• UM Law Society

MID YEAR ROUND-UP - A CHECK IN ON NECESSARY REFORMS

In reaching the midpoint of the year it is trite to consider the many events that have decorated the nation’s political and socio-economic landscape as well as the legal reforms and pressing socio-legal issues that are in desperate need of attention.

1. The Abolishment of the Sedition Act

The pandemic and the government’s response to and handling of it have undeniably given space for much media attention. Hence, the question of freedom of expression and whether it is truly awarded to our journalists and activists has come into question. .

The abolishment of the Sedition Act — an act first introduced by the British colonial government in 1948 and is now used to ban any act, speech or publication that brings contempt against the government or royalty — is crucial to ensuring that press freedom and the freedom of expression is protected in our country. This repressive legislation, as described by Amnesty International, is outdated and has been used to criminalise activists, students, journalists and more. Its failure to be repealed, as previously promised by the former Prime Minister Datuk Seri Najib Tun Razak, reflects the lack of value placed on free speech and equality in Malaysia.

2. Reforms for Police Accountability

The integrity of the members of our police force has come into question rather frequently in the past year. Many human rights groups have pushed for parliament to establish the Independent Police Complaints and Misconduct Commission (IPCMC), however little progress has been made to do so.

SUARAM has reported that between 2002 and 2016, there were at least 257 deaths in police custody, but only 62 were publicly reported. Official figures state that 23.4% of deaths in police custody were Indians, but SUARAM's findings determine it to actually be 54.8%. In the recent year, up to four custodial deaths have received widespread attention along with multiple reports of sexual harassment or abuse at the hands of police officers. These developments are extremely concerning and the formation of the IPCMC would — ideally — hold those responsible accountable.

3. Reforms against the discrimination of the LGBTQ+ community

The Federal Court’s landmark decision to nullify a Selangor Syariah enactment which banned ‘unnatural sex’ was deemed as monumental progress in combating the discrimination faced by the LGBTQ+ community. However, despite this victory for the community, they are still vulnerable to many other flawed laws within Malaysia’s legal system. Firstly, the same criminalisation on ‘unnatural sex’ that was declared unconstitutional is still a crime under Section 377B of the Penal Code, which categorises anal and oral sex as “carnal intercourse against the order of nature”. Same-sex marriage is also prohibited here in Malaysia by virtue of laws such as Section 69(d) of the Law Reform (Marriage and Divorce) Act 1976 which states that the parties in a marriage must be female and male respectively. This is further reinforced by cases such as Wong Chiou Yong v Pendaftar Besar & Anor where the courts did not recognise a person’s gender other than the one assigned at birth. Furthermore, no specific laws exist to shield the community against discrimination nor their rights to freely express themselves.

Although noting religious considerations, it is opined that the LGBTQ+ community deserves protection just like any other human being especially as it is an inherent human right to not be discriminated against. Our Federal Constitution guarantees this under Article 8(1) and 8(2) which mandates that all Malaysians be treated equally under the law and that any type of discrimination is prohibited. However, the country shows little to no progress in realising the necessary legal reform in this area.

4. Orang Asli rights

Considering the plights faced by the Orang Asli, it is high time to review policies in relation to their social, economic and cultural welfare. Their rights remain enshrined under the Federal Constitution - with Article 8(5)(c) providing for their protection, wellbeing and advancement. Article 45(2) also provides for the appointment of senators “capable of representing the interests of the aborigines''; and Article 160(2) provides the definition “aborigine”, one that is supplemented by the Schedule 9, List 1 which accords the federal government authority for the welfare of the aborigines. However, the protection of these rights specifically with regard to land matters, remain stagnant at best and are regressing at worst.

Recent projects such as the proposed Nenggiri dam in Kelantan and the de-gazetting of a major part of the Kuala Langat North Forest Reserve to construct an industrial estate illustrate the struggles of the Orang Asli in preserving their customary lands. Furthermore, the Mah Meri families from Kampung Orang Asli Bagan Lalang are at risk of being evicted to make way for the development of the Sepang GoldCoast project. If anything, such events serve as a reminder of the dire need for a comprehensive framework to protect this community.

It is time for Malaysia to review and implement long term solutions to ensure the socioeconomic welfare of the aborigines, for these practices are not uncommon. For example, New Zealand has the Aboriginal Rights and Land Claims 1995, the Maori Affairs Restructuring Act 1989 and the Maori Land Act 1993 to regulate land matters concerning aborigines. Meanwhile, the South Australian government recognised the Pitjantjatjara and Maralinga peoples’ inalienable title to their lands in 1981. Following these examples, it is pivotal that the government address the rights of aboriginal people to preserve their rich and diverse history.

5. Reforms on drug laws

Another issue warranting concern is the lack of attention surrounding Malaysia’s drug laws. The current framework which rests upon multiple presumptions of offence on the accused remains an affront to the phrase “innocent until proven guilty”.

Under Section 37 of the Dangerous Drugs Act, an individual found in possession of 50g or more in weight of methamphetamine will be presumed as a drug trafficker, unless the contrary is proved. Not only that, there is a presumption that if any dangerous drug is found concealed on any premises, it is assumed that the drug is concealed with the knowledge of the occupier of the premises. With such presumptions, the onus is on the accused to prove that the drugs do not belong to him. Considering that many drug-related offences carry the death penalty, it is crucial that the burden of proof rests on the prosecution.

Not only that, the current system of punishment for drug offenders should be reviewed. The system of incarcerating minor drug offenders is no longer relevant in today’s setting, nor is it practicable considering the issue of overcrowding in prisons. More emphasis should be replaced on rehabilitative efforts instead. Earlier this year, Home Minister Hamzah Zainudin announced that the proposed Drug and Substance Abuse Act seeks to replace the Drug Dependents (Treatment and Rehabilitation) Act 1983 which provides for the rehabilitation of offenders instead of imprisonment. This change in approach is vital in facilitating the integration of those with a past of drug abuse back into society besides removing the stigma they carry with them.

6. Combating Ableist laws in Malaysia

Persons with disabilities (PWDs) in Malaysia have long been marginalized and very often forgotten. The restrictive environment, whether in terms of the law or lifestyle in general, has hindered these people from being able to integrate into society and contribute as citizens. Although there have been improvements by enacting the Persons with Disabilities Act 2008, issues such as unemployment and educational limitations still prevail. A SUHAKAM report stated that the problem lies with the fact that there are certain omissions in the said Act, such as a lack of penalties against anyone who violates the Act.

Another matter of concern is that Malaysia has ratified the Convention on Rights of Persons with Disabilities (CRPD) in 2010, but with reservations on articles such as Article 5 on anti-discrimination and Article 15 on freedom from torture or degrading treatment. Additionally, while the government has taken steps to ensure equal access to public buildings for PWDs through the enactment of the Uniform Building By-Law 34A (UBBL 34A) of the Street, Drainage and Building Act in 1991, many older and modern buildings are clearly not disabled-friendly and do not comply with the by-law - yet, enforcement is lax on these matters.

These problems are merely the tip of the iceberg. Ableism in our country is as prevalent as ever, and it is time we reform the laws protecting the PWD community to ensure that they are able to exist as independent individuals within our society with as much dignity, and as more able individuals.

While this list is nowhere near complete and there are many more socio-legal issues that need to be addressed in our country, our hope is that parliamentary attention can be given to these issues in order to bring the rakyat more equality and civil protection.