Archive for September, 2008

30
Sep
08

Damnation! (Malaysiakini’s reports on dams)

The Malaysiakini’s reports on plans to proceed with buiding the dam in Murum in Sarawak show clearly that the current Sarawak state government does not give a damn about the interest of its people and continues to allow the rape of its environment to the benefit of narrow industrial and private interests.

Malaysiakini reports:

Before the controversial RM8 billion Bakun dam is even completed, the state is already rushing to build the RM3 billion dam in Murum which could likely see cost overruns similar to the Bakun dam project. Not only that, the Murum dam will be the first of the additional 12 dams Sarawak plans to build!

Why can’t the Sarawak state government wait for the completion of the problematic Bakun dam in 2010 before proceeding with building more dams? Is dam construction such a profitable business for certain parties that they cannot wait and the state government is bowing to such interests? Are the decision-makers oblivious of the fact that country and the world is facing economic turmoil and such astronomical spending with dubious outcome should at least be postponed until proper evaluation of the viability, economic risks, adverse environmental impact and human costs can be carried out?

According to the Auditor-General’s Report 2007, RM3.91 billion has already been spent on the Bakun dam project with the cost estimated to escalate to about RM8 billion. The report also highlighted various “weaknesses” such as:

– an additional RM708 million was approved for construction of the main dam even though contractually it should be borne by the contractor
– completion date of the main dam is now delayed from Sept 2007 to June 2010
– delay in completion of the main dam has resulted in compensation claims by other affected contractors to the tune of RM510.8 million.
– RM100 million has already been approved for payment as compensation to these companies. Some of the companies seeking compensation do not even have signed contracts with the company responsible for building the dam – SHSB (Sarawak Hydro Sdn Bhd).

Apart from the financial controversy, it is also uncertain how the electricity will be used when the Bakun dam is finally completed. Originally, the electricity is to be transmitted to peninsular Malaysia via undersea cables. In 2001 that plan was abandoned and the hydro-electricity generated is to be used to supply Sarawak and Sabah instead. However, in 2005 the government decided not to transmit electricity to Sabah because of the distance and in 2006 revived the plan to tranmit the power to west Malaysia via undersea cables.

But the peninsula currently has a comfortable reserve power capacity. Worried about the viability of laying the undersea cables for power tranmission, the company which is supposed to undertake the RM15 billion cable-laying work has pulled out and the plan to transmit the electricity from the Bakun dam to the west Malaysia is in doubt yet again.

So, it looks like there is no foreseeable demand for the 2,400 megawatt electricity which the Bakun dam can generate when it is completed.

There is now a plan by Cahaya Mata Sarawak (CMS) and the multinational Rio Tinto Alcan to build an aluminium smelter which may have electricity requirement of 900-1,200MW. (See the report, “Taib family’s CMS to benefit from dam” for more details about the ownership of CMS.)

Since the Bakun dam will have more than enough capacity to provide the power supply to the aluminium smelter logically the Bakun dam is the obvious source of power. However, the plan is not to obtain the power from the Bakun dam but from the newly-planned Murum dam!

Will we see another controversy with the Murum dam, complete with cost-overruns, mismanagement, government bailout, displaced indigenous people, environmental damage and questionable viability? Imagine, these problems may be repeated 12 more times!

I tell you, this whole thing about the damn dams in Sarawak really stings to high heaven.

28
Sep
08

The ISA: An Abusive Law

(extracted from Human Rights Watch May 2004, Vol. 16, No. 7 (C))

Under the ISA, government officials may order persons detained without even the most basic due process rights. Most importantly, the government may detain individuals it deems a threat to national security for as long as it sees fit, with no meaningful judicial review.

The ISA is extremely broadly worded and allows for virtually indefinite detention. At the heart of the ISA are sections 73 and 8. Section 73 provides for an initial detention period of up to sixty days. Any police officer can detain an individual under section 73, but detentions that last longer than 30 days must be approved by the home minister. An individual may be detained under section 73 if, in the judgment of the executive, he or she is “acting in any manner prejudicial to the security of Malaysia . . . or to the maintenance of essential services therein or to the economic life thereof.”

At the end of two months, an individual can be detained under section 8, which allows for a detention period of two years, renewable ad infinitum. The section 8 order must be issued by the home minister, who must be “satisfied that the detention . . . is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof.” The home minister has the authority to choose the place of detention, and to dictate the conditions of detention, as she or he sees fit.

No attempt is made in the Act to further define specifically what constitutes a true security threat under the ISA and, without the possibility of narrowing the language of the ISA through judicial interpretation (see below), the government is left with a free hand to pull almost any behavior into the scope of the ISA.

Under Malaysian criminal law as it normally operates, police officers and others are allowed to detain individuals only if they have a reasonable suspicion, or “probable cause,” for doing so. The ISA makes a nod toward probable cause in its requirement that an officer have “reason to believe” that an individual is acting or about to act in a manner prejudicial to the security of Malaysia. In order to engage in long-term detention under Section 8, the Minister must be “satisfied” that such detention is “necessary” for Malaysia’s continued security and stability.

In practice, however, such safeguards, as limited as they are, are ignored. The Special Branch (the federal security and intelligence force) has detained political opponents of the ruling United Malay National Organization (UMNO) under the ISA, for whom no such probable cause for arrest existed. The April 2001 arrests of the so-called KeADILan 10 is one such example: although the inspector-general of police claimed that the KeADILan activists were arrested for allegedly planning violent military activity, while in custody they were only questioned about their political activity, and no evidence was ever produced supporting the government’s original allegations.

Those detained under the ISA for alleged terrorist activity have faced the same problem: the government has made public statements claiming that they were members of terrorist groups, but has yet to substantiate that claim.

Section 8B explicitly rejects a role for the courts in reviewing ISA detentions:

There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong [the Malaysian king] or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.

This provision effectively eliminates judicial review of ISA detentions, thus leaving detainees without any legal challenge to their detention. Although the law leaves room for review of “procedural requirements,” the procedural burdens placed on the government by the ISA are so few that even this one avenue of challenge is of limited use. And as a result of the section 8B strictures and other restrictions, Malaysian judges have not been willing to use their judicial authority to uphold the rights of ISA detainees.

Although section 11 of the ISA allows for review of all detentions by a nominally independent Advisory Board, the recommendations of the Board are non-binding. The Board is appointed by the Malaysian King on the advice of the prime minister, and its suggestions on individual cases are frequently ignored.

28
Sep
08

ISA: Mortgaging freedom

With reference to Malaysiakini’s report, “ISA detainees’ wives: Hindraf has changed”  (http://www.malaysiakini.com/news/90481), it may be of interest to note that in early 2008, the Observatory for the Protection of Human Rights Defenders sent a representative to observe and report on the hearing concerning the detention of the HINDRAF leaders. The report on this international mission of judicial observation entitled, “Mortgaging freedom for security: Arbitrary detention of five HINDRAF leaders” is available here.

Among the conclusions drawn in the report are the following:

  • the Malaysian Government has yet to demonstrate that any of the individuals it has detained have actually engaged in any illegal or physically dangerous activity.
  • More importantly, it has not shown that the investigation, arrest and detention of alleged militants could not be handled through normal criminal procedures that include proper procedural safeguards to protect the rights of the accused.
  • It shows how temporary measures implemented as a reaction to a perceived threat to a nation’s security can become permanent, and through incremental changes, become more restrictive over time, undermining fundamental institutions like the judiciary.
  • Under the ISA, individuals are deprived of many of their fundamental human rights enshrined in the Universal Declaration of Human Rights. They are deprived of their rights to a fair and public trial, to be presumed innocent until proven guilty according to law, to answer the charges against them and not to be arbitrarily detained. Malaysia is a modern country in which detention by executive fiat has no place.

The following are some of the recommendations contained in the report:

  • The ISA should be repealed in its entirety and all persons in Malaysia should be tried in conformity with international fair trial standards. Indefinite detention without trial can never be in conformity with international human rights standards.
  • The Malaysian Government should immediately release all ISA detainees in the absence of valid legal charges that are consistent with international law and standards, or if such charges exist, bring them before an impartial and competent tribunal and guarantee their procedural rights at all times…
  • All persons arrested in Malaysia should be promptly brought before a judge, informed of the charges against them and have access to legal counsel, medical assistance and family members.
  • Malaysia should conform with the provisions of the UN Declaration on Human Rights Defenders in all circumstances, especially its Article 1, which states that “everyone has the right, individually and in association with others, to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels”, as well as Article 12.2, which provides that “the State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration”.
  • More generally, ensure in all circumstances the respect for human rights and fundamental freedoms in accordance with international and regional human rights instruments ratified by Malaysia.

…source

27
Sep
08

Facts on ISA

In 2003 Amnesty International issued a report on the Internal Security Act in Malaysia which gives a concise account of the history of the ISA and the human rights abuses committed under the ISA. The following is a summary of the facts on ISA provided in the report.

  • The ISA is a law that allows the police to arrest, without evidence or a warrant, individuals that they believe have acted, or are “about to” or “likely to” act in a way that would threaten Malaysian security, “essential services” or “economic life” (Article 73 (1) b).
  • Detainees can be held for up to 60 days for investigation. After 60 days, the Home Minister can issue a two-year detention order under Article 8 of the ISA. This two year detention can be renewed indefinitely without the detainee ever being charged with a crime or tried in a court of law.
  • The ISA, through a series of amendments, has incrementally extended Executive powers, while stripping away the judicial safeguards designed to protect against their abuses. Once a person is detained under the ISA, he or she has no effective recourse to legal protection, nor any opportunity to establish their innocence of the accusations levelled against them. As such the ISA is contrary to fundamental principles of international law, including the right to liberty of the person, to freedom from arbitrary arrest, to be informed of the reasons for arrest, to the presumption of innocence, and to fair and open trial in a court of law.
  • Although some of those detained under the ISA have made successful habeas corpus applications before a court, most are rejected. One detainee whose detention under both Article 73 (1) b and Article 8 was ruled as unlawful by a court was immediately re-arrested by the police on his release and handed down another two-year detention order by the Home Minister.
  • The lack of judicial safeguards, combined with incommunicado detention and solitary confinement create a situation where torture and ill-treatment are more likely to occur.
  • Several former detainees have suffered mental breakdowns as a result of prolonged intense psychological pressure during interrogation.

The following are Amnesty International’s recommendations:

Amnesty International calls on the Government of Malaysia to respect and uphold fundamental human rights enshrined in the Malaysian Constitution, the Commonwealth Harare Principles and the Universal Declaration of Human Rights.

Amnesty International;

  • urges Malaysian authorities to guarantee that no detainees are subject to physical or psychological torture or ill-treatment in detention. All complaints of torture or ill-treatment must be promptly and impartially investigated and those found responsible brought to justice;
  • calls for detainees not to be held incommunicado and to be allowed immediate and regular access to lawyers, their families and independent medical attention;
  • calls for all Internal Security Act (ISA) detainees to be released immediately or charged with a recognizably criminal offence and brought before a court of law. Everyone should have the opportunity to defend themselves against accusations in a fair and open trial;

…source

26
Sep
08

King and politics (Malaysiakini report)

At the end of the Malaysiakini report (http://www.malaysiakini.com/news/90428), “King and politics, ball is in the royal court” Dr Abdul Aziz Bari who is a professor of law at the International Islamic University Malaysia concluded that:

In the light of democracy and constitutionalism the issue now is not whether the king’s involvement is political or otherwise. What matters most is that something needs to be done in order to put the country back on the democratic process which at the moment means the testing of the claim made by Opposition Leader Anwar Ibrahim that he has got the numbers to form the new government. As parliament has been denied the opportunity, the ball is now at the king’s court.

Fitness to govern is a grave matter and thus it is inappropriate for us to delay it.

Although various parties have tried to argue that the king should not be involved in resolving the claims of who should form the government, it is clearly stated in Article 40(2) of the constitution that the king may act in his discretion in the appointment of a Prime Minister. However, the Prime Minister appointed must be the person who commands the confidence of the majority of the members of parliament.

In the past, this has not been an issue since there has always been a clearcut majority in parliament for the BN. However, if Anwar’s claim that he now commands a majority in parliament is true, there is now two conflicting claims. The king can and should now step in to resolve this political impasse using his discretionary powers.

The next question is in what manner should the king intervene to determine whether the current PM still commands the confidence of the majority in parliament? The current PM has refused to convene an emergency parliamentary session to allow for a vote of no confidence for obvious reason. The king can summon the parliament to convene. However, this may also encounter resistance from the ruling party if it foresees that it may lose power if a vote of no confidence is carried out.

An alternative is for the king to meet Anwar so that he can confirm his claim by producing signed documents from the MPs concerned and, if necessary, bring them to meet with the king. In fact, that was what happened in Sabah in 1994 when Pairin Kitingan was forced to step down as chief minister after members of his party crossed over to the BN. Although the Sabah case is at the state level, the state’s constitution is not unlike the federal constitution.

According to the report in the Sun, “Into uncertain, uncharted waters“,

Essentially, it looks like the King can exercise his discretionary powers to bring about a change in government if he is satisfied that somebody else other than the current prime minister commands the majority. That can include a signed document indicating their support of Anwar by the relevant MPs but it is not limited to that. The King can use his discretion too to dissolve Parliament and call for fresh elections. That means if Anwar can show the King that he commands the majority in Parliament and if the King is satisfied with that, the King can take the necessary measures to make Anwar the prime minister or dissolve Parliament in favour of fresh elections.

The current political uncertainties in the country should be resolved quickly and the king can exercise his constitutional powers to determine who currently commands a majority in parliament and should legitimately form the government.

25
Sep
08

Torture in Kamunting

It is shocking to hear that RPK has been placed under solidarity confinement for the first 3 months of his detention under the ISA. Can you imagine being confined to a small room without being able to interact with anyone for even 1 week?  This is for 3 months!  This is mental torture, nothing less. Perhaps, this is the normal practice at the Kamunting detention centre, but it is still torture and it must stop.

What has RPK done to deserve this?  If he has defamed anyone, bring him to court and charge him.  If he has committed any offences under the Sedition Act, bring him to court and charge him.  In fact, there are already a number of police reports lodged against him and he faces charges of criminal defamation and sedition.  Whether these reports and charges have any basis let the court decide and give him an opportunity to defend himself.

By no stretch of the imagination can RPK be considered a threat to national security.  He is NOT advocating violence of any sort.  There is no communist insurgency in the country which was the main reason why the ISA was enacted.  The only reason to detain him under the ISA can only be for political reasons.

To deny RPK the right to the habeas corpus hearing on the 23 Sept by changing the detention order, shows the callousness and the total disregard for human rights on the part of the government. It is a cowardly act. The BN government has really lost the moral authority to govern the country.

It was reported in the mainstream media that the home minister, Syed Hamid made the absurd contention that, “the people should understand why the government decided to use the ISA, as what was important was to turn offenders into members of society who could contribute to nation building.” Apparently RPK has to undergo religious rehabilitation in order for him to be “turned over” so that he will contribute to nation building? Syed Hamid is fast losing all his credibility by making all the ridiculous statements.

Stop the torture in Kamunting and release RPK and the other ISA detainees!

25
Sep
08

An act of intolerance

News of the blantant abuse of the ISA in Malaysia to arrest a journalist, a MP and a blogger in Malaysia have spread far and wide. The following is just one of the many international reports on Malaysia’s infamy.

An act of intolerance
Chiew-Siah Tei
September 23 2008 – guardian.co.uk


The arrests bring our attention to two major issues: the ISA and the true reasons behind its enforcement.

Firstly, the act and its enforcement are against human rights. In force since 1960, the act is a preventive detention law. Under the act, a person may be detained by the police for up to 60 days without trial for an act which allegedly prejudices the security of the country or any part thereof. After that, the person may be further detained, to be reviewed and approved by the minister of home affairs every two years. During the 60 days, the detainee is deprived of contact with the outside world – including family members and lawyer – and former detainees have testified to being subjected to severe physical and psychological torture.

Secondly, the act is nothing but a tool for the ruling party, the Barisan National (BN), to suppress dissident voices. Since its enactment, the act has been used against people who criticise the government and defend human rights. For decades, for supposedly “threatening the security and the economy of the country”, political opponents of the BN government and human rights activists have been put behind bars. During Operation Lalang in 1987, for example, opposition leaders and social activists were held under this act after mass arrests.

Close studies of the recent detainments indicate that these measures only expose the incompetence of the United Malaysia National Organisation-led government.

…more




Nuclear lessons for Malaysia (Part 1) (Part 2)
BN govt is directing attention to distant past and distant future, in order to distract people from present misdeeds and poor governance
Felda - A picture is worth a thousand words
How the 1MDB Scandal Spread Across the World (WSJ)
We cannot afford ridiculously expensive RM55 Billion ECRL!
All that is necessary
for the triumph of evil
is for good men
to do nothing.

- Edmund Burke
When the people
fears their government,
there is TYRANNY;
when the government
fears the people,
there is LIBERTY.

- Thomas Jefferson
Do you hear the people sing?

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