(This is the English translation of the Danish article in relation to the 2008 Bar Council’s International Human Rights Day celebrations which appeared here.)
The absence of functional jurisdiction allows the law to be used for oppression in a number of Asian countries. Malaysia has a strong Bar Association and recently put focus on the problem in a conference celebrating Human Rights.
A white car with a blue and yellow checkered stripe on the side is parked on the sidewalk. It has been parked there for a while, but the two in the car do not look like they are about to leave it.
It is a man and a woman. The latter is talking, gesticulating, while her companion is listening, both hands resting on the steering wheel. On the side of the car is the word: “POLIS.”
The two officers are parked outside the Malaysian Bar Association’s head quarters in the capital, Kuala Lumpur. This is no coincidence.
The bar association is hosting a conference to celebrate the 60th anniversary of the declaration of Human Rights.
It is a controversial subject and the hosts are not at all surprised by the presence of the car.
- They are always watching us when we talk about human rights. They brought machine guns, says Edmund Bon Tai Soon, the chairman of the bar’s human rights committee. On the contrary, the 34-year old human rights lawyer looks like he is mildly amused over the fact that the police officers probably are going to spend the three days the conference lasts in their car.
- They are here to intimidate us. But it is better to proceed without letting it disturb the conference, he says.
Not just Malaysia
Tai Soon is not the only one, who is used to being registered by the police. It is a common problem in South East Asia that the law – and its resources – are used to control and survey citizens.
Jonas Grimheden, a researcher at the Raoul Wallenberg Institute in Sweden with a special interest in human rights and law implementation in South East Asia explains that it is a common development that a regime that is authoritarian also has weak jurisdiction. This is the case with Burma’s all powerful militia, Cambodia’s post Khmer Rouge government, the strictly controlled communist regime in Vietnam and under China’s diplomatic no-compromise leader style with Hu Jintao. Usually this is combined with very little will or motive for change from the people in power.
- Strong governments are not fond of strong, independent courts, because it obviously threatens their power monopoly. The laws themselves are too weak, unspecific and open for interpretation. There is a belief that simply the legislation will do the trick with less concern for budgetary allocations, implementation strategies and the like, he says.
This tendency is present in the region, he explains, but some countries are worse than others.
- Particularly Malaysia, Vietnam, Cambodia and to some extent Singapore; believe that Malaysia has been the worst in the region, using law for political purposes, to get rid of political opponents, to gain the upper hand in elections, to swing the perception of the public, he says.
The Malaysian chairman easily recognizes this picture:
- We get harassed when we agree to take certain cases that are sensitive. Our phones are tapped and our texts, including private messaging, are being read. They call us in for questioning when we represent some clients. And it is our feeling that they do not have the need to call us in, explains Bon Tai Soon.
The controversial Internal Security Act (ISA) has been a subject of discussion in Malaysia for years. And it is one of the hot topics at the conference as well – several speakers use it as an example and a symbol of suppressed freedom of expression.
And it is a symbol which was underlined thoroughly when the well-known political blogger Raja Petra Kamaruddin was jailed in September 2008 for having critizised top politicians on his blog.
According to ISA, a person can be removed if he or she commits a threat toward the security of other citizens and the detention time can be prolonged without the accused person being represented. The Malaysian blogger was detained for two months – but then something very unusual happened: He was freed.
This was unheard of in the Malaysian courts and the blogger became a symbol of his own: It is possible to rock the strict and unjust laws in a nonviolent way in Malaysia.
The case is the reason there is a fuss over a little softspoken Indian man’s presence at the Human Rights conference. He is easily overlooked, in his jeans and t-shirt and he does not mind – his nature is not that of a loud vigilante, his force is in his intelligence and knowledge of the law. Malik Imtiaz Sarwar is the lawyer of the jailed blogger.
- We follow juridical discretion in Malaysia. The lawyers do not cross the judge. The only exception of this is if there is a technicality. According to section 8B in the ISA this is also the case with Raja Petra and this is the paragraph we used to get him freed, says Imtiaz Sarwar.
He and his team of lawyers argumented that the law’s preamble clearly defined the law to be an emergency law, intented to protect national interests against groups and conspiracies. With that in mind, the minister’s approval of Raja Petra’s detention is outside jurisdiction and therefore invalid, the lawyer explains.
- We told the judge that we respected the juridicial discretion, but that it did not apply to Raja Petra as he is an individual and his actions cannot be interpretated to be a threat to national security, says Imtiaz of his victory over the bureaucratic Malaysian legal system.
Freedom for Raja Petra, not Malaysia
He warns, however, against premature celebration. The freeing of the blogger was a step in the right direction, but still, he does not see this to mean Malaysia is heading towards a fair and just society.
- I do not believe you can talk about progress on the grounds of this case. We were very lucky the judge saw our point of view. But it should not be about the judge, it should be about the law, says the Indian lawyer.
And true to this, there are no signs at all that the ISA is about to be repelled, despite the release. The Malaysian Ministry of Home Affairs declines to comment, but has earlier defended the law and denied it be used for anything but to maintain peace and order.
- It is a educating law, not a punishment. The purpose of the law is to correct and is does, the Malaysian Minister of Home Affairs says to the Muslim TV-channel Al-Jazeera. The Minister’s press responsible confirms that all documents dealing with the law are confidential.
This secrecy and closedness is exactly what the Malaysian lawyers are critizising. The blogger-lawyer, Malik Imtiaz Sarwar does not necessarily think the ISA should be repelled – but it is essentially important that it can be discussed.
- What we need is a more independent legal system in general and that it contains basic civil rights. To get to that point, we need open debate and discussion, but Malaysia is not an open society. It is a society full of secrets, he says.
Jonas Grimheden from the Raoul Wallenberg Institute spreads this analysis out to the region and adds that an open society also requires more skilled politicians.
- It is difficult to generalize over a whole region, but I think this tendency origins from very little confidence in the system. The laws are written in a way that opens up for negative interpretation and they are easily used politically. More opposition, more education for politicians as well as staff and a transparent system is needed to improve and move forward in particularly the countries I mentioned, he says.
At the Bar Council, the conference is coming to an end. Three days of debate and discussion has shed light on various issues and given an opportunity to speak freely of controversial matters. Within the participants seated in the auditorium a muttering has broken out – in Malaysia it is often what does not happen in the lime light that are the defining factor and so many members of press are circulating around the key persons in the audience.
In one of the rows, two men in civilian clothes are seated. Chairman Tai Soon recognize them to be agents from the Malaysian intelligence office. They are literally practising phone tap – they record the event with their mobile phones.
- They register what is happening and who is attending. Some times they dress up as members of the press and some times they are civilians. Every now and then we joke about it – do they not have anything better to do? But today, we have chosen to ignore them, he says.
The police officers outside the building have stopped their conversation. They are just sitting in the parked car, watching the city’s chaotic traffic.