candle-light vigil in 2010 in 8 states in Malaysia.
GMI therefore calls for the following:

1.         Abolish the ISA and all forms of detention without trial; charge all detainees in an open court or else release them immediately and unconditionally.
2.         Conduct public inquiries and investigate all cases of torture reported; make public the reports of investigation and bring all perpetrators of torture, inhumane and degrading treatment of the ISA detainees to justice.
3.         Use the present criminal laws to deal with crimes pertaining to national security. Our criminal laws which provide for a maximum of 15 days of detention are more than sufficient for investigative purposes.
4.         Heed the call of SUHAKAM, the independent body which safeguards human rights in Malaysia, to review and abolish ISA. Numerous international human rights bodies have also voiced the same for many years.
5.         Restore the independence of the judiciary to curb abuses of power by the police.
6.         Ratify the Convention Against Torture, the International Covenants on Civil and Political Rights, and the Economic, Social and Cultural Rights.
Abolish ISA!
Release All The Detainees!
Close Down KEMTA!
Released By,
Secretariat of GMI

Asylum Swap Deal & the 60th Year Anniversary of the 1951 Refugee Convention

Press Release (28 July 2011)

Asylum Swap Deal & the 60th Year Anniversary of the 1951 Refugee Convention: Ratify First, Arrange Later

Today, 28th of July, 2011, will mark the 60th year anniversary of the 1951 Refugee Convention – the first and main international agreement that protects the fundamental rights of refugees across the world. 142 nations have ratified the convention. This number does not include Malaysia.

Asylum Swap deal signed

On Monday, 25th June 2011, Australian and Malaysian governments together signed the controversial asylum swap deal. The deal to send 800 asylum seekers to Malaysia in return for 4,000 recognized refugees to Australia comes into effect immediately at midnight.

As a human rights organization, SUARAM strongly condemns the decision to continue the deal, which is constantly criticized by additional various quarters including the UN as well as Malaysian and Australian activists.

SUARAM is of the view that this is a gross denial of freedom and the right to seek asylum in Australia, a country that is signatory to the 1951 Refugee Convention. SUARAM rejects the elucidation that this deal would be a win-win situation for the both governments and a total loss for the smugglers. What about the subjects involved (asylum seekers or transferees)? Do the governments believe this deal will benefit them (asylum seekers)? Do they think this deal will confine asylum seekers to a boat sailing to Australia? This deal does not meet its justification of stopping human trafficking and the smuggling business model.

The failure to look into human rights principles

SUARAM believes that the failure to take into consideration human rights principles is the most crucial and overlooked element in the arrangement. Poor human rights protection has been encouraging asylum seekers to flee from Malaysia and sometimes use whatever means they deem necessary to seek protection.

Both governments must respect the rights of all individuals seeking asylum in Australia and not gamble their fates by transferring them to Malaysia, a country that has not ratified the 1951 Refugee Convention. The failure to look into human rights principles may lead to the failure to consider those on the losing end: the asylum seekers who will be transferred to Malaysia.

Verbal commitment, insubstantial pact

Ministers Hishamuddin Hussein and his Australian counterpart, Chris Bowen had both officially signed the agreement promising that the 800 asylum seekers will be treated in “dignity” and “respect”. This included their rights to work, access to education and health care, and freedom to move. At the same time, the details of the agreement do not ensure any concrete proposal to enforce the guarantees and promises made by the ministers. If the official arrangement does not guarantee concrete protection to the 800 asylum seekers, how can a verbal commitment claim to ensure concrete protection to the 800 asylum seekers? We believe that these 800 asylum seekers will melt into the 100,000 refugees who suffer and enjoy almost “zero” tolerance and fundamental rights protection.

Ratify first, arrange later

Until now, Malaysia has showed no intention of ratifying the 1951 Refugee Convention and its 1967 Protocol. Yet Malaysia is interested getting involved with refugee-related arrangements such as the asylum swap.

Malaysia maintains a blanket policy that all undocumented migrants including refugees and asylum seekers are considered illegal migrants. As such, they can be arrested, deported, and even punished by judicial caning under the immigration act.

SUARAM urges the Malaysian government to first ratify the 1951 Refugee Convention and/or at least to develop an effective domestic act and administrative mechanisms before dealing with any arrangements regarding refugees and asylum seekers.

Why should Malaysia ratify?

SUARAM launched its campaign to urge the Malaysian government to ratify the 1951 Refugee Convention in May 2011. In conjunction with the 60th year anniversary of the convention on 28th July, we once again urge the government to ratify it in order to provide legal protection and promotion of the fundamental rights of the refugees in accordance with internationally recognized legal and humanitarian standards.

Ratification would also demonstrate the Malaysian government’s commitment for genuine “burden sharing” in handling global issues: developing effective administration and cooperation with UNHCR, reducing the capacity of immigration detention centres, as well as supporting the lack of human resources in various domestic sectors in Malaysia.

Released by,

Andika Wahab
Refugee Coordinator
Suara Rakyat Malaysia (SUARAM)
[email protected]